Presentations & Awards 7-31-2015t9t5.2015
MIAMIBEACH
Presentations & Awards/Comm ission Meeting
City Hall, Gommission Chambers, 3rd Floor, 1700 Gonvention Center Drive
July 31,2015
Mayor Philip Levine
Vice-Mayor Edward L. Tobin
Commissioner Michael Grieco
Commissioner Joy Malakoff
Commissioner Micky Steinberg
Commissioner Deede Weithorn
Commissioner Jonah Wolfson
City Manager Jimmy L. Morales
City Attorney Raul J. Aguila
City Clerk Rafael E. Granado
Visff us at www.miamibeachfl.gov for agendas and video streaming of City Commission Meetings.
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of the City Attorney.
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AGENDA
Call to Order - 4:00 p.m.
Pledge of Allegiance
Moment of Silence in Honor of Miami Beach Resident Dr. Kevin Berkowitz
Requests for Additions, Withdrawals, and Deferrals
1.
2.
3.
4.
We are committed to providing excellent public seNice and safety to all who live, wofu, and play in our vibrant, tropicat, histoic community
1
Commission Agenda, July 31 ,2015
Presentations and Awards
PA1 Presentation On The State Of The Travel And Tourism lndustry By William Talbert, President &
CEO Of The Greater Miami Convention & Visitors Bureau And Recognition Of National Travel
And Tourism Week.
(Sponsored by Mayor Philip Levine)
(Deferred from June 10,2015)
PA2 Certificates Of Completion To Be Presented To The City Of Miami Beach Neighborhood
Leadership Academy Graduates For Spring 2015.
(Office of the City Manager)
PA3 The American Heart Association Recognizes The Miami Beach Fire Department For Achieving
The 2015 Mission: Lifeline EMS Silver Level Recognition Award And lmplementing Quality
lmprovement Measures For The Treatment Of Patients Who Experience Severe Heart Attacks.
(Sponsored by Commissioner Joy Malakoff)
PA4 Proclamation To Be Presented To Cheryl Cook, Of The Strand Restaurant ln Miami Beach, For
Her Role ln Creating The Cosmopolitan (Cocktail) Sometime ln 1989.
(Sponsored by Commissioner Michael Grieco)
PAs Proclamation To Be Presented To Miami Beach Gay Pride For Their Role ln Bringing Residents
And Visitors Together To Celebrate lnclusion, Diversity And The Unique Spirit Of The LGBTQ
Community.
(Sponsored by Commissioner Michael Grieco)
PAO Certificates Of Recognition To Be Presented To Miami Beach Senior High School Students:
Gabrielle Walden, 2015 Silver Knight Winner For Digital And lnteractive Media; And Nick Caine,
2015 Silver Knight Honorable Mention ln Social Science.
(Sponsored by Mayor Philip Levine)
GONSENT AGENDA
C4 - Commission Gommittee Assiqnments
C4A Referral To The Land Use And Development Committee Discussion Regarding Alcoholic
Beverages As A Conditional lssue ln Commercial Districts.
(Sponsored by Mayor Phillip Levine)
2
Commission Agenda, July 31 ,2015
G6 - Commission Committee Reports
COA Report Of The July 1 ,2015 Finance And Citywide Projects Committee Meeting: 1) General Fund
CSL Update And Proposed Millage Rate. 2) Review Of Proposed Capital Budget. 3) FY 2015116
General Fund Operating Budget: Potential Efficiencies/Reductions, Potential Enhancements, And
Potential Revenue Enhancements. 4) Proposed Parking Rate lncreases. 5) A) Discussion
Regarding Parking Demand AnalysisAtValker Parking Consultants; B) Discussion Regarding The
Construction Of A Parking Garage At The 27th Street And Collins Avenue earliing t-ot. O1
Discussion Regarding Whether Or Not To Pursue Food And Beverage Concessions For
Soundscape Park, Collins Park, And The Miami Beach Botanical Garden. 7) Discussion To
Amend The Living Wage Ordinance lnsurance Provision ln Light Of Obama Care. 8) Discussion
Regarding The Requirement For City Contractors To Provide Equal Benefits For Domestic
Partners. 9) Discussion Regarding A New Lease Agreement Between The City Of Miami Beach
(Landlord) And SB Waxing, lnc. (Tenant) lnvolving The Use Of Approximately 1,291 Square Feet
Of Ground Floor Retail Space Located At 1701 Meridian Avenue, Unit 3 (NKIA771 fith Street),
Miami Beach, Florida (Premises), For An lnitial Term Of Five (5) Years, With One (1) Renewal
Option For An Additional Four (4) Years And Three Hundred And Sixty Four (364) Days. 10)
Discussion Of A Resolution Of The Chairperson And Members Of The Miami Beach
Redevelopment Agency (RDA), Accepting The Recommendation Of The Finance And Citywide
Projects Committee, Pursuant To lnvitation To Negotiate (lTN) No. 2015-060-LR (The ITN), For
The Leasing Of City-Owned Buildings And Rooftops For The Placement Of Telecommunications
Equipment, And Authorize The Executive Director To Execute A Nine Year And 364 Day Lease
Agreement With Crown Castle NG East, LLC ("Tenant"), Attached And lncorporated Herein As
Exhibit "A," For Tenant To Operate And Maintain lts Existing Telecommunications Hub On The
Roof Of The RDA's Parking Garage Located At 1550 Collins Avenue, With A Monthly Rent Of
$4,000.00. 11) Discussion Regarding A Potential Public-Private Partnership With 1234 Partners,
LTD. For A Parking Garage On The 1200 Block Of Washington Avenue. 12) Discussion
Regarding Land Use & Development Committee And The Planning Board For The Review Of All
Planning Fees, lncluding Fees Associated With Plans Review, Board Applications And Other
Ministerial Functions. 13) Discussion Regarding A Request From The Parks And Recreation
Facilities Committee For A Competition Swimming Pool. 14) Discussion Regarding A Resolution
Accepting The Recommendation Of The City Manager, Pursuant To lnvitation To Negotiate (lTN)
2014-170-SW For A Gated Revenue Control System For The City's Parking Garages; Approving
The Material Terms Of An Agreement Between The City And Skidata, lnc., As Set Forth ln The
Term Sheet Attached As Exhibit 'A' Hereto; Authorizing The City Manager And The City
Attorney's Office To Finalize The Agreement Based Upon The Material Terms Approved Herein;
Provided That They May Make Any Non-Substantive And Non-Material Revisions And/Or
Additions To The Agreement, As They Deem Necessary; Authorizing The Mayor And City Clerk
To Execute The Final Agreement; And, ln The Event That The City ls Unable To Finalize
Successful Negotiations With Skidata, lnc., Authorizing The City Manager And The City
Attorney's Office To Negotiate An Agreement With Amano McGann, lnc. Based Upon The
Material Terms Approval ln Exhibit "A" Herein (Provided That They May Make Any Non-
Substantive And Non-Material Revisions And/Or Additions To The Agreement). 15) Discussion
Regarding The Transfer, Via Quit Claim Deed, To The Florida Department Of Transportation
(FDOT) The Property ldentified ln Exhibit "A," As The Property Has Been Constructed Upon By
FDOT And Utilized As A Turning Lane From Michigan Avenue Onto Alton Road; Containing
Approximately 4,014 Square Feet ln Total Area; Further Waiving, By 5l7t Vote, The Competitive
Bidding Requirements And lndependent Appraisal Requirements Of Section 82-39 Of The City
Code, Finding That The Public lnterest Would Be Served By Waiving Such Conditions.
3
Commission Agenda, July 31 ,2015
C6 - Commission Committee Reports
COB Report Of The July 17,2015 Finance And Citywide Projects Committee Meeting: 1) Finalizing
Proposed FY 201512016 Operating Budget And Capital Budget; 2) Proposed Water And Sewer
Rates. 3) Stormwater Update.
G7 - Resolutions
C7A A Resolution Adopting The Official Election Certificate Of The Canvassing Board For The Special
Mail Ballot Election Held ln The City Of Miami Beach From June 29,2015 To Juty 24,2015,To
Determine Whether A Majority Of The Affected Property Owners Approve The Creation Of A
SpecialAssessment District To Be Known As The Lincoln Road Business lmprovement District.
(Office Of The City ClerUOffice Of The City Attorney)
(ltem to be Submitted in Supplementa!)
REGULAR AGENDA
R5 - Ordinances
RsA Required Enclosures for Rental Car Facilities
An Ordinance Amending Chapter 1l4 "General Provisions," Section 114-1, "Definitions," By
Modifying The Definition Of CommercialVehicle; By Amending Chapter 142"Zoning Districts And
Regulations;" Article lV, "Supplementary District Regulations," Division 1, "Generally" To Modify
The Requirements For Required Enclosures To Create An Allowance For The Outdoor Exposure
Of Rental Car Vehicles; Providing For Repealer; Severability; Codification; And An Effective Date.
4:1{ p.m. Second Readinq Public Hearinq
(Sponsored by Commissioner Jonah Wolfson)
(Legislative Tracking: Planning)
(Continued from July 8,2015 - RsC)
4
Commission Agenda, July 31 ,2015
R5 - Ordinances
RsB Ocean Terrace Overlay - Comprehensive Plan And LDR Amendments
Comprehensive Plan - Ocean Terrace Overlay
An Ordinance Amending Policy 1.2 Of The Future Land Use Element Of The
Comprehensive Plan Pursuant To The Procedures ln Section 163.3184(3), Florida
Statutes, By Modifying The Medium lntensity Commercial Category (CD-2) And The
Mixed Use Entertainment Category (MXE) To Establish The'Ocean Terrace Overlay' ln
Order To Allow For An F.A.R. Of 3.0 for Residential and Hotel Uses, To Limit Commercial
F.A.R. To 1.0; And To Reduce The Maximum Allowable Residential Density To Fifty Units
Per Acre Within lts Boundaries; Providing For Repealer; Severability; Codification; And An
Effective Date. 4:12 p.m. First Readinq Public Hearinq
(Sponsored by Commissioner Jonah Wolfson And
Co-Sponsored by Commissioners Michael Grieco, Joy Malakoff & Deede Weithorn)
(Legislative Tracking: Planning)
(Continued from July 8,2015 - Rsl1)
Ocean Terrace Overlay - LDR Amendments
An Ordinance Amending The Land Development Regulations Of The Code Of The City Of
Miami Beach, By Amending Chapter 142, "Zoning Districts And Regulations," Article lll
"Overlay Districts," Creating Division 10 "Ocean Terrace Overlay", To Modify The
Applicable Setbacks And Allowable Encroachments, lncrease The Allowable Height To
250 Feet For Residential Uses And 125 Feet For Hotel Uses, lncrease The Allowable
Floor Area To 3.0 for Residential and Hotel Uses, To Limit The Allowable Floor Area For
Commercial Uses To 1.0, To Limit The Maximum Floorplate Of The Tower Portion Of New
Buildings, To Provide A Minimum Building Separation For The Tower Portion Of New
Buildings, To Modify The Allowable Main, Conditional, Accessory And Prohibited Uses;
Providing For Repealer; Severability; Codification; And An Effective Date. 4:12 p.m. First
Readinq Public Hearinq
(Sponsored by Commissioner Jonah Wolfson And
Co-Sponsored by Commissioners Michael Grieco, Joy Malakoff & Deede Weithorn)
(Legislative Tracking: Planning)
(Continued from July 8, 2015 - R5l2)
RsC An Ordinance Amending Chapter 46 Of The Miami Beach City Code, Entitled "Environment,"
Articte ll, "Care And Maintenance Of Trees And Plants," Division 2, "Trees"; At Section 46-59
Entitled "Tree Work Permit Application Processing, Requirements, And Review" To Authorize The
City Commission To Adopt By Resolution, A Fee Schedule Relating To lmplementing The Tree
Code; Providing For Repealer; Codification; Severability; And An Effective Date. 4:13 p.m.
Second Readinq Public Hearing
(Sponsored by Commissioner Joy Malakoff)
(Legislative Tracking: Public Works)
(First Reading on July 8,2015 - RsS)
1.
2.
5
Commission Agenda, July 31 ,2015
R7 - Resolutions
R7A A Resolution Approving, Following First Reading/Public Hearing, A Development And Ground
Lease Agreement, As Authorized, Respectively, Under Section 118-4 Of The City Code,
Sections 163.3220 - 163.3243, Florida Statutes, And Section 82-37 Of The City Code, Between
The City And Portman Miami Beach, LLC ("Portman"), For The Development Of An 800-Room
Convention Headquarter Hotel And Related Facilities, lncluding Up To 95,000 Square Feet Of
Conference And Ballroom Facilities, And Up To 37,400 Square Feet Of Restaurant Facilities (The
"Hotel"), On An Approximately 2.65 Acre Site On The 1700 Block Of Convention Center Drive,
Bounded Roughly By The Miami Beach Convention Center To The North, 17th Street To The
South, The Fillmore Miami Beach At The Jackie Gleason Theater To The East, And Convention
Center Drive To The West (The "Leased Property"); Delineating The Conditions For The Design,
Construction, Equipping And Operation Of The Hotel On The Leased Property, With No City
Funding Therefor; Providing For A gg-Year Term Of The Leased Property Once Certain
Conditions Are Satisfied; Prohibiting Gambling Establishments On The Leased Property; And
Providing For Annual Base Rent To The City, After The Hotel Opens, Of A Fixed Percentage Of
The Gross Revenues Of The Hotel, Among Other Rent; And Further Setting The Second Public
Hearing And Final Reading Of The Development And Ground Lease Agreement For A Time
Certain. 4:10 p.m. First Readinq Public Hearins
(Office of the City Manager/Office of the City Attorney)
R7B A Resolution Pursuant To Section 46-59, Of The City Code, Entitled "Tree Work Permit
Application Processing, Requirements, And Review"; Creating And Adopting The Tree Code
Permit Fee Schedule As Delineated ln Exhibit "A"; Which Fee Schedule lmplements All Fees
Relating To Chapter 46, "Environment," Article ll, "Care And Maintenance Of Trees And Plants,"
Division 2, "Trees," Sections 46-56 Through 46-90. 4:13 p.m. Public Hearinq
(Sponsored by Commissioner Joy Malakoff)
(Legislative Tracking: Public Works)
R7C A Resolution Setting 1) The Proposed Millage Rate; 2) The Required Debt Service Millage Rate;
3) The Calculated "Rolled-Back" Rate; And, 4) The Date, Time, And Place Of The First Public
Hearing To Consider The Millage Rates And Budgets For Fiscal Year (FY) 2015116; Further
Authorizing The City Manager To Transmit This lnformation To The Miami-Dade County Property
Appraiser ln The Form Required By Section 200.065, Florida Statutes.
(Budget & Performance lmprovement)
R7D A Resolution Of The Board Of Directors Of The Normandy Shores Local Government
Neighborhood lmprovement District Setting 1) The Proposed General Operating Millage Rate For
The Normandy Shores Neighborhood lmprovement District; 2) The Calculated Rolled-Back Rate;
And, 3) The Date, Time And Place Of The First Public Hearing To Consider The Operating
Millage Rate And Budget For Fiscal Year (FY) 2015116; Further Authorizing The City Manager To
Transmit This lnformation To The Miami-Dade County Property Appraiser ln The Form Required
By Section 200.065, Florida Statutes.
(Budget & Performance lmprovement)
6
Commission Agenda, July 31 ,2015
R7 - Resolutions
R7E A Resolution Accepting The Written Recommendation Of The City Manager (As Set Forth ln The
City Commission Memorandum Accompanying This Resolution) And Waiving, By 5/7th Vote, The
Competitive Bidding Requirement, Finding Such Waiver To Be ln The Best lnterest Of The City,
And Approving And Authorizing The City Manager (On Behalf Of The City) And City Clerk To
Execute An Agreement With Woosh Miami Beach LLC, ln Connection With The lmplementation,
Management And Operation Of A Pilot Program For A Citywide Network Of Smart Drinking Water
Stations, For An lnitial Term Of Three (3) Years, With One Renewal Option Of One (1) Year, At
The City's Sole Discretion; Which Agreement Shall, At A Minimum, Contain The Essential
Provisions Contained ln The Term Sheet Set Forth As Exhibit "A" To This Resolution; And Which
Final Negotiated Agreement Shall Be Subject To Legal Review And Form Approval By The City
Attorney's Office.
(Office of the City Attorney)
R7F A Resolution Calling For A November 3,2015 Special Election For The Purpose Of Submitting To
The Electorate Of The City Of Miami Beach, Florida, A Question Asking Whether Miami Beach
City Charter Section 1.03(bX4) Should Be Amended To Require A 4l7th Planning Board Vote And
A 7/8th Vote Of The Miami Beach Redevelopment Agency To Approve The Sale, Exchange,
Conveyance Or Lease Of 10 Years Or Longer Of Property Owned By The Miami Beach
Redevelopment Agency.
(Sponsored by Commissioner Michael Grieco)
(Legislative Tracking: Office of the City Attorney)
R7G Request For Final Negotiations And Approval Of Tier 1 Final Contract Adding Economic Analysis
And Recommendations For Town Center And West Lots With Dover, Kohl And Partners For
Master Plan For North Beach District.
(Sponsored by Commissioner Joy Malakoff)
R9 - New Business and Commission Requests
RgA Discuss Storm Water Pump Stations Policy.
(Planning)
RgB Presentation On The Beautification Of Alton Road Flyover Bridge At The Eastern End Of l-395.
(Public Works)
RgC Discussion Concerning Waiving Remaining City Fees And Charges For The "Dwayne Have A
Heart Foundation Sl(Run Walk," To Benefit The Dwayne Have A Heart Foundation, lnc.
(Requested by Commissioner Michael Grieco)
7
Commission Agenda, July 31 ,2015
R9 - New Business and Commission Requests
RgD Request The City Attorney Prepare Ballot Language For A Vote By The City Of Miami Beach
During The November 3, 2015 Election To lncrease The FAR For The Proposed Ocean Terrace
Overlay District.
(Sponsored by Joy Malakoff)
RgE Discussion Regarding What Rights The City Has To Take Away Mount Sinai's Grant Of 15 Million
Dollars Due To Their Being Bad Corporate Citizens.
(Sponsored by Commissioner Jonah Wolfson)
RgF Request From The Miami-Dade County Supervisor Of Elections For Permission To Do Absentee
Voter Outreach, Pursuant To Florida Statutes 101.655, To Electors Residing ln Assisted Living
Facilities (ALFs) And Nursing Home Facilities Located Within The City Of Miami Beach for the
upcoming November 3, 2015 Elections.
(Office of the City Clerk)
End of Asenda
8
PA
PRESENTAT!ONS
AND
AWARDS
9
Presentations and Awards
PA1 Presentation On The State Of The Travel And Tourism lndustry By William Talbert,
President & CEO Of The Greater Miami Convention & Visitors Bureau And Recognition
Of National Travel And Tourism Week.
(Sponsored by Mayor Philip Levine)
(Deferred from June 10,2015)
PA2 Certificates Of Completion To Be Presented To The City Of Miami Beach Neighborhood
Leadership Academy Graduates For Spring 2015.
(Office of the City Manager)
PA3 The American Heart Association Recognizes The Miami Beach Fire Department For
Achieving The 2015 Mission: Lifeline EMS Silver Level Recognition Award And
lmplementing Quality lmprovement Measures For The Treatment Of Patients Who
Experience Severe Heart Attacks.
(Sponsored by Commissioner Joy Malakoff)
PA4 Proclamation To Be Presented To Cheryl Cook, Of The Strand Restaurant ln Miami
Beach, For Her Role ln Creating The Cosmopolitan (Cocktail) Sometime ln 1989.
(Sponsored by Commissioner Michael Grieco)
PAs Proclamation To Be Presented To Miami Beach Gay Pride For Their Role ln Bringing
Residents And Visitors Together To Celebrate lnclusion, Diversity And The Unique Spirit
Of The LGBTQ Community.
(Sponsored by Commissioner Michael Grieco)
PA6 Certificates Of Recognition To Be Presented To Miami Beach Senior High School
Students: Gabrielle Walden,2015 Silver Knight Winner For Digital And lnteractive
Media; And Nick Caine, 2015 Silver Knight Honorable Mention ln Social Science.
(Sponsored by Mayor Philip Levine)
Agenda ltem PAI-b
oate -7 3l-1f,10
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11
c4
COMMISSION COMMITTEE
ASSIGNMENTS
12
C4 - Commission Committee Assiqnments
C4A Referral To The Land Use And Development Committee Discussion Regarding Alcoholic
Beverages As A Conditional lssue ln Commercial Districts.
(Sponsored by Mayor Phillip Levine)
Agenda ltem C lA
Date 7-3/-613
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14
c6
COMMISSION COMMITTEE REPORTS
15
r.-,.-,
--r-!D
City of Miomi Beoch, I700 Convention Center Drive, Miomi Beoch, Florido 33,l39, www.miomibeochfl.gov
COMMITTEE MEMORANDUM
TO:Projects
FROM: Jimmy L. Morales, City Manager
DATE: July 29, 2015
SUBJECT:PROJECTS
COMMITTEE MEETING ON JULY 1,2015
The agenda is as follows:
NEW BUSINESS
1. General Fund GSL Update and Proposed Millage Rate
ACTION
The General Fund CSL Update was adjusted from a surplus of $234,750 (net of the
recommended enhancements and efficiencies/reductions) to $1.4 million due to
an additional $1.2 million available from the change in certified taxable values
from the Property Appraiser on July l"t from 12.0 percent to 13.2 percent.
2. Review of Proposed Capital Budget
ACTION
The Committee recommended removing the following proposed items from the
201512016 Capital Budget:. Espanola Way Conversion to Pedestrian Mall proiect estimated at $1.1
milliono The Press Room portion of the City Hall Space Plan proiect in the amount
of $2't5,000 (PAYGO fund)o Traffic Circle at 47th Street and Meridian Ave in the amount of $250,000
(Local Option Gas Tax - 3 Cent Gas Tax fund)o Additional funding request of $400,000 above the $100,000 already funded
for the Tent for North Beach Bandshell project (Quality of Life - North
Beach fund)
The Committee recommended staff continue to refine the scope of the
Gommission Chambers Renovation project.
Agendaltem CGA
Date '?-11-tf
16
The Committee recommended the City Attorney research and provide a Letter to
Gommission (LTC) further detailing the specifications of the City's Code
requirements to use Stormwater funds for seawalls.
NEW BUSINESS
3. FY 2015/16 General Fund Operating Budgeto Potential efficiencies/reductionso Potential enhancementso Potential revenue enhancements
ACTION
The Committee recommended further reducing the millage rate an additional 0.557
mills to meet the remainder of the millage rate goal of 0.1114.
The Committee recommended accepting the recommended reductions/
efficiencies with one change listed below:
o Remove the recommended reduction in City Clerk - Centra! Services for
$27,100 to eliminate printing of Commission meeting agendas, Commission
committee agendas, Land Use Boards agendas, and annual Budget
documents
The Committee recommended accepting the proposed additions and service
enhancements removing the following items listed below:
. Remove $100,000 for the Climate Action Plan in Building-Environmental
Management. Remove $150,000 for the North Beach Marketing funds in Tourism, Culture,
& Economic Development (funded by Resort Tax)o Offset 50 percent ($55,000) of the Assistant Director in Tourism, Gulture, &
Economic Development from Resort Tax funding. Offset the $220,000 cost of the Urban Forestry Tree Preservation Program
in Public Works by budgeting the fee revenue associated with the new
program. Add $200,000 for Out-of-Region Data Center in lnformation Technology. Add $500,000 in a reserve to offset the future cost of the Public Safety
Radio project in Emergency ManagemenU9-l-1
The Committee also recommended staff bring back information on the Freight
Loading Zone enhancement in Parking to the next meeting.
The net result of the changes above is an unallocated surplus in the General Fund
of $17,750.
17
Preliminary CSL surplus
--based on June 1st values
Millage rate reduction
--5Oo/o of rernaining millage rate goal
3,600,000
(1,100,000)
Updated CSL surplus
Recomrnended enhancernents
Additional Resort Tax contri bution
Recomrnended reductions/efficiencies
Change in taxabb values
--based on July 1st values
--each 0.1 percent equals $120,000
Additional Millage rate reduction
--1OOo/o of rermining millage rate goal
Resene for Public Safety Radio project
Unallocated surplus
2,500,000
(3,824,000)
530,000
1,211,750
1,200,000
(1,100,000)
(500,000)
4. Proposed Parking Rate lncreases
ACTION
The Committee recommended moving this
aforementioned parking rate increases that
to Commission with the
the potential to yield an
item
have
additional $19 million annually. The increased revenues would be utilized to fund
the more immediate transportation initiatives and the bonding capacity for the
Parking Enterprise Fund. Below are the proposed rates and the impact of these
increases on the fund balance:
Current Prooosed Annual Revenue (!nc)
Parkino Meter Hourlv Rates:
South Beach On-Street Meters $1 .75 $3.00 $7,1 15,000.00
South Beach Off-Street Meters $1.75 $2.00 $678,000.00
Collins Ave/lndian Creek
23rd - 44th Streets - On-Street Meters $1.00 $3.00 $1,628,000.00
Collins Ave/l ndian Creek
23rd - 44th Streets - Off-Street Meters $1.00 $2.00 $236,000.00
Sub-total:$9.657.000.00
18
Meter Hours of
Collins Ave/lndian Creek
23rd - 44th Streets -
On/Off-Street Meters $2,331.000.00
Sub-total:$2,331,000.00
Sub-Total Meter Rate/Hours of O $11,988,000.00
Municipal Parki
Each of first four hours:$1.00 $2.00
$70.00 $100.00
$3,281,000.00
$597,000.00Rate:
Sub-total:$s
Park Space Dailv Rental:
Valet Parking:
Construction:
$17.00
$10.00
$46.75
$46.75
$46.75
$1,428,000.00
$771,000.00
Sub-total:000.00
Residential Visitor Permit:
$1.00
$1.00
$2.00
$3.00
Sub-total (if Option I selected):47.000.00
GRAND TOTAL $18,983,000.00
Revenues
Annual Operating Expenses
Debt Service'
Set tuide for R&R
Nrt Surplur
Proj.ct.d Avrlhbh Yorr End
Fund Erhncr
(s2,167,33
(7,5
12,532,573 t7,621,57t 14,054,073 19,494,35t 23,459,452 25,905,128
52,430,OOO
(41,237,0OO)
(3,431,OOO)
74,4t5,O@ 74,415,000
(46,3s0,0oo) (47,740,s@l
(7,s1s,0oo) (7,s1s,0oo)
74,415,000
12,901,500 11,t159,285 9,994,104 8,474,67
74,415,000
gs,ttz,ttsl'
(7,s1s,@o)
74,415,000
1SO,OaZ,aSO1'
(7,515,00O)
Parking Available Fund Balance- With Rate lncreases
FYTS FYI6 F(I? FY18 FYTg FY2O
fund balance in the
Parking Fund as of September
30,2014 22,825,573 12,532,573 L7,62t,573 14,054,073 19,494,35E 23,439,62
Fund Balance Set Aside for
Fund Balance 26,O5t,373 18,790,373 21,E79,97, 2O,312,Or3 25,152,358 29,7t7,62
Transfer to Transportation (1,311,0O0) (3,333,000) (3,333,000) (3,333,000) (3,333,000) (3,333,0OO)
Transfer to General Fund (8,400,000) (8,400,000) (8,40O,0O0) (8,400,000) (8,40O,00O) (8,40O,00O)
NrtAveitebh Belencr 11,028,573 ?,329,57? 1,152,573 E,025,073 13,465,358 11,4tO,462
' lncludes an estimated 54.14 million annually for debt service on the parking needs for the Convention Center Renovation, comencing19
FINANCE AGENDA:
OLD BUSINESS
5. a) Discussion regarding Parking Demand AnalysisMalker Parking Consultants
b) Discussion Regarding The Gonstruction Of A Parking Garage At The 27th Street
And Gollins Avenue Parking Lot
ACTION
The Commiftee recommended staff continue to work on completion of the Walker
Parking Supplemental Report addressing the parking demand analysis for South
Beach, North Beach and Middle Beach. Staff will issue the report via Letter to
Commission (LTG) and discuss it at the next Finance and Citywide Proiects
Committee meeting.
6. Discussion regarding whether or not to pursue food and beverage concessions
for Soundscape Park, Collins Park, and the Miami Beach Botanical Garden
ACTION
The Committee recommended staff continue to work on the negotiations and
bring this item back to the Finance and Gitywide Proiects Gommittee when ready.
NEW BUSINESS
t. Discussion To Amend The Living Wage Ordinance lnsurance Provision ln Light Of
Obama Care
ACTION
The Committee recommended take no action at this time with regard to amending
the Living Wage Ordinance because of the PPACA and that staff continue to
monitor the progress of the challenges to the Patient Protection and Affordable
Gare Act (the "PPAGA"), as well as any other changes to the law that may be
enacted in the near future.
8. Discussion Regarding The Requirement For City Gontractors To Provide Equal
Benefits For Domestic Partners
ACTION
The Committee recommended that the Administration move forward with
sunsetting the Equal Benefits requirements from contracts and solicitations with
vendors.
9. Discussion Regarding A New Lease Agreement Between The Gity Of Miami Beach
(Landlord) And SB Waxing, lnc. (Tenant) lnvolving The Use Of Approximately
20
1,291 Square Feet Of Ground Floor Retail Space Located At 1701 Meridian
Avenue, Unit 3 (A/K/A 771 17th Street), Miami Beach, Florida (Premises), For An
lnitia! Term Of Five (5) Years, With One (1) Renewal Option For An Additional Four
(4) Years And Three Hundred And Sixty Four (364) Days.
ACTION
The Committee recommended moving forward with the proposed new lease
increasing the Tenant's gross rental rate from $43.64 per square feet ("PSF") to
$53.80 PSF. The stipulated terms and conditions are for a period of five (5) years,
with one (1) renewal option for an additional four (4) years and three hundred and
sixty four (364) days at fair market rent.
10. Discussion Of A Resolution Of The Chairperson And Members Of The Miami
Beach Redevelopment Agency (RDA), Accepting The Recommendation Of The
Finance And Citywide Proiects Committee, Pursuant To lnvitation To Negotiate
(lTN) No. 2015-060-Lr (The ITN), For The Leasing Of Gity-Owned Buildings And
Rooftops For The Placement Of Telecommunications Equipment, And Authorize
The Executive Director To Execute A Nine Year And 364 Day Lease Agreement
With Grown Castle Ng East, LLC ("Tenant"), Attached And lncorporated Herein As
Exhibit A, For Tenant To Operate And Maintain lts Existing Telecommunications
Hub On The Roof Of The RDA's Parking Garage Located At 1550 Collins Avenue,
With A Monthly Rent Of $4,000.00.
ACTION
The Committee recommended moving forward with approving and authorizing the
RDA to enter into a lease agreement between the Miami Beach Redevelopment
Agency (Landlord) and pursuant to lnvitation To Negotiate (lTN) No. 2015-060-LR,
for the leasing of city-owned buildings and rooftops for the placement of
telecommunications equipment, and authorize the Executive Director to execute a
nine year and 364 day lease agreement with Crown Castle NG East, LLG for tenant
to operate and maintain its existing telecommunications hub on the roof of the
RDA's parking garage located at 1550 Gollins Avenue, with a monthly rent of
$4,000.00.
ITEMS REFERRED AT JUNE 10. 20{5 COMMISSION MEETING
11. Discussion Regarding A Potential Public-Private Partnership With 1234 Partners,
LTD. For A Parking Garage On The 1200 Block Of Washington Avenue
ACTION
The Committee took no action as staff provided an update. Staff is scheduled to
meet with the developer 1234 Parlners, LTD and will report back to the Finance
and Gitywide Proiects Gommittee the results of the meeting.
12. Discussion Regarding Land Use & Development Committee And The Planning
Board For The Review Of All Planning Fees, lncluding Fees Associated With Plans
Review, Board Applications And Other Ministeria! Functions
21
AGTION
The Committee took no action. Staff will provide an update at the next Finance
and Citywide Projects Committee meeting.
13. Discussion Regarding A Request From The Parks And Recreation Facilities
Gommittee For A Competition Swimming Pool
ACTION
The Committee recommended moving this item to the full Gommission to contracta firm with experience in the planning, building and operation of public
competitive pools to complete an in-depth feasibility and cost study. The study
wil! assist the City in taking a thorough look at site locations, amenities, cost of
construction, ongoing operational costs and a 10 year renewal and replacement
plan. The recommended study may also include management scenarios such as
partnerships and contracted services as well as potential funding sources.
14. Discussion Regarding A Resolution Accepting The Recommendation Of The City
Manager, Pursuant To lnvitation To Negotiate (lTN) 2014-170-SW For A Gated
Revenue Gontrol System For The Gity's Parking Garages; Approving The Material
Terms Of An Agreement Between The Gity And Skidata, lnc., As Set Forth ln The
Term Sheet Attached As Exhibit "A' Hereto; Authorizing The Gity Manager And
The City Attorney's Office To Finalize The Agreement Based Upon The Material
Terms Approved Herein; Provided That They May Make Any Non-Substantive And
Non-Material Revisions And/Or Additions To The Agreement, As They Deem
Necessary ; Authorizing The Mayor and City Clerk To Execute The Final
Agreement; And, ln The Event That The Gity ls Unable To Finalize Successfu!
Negotiations With Skidata, lnc., Authorizing The City Manager And The Gity
Attorney's Office To Negotiate An Agreement With Amano McGann, lnc. Based
Upon The Material Terms Approva! in Exhibit "A' Herein (Provided That They May
Make Any Non-Substantive And Non-Materia! Revisions And/Or Additions To The
Agreement)
ACTION
The Committee recommended that Administration finalize negotiations on the
final contract terms with Skidata, lnc. for a gated revenue control system for the
City's parking garages and moving this item to the full Commission.
15. Discussion Regarding The Transfer, Via Quit Claim Deed, To The Florida
Department Of Transportation (FDOT) The Property ldentified ln Exhibit "A," As
The Property Has Been Constructed Upon By FDOT And Utilized As A Turning
Lane From Michigan Avenue Onto Alton Road; Gontaining Approximately 4,014
Square Feet ln Total Area; Further Waiving, By 5/7th Vote, The Gompetitive
Bidding Requirements And lndependent Appraisal Requirements Of Section 82-39
22
Of The City Code, Finding That The Public lnterest Would Be Served By Waiving
Such Conditions
ACTION
The Committee recommended moving forward with Administrations
recommendation to waive the competitive bidding requirement and independent
appraisal requirement, finding that the public's interest is best served by waving
such conditions. FDOT needs the property as a turning lane, and has already
utilized the area as a turning lane and has maintained the area for some time for
transportation purposes.
23
-.-. --,ra--
---
City of Miomi Beoch, ,l700 Convention Center Drive, Miomi Beoch. Florido 33,l39, www.miomibeochfl.gov
COMMITTEE MEMORANDUM
TO: Members of the Finance and C Committee
FROM: Jimmy L. Morales, City Manager
DATE: July 29, 2015
SUBJECT: REPORT OF THE FI E AND CIryWIDE PROJECTS
COMMITTEE MEETING ON JULY 17,2015
The agenda is as follows:
OLD BUSINESS
1. Finalizing proposed FY 201512016 Operating Budget and Capita! Budget
ACTION
The Committee recommended moving forward with the development of the
proposed operating and capital budget to the full Commission with the following
changes:
Operating Budget. Add one of two requested positions for the Gity Attorney Fellowship
Program enhancement ($45,000). Reduce Parking's Loading Zone Program enhancement from 12 to 8
positions
Capital Budget. Add back the Espafrola Way Conversion to Pedestrian Mall project
estimated at $1.1 million (Quality of Life - South Beach fund)r Removal of the Gommission Ghambers Renovating Proiect as staff
continues to refine the scope.
NEW BUSINESS
2. Proposed Water and Sewer rates
ACTION
The Gommittee took no action.
Agenda ltem CO t3
Date 7-3l-ff24
3. Stormwater Update
ACTION
The Committee took no action.
25
c7
RESOLUTIONS
26
G7 - Resolutions
C7A A Resolution Adopting The Official Election Certificate Of The Canvassing Board For
The Special Mail Ballot Election Held ln The City Of Miami Beach From June 29,2015
To July 24, 2015, To Determine Whether A Majority Of The Affected Property Owners
Approve The Creation Of A Special Assessment District To Be Known As The Lincoln
Road Business lmprovement District.
(Office Of The City Clerk/Office Of The City Attorney)
(ltem to be Submitted in Supplemental)
27
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28
R5
ORDINANCES
29
COMMISSION ITEM SUMMARY
lntended Outcome Su
lncrease satisfaction with neighborhood character. lncrease satisfaction with development and
Supporting Data (Surveys, Environmental Scan, etc 48o/o of residential respondents and 55% of
businesses rate the effort put forth by the Citv to nt is "about the riqht amount."
Condensed Title:
An Ordinance pertaining to the parking of rental cars in commercial districts.
Item Summary/Recommendation :
AGENDA ITEM N'A
SECOND READING - PUBLIC HEARTNG
The proposed Ordinance would allow for the parking of rental cars in commercial districts provided
certain screening measures are adhered to.
On April 1, 2015 the Land Use and Development Committee recommended approval of the
Ordinance.
On June 10,2015, the City Commission: 1) accepted the recommendation of the Land Use and
Development Committee via separate motion; and 2) approved the proposed Ordinance at First
Reading and scheduled a Second Reading Public Hearing forJuly 8,2015. On July 8,2015, the item
was continued to a date certain of July 29,2015.
The Administration recommends that the Citv Commission the Ordinance
On May 26, 2015, the Planning Board (vote of 5-0), transmitted the attached proposal to the City
Commission with a favorable recommendation. (Planning Board File No. 2257).
Financial lnformation :
Source of
Funds:
Amount Account
1
2
3
OBPI Total
Financial lmpact Summary:
ln accordance with Charter section 5.02, which requires that the "City of Miami Beach shall consider
the longterm economic impact (at least 5 years) of proposed legislative actions," this shall confirm
that the City Administration evaluated the longterm economic impact (at least 5 years) of this
proposed legislative action, and determined that there will be no measurable impact on the City's
budqet.
Thomas Mooney
July 29\Required Enclosures for Rental Cars -
MIAMIBEACH D^rE '141-lf30
MIAMIBEACH
City of Miomi Beoch, I700 Convention Center Drive, Miomi Beoch, Florido 33,l39, www.miomibeochfl.gov
COMMISSION MEMORANDUM
To: Mayor Philip Levine and Members of lhe City Co mtsston
FRoM: Jimmy L. Morales, City Manager
DATE: July 29,2015 ECOND READING. PUBLIC HEARING
SUBJECT: Required Enclosures for Rental Car Facilities
AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY
OF MIAMI BEACH, FLORIDA, AMENDING CHAPTER 114 "GENERAL
PROVISIONS", SECTION 114.1, "DEFINITIONS", BY MODIFYING THE
DEFINTION OF COMMERCIAL VEHICLE; BY AMENDING CHAPTER 142
"ZONING DISTRICTS AND REGULATIONS;" ARTICLE lV,..SUPPLEMENTARY DISTRICT REGULATIONS", DIVISION 1,..GENERALLY" TO MODIFY THE REQUIREMENTS FOR REQUIRED
ENCLOSURES TO CREATE AN ALLOWANCE FOR THE OUTDOOR
EXPOSURE OF RENTAL CAR VEHICLES; PROVIDING FOR REPEALER;
SEVERABILITY; CODIFICATION; AND AN EFFECTIVE DATE.
ADMINISTRATION RECOMM ENDATION
The Administration recommends that the City Commission adopt the Ordinance.
BACKGROUND
On March 11,2015, the City Commission (ltem C4l), at the request of Comm. Jonah Wolfson,
referred a discussion item to the Land Use and Development Committee (LUDC) regarding
proposed amendments to the City Code pertaining to the parking of rental cars in commercial
districts.
On April 1, 2015, the Land Use Committee discussed the item and recommended that the
attached Ordinance Amendment be referred to the Planning Board. On April 15,2015, the City
Commission (ltem C4F) referred the item to the Planning Board.
On May 7, 2015, the Mayor's Blue Ribbon Panel on North Beach made the following
recommendations (each by a vote of 3-0):
1. Recommending that parking and storage of vehicles for rent or lease at the site of a car
rental agency should be a conditional use and that simply allowing the use through a
change of definition is insufficient in allowing the City to insure such a use is compatible
with neighboring areas and future plans for the areas.
31
Commission Memorandum
Required Enclosures for Rental Cars
July 29, 2015 Page 2 o'f 2
2. Recommending if the Planning Board and City Commission are inclined to approve the
proposed amendment to Chapter 114, Section 114- 1 to modify the definition of "
Commercial Vehicles", that the proposed amendment to Chaptet 142, Article lV, Division
1 " Required enclosures" be modified to from six feet in height to three feet in height.
ANALYS!S
The proposed Ordinance Amendment would allow automobile rental agencies to store vehicles
outside of an enclosed building. The proposal includes safeguards to ensure that the storage of
vehicles in outdoor areas does not negatively impact surrounding properties. Specifically,
vehicles stored on the same site as the rental agency must be screened from the public right of
way and adjoining properties when viewed at five feet, six inches above grade.
The Mayor's Blue Ribbon Panel on North Beach, at their May 7,2015 meeting (see attached
LTC), recommended some refinements to the proposal, including a requirement of Conditional
Use Approval for the outdoor storage of rental vehicles, as well as a reduction in the mandatory
hedge height. For safety reasons, Planning staff also recommended a lower landscape buffer
adjacent to the sidewalk, in addition to the minimum setback required of the underlying zoning
district.
PLANNING BOARD REVIEW
On May 26,2015, the Planning Board (by a 5-0 vote) transmitted the proposed Ordinance to the
City Commission with a favorable recommendation. The Planning Board also recommended
that the height of the required landscape buffer be reduced to a maximum of three (3') feet
above grade. The attached Ordinance includes the recommendations of the Planning Board.
FISGAL IMPACT
ln accordance with Charter Section 5.02, which requires that the "City of Miami Beach shall
consider the long term economic impact (at least 5 years) of proposed legislative actions," this
shall confirm that the City Administration City Administration evaluated the long term economic
impact (at least 5 years) of this proposed legislative action. The proposed Ordinance is not
expected to have a negative fiscal impact upon the City.
SUMMARY
On June 10, 2015, the City Commission approved the subject Ordinance at First Reading,
subject to a modification to require Conditional Use Approval for the outside storage of rental
vehicles. The text for this revision is included in the revised Ordinance for Second Reading.
On July 8, 2015 the item was continued to July 29, 2015, in order for more outreach to local
businesses to be conducted.
CONCLUS!ON
The Administration recommends that the City Commission adopt the Ordinance.
JLMiJMJ/TRM
T:\AGENDA\20'15Uuly\Planning July 29\Required Enclosures for Rental Cars - Second Reading MEM.docx
32
Required Enclosures for Renta! Gar Facilities
ORDINANCE NO.
AN ORDINANGE OF THE MAYOR AND CITY COMMISSION OF THE C!ry OF
MIAMI BEACH, FLORIDA, AMENDING CHAPTER 114 "GENERAL
PROVISIONS", SECTION 114-1, "DEFINITIONS", By MODIFYING THE
DEFINTION OF GOMMERCIAL VEHICLE; BY AMENDING GHAPTER 142
"ZONING DISTRICTS AND REGULATIONS;" ARTIGLE !V,
"SUPPLEMENTARY DISTRIGT REGULATIONS", DIVISION 1,,,GENERALLY"
TO MODIFY THE REQUIREMENTS FOR REQUIRED ENCLOSURES TO
GREATE AN ALLOWANCE FOR THE OUTDOOR EXPOSURE OF RENTAL
CAR VEHICLES; PROVIDING FOR REPEALER; SEVERABILITY;
CODIFICATION; AND AN EFFECTIVE DATE.
WHEREAS, Chapter 142 of the City Code, entitled "Zoning Districts and Regulations,"
includes supplementary district regulations that address enclosures; and
WHEREAS, Chapter 142 is proposed to be amended to allow the outdoor storage of
rental cars; and
WHEREAS, the amendment set forth below is necessary to accomplish the objectives
identified above.
NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND CITY COMMISSION
OF THE GITY OF MIAM! BEACH, FLORIDA:
SECTION 1. That Chapter 114, "General Provisions," Section 114-1, "Definitions," is
amended, as follows:
Commercial vehicle means any vehicle, including but not limited to trucks, trailers, semitrailers,
tractors. and motor homes, and vehicles for rent or lease utilized in connection with the
operation of a commerce, trade. or business, or automobile rental aoencv as defined in Sec.
102-356, and not utilized as a dwelling.
SECTION 2. That Chapter 142, "Zoning Districts and Regulations", Article lV, "Supplementary
District Regulations," Division 1, "Generally," is amended, as follows:
Sec. 142-874. - Required enclosures.
(a) Sfore enclosures. ln all use districts designated in these land development regulations,
the sale, or exposure for sale or rent, of any personal property, including merchandise,
groceries or perishable foods, such as vegetables and fruits, is prohibited, unless such
sale, or exposure for sale, is made from a substantially enclosed, permanent building;
provided, however, that nothing herein contained shall be deemed applicable to rooftop
areas not visible from the right-of-way, filling stations, automobile service stations, or
repair shops; uses having revocable permits or beach concessions operated or granted
by the city, newsracks or newspaper stands, or displays at sidewalk cafes as permitted
in subsection 82-384(0, wherever such uses are otherwise permissible. Vehicles for
rent or lease utilized in connection with the operation of an automobile rental aqencv as
defined in Sec. 102-356, and not located wit
33
buildino. shall reouire conditional use aooroval from the Plannino Board. orovided that
the exposure of the vehicles is on the same site at which the automobile rental aqencv is
located, and that such exposed vehicles are screened from view as seen from anv riqht-
of-wav or adioininq propertv when viewed from five feet six inches (5'-6") above qrade.
with appropriate landscapins not to exceed three (3') feet in heisht from qrade.
SECTION 3. CODIFICATION.
It is the intention of the Mayor and City Commission of the City of Miami Beach, and it is
hereby ordained that the provisions of this ordinance shall become and be made part of the
Code of the City of Miami Beach, Florida. The sections of this ordinance may be renumbered or
re-lettered to accomplish such intention, and, the word "ordinance" may be changed to
"section", "article", or other appropriate word.
SECTION 4. REPEALER.
All ordinances or parts of ordinances in conflict herewith be and the same are hereby
repealed.
SECTION 5. SEVERABILITY.
lf any section, subsection, clause or provision of this Ordinance is held invalid, the
remainder shall not be affected by such invalidity.
SECTION 6. EFFECTIVE DATE.
This Ordinance shall take effect ten days following adoption.
PASSED and ADOPTED this day of 2015.
Philip Levine, Mayor
Rafael E. Granado, City Clerk APPROVED AS TO
FORM AND LANGUAGE
& FOR EXECUTION' I--Lg I?,t
ctv attotnfu,f
First Reading: June 10, 2015
Second Reading: July 29,2015
Verified by:
Thomas Mooney, AICP
Planning Director
Underscore denotes new language
Stri*e$reugh denotes removed language
Double-LJnderscorc denotes language added at First Reading
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THIS PAGE INTENTIONALLY LEFT BLANK
37
COMMISSION ITEM SUMMARY
lntended Outcome Su
lncrease satisfaction with neighborhood character. lncrease satisfaction with development and
Supporting Data (Surveys, Environmental Scan, etc 48% of residential respondents and 55% of
businesses rate the effort out forth bv the Citv to is "about the rioht amount."
Condensed Title:
Ordinance Amendments to the Comprehensive Plan and Land Development Regulations establishing
the "Ocean Terrace Overlav".
Advisorv Board Recommendation:
On June 23,2015, the Planning Board (vote of 6-0), transmitted the attached proposal to the City
Commission with a favorable recommendation. (Planning Board File Nos. 2258 &2259).
Financial I nformation :
Source of
Funds:
Amount Account
1
2
3
OBPI Total
Financia! lmpact Summary:
ln accordance with Charter section 5.02, which requires that the "City of Miami Beach shall consider
the long-term economic impact (at least 5 years) of proposed legislative actions," this shall confirm
that the City Administration evaluated the longterm economic impact (at least 5 years) of this
proposed legislative action, and determined that there will be no measurable impact on the City's
budqet.
AGENBA ITEii RSB
Item Summary/Recommendation :
FIRST READING - PUBLIC HEARING
The proposed Ordinances would amend the Comprehensive Plan and Land Development Regulations
to establish the "Ocean Terrace Overlay" which would decrease the maximum density from 100 to 50
dwelling units per acre, increase the allowable FAR from 2.0 to 3.0 (subject to voter referendum) for
residential and hotel uses only, increase the maximum height for residential and hotel uses, modify
setbacks, establish a maximum floor plate limitation, and establish a 60 foot minimum tower
separation.
On May 27,2015 the Land Use and Development Committee recommended approval of the proposed
overlay district.
The Administration recommends that the City Commission: 1) accept the recommendation of the Land
Use and Development Committee via separate motion, 2) transmit the proposed Comprehensive Plan
Amendment to the applicable review agencies pursuant to 163.3184(2), F.S. and set the Adoption
Public Hearing for December 9,2015; and 3) approve the Overlay Ordinance Amendment at First
Readinq and set a Second Public Hearinq for December 9, 2015.
Thomas Mooney
July 29\Ocean Terrace Overlay District - First
MIAMIBEACH DArE 7-3l-/ r38
MIAMIBEACH
Ciiy of ,Uiomi Beoch, 1700 Convention Cenler Drive, Miomi Beoch, Florido 33,l39, www.miomibeochfl.gov
COMMISSION MEMORANDUM
TO:
FROM:
DATE:
SUBJECT:Plan Amendment
Ocean Terrace Overlay - Land Development Regulations Amendment
AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY
OF MIAMI BEACH, FLORIDA, AMENDING POLICY 1.2 OF THE FUTURE
LAND USE ELEMENT OF THE COMPREHENSIVE PLAN PURSUANT TO
THE PROCEDURES IN SECTTON 163.3184(3), FLORTDA STATUTES, BY
MODTFYING THE MEDTUM TNTENSTTY COMMERCTAL CATEGORY (CD-2)
AND THE MrXED USE ENTERTATNMENT CATEGORY (MXE) TO
ESTABLISH THE 'OCEAN TERRACE OVERLAY' IN ORDER TO ALLOW
FOR AN F.A.R. OF 3.0, TO LIMIT COMMERCIAL F.A.R. TO 1.0 AND TO
REDUCE THE MAXIMUM ALLOWABLE RESIDENTIAL DENSITY TO FIFry
UNITS PER ACRE WITHIN ITS BOUNDARIES; PROVIDING FOR
REPEALER; SEVERABILITY; CODIFICATION; AND AN EFFEGTIVE DATE.
AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY
OF MIAMI BEACH, FLORIDA, AMENDING THE LAND DEVELOPMENT
REGULATIONS OF THE CODE OF THE CITY OF MIAMI BEACH, BY
AMENDING CHAPTER 142, "ZONING DISTRICTS AND REGULATIONS",
ARTICLE il "OVERLAY DISTRICTS", CREATTNG DIVISION 10 "OCEAN
TERRACE OVERLAY'" TO MODIFY THE APPLICABLE SETBAGKS AND
ALLOWABLE ENCROACHMENTS, INCREASE THE ALLOWABLE HEIGHT
TO 250 FEET FOR RESIDENTIAL USES AND 125 FEET FOR HOTEL USES,
INCREASE THE ALLOWABLE FLOOR AREA TO 3.0, TO LIMIT THE
ALLOWABLE FLOOR AREA FOR COMMERCIAL USES TO 1.0, TO LIMIT
THE MAXIMUM FLOORPLATE OF THE TOWER PORTION OF NEW
BUILDINGS, TO PROVIDE A MINIMUM BUILDING SEPARATION FOR THE
TOWER PORTION OF NEW BUILDINGS, TO MODIFY THE ALLOWABLE
MAIN, CONDITIONAL, ACCESSORY AND PROHIBITED USES;
PROVIDING FOR REPEALER; SEVERABILITY; CODIFICATION; AND AN
EFFECTIVE DATE.
ADMINISTRATION RECOMMEN DATION
The Administration recommends that the City Commission: 1) accept the
recommendation of the Land Use and Development Committee via separate motion; 2)
Mayor Philip Levine and Members
Jimmy L. Morales, City Manager
July 29,2015
Ocean Terrace Overlay - Com
READING - PUBLIC HEARING
the City C
39
Commission Memorandum
Ocean Terrace Overlay - Comprehensive Plan and LDR Amendment
Julv 29, 2015 Page 2 o'f 5
transmit the proposed Comprehensive Plan Amendment to the applicable review
agencies pursuant to 163.3184(2), F.S. and set the Adoption Public Hearing for
December 9,2015; and 3) approve the Overlay Ordinance Amendment at First Reading
and set a Second Reading Public Hearing for December 9, 2015.
BACKGROUND
On April 15, 2015, at the request of Commissioner Wolfson, the City Commission
referred this request to the Land Use and Development Committee (ltem C4E).
Additionally, the matter was referred to the Planning Board.
On May 27,2015 the Land Use and Development Committee recommended approval of
the proposed overlay district.
THE PROPOSAL
An Overlay District is being proposed in order to encourage the redevelopment of the
Ocean Terrace area in North Beach. As proposed, the Overlay would apply to the
properties located between 73'd Street on the south, 75th Street on the north, Ocean
Terrace on the east and Collins Avenue on the west. Currently the eastern portion of the
proposed overlay (fronting Ocean Terrace) is zoned MXE (Mixed Use Entertainment)
and the western portion (fronting Collins Avenue) is zoned CD-2 (Commercial, Medium
lntensity).
The proposal would require a Large-Scale amendment to the City's Comprehensive Plan
and an amendment to the Land Development Regulations. The Overlay District would
also raise the maximum Floor Area Ratio (FAR) in the area from 2.0 to 3.0. ln
accordance with the City Charter, this proposed FAR increase would require voter
approval through a ballot referendum.
Attached is a copy of the proposed overlay Comprehensive Plan Amendment and Land
Development Regulation Ordinances. The following is a summary of the proposed
modifications to the Land Development Regulations:
. Reduce the maximum density from 100 dwelling units per acre to 50 dwelling
units per acre.
o lncrease the maximum FAR to 3.0 from 2.0 for lots equal to or greater than
20,000 square feet. The additional FAR would only apply to residential and hotel
uses, and the maximum FAR for commercial uses within the overlay would be
limited to 1.0.
o lncrease the maximum height to 250 feetl22 stories for residential uses and 125
feet for hotel uses. Currently the maximum height is 75 feeUS stories for MXE
areas and 50 feeU5 for CD-2 areas.
Modify Pedestal, Tower, and Subterranean Setbacks.
Establish maximum floor plate limitation of 10,000 square feet, including
balconies, for the tower portions of buildings; however the Historic Preservation
40
Commission Memorandum
Ocean Terrace Overlay - Comprehensive Plan and LDR Amendment
July 29, 2015 Page 3 of 5
Board has the flexibility to allow an increase up to 15,000 square feet, subject to
Certificate of Appropriateness Criteria.
. Establish a 60 foot separation between towers, including balconies.
ANALYSIS
ln 2014, the Planning Department was tasked with studying ways to encourage and
promote appropriate redevelopment activity for the 71't Street Corridor and Ocean
Terrace. Presently it appears that current maximum floor area ratios are making
redevelopment along the 71't Street corridor and Ocean Terrace difficult. This in turn
has stalled economic development and revitalization which would greatly benefit the
surrounding community.
The proposal herein, which is specific to Ocean Terrace, seeks to modify the Land
Development Regulations and create a zoning overlay specific to the Ocean Terrace
area. While most of the changes proposed require only legislative action, the proposal to
increase the maximum FAR from 2.0 to 3.0 does require voter approval. Tangentially,
the proposed height increase, though only legislative and not subject to voter approval,
is co-terminus with the proposed FAR increase.
The Land Use Committee and the Planning Board endorsed the proposed overlay,
subject to the recommendations of the City Administration, which have been
incorporated into the proposed Ordinance. One of the recommendations, which has
generated some concern from affected property owners, deals with the maximum floor
plate permitted within the tower portion of a future project.
ln this regard, in order to improve compatibility with the surrounding built environment,
the proposed Ordinance requires that the maximum floor plate size of the tower portion
of a building be limited to 10,000 square feet, inclusive of allowable balcony projections.
This floor plate limitation is consistent with the floor plate of the neighboring St. Tropez
Condominium Tower, which is approximately 6,000 square feet. Additionally, the
Ordinance provides the Historic Preservation Board with the flexibility to allow up to a
15,000 square foot floor plate, subject to Certificate of Appropriateness Criteria and
compatibility with the surrounding built context.
It is important to point out that that the Ordinance before the City Commission, the FAR
portion of which is subject to voter approval, is a purely legislative matter. Basically a
framework is being established (overlay district) for a future development project(s).
Assuming this overlay is adopted, review and approval of the Historic Preservation
Board will still be required for any future development application, inclusive of new
construction, as well as any request to demolish structures within the proposed overlay.
City Gharter lssues
The request for establishing the Ocean Terrace Overlay District is affected by the
following City Charter provision: Sections 1.03 (c), which partially states:
The floor area ratio of any property or street end within the City of Miami Beach
shall not be increased by zoning, transfer, or any other means from its current
zone floor area ratio as ff exisfs on the date of adoption of this Chafter
Amendment (November 7, 2001), including any limitations on floor area ratios
41
Commission Memorandum
Ocean Terrace Overlay - Comprehensive Plan and LDR Amendment
Irrlv )Q 2O1 4 Paac 4 of 5
which are in effect by virtue of development agreements through the full term of
such agreements, unless such increase in zone floor area ratio for any such
propefty shall first be approved by a vote of the electors of the City of Miami
Beach.
The proposed Overlay District would increase the zoned floor area ratio from 2.0 to 3.0.
Pursuant to the City Charter the proposed change would require a vote of the electors of
the City. The vote must occur prior to the second reading of the proposed Ordinance
amendment.
Gomprehensive Plan lssues
This application includes a text amendment to the Policy 1.2 of the Future Land Use
element of the Compressive Plan. Under Section 163.3184(2), F.S., this amendment
shall follow the expedited state review process for adoption of comprehensive plan
amendments. This process requires a public hearing by the local planning agency
(Planning Board), a public transmittal hearing before the City Commission, after which
the amendment must be transmitted to several state agencies for a 30-day review
period, and a final adoption public hearing before the City Commission. The amendment
is effective 31 days after it is adopted if there are no appeals.
lnterlocalAgreement for Public School Facility Planning
The 2005 Florida Legislature adopted laws which are incorporated in the Florida
Statutes, requiring each local government to adopt an intergovernmental coordination
element as part of their comprehensive plan, as well as a statutory mandate to
implement public school concurrency. The overlay district as proposed does not
increase the maximum residential density; therefore a preliminary school concurrency
determination is not necessary.
Final site plan approval of any proposed development on the site is contingent upon
meeting Public School Concurrency requirements and the applicant will be required to
obtain a valid School Concurrency Determination Certificate (Certificate) issued by the
Miami-Dade County Public Schools. Such Certificate will state the number of seats
reserved at each school level. In the event sufficient seats are not available, a
proportionate share mitigation plan shall be incorporated into a tri-party development
agreement and duly executed prior to the issuance of a Building Permit.
PLANNING BOARD REVIEW
On June 23, 2015, the Planning Board (by a 6-0 vote) transmitted the proposed
Ordinances to the City Commission with a favorable recommendation.
FISCAL IMPACT
In accordance with Charter Section 5.02, which requires that the "City of Miami Beach
shall consider the long term economic impact (at least 5 years) of proposed legislative
actions," this shall confirm that the City Administration City Administration evaluated the
long term economic impact (at least 5 years) of this proposed legislative action. The
proposed Ordinance is not expected to have a negative fiscal impact upon the City.
42
Commission Memorandum
Ocean Terrace Overlay - Comprehensive Plan and LDR Amendment
.lrrlv 29 2O15 Pano 1af 4
SUMMARY
On July 8,2015, the item was opened and continued to a date certain of July 29,2015,
due to a minor change in the title of the Ordinance. The matter was also re-noticed for
the July 29,2015 meeting. Additionally, public testimony was taken on July 8,2015.
CONCLUSION
The Administration recommends that the City Commission:
1. Accept the recommendation of the Land Use and Development Committee via
separate motion.
2. Transmit the proposed Comprehensive Plan Amendment to the applicable review
agencies pursuant to 163.3184(2), F.S. and set the Adoption Public Hearing for
December 9,2015.
3. Approve the Overlay Ordinance Amendment at First Reading and set a Second
Reading Public Hearing for December 9, 2015.
4. Direct the City Attorney to prepare ballot language for the proposed FAR
increase.
JLM/TRM/RAM
T:\AGENDAVOl5Uuly\Planning July 29\Ocean Terrace Overlay District - First Reading MEM.docx
43
COMPREHENSIVE PLAN - OGEAN TERRACE OVERLAY
ORDINANCE NO.
AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY OF
MIAMI BEAGH, FLORIDA, AMENDING POLICY 1.2 OF THE FUTURE LAND
USE ELEMENT OF THE COMPREHENSIVE PLAN PURSUANT TO THE
PROCEDURES tN SECTTON 163.3184(3), FLORTDA STATUTES, By
MODIFYTNG THE MEDTUM TNTENSTry COMMERCTAL CATEGORY (CD-2)
AND THE MIXED USE ENTERTAINMENT CATEGORY (MXE) TO ESTABLISH
THE 'OCEAN TERRACE OVERLAY' IN ORDER TO ALLOW FOR AN F.A.R.
OF 3.0 FOR RESIDENTIAL AND HOTEL USES, TO LIMIT COMMERCIAL
F.A.R. TO 1.0 AND TO REDUCE THE MAXIMUM ALLOWABLE RESIDENTIAL
DENSITY TO FIFTY UNITS PER ACRE WITHIN lTS BOUNDARIES;
PROVIDING FOR REPEALER; SEVERABILITY; CODIFIGATION; AND AN
EFFEGTIVE DATE.
WHEREAS, the City desires to encourage private property owners to assemble and
redevelop properties comprehensively rather than piecemeal; and
WHEREAS, the City of Miami Beach seeks to encourage and incentivize new
development within the Ocean Terrace corridor; and
WHEREAS, the City of Miami Beach desires to create an overlay zoning district for the
two-block area located between Ocean Terrace and Collins Avenue in-between 73'd and 75th
Streets; and
WHEREAS, the amendment set forth below is necessary to accomplish all of the above
objectives.
NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND CITY COMMISSION
OF THE CITY OF MIAMI BEACH, FLORIDA:
SECTION 1. The following amendment to the Medium Density Commercial Category (CD-2)
and the Mixed Use Entertainment Category (MXE) in Policy 1.2 of the City's Comprehensive
Plan Future Land Use Element is hereby adopted:
Medium lntensity Commercial Category (CD-2)
Purpose: To provide development opportunities for and to enhance the desirability and quality of
existing and/or new medium intensity commercial areas which serve the entire City.
Uses which may be Permitted: Various types of commercial uses including business and
professional offices, retail sales and service establishments, eating and drinking establishments;
apartment residential uses; apartment hotels; and hotels.
Other uses which may be permitted are accessory uses specifically authorized in this land use
category, as described in the Land Development Regulations, which are required to be
subordinate to the main use; and conditional uses specifically authorized in this land use
category, as described in the Land Development Regulations, which are required to go through
{3418'1901''21
44
a public hearing process as prescribed in the Land Development Regulations of the Code of the
City of Miami Beach.
Density Limits: 100 dwelling units per acre; 50 units per acre for properties within the Ocean
Terrace Overlav.
lntensity Limits: a floor area ratio of 1.5 for commercial; 2.0 for residential or mixed use: within
the Ocean Terrace Overlav - for properties with a lot size equal to or qreater than 20.000
square feet and havinq frontage on both Collins Avenue and Ocean Terrace the maximum floor
area ratio is 1.0 and additional FAR of 2.0 (3.0 total maximum) shall be permitted for residential
or hotel (and permitted accessorv uses to residential and hotel) floor area onlv.
Mixed Use Entertainment Category (MXE)
Purpose: To provide development opportunities for and to enhance the desirability and quality of
existing and/or new mixed use areas which accommodate residential, hotel and commercial
development.
Uses which may be permitted: Apartments, apartment hotels, hotels and various types of
commercial uses including, business and professional offices (but not medical or dental offices),
retail sales and service establishments, and eating and drinking establishments.
Other uses which may be permitted are accessory uses specifically authorized in this land use
category, as described in the Land Development Regulations, which are required to be
subordinate to the main use; and conditional uses specifically authorized in this land use
category, as described in the Land Development Regulations, which are required to go through
a public hearing process as prescribed in the Land Development Regulations of the Code of the
City of Miami Beach.
Density Limits: 100 dwelling units per acre; 50 units per acre for properties within the Ocean
Terrace Overlav.
lntensity Limits: a floor area ratio of 2.0' within the Ocean T
a lot size equal to or qreater than 20.000 square feet and havinq frontaoe on both Collins
Avenue and Ocean Terrace the maximum floor area ratio is 1.0 and additional FAR of 2.0 (3.0
total maximum) shall be permitted for residential or hotel (and permitted accessorv uses to
residential and hotel) floor area onlv.
SECTION 2.
The Ocean Terrace Overlay shall be designated on the City's Future Land Use Map for
the properties identified in the attached map, as Exhibit A, incorporated by reference herein.
SECTION 3.REPEALER.
All Ordinances or parts of Ordinances in conflict herewith be and the same are hereby
repealed.
{34187901',21
45
SECTION 4. SEVERABILITY.
lf any section, subsection, clause or provision of this Ordinance is held invalid, the
remainder shall not be affected by such invalidity.
SECTION 5. GODIFICATION
It is the intention of the City Commission that this Ordinance be entered into the
Comprehensive Plan, and it is hereby ordained that the section of the Ordinance may be
renumbered or relettered to accomplish such intention, and that the word "ordinance" may be
changed to "section" or other appropriate word. The Exhibits to this Ordinance shall not be
codified, but shall be kept on file with this Ordinance in the City Clerk's Office.
SECTION 6. TRANSMITTAL
The Planning Director is hereby directed to transmit this Ordinance to the appropriate
state, regional and county agencies as required by applicable law.
SECTION 5. EFFECTIVE DATE.
This Ordinance shall take effect 31 days after adoption pursuant to Section 163.3184(3),
Florida Statutes.
PASSED and ADOPTED this day of
Philip Levine, Mayor
ATTEST:
Rafael E. Granado, City Clerk
APPROVED AS TO
FORM & IANGUAGE
& FOR EXECUTION
2015.
First Reading/Transmittal: July 29,2015
Second Reading/Adoption: December 9, 2015
Verified by:
Thomas R. Mooney, AICP
Planning Director
Underscore denotes new language
S+rike$reughdenotes rem oved lan g uage
F:\ATTO\BOUE\Ordinances\Ocean Terrace Overlay Comp Plan Ordinance [1st Reading 7-29-15].docx
-d,'[,J
-
Dole
{3418790r;2\
46
OCEAN TERRACE OVERLAY - LDR AMENDMENTS
ORDINANCE NO.
AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY OF
MIAMI BEACH, FLORIDA, AMENDING THE LAND DEVELOPMENT
REGULATIONS OF THE CODE OF THE CITY OF MIAMI BEACH, BY
AMENDING CHAPTER 142, "ZONING DISTRICTS AND REGULATIONS'"
ARTICLE III ''OVERLAY DISTRICTS'" CREATING DIVISION 10 ''OCEAN
TERRACE OVERLAY'" TO MODIFY THE APPLICABLE SETBACKS AND
ALLOWABLE ENCROAGHMENTS, INCREASE THE ALLOWABLE HEIGHT
TO 250 FEET FOR RESIDENTIAL USES AND 125 FEET FOR HOTEL USES,
INCREASE THE ALLOWABLE FLOOR AREA TO 3.0 FOR RESIDENTIAL
AND HOTEL USES; TO LIMIT THE ALLOWABLE FLOOR AREA FOR
COMMERCIAL USES TO 1.0, TO LIMIT THE MAXIMUM FLOORPLATE OF
THE TOWER PORTION OF NEW BUILDINGS, TO PROVIDE A MINIMUM
BUILDING SEPARATION FOR THE TOWER PORTION OF NEW BUILDINGS,
TO MODIFY THE ALLOWABLE MAIN, CONDITIONAL, ACCESSORY AND
PROHIBITED USES; PROVIDING FOR REPEALER; SEVERABILTW;
CODIFICATION; AND AN EFFECTIVE DATE.
WHEREAS, the corridor of Collins Avenue between 73'd and 75th Streets was a vibrant
commercial corridor that served the retailing needs of the local neighborhood and tourists in the
1950s and 1960s; and
WHEREAS, the Collins Avenue corridor and area surrounding Ocean Terrace has
deteriorated and seen limited improvement over the years, and has faced financial constraints
and neighborhood adjustments that have diminished the general condition of the neighborhood;
and
WHEREAS, the City of Miami Beach seeks to encourage and incentivize new
development within the Ocean Terrace and Collins Avenue corridor; and
WHEREAS, the City desires to encourage private property owners to assemble and
redevelop properties comprehensively rather than in a piecemeal fashion; and
WHEREAS, the City of Miami Beach desires to create an overlay zoning district for the
two-block area located between Ocean Terrace and Collins Avenue in-between 73'd and 75th
Streets, which overlay may assist in improving the neighborhood by providing stimulus to the
community through new commercial and residential uses, as well as other design criteria and
density limits to encourage reinvestment; and
WHEREAS, the purpose of the Ocean Terrace Overlay district is to stimulate
neighborhood revitalization, encourage new development and renovation of important historic
buildings within the Ocean Terrace/Collins Avenue corridor, and improve the pedestrian
environment of the neighborhood; and
{34187831;2)
47
WHEREAS, pursuant to Section 1.03(c) of the City Charter, the floor area ration (FAR)
of any property within the City of Miami Beach shall not be increased by zoning, transfer, or any
other means from its current zoned floor area ratio as it exists on the date of adoption of this
Charter Amendment [November 7,20011, including any limitation on floor area ratios which are
in effect by virtue of development agreements through the full term of such agreements, unless
any such increase in zoned floor area ratio for any such property shall first be approved by a
vote of the electors of the City of Miami Beach; and
WHEREAS, the amendment set forth below is necessary to accomplish all of the above
objectives.
NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND CITY COMMISSION
OF THE CITY OF MIAM! BEACH, FLORIDA:
SEGTION 1. That Chapter 142, Article lll entitled "Overlay Districts", Division 10 "Ocean
Terrace Overlay" is hereby created as follows:
**
DIVISION 10. OCEAN TERRACE OVERLAY
Sec. 142-874. Location and purpose.
(A) The overlav reoulations of this division shall applv to the properties identified in the Map
below:
48
(b) The purpose of this overlav district is to:
fll Stimulate neiohborhood revitalization and encouraqe new development and
renovation of important historic buildinqs within the Ocean Terrace / Collins
Avenue corridor.
{A Encouraqe private propertv owners to assemble and redevelop properties
comprehensivelv rather than in a piecemeal fashion.p) lmprove the pedestrian environment of the neiohborhood.
Sec. 142-875. Compliance with requlations.
The followinq overlav requlations shall applv to the Ocean Terrace Overlav. All development
reoulations in the underlvino reoulations shall applv. except as follows:
(a) Setbacks.
fl) When a lot or combination of lots abuts two (2) or more streets. the required
vards shall be classified as follows:
a.
b.
c.
{A Pedestal.
a.
1.
2
Side. lnterior. The areas abuttinq an adiacent propertv. For a lot
or combination of lots that have two front setbacks as defined in
this section, the remaininq vards not facinq a street shall be
classified as a side interior.
Front:
For buildinos situated on properties with an underlvinq
desionation of CD-2, zero (0) feet.
For buildinos situated on properties with an underlving
desionation of MXE, five (5) feet.
Side street. Zero (0) feet, reqardless of the underlvinq zoninq
desiqnation.
Side interior.
For buildinos situated on properties with an underlvino
desiqnation of CD-2. zero (0) feet.
For buildinqs situated on properties with an underlvinq
desionation of MXE, 7.5 feet.
Front.
For buildinqs situated on properties with an underlvinq
desionation of CD-2. 20 feet.
For buildinos situated on properties with an underlvinq
desisnation of MXE, 30 feet.
Side street. 20 feet reqardless of the underlvinq zonino
desionation.
Side interior. 20 feet resardless of the underlvino zoninq
desiqnation.
b.
c.
1.
2.
(Q Tower.
a.
1.
2.
b.
c.
til Subterranean. Zero (0) feet for all vards reqardless of the underlvino zonino
desiqnation.
49
(E) Allowable encroachments and proiections, consistent with Section 142-1132(o). within
required vards.
fll Exterior unenclosed private balconies.a. For buildinqs situated on properties with an underlvinq desionation
of cD-2, allowable encroachment is 7.5 feet into anv required
vard.b. For buildinqs situated on properties with an underlvino desiqnation
of MXE:1. Allowable front vard encroachment is eisht (8) feet.2. Allowable side interior vard encroachment is six (6) feet.@ Ground leYel porches. platforms and terraces (up to 30 inches above the
elevation of the lot) are allowed to proiect into a required vard for a distance not
to exceed 50 percent of the required vard up to a maximum proiection of five (S)
feet.
(s) Heioht.
fll For main use residential buildinos: lot area less than 20.000 square feet-the
maximum heiqht is based on the underlvino zoninq reoulations: lot area equalto
or Oreater than 20.000 square feet and havinq frontaqe on both Collins Avenue
and Ocean Terrace-25O feet.
{A For main use hotel buildinqs: lot area less than 20,000 square feet-the
maximum heioht is based on the underlvinq zonino requlations: lot area equalt,o
or oreater than 20,000 square feet and havino frontaoe on both Collins Avenue
and Ocean Terrace -125 feet.
13) All other buildinos the maximum heiqht is as provided in the underlvinq zoninq
reoulations.
{O The maximum number of stories is 22 stories.
ft!) Floor Area Ratio.
fll Lot area less. than 20.000 square feet-maximum FAR is based on the
underlvinq zonino reoulations.
tA Lot area equal to or qreater than 20.000 square feet and havino frontaoe on both
Collins Avenue and Ocean Terrace -reoulated as follows:a. Reoardless of the underlvino zonino desiqnation:1. The maximum floor area ratio is 1.0.2- Additional FAR of 2.0 (3.0 total maximum) shall be permitted
for residential or hotel (and permitted accessorv uses to
residential and hotel) floor area onlv.
(e) Floor plate. The maximum floor plate size for the tower portion of a buildinq is 1O.0OO
square feet, includino balconies. per floor. The Historic Preservation Board mav allow fo,r
an increase in tle overall floor plate, up to a maximum of 1s,ooo m
balconies, per flgo!.. il accordance with the certificate of appffi
chapter 1 18. article X of these land development reoulations.
(0 Buildino separation. All new construction shall complv with the followino, as applicable:
(]l The miniflul horizontal separation between the tower portion of two (2r
buildinos. includinq balconies. is 60 feet.Q) Two (2) blrildinos used as a hotel mav be connected in the tower portion of the
buildinqs bv a one-storv. enclosed pedestrian bridoe, foiffi
50
onlv. if approved bv the historic preservation board in accordance with the
certificate of appropriateness criteria in chapter 1 18. article X of these land
development requlations.(3) The separation requirement between two (2) existinq contributinq structures, or
between an existino contributinq structure and a new buildino, mav be waived bvthe historic preservation board in accordance with the certificate of
appropriateness criteria in chapter 1 18. article X of these land development
requlations.
(g) Permitted Uses.
fll The main permitted uses in the Ocean Terrace Overlav District are:
Apartments:
ApartmenUhotels;
Hotels:
Commercial;
Uses that serve alcoholic beveraqes as listed in Chapter 6
(alcoholic beveraqes) or as specified elsewhere in the Land
Development Req ulations.
tA The conditional uses in the Ocean Terrace Overlav District are:a. Public and private cultural institutions open to the public:b. Banquet facilities. defined as an establishment that provides
caterinq and entertainment to private parties on the premises and
are not otherwise accessorv to another main use:
Outdoor entertainment establishments:
Neiqhborhood impact establishments:
Open air entertainment establishments:
Main use parkino oaraqes:
Public and private institutions:
Food store selling alcoholic beveraoes.
(h) Prohibited Uses(1) Packaqe alcohol store.
O Additional Development Requlations. Buildinqs with frontaqe on Collins Avenue shall
have either retail or restaurant uses (which mav include neiqhborhood impact
establishment uses) on the front 50 feet of depth of the oround floor with an entrance
that opens onto Collins Avenue.
SECTION 2. CODIFICATION.
It is the intention of the Mayor and City Commission of the City of Miami Beach, and it is hereby
ordained that the provisions of this ordinance shall become and be made part of the Code of the
City of Miami Beach, Florida. The sections of this ordinance may be renumbered or re-lettered
to accomplish such intention, and, the word "ordinance" may be changed to "section", "article",
or other appropriate word.
a.
b.
c.
d.
e.
c.
d.
e.
f.
g.
h.
51
SEGTION 3. REPEALER.
All ordinances or parts of ordinances in conflict herewith be and the same are hereby repealed.
SEGTION 4. SEVERABILIW.
lf any section, subsection, clause or provision of this Ordinance is held invalid, the remainder
shall not be affected by such invalidity.
SECTION 5. EFFECTIVE DATE.
This Ordinance shalltake effect ten days following adoption.
PASSED and ADOPTED this day of 2015.
Philip Levine, Mayor
ATTEST:
Rafael E. Granado, City Clerk
APPROVED AS TO FORM
AND LANGUAGE
AND FOR EXECUTION
eJ 0*L
First Reading:
Second Reading:
July 29,2015
December 9,
city Attorn"W
2015 (Subject to Voter Approval of FAR lncrease)
Verified by:
Thomas R. Mooney, AICP
Planning Director
Underscore denotes new language
Strit<e+nreugFden otes rem oved lang uage
[Sponsor: Commissioner Wolfson; co-sponsors: Commissioner Grieco, Commissioner Malakoff
and Commissioner Weithornl
T:\AGENDA\2O1SUuly\Planning July 29\Ocean Terrace Overlay LDR - First Read ORD.docx
52
This instrument prepared by, and afler rccorcling rcturn to:
Name: Neisen O, Kasdin, Esq.
Address: Akeman LLP
One Southeast Third Avenue
25e Floor
Miami, FL3313l
(Space reserved for Clerk)
DECI,ARATION OT RESTRICTIYE COVENANTS
TIIIS DECLARATION Of'RESTRICTM COVENANTS ("Declaration"), is made
this _ day of 201-, by 7450 OCEAN TERRACE LLC' 7436
OCEAN TERRACE LLC, 7410 OCEAN TERRACE LLC, 7409 COLLINS AVE
INVESTMENT LLC, 7433 COLLINS AVE INVESTMENT LLC, ANd 7439 COLLINS AVE
INVESTMENT LLC (collectively, the "Developer'r), in favor of the CITY OF MIAMI BEACH,
Florida, a municipal corpomtion of the State of Florida ("City")'
WITNESSETH:
WHEREAS, the Developer hotds fee simple title to certain propefiies located in the City
ofMiamiBeach,F[orida,legallydescribedin@.attachedlreretoandmadeapaft
hereof (the "Propefty"); and
WHBREAS, the Developer may acquire four (4) additional properties (the "Additional
Properties") that are adjacent to the Propefiy, legally described in Exhitrit "Br', subsequent to
the recordation of this Declaration antt, if acquired. the Additional Properties shall autornatically
be subject to the terms of this Declaration; and
WHBRBAS, the Property is part of the area in which the City seeks to establish the
"Ocean Terrace Overlay District," composed of both a Comprehensive Plan Amendment (as File
No. 2258) and a Land Development Regulations Amendment (as File No. 2259), currently in the
{34120 I 98;7}
53
form of the proposed ordinances in Exhitrit "C" attached hereto and made a part hereof
(collectively, the "Ocean Teuace Amendments"); and
WHEREAS, after receiving favorable recommendations from the City's Land Use and
Development Committee and the Planning Board, the City Commission is now considering the
adoption of the Ocean Terrace Amendments; and
WHEREAS, the Developer is desilous of making a binding commitment to assure that
the Property shall be developed in accordance with the provisions of this Declaration, should the
Ocean Termce Amendments be adopted by the City Cornmission.
NOW, THEREFORE, the Developer voluntarily covenants and agrees that the Propefty
shall be subject to the following restrictions that are intended and shall be deemed to be
covenants running with the land and binding upon the Developer of the Propefiy, its successors
in interest and assigns, as follows:
1. The recitals and findings set forth in the preamble of this Declaration are hereby
adopted by reference thereto and incorporated herein as iffully set forth in this Section.
2. The maxirnum residential density of the Property shall not exceed 70 total
dwelling units. The Developer retains the right to distribute the dwelling units in any manner
aoross the extent of the Proper-ty that is otherwise in accordance with the building, zoning, and
land development regulations ofthe City.
3, In the event the l)eveloper builds any lesidential dr,velling ttnits on the Properly,
the maximum number of hotel rooms on the Properly shall not exceed 220 total hotel rooms.
4. In the event the Developer does not build any residential dwelling units on the
Property, the maximum number of hotel rooms on the Propefiy shall not exceed 357 total hotel
rooms.
{14120198;7}
54
5. Any retail stores, including food, grocery or convenience stores, on the Property
which legally offer for sale alcoholic beverages for consumption offthe premises, shall not make
sales of beer in an individualized, single-bottle tnannel'.
6. There shall be a maximum of one (l) outdoor enteftainment establishtnent and
one (l) open air enteftainment establishment allowed on the Property. Each of these
establishments shall be operated solely as an accessory use to a hotel. At each establishment,
after' 1 l:00 P.M. music shall only be played at a volume that does not interfere with normal
conversation, and the establishment shall close no later than 2:00 A.M.
7. If the Additional Properties are acquired by the Developer subsequent to the
recordation of this Declaration, they shall automatically be subject to the terms of this
Declaration.
8. This Declaration supersedes all prior oral and written representations and
understandings between Developer and the City, relating to the development of the Propedy,
including prior iterations and versions of the Declaration, and constitutes the entire Declaration
of Restrictive Covenants by the Developer in favor of the City.
9. This Declaration shall remain in full force and effect and shall be binding upon
the Developer, their successors in interest and assigns, for an initial period of thifiy (30) years
fi'om the date this insrument is recorded in the public records, and shall be automatically
extendecl for sLrccessive periods of ten (10) years, unless modified. amended or released as
provided herein.
10. This Declatation may be modified, amended or released as to any portion of the
Property by a written instrument executed by the then owners of fee sirnple title to the land to be
affected by such modification, amendment or release, providing that same has been approved by
{34 120198;7)
55
the City Commission, or such other City board with jurisdiction over the matter, at a public
hearing, which public hearing shall be applied for by and at the expense of the said owners.
I 1. Should tliis instrument be so modified, amended or released, the City Manager, or
his successor, or other administrative off,rcer with jurisdiction over the matter, shall execute a
written instrument in recordable form effectuating and acknowledging such modification,
amendment or release.
12. In the event any term or provision of this Declaration be determined by
appropriate judicial authority to be illegal or otherwise invalid, such determination shall not
affect any of the other provisions of this Declaration, which shall remain in full force and effect.
13. This Declaration shall be execlted by the Developer and all other required
persons or entities, if any, and submitted to the City Attorney's Oftice to be held in trttst pending
adoption of the Ocean Terrace Amendments by the City Cornmission, and shall be recorded, at
the cost of the Developer, in the Pubtic Records of Miami-Dade County, Florida, no later than
five (5) days after the expiration of all appeal periods in wliich no appeals or othel legal
chailenge has been filed. lf an appeal or other legal challenge is instituted against the Ocean
Terrace Amendments, then this Declaration shall be recorded within five (5) days of a final non-
appealable decision of that appeal and/or challenge upholding the approval of the Ocean Ten'ace
Amendments.
14. It is understood and agreed that any official of the
during nonnal business hours to enter and investigate the use
whether the conditions of this Declaration and the requirements
and land developrnent regulations are being complied with.
Cit1, has the right at any time
of the Propefiy, to determine
of the City's building, zoning
[34 120198:7]
56
i5. An action to enforce the terms and conditions of this Declaration may be
instituted by the City, at law or in equity, against any party or person violating or attempting to
violate any provision of this Declaration, either to restrain violations or to recovet damages.
The prevailing party in thE action shall be entitled to recover costs and reasonable attorneys' fees,
at all levels of trial and appeal. This enforcement provision shall be in addition to any other
remedies available under the law.
REMAINDER OF PAGB LEFT INTENTIONALLY BLANK
{34 120 I 98;7 }
57
IN WITNESS WHEREOF, the undersigned have set their hand and seal
I l"', ,zo-{
)
Witnessed by:
thisl$ay of
7410 OCEAN TERRACE LLC
7436 OCEAN TERRACE LLC
7450 OCEAN TERRACE LLC
7409 COLLINS AVE INVESTMENT LLC
7433 COLLINS AYE II{VESTMENT LLC
7439 COLLINS AVE
By:
Name:
Title: tt,brvfrit4rg ,/s/ftnr'/t
STATE OF FLORIDA
COLINTY OF MIAMI-DADE
ntificat
NOTARY SEAL/ STAMP
ent was acknowledsed before'r*- , *,"fltl*trhT
not take an oath.
{fr *rson Sc"trx.€
irUr-f"C
State of Florida
Notlry Public State ol Florida
MyCommirslon Ff 188637
Exrirs 0U31/2019
{3a 120198;7i
58
APPROVED
Planning Director
Date
APPROVED AS TO
FORM & LANGUAGE
& FOR EXECUTION
City Attorney
Date
{3a120198;7}
59
Exhibit "A"
Lesal Desuiption of the Property
Lots 1, 2,3,4,6, 10, 1l and 13 of Block 1 of the Plat of the Townsite of Harding, as recorded in
Plat Book 34, Page 4 of the public records of Miami-Dade County, Florida.
List of addresses of the Property
(.not part of the legal deseription. provided for convenience)
7450 Ocean Terace
7436 Ocean Terrace
7430 Ocean Tenace
7410 Ocean Terace
7439 Collins Avenue
7433 Collins Avenue
7409 Collins Avenue
[34120198;7]
60
Exhitrit t'8"
Legal Description of the Additional Properties
Lots 5,8,9 and l2 of Block 1 of the Plat of the Townsite of Harding, as recotded in Plat Book
34,Page rl of the public records of Miami-Dade County, Florida.
List of addresses of the Additional Properties
(not parl of the leeal description. plovided for convenience)
7420 Ocean Terace
7449 Collins Avenue
7441 Collins Avenue
7421 Collins Avenue
{34120198;7)
61
Exhibit nC"
COMPREHENSIVE PLAN _ OCEAN TERRACE OVERLAY
ORDINANCE NO.
AN ORDINANCE AMENDING POLICY 1.2 OF THE FUTURE LAND USE
ELEMENT OF THE COMPREHENSIVE PLAN PURSUANT TO THE
PROCEDURES lN SECTION 163.3184(3), FLORIDA STATUTES, BY
MODIFYING THE MEDIUM INTENSITY COMMERCIAL CATEGORY {CD.2)
AND THE MIXED USE ENTERTAINMENT CATEGORY IMXE) TO ESTABLISH
THE'OCEAN TERRACE OVERLAY' IN ORDER TO ALLOW FOR AN F.A.R.
OF 3.0 FOR RESIDENTIAL AND HOTEL USES, TO LIMIT COMMERCIAL
F.A.R. TO 1.0; AND TO REDUCE THE MAXIMUM ALLOWABLE
RESIDENTIAL DENSITY TO FIFTY UNITS PER ACRE WITHIN ITS
BOUNDARIES; PROVIDING FOR REPEALER; SEVERA'BILITY;
CODIFICATION; AND AN EFFECTIVE DATE.
WHEREAS, the City desires to encourage private property owners to assemble and
redevelop properties comprehensively rather than piecemeal; and
WHEREAS, the City of Miami Beach seeks to encourage and incentivize new
development within the Ocean Terrace corridor; and
WHEREAS, the City of Miami Beach desires to create an overlay zoning district for the
two-block area located between Ocean Terrace and Collins Avenue in-between 73'd and 75th
Streets; and
WHEREAS, the amendment set forth below is necessary to accomplish all of the above
objectives.
NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND CIry COMMISSION
OF THE CITY OF MIAMI BEACH, FLORIDA:
SECTION 1. The following amendment to the Medium Density Commercial Category (CD-2)
anO tne MixeO Use Entertainment Category (MXE) in Policy 1.2 of the City's Comprehensive
Plan Future Land Use Element is hereby adopted:
Medium lntensity Commercial Category (CD*2)
Purpose: To provide development opportunities for and to enhance the desirability and quality of
existing and/or new medium intensity commercial areas which serve the entire City.
Uses which may be Permitted: Various types of commercial uses including business and
professional offices, retail sales and service establishments, eating and drinking establishments;
apartment residential uses; apartment hotels; and hotels.
Other uses which may be permitted are accessory uses specifically authorized in this land use
category, as described in the Land Development Regulations, which are required to be
subordinate to the main use; and conditional uses specifically authorized in this land use
category, as described in the Land Development Regulations, which are required to go through
a publichearing process as prescribed in the Land Development Regulations of the Code of the
City of Miami Beach.
(34120198;7)
62
Exhibit "C"
Density Limits: 100 dwelling units per acre; 50 units per acre for properties within the Ocean
Terrace Overlav.
lntensity Limits: a floor area ratio of 1.5 for commercial; 2.0 for residential or mixed uselwilhln
the Ocean Terrace Overlav - for properties with a lot size equal to or oreater than 20.000
square feet and havino frontaqe on both Collins Avenue and Ocean Terrace the maximum floor
area ratio is 1.0 and additional FAR of 2.0 (3.0 total maximum) shall be permitted for residential
or hotel (and permitted accessorv uses to residential and hoteD floor area onlv.
Mixed Use Entertainment Category (MXE)
Purpose: To provide development opportunities for and to enhance the desirability and quality of
existing and/or new mixed use areas which accommodate residential, hotel and commercial
development.
Uses which may be permitted: Apartments, apartment hotels, hotels and various types of
commercial uses including, business and professional offices (but not medical or dental offices),
retail sales and service establishments, and eating and drinking establishments.
Other uses which may be permitted are accessory uses specifically authorized in this land use
category, as described in the Land Development Regulations, which are required to be
subordinate to the main use; and conditional uses specifically authorized in this land use
category, as described in the Land Development Regulations, which are required to go through
a public hearing process as prescribed in the Land Development Regulations of the Code of the
City of Miami Beach.
Density Limits: 100 dwelling units per acre; 50 units per acrg for properties within the Ocean
Terrace Overlav.
lntensity Limits: a floor area ratio of 2.0: within the Ocean T
a lot size equal to or oreater than 20,000 square feet and havino frontaqe on both Collins
Avenue and Ocean Terrace the maximum floor area ratio is 1.0 and additional FAR of 2.0 (3.0
total maximum) shall be permitted for residential or hotel (and permitted accessorv uses to
residential and hotel) floor area onlv.
SECTION 2.
ftre Ocean Terrace Overlay shall be designated on the City's Future Land Use Map for
. the propenies identified in ihe aitached map, as Exhibit A, incorporated by reference herein.
SECTION 3. REPEALER.
ntt Ordinances or parts of Ordinances in conflict herewith be and the same are hereby
repealed.
SECTION 4. SEVERABILITY.
lf any seCtion, subsection, clause or provision of this Ordinance is held invalid, the
remainder shall not be affected by such invalidity.
{341201 98;7}
63
ExhibitrrC"
SECTION 5. CODIFICATION
It is the intention of the City Commission that this Ordinance be entered into the
Comprehensive Plan, and it is hereby ordained that the section of the Ordinance may be
renumbered or relettered to accomplish such intention; and that the word "ordinance" may be
changed to "section" or other appropriate word. The Exhibits to this Ordinance shall not be
codified, but shall be kept on file with this Ordinance in the City Clerk's Office.
SECTION 6. TRANSMITTAL
The Planning Director is hereby directed to transmit this Ordinance to the appropriate
state, regional and county agencies as required by applicable law.
SECTION 7. EFFECTIVE DATE.
This Ordinance shalltake effect 31 days after adoption pursuant to Section 163.3184(3),
Florida Statutes.
PASSED and ADOPTED this day of 2015.
MAYOR
ATTEST:
CITY CLERK
APPROVED AS TO FORM
AND LANGUAGE
AND FOR EXECUTION
City Attorney Date
First Readingffransmittal :
Second Reading/Adoption:
July 31 ,2A15
December 9, 2015
Verified by:
Thomas R. Mooney, AICP
Planning Director
Underscore denotes new language
Stril<*n+eughdenotes removed la n g ua ge
{3al 20 198;7}
64
Exhibit "C"
OCEAN TERRACE OVERLAY - LDR AMENDMENTS
ORDINANCE NO.
AN ORDINANCE AMENDING THE LAND DEVELOPMENT REGULATIONS OF
THE CODE OF THE CITY OF MIAMI BEACH, BY AMENDING CHAPTER 142,
..ZONING DISTRICTS AND REGULATIONS," ARTICLE III ''OVERLAY
DtsTRlcTS," CREATING DIVISION 10 "OCEAN TERRACE OVERLAY", TO
MODIFY THE APPLICABLE SETBACKS AND ALLOWABLE
ENGROACHMENTS, INCREASE THE ALLOWABLE HEIGHT TO 250 FEET
FOR RESIDENTIAL USES AND 125 FEET FOR HOTEL USES, INCREASE
THE ALLOWABLE FLOOR AREA TO 3.0 FOR RESIDENTIAL AND HOTEL
USES, TO LIMIT THE ALLOWABLE FLOOR AREA FOR GOMMERCIAL USES
TO 1.0, TO LIMIT THE MAXIMUM FLOORPLATE OF THE TOWER PORTION
OF NEW BUILDINGS, TO PROVIDE A MINIMUM BUILDING SEPARATION
FOR THE TOWER PORTION OF NEW BUILDINGS, TO MODIFY THE
ALLOWABLE MAIN, CONDITIONAL, ACCESSORY AND PROHIBITED USES;
PROVIDING FOR REPEALER; SEVERABILIW; CODIFICATION; AND AN
EFFECTIVE DA,TE.
WHEREAS, the corridor of Collins Avenue between 73'd and 75th Streets was a vibrant
commercial corridor that served the retailing needs of the local neighborhood and tourists in the
1950s and 1960s; and
WHEREAS, the Collins Avenue corridor and area surrounding Ocean Terrace has
deteriorated and seen limited improvement over the years, and has faced financial constraints
and neighborhood adjustments that have diminished the general condition of the neighborhood;
and
WHEREAS, the City of Miami Beach seeks to encourage and incentivize new
development within the Ocean Terrace and Collins Avenue corridor; and
WHEREAS, the City desires to encourage private property owners to assemble and
redevelop properties comprehensively rather than in a piecemeal fashion; and
WHEREAS, the City of Miami Beach desires to create an overlay zoning district for the
two-block area located between Ocean Terrace and Collins Avenue in-between 73'd and 75ih
Streets, which overlay may assist in improving the neighborhood by providing stimulus to the
community through new commercial and residential uses, as well as other design criteria and
density limits to encourage reinvestment; and
WHEREAS, the purpose of the Ocean Terrace Overlay district is to stimulate
neighborhood revitalization, encourage new development and renovation of important historic
buildings within the Ocean Terrace/Collins Avenue corridor, and improve the pedestrian
environment of the neighborhood; and
WHEREAS, pursuant to Section 1.03(c) of the City Charter, the floor area ration (FAR)
of any property within the City of Miami Beach shall not be increased by zoning, transfer, or any
other means from its current zoned floor area ratio as it exists on the date of adoption of this
Charter Amendment [November 7,2AO11, including any limitation on floor area ratios which are
in effect by virtue of development agreements through the full term of such agreements, unless
{34 120198;7}
65
Exhibit "C"
any such increase in zoned floor area ratio for any such property shall first be approved by a
vote of the electors of the City of Miami Beach; and
WHEREAS, the amendmenl set forth below is necessary to accomplish all of the above
objectives.
NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND CITY COMMISSION
OF THE CITY OF MIAMI BEACH, FLORIDA:
SECTION 1. That Chapter 142, Article lll entitled "Overlay Districts", Division 10 "Ocean
Terrace Overlay" is hereby created as follows:
DIVISION 10. OCEAN TERRACE OVERLAY
Sec. 142-874. Location and purpose.
(g) The overlav regulations of this division shall apply to the oroperties identified in the Map
below:
(!) The purnose of this overlav district is to:
fll Stimulate neiqhborhood revitalization and encouraqe new development and
renovation of imoortant historic buildinos within the Ocean Terrace / Collins
Avenue corridor.
lQ Encouraqe private propertv owners to assemble and redeveloo orooerties
comprehensivelv rather than in a piecemeal fashion.(3) lmprove the pedestrian environment of the neiqhborhood.
{3a120198;7)
66
Bxhibit t'C"
Sec. 142-875. Compliance with requlations.
The followino overlav requlations shall applv to the Ocean Terrace Overlav. All develooment
requlations in the underlvino requlations shall applv. except as follows:
G) Setbacks.
fi) When a lot or combination of lots abuts two (2) or more streets. the required
lrards shall be classified as follows:a. Front. The areas abuttinq Collins Avenue and Ocean Terrace.
b..c. Side, lnterior. The areas abuttinq an adidcent propertv. For a lot
or combination of lots that have two front setbacks as defined in
this section. the remaining vards not facinq a street shall be
classified as a side interior.
@ Pedestal.a. Front:
1.
desiqnation of CD-2. zero (0) feet.2. For buildinqs situated on properties with an underlving
desiqnation of MXE, five (5) feet.b. Side street. Zero (0) feet, reqardless of the underlvinq zoninq
desionationc. Side interior.
1.
desiqnation of CD-2, zero (0) feet.
2. For buildinqs situated on properties with an underlvinq
desionation of MXE, 7.5 feet.
Il) Tower.a. Front.1. -_for nuitOinos situ
desiqnation of CD-2. 20 feet.2. For buildinqs situated on properties with an underlvinq
desisnation of MXE. 30 feet.
b. Side street. 20 feet reoardless of the underlvinq zoninq
desiqnatiotl.c. Side interior. 20 feet reqardless of the underlvinq zonino
design"ti"tt
11[) Subterranean. Zero (0) feet for all vards reqardless of the underlvino zoninq
desiqnation.
(b) Allowable encroachments and proiections, consistent with Section 142-1132(o). within
required vards.
fll Exterior unenclosed orivate balconies,a. For buildinqs situated on properties with an underlvinq desiqnatlon
of CD-2, allowable encroachment is 7.5 feet into anv required
vard.b. For buildinos situated on properties with an underlvino desiqnation
of MXE:1. Allowable front var-d encroachment is eioht (B) feet.
2. Allowable side interior vard encroachment is six (6) feet'
{341201 98;7}
67
Exhibit "C"
tA Ground level porches. platforms and terraces (up to 30 inches above the
elevation of the lot) are allowed to proiect into a required vard for a distance not
to exceed 50 percent of the required vard up to a maximum proiection of five (5)
feet.
&) Heiqht.
fl) For main use residential buildinqs: lot area less than 20.000 square feet-the
maximum heiqht is based on the underlving zoninq regulations: lot area equal to
or qreater than 20.000 square feet and havinq frontage on both Collins Avenue
and Ocean Terrace-250 feet.
lA For main use hotel buildinqs: lot area less than 20,000 square feet-the
maximum heioht is based on the underlvinq zoninq requlations: lot area equalto
or oreater than 20,000 square feet and having frontaqe on both Collins Avenue
and Ocean Terrace -125 feet.
1!) All other buildinqs the maximum heiqht is as provided in the underlvinq zoninq
requlations.
tL The maximum number of stories is 22 stories.
(g!) Floor Area Ratio.
ll) Lot area less than 20.000 square feet-maximum FAR is based on the
underlvinq zoning requlations.
@ Lot area equal to or qreater than 20.000 souare feet and havino frontaqe on both
Collins Avenue and Ocean Terrace -requlated as follows:a. Regardless of the underlvino zoninq desiqnation:1. The maximum floor area ratio is 1.0.2. Additional FAR of 2,0 (3.0 total maximum) shall be permitted
for residential or hotel (and permitted accessorv uses to
residential and hotel) floor area onlv.
(g) Floor plate. The maximum floor plate size for the lower portion of a buildinq is 10,000
square feet. includinq balconies, per floor. The Historic Preservation Board mav allowfor
an increase in the overallfloor olate, uo to a maximum of 15,000 square feet. includinq
balconies, per floor, in accordance with the certificate of appropriateness criteria in
chapter 118, article X of these land development requlations.
(fl Buildinq separation. All new construction shall complvwith thefollowino. as applicable:
fl) The minimum horizontal separation between the tower portion of two (2)
buildinqs. includinq balconies, is 60 feet.
{A Two (2) buildinqs used as a hotel may be connected in the tower portion of the
. buildinos bv a one-storv, enclosed pedestriaa bridqe, for circulaiion pui"poses
onlv, if approved bv the historic preservation board in accordance with the
certificate of aporooriate[ess criteria in chapter 118. article X of these land
development requlations.(!) The separation requirement between two (2) existinq contributino structures, or
between an existinq contributinq structure and a new buildinq, may be waived bv
the historic preservation board in accordance with the certificate of
appropriateness criteria in chapter 118, article X of these land development
requlations.
(g) Permitted Uses.
{34 120198;7}
68
Exhibit "C"
fl) The main oermitted uses in the Ocean Terrace Overlav Distrist are:
a. Apartments:b. ApartmenUhotels:c. Hotels:d. Commercial:e. Uses that serve alcoholic beveraqes as listed in Chapter 6
(alcoholic beverages) or as specified elsewhere in the Land
Development Regulations.
(!) The conditional uses in the Ocean Terrace Overlav Dislrict are:
a. Public and private cultural institutions ooen to the public:
b. Banquet facilities. defined as an establishment that provides
p3terinq and entertainment to private parties on the premises and
are not othenrvise accessory to another main use:
Outdoor entertainment establishments:
Neiqhborhood impact establishments:
Open air entertainment establishments:
Main use oarkino qaraqes;
Public and private institutions:
Food store sellinq alcoholic beveraoes.
(h) Prohibited Uses
fl) Package alcohol store.
(!) Additional Development Reoulations. Buildinqs with frontaoe on Collins Avenue shall
have either retail or restaurant uses (which mav include neiqhborhood impact
establishment uses) on the front 50 feet of depth of the oround floor with an entrance
that opens onto Collins Avenue.
SECTION 2. CODIFICATION.
It is the intention of the Mayor and City Commission of the City of Miami Beach, and it is hereby
ordained that the provisions of this ordinance shall become and be made part of the Code of the
City of Miami Beach, Florida. The sections of this ordinance may be renumbered or re-lettered
to accomplish such intention, and, the word "ordinance" may be changed to "section", "article",
or other appropriate word.
SECTION 3. REPEALER.
All ordinances or parts of ordinances in conflict herewith be and the same are hereby repealed.
SECTION 4. SEVERABILITY.
lf any section, subsection, clause or provision of this Ordinance is held invalid, the remainder
shall not be affected by such invalidity.
SECTION 5. EFFECTIVE DATE.
This Ordinance shall take effect ten days following adoption.
c.
d.
e,
t.
g.
h.
{34120198;7}
69
Exhibit "C"
PASSED and ADOPTED this day of 2015.
MAYOR
ATTEST:
CITY CLERK
APPROVED AS TO FORM
AND LANGUAGE
AND FOR EXECUTION
City Attorney Date
First Reading: July 31 ,2015
Second Reading: December 9, 2015 (Subject to Voter Approval of FAR lncrease)
Verified by:
Thornas R. Mooney, AICP
Planning Director
Underscore denotes new language
Striket++eu€Sden otes removed lan g ua g e
[Sponsor: Commissioner Wolfson; co-sponsors: Commissioner Grieco, Commissioner Malakoff
and Commissioner Weithornl
{ 34 I 20 I 98;7)
70
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73
COMMISSION ITEM SUMMARY
Condensed Title:
An Ordinance Of The Mayor And City Commission Of The City Of Miami Beach, Florida, Amending
Chapter 46 Of The Miami Beach City Code, Entitled "Environment," Article li, "Care And
Maintenance Of Trees And Plants," Division 2, "Trees"; At Section 46-59 Entitled "Tree Work Permit
Application Processing, Requirements, And Review" To Authorize The City Commission To Adopt By
Resolution, A Fee Schedule Relating To lmplementing The Tree Code; Providing For Repealer;
Codification:; And An Effective Date. SEGOND READING PUBLIC HEARING.
lntended Outcome Supported :
Item Summary/Recommendation:
On November 19,2014 the City of Miami Beach passed the Tree Ordinance which serves as the official
guideline for all tree relocations, removals, remediation, and special tree designations within the City's
boundaries. On June 1,2015 Miami-Dade County officially notified the City of Miami Beach that it will no
longer regulate tree resources within the City beginning June 15, 2015, in order to allow the City to assume
this regulatory responsibility pursuant to Chapter 24 of the Miami-Dade County Code. Part of the City's
regulatory responsibility is to charge fees for the various applications, permits, and reviews necessary to
run the Tree Preservation Permitting Program.
CURRENT STATUS
As of June 15,2015, the City of Miami Beach Department of Public Works assumed responsibility for
enforcing the Tree Ordinance (No. 2014-3904) from Miami-Dade County. The Greenspace Management
Division of the Public Works Department has established a Tree Preservation Permitting Program which
receives and processes applications for the performance of tree related work within the City. ln order for
this program to function as intended, it is necessary to collect fees associated with the types of services
and permits that the Program offers in order to recover the costs associated with providing these services.
ln discussions with Miami-Dade County it was revealed that they are having a difficult time covering their
costs with their present fee schedule. Considering labor costs and the time required to perform site
inspections, plan reviews, and various administrative tasks, it was determined that the proposed Tree
Preservation Permit Program's fees would need to be considerably more than the fee amount currently
charged by Miami-Dade County to provide similar services.
Since this is a new program, we are unsure of what actual costs will be. As a result, we recommend
incorporating the Ordinance that fees can be changed by Resolution so that if adjustments are needed,
they can be accomplished efficiently.
At its July 8, 2015 meeting, the City Commission read the title of the Ordinance into the record. A motion
was made by the CommiJsion to biing the item back on July 29th, for approval on Second Reading, Public
Hearing.
THE ADMINISTRATION RECOMMENDS ADOPTING THE ORDINANCE ON SECOND READING
PUBLIC HEARING.
Board Recommendation:
Financial lnformation :
Source of
Funds:
OBPI
Financial lm
# MIAMISrACH 74
D ,\,i r ,+ lr* I &qffi dafl- *.*
i q i,f \l f it !rJ.-E*r1.i B.\il}#*
City of Miami Beach, 1700 Convention Center Drive, Miami Beach, Florida 33'139, rrvww.miamibeachfl.gov
PUBLIC WORKS DEPARTMENT COMMISSION MEMORANDUM
To: Mayor Phillip Levine and Membe of the
FRoM: Jimmy L. Morales, City Manager
DATE: July 29, 2015
SUBJECT: AN ORDINANCE OF THE MA
SECOND READING
PUBLIC HEARING
clTY coDE, ENTITLED "ENVIRONMENT," ARTICLE ll, "CARE AND
MAINTENANCE OFTREESAND PLANTS," DIVISION 2, "TREES"; ATSECTION
46.59 ENTITLED "TREE WORK PERMIT APPLICATION PROGESSING,
REQUIREMENTS, AND REVIEW'' TO AUTHORIZE THE CITY COMMISSION TO
ADOPT BY RESOLUTION, A FEE SCHEDULE RELATING TO IMPLEMENTING THE
TREE CODE; PROVIDING FOR REPEALER; CODIFICATION; SEVERABILITY;
AND AN EFFECTIVE DATE.
BACKGROUND
On November 1 9, 2014lhe City of Miami Beach passed the Tree Ordinance which serves as the
official guideline for all tree relocations, removals, remediation, and special tree designations
within the City's boundaries. On June 1 ,2015 Miami-Dade County officially notified the City of
Miami Beach that it will no longer regulate tree resources within the City beginning June 15,
2015, in order to allow the City to assume this regulatory responsibility pursuant to Chapter 24 of
the Miami-Dade County Code. Part of the City's regulatory responsibility is to charge fees for
the various applications, permits, and reviews necessaryto run the Tree Preservation Permitting
Program.
CURRENT STATUS
As of June 15, 2015, the City of Miami Beach Department of Public Works assumed
responsibility for enforcing the Tree Ordinance (No. 2014-3904) from Miami-Dade County. The
Greenspace Management Division of the Public Works Department has established a Tree
Preservation Permitting Program which receives and processes applications for the
performance of tree related work within the City. ln order for this program to function as
intended, it is necessary to collect fees associated with the types of services and permits that the
Program offers in order to recover the costs associated with providing these services.
ln discussions with Miami-Dade County it was revealed that they are having a difficult time
covering their costs with their present fee schedule. Considering labor costs and the time
required to perform site inspections, plan reviews, and various administrative tasks, it was
determined that the proposed Tree Preservation Permit Program's fees would need to be
considerably more than the fee amount currently charged by Miami-Dade County to provide
similar services. Below is the proposed schedule of fees:
AND CITY COMMISSION OF THE CITY OF
75
TREE PRESERVATION PERM!T FEE SCHEDULE
ZONING OF PROPERTY PLAN REVIEW COSTS INSPECTION COSTS
Single Family / Residential $1 84 $88 site inspection + $24 per tree
Multi-Family $228 $88 site inspection + $24 per kee
Business $272 $88 site inspection + $24 per tree
Commercial $272 $88 site inspection + $24 per tree
Right-of Way/Swale $184 $88 site inspection + $12 per tree
ForAfter-the-Fact (ATF) tree removal/relocation permits, the application and the pertree(s) fees
are doubled (x2). ln order to renew/extend a permit you will be required to pay one half of the
original application fee amount prior to the expiration of the current permit.
Since this is a new program, we are unsure of what actual costs will be. As a result, we
recommend incorporating the Ordinance that fees can be changed by Resolution so that if
adjustments are needed, they can be accompanied efficiently.
At its July 8,2015 meeting, the City Commission read the title of the Ordinance into the record.
A motion was made by the Commission to bring the item back on July 29th, for approval on
Second Reading, Public Hearing.
CONCLUSION
the Administration recommends adopting the Ordinance on second reading public hearing.
JLM/MT/ETC/JJF/RK
T:\AGENDA\201 5Uuly\PUBLIC WORKS\Tree Fees. Sum.doc
76
ORDINANCE NO.
AN ORDINANCE OF THE MAYOR AND CIry COMMISSION OF THE
CITY OF MIAMI BEACH, FLORIDA, AMENDING GHAPTER 46 OF THE
MIAMI BEACH CITY CODE, ENTITLED ''ENVIRONMENT,"
ARTICLE II, "CARE AND MAINTENANCE OF TREES AND PLANTS,"
DIVISION 2, "TREES"; AT SECTION 46-59 ENTITLED "TREE WORK
PERMIT APPLICATION PROCESSING, REQUIREMENTS, AND REVIEW"TO AUTHORIZE THE CIry COMMISSION TO ADOPT BY
RESOLUTION, A FEE SCHEDULE RELATING TO IMPLEMENTING
THE TREE GODE; PROVIDING FOR REPEALER; CODIFIGATION;
SEVERABILITY; AND AN EFFECTIVE DATE.
WHEREAS, the City Commission declares that it is in the public health, safety and
welfare, and the interest of the citizens of Miami Beach, to establish policies, regulations and
standards to ensure its residents and visitors will realize the full benefits of a healthy, well-
managed urban forest; and
WHEREAS, in 2014, the City Commission recognized that specific changes were
needed to the City's Code in order to protect the existing tree canopy in the City and to ensure
additional tree canopy, and as a result, the City created a new Tree Code, codified at Chapter
46, Article ll; and
WHEREAS, enhanced guidelines were created to define required tree protection
measures to be undertaken on designated construction sites; and
WHEREAS, the City also established a Heritage Tree designation process to recognize
and protect trees of unique character and high value, and also provided a strong mechanism to
help prevent any unauthorized removals of these trees and understory; and
WHEREAS, the City also created a Specimen Tree designation which would include all
trees with a diameter breast height (dbh) of 12 inches and above, to also include increased
canopy mitigation and monetary contribution requirements for any Specimen tree impacts; and
WHEREAS, the City also created enforcement provisions concerning the trimming,
spraying, removal, planting, pruning, cutting and protection of trees Citywide, and established
appropriate fines and penalties; and
WHEREAS, based upon the adoption of the Tree Code, in June 2015, the City also took
over all oversite responsibilities relating to trees from Miami-Dade County Department of
Environmental Protection; and
WHEREAS, the City now desires to establish application fees to cover the costs
associated with implementing Chapter 46, Article ll.
WHEREAS, the City Commission desires to Amend Chapter 46, Article ll at Section 46-
59(5) to provide for the City Commission to adopt, by Resolution, a fee schedule relating to
implementing the ordinance, and the below amendment accomplishes the above objective.
77
NOW, THEREFORE, BE IT DULY ORDAINED BY THE MAYOR AND CITY
GOMMISSION OF THE GITY OF MIAMI BEACH, FLORIDA, AS FOLLOWS:
SECTION 1. That Article ll, entitled, "CARE AND MAINTENANCE OF TREES AND PLANTS,"
of Chapter 46 of the Miami Beach City Code, Division 2 thereof, entitled "TREES", at Section
46-59, entitled "Tree work permit application processing, requirements and review" is hereby
amended as follows:
CHAPTER 46 ENVIRONMENT
***
ARTICLE II. CARE AND MAINTENANGE OF TREES AND PLANTS
DIVISION 2. TREES PRESERVATION AND PROTECTION
Sec. 46-59. - Tree work permit application processing, requirements, and review.
(1) Permit, when required. A tree work permit shall be required:
(5) Fees. Fees for tree work permits shall be established by the city commission via resolution.
Applications from government agencies for tree removals solely in areas dedicated to public use
may, at the discretion of the city commission, be exempted from application and permit fees.
SECTION 2. CODIFICATION.
It is the intention of the Mayor and City Commission of the City of Miami Beach, and it is hereby
ordained that the provisions of this ordinance shall become and be made part of the Code of the
City of Miami Beach, Florida. The sections of this ordinance may be renumbered or relettered
to accomplish such intention, and the word "ordinance" may be changed to "section", "article", or
other appropriate word.
78
SEGTION 3. REPEALER.
All ordinances or parts of ordinances in conflict herewith be and the same are hereby repealed.
SECTION4. SEVERABILIry.
lf any section, subsection, clause or provision of this Ordinance is held invalid, the remainder
shall not be affected by such invalidity.
SECTION 5. EFFECTIVE DATE.
This Ordinance shalltake effect ten days following adoption.
PASSED AND ADOPTED this _ day of 2015.
Philip Levine, Mayor
ATTEST:
Rafael E. Granado, City Clerk
First Reading: July 8,2015
Second Reading: July 29, 2015
Underline = new language
S+rit<et++eugh = deleted language
[Sponsored by Commissioner Joy Malakofl
APPROVED AS TO FORM
AND LANGUAGE
AND FOR EXECUTION
79
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81
R7
RESOLUTIONS
82
MIAMIBEACH
City of Miomi Beoch,lZ00 Convention Center Drive, Miomi Beoch, Florido 33.)39, www.miomibeochfl.gov
COMMISSION MEMORANDUM
TO:Mayor Philip Levine and Commissionthe
FROM: Jimmy L. Morales, City M
DATE: July 31 ,2015
RST READING
PUBLIC HEARING
SUBJECT: A RESOLUTION OF THE AND CITY COMMISSION OF THE
CITY OF M!AM! BEACH, FLORIDA, APPROVING, FOLLOWING
FIRST READING/PUBLIC HEARING, A DEVELOPMENT AND
GROUND LEASE AGREEMENT, AS AUTHORIZED,
RESPECTIVELY, UNDER SECTION 118.4 OF THE CITY GODE,
SECTIONS 163.3220 . 163.3243, FLORIDA STATUTES, AND
SECTION 82.37 OF THE CITY CODE, BETWEEN THE CITY AND
PORTMAN MIAMI BEACH, LLC ("PORTMAN"), FOR THE
DEVELOPMENT OF AN SOO.ROOM CONVENTION HEADQUARTER
HOTEL AND RELATED FACILITIES, INCLUDING UP TO 95,OOO
SQUARE FEET OF CONFERENCE AND BALLROOM FACILITIES,
AND UP TO 37,400 SQUARE FEET OF RESTAURANT FACILITIES
(THE "HOTEL"), ON AN AppROXtMATELy 2.65 ACRE SITE ON
THE 17OO BLOCK OF CONVENTION CENTER DRIVE AND
BOUNDED ROUGHLY BY THE MIAMI BEACH CONVENTION
CENTER TO THE NORTH, 17TH STREET TO THE SOUTH, THE
FILLMORE MIAMI BEACH AT THE JACKIE GLEASON THEATER
TO THE EAST, AND CONVENTION CENTER DRIVE TO THE WEST
(THE "LEASED PROPERW"); DELINEATING THE CONDITIONS
FOR THE DESIGN, CONSTRUCTION, EQUIPPING AND
OPERATION OF THE HOTEL ON THE LEASED PROPERTY, WITH
NO CITY FUNDING THEREFOR; PROVIDING FOR A gg-YEAR
TERM OF THE LEASED PROPERTY ONCE CERTAIN CONDITIONS
ARE SATISFIED; PROHIBITING GAMBLING ESTABLISHMENTS
ON THE LEASED PROPERTY; AND PROVIDING FOR BASE RENT
TO THE CITY ONCE THE HOTEL OPENS, INGLUDING, AFTER THE
HOTEL'S OPENING, A FIXED PERCENTAGE OF THE GROSS
REVENUES OF THE HOTEL; AND FURTHER SETTING THE
SECOND PUBLIC HEARING AND FINAL READING OF THE
DEVELOPMENT AND GROUND LEASE AGREEMENT FOR A TIME
CERTAIN.
BACKGROUND
On January 27,2015, the City Commission authorized the issuance of Request for Proposals No.
2015-103-ME (the RFP) for the Development of a Convention Headquarter Hotel Adjacent to the
Miami Beach Convention Center ("MBCC").
Agenda ltem
Date ?-3\-lS-83
Convention Center Headquarter Hotel - Development and Ground Lease Agreement
July 31, 2015
Page 2 of 12
On April 10, 2015, the City received proposals from Portman Holdings, LLC and Oxford Capital
Group/RLB Swerdling ("Oxford Capital"). On April 21, 2015, the City Manager notified Oxford
Capital that its proposalwas not responsive to the RFP's minimum requirements.
On April 29, 2015, the City Manager, via Letter to Commission (LTC) No. 176-2015, appointed an
Evaluation Committee, which convened on May 7, 2015, to interview the Portman Holdings team
and score the proposal, consistent with the evaluation criteria outlined in the RFP.
On May 20, 2015, the Mayor and City Commission approved Resolution No. 2015-29029,
authorizing the Administration to negotiate a Development and Ground Lease Agreement,
including a Room Block Agreement (collectively, the "Lease") with Portman Holdings, LLC, with
said Lease subject to prior approval by the Mayor and City Commission before the final execution
thereof.
On June 3,2015, the Administration submitted the proposed Lease for the Finance and Citywide
Projects Committee's review and input, in accordance with the requirements of Section 82-
37(a)(1) of the City Code.
ANALYSIS
Need for a Headquarter Hotel
The City of Miami Beach has been contending with the development of its convention events
business for many years with limited success. ln an effort to make the Miami Beach Convention
Center ("MBCC or "Convention Center") more competitive, the City is proceeding with its MBCC
Renovation and Expansion Project, a public construction project that is well underuvay and includes
a complete renovation and expansion of the Convention Center, with construction anticipated to
begin in December, 2015.
An adjacent, privately-funded, convention headquarter hotel is the next step in creating a highly
competitive convention destination. The headquarter hotel will have a dramatic impact on the City.
The following summarizes the key impacts:
o Competitive Landscape - Out of the 30 top U.S. convention destinations, Miami Beach is
one of four that currently does not have a headquarter hotel attached or adjacent to its
convention center. The other three cities include: Ft. Lauderdale, which is in the process of
developing a hotel; Los Angeles, which is also in the process of developing a hotel; and
New York, which does not need a headquarter hotel in view of the significant hotel
inventory in the nearby Broadway District. With the addition of the headquarter hotel for the
MBCC, Miami Beach willfinally be competitive as a convention destination.
. Client Demands - The City and the Greater Miami Convention and Visitors Bureau
(GMCVB) have reached out to the Convention Center's target market and continue to
receive feedback that many convention planners will only consider Miami Beach for their
event if there is an attached headquarter hotel. With a hotel, the City will finally have an
opportunity to book.these events.
o Center Bookings - Case studies in other destinations that have expanded/renovated their
convention center, and developed a headquarter hotel, have shown material increases in
convention bookings. Average convention room night impact increased 42%. The City
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Convention Center Headquarter Hotel - Development and Ground Lease Agreement
July 31, 2015
Page 3 of 12
and GMCVB are working through booking goals for the Convention Center, and are working
toward increasing convention bookings from approximately 5 annually to 25 to 30 annually,
not including Art Basel.
t Area Hotel lmpact - City staff has studied the impact on existing hotels when a new
convention hotel opens. ln cities where new convention hotels have been developed, hotel
room night demand exceeded the increase in room night supply within 1 to 3 years.
o Room Rate Driver - City staff has analyzed the times of year when Miami Beach realizes
its highest hotel rates. Other than New Year's Eve and large sporting events, many of the
high rate periods coincide with convention center events. More conventions booked means
more high-rate periods, which means more hotel revenues, equating to more tax revenues
that support City services.
o Traffic - While it is recognized that the development of an 800-room hotel will create more
traffic in the immediate vicinity of the hotel, this is more than offset by changing the
Convention Center's booking mix from "drive-in" consumer and trade shows to "fly-in"
conferences and conventions. The study presented to the City Commission on December
18, 2014 indicated that an average consumer show generates 24,600 vehicle trips over a
four-day period, and an average convention generates only 6,700 over a five-day period.
Changing the Convention Center's event mix will have a profound positive impact on City-
wide traffic.
o Lease Revenues - The net present value (NPV) of the proposed lease payments to the
City approximate $74 million ($92,500 per room, $27.9 million per acre, $641 per square
foot of land). The rent received by the City can be spent on general City needs, or
dedicated to specific p.rojects that are of importance to the City's residents. The price per
room is consistent with the market. For a more detailed summary of the rent payments to
the City, see Summary of Development and Ground Lease Agreement, ltem #9, on pages
6-8 of this Memorandum.
Contractual Room Block - One of the challenges with booking the Convention Center is
that the City has no room block agreements with any hotels in the region, including large-
scale hotels capable of providing large enough group room blocks to support convention
events. Room commitments are critical to attracting premier conventions. The proposed
Room Block Agreement, which is included as part of the Development and Ground Lease
Agreement, requires the Hotel to commit 80% of its rooms to Citywide Events that are to
occur at least 30 months in the future and, among other things, includes price protection to
ensure a fair rate is offered. This is a game changer for Miami Beach. See Summary of
Development and Ground Lease Agreement, ltem #13, on pages 8-9 of this Memorandum.
Tax lmpacf - The Hotel will pay hotel, resort and property taxes that go to the City. The
net present value of the City taxes total 9151 million over 30 years and $2S3 million over
the 99-year lease term. These funds support both the Convention Center itself, and a
number of other projects within the City. Public schools will receive an additional $40
million NPV from the Hotel, and the County an additional $87 million NpV.
lncreased Dedicated County Funding - Miami-Dade County is contractually obligated to
increase its Convention Development Tax funding to the City of Miami Beach by $t.S
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Convention Center Headquarter Hotel - Development and Ground Lease Agreement
July 31, 2015
Page 4 of 12
million annually through 2044 - only if a convention hotel is developed This totals $36
million more to the City.
o Art in Public Places - Portman will contribute approximately $3.6 million to the City's Art in
Public Places fund, which may be used for Art in Public Places projects throughout the City.
. Jobs - Strategic Advisory Group has estimated the hotel will create 530 local full-time
equivalent jobs during its construction. Once open, the hotel is estimated to suppott 440
jobs at the hotel itself, and an additional 500 jobs directly and indirectly in support of the
hotel's operation and by guest suspending outside the hotel on restaurants, retail,
entertainment and transportation.
. No Gambling - As detailed more fully below, the developer has agreed to the City's
restrictions prohibiting gambling at the headquarter hotel, and a provision to prohibit the
developer or a subsequent owner of the hotel from owning a gambling establishment within
Miami-Dade County. See Summary of Development and Ground Lease Agreement, ltem
#7, on page 6 of this Memorandum.
. No City Subsidy - No City funds or City financing will be utilized in the development of the
hotel. See Summary of Development and Ground Lease Agreement, ltem 2, on pages 4-5
of this Memorandum.
As outlined above, the advantages of developing the proposed convention headquarter hotels are
substantial and complement the City's investment in the MBCC Renovation and Expansion Project.
I truly believe that our investment in the Convention Center, coupled with a new headquarter hotel,
will catapult Miami Beach into a leadership position in the convention market. Failure to build an
adjacent headquarter hotel will diminish the return on our investment in the Convention Center.
SUMMARY OF DEVELOPMENT AND GROUND LEASE AGREEMENT
The proposed Lease is attached hereto as Appendix 1. As contemplated by the RFP, Portman
Holdings has identified and created a single-purpose limited liability company, Portman Miami
Beach, LLC ("Portman")to serve as Lessee. The Lease includes the following terms:
1. Description of Hotel Site/Leased Propertv
The proposed boundaries for the leased property are described in Exhibit D to the Lease (the
"Leased Property"). The Leased Property generally consists of an approximately 2.65 acres on the
1700 block of Convention Center Drive, bounded roughly by the Miami Beach Convention Center
to the North, 17th Street to the South, the Fillmore Miami Beach at the Jackie Gleason Theater to
the East, and Convention Center Drive to the West. For ease of reference, the legal description
and sketch for the Leased Property is separately included as Appendix 2 hereto.
2. Development and Fundinq of Hotel Proiect at Portman's Sole Cost
Portman shall be solely responsible for the development, design, construction, equipping and
operation of a full-service convention headquarter hotel with approximately (but not-to-exceed) 800
hotel rooms and related improvements ("Hotel"), including the design, construction and operation
of an enclosed overhead pedestrian walkway or "Skybridge" connecting the Hotel and the MBCC
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Convention Center Headquarter Hotel - Development and Ground Lease Agreement
July 31, 2015
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(collectively, as described more fully in the Lease, the "Hotel Project"). The City shall not provide
any City subsidy or City financing for the Hotel Project.
3. Fillmore Miami Beach Rehearsal Room and 555 17th Street
The Fillmore Miami Beach at the Jackie Gleason Theater (the "Flllmore") will remain in place and
operational during and after the Hotel Project construction. As part of its construction obligations,
Portman will be responsible for demolition of the 555 17th Street property and the Fillmore's
rehearsal or "black box" room, both of which are currently located on the Leased Property.
Portman will also be responsible for certain Off-Site lmprovements, including enclosure of the
remaining portion of the Fillmore located outside the Leased Property, and the replacement of
twenty-five (25) surface parking spaces for Fillmore personnel.
4. Proposed Hotel Program
Consistent with the RFP requirements, Portman proposes to develop an 800-room convention
headquarter hotel to include the following program elements:
Ballroom/Meetino Space Sq. Feet
Grand Ballroom 26,500
Junior Ballroom (2) 21,000
Breakout Meeting 47,700Total 95.200
Parking Spaces 320
Food & Beveraqe
3-meal
Lobby Lounge
Pool Grille
Rooftop
Club Lounge
Caf6
Seats
300
180
130
120
92
40
The 320 parking spaces proposed adheres to the requirement in the RFP of 0.4 parking spaces
per room (including ancillary uses) in accordance with the City's Land Development Regulations.
The maximum height cannot exceed 300 feet, as permitted by the City's Land Development
Regulations.
5. Lease Term
The term for the ground lease is a period of g9 years, commencing once certain development and
financing conditions are satisfied, as set forth in Section 4.1(b) of the Lease ("Possession
Conditions"). Specifically, the City will not deliver possession of the Leased Property to Portman
until Portman has met certain key milestones and satisfied a number of conditions with regard to
the development of the Hotel Project, including delivery of evidence that equity commitments and
construction loan commitments required to build the Hotel Prolect are in place, verification that a
management agreement with the initial Hotel Operator is in place, and evidence that all required
governmental approvals for commencement of construction have been obtained.
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Convention Center Headquarter Hotel - Development and Ground Lease Agreement
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6. Approval of Preliminarv Desion: Final Desiqn Subiect to Citv's Desiqn Review Process
The Lease includes approval by the City, in its proprietary capacity as owner of the Leased
Property, of the initial preliminary concept design for the Hotel Project attached as Exhibit E to the
Lease. ln recognition that the design for the Hotel Project will evolve as part of the development
process, the Lease also requires City's approval of substantial design changes to the Hotel Project,
including any change that materially affects the exterior fagade or other exterior elements.
ln addition, the final design for the Hotel Project shall be subject to review and approval by the
City's Design Review Board and, if applicable, the Planning Board. Portman shall be required to
obtain all final, non-appealable regulatory approvals and/or permits that may be required for the
Hotel Project, in the same manner as may be applicable to any other developer.
7. Use Restrictions/No Gamblinq
The Lease contains a use restriction to prohibit gambling on the Leased Property. Portman and/or
subsequent owners of the Hotel may not own, operate or manage any establishment offering
gambling or wagering in Miami-Dade County. The Lease further provides that the foregoing
provisions cannot be subsequently amended without a 617 vote of the City Commission, and
approval by at least sixty percent (60%) of the voters voting thereon in a City-wide referendum.
8. Approved Brand/Hotel Operator
The Leased Property must be continuously operated as a Hotel. The hotel brand, or "flag" of the
Hotel, must be an "Approved Brand," which may include national hotel operators such as Marriott,
Westin, Omni, Hyatt Regency, Sheraton, La Meridien, Hilton, or any other brand approved by the
City, in its sole discretion. The Hotel must be developed and operated so as to be able to obtain
and continuously maintain a four-diamond rating from the American Automobile Association
("A/AA") (the "Hotel Standards").
Portman has indicated it intends to consider national hotel brand/operators with an established and
consistently maintained reputation for quality operations. Brands to be considered include Marriott,
Marriott Marquis, JW Marriott, Westin, Omni, Hyatt Regency, and Hilton. The Hotel Operator must
either be an Approved Brand or a management company with a franchise agreement with an
Approved Brand. The Hotel Operator must operate the Hotel in accordance with the Hotel
Standards and must comply with the Room Block Agreement, as set forth in Exhibit L of the Lease.
The initial brand/hotel operator selection is a condition which must be satisfied prior to City's
delivery to Portman of possession of the Leased Property.
9. Annual Rent Pavments to the Citv
The Lease broadly defines Gross Operating Revenues to include all revenues and income from
the Hotel's gross room sales, gross food and beverage sales (whether a food and beverage
establishment is operated by Lessee or a Subtenant), catering receipts, internet services
charges, in-room video charges, parking and valet service receipts, among other revenues.
The Lease provides for Portman to make annual rent payments to the City, commencing upon
the later of (i) the Hotel Opening Date and (ii) the completion of construction of the Convention
Center such that the four main exhibition halls may be used for events (the "Rent
Commencement Date").
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Convention Center Headquarter Hotel - Development and Ground Lease Agreement
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Base Renf
As a general matter, the City will receive annual rent in the amount of the greater of (x)
Minimum Fixed Rent (as defined in the Lease) or (y) Two and One Half percent (2.5%) of the
Gross Operating Revenues of the Hotel, except with respect to the first three Rent Years, to
account for the initial "ramp up" period for the Hotel, as summarized below.
ln recognition that the first three years following the Hotel's opening represent a critical period
for the establishment and success of a hotel operation, the City has agreed to receive, as Base
Rent:
o 0.5o/o of the Gross Operating Revenues in the First Rent Year following the Rent
Commencement Date (with the First Rent Year defined to commence on the Rent
Commencement Date and end on December 31st of the year in which the first anniversary
of the Rent Commencement Date occurs);. 1.0o/o of the Gross Operating Revenues in the Second Rent Year year following the Rent
Commencement Date; and. 1.5o/o of the Gross Operating Revenues in the Third Rent Year following the Rent
Commencement Date.
As noted above, after the end of the Third Rent Year, and for each remaining year of the Term
thereafter, the Gity shall receive, as Base Rent, the fixed amount of 2.5Yo of the Gross
Operating Revenues of the Hotel.
Minimum Fixed Rent
The schedule of Minimum Fixed Rent payments for the first ten (10) years following the Rent
Commencement Date is attached hereto as Appendix 3. These minimum guaranteed
payments are included to provide the City with greater certainty for its internal
planning/budgeting purposes as to the projected Lease revenues. Each year, the City will
receive the greater of the Minimum Fixed Rent or the percentage of Gross Operating Revenues
due to the City as set forth above, with the schedule of Minimum Fixed Rent to be re-calculated
every ten (10) years.
Additional Base Rent
Portman has also agreed to pay the City Additional Base Rent if certain projected Gross
Operating Revenue hurdles are exceeded. Beginning in the fourth year following the Rent
Commencement Date, and continuing each year thereafter for the remainder of the Term,
Portman has agreed to pay the City, as Additional Base Rent, the amount of 1.5o/o of Gross
Revenues, if Gross Operating Revenues exceed a hurdle of 110% of the projected pro forma
Fourth Year Gross Operating Revenues, with the hurdle to be adjusted for inflation annually.
Portman has also agreed to pay the City, as Additional Base Rent, another 1.0% of Gross
Operating Revenues, if Gross Operating Revenues exceed a hurdle of 125% of the Gross
Revenues of the projected pro forma Fourth Year Gross Operating Revenues, with the hurdle to
be adjusted for inflation annually.
Net Present Value of Base Rent Payments
Below is a table of the total and net present value ("NPV") of the Base Rent payments
(excluding the Additional Base Rent):
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Convention Center Headquarter Hotel - Development and Ground Lease Agreement
July 31, 2015
Page B of 12
Over 30 Years
NPVTotal @ 5%
$53m $21m59m 23m
$112m $44m
Over 99 Years
NPVTotal @5%$417m $35m466m 39m
$883m $74m
Minimum Fixed Rent
Variable Rent
Percentage Rent
The lease stream NPV of $74 million over the term of the Lease equates to $92,500 per room.
The proposed rent structure and terms set forth above are based on labor cost assumptions
Portman has made in connection with its ongoing discussions with a hospitality industry union.
10. Transaction Rent (For Sale of Hotel or Controllinq lnterest in Lessee)
Portman has proposed for the City to receive additional rent in connection with the first three sales
of the Hotel to a third party, including a sale effected by a transfer of a Controlling interest in the
Lessee (i.e., in excess of 50% interest in the Lessee). Under the Lease, the City is to receive, as
Transaction Rent, the lesser of $2 million or 0.25o/o of the gross sales price for each such
transaction, provided that with respect to the first sale, City shall only receive payment if the gross
sales price is $580 million or higher.
1 '1. Development Budqet and Finance Plan
Portman has estimated the preliminary development budget to be $405.5 million and intends to
finance the Hotel Project with an estimated 60% in debt and 40% in equity. Portman must provide
a minimum equity contribution of $10 million and has indicated it plans to provide up to $17 million
in equity, with the remaining equity to be funded by Portman institutional relationships. Portman
has provided construction debt financing support letters from Regions Bank, PNC Bank, and an
equity support letter for up to $130 million from NorthStar Realty Finance Limited Partnership
and/or affiliates of NorthStar Asset Management Group, lnc.
1 2. Development Schedule
Portman is estimating the Hotel design to be complete in late 2016 and construction to be
complete in late 2018 with the Hotel opening targeted to occur priorto Art Basel 2018. The Lease
includes outside dates by which certain key development activities must take place, including an
Outside Construction Loan Closing Date, Outside Construction Commencement Date, an Outside
Completion Date, and an Outside Opening Date. The City may terminate the Lease if any of the
outside dates are not met.
13. Room Block Aqreement
Portman has agreed to the City's terms outlined in the City's proposed Room Block Agreement,
which provides that a City-wide Event is an event requiring a three (3) night stay with at least 1,500
guest rooms on peak and with at least 115,000 gross square feet of MBCC space utilized for one
day or more while the event is being held. A City-wide Event shall also include the annual Orange
Bowl and any Super Bowl, even though they may not utilize the MBCC.
. For City-wide Events that are to occur at least 30 months in the future, Portman will make
available eighty percent (80%) of all guest rooms (and associated suites), for up to 14
nights per calendar month. Portman can book rooms in excess of that amount at its
discretion, at the rate of its choosing.
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Convention Center Headquarter Hotel - Development and Ground Lease Agreement
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For City-wide Events that are to occur between 18 and 30 months in the future, Portman
will make available eighty percent (80%) of all guest rooms (and associated suites) if rooms
and space are available, and will make available for City-wide Events eighty percent (80%)
of all guest rooms (and associated suites) for one consecutive four (4) day period each
month. Portman will determine the four (4) day period and will notify City on a monthly
basis. Portman may book rooms in excess of that amount at its discretion.
For up to fourteen (14) nights per month, City may elect to require the Hotel to offer room
block pricing at 1Q1o/o of Portman's average group room rates. ln addition, for up to six (6)
special events per year, City may elect to require the Hotel to offer room block pricing at
100o/o of Portman's average group room rates.
14. Other Lease Terms. Portman accepts the Leased Property in its "AS lS" condition.
The Lease requires City review and/or approval of transfers of interests in the Lease,
including limitations with respect to transfers to Foreign lnstrumentalities (foreign
governments or Persons Controlled thereby), and delineates "Acceptable Owner" criteria
with respect to such Transfers.
City's rights and interest in the Lease will not be subordinate to any mortgage, lien or
encumbrance placed on Portman's (or any subsequent owner's) interest in the Lease.
Portman is committed to supporting and encouraging the application of responsible wages
and local employment of City and Miami-Dade County residents.
Portman is required to comply with the City's Art in Public Places program requirements set
forth in the City Code, and must contribute 1.5o/o of the construction cost for the Hotel
Project (approximately $3.6 million) to the Art in Public Places fund, which may be used for
Art in Public Places projects throughout the City.
The Lease also includes a variety of other terms, including with respect to maintenance and
repair obligations, insurance requirements, obligations to reconstruct the Hotel in the event
of force majeure or other casualty, indemnification in favor of the City, and remedies to the
City in the event of default, including termination rights.
SUMMARY OF CHANGES MADE SINCE JUNE 3,2015 FINANCE COMMITTEE REVIEW
As part of the on-going negotiations with Portman, the Lease has been revised to address a
number of items, including:
. Rent: Percentage rent has reduced from 4o/o to 2.5o/o of Gross Operating Revenues. This
was driven by the further underwriting of the financing of the Hotel Project and a
reassessment of local labor costs. The City has the ability to be paid the additional 1.5% of
Gross Operating Revenues if actual results exceed a hurdle of 110o/o of the projected pro
forma Fourth Year Gross Operating Revenues, with the hurdle to be adjusted for inflation
annually. ln addition, the City will be paid an additional 1o/o of Gross Operating Revenues if
actual results exceed a hurdle of 125o/o of the projected pro forma Fourth Year Gross
Operating Revenues, with the hurdle to be adjusted for inflation annually..
. Clarification of a "Minimum" Portman Equity Contribution of $10 million, and an "Estimated"
Portman Equity Contribution of up to $17 million;
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Convention Center Headquarter Hotel - Development and Ground Lease Agreement
July 31, 2015
Page 10 of 12
Limited exclusivity provision regarding other hotels on Citv-owned or Citv-leased property
between Sth and 41't St, as follows:
(i) City shall not permit another hotel of less than 250 rooms to open on City-
owned or leased property for 4 years following the Hotel's Opening Date,
except that with respect to the property located at 640 17th Street (17th Street
Garage"), City shall not permit another hotel to open at the 17th Street
Garage for 3 years after the Opening Date; and
(ii) City shall not permit any hotel of 250 rooms or more to open on City-owned
or leased property for eight (8) years following Opening Date;
Modifications to Transfer Provisions and Acceptable Owner criteria, to require City's
approval of major transfers effecting a sale of the Hotel or Controlling lnterest in Lessee,
includ in g transfers to Foreig n I nstrumentalities ;
Portman shall have the right to terminate without cause and for convenience prior to the
Outside Possession Date if due to (i) changes required by City's Design Review Board that
render the Hotel Project economically unfeasible, (ii) Portman's inability to meet
concurrency requirements or its determination that the costs of concurrency mitigation are
prohibitive; or (iii) Portman's inability to obtain a full building permit after diligent efforts. ln
such event, each party shall bear its own costs and expenses, and neither party shall have
any further liability to the other party;
Limitation of monetary remedies in the event of Portman's default, in the amount of the
unfunded portion, if any, of the Minimum Portman Equity Contribution of $10 million, plus
assignment to City of rights to the plans and contracts for design and construction of the
Hotel Project (Note: City's core protection in the event of default is that the lender will step
in and must cure any default in order to protect its interest in the lease, or lender othenrvise
risks losing its $200+ million loan);
Extensions of time to outside dates for certain matters not within Portman's ability to control
(i.e. force majeure events);
City commitment to maintain Convention Center facilities at a standard of operation
consistent with facility standards at specified convention centers as of the Effective Date,
with Portman's remedy being limited to relaxation of the Hotel Standards from AvAA 4-
diamond rating to 3-diamond rating, until such time as the Convention Center facility
standards are met;
Duration of development rights for a limited period of six (6) years as to maximum hotel
height, F.A.R., and parking requirements, after which time, any changes to the City's Land
Development Regulations adopted after the Effective Date shall apply to Portman's
development applications;
Arbitration of (i) disputes regarding any City disapproval of a proposed brand, (ii)
development disputes arising prior to Opening Date, i.e. disputes involving City's
disapproval of major modifications to the Approved Plans, etc.), or (iii) any City Manager
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Convention Center Headquarter Hotel - Development and Ground Lease Agreement
July 31, 2015
Page 11 of 12
disapproval of a proposed Transfer. Notwithstanding the preceding, any disapproval of a
proposed Transfer, if such determination is made by the City Commission, shall not be
subject to arbitration and the exclusive remedy lies in a court of competent jurisdiction in
Miami-Dade County;
. Clarifications to Lease amendment provisions to provide City Manager with delegated
authority, following consultation with City's CFO and City Attorney, to amend specific Lease
provisions that impact lender rights, in an effort to timely accommodate lender financing. All
other amendments subject to City Commission approval or further referendum approval, if
applicable;
. Clarifications as to Transaction Rent, which will apply to first 3 transfers of sale of the Hotel
Project or "Controlling lnterest" in Lessee (more than a 50% interest in Lessee); and
r Modifications to permit mezzanine financing or credit enhancements (with City maintaining
its position that it will only permit one leasehold mortgage and no other leasehold
mortgages, so as to avoid complications with multiple mortgagees and
defau lUforeclosure/bankru ptcy processes ).
OTHER
Voter Referendum Requirement
The Lease is contingent upon sixty percent (60%) voter approval in accordance with Section
1 .03(bX3) of the City Charter. The referendum is contemplated to occur on November 3, 2015. A
draft of the ballot question is attached hereto as Appendix 4.
Planning Analysis
A planning analysis, as required by Section 82-38 of the City Code, is attached hereto as
Appendix 5.
Appraisal
An appraisal of the Leased Property, as required by Section 82-39 of the City Code, is in the
process of being completed, and will be included in the materials for the second reading/public
hearing relating to approval of the Lease.
Public Revenue lmpact
The Leased Property is currently a parking lot that generates $263,700 annually in revenues for
the City, along with modest revenues paid to the City for the Fillmore's use of the rehearsal/"black
box" room. lf the site is developed with a hotel annual (year 4) lease and tax revenue generated
is estimated to be $20.4 million. Over time the Hotel is estimated to generate:
. City: $369 million ($151 million NPV) over30 years and $2.4 billion ($2ge million NPV)
over 99 years in lease payments, resort taxes, CRA revenues, property taxes and County
CDT allocations to the City.
. County: $110 million ($42 million NPV) over 30 years and $1.25 billion ($87 mittion NPV)
over 99 years in convention development taxes, local option sales taxes and property
taxes.
93
Convention Center Headquarter Hotel - Development and Ground Lease Agreement
July 31, 2015
Page 12 of 12
. Schools: $60 million ($24 million NPV) over 30 years and $453 million ($40 million NPV)
over 99 years in property taxes.
. State: $264 million ($1OZ million NPV) over 30 years and $2 billion ($tZ0 million NPV)
over 99 years in sales taxes.
o Total: $810 million ($SZZ million NPV) over 30 years and $6.2 billion ($S+O million NPV)
over 99 years in lease payments and taxes.
Refer to attached Appendix 6.
RECOMMENDATION
The Administration recommends that the Mayor and City Commission approve, following first
reading/public hearing, the Development and Ground Lease Agreement ("Lease") between the
City of Miami Beach and Portman Miami Beach, LLC, attached hereto as Appendix 1, as
authorized, respectively, under Section 118-4 of the City Code, Sections 163.3220 - 163.3243,
Florida Statutes, and Section 82-37(a)(ii) of the City Code , for the development of an 800-room
convention headquarter hotel and related facilities, including up to 95,000 square feet of
conference and ballroom facilities, and up to 37,400 square feet of restaurant facilities (the
"Hotel"), on an approximately 2.65 acre site on the 1700 block of Convention Center Drive and
bounded roughly by the Miami Beach Convention Center to the North, 17th Street to the South,
the Fillmore Miami Beach at the Jackie Gleason Theater to the East, and Convention Center
Drive to the West (the "Leased Property"); delineating the conditions for the design,
construction, equipping and operation of the Hotel on the Leased Property, with no City funding
therefor; providing for a 99-year term of the Leased Property once certain conditions are
satisfied; prohibiting gambling establishments on the Leased Property; and providing for base
rent to the City once the Hotel opens, including, after the Hotel's opening, a fixed percentage of
the gross revenues of the Hotel; and further setting the second public hearing and final reading
of the Development and Ground Lease Agreement for a time certain..
Exhibits:
Appendix 1: Development and Ground Lease Agreement
Appendix 2: Proposed boundaries for Leased Property
Appendix 3: Summary of Proposed Minimum Fixed Rent
Appendix 4: Draft Ballot Question
Appendix 5: Planning Analysis
Appendix 6: Summary of Public Revenue lmpact
JLM i MH
T:\AGENDA\201S\July\MBCC - Headquarter Hotel\2015-07-31 - Headquarter Hotel - MEMO.docx
94
RESOLUTION NO.
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE
CIry OF MIAMI BEACH, FLORIDA, APPROVING, FOLLOWING FIRST
READING/PUBLIC HEARING, A DEVELOPMENT AND GROUND
LEASE AGREEMENT, AS AUTHORIZED, RESPECTIVELY, UNDER
sEcTtoN 118-4 0F THE CITY CODE, SECTTONS 163.3220 - 163.3243,
FLORIDA STATUTES, AND SECTION 82.37 OF THE CITY CODE,
BETWEEN THE CITY AND PORTMAN MIAMI BEACH, LLC
("PORTMAN"), FOR THE DEVELOPMENT OF AN 800-ROOM
CONVENTION HEADQUARTER HOTEL AND RELATED FACILITIES,
INCLUDING UP TO 95,OOO SQUARE FEET OF CONFERENCE AND
BALLROOM FACILITIES, AND UP TO 37,400 SQUARE FEET OF
RESTAURANT FACILTTTES (THE "HOTEL"), ON AN APPROXIMATELY
2.65 ACRE SITE ON THE 17OO BLOGK OF CONVENTION CENTER
DRIVE, BOUNDED ROUGHLY BY THE MIAMI BEACH CONVENTION
CENTER TO THE NORTH, 17TH STREET TO THE SOUTH, THE
FILLMORE MIAMI BEACH AT THE JACKIE GLEASON THEATER TO
THE EAST, AND CONVENTION CENTER DRIVE TO THE WEST (THE
"LEASED PROPERW"); DELINEATING THE CONDITIONS FOR THE
DESIGN, CONSTRUCTION, EQUIPPING AND OPERATION OF THE
HOTEL ON THE LEASED PROPERW, WITH NO CITY FUNDING
THEREFOR; PROVIDING FOR A gg-YEAR TERM OF THE LEASED
PROPERTY ONCE CERTAIN CONDITIONS ARE SATISFIED;
PROHIBITING GAMBLING ESTABLISHMENTS ON THE LEASED
PROPERTY; AND PROVIDING FOR ANNUAL BASE RENT TO THE
CITY, AFTER THE HOTEL OPENS, OF A FIXED PERCENTAGE OF
THE GROSS REVENUES OF THE HOTEL, AMONG OTHER RENT;
AND FURTHER SETTING THE SECOND PUBLIC HEARING AND
FINAL READING OF THE DEVELOPMENT AND GROUND LEASE
AGREEMENT FOR A TIME CERTAIN.
WHEREAS, the Mayor and City Commission desire to promote economic development
within the City of Miami Beach by attracting a more robust mix of conferences and conventions
to the Miami Beach Convention Center ("MBCC" or "Convention Center"), including "fly-in"
conferences and conventions drawing national and international attendance, that would reduce
the MBCC's reliance on "drive-in" events that primarily attract local/commuter attendance; and
WHEREAS, in support of the foregoing and in an effort to maintain the competitiveness
of the Convention Center as a local and regional asset that supports the South Florida tourism
economy, the City is proceeding with the Miami Beach Convention Center Renovation and
Expansion Project (the "MBCC Renovation Project"), a public construction project that includes
a complete renovation of the MBCC, expansion of ballroom and auxiliary spaces, parking above
portions of the MBCC, exterior landscaping, and creation of a 6.5 acre public park; and
WHEREAS, in addition to and separate from the MBCC Renovation Project, the City
desires to attract more "fly-in" conferences and conventions to the MBCC through the
development of a convention headquarter hotel that is (i) entirely privately-funded; (ii)
95
sufficiently close to the Convention Center to serve as an "on-site" hotel option for conference
attendees; and (iii) large enough to provide the group room blocks necessary to support and
secure national and international conferences and conventions at the Convention Center; and
WHEREAS, on November 19, 2014, the Mayor and City Commission adopted
Resolution No. 2014-28836, approving an Amended and Restated lnterlocal Cooperation
Agreement between the City and Miami-Dade County ("County"), whereby, in recognition that a
convention hotel in the proximity of the Convention Center will generate additional Convention
Development Tax ("CDT") and resort tax revenues, the County has agreed to provide the City
with up to $1,500,000 per year in an additional allocation of CDT revenues once a convention
hotel opens, with such additional payments to the City continuing annually until 2048; and
WHEREAS, on January 27,2015, the City Commission authorized the issuance of
Request for Proposals No. 2015-103-ME for the Development of a Headquarter Convention
Hotel Adjacent to the Miami Beach Convention Center (the RFP), with an opening date of April
10,2015; and
WHEREAS, the RFP solicited proposals for the development of an approximately (but
not to exceed) 800-room hotel and related hotel facilities (the "Hotel") on approximately 2.65
acres on the 1700 block of Convention Center Drive, bounded roughly by the Miami Beach
Convention Center to the North, 17th Street to the South, the Fillmore Miami Beach at the
Jackie Gleason Theater to the East, and Convention Center Drive to the West, as described in
Appendix 2 to the July 31 , 2015 Commission Memorandum accompanying this Resolution (the
"Leased Property"); and
WHEREAS, the City received proposals from the following firms: (1) Portman Holdings,
LLC; and (2) Oxford Capital Group/RLB Swerdling ("Oxford Capital"); and
WHEREAS, on April 21,2015, the City Manager notified Oxford Capital that its proposal
was not responsive to the RFP's minimum requirements; and
WHEREAS, on April 29,2015, the City Manager, via Letter to Commission (LTC) No.
176-2015, appointed an Evaluation Committee (the "Committee"), which convened on May 7,
2015 to interview the Portman Holdings team and consider its proposal; and
WHEREAS, on May 20,2015, the Mayor and City Commission approved Resolution No.
2015-29029, authorizing the Administration to negotiate a Development and Ground Lease
Agreement, including a Room Block Agreement (collectively, the "Lease") with Portman
Holdings, LLC, with said Lease subject to prior approval by the Mayor and City Commission
before the final execution thereof; and
WHEREAS, as contemplated by the RFP, Portman Holdings has created a single-
purpose limited liability company, Portman Miami Beach, LLC ("Portman") to serve as Lessee;
and
WHEREAS, if approved by the City Commission, the Lease is also subject to approval
by vote of at least 60% of the voters voting thereon in a City-wide referendum, pursuant to
Section 1.03(bX3) of the City Charter; and
96
WHEREAS, on June 3,2015, the Finance and Citywide Projects Committee reviewed
and approved the terms of the proposed Lease, as required pursuant to Section 82-37(a)(1) of
the City Code; and
WHEREAS, the Planning Department has completed a planning analysis, attached as
Appendix 5 to the July 31 , 2015 Commission Memorandum accompanying this Resolution,
using the criteria set forth in Section 82-39 of the City Code; and
WHEREAS, as part of the Lease, Portman will also be seeking to enter into a
development agreement with the City pursuant to Sections 163.3220 - 163.3243, Florida
Statutes, to memorialize, among other provisions, the terms and conditions for the development
of the Hotel Project (as hereinafter defined); and
WHEREAS, Sections 163.3220 - 163.3243, Florida Statutes, and Section 118-4 of the
City's Code require two public hearings for a development agreement, and Section 82-37(a)(2)
of the City Code also requires two readings of the proposed Lease, with the second reading to
be accompanied by a public hearing; and
WHEREAS, the Administration and Portman have negotiated the Lease, attached as
Appendix 1 to the July 31 ,2015 Commission Memorandum accompanying this Resolution, and
incorporated herein by reference; and
WHEREAS, the Administration and Portman have negotiated the Room Block
Agreement, attached as Exhibit "L" to the Lease; and
WHEREAS, the Lease provides, among other provisions, the following terms and
conditions:
a. The Hotel will include approximately (but not to exceed) 800 rooms, up to 95,000 square
feet of meeting facilities, up to 37,400 square feet of restaurant facilities, 320 parking
spaces (.4 parking spaces per room, as required by the City's Land Development
Regulations), the installation of all furniture, fixtures and equipment required for the
Hotel, an overhead pedestrian walkway connecting the Hotel with the MBCC
("Skybridge"), and all supporting amenities and related facilities (collectively, the "Hotel
Project"), with a maximum height for the Hotel Project of up to 300 feet (in accordance
with the City's Land Development Regulations); and
b. Portman will be solely responsible for all costs and expenses to develop, design,
construct, finance, equip and operate the Hotel Project, with no City funding or financing
for the Hotel Project; and
c. The Lease includes the City's approval, in its proprietary capacity as owner of the
Leased Property, of the preliminary concept design for the Hotel Project attached as
Exhibit "E" to the Lease. Notwithstanding the preceding, and in further recognition that
the design for the Hotel Project will evolve as part of the City's regulatory development
process, including review and approval by the City's Design Review Board, the Lease
also requires the City's approval of substantial design changes to the Hotel Project,
including any change that materially affects the exterior fagade or other exterior
elements of the Hotel Project; and
97
d.The term of the Lease is for a period of 99 years, commencing once Portman meets
certain key milestones with respect to the development and financing of the Hotel
Project (referred to in the Lease as Possession Conditions); and
The Leased Property cannot be used as a Gaming Establishment (i.e. casinos or other
gambling or wagering activities), and Portman and/or subsequent owners of the Hotel
Project cannot own, manage or operate a Gaming Establishment in Miami-Dade County.
The Lease provides that the foregoing provisions cannot be amended without a 6l7th
vote of the City Commission and approval by at least sixty percent (60%) of the voters
voting thereon in a City-wide referendum; and
The Leased Property must be continuously operated as a Hotel. The hotel brand, or
"flag" of the Hotel, must be an "Approved Brand," which may include Marriott, Westin,
Omni, Hyatt Regency, Sheraton, La Meridien, Hilton, or any other brand approved by the
City, in its sole discretion. The Hotel must be developed and operated so as to be able
to obtain and continuously maintain a four-diamond rating from the American Automobile
Association ("AAA") (the "Hotel Standards"); and
The Hotel Operator must either be an Approved Brand or a management company with
a franchise agreement with an Approved Brand. The Hotel Operator must operate the
Hotel in accordance with the Hotel Standards and must comply with the Room Block
Agreement; and
As of the Rent Commencement Date (defined in the Lease as the later of (i) the Hotel's
Opening Date, and (ii) the completion of construction at the MBCC such that the four
main exhibition halls may be used for events), the City will receive, as annual Base Rent,
the greater of (x) Minimum Fixed Rent (as specified in the Lease), or (y) a fixed
percentage of the Gross Operating Revenues of the Hotel Project, with such Gross
Operating Revenues defined to include all revenues and income from gross room sales,
gross food and beverage sales (whether a food and beverage establishment is operated
by Lessee or a Subtenant), catering receipts, internet services charges, in-room video
charges, parking and valet service receipts, among other revenues; and
After the end of the Third Rent Year (as defined in the Lease) and for each year of the
Term thereafter, the City will receive annual Base Rent, in the amount of the greater of
(x) the Minimum Fixed Rent or (y) 2.5% of Gross Operating Revenues; and
The City will also receive, as Additional Base Rent, up to 2.5o/o of Gross Operating
Revenues if certain projected Gross Operating Revenue hurdles/targets are exceeded;
and
The City will also receive Transaction Rent, in the amount of a fixed percentage of the
gross sales price of the first three Transfers of the Hotel Project that effect a sale of the
entire Hotel Project or a transfer of a controlling interest (more than 50% interest) in the
Lessee; provided that with the first such Transfer, Transaction Rent is only due if the
gross sales price exceeds $580 million (or pro rata portion if the first Transfer is of a
controlling interest in Lessee); and
With respect to all Transfers and, in particular, Transfers effecting a sale of the Hotel
Project or a Controlling interest in Lessee, the City shall have the right to approve
Transfers in accordance with the Acceptable Owner criteria and process outlined in
f.
g.
h.
J.
k.
98
Exhibit "A" of the Lease, including limitations with respect to Transfers to Foreign
I nstrumentalities; and
The City's rights and interest in the Lease, including with respect to all Rent payments,
will not be subordinate to any debt, mortgage, lien or encumbrance placed on Portman's
(or any subsequent owner's) interest in the Lease; and
Throughout the Term of the Lease, Portman (or any subsequent Lessee) must pay all
applicable ad valorem taxes and other public charges, with no tax abatements or
subsidies of any kind provided by the City; and
NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CITY
COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, that the Mayor and City
Commission hereby approve, following first reading/public hearing, a Development and Ground
Lease Agreement, as authorized, respectively, under Section 118-4 of the City Code, Sections
163.3220 - 163.3243, Florida Statutes, and Section 82-37 of the City Code, between the City
and Portman Miami Beach, LLC ("Portman"), for the development of an 800-room convention
headquarter hotel and related facilities, including up to 95,000 square feet of conference and
ballroom facilities, and up to 37,400 square feet of restaurant facilities (the "Hotel"), on an
approximately 2.65 acre site on the 1700 block of Convention Center Drive and bounded
roughly by the Miami Beach Convention Center to the North, 17th Street to the South, the
Fillmore Miami Beach at the Jackie Gleason Theater to the East, and Convention Center Drive
to the West (the "Leased Property"); delineating the conditions for the design, construction,
equipping and operation of the Hotel on the Leased Property, with no City funding therefor;
providing for a 99-year term of the Leased Property once certain conditions are satisfied;
prohibiting gambling establishments on the Leased Property; and providing for base rent to the
City once the Hotel opens, including, after the Hotel's opening, a fixed percentage of the gross
revenues of the Hotel; and further setting the second public hearing and final reading of the
Development and Ground Lease Agreement for a time certain.
PASSED AND ADOPTED this _ day of 2015.
ATTEST:
Rafael E. Granado, City Clerk Philip Levine, Mayor
APPMVEDAS TO
FORM & I.ANGUAGE
&TOR EXECUTION
m.
n.
L,IJ
99
APPENDIX 1
100
Appendix 1
DEVELOPMENT AND GROUND LEASE AGREEMENT
between
PORTMAN MIAMI BEACH, LLG, A
Delaware limited !iability company
and
CITY OF MIAMI BEACH, A
Florida municipal corporation
July 17, 2015 Draft
101
July 17,2015 Draft
TABLE OF CONTENTS
VOTER REFERENDUM, EFFECTTVE DATE AND DEFINITIONS .....................2
SEcroN 1.1. VorER REFERENDUM REeutR8MENr................. ...................2
THE HOTEL PROJECT |MPROVEMENTS................ .............18
Secrroru 2.1. DEVELoPMENTAND CoNFoRMtryoF PLANS .......................19
SEcroN 2.3. LESSTT's HorEL PRoJEcr OsLrGnrroNS... ...........................19
Srcrroru 2.4. PAyMENT oF HorEL PRoJEcr Cosrs............. .....................19
SEcroN 2.5. FtNANctNG MATTERS. .........20
Secrroru 2.6. No CLAM FoR VALUE or Lessrr lvpnoveruerurs ................2L
SECTToN 2.7. Scneoulr oF PERFoRMANCE .................. .........................21
SEcrroN 2.9. PRocRESS or Corusrnucrroru/Crrt's Rrpnrsrrurnrrve.................... ...........23
SEcrroru 2.11. Couruecrror oF BulLDtNGs ro UT|L|IES......... ...................24
Srclorrr 2.13. Cttv nuo Lrsser ro iorr'r rru Crnrnrru Acrrors ....................2s
LAND USES AND DEVELOPMENT OBUGATTONS ...............25
Srcrroru 3.1. CovErunrur REGARDTNG IAND UsES...... .......25
Srcrtoru 3.2. APPLtcATToNS FoR DEVELopMENT AppRovALs Aruo DevElopvrtNT PERMtrs..... ...................25
SECTToN 3.4. Coltpunrucr wtrH Locel REGULAToNS REGARDTNG DevELopvrrur PrRnarrs.......... ............26
SEcrroru 3.5. Corusrsrrrvcy wrrn rnr Crry's CovrpRgHrnsrvE PLAN ............ ....................26
Srcrroru 3.6. PRESENTLY Penurrro DEVELoPMENT. ........26
SECTToN 3.7. PugLrc FacrurrrsroSERVETHE LEASED PRopERTy.................. ..................26
SEcroN3.8. PuBLrcRESERVATIoNS,DEDtcATtoNS...............
SEcrroru 3.9. RreurnEo DEVELopMENT PEnvrrs .............26
Srcrroru 3.10. Rrspor'tsrgLe WAGES AND Locel Evrpr_oynaENr................ ........................27
SEcrror 3.11. Laws GovrnrrrG THts LEASE ....................27
Secloru 3.12. DuRAloN oF DEVELopMENT RIGHTS ..........27
Secrroru 3.L3. Lrssrr's RTGHT oF TERMINATIoN........... ...........................27
SECTToN 4.1. LEASE oF LrasEo PRoprnry ro.............. ...........................27
SEcroN 4.4. RENT AND OrHe R Pnyuerurs .................. .........................33
SEcroN 4.5. Coverunrurs FoR PAYMENT oF PuBLtc CHARGES sv LEssrr ..........................39
Secrroru 5.1. PuRposE or RrsrnrcT|olrrs oN TRANSFER. ..........................39
102
July 17,2015 Draft
SECTIoN 5.4. TnarusreR RreurRrr.rc Crrv's Appnova1.................... .........4t
Se crror 5.5. Errrcrrvrress oF TRANSFERS ....................47
..........42
MORTGAGE FINANCING; RIGHTS OF MORTGAGEE AND IESSEE.......... .......................42
Secrroru 6.1. Couorrrors or Frruarucrruc nND LEASEHoLD MoRTGAGE ............................42
Secrroru 6.2. No Wrrvrn or Lrssrr's OaucarroNs oR Crrv's RrGHrs ........... .................48
REMEDIES; EVENTS OF DEFAULT. ................48
Secrror 7.2. REMEDTES FoR LESSEE's DEFAULT......... .......51
Srcrror.i 7.4. FoRcE MAJEURE aruo Ecorrrolrrc Foncr Mn:ruar ..............54
Srcrrou 7.5. REMEDTES Currrunrrvr; WnrvrR.......... ............................54
SECTToN 7.7. RooM BLocK AGREEMENT ........................55
Secrroru 7.9. Expeorrro ARBTTRATToN or DEvEr-opveruT DrspurEs. .........55
Secrroru 7.10. DrspurEs RrGnRorruG DrsappnovrL oF A PRoposED BRAND oR PRoposro TnarusFEREE..............................58
PROTECTION AGAINST MECHANICS' tI ENS ..............
AND OTHER CLAIMS; |NDEMN|F|CAT|ON............ .............59
Secrroru 8.1. LESSEE'S Duryro KEEP PRoJECT FREE oF 1|ENS.............. ...........................59
Secrror 8.4. ENVTRoNMENTAL MATTERS....... .................61
INSURANCE AND RECONSTRUCTION.... .......54
Secrrorv 9.4. PREMTUMS AND RENEWALS ........................66
SEcrroru 9.5. ADEeuAcy Or lrusunerucr Covrnecr .........66
Srcrrorv 9.6. Crry MAy PRocuRE INSURANCE rF LESSEE FnrsTo Do So............ ..............66
Secrroru 9.7. EFFEcT oF Loss on DAMAGE......... .............67
Secrroru 9.11. WATvER or SugRoenrroN................... ............................69
Secrroru 9.12. lNADEeuAcy or lrusuneruce Pnoceros....... .......................69
Secrroru 9.13. No Crrv OeLrcnrrolr ro PRovrDE Pnoprnw lrsunarucr ............................69
Secrror 10.3. RESToRATToN ArreR CoruoevNATroN........... ....................70
103
July 17,2015 Draft
SECTToN 10.6. PAyMENT oF FeEs aruo Cosrs............. .......77
QUTET ENJOYMENT AND OWNERSHTP OF |MPROVEMENTS......... .........7L
SEcloN 11.3. MATNTENANcE AND OpERATtoN or lvpRove uElrrs .................. ................7L
SEcloN 11.4. OwruensHrp oF IMpRovEMENTS DURING lrasr.............. ...........................72
SEcroN 11.5. SunnrruoEn oF LEASED PRopERry........ .......72
MATNTENANCE AND REPATRS .................. ........................72
SEcroN 12.5. MATNTENANcEAND REpAIRS..... .................73
SECTToN 12.7. Wrre n nruo Sewrnne r Svsrev ........... ............................74
SEcloN 12.10. FatuRr oF LESSEE To MATNTATN ................74
SEcroN 13.2. Covrrvarur ro Corurrruuousr-y Oprnarr Horr1............. ............................75
SEcroN L4.1. No PARTNERSHTP oR JorNr VENrURE................ .................76
Srcrroru 14.2. RECoRDTNG, Docuvrrurnny Sravps ..........76
SECTToN 14.3. Fr-oRroneruo LocAL LAWS Pnrvnt.......... .........................77
Secrroru 14.7. PRovrsror,ls Nor MERGED wrrH Drro .........78
SECTToN 14.8. Trrlrs or AnrrcLEs AND SEcrrorus ..............79
Secrroru 14.10. Succrssons anD AssrGNS; No THrno Pnnry BrruerrcrARtES.............. ..........79
SECTToN 14.13. Nor,r-SuaonorNrATroN oF Crry's lrureResr ..........................80
SEcroN 14.14. Crrv MnnnegR's DELEGATED AurHonrw. .........................80
SEcroN 14.17. No Lrnarury FoR AppRovALS AND INSPECT|oNS................... .....................80
Srcrroru 14.22. Wervrn oF CoNSEQUENT|AL DAMAGES .......81
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July 17,2015 Draft
List of Exhibits
EXHIBIT "A" Acceptable Owner Definition
EXHIBIT "B" Hotel Standards
EXHIBIT "C" Budgeted lmprovement Costs
EXHIBIT "D" Legal Description of Hotel Site...........
EXHIBIT "E" Approved Plans
EXHIBIT "F" Schedule of Performance
EXHIBIT "G" Form of Easements...............
EXHIBIT "H" Presently Permitted Development ............
EXHIBIT "1" Public Facilities
EXHIBIT "J" Public Reservations and Dedications........
EXHIBIT "K" Required Development Permits and Variances
EXHIBIT "L" Room Block Agreement..........
EXHIBIT "M" Ownership lnterests in Lessee
EXHIBIT "N" Uniform System Summary of Operating Statement................
EXHIBIT "O" Transaction Rent..
EXHIBIT "P" Location of Geothermal System
EXHIBIT "Q" RESERVED
EXHIBIT "R" Minimum Fixed Rent..........
EXHIBIT "S" Mandatory Hotel Project Design Elements
EXHIBIT "T" Lessee's LLC Documents
EXHIBIT "U" Fillmore Theater Parking
lExhibit paqes to be numbered prior to execution of Leasel
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July'17,2015 Draft
DEVELOPMENT AND GROUND LEASE AGREEMENT
THIS DEVELOPMENT AND GROUND LEASE AGREEMENT ("Lease") is executed as
of the day of ,2015, by and between the CITY OF MIAMI BEACH,
FLORIDA, a municipal corporation (the "City") and PORTMAN MIAMI BEACH, LLC, a Delaware
limited liability company (the "Lessee").
REGITALS:
A. The City has a material interest in maximizing the performance of the Miami
Beach Convention Center (as hereinafter defined in Section 1.3) and encouraging convention
and tourism business in the City. To further those goals, the City desires to facilitate
development of an adjacent full service convention center headquarter hotel on real property
owned by the City and described more fully in Exhibit "D" hereto, to be connected to the
Convention Center by an enclosed overhead pedestrian Skybridge (as hereinafter defined in
Section 1.3).
B. The City is a Florida municipal corporation with powers and authority conferred
underthe Florida Constitution, the Municipal Home Rule PowersActsetforth in Chapter 166of
the Florida Statutes, and the Miami Beach City Charter and Code of Ordinances (the "City
Code"). The City has allgovernmental, corporate and proprietary powers to enable it to conduct
municipal government, perform municipal and governmental functions, and render municipal
services, including the authority to adopt, implement and enforce (together with any other
required Governmental Approvals) comprehensive plans, zoning ordinances, redevelopment
plans, and other police power and legislative measures necessary to assure the health, safety
and general welfare of the City and its inhabitants.
C. This Lease, among other things, is intended to and shall constitute a
development agreement between the parties pursuant to Sections 163.3220-163.3243, Florida
Statutes, the "Florida Local Government Development Agreement Act" and Section 118-4 of the
City's Code.
D. On or about January 29, 2015, the City issued Request for Proposal No. 2015-
103-ME, for the Development of a Convention Hotel Adjacent to the Miami Beach Convention
Center ('RFP'). After a competitive RFP process, and the City having fully considered this
Lease at two duly noticed public hearings in compliance with Section 163.3225 of the Act;
having determined that the Hotel Project (as hereinafter defined in Section 1.3) and this Lease
are in compliance with the City's Comprehensive Plan and Land Development Regulations (as
each are hereinafter defined in Section 1.3) as of _,2015; and having further determined
that it is in the City's best interest to address the issues covered by this Lease in a
comprehensive manner, in compliance with all applicable laws, ordinances, plans, rules and
regulations of the City, the City has agreed to enter into this Lease with the Lessee, subject to
the terms and conditions herein.
E. On _, the City Commission, by Resolution Number R-_, approved
the execution of this Lease.
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July 17,2015Dratl
NOW THEREFORE, for and in consideration of the foregoing, and of the mutual
covenants and agreements contained herein, the parties agree as follows:
ARTICLE I
VOTER REFERENDUM. EFFECTIVE DATE AND DEFINITIONS
Section 1.1. Voter Referendum Requirement. The parties acknowledge and agree that,
pursuant to Section 1.03(bX3) of the City Code, this Lease and the obligations herein are
subject to and contingent upon the approval of this Lease by vote of at least sixty percent (60%)
of the voters voting thereon in a City-wide referendum ("Referendum"). ln the event the
Referendum is not successful, or if the ballot question is removed or election results are
invalidated by a court of competent jurisdiction, this Lease shall be deemed null and void and
the parties shall have no obligations or liabilities of any kind or nature whatsoever hereunder.
Section 1.2. Effective Date. lf the Referendum is successful and all requirements of the City
Code and applicable law are satisfied, this Lease shall be effective upon the City Commission's
adoption of a resolution accepting the certification of the official results of the November 3, 2015
election with respect to the Referendum ("Effective Date").
Section 1.3. Defined Terms. As used herein the term:
"Acceptable Owner" has the meaning ascribed to it in Exhibit "A".
"Additional Base Rent" shall have the meaning ascribed to it in Section a.a@).
"A(!![U.W,L@!" means any and all payments required of Lessee to the City by the terms of
this Lease other than Base Rent.
"Affilg[e" means, regarding any Person:
(a) any other Person directly or indirectly Controlling, Controlled by or under
common Controlwith such Person;
(b)
Person; or
any officer, director, general partner, member, manager or trustee of such
(c) any other Person who is an officer, director, general partner, member, manager
or trustee of such Person described in clauses (a) or (b) of this sentence.
When used in reference to Lessee, for so long as Portman Holdings, LLC (or any of its
Affiliates) holds an interest, directly or indirectly, in Lessee, "Affiliate" shall include any Person
Controlling, Controlled by, or under common Control with Portman Holdings, LLC.
2
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July 17,2015 Draft
"Approval. Approve or Aoproved" means the written approval or consent of a Party, which
unless othenruise specified herein by reference to "sole discretion" or words of similar effect,
shall be commercially reasonable and made in good faith and with due diligence.
"{p.re,red_p1an!" means (a) each of the following national hotel operators but only if its
reputation for quality and quality of operation, at the time Lessee engages such operator, is
generally known and recognized by the hotel industry as not having substantially declined, as of
the time in question, in comparison to their reputation for quality and quality of operation as of
the Effective Date: Marriott (i.e., the Marriott, Marriott Marquis or JW Marriott brands), Westin,
Omni, Hyatt Regency, Sheraton, La Meridien, or Hilton, or (b) any other hotel operator
Approved by City in its reasonable discretion.
"Approved Ooerator" means (a) any Approved Brand or (b) any management company
approved by the Approved Brand to serve as the Hotel Operator pursuant to a franchise
agreement with the Approved Brand.
"Approved Plans" means the renderings and diagrams attached hereto as Exhibit "E" depicting
the Mandatory Hotel Project Design Elements (other than the Skybridge), which renderings and
diagrams the City has Approved as of the Effective Date, as may be modified from time to time
in accordance with the terms of this Lease.
"Approved Skvbridqe and Off-Site lmprovements Plans" means the renderings and diagrams
depicting the Skybridge and Off-Site lmprovements to be Approved by the City Manager prior to
the Possession Date, which, following Approval by the City Manager, may be modified from time
to time in the same manner as the Approved Plans in accordance with the terms of this Lease.
The Skybridge will have finishes consistent with the finishes in the connecting point in the
Convention Center. The repairs to the Fillmore Theater as part of the Off-Site lmprovements will
be done consistently with the quality of the Fillmore Theater prior to the work being done by
Lessee in connection with the Hotel Project.
"Arbitrator" shall have the meaning ascribed to it in Section 7.10(a).
..,,meanSanassignmentfromLessee,asassignor,to
the City, as assignee, assigning in favor of the City all of Lessee's right, title and interest in and
to all contracts and agreements (other than the Hotel Project General Construction Contract and
the Assignment of Plans and Approvals) executed in connection with the design, construction
and equipping of the Hotel Project prior to the Completion of Construction, including such
contracts and agreements with design professionals, on a non-recourse basis without any
warranties or representations from Lessee, which assignment shall be in form and substance
reasonably satisfactory to the City (together with any necessary consents required in connection
with such assignment), which assignment shall be an absolute assignment from Lessee to the
City, provided that for so long as no Event of Default has occurred and is continuing hereunder,
the City shall give Lessee a license of all such contracts and agreements, with the right to
enforce all of the terms thereof, for the duration of the Term; provided, further that for so long as
a First Leasehold Mortgage encumbers the Hotel Project, the City agrees to permit Lessee to
make a pari passu assignment of such contracts and agreements to such First Leasehold
108
July 17,2015 Draft
Mortgagee (which First Leasehold Mortgagee shall have priority with respect thereto pursuant to
the non-disturbance and attornment agreement entered into pursuant to Section 6.1(b) hereof).
"Assiqnment of Hotel Proiect General Construction Contract" means an assignment from
Lessee, as assignor, to the City, as assignee, assigning in favor of the City all of Lessee's right,
title and interest in and to the Hotel Project General Construction Contract, which assignment
shall include a duly executed consent by the Hotel Project General Contractor and shall
otherwise be in form and substance reasonably satisfactory to the City (together with any
necessary consents required in connection with such assignment), which assignment shall be
an absolute assignment from Lessee to the City, provided that for so long as no Event of Default
has occurred and is continuing hereunder, the City shall give Lessee a license of the Hotel
Project General Construction Contract, with the right to enforce all of the terms thereof, for the
duration of the Term; provided, further that for so long as a First Leasehold Mortgage
encumbers the Hotel Project, the City agrees to permit Lessee to make a pari passu assignment
of the Hotel Project General Construction Contract to such First Leasehold Mortgagee (which
First Leasehold Mortgagee shall have priority with respect thereto pursuant to the non-
disturbance and attornment agreement entered into pursuant to Section 6.1(b) hereof).
"Assiqnment of Plans and Aporovals" means an assignment from Lessee, as assignor, to the
City, as assignee, assigning in favor of the City all of Lessee's right, title and interest in and to
all Approved Plans, designs, Governmental Approvals and other work product produced by
Lessee and any other Person for use in the development, construction and operation of the
Work, which assignment shall include a duly executed consent by each Person other than the
Lessee having an interest in such Approved Plans, designs, Governmental Approvals and other
work product and shall othenruise be in form and substance reasonably satisfactory to the City
(together with any necessary consents required in connection with such assignment), which
assignment shall be an absolute assignment from Lessee to the City, provided that for so long
as no Event of Default has occurred and is continuing hereunder, the City shall give Lessee a
license of all such Approved Plans, designs, Governmental Approvals and other work product
assigned to the City for the duration of the Term; provided, further that for so long as a First
Leasehold Mortgage encumbers the Hotel Project, the City agrees to permit Lessee to make a
pari passu assignment of such Approved Plans, designs, Governmental Approvals and other
work product to such First Leasehold Mortgagee (which First Leasehold Mortgagee shall have
priority with respect thereto pursuant to the non-disturbance and attornment agreement entered
into pursuant to Section 6.1(b) hereof).
"Audited Gross Operatinq Revenues Schedule" means a schedule prepared in accordance with
GAAP and GAAS, and showing all Gross Operating Revenues for a Lease Year. Such Audited
Gross Operating Revenues shall be based on Lessee's audited financial statements for such
Lease Year.
"Bankruptcv Code" means Title 11 of the United States Code entitled "Bankruptcy," as
amended.
4
109
July 17,2015 Draft
"Base Rent" shall have the meaning ascribed to it in Section a.a@).
"Brand Aoprovals" means the written confirmation from the lnitial Hotel Operator approving the
design of the Hotel Project, and, prior to Opening, approving the FF&E to be installed in the
Hotel Project.
"Budqeted lmprovement Costs" means the estimated lmprovement Costs as of the date hereof,
as set forth in Exhibit "C".
"Business Dav" means a day other than a Saturday, a Sunday or a day on which the offices of
the City, or national banks in Miami-Dade County, Florida are closed for business.
"Certificate of Occupancv" means a certificate of occupancy or certificate of completion, as
applicable, for the buildings and structures on the Leased Property, and shall include any such
certificate designated as "Temporary" in nature, provided it allows for occupancy of the Hotel by
paying guests.
"Q!!y" shall mean the City of Miami Beach, a Florida municipal corporation, having its principal
offices at 1700 Convention Center Drive, Miami Beach, Florida 33139. ln all respects
hereunder, City's obligations and performance is pursuant to City's position as the owner of the
Hotel Site acting in its proprietary capacity. ln the event City exercises its regulatory authority
as a governmental body, the exercise of such regulatory authority and the enforcement of any
rules, regulations, laws and ordinances (including through the exercise of the City's building,
fire, code enforcement, police department or othenrrvise) shall be deemed to have occurred
pursuant to City's regulatory authority as a governmental body and shall not be attributable in
any manner to City as a party to this Lease or in any way be deemed in conflict with, or a default
under, the City's obligations hereunder.
"Citv Code" has the meaning ascribed to it in the recitals hereto.
"Citv Commission" shall mean the governing and legislative body of the City.
"Citv Delavs" shall mean the number of days in which the City performs any obligation under
Section 2.13 hereof in excess of the number of days set forth for such performance therein.
"9!ly_f{glg.rel' shall mean the Chief Administrative Otficer of the City. The City Manager shall
be construed to include any duly authorized representatives designated in writing with respect to
any specific matter(s) concerning this Lease (exclusive of those authorizations reserved to the
City Commission or regulatory or administrative bodies having jurisdiction over any matter(s)
related to this Lease).
"City's Reoresentative" has the meaning ascribed to it in Section 2.9(b).
"Commence Construction" or "Commencement of Construction" means, with respect to the
Hotel Project, the commencement of bona-fide pouring of the concrete foundation for the Hotel
Project, provided that the pour is completed in the ordinary course.
"Commencement of Construction of the MBCC Proiect" means the commencement of
construction of the MBCC Project, as evidenced by the execution of the guaranteed maximum
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July 17,2015Draft
price amendment to the construction contract between the City and Clark Construction Group,
LLC and the issuance by the City of a notice to proceed thereunder.
"Comolete Construction" or "Completion of Construction" means the date Lessee has completed
the Hotel Project substantially in accordance with the requirements of the Approved Plans and
all conditions of permits and regulatory agencies have been satisfied, all Governmental
Authorities have issued a Certificate of Occupancy, the Hotel has been accepted by the Hotel
Operator, and the Hotel Project is ready for occupancy, utilization and continuous commercial
operation for the uses and purposes intended by this Lease, without material interference from
incomplete or improperly completed Work, and substantially all of the FF&E required for the
Opening Date has been purchased, delivered to and installed in the Hotel Project.
"Comprehensive PIan" means the comprehensive plan which the City Commission has adopted
and implemented for the redevelopment and continuing development of the City pursuant to
Chapter 163 Part ll, of the Florida Statutes.
..@,,shallhavethemeaningascribedtoitinSection3.3.
"Construction Lender" means the lnstitutional Lender selected by Lessee to provide the
Construction Loan.
"Construction Loan" means the loan or loans to be provided by the Construction Lende(s) to
the Lessee for development and construction of the Hotel Project in an aggregate amount not
more than 65% of the Budgeted lmprovement Costs.
"Construction Loan Commitment" means a financing commitment by the Construction Lender
that has been executed and delivered by and between Lessee and the Construction Lender(s)
that confirms availability of the Construction Loan to fund the construction of the Hotel Project in
accordance with the requirements of this Lease.
"Con[ro!," "Controllino" or "Controlled" means the possession, directly or indirectly, of the power
to direct or cause the direction of the management and policies of a Person, whether through
the ownership of voting securities, by contract, by Governmental Requirements or otherwise, or
the power to elect in excess of fifty percent (50%) of the directors, managers, general partners
or other Persons exercising similar authority with respect to such Person (it being acknowledged
that a Person shall not be deemed to lack Control of another Person even though certain
decisions may be subject to "major decision" consent or approval rights of limited partners,
shareholders or members, as applicable).
"Convention Cented'means the Miami Beach Convention Center located at 1901 Convention
Center Drive, Miami Beach, Florida, 33139.
"Corrective Action Work" has the meaning ascribed to it in Section B.a(a)(vii).
"%" means a national firm of certified public accountants Approved by the City Manager,
used by Lessee for the purpose of certifying the annual reports, its financial condition or for any
other purpose specified herein.
"Credit Enhancement" means a credit enhancement with respect to, or guaranty of, the
financing for the Hotel provided by a Hotel Operator, or an Affiliate thereof.
b
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July 17,20'15 Draft
"Debt Service Coveraqe Ratio" means the ratio of: (i) Gross Operating Profit for the previous
twelve (12) months; to (ii) the amount of Debt Service Payments actually required to be paid in
such twelve (12) months. For example, if Gross Operating Revenues for a particular twelve (12)
months equal $3,700,000, Project Expenses equal $1,000,000 and Debt Service Payments
actually required to be paid equal $1,800,000, the Debt Service Coverage Ratio for that twelve
(12) months would be 1.50.
"Debt Service Pavments" means all principal, interest and other sums and amounts paid or
payable by Lessee for or during the applicable or pertinent period, in connection with any debt
secured by a Leasehold Mortgage.
''@''meanSaninterestrateequaltofivepercent(5%)perannumabovethehighest
annual prime rate (or base rate) published from time-to{ime in The Wall Street Journal under
the heading "Money Rates" or any successor heading as being the rate in effect for corporate
loans at large U.S. money center commercial banks (whether or not such rate has actually been
charged by any such bank) or if such rate is no longer published, then the highest annual rate
charged from time-to-time at a large U.S. money center commercial bank, selected by the City,
on short term, unsecured loans to its most creditworthy large corporate borrowers.
"El!gig!gy" shall have the meaning ascribed to it in Section 7.2(bxii).
"Development Arbitrator" shall have the meaning ascribed to it in Section 7.9(b).
"Development Dispute" means any dispute between Lessee and City (acting in its proprietary
capacity) arising prior to the Opening Date with respect to (i) whether a modification to the Hotel
Project is a substantial deviation from the Approved Plans or a Prohibited Hotel Project Change
requiring City's Approval pursuant to Section 2.2; (ii) any contention that City has unreasonably
failed to Approve modifications to the Approved Plans in accordance with this Lease; (iii) any
contention that City has unreasonably failed to Approve the proposed Approved Skybridge and
Off-Site lmprovements Plans or modifications thereto in accordance with this Lease; (iv) any
contention that City has unreasonably failed to Approve a Hotel Project General Contractor in
accordance with Section 2.8(b); (v) any disagreement as to permitted delays in the Schedule of
Performance pursuant to Section 2.7, or (vi) any disagreement as to the cost or scheduling
impact of a change in the location of the geothermal system as provided in Section 2.11(c).
"Development Order" means any order granting, denying, or granting with conditions an
application for a Development Permit.
"Development Permit" shall have the meaning set forth in Section 163.3221(5), Florida Statutes
(2014).
"Economic Force Maieure" means economic or political conditions or events that materially
impair access to debt or equity markets by developers for development of projects in the United
States similar to the Hotel Project or allow a committed debt or equity participant to terminate its
debt or equity commitment, such as a temporary or long term liquidity crisis or major recession.
"EffecllveDale" has the meaning ascribed to in Section 1.2.
''@''hasthemeaningascribedtoitinSectionB'4.
"Environmental Claim" has the meaning ascribed to it in Section 8.4.
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July 17,2015 Draft
"Environmental Laws" has the meaning ascribed to it in Section 8.4.
''@''hasthemeaningascribedtoitinSection8.4.
"Environmental Requirements" has the meaning ascribed to it in Section 8.4.
"Equitv Commitment" means the commitment of Lessee to contribute an amount in cash to pay
lmprovement Costs as may be necessary, at the time of determination, when combined with the
lnitial Hotel Operator Financial Commitment and the proceeds available under the Construction
Loan and Mezzanine Loan, if any, to maintain the Hotel Project ln Balance, a portion of which
Equity Commitment shall be funded by the Portman Estimated Equity Contribution but in no
event less than the Portman Minimum Equity Contribution.
"Event of Default" has the meaning ascribed to it in Article Vll.
means the furniture, fixtures and equipment for the Hotel Project to be procured and
maintained by the Lessee.
"Ej.!lmore-L@l'means the performing arts center located at 1700 Washington Avenue, Miami
Beach, Florida, adjacent to and east of the Hotel Project and also known as the "Fillmore Miami
Beach at the Jackie Gleason Theater".
"First Leasehold Mortqaqe" means a Leasehold Mortgage which is a first lien on Lessee's
interest in this Lease and the leasehold interest created hereby.
"First Leasehold Mortqaqee" means the lnstitutional Lender that is a holder of a First Leasehold
Mortgage, which shall be evidenced by, and the City shall be able to rely absolutely on, a title
report current as of the time of any determination and prepared by a generally recognized title
insurance company doing business in Miami-Dade County, Florida, or upon a certificate of
Lessee, signed and verified by a Responsible Officer of Lessee.
" !]f@f'has the meaning ascribed to it in Section 4.4(a).
"Force Maieure Event" means the following: acts of God; strikes, lockouts or other industrial
disturbances; acts of public enemies, whether actual or threatened; orders of any civil or military
authority; insurrections; riots; acts of terrorism; epidemics; landslides, earthquakes, lightning,
fires, hurricanes, storms, floods, washouts and other natural disasters; inability to procure or a
general shortage of labor, equipment, facilities, materials or supplies in the open market, or
failure or unavailability of transportation generally; or other similar extraordinary causes beyond
the commercially reasonable control of the Party claiming such inability. ln no event shall "Force
Majeure Event" include economic hardship or financial inability to perform specific to the Party
nor shall it include Economic Force Majeure.
..@,,meanSaforeign(non-U.S.)goVernmentoragencythereoforaPerson
Controlled thereby.
uGA,qpu means generally accepted accounting principles, as in effect from time to time, as
promulgated by the Financial Accounting Standards Board, consistently applied or a system
generally recognized in the United States as having replaced GAAP.
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July 17, 2015 Draft
'GAAS" means generally accepted auditing standards, as in effect from time to time, as
developed by the American lnstitute of Certified Public Accountants, consistently applied, or a
system generally recognized in the United States as having replaced GAAS.
..@,,meanSanyestablishmentofferingorotherwiseengagedingamblingor
wagering of any nature or kind.
''@''meanSallpermits,approvals,certificatesofoccupancy,notifications,
certifications, registrations, authorizations and other rights and privileges that are required by
any Governmental Authority. Notwithstanding anything to the contrary in this Lease, the Lessee
retains its rights in accordance with applicable Governmental Requirements to challenge or
appeal any denial of Governmental Approvals.
''@'.meanSanyfederal,state,county,municipalorothergovernmental
department, entity, authority, commission, board, bureau, court, agency, or any instrumentality
of any of them, with jurisdiction over the Leased Property, the Lessee lmprovements, the Work
or the Off-Site lmprovements.
''@..meanSanylaw,enactment,statute,code,order,ordinance,rule,
regulation, judgment, decree, writ, injunction, franchise, permit, certificate, license, or other
similar requirement of any Governmental Authority, now existing or hereafter enacted, adopted,
promulgated, entered, or issued, affecting the Leased Property or the construction and
operation of the Lessee lmprovements. Notwithstanding anything to the contrary in this Lease,
the Lessee retains its right to challenge Governmental Requirements in accordance with all
other applicable Governmental Requirements, including based on a constitutional objection that
a Governmental Requirement violates Lessee's constitutional rights regarding contracts.
,.@,,meanStheamountcalculatedbysubtractingProjectExpensesfrom
Gross Operating Revenues.
"Gross Operatinq Revenues" means all revenues and income of any nature derived directly or
indirectly from the Hotel or from the use or operation of the Leased Property, including gross
rooms sales, gross food and beverage sales (whether any food and beverage establishment is
operated by Lessee or a Subtenant), catering receipts, telephone, facsimile and/or internet
services, in-room video and parking and valet service receipts (whether the parking or valet
services are operated by Lessee or a Subtenant), vending machines, gross receipts, rents or
license fees from the operation by Lessee or any Affiliate of Lessee of newsstand, gift shop, or
business center, or from any other sub-lessees, concessionaires, third-parties conducting
operations on the Leased Property or other sources (except as provided in Section 5.6(c)
hereof), the fair rental value of space within the Hotel Project occupied by Lessee or any entity
affiliated with or employed by Lessee for purposes other than managing the Hotel Project (to the
extent the occupants of such space are paying less than the fair market value of such space)
and the proceeds of business interruption, other loss of income, use, occupancy or similar
insurance, as determined in accordance with GAAP (to the extent not inconsistent with the
Uniform Systems of Accounts), and the Uniform System of Accounts, and without any reduction
or allowance for uncollectable charges or bad debts. Notwithstanding the foregoing, the
following shall not constitute Gross Operating Revenues: (i) any gratuities or service charges
added to a customer's bill and distributed as compensation to the Hotel's employees; (ii) any
credits or refunds made to customers, guests or patrons; (iii) any sums and credits received for
lost or damaged merchandise; (iv) any sales taxes, excise taxes, or other similar taxes or
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July 17, 2015 Draft
charges collected by the Hotel and remitted to tax authorities; (v) any proceeds from the sale or
other disposition of FF&E or capital equipment; (vi) any interest earned with respect to the
deposit or investment of proceeds from operation of the Hotel; (vii) any fire and extended
coverage insurance proceeds (except that proceeds of business interruption or other loss of
income insurance shall be included in Gross Operating Revenues); (viii) any condemnation
awards; and (ix) any proceeds of sale or financing or refinancing of the Hotel.
"Hazardous Substance" has the meaning ascribed to it in Section 8.4.
"Hotel" means the hotel complex to be developed and constructed on the Hotel Site
substantially in accordance with the Approved Plans, which will contain approximately (but not
more than) 800, separately keyed sleeping rooms capable of individual rental on a day{o-day
overnight basis to hotel patrons and guests. For the purpose of determining the maximum
number of separately keyed sleeping rooms contained within the Hotel at any time during the
Term, each such room which is capable of being separately keyed will be deemed to be
separately keyed, without regard to the actual use thereof.
"&,tq|Qpera!gl" means and includes any Approved Operator engaged by Lessee to be
responsible for overseeing the day- to-day management of the Hotel Project (or, if at any time
there is no such operator, Lessee as operator of the Hotel Project).
"Hotel Proiect" means Lessee's leasehold created by this Lease and the development, design,
construction and purchase of the Lessee lmprovements and their subsequent use; the
completion of the Work substantially in accordance with the Approved Plans, including (1)the
Hotel and all associated infrastructure (including on-site parking and all supporting Hotel
facilities and amenities), (2)the Skybridge and all associated infrastructure, (3) the installation of
FF&E and other improvements and appurtenances of every kind and description (including all
landscaping, planting and other improvements of any type) now located or hereafter erected,
constructed or placed upon the Leased Property; and (4) any and all alterations, renewals and
replacements thereof, additions thereto and substitutions therefor.
"Hotel Proiect General Construction Contract" means the construction contract between Lessee
and the Hotel Project General Contractor for the construction of the Hotel Project in accordance
with the Approved Plans, within the contract time specified for completion of the Work, for a
guaranteed maximum price that will not exceed the sum allocated for construction of the Work
in the Budgeted lmprovement Costs, and that includes provisions requiring a Performance Bond
and Payment Bond and all other terms or conditions required under this Lease.
"Hotel Proiect General Contractor" means the duly licensed general contractor(s) engaged by
Lessee for the construction of the Hotel Project and completion of the Work.
"l-!gtg!Sltg" means the parcel of real property described in Exhibit "D".
"!!gllg.!S!andall!s" means the standards set forth in Exhibit "B".
''lEp.@,''meanStheactual,verifiablecostsandeXpenSeSpaidtothirdparties,not
Affiliates of Lessee (unless such costs paid to Affiliates of Lessee are at fair market value and
with notice to the City), in the design, permitting, development, construction and equipping of
the Hotel Project;
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"ln Balance" means, at any time in question, that the sum of (a) the then unfunded amount of
the Construction Loan available to Lessee for payment of costs of labor and materials to
achieve Completion of Construction of the Hotel Project, plus (b) the then unfunded amount of
the Mezzanine Loan, if any, available to Lessee for the payment of costs of labor and materials
to achieve Completion of Construction of the Hotel Project, plus (c) the then remaining balance
to be funded under the Equity Commitment, plus (d) the then remaining balance to be funded
under the lnitial Hotel Operator Financial Commitment, if any, plus (e) any additional cash
amounts deposited with the City by Lessee in order to fund the difference, if any, between the
sum of (a), (b), (c) and (d) above and the then remaining lmprovement Costs is adequate to pay
all of the then remaining lmprovements Costs that are reasonably likely to be incurred through
Complete Construction of the Hotel Project.
"lnitial Hotel Operato/' means the initial Hotel Operator engaged by Lessee.
"lnitial Hotel Ooerator Financial Commitment" means the commitment of the lnitial Hotel
Operator to fund, in the aggregate, cash, to be used to pay Budgeted lmprovement Costs, in
such amount as may be necessary when combined with the Equity Commitment and the
proceeds available under the Construction Loan and Mezzanine Loan, if any, to maintain the
Hotel Project ln Balance.
"lrel[!g!!onel_@!9l" means, subject to the City Manager's Approval within twenty (20) days
from receipt by the City of commercially reasonable information properly identifying the
proposed lnstitutional Lender, including its financial qualifications, any of the following entities
that have a net worth in excess of Fifty Million Dollars ($50,000,000) (as adjusted by inflation
over the Term pursuant to Section 14.20 hereof):
(a) any federal or state chartered commercial bank or national bank or any of its
subsidiaries;
(b) any federal or state chartered savings and loan association, savings bank or trust
company;
(c) any pension, retirement or welfare trust or fund, whose loans on real estate are
regulated by state or federal laws;
(d) any public limited partnerships, public real estate investment trust or other public
entity investing in commercial mortgage loans whose loans on real estate are regulated by state
or federal laws;
(e) any state licensed life insurance company in the business of making commercial
mortgage loans or a subsidiary or affiliate of any such institution whose loans on real estate are
regulated by state or federal laws;
(f) any agent, designee, or nominee of an lnstitutional Lender that is an Affiliate
(solely as described in clause (a) of the definition thereof) of any lnstitutional Lender or any
other Person that is a subsidiary or an Affiliate (solely as described in clause (a) of the definition
thereof) of an lnstitutional Lender; and
(g) Any private debt fund having assets in excess of $2 billion.
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ln the event of a syndicated loan, if fifty-one percent (51%) or more of the syndicate of lenders
are lnstitutional Lenders, then the syndicated loan shall be deemed to be made by an
lnstitutional Lender. City Manager's failure to notify Lessee of any disapproval within such
twenty (20) day period shall be deemed to constitute the City Manager's conclusive Approval of
the proposed lnstitutional Lender.
''l@fI@'.hasthemeaningascribedtoitinSection9.9(a).
"Land Development Requlations" shall have the meaning set forth in Section 163.3221(8),
Florida Statutes and shall also include the definition of "land development regulations" in
Section 114-1 of the City Code.
"Lease" means this Development and Ground Lease Agreement, and all exhibits annexed
hereto and made a part hereof, as the same may be modified or amended from time to time.
"Leased Propertv" means the Hotel Site.
''@''meanSamortgage,includinganassignmentoftherents,issuesand
profits from the Hotel Project or other security instrument in favor of a Leasehold Mortgagee,
which constitutes a lien on Lessee's leasehold interest created by this Lease during the Term.
"Leasehold Mortqaqee" means an lnstitutional Lender that is the owner and holder of a
Leasehold Mortgage.
,'@r''meanSayear,otherthanthefirstandlastyearoftheTerm,consistingoftwelve
(12) consecutive calendar months. The first Lease Year during the term of this Lease shall
commence on the Rent Commencement Date and end on December 31't of the year in which
the Rent Commencement Date occurs. The second and following Lease Years shall commence
on the 1't day of January each calend at yeat and end on December 31't of such year.
"LEED Status" means a certification by the U.S. Green Building Counsel's ('USGBC")
Leadership in Energy and Environmental Design ("LEED') that the Hotel Project has satisfied all
of the requirements associated with the then current USGBC Silver LEED certification.
ulesseeu means Portman Miami Beach, LLC, and the successors, assigns or transferees
thereof expressly Approved or permitted by the terms and provisions of this Lease. An executed
copy of Lessee's limited liability company documents is on file with the City as set forth on
Exhibit "T".
''@''meanSanyandallpermanentbuildings,structuresandmachinery,
equipment and fixtures, which are existing and may from time to time and at any time during the
Term be erected or located on the Leased Property, including the Hotel and associated
infrastructure and the Skybridge and associated infrastructure.
...@,]!9,,meanS(a)cashonhandorondepositinanyfederalorstatechartered
commercial bank or national bank or any of its subsidiaries, (b) readily marketable securities, (c)
readily marketable commercial paper rated A-1 by Standard & Poor's Corporation (or a similar
rating by any similar organization that rates commercial paper), (d) certificates of deposit issued
by commercial banks operating in the United States with maturities of one year or less, (e)
money market mutualfunds, and (f)the uncommitted amount of any available line(s) of credit.
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"Manaqement Aqreement" means the hotel operating or management agreement, as it may be
extended, supplemented, amended or replaced from time to time, between Lessee and the
Hotel Operator and which provides Lessee with the right to use the name or flag of the Hotel (if
Lessee does not otherwise have such rights), and specifies the terms and conditions applicable
to the dayto-day management of the Hotel, including the obligation of the Hotel Operator to
comply with the Room Block Agreement.
"Mandatorv Hotel Proiect Desiqn Elements" means the design features, components or other
elements of the Hotel Project to be developed by the Lessee as further described on Exhibit
rrsrr.
"M@BIgigg!" means the Miami Beach Convention Center Renovation and Expansion Project,
consisting of the renovation of the Convention Center, expansion of ballroom and auxiliary
spaces, parking levels above portions of the Convention Center, exterior landscaping and a 6.5
acre public park, the renovation of Convention Center Drive, including relocation of utilities, and
other improvements to the Convention Center and surrounding areas.
"MBCC Standard of Ooeration" means the average standard of quality for the facilities and
associated infrastructure consistent with the principal convention centers operated in Orlando,
Atlanta, New Orleans, Dallas, Houston, Boston, Chicago, San Francisco, San Diego and Los
Angeles, as of the Effective Date.
"Mezzanine Lender" means (a) the lnstitutional Lender selected by Lessee to provide the
Mezzanine Loan or (b) a Hotel Operator, or an Affiliate thereof, to the extent it is providing a
Mezzanine Loan or Credit Enhancement and is receiving a pledge of the equity interests in
Lessee.
"Mezzanine Loan" means a loan to be made by the Mezzanine Lender to the Lessee to provide
financing for the Hotel Project, subordinate to the First Leasehold Mortgagee, which may be
secured by a lien on Lessee's equity interest.
"Mezzanine Loan Commitment" means a mezzanine financing commitment by the Mezzanine
Lender that has been executed and delivered by and between Lessee and the Mezzanine
Lender that confirms the availability of the Mezzanine Loan.
"Minimum Fixed Rent" has the meaning ascribed to it in Section . (a)(i).
"Off-Site lmprovements" means any and all improvements not located on the Leased Property
shown on the Approved Plans and in accordance with the Governmental Approvals, including
demolition of any portion of the Fillmore Theater located on the Leased Property, enclosure of
any remaining portion of the Fillmore Theater located outside the Leased Property, and paving
and striping of up to twenty-five surface parking spaces for Fillmore Theater personnel as
depicted in Exhibit "U".
"9@.i!.g@!9," means the date on which the Hotel first opens for business to the general
public.
"Oriqinal Lessee lnvestors" means the owners of Lessee on the date hereof, as identified on
Exhibit "M".
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"Outside Construction Commencement Date" means November 15, 2017, by which date
Commencement of Construction must take place, as such date may be reasonably extended for
(i) a Force Majeure Event or Economic Force Majeure in accordance with this Lease, (ii) City
Delays, and/or (iii) the number of days by which Commencement of Construction of the MBCC
Project is delayed beyond January 1,2016, if any.
"Outside Construction Loan Closinq Date" means November 15,2017, as such date may be
reasonably extended in accordance with this Lease for a period not exceeding twelve (12)
months for (i) actual delays suffered by Lessee in achieving closing of the Construction Loan
caused by a Force Majeure Event or Economic Force Majeure, (ii) City Delays, and/or (iii) the
number of days by which Commencement of Construction of the MBCC Project is delayed
beyond January 1,2016, if any.
"Outside Completion Date" means September 30, 2019, by which date Completion of
Construction shall have occurred, as such date may be reasonably extended by (i) the number
of days by which the Outside Construction Commencement Date was extended, and thereafter
for (ii) a Force Majeure Event or Economic Force Majeure in accordance with this Lease, (iii)
City Delays, and/or (iv) the number of days by which completion of construction of the MBCC
Project is delayed beyond January 1, 2019, if any, but only if and to the extent such delays
preclude the Convention Center from holding events that utilize the Convention Center's four
main exhibition halls.
"Outside Openinq Date" means November 30,2019, the date by which the Opening Date must
have occurred, as such date may be reasonably extended by (i) the number of days by which
the Outside Construction Commencement Date was extended, and thereafter for (ii) a Force
Majeure Event or Economic Force Majeure in accordance with this Lease, (iii) City Delays,
and/or (iv) the number of days by which the completion of construction of the MBCC Project is
delayed beyond January 1,2019, if any, but only if and to the extent such delays preclude the
Convention Center from holding events that utilize the Convention Center's four main exhibition
halls.
"Outside Possession Date" means November 15, 2017, by which date the Possession
Conditions must be satisfied, as such date may be reasonably extended for (i) a Force Majeure
Event or Economic Force Majeure in accordance with this Lease, (ii) City Delays, and/or (iii) the
number of days by which Commencement of Construction of the MBCC Project is delayed
beyond January 1,2016, if any.
means City and Lessee, and "Party" is a reference to either City or Lessee, as the
context may indicate or require.
"Performance Bond and Pavment Bond" means a performance bond and a payment bond with
regard to the Hotel Project General Construction Contract in the full amount of the guaranteed
maximum price thereof, with a good and sufficient surety, in compliance with all applicable
Governmental Requirements and in form and content Approved by the City Manager, or such
other security as is reasonably acceptable to the City Manager, after consultation with the City
Attorney.
''@,'hasthemeaningascribedtoitinSection5.3.
'psrsoh' means any corporation, unincorporated association or business, limited liability
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company; business trust, real estate investment trust, common law trust, or other trust, general
partnership, limited partnership, limited liability limited partnership, limited liability partnership,
joint venture, or two or more persons having a joint or common economic interest, nominee, or
other entity, or any individual (or estate of such individual); and shall include any Governmental
Authority.
"Portman" means Portman Holdings, LLC, a Georgia limited liability company.
"Portman Estimated Equitv Contribution" means an amount up to $17,000,000 but not less than
the Portman Minimum Equity Contribution to be funded in cash by Portman or one of its
Affiliates to pay lmprovement Costs.
"Portman Minimum Equitv Contribution" means $10,000,000 to be funded in cash by Portman or
one of its Affiliates to pay lmprovement Costs.
"Possession Conditions" has the meaning ascribed to it in Section 4.1(b).
"Possession Date" has the meaning ascribed to it in Section 4.1(b).
"Prohibited Hotel Proiect Chanqes" means
(a) after the Effective Date and prior to the Possession Date, any changes to the
Approved Plans that result in any of the following except to the extent previously Approved in a
writing executed by the City Manager and expressly providing that the City Manager is thereby
Approving a Prohibited Hotel Project Change (which Approval may be granted or withheld by
City Manager in his sole and absolute discretion), or which are required because of
Governmental Requirements: (i) a failure of the Hotel Project to contain any of the Mandatory
Hotel Project Design Elements, or a material change to the design thereof; (ii) failure to obtain
any Brand Approval; (iii) a material change in the massing of the development, including the
orientation and general configuration of the tower structure or the size and configuration of the
tower structure and podium design reflected in the Approved Plans, or (iv) any change that
materially affects the fagade of the Hotel Project Approved by the City, or othenryise materially
affects the exterior appearance of the Hotel Project or materially impairs the ability of the Hotel
Project to function as a convention center hotel, or
(b) after the Possession Date and prior to the Opening Date, any changes to the
Approved Plans or any actual construction that results in any of the following, except to the
extent previously Approved in a writing executed by the City Manager and expressly providing
that the City Manager is thereby Approving a Prohibited Hotel Project Change (which Approval
may be granted or withheld by City Manager in his sole and absolute discretion), or which are
required because of Governmental Requirements: (i) a failure of the Hotel Project to contain any
of the Mandatory Hotel Project Design Elements, or a material change to the design thereof; (ii)
failure to obtain any Brand Approval; (iii) a material change in the design or actual scope,
appearance or quality of any of the Mandatory Hotel Project Design Elements; (iv) a material
change in the massing of the development, including the orientation and general configuration
of the tower structure or the size and configuration of the tower structure and podium design
reflected in the Approved Plans, or (v) any change that materially affects the faqade of the Hotel
Project Approved by the City, or otherwise materially affects the exterior appearance of the
Hotel Project or materially impairs the ability of the Hotel Project to function as a convention
center hotel.
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"Proiect ExpenSeS" meanS:
(a) commercially reasonable operating expenses of the Hotel Project incurred to
Persons other than Affiliates of the Lessee (unless such expenses paid to Affiliates of Lessee
are at a fair market rate and with notice to the City);
(b) commercially reasonable wages and benefits paid and payable to the Hotel
Operator's full time or parttime on-site or off-site management employees and full or part-time
non-management employees; and
(c) commercially reasonable management fees, at prevailing market rates.
..@,,hasthemeaningascribedtoitinSection7.10(b).
"PgbLiglXel@" has the meaning ascribed to it in Section 4.5(a).
"Reconstruction Work" has the meaning ascribed to it in Section 9.9(b).
"pent" means all payments required pursuant to Section 4.4 and any other payments
characterized as rent hereunder, including Base Rent, Additional Rent and Transaction Rent.
"Rent Commencement Date" has the meaning ascribed to it in Section a.4@).
"Rent Yea/'has the meaning ascribed to it in Section 4.4(a).
"Responsible Office/' means any executive officer or manager of Lessee responsible for the
administration of the obligations of Lessee in respect of this Lease.
"Room Block Aqreement" means the room block agreement, in the form of Exhibit "L" attached
hereto, to be executed by and between the City and the Lessee, and pursuant to which Lessee
agrees to provide the services therein described to City in exchange for the agreements of City
hereunder.
'.@.'hasthemeaningascribedtoitinSection2.7.
..@@'hasthemeaningascribedtoitinSection4.4(a).
.'E!g!,''''Subsection,'.',EeIegl3ph,',...@9I4.h,,,'''@,'.ol''@''followedbya
number or letter means the section, subsection, paragraph, subparagraph, clause or subclause
of this Lease so designated.
"@"means:
(a) an entity or organization that does not and cannot by virtue of its organizational
documents:
(i) engage in any business other than owning, developing, leasing and
operating the Hotel Project;or
(ii) acquire or own material assets other than the Hotel Project and incidental
personal property; and that
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(b) does not hold itself out to the public as anything but a legal entity or organization
separate from any other Person; and
(c) conducts business solely in its name or under a duly registered fictitious name.
"Skvbridoe" means the overhead, enclosed, climate-controlled pedestrian walkway to be
constructed, operated and maintained by Lessee in accordance herewith connecting the Hotel
Project to the Convention Center and included in the Hotel Site described on Exhibit "D".
"Subleaseu means any lease, sublease, license or other agreement by which Lessee demises,
leases, or licenses the use and occupancy by another Person of one or more specific retail,
parking/valet, spa or restaurant spaces, or other defined portion of the Hotel Project.
"Subtenant" means any Person using and occupying or intending to use and occupy one or
more specific spaces or other defined portion of the Hotel Project pursuant to a Sublease.
"Tarqet Dates" means the following dates that have been targeted by Lessee to achieve the
following activities or events:
(a) The "Tarqet Possession Date": the date targeted for satisfaction of the
Possession Conditions, which date is December 15,2016.
(b) The "Tarqet Construction Loan Closinq Date": the date targeted for Lessee's
closing of the Construction Loan for the Hotel Project, which date is December 15,2016.
(c) The "Tarqet Completion Date": the date targeted for completion of construction of
the Hotel Project, which date is November 30, 2018.
"Termu has the meaning ascribed to it in Section 4.1(a).
"Third Rent Yea/' has the meaning ascribed to it in Section 4.4(a).
"Transaction Rent" shall have the meaning ascribed to it in Section 4.4(b).
"@E' means any sale, assignment or conveyance or any other transaction or series of
transactions in the nature of a sale, assignment or conveyance of:
(a) the Hotel Project or any part thereof;
(b) any legal or beneficial interest in the Hotel Project, or any part thereof;
(c) any direct or indirect legal or beneficial interest in Lessee (including the
syndication of tax benefits); or
any series of such Transfers that have the cumulative effect of a sale, transfer or conveyance of
any of the foregoing (a), (b), or (c).
"Uniform Svstem" means the Uniform System of Accounts for the Lodging lndustry, 10th
Revised Edition, as may be modified from time-totime by the lnternational Association of
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Hospitality Accountants, consistently applied, or any successor thereto generally recognized by
the Lodging lndustry.
"&IK" means the design, permitting, development and construction of the Lessee
lmprovements in accordance with the Approved Plans, including all design, architectural,
engineering and other professional services, demolition and construction services, supervision,
administration and coordination services and the provision of all drawings, specifications, labor,
materials, equipment, supplies, tools, machinery, utilities, fabrication, transportation, storage,
insurance, bonds, permits and conditions thereof, zoning approvals, changes required to comply
with building codes and Governmental Approvals, licenses, tests, inspections, surveys, studies,
and other items, work and services that are necessary or appropriate for the demolition of
existing structures and other preparatory or remediation work on the Hotel Site; utility
relocations, installations, hook-ups or other infrastructure as may be required to make the
Leased Property suitable for the use of the Hotel Project; total design, construction, installation,
furnishing, equipping, and functioning of the Lessee lmprovements, together with all additional,
collateral and incidental items, work and services required for completion of the Lessee
lmprovements (including all such items, work and services as are necessary to provide fully
functional and functioning Lessee lmprovements). The Work also includes completion of all Off-
Site lmprovements.
Section 1.4. Exhibits. lf any exhibit to this Lease conflicts with the body of this Lease, the
body of this Lease shall govern.
Section 1.5. lnterpretation. All pronouns and any variations thereof shall be deemed to refer
to the masculine, feminine, neuter, singular or plural, as appropriate. The words "herein,"
"hereof," "hereunder," "hereinafter," and words of similar import refer to this Lease as a whole
and not to any particular Article, Section or Subsection hereof. The terms "include" and
"including" and words of similar import shall each be construed as if followed by the phrase
"without limitation". This Lease will be interpreted without interpreting any provision in favor of
or against either party by reason of the drafting of such provision.
ARTICLE !I
THE HOTEL PROJECT IMPROVEMENTS
Section 2.1. Development and Conformitv of Plans.
(a) Lessee shall be responsible for preparing all plans and specifications for
constructing the Hotel Project. Such plans and specifications shall conform in all material
respects to the Approved Plans;
(b) Notwithstanding any other provision or term of this Lease or any Exhibit hereto,
the Approved Plans and allwork by Lessee regarding the Hotel Project shall conform to the City
Code, the Florida Building Code and all other Governmental Requirements and, to the extent
consistent with the above, the provisions of this Lease.
Section 2.2. Approved Plans. The City shall have the right to Approve, in its sole discretion,
(x) any substantial deviation of the Hotel Project from the Approved Plans and (y) any Prohibited
Hotel Project Changes. Notwithstanding any Approval provided pursuant to this Section 2.2,
Lessee shall be solely responsible for obtaining all required final, non-appealable Governmental
Approvals as more fully set forth in Article lV of this Lease. Any Approval of the Approved Plans
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or any component thereof by the City shall be for its own benefit in its proprietary capacity as
the owner of the Leased Property and shall not be deemed to mean, and the City, in such
proprietary capacity, makes no representation, that such Approved Plans comply with all
applicable Governmental Approvals and Governmental Requirements.
(a) Lessee shall submit to the City Manager, prior to Commencement of
Construction, any proposed modifications to the Approved Plans for the City Manager's
determination of whether such modifications include any substantial deviation of the Hotel
Project from the Approved Plans or Prohibited Hotel Project Changes. Modifications to the
Approved Plans shall be indicated by "ballooning," highlighting, blacklining or describing such
modifications in writing in reasonable detail in an accompanying memorandum. The City shall
not be responsible for, and shall not be deemed to have Approved, any modification to the
Approved Plans that is not indicated as required by this Section.
(b) Within twenty-one (21) days of receipt of any proposed modifications to the
Approved Plans, the City Manager shall notify Lessee, in writing, that he approves such
modifications, or the basis for any disapproval of any substantial deviation of the Hotel Project
from the Approved Plans or Prohibited Hotel Project Change; provided, however, that the City
shall not disapprove any material modification necessitated by Governmental Requirements.
City's failure to notify Lessee of any disapproval within such twenty-one (21) day period shall be
deemed to constitute the City's conclusive Approval of the proposed modifications to the
Approved Plans. The Approved Plans, as amended by such Approved modifications, shall
thereafter be the Approved Plans referred to herein.
(c) lf the City disapproves of any modification pursuant to this Section 2.2, then
Lessee shall, at its election, either (x) submit City's disapproval to expedited arbitration pursuant
to Section 7.9 of this Lease, or (y) within thirty (30) days after receiving the City's disapproval
notice, submit revised proposed modifications to the Approved Plans for City's review and
Approval as provided in this Section 2.2, provided that the time period for approval or
disapproval shall be fifteen (15) days.
(d) At any time during the design development phase of the Hotel Project, Lessee
may (but shall not be required to) submit to the City Manager any proposed modifications to the
Approved Plans for City's review and Approval pursuant to this Section 2.2, so as to mitigate or
avoid any potential delays to the Schedule of Performance as a result of disputes regarding the
final proposed Approved Plans.
Section 2.3. Lessee's Hotel Proiect Obliqations. Subject to the terms hereof, Lessee is
obligated to and shall (i) design, permit, and construct, in a good and workmanlike manner, and
at its sole cost and expense, the Hotel Project in all material respects in accordance with and
subject to all of the terms and provisions of this Lease and to Complete Construction thereof by
the Outside Completion Date, (ii) obtain a certificate of the LEED Status in accordance with
Section 100-6 of the City Code and provide reasonable evidence of such certification to City
within a reasonable period following the Opening Date, and (iii) operate, maintain, repair and
replace, at its sole cost and expense, the Hotel Project in accordance with and subject to all of
the terms and provisions of this Lease.
Section 2.4. Pavment of Hotel Proiect Costs.
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(a) As between Lessee and the City, the Lessee shall bear and be solely responsible
for all costs and expenses related to the design, permitting and construction of the Work, the
Hotel Project and its subsequent use, including the following:
(i) Lessee's land use approvals, development fees, and permit fees for the
design, construction, and subsequent use of the Hotel Project;
(ii) Lessee's design and construction of the Hotel Project;
(iii) Lessee's financing, construction bonding and insurance, building permits,
utility installations and/or hook-ups or other infrastructure, as may be required to make the
Leased Property suitable for the use of the Hotel Project;
(iv) Lessee's consultants, accountants, financing charges, legal fees,
furnishings, equipment, and other personal property of the Lessee; and
(v) all other Lessee direct or indirect costs associated with the approvals,
design, construction, and financing of the Lessee lmprovements, and their subsequent use.
(b) Lessee acknowledges that the City shall have no maintenance responsibility for
any of the Leased Property and Lessee lmprovements, and utilities and infrastructure to be
constructed by Lessee.
(c) Lessee shall be exclusively responsible for all matters relating to underground
utility lines and facilities, including locating, relocating and/or removal, as necessary. Under no
circumstances shall City be responsible for paying the cost of, or othenarise reimbursing Lessee
for, relocation, removal, or payment of charges to utility companies for, any utility lines or
facilities lying on, under, or around the Leased Property. City shall provide reasonable
cooperation and assistance to Lessee in the resolution of issues associated with existing
underground utilities. Lessee shall not remove, disturb, or relocate any existing utilities on the
Leased Property without the City Manager's prior written Approval.
Section 2.5. Financinq Matters.
(a) Lessee shall pay for all lmprovement Costs from funds required to be provided
under the Equity Commitment, the lnitial Hotel Operator Financial Commitment, the
Construction Loan and the Mezzanine Loan, if any; provided that if the proceeds of the
Construction Loan are not available or are inadequate for any reason, Lessee shall be
responsible to provide funds from such other sources as Lessee may identify to pay all costs
and expenses necessary to Complete Construction of the Hotel Project and cause the Opening
Date to occur in accordance herewith.
(b) Lessee shall be solely responsible for obtaining the Construction Loan and the
Mezzanine Loan, if any, for all completion guaranties required in connection with the
Construction Loan and the Mezzanine Loan, if any, and for providing all collateral and other
security, and othenruise satisfying all conditions thereof and covenants, agreements and
obligations of the borrower thereunder. ln no event shall City have any responsibility, obligation
or liability with respect to the Construction Loan or the Mezzanine Loan, if any, and Lessee shall
reimburse City for all of City's third party costs and expenses (including attorneys' fees)
reasonably incurred in connection with any requirements or requests of the Construction Lender
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in connection with the Construction Loan or the Mezzanine Lender in connection with the
Mezzanine Loan, if any.
Section 2.6. No Claim for Value of Lessee lmprovements. Lessee shall have no claim
against the City for the value of the Lessee lmprovements following any termination of this
Lease, whether at the natural expiration of the Term or otherwise, except, with respect to any
claims against the City acting in its governmental capacity, any claims related to a
condemnation by the City.
Section 2.7. Schedule of Performance. The schedule attached hereto as Exhibit "F" (the
"Schedule of Performance") sets forth the dates and times of delivery of the Hotel Project,
including the Target Dates, and other milestones for development and approval of the plans and
specifications listed in Section 2.2, preparation and filing of applications for and obtaining all
applicable Governmental Approvals for the Hotel Project and schedule for the completion of the
Work. Lessee shall prosecute completion of the Work substantially in accordance with the
Approved Plans (with only such changes hereto that do not constitute Prohibited Hotel Project
Changes, except as otherwise permitted or Approved pursuant to this Lease), with all
commercially reasonable diligence and in good-faith, in good and workmanlike manner, and in
accordance with the Schedule of Performance, time being of the essence. The dates in Exhibit
"F" shall not be extended except for (i) a Force Majeure Event, (ii) Economic Force Majeure,(iii) a City Delay, (vi) the number of days by which Commencement of Construction of the
MBCC Project is delayed beyond January 1, 2016, if any; and (iv) the number of days by which
the completion of construction of the MBCC Project is delayed beyond January 1,2019, if any,
but only if and to the extent such delays preclude the Convention Center from holding events
that utilize the Convention Center's four main exhibition halls. lf the Parties disagree with
respect to any permitted delays in the Schedule of Performance, such disagreement shall be
resolved in accordance with Section 7.9 hereof.
(a) Lessee shall endeauor, ,nrornh the use of diligent, good-faith efforts, to cause
the prosecution of the Work in accordance with the Target Dates and other dates set forth in the
Schedule of Performance, but failure to meet the Target Dates shall not be a default under this
Lease.
(b) As further delineated in the Schedule of Performance, Lessee shall
Complete Construction by the Outside Completion Date.
(c) The failure of Lessee (i) to satisfy all of the Possession Conditions by the Outside
Possession Date, (ii) after Commencement of Construction has occurred, to Complete
Construction by the Outside Completion Date or (ii) after Commencement of Construction has
occurred, to achieve the Opening Date by the Outside Opening Date shall each be deemed an
Event of Default under this Lease.
Section2.8. ConstructionObliqations.
(a) Bonds. By no later than Commencement of Construction, Lessee shall provide a
Performance Bond and Payment Bond, with all premiums paid and in favor of Lessee with an
obligee rider in favor of the City and the First Leasehold Mortgagee. Lessee shall also provide
City with a demolition bond or other form of financial instrument reasonably acceptable to City to
assure the availability of funds for demolition or removal of any uncompleted facility in the event
Lessee, after receipt of a written demand from City, fails to demolish and remove the
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uncompleted facility following Lessee's failure to substantially complete such facility as required
herein.(b) Approval of Hotel Proiect General Contractor. Lessee's selection of the Hotel
Project General Contractor shall be subject to the advance Approval of the City Manager, after
consultation with the City Attorney, as to the qualifications and responsibility of the proposed
Hotel Project General Contractor to perform the contract, based on the contractor's licensure,
bonding capacity, financial capacity, history of compliance with laws, and satisfactory past
performance on similar projects. Provided that the Hotel Project General Contractor proposed
by Lessee does not have a significant history of material non-compliance with the law, City
agrees to Approve any Hotel Project General Contractor proposed by Lessee that satisfies each
of the following:
(i) Has a State of Florida Building and Business License;(ii) Has completed at least one project in the past three years under a
construction contract that specified a guaranteed maximum price at or
above $100,000,000;(iii) Has completed at least one high-rise hotel of at least eight (8) stories and
four hundred (400) rooms in the last 5 years; and(iv) Has total bonding capacity in excess of $1 Billion with at least
$250,000,000 available for a single project.
(c) Gonstruction Obliqations. Prior to the Outside Completion Date, Lessee
shall, or shall cause its Hotel Project General Contractor to:
(i) Perform and complete the Work;
" (ii) Select the means and methods of construction. Only adequate and safe
procedures, methods, structures and equipment shall be used;
(iii) Furnish, erect, maintain and remove such construction plant and such
temporary work as may be required; and be responsible for the safety, efficiency and adequacy
of the plant, appliance and methods used and any damage which may result from failure,
improper construction, maintenance or operation of such plant, appliances and methods;
(iv) Provide all architectural and engineering services, scaffolding, hoists, or
any temporary structures, light, heat, power, toilets and temporary connections, as well as all
equipment, tools and materials and whatever else may be required for the proper performance
of the Work;
(v) Order and have delivered all materials required for the Work and shall be
responsible for all materials so delivered to remain in good condition;
(vi) Maintain the Hotel Project site in a clean and orderly manner at all times,
and remove all paper, cartons and other debris from the Hotel Site;
(vii) Erect, furnish and maintain a field office with a telephone at the Hotel Site
during the period of construction in which a supervisor-level employee shall be on site during
the performance of any Work in connection with the Hotel Project; and cause the Hotel Project
General Contractor to require in each subcontract having a price in excess of $5,000,000 (and
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to require each subcontractor to require in each sub-subcontract having a price in excess of
$5,000,000) that such subcontractor (and sub-subcontractor) have on-site a supervisor-level
employee at all times during the performance of any Work under such subcontract (and sub-
subcontract);
(viii) Protect allWork prior to its completion and acceptance;
(ix) Preserve all properties adjacent and leading to the Hotel Site and restore
and repair any such properties damaged as a result of construction of the Hotel Project, whether
such properties are publicly or privately owned;
(x) lmplement, and maintain in place at all times, a comprehensive hurricane
and flood plan for the Hotel Site and the Work, and provide a copy of same to the City;
(xi) Upon Completion of Construction, deliver to the City as built drawings and
plans and specifications of the Hotel Project; and
(xii) Upon Completion of Construction, deliver to the City, a copy of the final
certificate of occupancy or certificate of completion, as applicable, for the Hotel Project.
Notwithstanding any provision hereof to the contrary, at no time during construction of the Hotel
Project may Lessee make any Prohibited Hotel Project Changes without the express, prior
written Approval of City (which Approval may be granted or withheld by City in City's sole and
absolute discretion).
(d) Completion of Construction. Lessee shall catry on any construction,
maintenance or repair activity with diligence and dispatch and shall use diligent, good-faith
efforts to complete the same in accordance with the Schedule of Performance. Lessee shall not,
except if an emergency exists (then only to the extent that the City can grant such an
exception), carry on any construction, maintenance or repair activity in any easement area that
unreasonably interferes with using and enjoying the property encumbered by such easement.
(e) Skvbridqe and Off-Site lmprovements. Lessee shall deliver the proposed
Approved Skybridge and Off-Site lmprovements Plans to the City for Approval as required to
maintain the Schedule of Performance. The 25 surface parking spaces for Fillmore Theater
personnel to be constructed by Lessee as part of the Off-Site lmprovements will be constructed
as depicted on Exhibit "U" hereto. Lessee shall have no obligations or liabilities with respect to
the ownership or operation of such parking spaces after completion.
Section 2.9. Proqress of Construction/Citv's Representative.
(a) Lessee shall keep the City apprised of Lessee's progress regarding the Work.
Lessee shall deliver written reports of same not less than monthly; and
(b) The City may, from time-totime, designate one or more employees or agents to
be the City's representative ("City's Representative"), who may, during normal business hours,
in a commercially reasonable manner, visit, inspect and monitor the Hotel Project, the materials
to be used thereon or therein, contracts, records, plans, specifications and shop drawings
relating thereto, whether kept at Lessee's offices or at the Hotel Project construction site or
elsewhere, and the books, records, accounts and other financial and accounting records of
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Lessee wherever kept, as often as may be requested. Further, City's Representative shall be
advised of, and entitled to attend, meetings among Lessee, Lessee's representative and the
Hotel Project General Contractor or any subset of this group. Lessee will cooperate with the City
to enable City's Representative to conduct such visits, inspections and appraisals. Lessee shall
make available to City's Representative for inspection, with commercially reasonable notice,
daily log sheets covering the period since the immediately preceding inspection showing the
date, weather, subcontractors on the job, number of workers and status of construction.
Section 2.10. Deliverv of Plans.
Promptly after completing the Work and Lessee's receipt of a Certificate of Occupancy, as
applicable, for the Work, Lessee will deliver to the City a copy of the plans and specifications,
including shop drawings, for the Lessee lmprovements.
Section 2.11. Gonnection of Buildinqs to Utilities.
(a) Lessee, at its sole cost and expense for the Leased Property and in compliance
with all Governmental Approvals and Governmental Requirements, shall install or cause to be
installed all necessary connections between the Lessee lmprovements, and the water, sanitary
and storm drain mains and mechanical and electrical conduits whether or not owned by the City.
(b) Lessee shall pay for the cost, for the Leased Property, if any, of locating,
grounding and installing within the Leased Property, as applicable, new facilities for sewer,
water, electrical, and other utilities as needed to service the Hotel Project, and, at its sole cost
and expense for the Leased Property, will install or cause to be installed inside the property line
of the Leased Property, all necessary utility lines, with adequate capacity and the sizing of utility
lines for the Hotel Project, as contemplated on the Approved Plans.
(c) Lessee shall perform, or cause to be performed, all Work on the Leased Property
so as not to interfere with or adversely affect in a material way the City's geothermal system
located adjacent to the Leased Property. ln the event that Lessee, Hotel Project General
Contractor or their respective agents, representatives, employees or invitees causes any
damage to such system, Lessee shall promptly repair and restore same to its condition existing
immediately prior to such damage, unless such damage results from the geothermal system
being located other than as shown on the as-built plans provided by the City and set forth on
Exhibit "P" hereto, or as shown in any updated information as to the location of the geothermal
system that may be provided to Lessee by the City prior to Commencement of Construction of
the Hotel Project or Off-Site lmprovements. ln the event City updates the information set forth in
Exhibit "P" such that the location of the geothermal system is either on the Leased Property or
so close to the Leased Property that it impacts the foundations for the Hotel Project and a
significant re-design of the Hotel Project is required, the Lessee shall be entitled to an equitable
adjustment for the design and construction-related costs solely and directly attributed to the
differing location of the geothermal system, in the form of a credit against Base Rent otherwise
due to the City, subject to mutual agreement of the Parties with respect thereto. The Schedule
of Performance and all succeeding Outside Dates shall be adjusted to reflect the additional time
required for such re-design work and the modification or obtaining of any permits required in
connection therewith. This paragraph shall expressly survive termination of this Lease.
Section 2.12. Permits and Approvals. Lessee shall secure and pay for all Governmental
Approvals for the Work, including any alterations and renovations made pursuant to Section
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2.15, and shall pay any and all fees and charges due to and collected by the City or any other
Governmental Authority connected with issuing such Governmental Approvals, if any.
Section2.13. Gitv and Lessee to Join in Certain Actions. Within fifteen (15) days after
receiving a written request from Lessee that is consistent with all Governmental Requirements
and in accordance with this Lease, the City shall join Lessee when required by law in any and
all applications for Governmental Approvals as may be commercially reasonably necessary for
constructing of the Hotel Project. Lessee shall pay all fees and charges for all such applications.
Failure of the City to perform as requested within such fifteen (15) day period shall be deemed a
City Delay for the number of days of delay beyond such fifteen (15) day period.
Section 2.14. Compliance with Laws. Lessee will comply with any Governmental
Requirements in constructing and operating the Hotel Project.
Section 2.15. Alterations and Renovations. After completing the Work, if Lessee wishes to
make alterations or renovations thereof:
(a) no renovation or alteration shall be made until Lessee obtains all required
GovernmentalApprovals, at Lessee's sole cost and expense;
(b) except for FF&E, any renovation or alteration of Lessee lmprovements that
involves a substantial deviation from the Approved Plans or otherwise substantially affects the
overall character or appearance of the exterior of the Hotel Project, unless required by
Governmental Requirements shall require the City's approval in its proprietary capacity in its
sole discretion; and
(c) all such alterations and renovations shall be performed by duly licensed and
insured contractors in a good and workmanlike manner, and in any event, shall be consistent
with the Hotel Standards.
Section 2.16. Art in Public Places. Lessee shall comply with the City's Art ln Public Places
(AIPP) program requirements under Section 82-536 through 82-612 of the City Code, as
applicable, and shall contribute to the City's Art in Public Places fund the total of 1.5% of the
"construction cost" of the Hotel Project, as such term is defined in Section 82-537 of the City
Code, no later than date of execution of the Hotel Project General Contract by Lessee and the
Hotel Project General Contractor, as required by the City Code.
ARTICLE I!!
LAND USES AND DEVELOPMENT OBLIGATIONS
Section 3.1. Govenant Reqardinq Land Uses. Lessee agrees and covenants to devote,
during the Term of this Lease, the Hotel Project only to the uses specified in this Lease and to
be bound by and comply in all material respects with all of the provisions and conditions of this
Lease. ln addition, and except as hereinafter set forth, Lessee shall not have the right to seek or
obtain different uses or a change in such uses either by requesting a zoning change or by court
or administrative action without first obtaining the City's Approval, which Approval may be
granted or denied in the City's sole discretion.
Section 3.2. Applications for Development Approvals and Development Permits.
Promptly following the Effective Date of this Lease, the Lessee will initiate and diligently pursue
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all applications for Development Orders and Development Permits that may be required in
connection with the Hotel Project. Lessee shall be solely responsible for obtaining all final, non-
appealable Development Orders and Development Permits for the Hotel Project. No extension
of any time period herein shall be deemed to be an extension of any time periods contained
within the Development Permits or Development Orders.
Section 3.3. Concurrencv. Lessee shall be solely responsible for obtaining all land use
permits, including all permits and approvals required pursuant to Section 163.3180, Florida
Statutes, with respect to concurrency requirements for roads, sanitary sewer, solid waste,
drainage, potable water, parks and recreation, and schools (the "Concurrency Requirements").
Prior to applying for its building permit for the Hotel Project, Lessee shall apply to the
appropriate Governmental Authorities and obtain letters or other evidence that Lessee has
obtained all applicable Concurrency Requirements, and shall diligently and in good faith obtain
such letters or other evidence that the Hotel Project meets all applicable Concurrency
Requirements and shall pay such impact fees as may then be due or applicable to meet
Concurrency Req uirements.
Section 3.4. Compliance with Local Requlations Reqardinq Development Permits. This
Lease is not and shall not be construed as a Development Permit, approval or authorization to
commence any development, fill, or other land modification. The Lessee and the City agree that
the failure of this Lease to address a particular permit, approval, procedure, condition, fee, term
or restriction in effect on the Effective Date of this Lease shall not relieve Lessee of the
necessity of complying with the regulation governing said permitting requirements, conditions,
fees, terms or restrictions, subject to the terms of this Lease.
Section 3.5. Consistencv with the Citv's Comprehensive Plan. The City has adopted and
implemented the Comprehensive Plan. The City hereby finds and declares that the provisions of
this Lease dealing with the Hotel Site and the Hotel Project are consistent with the City's
Comprehensive Plan and Land Development Regulations (subject to all applicable
requirements, permits and approvals).
Section 3.6. Presentlv Permitted Development. The development that is presently
permitted on the Leased Property, including population densities, and building intensities and
height, which are subject to this Lease, are more specifically set forth in Exhibit "H" hereto.
Section 3.7. Public Facilities to Serve the Leased Propertv. A description of the public
facilities that will service the Hotel Project of the properties subject to this Lease, including who
shall provide such facilities; the date any new facilities, if needed, will be constructed; and a
schedule to assure public facilities are available concurrent with the impacts of the development
is included as Exhibit "1" hereto.
Section 3.8. Public Reservations. Dedications. A description of the reservations and/or
dedications of land for public purposes that are proposed under the terms of this Lease is
included as Exhibit "J" hereto.
Section 3.9. Required Development Permits. Attached and made a part hereof as Exhibit
"K" is a listing and description of certain local development permits approved or needed to be
approved for the development of the Hotel Project, provided that City makes no representation
or warranty that the information set forth on Exhibit "K" is correct or complete, Lessee releases
City from any liability with respect to such information and Lessee acknowledges and Lessee
agrees that Lessee is solely responsible for confirming the correctness and completeness of
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such information and obtaining all applicable Governmental Approvals whether or not set forth
on Exhibit "K".
Section 3.10. Responsible Waqes and Local Emplovment. The City and Lessee support
and encourage the application of responsible wages and City of Miami Beach and Miami-Dade
County workforce hiring with respect to the Hotel Project.
Section 3.11. Laws Governinq this Lease. For the entire Term of this Lease, the City hereby
agrees that the City's Land Development Regulations governing the development of the Leased
Property as they exist as of the Effective Date of this Lease shall govern the development of the
Leased Property and the Hotel Project during the Term. Notwithstanding the foregoing, the City
may apply subsequently adopted laws or policies to the Leased Property and the Hotel Project
(particularly as they may relate to quality of life issues such as, but not limited to noise, litter,
and hours of operation) as permitted or required by the Act, including, without limitation, Section
163.3233(2), Florida Statutes, as same may be amended from time to time; provided, however,
that this provision shall not be deemed to apply to regulations governing height, floor area ratio
(FAR), density, parking requirements or permitted uses.
Section 3.12. Duration of Development Riqhts. Notwithstanding any provision to the
contrary in this Lease, the development rights and responsibilities granted to Lessee hereunder
shall run for an initial term of six (6) years from the Effective Date, and may be extended by
mutual consent of the City and the Lessee subject to a public hearing(s) pursuant to Section
163.3225, Florida Statutes. Consent to any extension of the development rights granted herein
is within the sole discretion of each Party. No notice of termination shall be required by either
Party upon the expiration of the development rights granted pursuant to this Lease, provided,
however, that the Parties' obligations for the failure to satisfy Possession Conditions shall be as
provided for in Section 4.1(f) and any other applicable provisions of this Lease.
Section 3.13. Lessee's Riqht of Termination. Notwithstanding anything to the contrary
herein, Lessee shall have the right to terminate this Lease prior to the Possession Date due to
(i) changes to the Approved Plans required by the City's Design Review Board or any other
Governmental Authority (including the City) that render the Hotel Project economically
unfeasible in the reasonable business judgment of Lessee; (ii) the Hotel Project cannot meet the
Concurrency Requirements, or the costs of concurrency mitigation are, in the reasonable
business judgment of Lessee, economically unfeasible; or (c) Lessee, after its diligent good-faith
efforts, has been unable to obtain a full building permit for the Hotel Project. ln the event of
termination pursuant to this Section 3.13, each Party shall bear its own costs and expenses
incurred in connection with this Lease and, neither Party shall have any further liability to the
other Party.
ARTICLE IV
GENERAL TERMS OF LEASE
Section 4.1. Lease of Leased Propertv to Lessee. Subject to the conditions set forth in this
Lease, including the occurrence of the Possession Date, the payment of all Rent and all other
payments by Lessee provided herein, and the City's and Lessee's performance of their duties
and obligations required by this Lease:
(a) Demise. The City, as of the Possession Date, demises and leases to Lessee,
and Lessee takes and hires from the City, the Leased Property for a term of approximately
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ninety-nine (99) years ending on December 31st of the last Lease Year prior to the 99th
anniversary of the Possession Date (the "Term"). Within thirty (30) days after the Possession
Date, the City and Lessee, upon request of either Party, shall execute a commencement date
agreement and/or one or more written memoranda in such form as will enable them to be
recorded among the Public Records of Miami-Dade County, in each case, setting forth the
beginning and termination dates of the Term, determined according to this Lease, and recording
any such other documents as may be required under this Lease.
(b) Possession Date: Conditions Precedent to Possession. The Parties
recognize that as of the Effective Date there remain various items and matters to be satisfied,
obtained and Approved in order that the Hotel Project may proceed as intended by the Parties.
The date that the City delivers possession of the Leased Property to Lessee according to this
Section 4.1(b), as designated by the City to Lessee in writing, is referred to herein as, the''@@.''TheCityshallnotbeobligatedtodeliverpossessionoftheLeased
Property and Lessee's rights as tenant hereunder shall not become effective until each of the
events described in this Section 4.1(b) irrevocably shall have occurred, atwhich time, the City
shall deliver possession of the Leased Property to Lessee, Lessee shall take possession thereof
and the lease provisions of this Lease shall become effective. Until that time, this Lease shall be
construed to be in the nature of a development agreement, and not a lease. The conditions
precedent to delivery of possession (collectively, the "Possession Conditions") are as follows:
(i) There exists no uncured Event of Default;
(ii) Lessee shall have entered into, and delivered to the City a duly executed
copy of, the Hotel Project General Construction Contract (and all then existing change orders
thereto), in form and substance and with a Hotel Project General Contractor Approved pursuant
to Subsection 2.8(b) by the City Manager reflecting the guaranteed maximum price for
completion of the Lessee lmprovements;
(iii) Lessee shall have delivered to City written evidence reasonably
satisfactory to the City of the existence and availability of (A) Liquid Assets to fund the Equity
Commitment, (B) lnitial Hotel Operator Financial Commitment, (C) the Mezzanine Loan
Commitment, if any, and (D) the Construction Loan Commitment, all of which together
demonstrate that the Hotel Project is In Balance;
(iv) Lessee shall have provided to City, and City Manager shall have
Approved in its sole discretion, any changes to the Budgeted lmprovement Costs, provided that
City Manager shall not withhold its Approval so long as Lessee has obtained and delivered to
the City written evidence of the existence and availability of (A) Liquid Assets to fund the Equity
Commitment, (B) the lnitial Hotel Operator Financial Commitment, (C) the Mezzanine Loan
Commitment, if any, and (D)the Construction Loan Commitment that demonstrate that the Hotel
Project is ln Balance;
(v) Lessee shall have reimbursed the City for the costs associated with the
City's voter referendum in connection with this Lease, not to exceed Twenty Five Thousand
Dollars ($2S,OOO;;
(vi) Lessee shall have obtained, and shall have delivered to City a copy of, all
Governmental Approvals necessary for the Commencement of Construction and necessary for
construction of all vertical elements of the Hotel Project;
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(vii) Lessee and the lnitial Hotel Operator shall have delivered to the City an
instrument or instruments reasonably acceptable to the City (A) certifying that Lessee and the
lnitial Hotel Operator have duly executed and entered into the Management Agreement and any
related franchise, technical services and/or centralized services agreements, that the
Management Agreement and any other such agreements are in full force and effect and there
are no defaults (or any events that could ripen into defaults) and attaching a true and correct
copy of the Management Agreement and any such other agreements thereto, (B)
acknowledging that for so long as the lnitial Hotel Operator is managing and operating the Hotel
Project it shall observe and comply with the Room Block Agreement and (C) in the form of an
agreement among Lessee, the lnitial Hotel Operator and the City, to the effect that if this Lease
is terminated as a result of any Event of Default, the Hotel Operator shall, at the City's option,
continue to perform under the Management Agreement in accordance with the terms thereof so
long as the Hotel Operator is being paid compensation thereafter accruing under the
Management Agreement and the City shall perform, and the Hotel Operator shall accept the
City's performance of, the duties and obligations under the Management Agreement to be
performed by the Lessee, as "owner," thereunder, but only to the extent accruing from and after
the date of termination of this Lease; provided, however, if the First Leasehold Mortgagee
enters into a similar agreement with the Lessee and the Hotel Operator, the City agrees that the
Hotel Operator shall continue to perform and such performance shall not be optional on the part
of the City;
(viii) Lessee shall have delivered to City, and City Manager shall have
Approved, the Schedule of Performance for the Hotel Project (City agrees that it shall not
withhold Approval thereof so long as the same reflects Completion of Construction by the
Outside Completion Date and Lessee has provided reasonable evidence that such schedule is
reasonable);
(ix) Lessee shall have presented evidence reasonably acceptable to the City
that all required insurance coverages are in place;
(x) Lessee shall have delivered to the City Manager reasonable evidence
that the Approved Plans have been approved by the First Leasehold Mortgagee and the lnitial
Hotel Operator;
(xi) Lessee shall have delivered to the City, a duly executed Assignment of
Plans and Approvals, a duly executed Assignment of Hotel Project General Construction
Contract and a duly executed Assignment of Contracts and Agreements;
(xii) Lessee shall have delivered to the City reasonable evidence that Lessee
has invested the Portman Minimum Equity Contribution prior to the Possession Date, or if the
Portman Minimum Equity Contribution has not been invested prior to the Possession Date,
Lessee shall deposit the balance of the unfunded amount of the Portman Minimum Equity
Contribution in escrow with an escrow agent reasonably satisfactory to the City to be drawn by
Lessee on a monthly basis based upon presentation of invoices for Budgeted lmprovement
Costs;
(xiii) Lessee has provided to the City reasonable evidence that all conditions to
funding the Construction Loan that can be satisfied as of such date have been satisfied and the
Lessee has paid all commitment or loan fees due under the Construction Loan documents; and
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(xiv) the representations and warranties made by the Lessee in this Lease
pursuant to Sections a.3(a) and 5.2 remain true and correct in all material respects on and as of
the Possession Date.
(c) Pre-Possession Period. From and after the Effective Date, the Parties shall
each use their respective diligent and commercially reasonable efforts to achieve the
Possession Date timely.
(d) Hotel Site lnspections. Commencing on the date hereof and thereafter until
this Lease is terminated or the Possession Date occurs, the City shall permit Lessee
commercially reasonably access to the Hotel Site to conduct at Lessee's sole cost and expense,
physical inspections, tests and studies of the Hotel Site and to the extent necessary to carry out
the provisions of this Lease; provided, however, that such access shall not materially interfere
with any ongoing operations at the Convention Center or the Fillmore Theater or the City's
construction activity relating to the MBCC Project. Lessee, at all times and at its sole cost and
expense, shall maintain or shall cause its Hotel Project General Contractor or other contractors
in privity with Lessee to maintain, comprehensive general liability insurance as required in
Article lX. Lessee shall restore any damage to the Hotel Site caused by any such inspections,
tests or studies; provided that in no event shall Lessee be responsible for the discovery,
exposure or release of hazardous substances or materials in, on or about the Hotel Site that are
not introduced to the Hotel Site by Lessee, its agents, representatives, contractors, invitees or
employees.
(e) lndemnification. Whether or not the Possession Date occurs, Lessee shall
indemnify, defend and hold City and its respective officers, employees, agents, representatives,
consultants, counsel and contractors (of any tier) harmless from and against all claims, actions,
suits, charges, complaints, orders, liability, damages, loss, costs and expenses (including any
attorneys' fees and costs of litigation) related to, arising from or in connection with the acts or
omissions of Lessee, its agents, representatives, contractors or employees, including injury or
death to persons or damage to their property, while exercising Lessee's right to access the
Hotel Site and performance of such inspections, tests or studies pursuant hereto, except to the
extent resulting from the negligence or willful misconduct of City or its officers, employees,
agents, representatives, consultants, counsel and contractors, and except as limited in
paragraph (d) above. The indemnification obligations of Lessee set forth in this paragraph shall
expressly survive the expiration or termination of this Lease and notwithstanding any provision
of this Lease to the contrary, City shall have all rights and remedies available at law or in equity
in the enforcement of such indemnification obligations of Lessee or arising from Lessee's failure
to perform such indemnification obligations.
(f) Failure to Satisfv Conditions. Notwithstanding anything contained in this Lease
to the contrary, if: (i) any of the Possession Conditions have not occurred by the Outside
Possession Date; (ii) Lessee does not close the Construction Loan by the Outside Construction
Loan Closing Date; (iii) Lessee does not commence construction by the Outside Construction
Commencement Date; (iv) Lessee does not Complete Construction by the Outside Completion
Date; or (v) the Opening Date does not occur by the Outside Opening Date, then
notwithstanding anything to the contrary set forth in Section 7.1 below, Lessee hereby waives
any further right to cure, and the City shall be entitled to immediately revoke the licenses
granted to Lessee pursuant to the Assignment of Plans and Approvals, the Assignment of Hotel
Project General Construction Contract and the Assignment of Contracts and Agreements and to
immediately terminate this Lease upon written notice to the Lessee; provided that Lessee shall
also have the right to immediately terminate this Lease upon written notice to the City on or
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before the Outside Possession Date if the event described in clause (i) of this Section 4.1(f)
does not occur as described therein and in any such event, the Parties shall thereafter be
released from all obligations set forth herein except any such obligations that expressly survive
termination.
(g) Easements. Lessee agrees that this Lease shall be subject to and contingent
upon the execution of certain easements, including any applicable access easements. On the
Possession Date, the easements in substantially the forms attached hereto as Exhibit "G" (the
"Easements") shall be executed by all necessary parties. The Parties shall also prior to the
Possession Date enter into any easements which may be required by Lessee to connect utilities
to the Hotel Site as shown in the Approved Plans. The Parties shall thereafter cause the
Easements to be promptly recorded among the public records of Miami-Dade County, Florida.
The Easements shall be held in escrow by the City and released therefrom and recorded among
the public records of Miami-Dade County, Florida prior to the Commencement of Construction.
Section4.2. RestrictiveCovenants.
(a) Permitted Use. Lessee shall operate the Hotel Project throughout the Term as a
convention headquarter hotel for the accommodation of hotel guests, and for related banquet,
meeting and similar purposes, with related retail shops, restaurants and such other amenities as
are consistent with the Hotel Standards.
(b) Use Restrictions. The Hotel Project shall not be used by Lessee, nor shall
Lessee knowingly permit the use thereof by any other Person for the following: (i) any unlawful
or illegal business, use or purpose; (ii) any business, use or purpose which is immoral,
disreputable (including "adult entertainment establishments" and "adult" bookstores) or extra-
hazardous; (iii) a nightclub where the sale of food is only incidental to the sale of alcoholic
beverages and where the establishment is licensed and primarily operated as an "Alcoholic
beverage establishment (midnight to 5:00 a.m.)" as defined by Section 114-1 of the City of
Miami Beach Code (other than and specifically excluding the Hotel's lobby bars, rooftop bars or
cocktail lounges, pool bars, restaurants, banquet functions or other similar food and beverage
operations contemplated as part of the Approved Plans or the Mandatory Hotel Project Design
Elements); (iv) any Gaming Establishment (whether or not such use is permitted by applicable
law), or (v) any use that constitutes a public nuisance of any kind. Lessee shall have no right to
convert the use of the Hotel Project or any portion thereof to any time sharing, time interval or
cooperative form of ownership, or to subject the same to any condominium regime.
(c) Nuisances Disallowed. Lessee shall not make any use of the Leased Property,
nor shall it allow any of its sub-lessees or invitees to make use of the Leased Property, in a
manner that creates or reasonably will lead to a public or private nuisance under state or locallaw. Upon notification by City that such a nuisance is then being allowed on the Leased
Property, Lessee shall promptly take steps necessary to abate such nuisance to the City's
reasonable satisfaction. City shall retain all of its contract rights to abate a nuisance under the
terms of this Lease, as well as its regulatory rights to abate such nuisance in accordance with
then-current law.
(d) No Discrimination. Lessee shall comply with, and shall cause others to comply
with, Governmental Requirements prohibiting discrimination by reason of race, color, national
origin, religion, sex, intersexuality, gender identity, sexual orientation, marital and familial status,
and age or disability in the sale, lease, use or occupancy of the Hotel Project or any portion
thereof. Lessee's compliance with the City's Human Rights Ordinance, codified in Chapter 62
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of the City Code, as may be amended from time to time, shall be a material term of this Lease.
Lessee shall cause for this provision to be incorporated in the Management Agreement with the
Hotel Operator.
(e) Lessee's Riqhts To Operate a Convention Hotel Not Exclusive.
Notwithstanding anything herein, it is expressly understood and agreed that the rights granted
under this Lease are non-exclusive and City reserves the right to grant similar privileges and
similar leases to other lessees on other City-owned or leased property, and to take any and all
actions (including the leasing of City property other than the Leased Property for any laMul
purpose) that City is permitted to take under federal, state, and local law. Notwithstanding the
foregoing, the City shall not:
(i) for a period of four (4) years after the Opening Date, permit any other hotel to
open for business to the general public on City-owned or City-leased property within the area
bounded by the south right of way line of sth Street and the north right of way line of 41't Street,
with an extension of both streets in an easterly and westerly direction to the waterfront, except
that with respect to the City-owned property located at 640 17h Street, Miami Beach, Florida
(known as the "17th Street Garage (GsD, the City shall not permit any other hotel to open for
business to the general public for a period of three (3) years after the Opening Date; or
(ii) for a period of eight (8) years after the Opening Date, permit any other hotel with
over 250 separately keyed sleeping rooms to open for business to the general public on City-
owned or City-leased property within the area bounded by the south right of way line of Sth
Street and the north right of way line of 41't Street, with an extension of both streets in an
easterly and westerly direction to the waterfront.
(f) Room Block Aqreement. Lessee shall operate, and cause the Hotel Operator
to operate, the Leased Property in material compliance with the terms of the Room Block
Agreement throughout the Term.
(g) No Ownership lnterests in Gaminq Establishments in Miami-Dade Gountv.
Lessee, and any Persons with an ownership interest in Lessee, shall not, directly or indirectly,
own, operate or manage a Gaming Establishment in Miami-Dade County, Florida; provided,
however, that the foregoing restriction shall not prevent Persons having an ownership interest in
Lessee, from owning or Controlling in the aggregate five percent (5%) or less of the voting
securities of any owner, operator or manager of a Gaming Establishment in Miami-Dade
County, Florida.
(h) Enforceabilitv. The restrictive covenants contained in this Section 4.2 shall be
binding upon the Parties and shall be for the benefit and in favor of, and enforceable by, the
Parties, and their successors and assigns, as the case may be. lt is further understood that
such covenants shall not benefit or be enforceable by any other Person.
Section 4.3. Representations.
(a) Lessee's Representation. Lessee represents to the City that its principals and
Affiliates are experienced in the development, construction, leasing and operation of hotel
properties generally, and that Lessee has independently determined the merits and risks of
electing to proceed with the development of the Hotel Project, and that Lessee is not and, will
not be relying upon any information that may have been or hereafter be provided to Lessee with
respect to or relating to the financial results derived from, financial merits of investing in, or other
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economic or other benefits that may be realized from the development, construction, leasing
and operation of the Hotel Project or sale of Lessee's interests in this Lease.
(b) No Representation or Warranties Bv Citv. Lessee acknowledges and agrees
that it will be given the opportunity to perform all inspections and investigations concerning the
Leased Property to its satisfaction prior to the Possession Date, and the City (i) except as
specifically provided in this Lease, is not making and has not made any representations or
warranties, express or implied, of any kind whatsoever with respect to the Leased Property,
including any representation or warranty of any kind with respect to title, survey, physical
condition, suitability or fitness for any particular purpose, the financial performance or financial
prospects of the Hotel Project, its value, or any other economic benefit that can be realized or
expected therefrom, the presence or absence of Hazardous Substances, the tenants and
occupants thereof, the zoning or other Governmental Requirements applicable thereto, taxes,
the use that may be made of the Leased Property, or any other matters with respect to this
transaction or Lease); (ii) Lessee has relied on no such representations, statements or
warranties, and (iii) City will in no event whatsoever be liable for any latent or patent defects in
the Leased Property (including any subsurface conditions).
(c) "AS lS" Condition of Leased Propertv. Lessee acknowledges it has relied
solely on Lessee's own inspections, tests, evaluations and investigations of and related to this
Lease and the Leased Property in its determination of whether to proceed with this Lease and
the Hotel Project. As a material part of the consideration of this Lease, Lessee agrees to accept
the Leased Property on the Possession Date in its "AS lS" and "WHERE lS" condition "WITH
ALL FAULTS" and latent or patent defects, and without representations and warranties of any
kind, express or implied, or arising by operation of law.
(d) The provisions of this Section 4.3 shall survive the termination of this Lease.
Section 4.4. Rent and Other Pavments. Lessee covenants and agrees to pay the City, from
and after the date hereof and during the Term the following Rent, as applicable:
(a) Base Rent. Commencing as of the later of (i) Opening Date and (ii) the
completion of construction of the MBCC Project such that the Convention Center may hold
events utilizing all 4 main exhibit halls (the later of such dates being the "Rent Commencement
Date"), and except as set forth below, monthly rent in the amount of the greater of (x) two and
one-half percent (2.5%) of the Gross Operating Revenues for such month or (y) one-twelfth
(112t\ of the Minimum Fixed Rent set forth in Section a.a@)O of this Lease 1i'Base Rent");
provided, however, that
. for each month during the period commencing on the Rent Commencement Date
and ending on December 31 of the year in which the first anniversary of the Rent
Commencement Date occurs (the "First Rent Year"), Base Rent shall be the greater
of (x) one-half percent (0.5%) of the Gross Operating Revenues for such month or
(y) one-twelfth (1/12th) of the Minimum Fixed Rent;
. for each month during the period commencing on the first day after the end of the
First Rent Year and ending on the day before the anniversary thereof (the "Second
Rent Year"), Base Rent shall be the greater of (x) One percent (1.0%) of the Gross
Operating Revenues for such month or (y) one-twelfth (1/12th; of the Minimum Fixed
Rent;
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. for each month during the period commencing on the first day after the end of the
Second Rent Year and ending on the day before the anniversary thereof (the "Third
Rent Year"), Base Rent shall be the greater of (x) one and one-half percent (1.5%) of
the Gross Operating Revenues for such month or (y) one-twelfth (1l12th) of the
Minimum Fixed Rent; and
. for each month from and after the end of the Third Rent Year, the Base Rent shall be
the greater of (x) two and one-half percent (2.5%) of the Gross Operating Revenues
for such month or (y) onetwelfth (1l12th) of the Minimum Fixed Rent.
. for each year from and after the end of the Third Rent Year (each such year being a
"Rent Year"), Lessee shall also pay as Base Rent (x) an amount equal to one and
one-half percent (1.5%) of the Gross Operating Revenue for such Rent Year if, and
only if, the Gross Operating Revenue for such Rent Year exceeds one hundred and
ten percent (110%) of (i) in the first year after the Third Rent Year, the projected
Gross Operating Revenue for such Rent Year in the pro forma which is developed
with the input of the lnitial Hotel Operator and accepted by the Construction Lender
in connection with the closing of the Construction Loan (the "Fourth Year Projected
GOR'), and (ii) in each Rent Year thereafter, the Fourth Year Projected GOR
adjusted annually for inflation pursuant to Section 14.20 hereof, with such increase
measured from the first day of each Rent Year until the first day of each succeeding
Rent Year, and (y) an amount equal to one percent (1o/o) of the Gross Operating
Revenue for such Rent Year if, and only if, the Gross Operating Revenue for such
Rent Year exceeds one hundred and twenty five percent (125%) of (i) in the first year
after the Third Rent Year, the Fourth Year Projected GOR, and (ii) in each Rent Year
thereafter, the Fourth Year Projected GOR adjusted annually for inflation pursuant to
Section 14.20 hereof, with such increase measured from the first day of each Rent
Year until the first day of each succeeding Rent Year (the amount payable pursuant
to (x) and (y)above being the "Additional Base Rent").
The Base Rent shall be due and payable on or before the twenty-fifth (25th) day of each month
following the month for which the Base Rent is applicable; provided that the Additional Base
Rent shall be due and payable on or before the twenty-fifth (ZSth) Oay after the end of each Rent
Year. Prior to the closing of the Construction Loan, Lessee shall provide City with a copy of the
pro forma accepted by the Construction Lender in connection with the closing of the
Construction Loan.
(i) Minimum Fixed Rent. "Minimum Fixed Rent" shall be an annualfixed rent
payable in twelve (12) equal monthly installments, prorated as to any partial month,
commencing on the Rent Commencement Date and continuing on the first day of each month
thereafter. Attached as Exhibit "R" hereto is a schedule setting forth the Minimum Fixed Rent
for the period commending on the Rent Commencement Date and ending on December 31 of
the year in which the tenth (1Oth) anniversary of the Rent Commencement Date occurs; provided
that the amount shown for the first year shall apply for the period commencing on the Rent
Commencement Date and ending on December 31 of the year in which the first anniversary of
the Rent Commencement Date occurs, prorated for any partial calendar years. Commencing on
January 1't following the tenth anniversary of the Rent Commencement Date, and every ten (t O1
Lease Years thereafter (each, a "Minimum Fixed Rent Reset Date"), the Minimum Fixed Rent
shall be adjusted to equal the greater of (x) the Minimum Fixed Rent payable for the period
immediately preceding the Minimum Fixed Rent Reset Date, or (y) fifty-five percent (55%) of the
average Base Rent payable for each twelve month period during the preceding ten (10)
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calendar year periods; provided that for the first Minimum Fixed Rent Reset Date item (y) shall
be fifty-five percent (55%) of the average Base Rent for each twelve month period payable
during the preceding five (5) calendar year period.
(ii) Each Base Rent payment shall be
sufficient for City to verify the accuracy of the Base Rent
detail reasonably required by City.
accompanied with documentation
payment, and in a format and of a
(iii) By May 1 of each year following the Rent Commencement Date, Lessee
shall provide City with a certified report, prepared and attested to by an independent CPA, as to
the correct Gross Operating Revenues for the previous calendar year. The report shall be
prepared in accordance with the American lnstitute of Certified Public Accountants'
requirements for special reports. All Base Rent payments and annual reports are subject to
audit under Section 4.4(().
(iv) Lessee shall be responsible for any applicable sales tax payable in
connection with the Rent.
(b) Transaction Rent. Lessee covenants and agrees to pay the City as Additional
Rent, within sixty (60) days after the closing of the first three Transfers effecting a sale of the
entire Hotel Project or a Transfer of a Controlling interest in Lessee to an unaffiliated third party
(other than a Transfer (i) pursuant to a foreclosure of a Leasehold Mortgage or a delivery by
Lessee of a deed in lieu thereof or (ii) pursuant to a foreclosure of the pledge of ownership
interests of Lessee granted pursuant to a Mezzanine Loan or Credit Enhancement or a delivery
by Lessee of an assignment in lieu thereof), an amount equal to the lesser of (x) $2 million, or
(y) 0.25% of the gross sales price (less typical closing adjustments and credits) in connection
with such Transfer (each "Transaction Rent"); provided that Transaction Rent shall be payable
in connection with the first such Transfer (and such first Transfer shall be counted as the first
Transfer) only if the gross sales price in connection with such Transfer exceeds $580 million (or
a prorated portion thereof if such Transfer is of less than 100% of the ownership interests of
Lessee). lf the first such Transfer has a gross sales price equal to or less than $580 million,
Transaction Rent shall apply to the next two (2) succeeding Transfers regardless of whether the
gross sales price in connection therewith exceeds $580 million.
(i) An example of calculating Transaction Rent pursuant to Section 4.4(b) is
set forth on Exhibit "O".
(c) Non-subordination of Rent. The Rent payable to City hereunder shall never be
subordinated, including to any sums due under the Construction Loan or any other financing by
Lessee, and City shall at all times have a first priority right to payment of the Rent from Gross
Operating Revenues.
(d) Pavment of Rent and Other Pavments. All Rent and other payments hereunder
required to be made to the City shall be paid to the City at the Office of the Director of Finance,
Miami Beach City Hall, 1700 Convention Center Drive,3'd Floor, Miami Beach, Florida 33139
and in such manner or at such other place as the City shall designate from timeto-time in a
notice given pursuant to the provisions of Section 14.5.
(e) Late Pavment Charqe. ln the event the Lessee fails to make any payments, as
required to be paid under the provisions of this Lease, within fifteen (15) days after same shall
become due, interest at the Default Rate shall accrue against the delinquent payment(s) from
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the original due date until the City actually receives payment. The right of the City to require
payment of such interest and the obligation of the Lessee to pay same shall be in addition to
and not in lieu of the rights of the City to enforce other provisions herein, including termination of
this Lease, and to pursue other remedies provided by law. All payments of money required to
be paid to the City by Lessee under this Lease other than Base Rent, including interest, late
fees, penalties and contributions, shall be treated as Additional Rent.
(0 Dishonored Gheck or Draft. ln the event that the Lessee delivers a dishonored
check, draft or wire transfer to the City in payment of any obligation arising under this Lease, the
Lessee shall incur and pay City an amount that is three (3) times the service fee incurred by City
for such dishonored check or draft. Further, in such event, the City may require that future
payments required pursuant to this Lease be made by cashier's check or other means
acceptable to the City.
(g) Holdover Rental. ln the event that the Lessee remains in possession of the
Leased Property beyond the Term or termination of this Lease, the Lessee shall be bound by all
of the terms and conditions of this Lease to the same extent as if this Lease were in full force
and effect during the time beyond the expiration date of this Lease. However, during any such
possession of the Leased Property, as a holdover tenant after the City has demanded the return
of the Leased Property, the Lessee shall be liable for double the Base Rent being paid at that
time, or, if Section 83.06, Florida Statutes, as amended provides a greater amount, then
whatever greater amount is specified in the Florida Statutes.
(h) No Abatement of Rent. Except as may be otherurrise expressly provided herein,
there will be no abatement, diminution or reduction of Rent payable by Lessee hereunder or of
the other obligations of Lessee hereunder under any circumstances.
(i) Lessee lmprovements Not Deemed Rent. The Lessee lmprovements will be
made by Lessee in order to put the Leased Premises in a condition suitable for the operation of
the Lessee's business. The cost or value of the Lessee lmprovements is intended by the parties
to inure solely to the benefit of the Lessee and no portion of such cost or value is intended to
inure to the benefit of the City or constitute rent, license fee or other consideration for the right to
occupy the Leased Property or the Lessee lmprovements until the surrender of the Leased
Property from Lessee to the City at the expiration or earlier termination of this Lease.
U) Records and Reportinq.
(i) For the purpose of permitting verification by the City of any amounts due
to it, including an account of Gross Operating Revenues, Base Rent and Transaction Rent,
Lessee shall keep and preserve for at least five (5) years in Miami-Dade County, Florida, at the
address specified in Section 14.5, or at its home office, auditable original or duplicate books and
records for the Hotel Project, which shall disclose all financial information regarding the Hotel
Project, including information required to determine Base Rent and Transaction Rent. All such
records shall be maintained in every material respect according to GAAP and, as applicable to
the Hotel, the Uniform System. The City shall, on commercially reasonable notice, have the right
during normal business hours at the expense of the City unless otherwise provided herein to
inspect such books and records and make any examination or audit or copy thereof which the
City may require at any time within one year after (a) submittal of the annual certification to City
set forth in Subsection 4.4(j)(ii) with respect to the Gross Operating Revenues, and (b) a
Transfer pursuant to which Transaction Rent is due in accordance herewith, with respect to the
gross sales price of such Transfer, as applicable. Records copied by the City, if any, shall be
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subject to the requirements of the Florida Public Records Act set forth in Chapter 119 of the
Florida Statutes ("Public Records Act"). To the fullest extent permitted by law, City shall protect
from disclosure any records that are confidential and exempt from disclosure under Florida law,
provided, however, that nothing herein shall preclude the City or its employees from complying
with the disclosure requirements of the Public Records Act, and any such compliance shall not
be deemed an event of default by the City under this Lease. City shall use its good-faith,
diligent efforts to provide timely written notice to Lessee of any public records request seeking
any records of the Lessee that may be within the City's custody, possession or control, to permit
Lessee the opportunity to seek to protect such information from disclosure. lf such audit shall
disclose a liability for Rent in excess of the Rent theretofore paid by Lessee for the period in
question, Lessee shall pay such excess amounts, together with interest at the Default Rate, as
Additional Rent within thirty (30) days after receipt of written demand therefor, and if such audit
shall disclose an overpayment of the Rent theretofore paid, the City shall return the excess to
Lessee within thirty (30) days after receipt of written demand therefore.
(ii) Lessee shall provide the City with an annual Audited Gross Operating
Revenues Schedule for each Lease Year during the Term, certified by the Lessee's outside
CPA, within one hundred twenty (120) days after the close of each Lease Year (including the
Lease Year in which this Lease terminates or is terminated) specifying the Gross Operating
Revenues, for each of the categories or items identified in the definition of Gross Operating
Revenues category, Base Rent for the applicable Lease Year and Additional Base Rent, if any.
(iii) lf Lessee shall fail to deliver the foregoing annual Audited Gross
Operating Revenues Schedule to the City within said one hundred twenty (120) day period, the
City shall have the right to either conduct an audit itself or to employ an independent certified
public accountant to examine such books and records as may be necessary to certify the
amount of Rents due with respect to such Lease Year and to obtain the information described
above. Lessee shall pay to the City, within thirty (30) days after receipt of written demand
thereof, as Additional Rent, the cost of any audit performed by or for the City pursuant to this
item (iii).
(iv) lf the City disagrees with the annual Audited Gross Operating Revenues
Schedule provided by Lessee, it may conduct its own audit within one year after receipt of same
by City, which Lessee shall pay for if said audit demonstrates a deficiency of more than three
percent (3%), in the amount of Base Rent due to the City. lf in the course of any audit the City
identifies a deficiency in excess of five percent (5%) in the amount of Base Rent (including any
Additional Base Rent due to the City), the City shall have the right to audit Lessee's books and
records for the three (3) prior calendar years. lf the City identifies any deficiencies in excess of
five percent (5%) in the amount of Base Rent (including any Additional Base Rent) due as a
result of an audit of any of those three (3) prior calendar years, the City shall have the right to
audit an additional two (2) prior calendar years. Any dispute between the two audits which
cannot be resolved by the Parties shall be resolved in accordance with Section 7.8 of this
Lease. The cost of any audit by the City which Lessee is required to pay the cost of pursuant to
this Section shall be the cost charged to the City by its independent auditors, or if done by City
personnel, the direct employee salary cost to the City for the time spent by said employees in
performing such audit, but not in excess of what would have been charged to the City for the
same service by the City's outside auditors.
(v) Quarterly, commencing on the Possession Date and continuing until the
Completion of Construction, and not less often than annually thereafter, Lessee shall deliver to
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the City a written report detailing the employment by Lessee of City of Miami Beach and Miami-
Dade County residents in the construction, operation and maintenance of the Hotel Project.
Section 4.5. Covenants for Pavment of Public Charqes bv Lessee.
(a) Pavment of Public Gharqes. Payment of Public Charges includes:
(i) Lessee, in addition to the Rent and all other payments due to City
hereunder, covenants and agrees timely to pay and discharge, before any fine, penalty, interest
or cost may be added, all real and personal property taxes, all ad valorem real property taxes,
all taxes on Rents payable hereunder and under Subleases, tourist, room and restaurant taxes,
public assessments and other public charges; and
(ii) Special Assessments pursuant to Section 4.5(d), electric, water and
sewer rents, rates and charges levied, assessed or imposed by any Governmental Authority
against the Leased Property, including all Lessee lmprovements thereon, in the same manner
and to the same extent as if the same, together with all Lessee lmprovements thereon were
owned in fee simple by Lessee.
(collectively, "Public Charges");
(b) Lessee's obligation to pay and discharge Public Charges levied, assessed or
imposed against or with respect to the Leased Property shall not commence until the
Possession Date. All such charges shall be prorated if the Possession Date is not at the
beginning of the calendar year. Lessee, upon written request, shall furnish or cause to be
furnished to the City, official receipts of the appropriate taxing authority, or other proof
satisfactory to the City evidencing the payment of any Public Charges.
(c) Contestinq lmpositions.
(i) Lessee shall have the right to contest the amount or validity, in whole or
in part, of any Public Charges, for which Lessee is, or is claimed to be, liable, by appropriate
proceedings diligently conducted but only after payment of such Public Charges, unless such
payment would operate as a bar to such contest or materially interfere with the prosecution
thereof, in which event, payment of such Public Charges may be postponed if, and only if,
Lessee has deposited with City, in its capacity as landlord under this Lease, cash or other
security Approved by the City Manager in the amount so contested and unpaid, together with
interest and penalties in connection therewith and any other charges that may be assessed
against or become a charge on the Leased Property or any part thereof in such proceedings.
Upon the termination of any such proceedings, Lessee shall pay the amount of such Public
Charges or part thereof, if any, as finally determined in such proceedings, together with any
costs, fees, including counsel fees, interest, penalties and any other liability in connection
therewith, and may use the cash or other security deposited with the City for such purpose.
(ii) City shall not be required to join in any proceedings referred to in this
Section 4.5(c) unless:
(1) Governmental Requirements shall require that such proceedings
be brought by or in the name of City; or
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(2) the proceeding involves the assessment or attempted assessment
of a real estate or ad valorem tax on the Leased Property,
in which event the City shall join in such proceedings or permit the same to be brought in the
City's name. Notwithstanding the foregoing, City's joinder and cooperation shall be limited to
actions necessary to enable Lessee to satisfy technical requirements of any action or
proceeding and in no event shall City be required to join in such action or proceeding in any
substantive capacity.
(iii) Except for any counsel it retains separately, the City shall not be
subjected to any liability to pay any fees, including counsel fees, costs and expenses regarding
such proceedings. Lessee agrees to pay such fees, including commercially reasonable counsel
fees, costs and expenses or, on demand, to make reimbursement to the City for such payment.
The City will endeavor to use in house counsel whenever possible, in accordance with the City's
customary practices.
(d) Special Assessments. The City retains all its rights to impose nondiscriminatory
special assessments or other public charges; provided, however, if at any time the City, in its
municipal capacity, subjects non-governmental users to an exclusive franchise for trash removal
or other public services, Lessee will be treated the same as similarly sized and situated
properties (such as the Miami Beach Loews Hotel).
ARTICLE V
ASSIGNMENT
Section 5.1. Purpose of Restrictions on Transfer. This Lease is granted to Lessee solely to
develop the Hotel Project and its subsequent use according to the terms hereof, and not for
speculation in landholding. Lessee recognizes that, in view of the importance of developing the
Hotel Project to the general welfare of the City and the general community, the Lessee's
qualifications and identity are of particular concern to the community and the City. Accordingly,
Lessee acknowledges that it is because of such qualifications and identity that the City is
entering into this Lease with Lessee, and, in so doing, the City is further willing to accept and
rely on the Lessee's obligations for faithfully performing all its undertakings and covenants.
Section 5.2. Transfers. Lessee represents and warrants that Lessee has not made, created
or suffered any Transfers as of the date of this Lease and that the Persons that have an
ownership interest in Lessee on the date of this Lease are listed, together with their percentage
and character of ownership, on Exhibit "M". No Transfer may or shall be made, suffered or
created by Lessee, its successors, assigns or transferees without complying with the terms of
this Article V. Any Transfer that violates this Lease shall be null and void and of no force and
effect.
Section 5.3. Permitted Transfers.
(a) Prior to the Opening Date, other than Permitted Transfers, no Transfer will be
permitted without the written Approval of the City.
(b) Each of the following Transfers, shall be permitted hereunder without the City's
Approval ("Perm itted Transfers"):
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(i) a Transfer prior to the Possession Date of a direct or indirect interest in
Lessee to an equity investor funding the balance of the Equity Commitment in excess of the
Portman Minimum Equity Contribution (together with any additional amounts funded by Portman
or one of its Affiliates), provided that such transferee is an Acceptable Owner;
(ii) a Transfer after the Opening Date of the entire Hotel Project or any direct
or indirect interest in Lessee provided that (i)the transferee is an Acceptable Owner; (ii) the City
is given written notice thereof together with true and correct copies of the proposed Transfer
documents and other agreements between the parties and current certified financial statements
(to the extent applicable) and other relevant information of the proposed transferee in
accordance with the time frames set forth on Exhibit "A" attached hereto in order for City
Manager to confirm that the transferee (or the Lessee) is an Acceptable Owner; (iii) no Event of
Default has occurred and is continuing and (iv) all of the conditions precedent to the
effectiveness of such Transfer as set forth in Section 5.5 hereof are satisfied;
(iii) Any Transfer, if in accordance with the terms and conditions of Article Vl,
by the First Leasehold Mortgagee, to an agent, designee or nominee of the First Leasehold
Mortgagee that is wholly owned or Controlled by such First Leasehold Mortgagee;
(iv) Any Transfer directly resulting from the foreclosure of a First Leasehold
Mortgage or the granting of a deed in lieu of foreclosure of a First Leasehold Mortgage or any
Transfer made to the purchaser at foreclosure of a First Leasehold Mortgage or to the grantee
of a deed in lieu of foreclosure of a First Leasehold Mortgage (if such purchaser or grantee is a
nominee in interest of the First Leasehold Mortgagee), and provided further that such Transfer,
purchase or grant is in accordance with the terms and conditions of Article Vl;
(v) Any Transfer directly resulting from a conveyance to a First Leasehold
Mortgagee of Lessee's interest provided it is in accordance with the terms and conditions of
Article Vl;
(vi) Any Transfer directly resulting from the foreclosure by the Mezzanine
Lender of a pledge of ownership interests of Lessee or any Transfer made to the purchaser at a
foreclosure of such pledge of ownership interests of Lessee (if such purchaser is a nominee in
interest of the Mezzanine Lender), or any assignment in lieu of such foreclosure, provided that
such Transfer is in accordance with the terms and conditions of Article Vl;
(vii) Any Transfer, or series of Transfers, not permitted pursuant to Sections
5.3(b)(i) and 5.3(b)(ii) above of not more than an aggregate of ten percent (10o/o) of the direct or
indirect ownership interests in Lessee, provided that at all times after such Transfer, Portman or
an Affiliate thereof, an Acceptable Owner or other successor Person Approved by the City
Manager has the power to direct the day-to-day management and policies of Lessee;
provided, however, in the case of any Transfer hereunder, the proposed transferee shall not,
directly or indirectly, own, operate or manage any Gaming Establishment in Miami-Dade
County, Florida and any purported Transfer in violation hereof shall be null and void and of no
force and effect; provided, however, that the foregoing restriction shall not apply to a proposed
transferee if all Persons owning or Controlling such proposed transferee, own or control in the
aggregate five percent (5%) or less of the voting securities of any owner, operator or manager
of a Gaming Establishment in Miami-Dade County, Florida.
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Section 5.4. Transfer Requirinq Citv's Approval. Regarding any Permitted Transfer
pursuant to Section 5.3(b) or any other Transfer that is not a Permitted Transfer, Lessee shall
give or cause to be given to the City written notice of a Transfer (in the case of a Permitted
Transfer), or written notice requesting Approval of any other Transfer that is not a Permitted
Transfer, and submitting all information reasonably necessary for the City Manager (or the City
Commission, with respect to Transfers to certain Foreign lnstrumentalities as specified herein)
to evaluate the proposed transferees and the Transfer and to obtain the City's Approval of
same, when required. lf a Permitted Transfer, said information shall demonstrate that the
transferee is an Acceptable Owner as set forth on Exhibit "A" attached hereto lf not a
Permitted Transfer, Lessee shall provide to the City the information described in Paragraph C of
Exhibit "A" and the provisions described in Paragraph D of Exhibit "A" shall apply. The City's
confirmation or Approval process shall proceed as set forth on Exhibit "A" attached hereto.
Any Approval of a Transfer to a Foreign lnstrumentality (other than to any of the member
countries of the European Unionl or the Gulf Cooperation Council2, each as existing as of the
Effective Date, Canada, Mexico, countries located in South America, Japan, South Korea,
Singapore and Australia, or Persons Controlled by any of the foregoing countries) shall be
subject to the prior written approval of the City Commission, which approval may be granted,
conditioned or withheld by the City Commission in its sole discretion. Any Approval of a
Transfer shall not waive any of the City's rights to Approve or disapprove of any subsequent
Transfer. Lessee shall from time to time throughout the Term, as the City shall reasonably
request, furnish the City with a complete statement, subscribed and sworn to by a Responsible
Officer of Lessee, setting forth the full names and address of holders of the ownership interests
in Lessee who hold, directly or indirectly, at least a ten percent (10%) interest in Lessee as well
as to confirm the percentage ownership interest, if any, of such Responsible Officer.
Section 5.5. Effectiveness of Transfers. No Transfer shall be effective unless and until all of
the following conditions precedent are satisfied within thirty (30) days of such Transfer:
(a) executed copies of the Transfer documents and other agreements between the
parties to the Transfer are delivered to the City; and
(b) where the Transfer is pursuant to Section 5.3(bxii), and if it is of the entire Hotel
Project, the Person to which any such Transfer is made, by a commercially reasonable, written
instrument and in form recordable among the public records, shall, for itself and its successors
and assigns, and especially for the benefit of the City, expressly assume all of the obligations of
Lessee under this Lease and agree to be liable and subject to all conditions and restrictions to
which Lessee is subject.
Section5.6. Sublettinq.
(a) Subject to the other terms and conditions of this Lease, Lessee shall have the
right to enter into Subleases of portions of the Leased Property at any time and from time to
1 As of 7t17t2015, the member countries are Austria, Belgium, Bulgaria, Croatia, Cyprus, Czech Republic,
Denmark, Estonia, Finland, France, Germany, Greece, Hungary, lreland, ltaly, Latvia, Lithuania,
Luxembourg, Malta, The Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden,
and the United Kingdom.
2 As of 07117t2015, the member countries are Bahrain, Kuwait, Oman, Qatar, Saudi Arabia and the
United Arab Emirates.
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time during the Term of this Lease with such Subtenants and upon such commercially
reasonable terms and conditions as Lessee shall deem fit and proper, provided the Sublease is
consistent with this Lease and consistent with the Hotel Standards. At the City's request,
Lessee shall allow the City to review and inspect any and all Subleases for the Hotel Project.
(b) Lessee covenants that it will perform and observe in all material respects all the
terms, covenants, conditions and agreements required to be performed and observed by it
under each Sublease. Lessee agrees that each Sublease shall:
(i) require the Subtenant to maintain adequate books and records including
reasonably detailed information on Gross Operating Revenues of the applicable subleased
portion of the Leased Premises and to submit the same for inspection and audit by the City and
require the Subtenant to comply with Governmental Requirements;
(ii) provide that, if this Lease terminates, the Subtenant shall, if required by
the City, pay all rents and all other charges required by such Sublease directly to the City; and
(iii) obligate the Subtenant not to violate any term, covenant or restriction
applicable to Lessee that is contained in this Lease. ln addition, Lessee shall in all events
require and cause Subtenants to perform obligations imposed by the Lease and applicable to
such Sublease (specifically including the obligations set forth in this Section 5.6).
(c) Notwithstanding anything to the contrary contained herein, at all times the Base
Rent payable to the City with respect to all portions of the Leased Property, whether or not
subleased to a Subtenant, shall be based on the Gross Operating Revenues of the Leased
Property, including any subleased portion of the Leased Property, and shall not be based on the
Sublease rent paid by any Subtenant thereunder (and such Sublease rent shall not be included
in calculating Gross Operating Revenues), except solely with respect to a portion of the Leased
Property leased to a Subtenant for purposes of operating a gift shop; a car rental facility; FedEx,
UPS or a similar delivery service; beachwear and equipment rental; and antennae; in which
cases, such Sublease rent (but not Gross Operating Revenues of such Subleased portions of
the Leased Property) shall be included in calculating Gross Operating Revenues.
ARTICLE VI
MORTGAGE FINANCING: RTGHTS OF MORTGAGEE AND LESSEE
Section 6.1. Conditions of Financinq and Leasehold Mortsaqe.
(a) Lessee shall have the right to secure one or more financings or re-financings
and, in conjunction with and to secure that financing or re-financing, may enter into a First
Leasehold Mortgage in favor of a First Leasehold Mortgagee and/or a pledge of its ownership
interests in favor of a Mezzanine Lender, provided that:
(i) any such secured financing of the Hotel Project exclusively secures debt
of the Lessee directly related to the Hotel Project;
(ii) no First Leasehold Mortgage or other encumbrance executed by the
Lessee in connection with such First Leasehold Mortgage or Mezzanine Loan or otherurrise will
extend to or be a lien or encumbrance upon City's interest in any part of the Leased Property or
in any right appurtenant to that interest;
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(iii) the First Leasehold Mortgage and any other encumbrance executed by
the Lessee in connection with such First Leasehold Mortgage or otherwise shall at all times,
without the necessity for the execution of any further documents, be subject and subordinate to
the interest of the City in the Leased Property; provided that the First Leasehold Mortgagee
agrees from time to time upon request and without charge to execute, acknowledge and deliver
any instruments reasonably requested by the City under this Lease to evidence the foregoing
subordination;
(iv) the rights of the City in the Leased Property and arising out of this Lease
shall not be affected by the First Leasehold Mortgage, First Leasehold Mortgagee, Mezzanine
Loan or Mezzanine Lender, nor shall the City be deprived in any other way of its rights in the
Leased Property or under this Lease, except to the extent provided in this Article Vl or in any
subordination or other written agreement between the City and such First Leasehold Mortgagee
or Mezzanine Lender;
(v) Lessee shall at all times remain liable hereunder for the payment of Rent
and the performance of all covenants and conditions of this Lease as provided in this Lease;
(vi) at the time of the closing of the financing or re-financing, Lessee certifies
to the City that the Hotel Project, after taking into account all existing debt of the Lessee, is
projected to have and be able to sustain a Debt Service Coverage Ratio of not less than 1.25
(based on the reasonably projected first stabilized year for any financing that closes prior to the
end of the reasonably projected first stabilized year, and any twelve (12) consecutive months
out of the previous eighteen (18) months of operations for subsequent financings);
(vii) at the time of the closing of the financing or re-financing, the aggregate
amount of the principal indebtedness secured by (a) mortgages encumbering Lessee's interest
in the Leased Property and/or (b) pledges of ownership interests of Lessee, does not exceed an
amount equal to seventy percent (70%) of the sum of (1) the then value of Lessee's interest in
the Leased Property and any improvements previously constructed on the Leased Property, as
reasonably determined by a third-party appraiser selected by the City and engaged at Lessee's
sole expense, which appraiser must have at least ten (10) years of experience in appraising
hotel properties of at least four hundred (400) rooms in the Miami Beach area, (2) the value of
any improvements to be constructed on the Leased Property with the proceeds of such
financing or re-financing, and (3) all costs incurred, and all reserves required, in connection with
such financing or re-financing;
(viii) the First Leasehold Mortgagee waives all right and option to retain and
apply the proceeds of any insurance or the proceeds of any condemnation award toward
payment of the sum secured by the First Leasehold Mortgage to the extent such proceeds are
required for the demolition, repair or restoration of the Leased Property in accordance with the
provisions of this Lease; and
(ix) no purchaser at any foreclosure sale will acquire any right, title or interest
in or to this Lease, unless such purchaser, in a written instrument reasonably satisfactory to the
City, assumes and agrees to perform all of the terms, covenants and conditions of Lessee
hereunder arising after the date of such Transfer (provided that City does not waive or relinquish
its right, and shall have the right, to enforce its remedies with respect to any Event of Default
existing as of the date of such Transfer), that no additional mortgage or assignment of this
Lease or pledge of ownership interests of Lessee will be made except in accordance with the
provisions contained in this Article Vl, and that a duplicate original of such written instrument,
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duly executed and acknowledged by such purchaser and in recordable form, is delivered to the
City immediately after the consummation of such sale, or, in any event, prior to taking
possession of the Leased Property.
(b) Prior to the date (i) a First Leasehold Mortgage is recorded or (ii) the Mezzanine
Lender, if any, enters into a Mezzanine Loan or Credit Enhancement agreement with Lessee,
the First Leasehold Mortgagee or Mezzanine Lender, as applicable, Lessee and the City (by
and through the City Manager) shall enter into a non-disturbance and attornment agreement
containing the provisions set forth in Section 6.1(d) below and such other terms and conditions
as are reasonably acceptable to the First Leasehold Mortgagee or Mezzanine Lender, as
applicable, and the City Manager, after consultation with the City's Chief Financial Officer and
City Attorney.
(c) Lessee shall deliver to the City, promptly after execution by Lessee, (i) a true and
verified recorded copy of any First Leasehold Mortgage and any amendment, modification or
extension thereof, together with the name and address of the First Leasehold Mortgagee and (ii)
a true and correct copy of any Mezzanine Loan or Credit Enhancement agreement and any
amendment, modification or extension thereof, together with the name and address of the
Mezzanine Lender.
(d) For so long as any First Leasehold Mortgage encumbers the Leased Property,
or, as applicable, a Mezzanine Lender holds a pledge of Lessee's ownership interest, and
provided the conditions of Section 6.1(a) through (c) above have been satisfied:
(i) in any event where the City gives Lessee notice of an Event of Default,
the City shall deliver a copy of such notice to the First Leasehold Mortgagee and Mezzanine
Lender, at the name and address designated in writing by the First Leasehold Mortgagee and
Mezzanine Lender to the City from time to time (the City shall be deemed to have fulfilled its
notice obligation by providing the required notice to the address delivered to the City in
accordance with Section 6.1(c) or such other address so designated by the First Leasehold
Mortgagee or Mezzanine Lender to the City in writing and shall not be responsible for any
liability in the event such address is not current);
(ii) notwithstanding the time allowed for Lessee to cure an Event of Default,
the First Leasehold Mortgagee and the Mezzanine Lender shall have the right, but not the
obligation, up to fifteen (15) days following the City's notice thereof to cure a monetary default
and thereafter keep all Rent and other amounts due hereunder current, and up to thirty (30)
days following the City's notice thereof to cure a non-monetary Event of Default (except an
Event of Default under Sections 7.1(c) or (d) hereof, for which the First Leasehold Mortgagee
and Mezzanine Lender will not be given any additional time to remedy), but if such non-
monetary Event of Default cannot be cured within such thirty (30) day period, then the First
Leasehold Mortgagee and Mezzanine Lender shall have up to ninety (90) days to cure, provided
that it has started to do so within the initial thirty (30) day period and thereafter continues to
diligently pursue the cure. The City will accept performance by the First Leasehold Mortgagee
and Mezzanine Lender of any covenant, condition or agreement on Lessee's part to be
performed hereunder with the same force and effect as though performed by Lessee; and
(iii) notwithstanding the provisions of Article Vll hereof, no Event of Default by
Lessee will be deemed to exist as to the First Leasehold Mortgagee as long as the First
Leasehold Mortgagee, in good faith, either promptly (A) commences to cure such Event of
Default and prosecute the same to completion in accordance with clause (ii) above, or (B) if the
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nature of any non-monetary Event of Default (except an Event of Default under Sections 7.1(c)
or (d) hereof, for which the First Leasehold Mortgagee will not be given any additional time to
remedy) is such that possession of the Hotel Project is reasonably necessary to cure the Event
of Default or if the Event of Default is of the type that cannot commercially reasonably be cured
by the First Leasehold Mortgagee (e.9., Lessee bankruptcy) (and which will be waived as to the
First Leasehold Mortgagee if the First Leasehold Mortgagee cures all other Events of Default),
files a complaint for foreclosure and thereafter prosecutes the foreclosure action in good faith
and with diligence and continuity and obtains possession directly or through a receiver, and as
promptly as practicable after obtaining such possession, commences promptly to cure such
Event of Default and to prosecute the same to completion in good faith and with diligence and
continuity; provided, however, that the First Leasehold Mortgagee has delivered to the City, in
writing within twenty (20) days following receipt of City's notice of default, its agreement to take
the action described in clause (A) or (B) of this clause (iii), and that during the period in which
such action is being taken (and any foreclosure proceedings are pending), all of the other
obligations of Lessee under this Lease, to the extent they are susceptible of being performed by
the First Leasehold Mortgagee (e.9., the payment of Rent), are being duly performed. However,
at any time after the delivery of the aforementioned agreement, the First Leasehold Mortgagee
may notify the City, in writing, that it has relinquished possession of the Leased Property, or that
it will not institute foreclosure proceedings or, if such proceedings have been commenced, that it
has discontinued them, and in such event, the First Leasehold Mortgagee will have no further
liability under such agreement from and after the date which is 30 days after it delivers such
notice to the City (except for any obligations accruing prior to 30 days after the date it delivers
such notice), and, thereupon, subject to the rights of the Mezzanine Lender set forth in clause
(iv) below, the City will have the unrestricted right to terminate this Lease and to take any other
action it deems appropriate by reason of any Event of Default, and upon any such termination,
the provisions of Section 6.1(h) hereof will apply.
(iv) notwithstanding the provisions of Article Vll hereof, no Event of Default by
Lessee will be deemed to exist as to the Mezzanine Lender as long as the Mezzanine Lender,
in good faith, either promptly (A) commences to cure such Event of Default and prosecute the
same to completion in accordance with clause (ii) above, or (B) if the nature of any non-
monetary Event of Default (except an Event of Default under Sections 7.1(c) or (d) hereof, for
which the Mezzanine Lender will not be given any additional time to remedy) is such that
possession of the Lessee's ownership interests is reasonably necessary to cure the Event of
Default or if the Event of Default is of the type that cannot commercially reasonably be cured by
the Mezzanine Lender (e.9., Lessee bankruptcy) (and which will be waived as to the Mezzanine
Lender if the Mezzanine Lender cures all other Events of Default), has taken all reasonable
steps necessary to foreclose the pledge of the Lessee's ownership interests, and prosecutes
such action in good faith and with diligence and continuity and obtains possession of the
Lessee's ownership interest, and as promptly as practicable after obtaining such possession,
commences promptly to cure such Event of Default and to prosecute the same to completion in
good faith and with diligence and continuity; provided, however, that the Mezzanine Lender has
delivered to the City, in writing within twenty (20) days following receipt of City's notice of
default, its agreement to take the action described in clause (A) or (B) of this clause (iv), and
that during the period in which such action is being taken, all of the other obligations of Lessee
under this Lease, to the extent they are susceptible of being performed by the Mezzanine
Lender (e.9., the payment of Rent), are being duly performed. However, at any time after the
delivery of the aforementioned agreement, the Mezzanine Lender may notify the City, in writing,
that it has relinquished possession of the Lessee's ownership interests or that it will not seek to
foreclose the pledge of Lessee's ownership interests or, if such foreclosure has commenced,
that it has been discontinued, and in such event, the Mezzanine Lender will have no further
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liability under such agreement from and after the date which is 30 days after it delivers such
notice to the City (except for any obligations accruing prior to 30 days after the date it delivers
such notice), and, thereupon, subject to the rights of the First Leasehold Mortgagee set forth in
clause (iii) above, the City will have the unrestricted right to terminate this Lease and to take any
other action it deems appropriate by reason of any Event of Default, and upon any such
termination, the provisions of Section 6.1(h) hereof will apply.
(e) From and after the date upon which the City receives the notice described in
Section 6.1(c) hereof, the City will not (i) consent to a cancellation or surrender of this Lease
(except upon the expiration of the Term), or any amendment or modification materially
increasing the Lessee's obligations hereunder or (ii) terminate this Lease other than as provided
in this Article Vl (except upon the expiration of the Term) without the prior written consent of the
First Leasehold Mortgagee and Mezzanine Lender, which consent shall not be unreasonably
delayed, conditioned or withheld.
(0 Foreclosure of a First Leasehold Mortgage or any sale thereunder, whether by
judicial proceedings or by any power of sale contained in the First Leasehold Mortgage or
applicable law, or any conveyance of the Hotel Project from Lessee to the First Leasehold
Mortgagee in lieu of the foreclosure or other appropriate proceedings in the nature thereof, or
any foreclosure of a Mezzanine Loan, or conveyance of the Lessee's ownership interest in lieu
thereof, shall not:
(i) require the City's consent; or
(ii) provided the First Leasehold Mortgagee or the Mezzanine Lender has
complied with the provisions of this Article Vl, constitute a breach of any provision of or a default
under this Lease.
(g) lf the First Leasehold Mortgagee or any other foreclosure sale purchaser
subsequently assigns or transfers its interest under this Lease after acquiring the same by
foreclosure or by an acceptance of a deed in lieu of foreclosure or subsequently assigns or
transfers its interest under any such new lease entered into pursuant to Section 6.1(h) below,
and in connection with any such assignment or transfer, the First Leasehold Mortgagee or any
other foreclosure sale purchaser takes back a First Leasehold Mortgage to secure a portion of
the purchase price, the holder of such First Leasehold Mortgage shall be a First Leasehold
Mortgagee entitled to receive the benefit of this Article Vl and all other provisions of this Lease
intended for the benefit of a First Leasehold Mortgagee. Similarly, if a Mezzanine Lender or a
purchaser under a UCC sale obtains title to the ownership interests in Lessee and subsequently
assigns or transfers its interests in such ownership interests, or subsequently assigns or
transfers its interest underany new lease entered into pursuantto Section 6.1(h) below, and in
connection with any such assignment or transfer, the Mezzanine Lender or any other UCC sale
purchaser takes back a pledge of the Lessee's ownership interests to secure a portion of the
purchase price, the holder of such pledge shall be a Mezzanine Lender entitled to receive the
benefit of this Article Vl and all other provisions of this Lease intended for the benefit of a
Mezzanine Lender.
(h) Should the Lessee or any First Leasehold Mortgagee or Mezzanine Lender not
cure the alleged Event of Default as provided in this Section 6.1, the City has the right to
terminate this Lease by reason of any uncured Event of Default as provided in this Lease. lf this
Lease is terminated by the City in accordance with the foregoing or is terminated as a result of
the bankruptcy of the Lessee, the City shall give written notification of such termination to the
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First Leasehold Mortgagee and Mezzanine Lender, and the City shall, upon written request of
the First Leasehold Mortgagee to the City received within thirty (30) days after such notice of
termination, enter into a new lease of the Leased Property with such First Leasehold Mortgagee
or Lessee (as owned by Mezzanine Lender), as lessee, for the remainder of the Term with the
same covenants, conditions and agreements (except for any requirements which have been
fully satisfied by Lessee or City prior to termination or which pertain to the ownership of Lessee)
as are contained herein.
(i) The City's delivery of the Leased Property to the First Leasehold Mortgagee or
Lessee (as owned by Mezzanine Lender), as applicable, as lessee, pursuant to a new lease
shall be:
(i) made without representation or warranty of any kind or nature whatsoever
either express or implied;
(ii) First Leasehold Mortgagee or Lessee (as owned by Mezzanine Lender),
as lessee, shall take such Leased Property "as-is" in its then current condition; and
(iii) upon execution and delivery of such new lease, First Leasehold
Mortgagee or Lessee (as owned by Mezzanine Lender), as lessee, at its sole cost and expense
shall be responsible for taking such action as shall be necessary to cancel and discharge this
Lease and to remove Lessee named herein and any other occupant (other than as allowed by
the First Leasehold Mortgagee or Lessee (as owned by Mezzanine Lender), as applicable, as
lessee, or the City) from the Hotel Project.
0) The City's obligation to enter into such new lease of the Leased Property with the
First Leasehold Mortgagee or Lessee (as owned by the Mezzanine Lender) shall be conditioned
upon, on the date the new lease is executed:
(i) the City receiving payment of all Rent due hereunder through the date of
such new lease;
(ii) all monetary defaults hereunder having been cured;
(iii) all non-monetary defaults susceptible to cure having been remedied and
cured (or First Leasehold Mortgagee or Lessee (as owned by Mezzanine Lender), as
applicable, as lessee, having commenced such cure and continuing to diligently complete the
cure in accordance with clauses (iii) or (iv) of paragraph (d) above, as applicable); and
(iv) the City receiving payment of all expenses, including reasonable
attorneys' fees and disbursements and court costs, incurred by the City in connection with such
Event of Default, the termination of this Lease and the preparation of the new lease, together
with interest thereon at the lesser of the Default Rate or the highest rate permitted by law, from
the due date or the date expended by the City, as the case may be, to the date of actual
payment from First Leasehold Mortgagee or Mezzanine Lender, as applicable.
(k) With respect to the payment of Rent by the First Leasehold Mortgagee or
Mezzanine Lender pursuant to this Article Vl, if the Rent currently due cannot be determined by
the First Leasehold Mortgagee or Mezzanine Lender, as applicable, without possession of the
Hotel Project or ownership of the Lessee's equity interests, as applicable, then the First
Leasehold Mortgagee or Mezzanine Lender may pay the amount of Base Rent which was paid
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for the immediately previous period, with the adjustment, upward or downward, to be made
ninety (90) days after the First Leasehold Mortgagee obtains possession of the Hotel Project or
the Mezzanine Lender obtains possession of Lessee's equity interests, as applicable.
Section 6.2. No Waiver of Lessee's Obliqations or Citv's Riqhts. Nothing contained herein
or in any Leasehold Mortgage shall be deemed or construed to relieve Lessee from the full and
faithful observance and performance of its covenants, conditions and agreements contained
herein, or from any liability for the non-observance or non-performance thereof, or to require,
allow or provide for the subordination to the lien of such Leasehold Mortgage or to any
Leasehold Mortgagee of any estate, right, title or interest of the City in or to the Leased
Property, buildings and structures or this Lease (including the right to Rent, Public Charges, and
other monetary obligations of Lessee to the City under this Lease), nor shall the City be required
to join in such mortgage financing or be liable for same in any way. City's interest in the Leased
Property and this Lease, as the same may be modified, amended or renewed, will not at any
time be subject or subordinate to (a) any mortgage now or hereafter placed upon Lessee's
interest in this Lease, or (b) any other liens or encumbrances hereafter affecting Lessee's
interest in this Lease.
ARTICLE VII
REMEDIES: EVENTS OF DEFAULT
Section 7.1. Default bv Lessee. Each of the following occurrences shall constitute an "Event
of Default" of Lessee that shall entitle City to terminate this Lease and seek any other remedies
as set forth in Section 7.2:
(a) if Lessee fails to pay any installment of Rent, including Base Rent, or any
part thereof, when the same becomes due and payable for a period of three (3) Business Days
after notice thereof from the City; provided, however, that the City shall not be obligated to
provide written notice of such failure more than two (2) times in any consecutive twelve (12)
month period, and the failure of Lessee to pay any third or subsequent installment of Rent when
due in any consecutive twelve (12) month period shall constitute an Event of Default by Lessee
hereunder without the requirement of notice or opportunity to cure;
(b) if Lessee fails to make any payment of Additional Rent, Public Charges or
any other payment required to be paid by Lessee hereunderfor a period of 10 Business Days
after notice thereof from City to Lessee;
(c) if Lessee fails to satisfy all of the Possession Conditions by the Outside
Possession Date;
(d) if Lessee fails, after Commencement of Construction, to Complete
Construction by the Outside Completion Date;
(e) if Lessee fails, after Commencement of Construction, to cause the
Opening Date to occur by the Outside Opening Date;
(0 if Lessee conducts on the Leased Property any business, the
performance of any service, or the sale or marketing of any product or service by Lessee which
is prohibited by the terms of this Lease for a period of thirty (30) days after receipt of notice
thereof from the City;
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(g) lf Lessee knows or actively participates in the use of any portion of the
Hotel Project as a Gaming Establishment (through venue rental, promotion or other similar
activities) for a period of three (3) Business Days after written notice thereof from the City;
provided, however, that the City shall not be obligated to provide written notice of such failure
more than two (2)times in any consecutive twelve (12) month period, and the failure of Lessee
to comply with the restrictions in Section 4.2(b) prohibiting use of the Leased Property as a
Gaming Establishment after the second written notice in any consecutive twelve (12) month
period shall constitute an Event of Default by Lessee hereunder without the requirement of any
notice or opportunity to cure;
(h) lf Lessee or any Person with an ownership interest in Lessee violates
Section 4.2(g) (other than as provided in subsection (g) above) or the Acceptable Owner criteria
specified in subparagraphs A.1., A.3. and A.4 of Eh!!i!-A of this Lease; provided, however, in
the case of any such violation by any Person with an ownership interest in Lessee, Lessee shall
have twelve months to cure such violation after Lessee first becomes aware of such violation
(whether by notice from the City or otherwise);
(i) if Lessee fails to maintain or provide evidence of all insurance in strict
compliance with Article lX hereof and such failure continues for a period of ten (10) Business
Days from the date of written notice thereof from City;
0) if Lessee fails to operate the Hotel in compliance in all material respects
with the Hotel Standards, regardless of the Hotel's AAA rating, and such failure continues for a
period of ninety (90) days from the date of written notice thereof from City or if the default is not
capable of being cured within such ninety (90) day period, Lessee fails within such period to
commence a cure and thereafter diligently and in good faith prosecute the same to completion
within a reasonable time, subject to the rights of any First Leasehold Mortgagees and sub-
lessees hereunder;
(k) if there is a default by Lessee under the Management Agreement and asa result of such default the Management Agreement is terminated and a replacement
Management Agreement is not entered into within ninety (90) days thereafter, provided that if
Lessee shall have commenced and thereafter shall have continued diligently to replace the
Management Agreement within such ninety (90) day period and the Hotel Project continues to
operate in the ordinary course of business, then Lessee shall have an additional commercially
reasonable period of time not to exceed one hundred eighty (180) days within which to enter
into a replacement Management Agreement;
(l) if prior to the Opening Date, any lawsuit is filed against the Lessee, which
is not dismissed within sixty (60) days and the amount in controversy of which is not covered by
insurance or bond and which, if adversely determined, would substantially impair the ability of
Lessee to perform its obligation to open the Hotel by the Outside Opening Date, unless Lessee
is contesting such lawsuit in good faith and through appropriate action.
(m) if Lessee fails to observe or perform one or more of the other terms,
conditions, covenants or agreements of this Lease not otherwise addressed in this Section 7.1
and such failure continues for a period of 45 days after written notice thereof by City to Lessee
specifying such failure, unless such failure requires work to be performed, acts to be done, or
conditions to be removed which cannot by their nature reasonably be performed, done or
removed, as the case may be, within such 45 day period, in which case no Default will be
deemed to exist as long as (i) Lessee commences curing the same within such 45 day period
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and diligently and continuously prosecutes the same to completion and (ii) after the Opening
Date the Hotel Project continues to operate in the ordinary course of business, to the extent
commercially reasonable taking into account the nature of the alleged failure to perform
according to the covenant, condition or agreement in question;
(n) if Lessee is generally not paying its debts as such debts become due or
admits, in writing, that it is unable to pay its debts as such debts become due;
(o) if Lessee makes an assignment for the benefit of creditors;
(p) if Lessee files a voluntary petition under the Bankruptcy Code or if such
petition is filed against Lessee and an order for relief is entered, or if Lessee files any petition or
answer seeking, consenting to or acquiescing in any reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief under the Bankruptcy Code or any other
present or future applicable federal, state or other statute or law, or seeks or consent to or
acquiesces in or suffers the appointment of any trustee, receiver, custodian, assignee,
sequestrator, liquidator or other similar official of Lessee, or of all or any substantial part of its
properties or of the Leased Property or any interest of Lessee therein;
(q) if within g0 days after the commencement of any proceeding against
Lessee seeking to have an order for relief entered against it as debtor or to adjudicate it a
bankrupt or insolvent, or seeking any reorganization, arrangement, composition, readjustment
or adjustment, winding-up, liquidation, dissolution or similar relief under the Bankruptcy Code or
any other present or future applicable federal, state or other statute or law of any jurisdiction,
domestic or foreign, such proceeding has not been dismissed, or if, within 90 days after the
appointment, without the consent or acquiescence of Lessee, of any trustee, receiver,
custodian, assignee, sequestrator or liquidator of Lessee, or of all or any substantial part of its
properties or of the Leased Property or any interest of Lessee therein, such appointment has
not been vacated or stayed on appeal or othenarise, or if, within 30 days after the expiration of
any such stay, such appointment has not been vacated;
(r) if any case, proceeding or other action is commenced or instituted against
Lessee seeking the issuance of a warrant of attachment, execution or similar process against all
or any substantial part of its property, which case, proceeding or other action results in the entry
of an order for any such relief which has not been vacated, discharged, stayed or bonded
pending Lessee's appealtherefrom within 30 days from the entry thereof;
(s) if Lessee fails, or fails to cause the Hotel Operator, to continuously
operate the Leased Property in accordance with Section 13.2 hereof;
(t) if Lessee, prior to the Opening Date, vacates or abandons the Leased
Property or any portion thereof, or voluntarily abandons construction of any portion of the Hotel
Project (other than in connection with a Force Majeure Event), which abandonment is not cured
within a reasonable time, not less than thirty (30)days, following written notice from City;
(u) if this Lease or the leasehold estate of Lessee hereunder is assigned,
subleased, transferred, mortgaged, pledged or encumbered in any manner without compliance
with the provisions of this Lease, or if Lessee attempts to consummate any Transfer (by
entering into an agreement to sell or assign its interest in this Lease or the Hotel Project or to
sublet any portion of the Leased Property which is not conditioned on satisfying the Transfer
provisions of this Lease, or by agreeing to a Transfer without complying with the provisions
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governing same in this Lease), except as expressly permitted herein, and fails to correct such
Transfer within thirty (30) days after receiving notice from City;
(v) if a levy under execution or attachment is made against Lessee or its
property and such execution or attachment has not been vacated or removed by court order,
bonding or othenarise within a period of 30 days after such execution of attachment; and
(w) if Lessee or Hotel Operator fails to comply with the Room Block
Agreement in a manner that constitutes an Event of Default under such agreement.
Notwithstanding any provision to the contrary herein, the Parties' acts or omissions in
connection with Section 3.10 shall not be deemed an Event of Default.
Section 7.2. Remedies for Lessee's Default.
(a) lf an Event of Default occurs hereunder, the City may elect any one or more of
the following remedies, without limitation:
(i) terminate this Lease and commence an action for eviction immediately
upon the occurrence of any Event of Default;
(ii) immediately revoke the licenses granted to Lessee pursuant to the
Assignment of Plans and Approvals and the Assignment of Hotel Project General Construction
Contract; and
(iii) with respect to any Event of Default under Section 7.1(t), the City shall be
entitled, for each month so long as such Event of Default has not been cured, to Base Rent
equal to three times the Base Rent being paid at the time of such Event of Default for each
month until the earlier of (x) such Event of Default has been cured or (y) City has terminated this
Lease pursuant to clause (i) above.
The City's election of a remedy hereunder with respect to any one or more Events of Default
shall not limit or otherwise affect the City's right to elect any of the remedies available to it
hereunder with respect to that or any other Event of Default.
(b) lf this Lease is terminated as provided in Section 7.2(a)(i) hereof, Lessee will pay
or cause to be paid to the City the unfunded portion, if any, of the Portman Minimum Equity
Contribution, and will indemnify City against and compensate City from and for any and all
reasonable third party costs incurred by City in enforcing its rights and remedies hereunder;
provided that if Lessee has already invested the amount of the Portman Minimum Equity
Contribution at the time of termination and has provided reasonable evidence of same to the
City, no additional amounts will be due from Lessee;
(c) lf an Event of Default occurs, Lessee will nevertheless be obligated to continue to
pay all Rent for so long as Lessee has possession of the Leased Property.
(d) Upon the termination of this Lease, Lessee shall quit and peaceably surrender
the Hotel Project (which includes the Leased Property and the Lessee lmprovements), and all
property in its possession to the City in accordance with Sections 7.9 and 11.5.
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(e) Upon the termination of this Lease, as provided in this Section 7.2,all rights and
interest of Lessee in and to the Hotel Project (which includes the Leased Property and the
Lessee lmprovements), and every part thereof shall cease and terminate, and the City may, in
addition to any other rights and remedies it may have, retain all sums paid to it by Lessee under
this Lease.
(0 lf this Lease is terminated prior to the Outside Completion Date, to the extent not
previously assigned to the City, City shall have the right to cause Lessee to assign to the City
(or another Person as "Assignee") all of its rights under all contracts and agreements executed
in connection with the Hotel Project, including the Management Agreement and all such
contracts and agreements with the design professionals, on a non-recourse basis, without any
warranties or representations from Lessee, and to entitle City or Assignee to all of the rights and
benefits of Lessee thereunder, and to provide that City or Assignee, upon the assignment of
such contracts(s) and agreement(s) pursuant to this section, shall only be responsible for
amounts due thereunder for work performed or services rendered with City's or Assignee's
consent after such assignment; provided that the other party to any such contracts will continue
to have the rights and remedies provided therein for any defaults occurring prior to the
assignment to the City or its Assignee.
(g) ln the event the City elects to terminate this Lease after an Event of Default and
such termination is stayed by order of any court having jurisdiction of any matter relating to this
Lease, or by any federal or state statute, then following the expiration of any such stay, the City
shall have the right, at its election, to terminate this Lease with five (5) days' written notice to
Lessee, Lessee as debtor in possession or if a trustee has been appointed, to such trustee.
(h) As an additional inducement to and material consideration for City agreeing to
this Lease, Lessee agrees that in the event a Bankruptcy or Judicial Action (as defined herein)
is commenced which subjects the City to any stay in the exercise of the City's rights and
remedies under this Lease, including the automatic stay imposed by section 362 of the United
States Bankruptcy Code (individually and collectively, "Stay"), then Lessee irrevocably consents
and agrees to the Stay being lifted and released against City, and City shall thereafter be
entitled to exercise all of its rights and remedies against the Lessee under this Lease. The
Lessee acknowledges that it is knowingly, voluntarily, and intentionally waiving its rights to any
Stay and agrees that the benefits provided to the Lessee under the terms of this Lease are
valuable consideration for such waiver. As used in this Section, the term "Bankruptcy or Judicial
Action" shall mean any voluntary or involuntary case filed by or against Lessee under the
Bankruptcy Code, or any voluntary or involuntary petition in composition, readjustment,
liquidation, or dissolution, or any state and federal bankruptcy law action filed by or against
Lessee, any action where Lessee is adjudicated as bankrupt or insolvent, any action for
dissolution of Lessee or any action in furtherance of any of the foregoing, or any other action,
case, or proceeding that has the effect of staying (or in which a Stay is being obtained against)
the enforcement by the City of its rights and remedies under this Lease.
(i) Notwithstanding the foregoing, in the event that Lessee seeks to assume and
assign this Lease pursuant to section 365 of the Bankruptcy Code it will be required to provide
to the City adequate assurance of future performance which shall consist of evidence that such
assignee satisfies the following criteria [to be updated once Exhibit A is final]:
(i) neither such assignee nor any Persons with an ownership interest in such
assignee shall, directly or indirectly, own, operate or manage a Gaming Establishment in Miami-
Dade County, Florida; provided, however, that the foregoing restriction shall not prevent an
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assignee who othenruise satisfies the criteria set forth in this Section 7.2(i) from so qualifying if
all Persons owning or Controlling such assignee own or control in the aggregate five percent
(5%) or less of the voting securities of any owner, operator or manager of a Gaming
Establishment in Miami-Dade County, Florida;
(ii) such assignee, or the Affiliates of such assignee or Persons with an
ownership interest in such assignee, must possess the qualifications, good reputation and
financial resources necessary to perform the obligations of Lessee in accordance with this
Lease, in a manner consistent with the Hotel Standards; "good reputation" means the absence
of a reputation for dishonesty, criminal conduct, or association with criminal elements; it does
not mean "prestigious," nor does the determination of whether one has a good reputation
involve consideration of personal taste or preference;
(iii) such assignee shall have no outstanding material violations of any
Governmental Requirement against such assignee, or any hotel or other property owned or
managed by such assignee, or an Affiliate of such assignee, within Florida, which have
remained uncured for more than ninety (90) days after such assignee has knowledge of such
violation;
(iv) such assignee is not a Foreign lnstrumentality;
(v) such assignee must not be owned, controlled or run by entities or
individuals who have been convicted, or are presently under indictment, for felonies under the
laws of any foreign or United States of America jurisdiction; provided that the foregoing shall not
apply to individuals or entities owning less than a ten (10%) percent equity interest in such
assignee, other than officers, directors, managers or others who have the power to direct and
control the business and affairs of such assignee;
(vi) such assignee must not (nor shall any of the individuals or entities who
own at least a ten (10%) percent equity interest in such assignee or are officers, directors,
managers or otherurise have the power to direct and control the business and affairs of such
assignee) have filed or been discharged from bankruptcy, or have been the subject of an
involuntary bankruptcy, reorganization or insolvency proceedings within the past five (5) years
(bankruptcy filings by Affiliates shall not disqualify such assignee, unless such Affiliates are any
of the individuals or entities described in the parenthetical immediately above); and
(vii) such assignee must not in its charter or organizations documents (defined
as the articles of incorporation and bylaws for any corporation, the partnership agreement and
partnership certificate for any partnership, the trust agreement for any trust and the constitution
of the relevant government for any governmental entity, but expressly excluding any statements,
positions, actions or allegations not contained in such charter organizational documents)
expressly advocate or have as its stated purpose: (a) the violent overthrow of or armed
resistance against, the U.S. government; or (b) genocide or violence against any persons; or (c)
discrimination, hatred or animosity toward persons based solely on their race, creed, color, sex
or national origin.
Section 7.3. Default bv the Gitv. An event of default by the City shall be deemed to have
occurred under this Lease if the City fails to perform any obligation or fulfill any covenant or
agreement of the City set forth in this Lease and such failure shall continue for thirty (30) days
following the City's receipt of written notice of the non-performance; provided, however, the City
shall not be in default of this Lease:
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(a) if the City provides Lessee with a written response within said thirty (30) day
period indicating the status of the City's resolution of the breach and providing for a mutually
agreeable schedule to correct same; or
(b) with respect to any breach that is capable of being cured but that cannot
reasonably be cured within said thirty (30) day period, if the City commences to cure such
breach within such thirty (30) day period (or as soon thereafter as is reasonably possible) and
diligently continues to cure the breach until completion, but no longer than a total of one
hundred twenty (120) days.
Section 7.4. Force Maieure and Economic Force Maieure.
(a) Neither the City nor Lessee, as the case may be, shall be considered in breach
of or in default of any of its non-monetary obligations, including suspension of construction
activities, hereunder by reason of unavoidable delay due to any Force Majeure Event; provided
that the Party claiming such Force Majeure Event delivers written notice to the other Party of
such Force Majeure Event within twenty-one (21) days after first becoming aware of the
occurrence thereof, which notice shall describe in reasonable detail the events giving rise to the
Force Majeure Event; and such Party shall diligently attempt to remove, resolve or otherwise
seek to mitigate such delay and keep the other Party advised with respect thereto. Time is of
the essence with respect to this provision, and any failure by a Party to timely deliver such
notice of a Force Majeure Event shall be deemed a waiver of such Party's right to delay
performance as a result of such Force Majeure Event.
(b) Economic Force Majeure. lf, prior to Possession, Lessee is delayed, hindered or
prevented from being able to obtain a Construction Loan Commitment or satisfy the Possession
Conditions due to Economic Force Majeure, then the Outside Possession Date, Outside
Construction Loan Closing Date, the Outside Opening Date and the Outside Completion Date
shall each be extended forthe period of such delay (but not to exceed eighteen (18) months);
provided, that, with respect to any such delay by Economic Force Majeure, the Lessee shall
give written notice of such occurrence to City within twenty-one (21) days after Lessee has
knowledge of such occurrence, which notice shall describe in reasonable detail the events
giving rise to the Economic Force Majeure and Lessee shall diligently attempt to remove,
resolve, or otherwise seek to mitigate such delay, and keep City advised with respect thereto.
Time is of the essence with respect to this provision, and any failure by Lessee to timely deliver
such notice of Economic Force Majeure shall be deemed a waiver of Lessee's right to extend
the Outside Possession Date, Outside Construction Loan Closing Date, the Outside Opening
Date and Outside Completion Date, as applicable, as a result of such Economic Force Majeure.
Section 7.5. Remedies Cumulative: Waiver. The rights and remedies of the parties to this
Lease, whether provided by law or by this Lease, shall be cumulative and concurrent, and the
exercise by either Party of any one or more of such remedies shall not preclude the exercise by
it, at the same or different times, of any other such remedies for the same default or breach, or
of any of its remedies for any other default or breach by the other Party. No waiver of any
default or Event of Default hereunder shall extend to or affect any subsequent or other default or
Event of Default then existing, or impair any rights, powers or remedies consequent thereon,
and no delay or omission of any Party to exercise any right, power or remedy shall be construed
to waive any such default or Event of Default or to constitute acquiescence thereof.
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Section 7.6. Riqht to Cure. lf Lessee shall default in the performance of any term, covenant
or condition to be performed on its part hereunder, the City may, in its sole discretion, after
notice to Lessee and beyond applicable cure periods (or without such notice and cure in the
event of an emergency), perform the same for the account and at the expense of Lessee. lf, at
any time and by reason of such default, the City is compelled to pay, or elects to pay, any sum
of money or do any act which will require the payment of any sum of money, or is compelled to
incur any expense in the enforcement of its rights hereunder or otherwise, such sum or sums
shall be deemed Additional Rent hereunder and, together with interest thereon at the Default
Rate, shall be repaid to the City by Lessee upon demand.
Section 7.7. Room Block Aqreement. No termination or expiration of this Lease shall affect
or impair the Room Block Agreement, which shall continue to encumber the Hotel with respect
to any subsequent lessees.
Section 7.8. Dispute Resolution.
(a) City and Lessee agree that any dispute, claim or controversy between them
relating to or arising under this Lease ("Dispute") will first be submitted, by written notice, to a
designated representative of both City and Lessee who will meet at City's place of business or
other mutually agreeable location, or by teleconference, and confer in an effort to resolve such
dispute. Any decision of the representatives will be final and binding on the parties. ln the event
the representatives are unable to resolve any dispute within ten (10) days after submission to
them, either Party may refer the dispute to mediation. The exclusive venue for any Dispute not
resolved by mediation shall be any state or federal court of competent jurisdiction sitting in or for
Miami-Dade County, Florida, except for (i) Development Disputes, which shall be resolved in
accordance with Section 7.9, or (ii) Disputes relating to City's disapproval of a proposed brand
as an Approved Brand or a Proposed Transferee as an Acceptable Owner, which shall be
resolved in accordance with Section 7.10.
(b) TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE CITY AND LESSEE
HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT EITHER
OF THEM OR THEIR HEIRS, PERSONAL REPRESENTATIVES, SUCCESSORS OR
ASSIGNS MAY HAVE TO A TRIAL BY JURY IN RESPECT TO ANY LITIGATION ARISING
OUT OF, UNDER OR IN CONNECTION WITH THIS LEASE OR ANY AGREEMENT
CONTEMPLATED TO BE EXECUTED IN CONJUNCTION HEREWITH, OR ANY COURSE OF
CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR
ACTIONS OF ANY PARTY. THIS PROVISION IS A MATERIAL INDUCEMENT TO THE
PARTIES ENTERING INTO THIS LEASE.
Section 7.9. Expedited Arbitration of Development Disputes.
(a)lf Lessee or City asserts that a Development Dispute has arisen, such asserting
Party shall give prompt written notice thereof to the other Party, and such Development
Dispute shall be submitted to binding arbitration by the Development Arbitrator in accordance
with this Section 7.9.
(b)The Parties shall cooperate to select an independent, neutral, professional
arbitrator experienced in the resolution of construction claims and associated subject matter
having at least ten (10) years of hotel development or construction experience in the Miami-
Dade County area to serve as the arbitrator (the "Development Arbitrator"). lf the Parties
cannot agree on a single Development Arbitrator, then each Party shall select an arbitrator
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with such hotel development or construction experience, who shall jointly select a third
arbitrator with such hotel development or construction experience and the three arbitrators
shall collectively constitute the Development Arbitrator.
(c)The Development Arbitrator shall, no later than five (5) Business Days after
being selected, hold a preliminary, informal meeting with City and Lessee in an attempt to
mediate such Development Dispute. lf such Development Dispute is not resolved at such
meeting, the Development Arbitrator shall at such meeting establish a date (the "Hearing
Date"), not earlier than five (5) Business Days after such meeting nor later than twenty (20)
days after such meeting for a hearing (a "Hearing") to be held in accordance with this Lease to
resolve such Development Dispute.
(d)Lessee and City each shall have the right to make one (1) written submission to
the Development Arbitrator prior to the Hearing. Such submission shall be received by the
Development Arbitrator and the other Party not later than two (2) Business Days prior to the
Hearing Date. The Parties agree that no discovery (as the term is commonly construed in
litigation proceedings) will be permitted and agree that neither Party nor the Development
Arbitrator shall have discovery rights in connection with a Development Dispute.
(e)The Hearing shall be conducted by the Development Arbitrator. lt is the
intention of the Parties that the Hearing on a Development Dispute shall be conducted in an
informal and expeditious manner. No transcript or recording shall be made. Each Party shall
have the opportunity to make a brief statement and to present documentary and other support
for its position, which may include the testimony of not more than four (4) individuals, two (2) of
whom may be outside experts. There shall be no presumption in favor of either Party's
position. Any procedural matter not covered herein shall be governed by procedures mutually
agreed upon by the Parties, or if they are unable to agree, in accordance with the Construction
lndustry Arbitration Rules of the American Arbitration Association (as amended hereby).
(0 The Hearing shall be held in a location selected by the Development Arbitrator
in Miami-Dade County, Florida. Provided that the Development Arbitrator is accompanied by
representatives of both Lessee and City, the Development Arbitrator may, at its option, visit the
Hotel Site to make an independent review in connection with any Development Dispute.
(g)The Development Arbitrator, in rendering its decision with regard to any
Development Dispute, shall take into account and at a minimum consider the following factors,
which shall be used to guide its decision:
(i) City does not have any Approval rights with respect to the matter of
interior design and decor of the Hotel Project except to the extent the same is reflected in the
Approved Plans or Mandatory Hotel Project Design Elements;
(ii) the Hotel Project shall be designed and constructed to meet or exceed the
Hotel Standards;
(iii) the mutual goal of Lessee and City is that costs in excess of the
Budgeted lmprovement Costs should be avoided or minimized unless proposed by Lessee
and for which Lessee has agreed to provide adequate funds;
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(iv) the mutual goal of Lessee and City is that the construction of the Hotel
Project be completed by the Outside Completion Date;
(h)
(v) the Hotel Project must comply with all Governmental Requirements; and
(vi) the magnitude of the modification to the Approved Plans.
Pending resolution of the Development Dispute, Lessee may not implement the
matter which is the subject of such Development Dispute.
(i) The Development Arbitrator shall render a decision, in writing, as to any
Development Dispute not later than two (2) Business Days following the conclusion of the
Hearing regarding such Development Dispute and shall provide a brief written basis for its
decision not later than five (5) Business Days thereafter. Such decision of the Development
Arbitrator shall be rendered by (a) the decision of the single Development Arbitrator, (b) the
decision of two of the arbitrators comprising the Development Arbitrator, if two are able to
agree, (c) the decision of the third arbitrator appointed by each of the Parties' arbitrators, if no
two of the three arbitrators are able to agree within such period, or (d) agreement between the
Parties prior to and independently of the decision of the Development Arbitrator. As to each
Development Dispute, the Development Arbitrator's decision shall be limited to resolution of
the Development Dispute in question, and the Development Arbitrator shall have no right
whatsoever to impose or grant to either Party any remedy other than a decision as to: (i)
whether a modification to the Hotel Project is a substantial deviation from the Approved Plans
or a Prohibited Hotel Project Change requiring City's Approval pursuant to Section 2.2; (ii) any
contention that City has unreasonably failed to Approve modifications to the Approved Plans
in accordance with this Lease; (iii) any contention that City has unreasonably failed to Approve
the proposed Approved Skybridge and Off-Site lmprovements Plans or modifications thereto
in accordance with this Lease; (iv) any contention that City has unreasonably failed to Approve
a Hotel Project General Contractor in accordance with Section 2.8(b); (v) any disagreement as
to permitted delays in the Schedule of Performance pursuant to Section 2.7, or (vi) any
disagreement as to the cost or scheduling impact of a change in the location of the geothermal
system as provided in Section 2.11(c).
0) The decision of the Development Arbitrator shall be final and binding on the
Parties for all purposes and may be entered in any court of competent jurisdiction.
(k) lf any matter submitted to the Development Arbitrator hereunder is settled by
agreement between the Parties prior to, or independently of, the final determination of the
Development Arbitrator, any and all expenses of such binding determination (including fees of
the Development Arbitrator) will be shared equally by the Parties; and the expense of such
binding determination resolved by final determination of the Development Arbitrator (including
fees of the Development Arbitrator) will be borne by the Party against whom such
determination has been concluded.
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Section 7.10. Disputes Reqardinq Disapproval of a Proposed Brand or Proposed
Transferee.
(a) lf (i) Lessee and City disagree as to whether a proposed Approved Brand
satisfies the definition of an Approved Brand pursuant to clause (a) of the definition thereof or
(ii) Lessee believes that the City is acting unreasonably in disapproving a proposed brand as
an Approved Brand, then in either case, the Lessee may refer the matter to mediation in
accordance with Section 7.8(a) above, and if the matter is not resolved by mediation, then
Lessee, as its sole remedy, may submit such matter to a panel of experts for a binding
determination in accordance with this Section 7.10 (an "Arbitrato/').
(b) lf the City Manager determines that a proposed transferee of the Hotel Project
(or any part thereof), any legal or beneficial interest in the Hotel Project (or any part thereof) or
any direct or indirect legal or beneficial interest in Lessee (each, a "Proposed Transferee")
does not satisfy the definition of an Acceptable Owner and the Acceptable Owner Criteria
pursuant to Exhibit A attached hereto, and Lessee disagrees, and if the matter is not resolved
by the designated representatives of the City and Lessee as provided in Section 7.8(a) above,
then solely with respect to any such determination made by the City Manager, Lessee, as its
sole remedy, may submit such matter to an Arbitrator in accordance with this Section 7.10.
For the avoidance of doubt, in the event the City Manager exercises his or her right to seek the
City Commission's direction or Approval of a Proposed Transferee, the Lessee shall not have
the right to submit the City Commission's determination or disapproval of a Proposed
Transferee to arbitration pursuant to this Section 7.10, but the City Commission shall be
subject to the same time period and standards of judgment as would apply to the City Manager
as provided in Exhibit A.
(c) lf Lessee elects to proceed with an Arbitrator in accordance with this Section
7.10, the determination of whether a proposed brand should be an Approved Brand or a
Proposed Transferee is an Acceptable Owner, will be made by (a) an expert selected jointly by
the City and Lessee, or (b) if the City and Lessee fail to agree upon a single expert, by an
expert selected by the City, an expert selected by Lessee and a third expert appointed by the
experts selected by the Parties. Any Arbitrator or expert panelist hereunder will each have at
least ten (10) years of professional experience in the hotel industry with hotels meeting the
Hotel Standards. The Parties agree that no discovery (as the term is commonly construed in
litigation proceedings) will be permitted and agree that neither Parly nor the Arbitrator shall
have discovery rights in connection with a Dispute hereunder. The proceeding before the
Arbitrator shall be conducted in an informal and expeditious manner. No transcript or recording
shall be made. Each Party shall have the opportunity to make a brief statement and to present
documentary and other support for its position, which may include the testimony of not more
than four (4) individuals, two (2) of whom may be outside experts. There shall be no
presumption in favor of either Party's position. Any procedural matter not covered herein shall
be governed by procedures mutually agreed upon by the Parties, or if they
agree, in accordance with the Construction lndustry Arbitration Rules of
unable to
American
Arbitration Association (as amended hereby).
(d) The matter submitted to the Arbitrator will be conclusively determined within
thirty (30) days of the appointment of the last Arbitrator by (a) the decision of the single expert,
(b) the decision of any two of the three experts, if two are able to agree, (c) the decision of the
ate
the
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third expert, if no two of the three experts are able to agree within such period, or (d) agreement
between the Parties prior to and independently of the decision of the Arbitrator.
(e) With respect to (i) whether a proposed Approved Brand satisfies the definition of
an Approved Brand pursuant to clause (a) of the definition thereof, the Arbitrator will determine
that such proposed Approved Brand either satisfies such definition or fails to satisfy such
definition or (ii) whether the City has acted reasonably in disapproving a proposed Approved
Brand pursuant to Section 13.3, the Arbitrator will determine either that the City acted
reasonably in disapproving the proposed Approved Brand or that the City acted unreasonably in
disapproving the proposed Approved Brand, and the Arbitrator will have no authority to
compromise or otherwise modify the issue that is the subject of the determination or (iii) whether
a Proposed Transferee satisfies the definition of an Acceptable Owner and the Acceptable
Owner Criteria pursuant to Exhibit A, the Arbitrator will determine that such Proposed
Transferee either satisfies such definition and criteria or fails to satisfy such definition and
criteria. lf any matter submitted to the Arbitrator hereunder is settled by agreement between the
Parties prior to, and independently of, the final determination of the Arbitrator, any and all
expenses of such binding determination (including fees of the Arbitrator) will be shared equally
by the Parties; and the expense of such binding determination resolved by final determination of
the Arbitrator (including fees of the Arbitrator) will be borne by the Party against whom such
determination has been concluded.
Section 7.11. Plans and Data. ln the eventof a termination of this Lease, Lessee shall deliver
to City, copies of any and all Subleases and service and maintenance agreements then
affecting the Leased Property, all maintenance records, all warranties or guaranties then in
effect which Lessee received in connection with any work or services performed or FF&E
installed on the Leased Property, the plans and specifications, surveys, studies, reports, cost
estimates, designs, Governmental Approvals, keys, combinations to locks, access codes,
records, correspondence and any and all other records, files, documents and other items and
materials of every kind and nature whatsoever relating to the development, operation,
maintenance or ownership of the Hotel Project, all of which shall be delivered by Lessee to the
City within thirty (30) days after such termination. Such materials will be provided to City without
any representation or warranty of any kind, express or implied (including regarding the truth,
accuracy or completeness thereof and fitness for a particular purpose). The obligations of
Lessee under this Section 7.1 1 survive the termination of this Lease.
pnore cn o r.r ntlll?ilavJl neu rc s' r-r e r.rs
AND OTHER GLAIMS: INDEMNIFICATION
Section 8.1. Lessee's Dutv to Keep Proiect Free of Liens.
(a) Pursuantto Section 713.10, Florida Statutes, any and all liens or lien rights shall
extend to, and only to, the right, title and interest of Lessee in the Hotel Project and shall not
encumber or affect the City's fee simple title to the Leased Property.
(b) The right, title and interest of the City in the Leased Property shall not be subject
to liens or claims of liens for improvements made by Lessee. Nothing contained in this Lease
shall be deemed or construed to constitute the consent or request of the City, express or by
implication or otherwise, to any contractor, subcontractor, laborer or materialman for the
performance of any labor or the furnishing of any materials for any specific improvement of,
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alteration to, or repair of the Hotel Project, or any part thereof, nor as giving Lessee, any
Leasehold Mortgagee, Subtenant, lessee, or sub-lessee any right, power or authority to contract
for, or permit the rendering of, any services or the furnishing of materials that would give rise to
the filing of any lien, mortgage or other encumbrance against City's interest in the Leased
Property, or any part thereof, or against assets of the City, or City's interest in any Rent and
other monetary obligations of Lessee as defined in this Lease.
(c) Notice is hereby given, and Lessee shall cause all construction agreements
entered into between Lessee and the Hotel Project General Contractor or other contractor in
privity with Lessee or subcontractor in privity with the Hotel Project General Contractor or any
other subcontractor to provide that:
(i) City shall not be liable for any work performed or to be performed at the
Hotel Project or any part thereof for or on behalf of the Lessee, any Leasehold Mortgagee,
Subtenant, lessee, or sub-lessee or for any materials furnished or to be furnished to the Hotel
Project, or any part thereof, for any of the foregoing; and
(ii) no mechanic's, laborer's, vendor's, materialman's or other similar
statutory lien for such work or materials shall be attached to or affect City's interest in the
Leased Property, or any part thereof, or any assets of the City, or the City's interest in any Rent
or other monetary obligations of Lessee arising under this Lease.
(d) Lessee acknowledges and agrees that the City shall be entitled to record in the
public records of Miami-Dade County, Florida a notice of no lien in accordance with Chapter
713.10, Florida Statutes, and that if requested by the City, Lessee will execute and deliver a
countersignature to such notice within ten (10) days of the City's request.
Section 8.2. Contestinq Liens. lf Lessee desires to contest any such lien as described in
Section 8.1, it shall notify the City of its intention to do so within thirty (30) days after Lessee has
notice of the filing of such lien. ln such case, Lessee, at Lessee's sole cost and expense, shall
furnish a cash deposit or surety bond in an amount sufficient to pay such lien and any cost
(including interest and penalties), liability or damage arising out of such contest. The lien, if
Lessee timely provides the bond described above, shall not be an Event of Default hereunder
until thirty (30) days after the final determination of the validity thereof provided that, within that
time, Lessee shall satisfy and discharge such lien to the extent held valid; provided, however,
that the satisfaction and discharge of any such lien shall not, in any case, be delayed until
execution is had on any judgment rendered thereon, or else such delay shall be considered to
be a monetary Event of Default hereunder. ln the event of any such contest, Lessee shall
protect and indemnify the City against all loss, expense and damage resulting therefrom as
provided in Section 8.3.
Section 8.3. lndemnification.
(a) Lessee acknowledges and agrees that this Lease is not an agreement between
City and any architect, engineer, general contractor, subcontractor, sub-subcontractor, or
materialman or any combination thereof for the construction, alteration, repair, or demolition of a
building, structure, appurtenance, or appliance on the Leased Property, and therefore that the
limitations on indemnity provisions in Section 725.06, Florida Statutes, as such statute may be
amended from time to time, do not apply to this Lease. Accordingly, to the fullest extent
permitted by law, the Lessee shall defend, indemnify and hold harmless the City and its officers,
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employees, agents and instrumentalities from any and all liability, losses or damages, including
reasonable attorneys' fees and costs of defense, which the City or its officers, employees,
agents or instrumentalities may incur as a result of claims, demands, suits, causes of actions or
proceedings of any kind or nature first arising following the Effective Date, and arising out of,
relating to or resulting from any of the following occurrences or events, whether by the Lessee
or its employees, agents, partners, principals, sub-lessees, or contractors: (i) any default,
breach or violation or non-performance of this Lease or any provision thereof; (ii) the use and
operation of the Hotel Project or any part thereof which is not in compliance with the terms of
this Lease, (iii) the negligent acts or omissions of Lessee or its employees, agents, partners,
principals, sub-lessees, or contractors; (iv) any challenge to the validity of any Transfer by a
third party through legal proceedings or otherwise based on the action or inaction of Lessee or
its employees, agents, partners, principals, sub-lessees or contractors, except to the extent any
liability, losses or damages are caused by the gross negligence or willful misconduct of the City
or its officers, employees, agents, or contractors.
(b) Lessee shall investigate and defend all claims, suits, or actions of any kind or
nature in the name of the City which are covered by this indemnity obligation, where applicable,
including appellate proceedings, and shall pay reasonable costs, judgments, and reasonable
attorney's fees which may issue thereon.
(c)Lessee expressly understands and agrees that any insurance protection
required by this Lease or otherwise provided by Lessee shall in no way limit the responsibility to
indemnify, keep and save harmless and defend the City or its officers, employees, agents and
instrumentalities as herein provided. The City shall give to the Lessee reasonable notice of any
such claims or actions. The provisions of this section shall survive the expiration or early
termination of this Lease.
(d) Lessee covenants and agrees that any contracts entered into by Lessee and the
Hotel Project General Contractor or other contractors in privity with Lessee for the Work shall
include the indemnities required by this Section 8.3 from the Hotel Project General Contractor or
other contractors in privity with Lessee in favor of Lessee and the City.
Section 8.4. Environmental Matters.
(a)Defined Terms.
(i),'@''meanSanysetofphysicalcircumstancesin,
on, under, or affecting the Hotel Project that may constitute a threat to or endangerment of
health, or the environment, including:
(1) The presence of any Hazardous Substance in violation of
Environmental Laws which were introduced to the Hotel Site after the Possession Date or by
Lessee prior to the Possession Date;
(2) any underground storage tanks, as defined in Subtitle I of the
Hazardous and Solid Waste Amendments of 1984,42 U.S.C. 6991 et. seq., or the regulations
thereunder, for the storage of hazardous wastes, oil, petroleum products, or their byproducts;
(3) The presence of any PCB, asbestos or any other substances
specifically regulated under the Toxic Substances Control Act, 15 U.S.C. 2601 or regulations
issued thereunder, in violation of Environmental Laws which were introduced to the Hotel Site
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after the Possession Date or by Lessee prior to the Possession Date; and any open dump or
system of refuse disposal for public use without a permit, as prohibited by 42 U.S.C. 6945
and/or Florida law equivalent, or the regulations issued thereunder.
(ii) "Environmental Laws" means the Comprehensive Environmental
Response, Compensation and Liability Act,42 U.S.C. 9601 et. seq., the Resource Conservation
and Recovery Act, 42 U.S.C. 6901 et. seq.; the Toxic Substances Control Act, 15 U.S.C. 2601
et. seq.; the Clean Water Act, 33 U.S.C. 1251 et seq.; the Clean Air Act, 42 U.S.C. 7401 et.
seq.; the Oil Pollution Act, 33 U.S.C. 2701 et. seq., the Hazardous Materials Transportation Act,
49 U.S.C. 1801 et. seq.; the Refuse Act of 1989,33 U.S.C. 407; as such laws have been
amended or supplemented from time{o-time, and the regulations promulgated thereunder; and
any equivalent state or local laws.
(iii) "Hazardous Substance" means any substances or materials presently or
hereinafter identified to be toxic or hazardous according to any of the Environmental Laws,
including any asbestos, PCB, radioactive substances, petroleum based products, and includes
hazardous wastes, hazardous substances, extremely hazardous substances, hazardous
materials, toxic substances, toxic chemicals, oil, petroleum products and their by-products, and
pollutants or contaminants as those terms are defined in the Environmental Laws.
(iv)''@.'meanSanyGovernmentalApprovalrequired
under any Environmental Law in connection with the ownership, use or operation of the Hotel
Project for the storage, treatment, generation, transportation, processing, handling, production
or disposal of Hazardous Substances, or the sale, transfer or conveyance of the Hotel Project,
and all supporting documentation thereof.
(v)''@''meanSanynoticeofviolation,claim,demand,
abatement or order or direction (conditional or othenrrise) by any Governmental Authority or any
person for personal injury (including sickness, disease, or death), property damage, damage to
the environment, nuisance, pollution, contamination or other adverse effects on the
environment, or for fines, penalties, or restrictions, resulting from or based upon:
(1) the existence or release, or continuation of any existence of a
release of, or exposure to, any Hazardous Substance in, into or onto the environment (including
the air, ground, water or any surface) at, in, or from the Leased Property in violation of
Environmental Laws;
(2) the transportation, storage, treatment or disposal of any
Hazardous Substance in connection with the activities on the Leased Property in violation of
Environmental Laws; or
(3) the violation, or alleged violation, of any Environmental Laws on
the Leased Property; but excluding any of the foregoing to the extent arising from the negligent
or intentional actions of the City and its agents.
(vi) "Corrective Action Work" means any and all activities of removal,
response, investigation, testing, analysis, remediation taken to:
(1) prevent, abate or correct an existing or threatened Environmental
Condition at, about, or affecting the Leased Property; or
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(2) comply with all applicable Environmental Laws.
(b) Environmental lndemnification.
(i) Lessee covenants and agrees, at its sole cost and expense, to defend
(with counsel selected by Lessee, after consulting with the City), indemnify and hold harmless
the City, its successors, and assigns from and against, and shall reimburse the City, its
successors and assigns, for any and all Environmental Claims, whether meritorious or not,
brought against the City by any Governmental Authority;
(ii) the foregoing indemnity includes indemnification against all costs of
removal, response, investigation, or remediation of any kind, and disposal of such Hazardous
Substances as necessary to comply with Environmental Laws, all costs associated with any
Corrective Action Work, all costs associated with claims for damages to persons, property, or
natural resources, and the City's commercially reasonable attorneys'fees and consultants'fees,
court costs and expenses incurred in connection therewith;
(iii) this indemnification is in addition to all other rights of the City under this
Lease; and
(iv) payments by Lessee under this Section shall not reduce Lessee's
obligations and liabilities under any other provision of this Lease.
Notwithstanding anything to the contrary contained in this Lease, neither the Lessee nor
Hotel Project General Contractor, or other contractor in privity with Lessee, has a duty to
indemnify the City in connection with any Environmental Claims to the extent caused by the
negligent or intentional conduct of the City or its agents, employees or contractors, which
negligent or intentional conduct occurs following the date the Lessee completed its
environmental testing.
Section 8.5. Limitation of Citv's Liabilitv.
(a) Any tort liability to which the City is exposed under this Lease shall be limited to
the extent permitted by applicable law and subject to the provisions and monetary limitations of
Section 768.28, Florida Statutes, as may be amended, which statutory limitations shall be
applied as if the parties had not entered into this Lease, and City expressly does not waive any
of its rights and immunities thereunder.
(b) City will not in any event whatsoever be liable for any injury or damage to Lessee
(unless caused by the gross negligence of City, its agents, contractors or employees) or to any
other Person happening on, in or about the Leased Property and its appurtenances, nor for any
injury or damage to the Leased Property or to any property belonging to Lessee (unless caused
by the gross negligence of City, its agents, contractors or employees) or to any other Person
which may be caused by any fire or breakage, or by the use, misuse or abuse of any of the
Lessee lmprovements (including any of the common areas within the buildings, equipment,
elevators, hatches, openings, installations, stainarays, hallways or other common facilities or the
improvements to the land described in this Lease), or which may arise from any other cause
whatsoever.
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(c) City will not be liable to Lessee or to any other Person for any failure of
telephone, computer system, cable TV, water supply, sewage disposal, gas or electric current,
nor for any injury or damage to any property of Lessee or to any Person or to the Leased
Property caused by or resulting from gasoline, oil, steam, gas, electricity, or hurricane, tornado,
flood, wind or similar storms or disturbances, or water, rain or snow which may leak or flow from
the street, sewer, gas mains or subsurface area or from any part of the Leased Property, or
leakage of gasoline or oil from pipes, appliances, sewer or plumbing works therein, or from any
other place, nor for interference with light or other incorporeal hereditaments by any Person
(unless caused by the gross negligence of City, its agents, contractors or employees).
ARTICLE IX
INSURANCE AND RECONSTRUCTION
Section 9.1. General !nsurance Provisions. Prior to any activity on the Leased Property,
and at all times during the Term, Lessee at its sole cost and expense shall procure the
insurance specified below. ln addition, Lessee shall ensure its Hotel Project General Contractor
and tenants maintain the insurance coverages set forth below. All policies must be executable in
the State of Florida. All insurers must maintain an AM Best rating of A- or better. The terms and
conditions of all policies may not be less restrictive than those contained in the most recent
edition of the policy forms issued by the lnsurance Services Office (lSO) or the National Council
on Compensation lnsurance (NCCJ). lf ISO or NCCI issues new policy forms during the policy
term of the required insurance, complying with the new policy forms will be deferred until the
expiration date of the subject policy. Said insurance policies shall be primary over any and all
insurance available to the City whether purchased or not and shall be non-contributory. The
Lessee, its Hotel Project General Contractor or tenants shall be solely responsible for all
deductibles contained in their respective policies. All policies procured pursuant to this Article
lX shall be subject to maximum deductibles reasonably acceptable to the City. The City of
Miami Beach will be included as an "additional insured" on the commercial general liability,
automobile liability, property insurance, and pollution liability policies. The City will also be
named as an insured as its interests may appear with respect to the builder's risk policy.
Section 9.2. Evidence of lnsurance. Prior to Lessee taking possession of the Leased
Property, and annually thereafter, Lessee shall deliver satisfactory evidence of the required
insurance to the City. Satisfactory evidence shall be: (a) a certificate of insurance for all required
coverage; and (b) a copy of the actual insurance policy for builder's risk coverage. The City, at
is sole option, may request a certified copy of any or all insurance policies required by this
Lease, or the applicable portions thereof if insurance is provided through a master insurance
program. All insurance policies must specify they are not subject to cancellation or non-renewal
without a minimum of 30 days notification by the insurer to the City, the City's Risk Management
Division and the First Leasehold Mortgagee, with a minimum of 10 days notification by the
insurer to the City, the City's Risk Management Division and the First Leasehold Mortgagee
prior to cancellation or non-renewal for non-payment of premium. The Lessee will deliver to the
City, at least 30 days prior to the date of expiration of any insurance policy, a renewal policy
replacing any policies expiring during the Term of this Lease, or a certificate thereof, together
with evidence that the full premiums have been paid. Premiums on policies will not be financed
in any manner whereby any Leasehold Mortgagee, on default or otherwise, will have the right or
privilege of surrendering or cancelling the policies; provided, however, that premiums may be
paid in annual installments. All certificates of insurance shall (i) be in a form acceptable to the
City, (ii) name the types of policies provided, (iii) refer specifically to this Lease; (iv) evidence the
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waiver of subrogation in favor of the City as required by Section 9.11 below; and (v) evidence
that coverage shall be primary and noncontributory, and that each policy includes a Cross
Liability or Severability of lnterests provision, with no requirement of premium payment by the
City. Lessee shall deliver, together with each certificate of insurance, a letter from the agent or
broker placing such insurance, certifying to the City that the coverage provided meets the
coverage required under this Lease. The official title of the certificate holder is "City of Miami
Beach, Florida." Additional insured certificates for the City shall read "City of Miami Beach,
Florida", and shall be addressed to 1700 Convention Center Drive, Miami Beach, FL,33139,
Attn: Risk Management, 3rd Floor.
Section 9.3. Required Goveraqes. ln addition to such insurance as may be required by law,
the Lessee shall procure and maintain, or cause others to procure and maintain, without lapse
or material change, for so long as it occupies the Leased Property, the following insurance,
which may be provided through master blanket insurance policies:
(a) Commercial General Liabilitv lnsurance on a comprehensive basis, including
contractual liability, to cover the Leased Property and Lessee's operations and indemnity
obligations, in an amount not less than $5,000,000 combined single limit per occurrence for
bodily injury and property damage. Such insurance may be provided through a combination of
primary and excess/um brella liability policies.
(b) Automobile Liabilitv lnsurance covering all owned, non-owned and hired
vehicles used by the Lessee in connection with its operations under this Lease in an amount not
less than $1,000,000 combined single limit per occurrence for bodily injury and property
damage. Coverage must be afforded on a form no more restrictive than the latest edition of the
Business Automobile Liability policy, without restrictive endorsements, as filed by the lnsurance
Services Office (lSO).
(c) Pollution Liabilitv lnsurance in an amount not less than $10,000,000 per claim,
covering third party claims, remediation expenses, and legal defense expenses arising from on-
site and off-site loss, or expense or claim related to the release of Hazardous Materials at the
Leased Property. Such policy shall include an annual policy aggregate in the amount of
$20,000,000.
(d) Builders Risk Insurance during the course of construction, issued in the name
of the Lessee, the Hotel Project General Contractor and the City as their interests may appear,
in amount(s) not less than 100% of the insurable value of the Hotel Project completed
structure(s), covering perils on an "All Risk" basis, including flood, earthquake, and windstorm.
ln an amount not less than $10,000,000. Policy(s) must clearly indicate that underground
structures (if applicable) and materials being installed are covered. Any deductibles are the sole
responsibility of the Lessee.
(e) Commercial Propertv lnsurance in an amount of 100% of the insurable value
of all Lessee lmprovements under an "all risk" form, including damage by water, flood,
subsistence, tornado, hurricane and earthquake in an amount not less than $10,000,000.
(0 Business lnterruption lnsurance coverage utilizing a gross earnings value form
with limits equal to twelve (12) months of Lessee's projected Gross Operating Revenues
associated with the Leased Property. The City and Lessee shall jointly review Lessee's
projected Gross Operating Revenues periodically and the limits of this policy shall be adjusted
based on this review.
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(g) Workers' Compensation and Emplovers Liabilitv !nsurance with limits
sufficient to respond to Florida Statute $440. ln addition, the Lessee shall obtain Employers'
Liability lnsurance with limits of not less than: (i) $SOO,OO0 Bodily lnjury by Accident, (ii)
$500,000 Bodily lnjury by Disease and (iii) $500,000 Bodily lnjury by Disease, each employee.
(h) Professiona! Liabilitv. Lessee shall cause any architects or engineers to
maintain architects and engineers errors and omissions liability insurance specific to the
activities or scope of work such consultants will perform. lf coverage is provided on a "claims
made" basis, the policy shall provide for the reporting of claims for a period of five (5) years
following the completion of all construction activities. The minimum limits acceptable shall be
$1,000,000 per occurrence and $3,000,000 in the annual aggregate.
(i) Terrorism Insurance. So long as the Terrorism Risk lnsurance Program
Reauthorization Act of 2015 ("TR|PRA") or a similar or subsequent statute is in effect, terrorism
insurance for "certified" and "non-certified" acts (as such terms are used in TRIPRA or a similar
or subsequent statute) in an amount equal to the full replacement cost of the Leased Property
plus 12 months of business interruption coverage. lf TRIPRA or a similar or subsequent statute
is not in effect, then the "all risk" property insurance required pursuant to Section 9.3(e) of this
Lease shall not exclude coverage for acts of terror or similar acts of sabotage unless terrorism
insurance is not commercially available, in which case, Lessee shall obtain stand-alone
coverage in commercially reasonable amounts (for purposes of this clause (i), commercially
reasonable amounts shall mean amounts that would be (A) obtained by property owners or
lessees of properties located in markets similar to that of the Hotel Project and similar in size
and type to the Hotel Project and (B) required by prudent lnstitutional Lenders or landlords in
such similar markets with similar properties).
Section 9.4. Premiums and renewals. Lessee shall pay as the same become due all
premiums for the insurance required by this Article lX, shall renew or replace each such policy
and deliver to the City evidence of the payment of the full premium thereof prior to the expiration
date of such policy, and shall promptly deliver to the City all original Certificates of lnsurance
and copies of all such renewal or replacement policies.
Section 9.5. Adequacv Of lnsurance Coveraoe.
(a) The adequacy of the insurance coverage required by this Article lX may be
reviewed periodically by the City in its sole discretion. The City reseryes the right, but not the
obligation, to review and reasonably revise the insurance requirements every three (3) years,
(including but not limited to deductibles, limits, coverages and endorsements) provided such
revisions are commercially reasonable, customary and commonly available regarding properties
similar in type, size, use and location to the Leased Property and Lessee lmprovements and
further provided that such coverage is available at commercially reasonable rates (including
fiduciary liability and directors and officers liability insurance);
(b) Lessee agrees that City may, if it so elects, at City's expense, have the Lessee
lmprovements appraised for purposes of obtaining the proper amount of insurance hereunder.
Any review by the City shall not constitute an approval or acceptance of the amount of
insurance coverage.
Section 9.6. Citv Mav Procure lnsurance if Lessee Fails To Do So. lf Lessee refuses,
neglects or fails to secure and maintain in full force and effect any or all of the insurance
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required pursuant to this Lease within thirty (30) days after written notice from the City, the City,
at its option, may procure or renew such insurance. ln that event, all commercially reasonable
amounts of money paid therefor by the City shall be treated as Additional Rent payable by
Lessee to the City together with interest thereon at the Default Rate from the date the same
were paid by the City to the date of payment thereof by Lessee. Such amounts, together with all
interest accrued thereon, shall be paid by Lessee to the City within ten (10) days of written
notice thereof.
Section 9.7. Effect of Loss or Damase. Any loss or damage by fire or other casualty of or to
any of the Lessee lmprovements on the Leased Property at any time shall not operate to
terminate this Lease or to relieve or discharge Lessee from the payment of Rent, or from the
payment of any money to be treated as Additional Rent in respect thereto, pursuant to this
Lease, as the same may become due and payable, as provided in this Lease, or from the
performance and fulfillment of any of Lessee's obligations pursuant to this Lease. No
acceptance or approval of any insurance agreement or agreements by the City shall relieve or
release or be construed to relieve or release Lessee from any liability, duty or obligation
assumed by, or imposed upon it by the provisions of this Lease.
Section 9.8. Proof of Loss. Whenever any Lessee lmprovements, or any part thereof,
constructed on the Leased Property (including any personal property furnished or installed in
the premises) shall have been damaged or destroyed, Lessee shall promptly make proof of loss
in accordance with the terms of the insurance policies and shall proceed promptly to collect or
cause to be collected all valid claims which may have arisen against insurers or others based
upon any such damage or destruction.
Section 9.9. !nsurance Proceeds.
(a) Authorized Payment. All sums payable for loss and damage arising out of the
casualties covered by the property insurance policies shall be payable:
(i) directly to Lessee, if the total recovery is equal to or less than
$10,000,000 (as adjusted for inflation over the Term pursuant to Section 14.20 hereof), except
that if an Event of Default has occurred and is continuing hereunder, such proceeds, shall be
paid over to the lnsurance Trustee and disbursed in accordance with Section 9.9(a)(ii). After the
completion of all Reconstruction Work in accordance herewith, any remaining proceeds shall be
paid over to Lessee subject to its obligations to the First Leasehold Mortgagee; and
(ii) to a commercial bank or trust company designated by Lessee and
Approved by the City Manager (the "lnsurance Trustee"), if the total recovery is in excess of
$10,000,000 (as adjusted for inflation over the Term pursuant to Section 14.20 hereof) or is less
than $10,000,000 but an Event of Default has occurred and is continuing hereunder, to be held
by the lnsurance Trustee pending establishment of reconstruction, repair or replacement costs
and shall be disbursed to Lessee pursuant to the provisions of subparagraph (b) of this Section
9.9.
(b) Disposition of lnsurance Proceeds for Reconstruction.
(i) All insurance proceeds shall be applied for the reconstruction, repair or
replacement of Lessee lmprovements and the FF&E and other personal property of Lessee
located on the Leased Property, so that Lessee lmprovements, FF&E and such other personal
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property shall be restored to a condition comparable to the condition prior to the loss or damage
but in all cases consistent with the Hotel Standards (hereinafter referred to as "Reconstruction
Work");
(ii) From the insurance proceeds received by the lnsurance Trustee, there
shall be disbursed to Lessee such amounts as are required for the Reconstruction Work.
Lessee shall submit invoices or proof of payment to the lnsurance Trustee for payment or
reimbursement according to an agreed schedule of values approved in advance by the City
Manager and Lessee; and
(iii) After the completion of the Reconstruction Work, any unused insurance
proceeds shall be paid to Lessee.
Section 9.1 0. Reconstruction.
(a) ln the event of any loss or damage by fire or other casualty of or to any of the
Lessee lmprovements, FF&E and other personal property of Lessee located on the Leased
Property having a value in excess of $2,500,000, Lessee shall give the City notice thereof within
five (5) Business Days, and Lessee, at its sole cost and expense, whether or not such loss or
damage has been insured and whether or not such loss or damage is to property having a value
in excess of $2,500,000, covenants and agrees to commence the Reconstruction Work as soon
as practicable, but in any event within three (3) months after the insurance proceeds in respect
of the destroyed or damaged improvements or personal property have been received, and to
fully complete such Reconstruction Work as expeditiously as reasonably possible consistent
with the nature and extent of the damage. Lessee shall comply in all respects with the
provisions of Section 2.15 with respect to any Reconstruction Work.
(b) ln the event that Lessee fails to perform the Reconstruction Work in accordance
herewith and within a reasonable time after such loss or damage, the City shall have the right to
terminate this Lease after thirty (30) days' notice if within such thirty (30) day period such
Reconstruction Work is not complete or Lessee has not provided reasonable assurance that it is
proceeding in good faith and using commercially reasonable efforts to complete such
Reconstruction Work, in which case, upon the City's request, the Lessee shall surrender and
return the Leased Property to the City in the same condition existing on the Possession Date,
including demolition of all Lessee lmprovements and repair and restoration of any property,
including the Convention Center, affected by the demolition of the Lessee lmprovements, and
free and clear of all debts, mortgages, encumbrances and liens.
(c) Notwithstanding the foregoing, if, during the last ten (10) years of the Term, the
Lessee lmprovements are totally destroyed or so damaged as to render them unusable, then (i)
Lessee or the City may terminate this Lease by delivery of written notice of such termination to
the other Party not later than sixty (60) days after the occurrence of such casualty, whereupon
this Lease will terminate as of the date of such casualty. Upon such termination, the insurance
proceeds shall be payable as follows: (i) first, to demolish the Lessee lmprovements and clear
the site of all Lessee lmprovements and debris to the City's reasonable satisfaction, (ii) second
to reimburse Lessee for the fair market value of the Lessee lmprovements as of the date prior to
such loss or destruction and (iii) third, the balance, if any, to the City. lf neither the Lessee nor
the City timely elect to terminate this Lease in accordance with this Section 9.10(c), Lessee
shall restore the Lessee lmprovements in accordance with Section 9.10(a) hereof.
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Section 9.11. Waiver of Subrogation. Where permitted by law, each Party hereby waives all
rights of recovery by subrogation or othenarise (including, without limitation, claims related to
deductible or self-insured retention clauses, inadequacy of limits of any insurance policy,
insolvency of any insurer, limitations or exclusions of coverage), against the other Party, and its
respective officers, agents, or employees.
Section 9.12. lnadequacy of lnsurance Proceeds. Lessee's liability hereunder to timely
commence and complete restoration of the damaged or destroyed Lessee lmprovements shall
be absolute, irrespective of whether the insurance proceeds received, if any, are adequate to
pay for said restoration.
Section 9.13. No Citv Obliqation to Provide Propertv lnsurance. Lessee acknowledges and
agrees that City shall have no obligation to provide any property insurance on any Lessee
lmprovements or property of Lessee located on the Leased Property. lf City does provide any
property insurance coverage, Lessee acknowledges that such insurance shall be for the sole
benefit of the City and Lessee shall have no right or claim to any such proceeds.
Section 9.14. Compliance. Lessee's compliance with the requirements of this Article lX shall
not relieve the Lessee of its liability, or be construed to relieve or limit, Lessee of any
responsibility, liability, or obligation imposed under any other portion of this Lease, or by law,
including, without limitation, any indemnification obligations which Lessee owes to City.
Section 9.15. Riqht to Examine. The City reserves the right, upon reasonable notice, to
examine the original or true copies of policies of insurance (including binders, amendments,
exclusions, riders and applications), or applicable portions of any master insurance policy, to
determine the true extent of coverage. The Lessee agrees to permit such inspection and make
available such policies or portions thereof at the offices of the City.
Section 9.16. Personal Propertv. Any personal property of the Lessee or of others placed in
the Leased Property shall be at the sole risk of the Lessee or the owners thereof, and the City
shall not be liable for any loss or damage thereto for any cause except as a result of the gross
negligence or willful misconduct of the City or its employees, agents or contractors.
ARTICLE X
CONDEMNATION
Section 10.1. Complete Condemnation.
(a) lf the entire Hotel Project shall be taken or condemned for any public or quasi-
public use or purpose, by right of eminent domain or by purchase in lieu thereof (in each case, a
"Taking"), or if such Taking shall be for a portion of the Hotel Project such that the portion
remaining is not sufficient and suitable, on a commercially reasonable basis, for the operation of
the Hotel, then this Lease shall cease and terminate as of the date on which the condemning
authority takes possession; and
(b) lf this Lease is so terminated, the entire award for the Hotel Project or the portion
thereof so taken shall be apportioned among the City and the Lessee as of the day immediately
prior to the vesting of title in the condemning authority, as follows:
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(i) First, but only if the City is not the authority condemning the Hotel Project,
the City shall receive the then fair market value of the Leased Property so taken or condemned
considered as vacant, unimproved, and unencumbered, together with the value of the City's
remainder interest in the Lessee lmprovements which have been taken;
(ii) Second, Lessee shall be entitled to the then fair market value of its
interest under this Lease and in the Lessee lmprovements, less the discounted value of such
Lessee lmprovements as allocated to the City, together with any and all business damages
suffered by Lessee (subject, however, to the rights of the First Leasehold Mortgagee thereto);
and
(iii) the City and Lessee shall each receive one-half (112) of any remaining
balance of the award, except that the Lessee shall receive the entire remaining balance of the
award if the City is the authority condemning the Hotel Project.
Section 10.2. Partial Condemnation.
(a) lf there is a Taking of a portion of the Hotel Project, and the remaining portion
can, on a commercially reasonable basis be adapted and used to operate the Hotel in the same
manner it was previously operated, then this Lease shall continue in fullforce and effect; and
(b) ln such event, the award shall be appo(ioned as follows:
(i) First, to the Lessee to the extent required, pursuant to the terms of this
Lease, for the restoration of the Hotel Project;
(ii) Second, but only if the City is not the authority condemning the Hotel
Project, to the City the portion of the award allocated to the fair market value of the Leased
Property which is so taken, considered as vacant and unimproved;
(iii) Third, to the Lessee the amount by which the value of Lessee's interest in
the Lessee lmprovements and the Leased Property were diminished by the taking or
condemnation; and
(iv) the City and Lessee shall each receive one-half (ll2) of any remaining
balance of the award, except that the Lessee shall receive the entire remaining balance of the
award if the City is the authority condemning the Hotel Project.
Section 10.3. Restoration After Condemnation. lf this Lease does not terminate due to a
Taking, then:
(a) Lessee shall, with commercially reasonable diligence and good-faith, restore the
remaining portion of the Hotel Project in accordance with the provisions of Sections 9.10(a)
hereof;
(b) the entire proceeds of the award shall be deposited and treated in the same
manner as insurance proceeds are to be treated under Article lX until the restoration has been
completed and Lessee and the City have received their respective shares thereof pursuant to
this Article X; and
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(c) if the award is insufficient to pay for the restoration, Lessee shall be responsible
for the remaining cost and expense.
Section 10.4. Temporarv Takins. lf there is a Taking of the temporary use (but not title) of the
Hotel Project, or any part thereof, this Lease shall, but only to the extent it is commercially
reasonable, remain in full force and effect and there shall be no abatement of any amount or
sum payable by or other obligation of Lessee hereunder. Lessee shall receive the entire award
for any such temporary Taking to the extent it applies to the period prior to the end of the Term
and the City shall receive the balance of the award.
Section 10.5. Determinations. lf Landlord and the Lessee cannot agree in respect of any
matters to be determined under this Article, a determination shall be requested of the court
having jurisdiction over the Taking. For purposes of this Article, any personal property taken or
condemned shall be deemed to be a part of the Lessee lmprovements, and the provisions
hereof shall be applicable thereto.
Section 10.6. Pavment of Fees and Costs. All fees and costs incurred in connection with any
condemnation proceeding described in Article X shall be paid in accordance with the law
governing same, as determined by the court, if appropriate.
ARTICLE XI
QUIET ENJOYMENT AND OWNERSHIP OF IMPROVEMENTS
Section 11.1. Quiet Eniovment.
(a) The City represents and warrants that Lessee, upon paying the Rent, Additional
Rent. and other monetary obligations pursuant to this Lease and observing and keeping the
covenants and agreements of this Lease on its part to be kept and performed, shall lawfully and
quietly hold, occupy and enjoy the Leased Property during the Term without hindrance or
molestation by the City, acting in its proprietary capacity, or by any Person claiming under the
City, acting in its proprietary capacity. The City shall, at its own cost and expense, through the
City Attorney's office or other counsel selected by the City in its sole discretion, defend any suits
or actions which may be brought challenging Lessee's right to laMully and quietly hold, occupy
and enjoy the Leased Property in accordance with the preceding sentence. Lessee shall have
the right to retain its own counsel in connection with such proceedings, at Lessee's sole cost
and expense.
(b) However, if the City is acting in its governmental capacity, any liability under this
Section shall only be to the extent permitted by applicable law and subject to the provisions and
monetary limitations of Section 768.28, Florida Statutes, as may be amended, which statutory
limitations shall be applied as if the parties had not entered into this Lease.
Section 11.2. Waste. Lessee shall not knowingly permit, commit or suffer waste or material
impairment of the Hotel Project, or any part thereof; provided, however, demolition of existing
improvements on the Leased Property existing on the date hereof or redevelopment or
reconstruction of the Hotel Project as permitted under this Lease shall not constitute waste.
Section 11.3. Maintenance and Operation of lmprovements. Without limiting the provisions
of Article Xll, Lessee shall at all times keep the Hotel Project in good and safe condition and
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repair in accordance with the Hotel Standards, commercially reasonable wear and tear
excepted. Regarding the occupancy, maintenance and operation of the Hotel Project, the
Lessee shall comply with all applicable Governmental Requirements.
Section 11.4. Ownership of lmprovements Durinq Lease.
(a) Prior to the expiration or termination of this Lease, title to the Lessee
lmprovements shall not vest in the City by reason of its ownership of fee simple title to the
Leased Property, but title to the Lessee lmprovements shall remain in Lessee.
(b) lf this Lease shall terminate, based on a mutual agreement between the parties
or an final order from a court with jurisdiction from which the time for appeal has expired, prior to
the expiration of the Term and if, at that time, the First Leasehold Mortgagee shall exercise its
option to obtain a new lease for the remainder of the Term pursuant to Article Vl, then title to the
Lessee lmprovements shall automatically pass to, vest in and belong to such First Leasehold
Mortgagee or any designee or nominee of such First Leasehold Mortgagee permitted
hereunder, until the expiration or sooner termination of the term of such new lease.
(c) The City and Lessee covenant that, to confirm the automatic vesting of title as
provided in this paragraph, each will execute and deliver such further assurances and
instruments of assignment and conveyance as may be commercially reasonably required by the
other for that purpose.
Section 1 1.5. Surrender of Leased Propertv.
(a) Upon the expiration of the Term or earlier termination of this Lease (subject only
to the rights of any First Leasehold Mortgagee), title to Lessee lmprovements, free and clear of
all debts, mortgages, encumbrances, and liens (which for this purpose shall include all personal
property or equipment furnished or installed on the Hotel Project and owned or leased by
Lessee), shall automatically pass to, vest in and belong to the City or its successor in ownership
and it shall be laMul for the City or its successor in ownership to re-enter and repossess the
Leased Property and Lessee lmprovements thereon without process of law; and
(b) The City and Lessee covenant that, to confirm the automatic vesting of title as
provided in this Section, each will execute and deliver such further assurances and instruments
of assignment and conveyance as may be reasonably required by the other for that purpose.
ARTICLE X!!
MAINTENANCE AND REPAIRS
Section 12.1. Standards Generallv. The City and Lessee agree that the manner in which the
Hotel Project is developed, operated and maintained is important to the City by reason of its
interest in having a convention hotel facility for use by its residents and visitors to the City.
Therefore, Lessee hereby agrees to develop, operate and maintain the Hotel Project and the
Lessee lmprovements thereon (including all FF&E) consistent with the Hotel Standards and in
good order and repair, and will replace the same when necessary with items of similar utility and
value in order to maintain such condition throughout the Term.
Section 12.2. Utilities. City will not be required to furnish any services, utilities or facilities
whatsoever to the Leased Property pursuant to this Lease. Any services provided to the
Leased Property shall be pursuant to the terms of a separate agreement.
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Section 12.3. Cleaninq. Lessee shall, at its sole cost and expense, perform or cause to be
performed, services which will at all times keep the Leased Property and the Lessee
lmprovements thereon, whether partially or fully constructed, in a clean, neat, orderly, sanitary
and presentable condition.
Section 12.4. Removal of Trash. Lessee shall, at its sole cost and expense, store, dispose of,
and remove or cause to be removed from the Leased Property all trash and refuse which might
accumulate and arise from its use of the Leased Property.
Section 12.5. Maintenance and Repairs.
(a) Lessee shall be exclusively responsible for maintenance and repair of the Leased
Property and the Lessee lmprovements, (except for the Off-Site lmprovements or to the extent
infrastructure maintenance has been transferred by Lessee to a utility company by means of a
written contract), to the extent and at the times that are consistent with standard industry
practice for each applicable Lessee lmprovement. Maintenance and repairs by Lessee,
including landscape maintenance, shall be in quality and class equal to or better than the
original Work to preserve the Leased Property and Hotel Project in good condition and working
order.
(b) ln no event shall City be responsible or liable for any maintenance or repair of any
Lessee lmprovement, fixture, equipment, structure, facility, alteration, or addition thereto on the
Leased Property.
(c) Lessee shall be responsible for complying at its cost with any Governmental
Requirements, including construction re-certification of any Lessee lmprovement on the Leased
Property (other than the Off-Site lmprovements), including the "40-year recertification"
requirement under the current building code.
(d) Maintenance and repair of the Hotel Project must be at a level that is in compliance with
the Hotel Standards and that will cause the Hotel Project to be in a usable condition at the
expiration or termination of this Lease, and with Lessee having expended sufficient funds during
the last ten (10) years of this Lease that will cause each Lessee lmprovement to be useful and
functional and code compliant. During the Term of this Lease, Lessee shall (1) adequately and
reasonably fund maintenance reserve accounts for each Lessee lmprovement on the Leased
Property in amounts that are consistent with standard industry practice applicable to each
particular Lessee lmprovement, (2) periodically expend funds from such accounts for
maintenance purposes in an amount and at a time or times that are customary and ordinary for
a sound maintenance program for the Leased Property and consistent with commercial
development practices prevailing in South Florida and (3) comply at all times with the terms set
forth in the Management Agreement from time to time regarding accrual, maintenance and
expenditure of reserves, including FF&E reserves.
Section 12.6. Excavation of Land. Except in connection with the construction of the Hotel
Project, or redevelopment or reconstruction of the Hotel Project as permitted under this Lease,
no excavation of any of the land shall be made, no soil or earth shall be removed from the
Leased Property, and no well of any nature shall be dug, constructed or drilled on the Leased
Property, except as may be required for environmental monitoring purposes, without the prior
written Approval by City Manager.
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Section 12.7. Water and Seweraqe Svstem. The Lessee shall operate and maintain, at its
sole cost and expense, all the components of the water, sanitary sewerage and storm drainage
facilities constructed by Lessee as part of the Hotel Project within the boundaries of the Leased
Property. Once constructed, Lessee shall not make any alterations or modifications to these
facilities without the advance written Approval of the City Manager, which approval shall not be
unreasonably withheld. Such consent shall be granted if any such alterations or modifications
are required to comply with Governmental Requirements.
Section 12.8. lndustrial Waste Facilities. The Lessee shall be fully responsible for all
industrial wastes on the Leased Property caused or produced by Lessee, its Subtenants or
third-parties operating on the Leased Property and the proper disposal thereof, in accordance
with applicable Governmental Requirements.
Section 12.9. lnspections. City and/or its designated representatives shall have the right,
during normal working hours, after prior reasonable notice to inspect the Leased Property and
the Lessee lmprovements to identify those items of maintenance, repair, replacement,
modification and refurbishment reasonably required of Lessee to keep the Leased Property and
the Lessee lmprovements in good order and condition. lf Lessee has failed to fulfill its
maintenance and repair obligations under this Lease, City shall provide written notice and the
Lessee shall perform all corrective work identified in such notice within thirty (30) days of receipt
of the notice from City; provided, however that if such corrective work cannot be reasonably
accomplished within a thirty (30) day period, then the Lessee shall commence the corrective
work within that thirty (30) day period and diligently prosecute same to completion. Trash and
debris maintenance shall be corrected within two (2) Business Days following receipt of written
notice from City. Failure of City to inspect as aforementioned shall not impose any liability on
the City. Nothing in this contractual provision relating to City's inspections shall preclude City
from making inspections of the Leased Property in accordance with City's regulatory authority.
Section 12.10. Failure of Lessee to Maintain. lf Lessee has failed to properly clean, remove
trash and debris, maintain, repair, replace and refurbish the Leased Property as required by this
Article Xll, the City shall provide to the Lessee a written list of deficiencies, reflecting the amount
of time to be reasonably allowed for the Lessee to correct same. lf the Lessee fails to correct or
commence to correct such deficiencies within the time allowed and has not registered an
objection as to its obligation to do so, the City, at its option, may elect to correct any or all of
such deficiencies, in which case, the City shall give Lessee fifteen (15) days further written
notice of its intention to do so, and if the Lessee has not corrected or commenced to correct the
same within such additional fifteen (15) day period, the City may enter upon the Leased
Property and perform all work, which, in the reasonable judgment of the City, is necessary and
the City shall add the cost of such work, plus twenty-five percent (25%) for administrative costs,
to the Rent due hereunder on the first day of the month following the date of such work, and
such cost shall be and constitute a part of the Rent. lf Lessee has not corrected or commenced
to correct such deficiencies within such additional fifteen (15) day period, the Lessee shall not
undertake performance of such repairs or cleanup without specific prior written authorization
from the City.
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ARTICLE X!II
MANAGEMENT OF HOTEL
Section 13.1. Hotel Standards.
(a) Lessee covenants and agrees that it will utilize the Hotel Standards, as
delineated in Exhibit "B", to maintain and operate the Hotel, and operate or cause for the Hotel
to be operated in compliance with this Lease, Management Agreement and Governmental
Requirements;
(b) Any commercial operations on the Hotel Project, whether conducted by Lessee,
an Affiliate of Lessee or any concessionaire, involving any unreasonably noisy, dangerous or
obnoxious activities or the leasing or rental of unreasonably noisy, dangerous or obnoxious
equipment, shall require the prior written approval of the City and City may withhold such
approval or require the termination of any such commercial operations then in existence on the
Hotel Project in its commercially reasonable judgment; and
(c) Lessee shall use commercially reasonable efforts to ensure that any concession,
commercial activity, or other Hotel activity shall be generally consistent with the Hotel
Standards.
(d) Notwithstanding anything to the contrary contained herein, in the event that the
Convention Center is not operated and maintained in accordance with the MBCC Standard of
Operation for a period of more than two (2) years after written notice thereof from Lessee to City
and City does not commence improvements to restore the Convention Center to the MBCC
Standard of Operation within two (2) years after written notice thereof from Lessee, then
Lessee, as its sole remedy, shall not be required to operate and maintain the Hotel in
accordance with the Hotel Standards but instead shall be required to operate the Hotel (or
cause for the Hotel to be operated) so that it meets a sufficient number of the standards then
required to be able to obtain a three-diamond rating from the American Automobile Association;
provided that, if at any time during the Term during which the Convention Center is not operated
in accordance with the MBCC Standard of Operation, such rating system is discontinued or the
standard for such rating system is materially changed, the Parties shall mutually and reasonably
agree to substitute an alternate rating system that is most nearly equivalent to the discontinued
or changed rating system. At such time as the MBCC Standard of Operation is restored,
Lessee shall be required to operate the Hotel in accordance with the Hotel Standards.
Section 13.2. Covenant to Continuouslv Ooerate Hotel.
(a) Subject to the need to make repairs and perform maintenance and any Force
Majeure Event in accordance herewith, after the Opening Date, Lessee shall diligently and
continuously operate (or cause to be operated) the Hotel for 365 days each year consistent with
the HotelStandards;
(b) Subject to the need to make repairs and perform maintenance and subject to any
Force Majeure Events in accordance herewith, after the Opening Date, for each day the Hotel is
not operated continuously, the City, in addition to any other remedies available to it under this
Lease, shall be entitled to receive a rental which shall be no less per day than the average of
the Base Rent payable during the preceding three (3)full Lease Years; and
(c) Notwithstanding the foregoing, Lessee shall have the right from time-to-time
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to close the Hotel or parts thereof for such commercially reasonable periods of time to make
repairs, alterations, remodeling or for any reconstruction after casualty or condemnation or any
Force Majeure Event; provided that the Lessee is using commercially reasonable diligent efforts
to repair and restore the Hotel or, as applicable, to mitigate the impact of such Force Majeure
Events on its operations.
Section 13.3. Hotel Name. Lessee may enter into new Management Agreements or change
the name of "flag" of the Hotel so long as such brand or flag is an Approved Brand. ln
determining whether or not to give any Approval of a brand that is not an Approved Brand, the
City may consider, by way of example and not of limitation, the public image of the proposed
name or flag, its A/AA or other quality classification and whether such image is commensurate
with the public image the City desires to project. Provided that no Event of Default is then
continuing, Lessee's request for approval shall be deemed approved if (i) the first
correspondence from Lessee to City requesting such approval or consent is in an envelope
marked 'PRIORITY" and contains a bold-faced, conspicuous (in a font size that is not less than
fourteen (1a)) legend at the top of the first page thereof stating that "FIRST NOTICE: THIS lS A
REQUEST FOR CONSENT UNDER SECTION 13.3 OF THE DEVELOPMENT AND GROUND
LEASE AGREEMENT, DATED AS OF
-,
2015, AND FAILURE TO RESPOND TO THIS
REQUEST WITHIN TWENTY (20) DAYS MAY RESULT IN THE REQUEST BEING DEEMED
GRANTED", and is accompanied by the information and documents required above, and any
other information reasonably requested by City in writing prior to the expiration of such twenty
(20) day period in order to adequately review the same has been delivered; and (ii) if City fails to
respond or to deny such request for approval in writing within the first fifteen (15) days of such
twenty (20) day period, a second notice requesting approval is delivered to City from Lessee in
an envelope marked "PRIORITY" containing a bold-faced, conspicuous (in a font size that is not
less than fourteen (14)) legend at the top of the first page thereof stating that "SECOND AND
FINAL NOTICE: THIS IS A REQUEST FOR CONSENT UNDER SECTION 13.3 OF THE
DEVELOPMENT AND GROUND LEASE AGREEMENT, DATED AS OF 2015. IF YOU
FAIL TO PROVIDE A SUBSTANTTVE RESPONSE (E.G., APPROVAL, DENTAL OR REQUEST
FOR CLARIFICATION OR MORE TNFORMATTON) TO TH|S REQUEST FOR APPROVAL tN
WRITING WITHIN FIVE (5) DAYS, YOUR APPROVAL SHALL BE DEEMED GIVEN' and City
fails to provide a substantive response to such request for approval within such final five (5) day
period.
r,,r sc e r riftJtcut Ilvou s lo r.r s
Section 14.1. No Partnership or Joint Venture. lt is mutually understood and agreed that
nothing contained in this Lease is intended or shall be construed in any manner or under any
circumstances whatsoever as creating or establishing the relationship of co-partners, or creating
or establishing the relationship of a joint venture between the City and Lessee, or as constituting
Lessee as the agent or representative of the City for any purpose or in any manner whatsoever.
Section 14.2. Recordinq. Documentarv Stamps. A memorandum of this Lease, in form
mutually satisfactory to the parties, may be recorded by either Party among the Public Recordsof Miami-Dade County, Florida and the cost of any such recordation, the cost of any
documentary stamps which legally must be attached to any or all of said documents shall be
paid in full by Lessee. The Parties shall cooperate in structuring the transactions contemplated
hereby in such a manner as to reduce such costs, provided such structure shall not have any
adverse consequence for the City.
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Section 14.3. Florida and Local Laws Prevail. This Lease shall be governed by the laws of
the State of Florida. This Lease is subject to and shall comply with the City Code as the same is
in existence as of the execution of this Lease and the ordinances of the City of Miami Beach.
Any conflicts between this Lease and the City Code shall be resolved in favor of the latter. lf any
term, covenant, or condition of this Lease or the application thereof to any Person or
circumstances shall to any extent, be illegal, invalid, or unenforceable because of present or
future laws or any rule or regulation of any governmental body or entity or becomes
unenforceable because of judicial construction, the remaining terms, covenants and conditions
of this Lease, or application of such term, covenant or condition to Persons or circumstances
other than those as to which it is held invalid or unenforceable, shall not be affected thereby and
each term, covenant, or condition of this Lease shall be valid and be enforced to the fullest
extent permitted by law. Any dispute arising out of or relating to this Lease that specifically
provides for arbitration (and only such provisions) shall be subject to arbitration as provided
herein. ln any such arbitration or in any legal action brought by either Party because of a
breach of this Lease or to enforce any provision of this Lease, the prevailing Party shall be
entitled to reasonable attorneys'fees and paralegals' fees and costs, including those incurred in
subsequent actions to enforce or vacate an arbitration award and those incurred on appeal.
Section 14.4. No Conflicts of lnterest/Citv Representatives not lndividuallv Liable. No
member, official, representative, or employee of the City shall have any personal interest, direct
or indirect, in this Lease, nor shall any such member, official, representative or employee
participate in any decision relating to this Lease which affects his or her personal interest or the
interest of any corporation, partnership or association in which he or she is, directly or indirectly,
interested. No member, official, elected representative or employee of the City shall be
personally liable to Lessee or any successor in interest in the event of any default or breach by
the City or for any amount which may become due to Lessee or successor or on any obligations
under the terms of this Lease.
Section 14.5. Notice. A notice or communication, under this Lease by the City, on the one
hand, to Lessee, or, on the other, by Lessee to the City shall be sufficiently given or delivered if
in writing and dispatched by hand delivery, or by nationally recognized overnight courier
providing receipts, or by registered or certified mail, postage prepaid, return receipt requested
to:
(a)
follows:
Lessee. ln the case of a notice or communication to Lessee if addressed as
To:
With Copies To:
City. ln the case of a notice or communication to the City, if addressed as follows:
To:
City Manager
City of Miami Beach, Florida
1700 Convention Center Drive, 4th Floor
Miami Beach, Florida 33139
With Copies To:
(b)
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City Attorney
City of Miami Beach, Florida
1700 Convention Center Drive, 4th Floor
Miami Beach, Florida 33139
or if such notice is addressed in such other way in respect to any of the foregoing Parties as that
Party may, from time-totime, designate in writing, dispatched as provided in this Section 14.5.
Section 14.6. Estoppel Certificates. The City and Lessee shall, within thirty (30) days after
written request by the other, execute, acknowledge and deliver to the Party which has
requested the same or to any actual or prospective First Leasehold Mortgagee, Mezzanine
Lender, or purchaser of the Hotel or any equity interest in Lessee, a certificate stating that:
(a) this Lease is in full force and effect and has not been modified, supplemented or
amended in any way, or, if there have been modifications, this Lease is in full force and effect as
modified, identifying such modification agreement, and if this Lease is not in force and effect,
the certificate shall so state;
(b) this Lease as modified represents the entire agreement between the Parties as
to this subject matter, or, if it does not, the certificate shall so state;
(c) the dates on which the Term of this Lease commenced and will terminate;
(d) to the knowledge of the certifying Party all conditions under this Lease to be
performed up to that date by the City or Lessee, as the case may be, have been performed or
satisfied and, as of the date of such certificate, there are no existing defaults, defenses or
offsets which the City or Lessee, as the case may be, has against the enforcement of this Lease
by the other Party, or, if such conditions have not been satisfied or if there are any defaults,
defenses or offsets, the certificate shall so state; and
(e) the Rent due and payable for the year in which such certificate is delivered has
been paid in full, or, if it has not been paid, the certificate shall so state.
The Party to whom any such certificate shall be issued may rely on the matters therein set forth;
however, in delivering such certificate neither Lessee nor the City (nor any individual signing
such certificate on such Party's behalf) shall be liable for the accuracy of the statements made
therein, but rather shall be estopped from denying the veracity or accuracy of the same. Any
certificate required to be made by the City or Lessee pursuant to this paragraph shall be
deemed to have been made by the City or Lessee (as the case may be) and not by the person
signing same.
Section 14.7. Provisions not Merqed with Deed. Unless othenrrrise expressed in the
instrument of conveyance or transfer, none of the provisions of this Lease are intended to or
shall be merged by reason of any deed:
(a) transferring the Hotel Project or any part thereof from Lessee (or its successors
or assigns)to the City (or its successors or assigns); or
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(b) transferring title to the Leased Property or any part thereof from the City to
Lessee, its successors or assigns. Any such deed shall not be deemed to affect or impair the
provisions and covenants of this Lease.
Notwithstanding anything to the contrary contained herein, so long as there is a First
Leasehold Mortgagee, the City and Lessee agree that the City shall not transfer any fee interest
in the Leased Property to Lessee without such First Leasehold Mortgagee's prior written
consent.
Section 14.8. Titles of Articles and Sections. Any titles of the several parts, Articles and
Sections of this Lease are inserted for convenience of reference only and shall be disregarded
in construing or interpreting any of its provisions.
Section '14.9. Counterparts. This Lease may be executed in counterparts, each of which shall
be deemed an original. Any such counterparts shall constitute one and the same instrument.
This Lease shall become effective only upon execution and delivery of this Lease by the Parties
hereto.
Section 14.10. Successors and Assiqns: No Third Partv Beneficiaries. Except to the
extent limited elsewhere in this Lease, all of the covenants conditions and obligations contained
in this Lease shall be binding upon and inure to the benefit of the respective successors and
assigns of the City and Lessee. Lessee and the City acknowledge and agree that except for a
First Leasehold Mortgagee or a Mezzanine Lender, if any, each of which shall have the rights
set forth in Article Vl hereof, no third party shall have any rights or claims arising hereunder, nor
is it intended that any third party shall be a third party beneficiary of any provisions hereof.
Section 14.11. Entire Aqreement. This Lease and its Exhibits constitute the sole and only
agreement of the Parties hereto with respect to the subject matter hereof and correctly set forth
the rights, duties, and obligations of each to the other as of its date. Any prior agreements,
promises, negotiations, or representations not expressly set forth in this Lease are of no force or
effect and are merged into this Lease.
Section 14.12. Amendments. No amendments to this Lease shall be binding on either Party
unless in writing and signed by both Parties. Solely to the limited extent as may be necessary
to reasonably facilitate lender financing for the Hotel Project, the City Manager shall have the
delegated authority (but not the obligation), after consultation with the City's Chief Financial
Officer and City Attorney, to negotiate and execute modifications to Article g, Article 10,
Sections 6.1(a)(vi) through 6.1(a)(ix), and Sections 6.1(b) through 6.1(k) of this Lease; and to
negotiate and execute the easements contemplated pursuant to Section 4.1(g) of this Lease.
All other amendments must be approved by majority vote of the City Commission, subject to the
requirements of the City Charter and applicable law, except that the restrictions in Sections
4.2(b),4.2(g) and Section A.1 of Exhibit "A" hereto may not be modified except by a 6/7th vote
of the City Commission and approval of such modifications by at least sixty percent (60%) of the
voters voting thereon in a City-wide referendum, in the same manner as required for approval of
the initial Lease pursuant to Section 1.03(bX3) of the City Charter. The City shall not be
obligated to expend any money or undertake any obligation connected with any such
amendment proposed by Lessee, or othenruise connected with any action requested by or for
the benefit of Lessee under this Lease, and shall be reimbursed by Lessee for all out of pocket
expenses (including third party consultants and attorneys) incurred by the City. Prior to the City
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taking action regarding any such request, Lessee shall deposit with the City the estimated
amount of such costs, as reasonably determined by the City.
Section '14.13. Non-Subordination of Citv's lnterest. The City's fee interest in and
ownership of the Leased Property and the City's rights and interest in this Lease (including the
rights to Rent, Public Charges and other monetary obligations of Lessee to the City under this
Lease) shall not be subject or subordinate to or encumbered by any financing for the Hotel
Project or lien or encumbrances affecting Lessee's interest in this Lease or Lessee
lmprovements or by any acts or omissions of Lessee or any Subtenant hereunder. ln this
regard, the Rent, Additional Rent, Public Charges and other monetary obligations of Lessee to
the City under this Lease then payable at any point in time during the Term shall be paid by
Lessee to the City and shall be superior in right to all claims or rights hereunder or described
above in this Section, including all Hotel Project operating expenses, the payment of debt
service, and any distributions of profits to Lessee or any of its Affiliates or owners.
Section 14.14. Citv Manaser's Deleqated Authoritv. Notwithstanding any provision to the
contrary in this Lease, nothing herein shall preclude the City Manager from seeking direction
from or electing to have the City Commission determine any matter arising out of or related to
this Lease, including, without limitation, any Approval contemplated under this Lease (within the
timeframe specified therefor as if the Approval was being determined by the City Manager), any
proposed amendment or modification to this Lease or any separate agreement relating to the
Hotel Project or otherurrise referenced in this Lease.
Section 14.15. Holidavs. lt is hereby agreed that whenever a notice or performance under
the terms of this Lease is to be made or given on a Saturday or Sunday or on a legal holiday
recognized by the City, it shall be postponed to the next following Business Day, not a Saturday,
Sunday or legal holiday.
Section 14.16. No Brokers. Lessee shall be responsible for, and shall hold the City
harmless with respect to, the payment of any commission claimed by or owed to any real estate
broker or other Person retained by Lessee and which is entitled to a commission as a result of
the execution and delivery of this Lease. The City similarly shall be responsible for, and shall
hold Lessee harmless with respect to, the payment of any commission claimed by or owed to
any real estate broker or other Person retained by the City and which is entitled to a commission
as a result of the execution and delivery of this Lease.
Section '14.17. No Liabilitv for Approvals and lnspections. Except as may be othenrise
expressly provided herein, no approval to be made by the City in its capacity as landlord under
this Lease or any inspection of the Work or the Hotel Project by the City under this Lease, shall
render the City liable for its failure to discover any defects or nonconformance with any
Governmental Requirement.
Section 14.18. Radon. Radon is a naturally occurring radioactive gas that, when it has
accumulated in a building in sufficient quantities, may present health risks to persons who are
exposed to it over time. Levels of radon that exceed federal and state guidelines have been
found in buildings in Florida. Additional information regarding radon and radon testing may be
obtained from the county public health unit for Miami-Dade County.
Section 14.19. Lessee Entitv. On the date of execution hereof, Lessee is a limited liability
company. ln the event that at any time during the Term of this Lease and any extensions and
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renewals thereof, Lessee is a corporation or an entity other than a limited liability company, then
any references herein to member, membership interest, manager and the like which are
applicable to a limited liability company shall mean and be changed to the equivalent
designation of such term which is appropriate to the nature of the new Lessee entity.
Section '14.20. lnflation Adiustments. All adjustments for inflation required under this Lease
shall be calculated utilizing the United States Bureau of Labor Statistics, Consumer Price lndex
for All Urban Consumers; U.S. City average (1982-84=100). lf the United States Department of
Labor should no longer compile and publish this index, the most similar index compiled and
published by said Department or any other branch or department of the federal government
shall be used for the purpose of computing the inflation adjustments provided for in this Lease. lf
no such index is compiled or published by any branch or department of the federal government,
the statistics reflecting cost of living increases as compiled by any institution or organization or
individual designated by the City and generally recognized as an authority by financial or
insurance institutions shall be used as a basis for such adjustments.
Section 14.21. Standard of Gonduct. The implied covenant of good faith and fair dealing
under Florida law is expressly adopted.
Section 14.22. Waiver of Consequential Damaqes. Notwithstanding anything contained in
this Lease to the contrary, in no event shall either Party be liable to the other for any
consequential, exemplary or punitive damages.
Section 14.23. Reservation of Riqhts. This Lease shall not affect any rights that may have
accrued to any Party to this Lease under applicable laws and each Party hereto reserves any
and all of such rights.
[signature pages to follow]
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IN WITNESS WHEREOF, Lessee has caused this Lease to be signed in its name by its
, and the City of Miami Beach has caused this Lease to be signed in its name by
the Mayor, and duly attested to by the City Clerk, and approved as to form and sufficiency by
the City Attorney, on the day and year first above written.
WITNESSED BY:CITY OF MIAMI BEACH, FLORIDA
Print Name:
Print Name:Philip Levine
Mayor
ATTEST Approved for form and legal sufficiency
Fhr'
City Attorney
City Clerk
STATE OF FLORIDA )
couNTY oF M|AM|-DADE )
The foregoing instrument was acknowledged before me this day of
_, 2015, by ,aS-Of
Who is personally known to me or who produced as identification.
Notary Public
Commission Number:
Commission Expires:
By:
By:
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July 17,2015 Draft
Print Name:
Name:
Title:
Print Name:
STATE OF FLORTDA )
couNTY oF M|AM|-DADE )
The foregoing instrument was acknowledged before me this day of2015,by , as_of_
Who is personally known to me or who produced as identification.
Notary Public
Commission Number:
Commission Expires:
STATE OF FLORTDA )
couNTY oF M|AM|-DADE )
By:
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July 17,2015 Draft
EXHIBIT "A"
ACCEPTABLE OWNER DEFINITION
A. "Acceptable Owner" means any individual, corporation or other entity which has,
at a minimum, the following qualifications:
1. Neither the proposed transferee nor any Persons with an ownership
interest in the proposed transferee shall, directly or indirectly, own, operate or manage a
Gaming Establishment in Miami-Dade County, Florida; provided, however, that the foregoing
restriction shall not prevent a proposed transferee who othenruise qualifies as an Acceptable
Owner from so qualifying if all Persons owning or Controlling such proposed transferee, own or
control in the aggregate five percent (5%) or less of the voting securities of any owner, operator
or manager of a Gaming Establishment in Miami-Dade County, Florida.
2. The proposed transferee is not a Foreign lnstrumentality other than a
member country of the European Union or the Gulf Cooperation Council, each as existing on
the Effective Date, Canada, Mexico, countries located in South America, Japan, South Korea,
Singapore and Australia, or a Person Controlled by any of the foregoing countries.
3. The proposed transferee must not be owned, or Controlled by entities or
individuals who have been convicted, or are presently under indictment, for felonies under the
laws of any foreign or United States of America jurisdiction. But the foregoing shall not apply to
individuals or entities owning less than a ten percent (10%) equity interest in the proposed
transferee, other than officers, directors, managers or others who have the power to direct and
control the business and affairs of the proposed transferee.
4. The proposed transferee must not in its charter or organizational
documents (defined as the articles of incorporation and bylaws for any corporation, the
partnership agreement and partnership certificate for any partnership, the articles of
organization and limited liability company operating agreement for any limited liability company,
the trust agreement for any trust and the constitution of the relevant government for any
governmental entity, but expressly excluding any statements, positions, actions or allegations
not contained in such charter organizational documents) expressly advocate or have as its
stated purpose: (a) the violent overthrow of or armed resistance against, the U.S. government;
or (b) genocide or violence against any persons; or (c) discrimination, hatred or animosity
toward persons based solely on their race, creed, color, sex or national origin.
5. A proposed transferee of the entire Hotel Project or of a direct or indirect
Controlling ownership interest in Lessee (each, a "Proposed Major Transferee"), or an Affiliate
of such Proposed Major Transferee Controlling such Proposed Major Transferee or Person with
an ownership interest in such Proposed Major Transferee Controlling such Proposed Major
Transferee, must be a Person that generally invests in commercial real estate projects and has
sufficient financial resources, including access to debt financing, as may be necessary to
conclude the proposed acquisition and to perform the obligations of Lessee in accordance with
this Lease (or if a transfer of a direct or indirect Controlling ownership in Lessee, that Lessee
has such financial resources), in a manner consistent with the Hotel Standards.
6. A Proposed Major Transferee shall have no outstanding material
violations of any applicable law against such Proposed Major Transferee, or any hotel or other
property owned or managed by such Proposed Major Transferee, within Florida, which have
remained uncured for more than ninety (90) days after such Proposed Major Transferee has
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July 17,2015 Draft
knowledge of such violation unless such violation is being contested in good faith so long as the
Proposed Major Transferee is able to continue operating such hotel or other property while such
matter is being contested. A material violation of applicable law means that the Proposed Major
Transferee would be subject to any of the following if found guilty of such violation, or if such
violation remains uncured after any applicable period for curing such violation in the statutory or
regulatory scheme describing such violation: (i) prohibition from continuing to operate such hotel
or other property for any period of time, (ii) loss of such hotel or other property, or (iii) a penalty
in excess of $3 million (adjusted annually for inflation pursuant to Section 14.20 hereof).
7. A Proposed Major Transferee must not (nor any of the individuals or
entities who own at least a ten percent (10%) equity interest in such Proposed Major Transferee
or are officers, directors, managers or othenarise have the power to direct and control the
business and affairs of such Proposed Major Transferee) have filed or been discharged from
bankruptcy, or have been the subject of an involuntary bankruptcy, reorganization or insolvency
proceedings within the past five (5) years (bankruptcy filings by Affiliates shall not disqualify a
Proposed Major Transferee, unless such Affiliates are any of the individuals or entities
described in the parenthetical immediately above).
B. "Acceptable Owner Criteria": The foregoing seven (7) categories of requirements
set forth in paragraph A above are collectively defined as the "Acceptable Owner Criteria."
C. Evaluation of the Acceptable Owner Criteria:
Solely for the purpose of evaluating whether the proposed transferee has met the seven (7)
criteria set forth above, the proposed transferee shall provide the following information to the
Lessee and certify that the information provided by the proposed transferee is true and correct
and that the proposed transferee meets or exceeds the Acceptable Owner Criteria:
1. solely with respect to a Proposed Major Transferee, information sufficient
for the City or any outside vendor engaged by the City to perform a due diligence investigation
pursuant to paragraph D below, including copies of any applicable operating licenses;
2. solely with respect to a Proposed Major Transferee, certified financial
statements reflecting such Proposed Major Transferee's financial ability to meet the obligations
and requirements of Lessee under this Lease;
3. solely with respect to a Proposed Major Transferee, a list of four (4)
persons or firms with whom the principals of such Proposed Major Transferee have conducted
business transactions during the past three (3) years. At least two (2) of those references must
have knowledge of such Proposed Major Transferee's debt payment history;
4. solely with respect to a Proposed Major Transferee, identification of the
hotels owned or managed by such Proposed Major Transferee or its Affiliates or principals;
5. solely with respect to a Proposed Major Transferee, the resume of such
Proposed Major Transferee, senior executives, and other key employees thereof, including
identification of and duration, of hotel ownership experience;
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6. solely with respect to a Proposed Major Transferee, a list of all
bankruptcies filed by such Proposed Major Transferee or to which such Proposed Major
Transferee was a party-bankrupt, if any;
7. a list of all pending litigation, liens or claims in which the proposed
transferee is currently involved which are not covered by insurance and which, if adversely
determined would exceed the amount of $250,000 (as adjusted for inflation over the Term
pursuant to Section 14.20 hereof); and
8. such other evidence as is commercially reasonably necessary to
establish that the new entity proposed to be the Acceptable Owner meets the Acceptable Owner
Criteria.
D. With respect to any proposed Transfer to a Proposed Major Transferee, City
may, at its sole discretion, engage an outside vendor to perform a due diligence investigation at
the Lessee's or such Proposed Major Transferee's sole expense, which may include a search of
civil, criminal, or bankruptcy proceedings in federal and state jurisdictions; regulatory filings; tax
filings; lien, judgment and Uniform Commercial Code searches; business registrations, and the
like. City shall be entitled to engage an independent accounting firm, the reasonable costs of
which shall be borne by Lessee or such Proposed Major Transferee, to review the information
upon which the Proposed Major Transferee's certifications were based, for the purpose of
determining whether the certifications and/or information provided to the City is accurate and
complete. Lessee shall, or shall cause such Proposed Major Transferee to, reimburse City,
upon demand, for any reasonable costs incurred by City in connection with such Transfer or
proposed Transfer to a Proposed Major Transferee, including the reasonable out-of-pocket
costs of making inquiries and investigations into the conformance with the Acceptable Owner
Criteria of such Proposed Major Transferee and the reasonable legal costs incurred, if any, in
connection therewith.
E. Confirmation/Approval ProcessforProposedTransferees:
Regarding the City's confirmation that a proposed transferee is an Acceptable Owner, or the
City's approval of a Transfer that is not a Permitted Transfer, the parties hereby agree that:
1. The City Manager shall rely solely on the proposed transferee's
certification that the proposed transferee meets the Acceptable Owner Criteria (if a Permitted
Transfer), along with the information provided by the proposed transferee and with respect to
any Proposed Major Transferee, the results of any due diligence investigation performed by the
City.
2. The City Manager shall not unreasonably withhold the City's confirmation
if the proposed transferee complies with the Acceptable Owner Criteria.
3. The City Manager shall not unreasonably withhold the City's Approval of
a Transfer that is not a Permitted Transfer, except that with respect to a Transfer to a Foreign
lnstrumentality (other than a member country of the European Union or the Gulf Cooperation
Council, each as existing on the Effective Date, Canada, Mexico, countries located in South
America, Japan, South Korea, Singapore and Australia or Persons Controlled by any of the
foregoing countries), such Transfer shall be subject to the prior written approval of the City
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July 17,2015 Draft
Commission, which may be granted, conditioned or withheld by the City Commission in its sole
discretion; and
4. lf a proposed Transfer requires the City's confirmation or Approval,
Lessee shall deliver written notice to the City, which shall include (i) the name and address of
the proposed transferee; (ii) the name and address of the proposed transferor; (iii) information
describing the nature of the transaction; (iv) the percentage interest being conveyed; and (iv)
the materials described in paragraph C above.
5. The City Manager shall have up to forty-five (45) days after the delivery
of such written notice and the information required under paragraph C above, to determine
whether, on a commercially reasonable basis, the proposed transferee meets the Acceptable
Owner Criteria if a Permitted Transfer, or to Approve in accordance herewith a Transfer if not a
Permitted Transfer.
6. Provided that no Event of Default is then continuing, Lessee's request for
confirmation or Approval shall be deemed confirmed or Approved if (i) the first correspondence
from Lessee to the City requesting such confirmation or Approval is in an envelope marked
"PRIORITY" and contains a bold-faced, conspicuous (in a font size that is not less than fourteen
(14)) legend at the top of the first page thereof stating that "FIRST NOTICE: THIS lS A
REQUEST FOR CONFIRMATION OR APPROVAL UNDER SECTION 5.4 OF THE
DEVELOPMENT AND GROUND LEASE AGREEMENT, DATED AS OF 2015, AND
FAILURE TO RESPOND TO THIS REQUEST WTTHTN FORTY-F|VE (45) DAYS MAy RESULT
lN THE REQUEST BEING DEEMED GRANTED", and is accompanied by the information and
documents required above, and any other information reasonably requested by City in writing
prior to the expiration of such forty-five (45) day period in order to adequately review the same
has been delivered; and (ii) if City fails to respond or to deny such request for confirmation or
Approval in writing within the first thirty (30) days of such forty-five (45) day period, a second
notice requesting confirmation or Approval is delivered to City from Lessee in an envelope
marked 'PRIORITY" containing a bold-faced, conspicuous (in a font size that is not less than
fourteen (14)) legend at the top of the first page thereof stating that "SECOND AND FINAL
NOTICE: THIS IS A REQUEST FOR CONFIRMATION OR APPROVAL UNDER SECTION 5.4
OF THE DEVELOPMENT AND GROUND LEASE AGREEMENT, DATED AS OF
-,
2015.lF YOU FAIL TO PROVTDE A SUBSTANTTVE RESPONSE (E.G., CONF|RMAT|ON,
APPROVAL, DENIAL OR REQUEST FOR CLARTFTCATTON OR MORE TNFORMATTON) TO
THIS REQUEST FOR CONFTRMATTON OR APPROVAL rN WRTTTNG WTTH|N FTFTEEN (15)
DAYS, YOUR CONFIRMATION OR APPROVAL SHALL BE DEEMED GIVEN" and City fails to
provide a substantive response to such request for confirmation or Approval within such final
fifteen (15) day period. Any Transfer shall be subject to the deemed Approval provisions set
forth above in this subparagraph E.6, provided, however, that the City Commission shall have
sixty (60) days after receipt of written notice from Lessee of any proposed Transfer to a Foreign
lnstrumentality (other than a member country of the European Union or the Gulf Cooperation
Council, each as existing on the Effective Date, Canada, Mexico, countries located in South
America, Japan, South Korea, Singapore and Australia or Persons Controlled by any of the
foregoing countries), to approve or disapprove of such proposed Transfer, and if the City has
not notified Lessee, in writing, of the City Commission's approval of such Transfer within such
sixty (60) day period, then such Transfer shall be deemed approved.
7. lf the City notifies Lessee, in writing, within such forty-five (45)-day period,
that the information submitted is, on a commercially reasonable basis, incomplete or insufficient
(and specifies in what ways it is incomplete or insufficient), then Lessee shall supplement such
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information, on a commercially reasonable basis, and the City Manager (or City Commission,
with respect to Transfers to Foreign lnstrumentalities requiring City Commission approval) shall
have twenty (20) days after such supplemental information is provided to make its
determination whether the proposed transferee meets the Acceptable Owner Criteria or to
Approve a Transfer that is not a Permitted Transfer.
8. lf the City Manager does not confirm that the proposed transferee does
not meet the Acceptable Owner Criteria or disapproves a Transfer that is not a Permitted
Transfer, the City Manager shall provide to Lessee specific written, commercially reasonable
reasons for such action. The failure to object to the proposed transferee or Transfer within either
of the two time periods set forth above shall be deemed to be the confirmation by the City of the
proposed transferee as an Acceptable Owner or Approval of the proposed Transfer, except with
respect to a proposed Transfer to a Foreign lnstrumentality (other than a member country of the
European Union or the Gulf Cooperation Council, each as existing on the Effective Date,
Canada, Mexico, countries located in South America, Japan, South Korea, Singapore and
Australia or Persons Controlled by any of the foregoing countries), which the City Commission
must expressly approve in writing, as provided above, in order for such Transfer to be effective.
L Any entity approved as an Acceptable Owner must meet the Acceptable
Owner Criteria set forth in subparagraphs A.1., A.3. and A.4. above throughout its service as an
Acceptable Owner hereunder, subject to notice and cure rights as provided in the Lease.
10. No confirmation by the City of a proposed transferee as an Acceptable
Owner or its meeting of the Acceptable Owner Criteria shall have the effect of waiving or
estopping the City from later claiming that said Acceptable Owner is no longer operating or
maintaining the Hotel Project according to the terms of this Lease.
F. lnterpretation:
1. All acts and omissions as well as rights and duties shall be done in a
commercially reasonable manner, unless the standard of "sole discretion" is used.
2. The implied covenant of good faith and fair dealing under Florida law is
expressly adopted.
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EXHIBIT "B"
HOTEL STANDARDS DEFINITION
The Lessee shall operate the Hotel, or cause for the Hotel to be operated, so that (with
the requirements in paragraphs A, B and C being the "Hotel Standards"):
A. it meets a sufficient number of the standards then required to be able to obtain a
four-diamond rating from the American Automobile Association ("AAA"); or
B. if at any time during the Term of this Lease either such rating system is
discontinued or the standards for such rating system is materially changed, the Parties shall
mutually and reasonably agree to substitute an alternate rating system that is most nearly
equivalent to the discontinued or changed rating system.
C. Notwithstanding the foregoing, Lessee shall be deemed to have satisfied the
Hotel Standards as long as it is operating the Hotel Project (or causing the Hotel Project to be
operated) in a manner substantially similar to the operation of the following convention center
hotels as of the Effective Date: Hilton Americas-Houston, Hilton Orlando, Marriott Marquis
Washington DC, San Francisco Marriott Marquis, Hyatt Regency Orlando, Hyatt Regency
Denver at the Colorado Convention Center, The Westin Charlotte, and the Sheraton Chicago
Hotel and Towers and the Loews Miami Beach or any convention center hotel of a similar size
and purpose as the Hotel operated by an Approved Brand.
The Lessee does not have to actually obtain the AAA four-diamond or equivalent rating.
But, it must be able to meet the standards for obtaining it.
lf the Lessee elects, in its sole discretion, not to obtain that rating, the City shall have the
right once every thirty-six (36) months to require the Lessee to retain a hotel consultant
proficient in the AAA Diamond ratings and with at least ten (10) years'experience in the hotel
industry to produce a report within sixty (60) days of the City's request that states the Hotel does
or does not meet the Hotel Standards.
The City has the right to accept or reject the report. lf it rejects the report, the City shall
retain its own hotel consultant proficient in the AvAA Diamond ratings who shall also have at
least ten (10) years'experience in the hotel industry. That consultant shall produce a report at
any time explaining in commercially reasonable detail why the report by the Lessee's hotel
consultant is or is not correct.
After the City's hotel consultant's report is delivered to the Lessee, the City and Lessee
shall not take any formal action for thirty (30) days. They may elect to discuss or mediate the
matter during that period of thirty (30) days.
At the end of that period of time, if the City does not agree that the Hotel is being
operated in accordance with the Hotel Standards, then the matter may be resolved in
accordance with Section 7.8, using a mediator with substantial experience in the hotel industry.
ln the event of a determination that the Hotel Standards are not being met, Lessee shall
have six (6) months within which to take the necessary action to cause the Hotel to be operated
in accordance with the Hotel Standards.
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EXHIBIT "C"
BUDGETED IMPROVEMENT COSTS
Hotel Project Costs
Soft Costs
Design Architect
Landscape Architect
Other Architectural
Traffic Engineer
Civil Engineer
Misc. Consultants
Legal and Administrative
Real Estate Taxes
Developers Fee
Building Permits
lnsurance - Builders Risk
Pre- Opening Expense
Working capital
SewerMater Hook Up
Art in Public Places
Other
Soft Cost Contingency
Total Soft Cost
Financing
Loan/Equity fees
Construction Period lnterest
Operating lnterest Reserve
Construction Costs
Construction Cost Hotel
Skybridge
Construction Contingency
Payment & Performance Bonds
FF&E
OS&E
Total Construction Cost
Total Project Costs
$ t 3,551,938
$ lncluded Above
$ lncluded Above
$ lncluded Above
$ lncluded Above$ t,o33,5oo$ t,000,000$ +,193,084$ 22,424,772$ 11,120,197$ 3,545,741$ 6,680,000$ 800,000$ as,ooo
$ 9,643,386
$ t,282,702
$ 20,272,520
$ 89,632,940
$ 11,344,436
$ e,256,783
$ t 1,503,442
$ s2,104,661
$
$
$
$
$
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235,880,136
1,800,000
lncluded Above
2,084,913
24,683,024
19,264,725
$ 283,712,798
$ 40s,450,398
195
EXHIBIT "D"
LEGAL DESCRIPTION OF LEASED PROPERTY
(see next two (2) pages)
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Review Board/development process, the cantilevered elements on the north property
line, depicted in Appendix E of the Lease with respect to the 4th Level of the proposed
Hotel, will be included within the legal description for the Leased Property.
198
July 17,2015 Draft
EXHIBIT "E''
APPROVED PLANS
(see attached pages)
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EXHIBIT "F''
SCHEDULE OF PERFORMANCE
(See next page)
226
July 17,2015 Draft
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EXHIBIT "G''
FORM OF EASEMENTS
GRANT OF EASEMENT AND AGREEMENT
THIS GRANT OF EASEMENT AND AGREEMENT (this "Easement") is made this _
day of , 20-, by the CITY OF MIAMI BEACH, a Florida municipal corporation (the
"City"), having its principal place of business at 1700 Convention Center Drive, Miami Beach,
Florida 33139 in favor of Portman Miaml Beach, LLC, a Delaware limited liability company(.,Lessee,'),havingitsprincipalplaceofbusinessat'
WHEREAS, the City owns that certain property situated, lying and being in Miami-
Dade County, Florida, as more particularly described in Exhibit "A" attached hereto (the
"Property");
WHEREAS, the City and the Lessee entered into that certain Development and Ground
LeaseAgreementdatedaSof-20-,amemorandumofwhichisrecordedin
officialRecordsBook-,atPageofthePublicRecordsofMiami-Dade
County (the "Development and Ground Lease Agreement"), which constitutes a development
agreement pursuant to the Florida Local Government Development Act, Section 163.3220, el.
seq., Florida Statutes (the "Act") and which contemplates the development and ground lease of
the portion of the Property depicted in Exhibit "B" (the "Leased Property") for an 800-room full-
service convention hotel and related facilities, to be connected to the Miami Beach Convention
Center located at 1901 Convention Center Drive, Miami Beach, Florida ("Convention Cente/') by
an enclosed overhead pedestrian skybridge (the "Hotel Project");
WHEREAS, pursuant to the Development and Ground Lease Agreement, the City has
agreed to grant to the Lessee a non-exclusive access easement for the purpose of ingress and
egress through, over, on, upon and across the right-of-way which is more particularly described
in Exhibit "C" attached hereto ("Easement Parcel 1") for the purpose of permitting Lessee to
access the Leased Property including, without limitation, its parking, loading docks and/or
service areas, and reserving unto City and its contractors, agents, employees, invitees and
licensees (collectively, the "City Parties") the right to ingress and egress through, over, on, upon
and across the Easement Parcel 1 for all purposes, including but not limited to providing
pedestrian and vehicular access to the Convention Center and The Fillmore Theater located at
1700 Washington Avenue, Miami Beach, Florida ("Fillmore Theate/'), and their respective
loading docks and service areas;
WHEREAS, pursuant to the Development and Ground Lease Agreement, the City has
agreed to grant to the Lessee a non-exclusive access easement over the area more fully
described in Exhibit "D" hereto ("Easement Parcel 2"), for the purpose of permitting Lessee to
construct the Skybridge and the Off-Site lmprovements, as those terms are more particularly
described in the Development and Ground Lease Agreement, and to maintain the Skybridge in
accordance with the Development and Ground Lease Agreement; and
WHEREAS, collectively, Easement Parcel '1 and Easement Parcel 2 shall be referred to
herein as the "Easement Parcels";
228
July'17,2015 Draft
WHEREAS, granting the foregoing easements is a condition of the effectiveness of the
Development and Ground Lease Agreement and the issuance of development permits and
approvals in order to develop the l-lotel Project;
NOW THEREFORE, in consideration of Ten and No/100 Dollars ($10.00) and other
good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged,
the City and Lessee agree as follows:
1. The City hereby grants to the Lessee a non-exclusive access easement
through, over, on, upon and across Easement Parcel 1 for the purpose of ingress and egress
to and from the Leased Property and its parking, loading docks and/or service areas, for so
long as Lessee uses the Leased Property in accordance with the terms of the Development
and Ground Lease Agreement. The City hereby expressly reserves for itself, the other City
Parties and their respective successors and/or assigns, the unrestricted right to use Easement
Parcel 1 for purposes of providing pedestrian and vehicular access to the Convention Center
and the Fillmore Theater, and their respective loading docks and service areas and for any and
all other purposes that do not unreasonably interfere with the Lessee's use of Easement Parcel
1 for the rights granted herein, including but not limited to granting other easements or licenses
at the same location. The City shall be responsible for the maintenance and operation of
Easement Parcel 1 at the City's sole cost and expense.
2. The City hereby grants Lessee a non-exclusive access easement over, on,
under, upon, and across Easement Parcel 2 to perform all acts necessary to ensure fulfillment
of all requirements of [insert permit or order no.] with respect to the construction of the
Skybridge and/or Off-Site lmprovements referenced in the Development and Ground Lease
Agreement and as reasonably necessary to maintain the Skybridge in accordance with
Lessee's obligations under the Development and Ground Lease Agreement. The City hereby
expressly reserves for itself, the other City Parties and their respective successors and/or
assigns, the unrestricted right to use the Easement Parcel 2for any and allother purposes that
do not unreasonably interfere with the Lessee's use of Easement Parcel 2 for the rights
granted herein, including but not limited to granting other easements or licenses at the same
location.
3. The Easement Parcels are subject to all liens, encumbrances, covenants,
conditions, restrictions, reservations, contracts, leases and licenses, easements, and rights of
way perlaining to the Property, whether or not of record, as identified on Exhibit "E" hereto (the
"Encumbrances"). The use of the word "grant" shall not imply any warranty on the part of the
City with respect to the Easement Parcels.
4. The Lessee shall maintain insurance on the Easement Parcels at all times as
required by the Development and Ground Lease Agreement. Such insurance policy shall
name the City as an additional insured and loss payee (with respect to property coverage)
thereunder; shall be written by insurance companies licensed to do business in Florida and
with an AM Best rating of A- or better; and must specify it is not subject to cancellation or non-
renewal without a minimum of 30 days notification by the insurer to the City with a copy to the
attention of Risk Manager, 1700 Convention Center Drive, Miami Beach, Florida 33139 ("Risk
Manager"), with a minimum of 10 days notification by the insurer to the City and the City's Risk
Manager prior to cancellation or non-renewal for non-payment of premium. The Lessee shall
provide the City with a certificate of insurance evidencing said coverages.
229
July 17,2015 Draft
5. City covenants, warrants and represents that it is the fee simple owner of the
Leased Property and Easement Parcels, and has the right, title, and capacity to grant the
easements granted herein, subject only to the Encumbrances.
6. Lessee shall not materially interfere with the use by and operation and activities
of City Parties on the Easement Parcels, and Lessee shall use such routes and follow such
procedures on the Easement Parcels as result in the least damage and inconvenience to City
and its invitees, agents, employees, guests, lessees and/or licensees.
7. Lessee shall be responsible for any damage to the Property or any property of
third parties resulting from the exercise or use of the Easement Parcels by the Lessee or its
contractors, agents, officers, members, employees, invitees or licensees (collectively, the
"Lessee Parties"), including but not limited to soil erosion, subsidence or damage resulting
therefrom. Lessee shall promptly repair and restore to its original condition any of the Property
that may be altered, damaged or destroyed in connection with the exercise or use of the
Easement Parcels by the Lessee Parties. This Easement is made on the express condition
that City is to be free from all liability by reason of injury or death to persons or injury to
property from whatever cause arising out of any of the Lessee Parties' exercise or use of the
Easement Parcels, including any liability for injury or death to the person or property of any of
the Lessee Parties or to any property under the control or custody of any of the Lessee Parties.
Lessee hereby covenants and agrees to defend and indemnify the City Parties and save them
harmless from any and all liability, loss, costs, or obligations on account of, or arising out of,
any such injury or losses caused or claimed to be caused by the exercise or use of the
Easement Parcels by the Lessee Parties, however occurring, except to the extent caused
solely by the willful or grossly negligent acts or omissions of City or the City Parties.
B. This Easement shall inure to the benefit of and be binding upon the heirs, legal
representatives, successors and assigns of the City and Lessee, as applicable.
9. Lessee alone shall pay any and all taxes, charges or use fee(s) levied by any
governmental agency against Lessee's interest in the Easement Parcels. Lessee shall not
cause liens of any kind to be placed against the Easement Parcels or any of the Property
except in connection with a Leasehold Mortgage.
10. Any notices required or permitted to be given under this Easement shall be in
writing and shall be deemed to have been given if delivered by hand, sent by recognized
overnight courier (such as Federal Express) or mailed by certified or registered mail, return
receipt requested, in a postage prepaid envelope, and addressed as follows:
lf to the City at:City of Miami Beach, City Hall
1700 Convention Center Drive
Miami Beach, Florida 3313
Attn: City Manager, City Attorney
With a copy to:
lf to Lessee at:
230
July 17,2015 Draft
clo
Attn:
With a copy to:
Notices personally delivered or sent by overnight courier shall be deemed given on the
date of delivery and notices mailed in accordance with the foregoing shall be deemed given five
(5) days after deposit in the U.S. mails. The terms of this Section shall survive the termination
of this Easement.
11. Construction.
a. This Easement shall be construed and governed in accordance with the laws of
the State of Florida. All of the parties to this Easement have participated fully in the negotiation
and preparation hereof; and, accordingly, this Easement shall not be more strictly construed
against any one of the parties hereto.
b. ln construing this Easement, the use of any gender shall include every other and
all genders, and captions and section and paragraph headings shall be disregarded.
c. All of the exhibits attached to this Easement are incorporated in, and made a part
of, this Easement.
d. The recitals to this Easement set forth above are true and correct and are
incorporated herein by this reference.
e. The dominant estate is intended to be appurtenant to the Development and
Ground Lease Agreement and is co-terminus with the Lessee's rights thereunder.
12. Severabilitv. ln the event any term or provision of this Easement be determined
by appropriate judicial authority to be illegal or othenauise invalid, such provision shall be given
its nearest legal meaning or construed as deleted as such authority determines, and the
remainder of this Easement shall be construed to be in full force and effect.
13.Time of Essence. Time shall be of the essence for each and every provision
hereof.
14. Entire Aoreement. This Easement, together with the documents referenced
herein, constitute the entire agreement and understanding among the parties with respect to
the subject matter hereof, and there are no other agreements, representations or warranties
other than as set forth herein. This Easement may not be changed, altered or modified except
by an instrument in writing signed by the party against whom enforcement of such change
would be sought.
231
July 17, 2015 Draft
lN WITNESS WHEREOF, the undersigned has caused this Easement to be executed
byexecutionofthisinstrumentasofthis-dayof-,2a1_.
(Signature pages to follow)
232
July 17,20'15 Draft
Witnesses:CITY OF MIAMI BEACH, FLORIDA,
a municipal corporation
Mayor
By:Sign Name:
Print Name:
Sign Name:
Print Name:
ATTEST:
City Clerk
STATE OF FLORIDA
COUNTY OF DADE
SS:
The foregoing instrument was acknowledged before me this _ day of, 20- by . He is personally known to me or has produced
_ffientification ahd who did (did not)take an oath.
NOTARY PUBLIC
Typed or Printed Name of Notary
My Commission Expires:
Serial No., if any:
of
233
July 17,2015 Draft
ACKNOWLEDGED AND ACCEPTED this _ day of 20_by
Witnesses:LESSEE
Sign Name:
Print Name:
Print name:
Sign Name:
Print Name:
STATE OF FLORIDA
COUNTY OF DADE
By:
SS:
The foregoing instrument was acknowledged before me this _ day of_, 20- by , ?s of
He is personally known to me or has producedHe is personally known to me or has produced
as identification and who did (did not)take an oath.
NOTARY PUBLIC
Typed or Printed Name of Notary
My Commission Expires:
Serial No., if any:
234
July 17,2015Drafl
Exhibit "A"
IMBCC Parcel - Folio No.02-3227-000-00901
235
July 17,2015 Draft
Exhibit "B"
Hotel Site Legal Description
[See Exhibit D to Development and Ground Lease Agreement]
236
July 17,2015 Draft
Exhibit "C"
Easement Parcel 1 (Right-of-way)
[exact description to be finalized as part of the development process pursuant to the Lease]
237
July 17,2015 Draft
Exhibit "D"
Easement Parcel2for
Construction of Skybridge and Off-site lmprovements and Maintenance of Skybridge
[exact description to be finalized as part of the development process pursuant to the Lease]
238
July 17,2015 Draft
EXHIBIT "H"
PRESENTLY PERM ITTED DEVELOPM ENT
(a) Permitted Development and Uses. The Leased Property is in the CCC
Civic and Convention Center District, a zoning district created to accommodate the facilities
necessary to support the Convention Center. The main permitted uses in the CCC Civic and
Convention Center District are parking lots, garages, performing arts and cultural facilities; hotel;
merchandise mart; commercial or office development; landscape open space; parks. Property
located in the CCC Civic and Convention Center District may be used for the purposes
permitted and regulated in these land use designations and zoning districts, as further limited by
the City's Land Development Regulations, provided, however, that the Leased Property may
only be used in accordance with the terms and conditions of this Lease.
(b) Densitv. Buildinq Heiqhts. Setbacks and lntensities. The maximum
density, heights, setbacks and intensities for any development on the Leased Property shall be
regulated by the City's Land Development Regulations, Comprehensive Plan and any
Governmental Requirements. The development regulations in the CCC Civic and Convention
Center District are as follows: (1)maximum floor area ratio of 2.75. There are no lot area, lot
width, population densities or unit size requirements for the CCC Civic and Convention Center
District. Building height and story requirements are as follows: (1) Maximum building height for
hotels: 300 feet; for all other uses: 100 feet. (2) Maximum number of stories for hotels: 30; for all
other uses: 11 stories. The development regulations (setbacks, floor area ratio, signs, parking,
etc.) shall be the average of the requirements contained in the surrounding zoning districts as
determined by the City's Planning and Zoning Director.
THIS EXHIBIT DESCRIBES THE PRESENTLY PERMITTED DEVELOPMENT
PURPOSES OF THE ACT ONLY. THE PROJECT SHALL CONFORM TO
DESCRIPTION, TERMS AND CONDITIONS SET FORTH !N THIS LEASE.
FOR
THE
239
July 17,2015 Draft
EXH!BIT "I"
PUBLIC FACILITIES
The proposed development will be serviced by those roadway transportation facilities
currently in existence as provided by state, county, and local roadways. The proposed
development will also be serviced by public transportation facilities currently in existence, as
provided by Miami-Dade County, the City of Miami Beach, and such other governmental
entities as may presently operate public transportation services within the City of Miami Beach.
Sanitary sewer, solid waste, drainage, and potable water services for the proposed
development shall be those services currently in existence and owned or operated by Miami-
Dade County, the Miami-Dade County Water and Sewer Department, and the City of Miami
Beach. The proposed development shall be serviced by those existing educational facilities
owned or operated by the Miami-Dade Public Schools District, if applicable. The proposed
development shall be serviced by those existing parks and recreational facilities owned or
operated by the United States Government within Miami- Dade County, by the State of Florida,
by Miami-Dade County, and by the City of Miami Beach. The proposed development shall be
serviced by those existing health systems and facilities operated by the United States
Government within Miami-Dade County, by the State of Florida, by Miami-Dade County, and
by the City of Miami Beach.
The proposed development will also be serviced by any and all public facilities, as such
are defined in Section 163.3221(12) of the Act, that are described in the Comprehensive Plan,
specifically including those facilities described in the lnfrastructure Element and the Capital
lmprovements Element therein, a copy of which is available for public inspection in the offices
of the City Clerk of the City of Miami Beach.
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EXH!BIT "J"
PUBLIC RESERVATIONS AND DEDICATIONS
None, except for any easements or reservations contemplated under Section 4.1(g).
241
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EXHIBIT "K"
REQUIRED DEVELOPMENT PERMITS AND VARIANCES
The following constitutes a generalized list of local permits anticipated as necessary to
be approved by the terms of this Lease:
1. Design Review Board, Planning Board, and/or Board of Adjustment approvals,
pursuant to Chapter 1 18 of the City of Miami Beach Code.
2. Utility Permits
3. Demolition Permits
4. Building Permits
5. Environmental Permits
6. Hazardous Materials Removal Permit, if removal of hazardous materials is found
necessary.
7. Public Works Permit, Paving and Drainage
8. Public Works Permit, Water and Sewer
9. Public Works Revocable Permits
10. Certificates of Use and/or Occupancy
11. Any variances or waivers that may be required pursuant to Chapters 114
through 142 of the City of Miami Beach Code
12. All other localgovernmental approvals as may be applicable to the subject
property from time to time pursuant to the terms of this Development Agreement,
including but not limited to restrictive covenants in lieu of unity of title
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EXHIBIT "L"
ROOM BLOCK AGREEMENT
by and between
CITY OF MIAMI BEACH, FLORIDA
and
PORTMAN MIAMI BEACH, LLC
243
July 17,2015 Draft
ARTICLE I
1.01
L.O2
1.03
t.04
1.05
1.06
t.o7
1.08
1.09
1.10
L,LL
t.t2
1.13
t.L4
1.15
1.16
L.t7
1.18
1.19
L.20
L.2L
1.22
t.23
1.24
7.25
L.26
L.27
7.28
7.29
1.30
1.3L
L.32
1.33
L.34
1.35
1.36
1.37
1.38
1.39
L.40
L.4L
t.42
1.43
1.44
7.45
1.46
1.47
ARTICTE
2.0L
....3
il TERM OF THrS TEASE ...........
ColverucEueruT oF THE TERM. ...................5
244
July 17,2015 Draft
2.02 ExptRATtoN oF TERM; Susprruslor.r PERtoD ........... ...............5
ARTICIE lllROOM BLOCKCOMMITMENT; RELEASE OF BIOCK..... ...........5
3.01 RooM BLocK ......................6
3.02 Relrnse oF BLocK .............11
ARTTCIE tV ROOM BLOCK pRtCtNG.................. .................13
EvErur Blocr MTNTMUM Rarrs; Sprcrel EvENT BLocK MtNtMUM RATES............. ...............13
Grruenel MnrrEns RecnRonrc RATES ............ ..................15
Corunorrurratrrv ...............15
ARTICLE V STANDARDS OF HOTEL OPEMTION ................15
5.01
STANDARDS OF CENTER OPEMTION.. ........ 16
ARTICLE Vll NO LlABltlW FOR PROPOSED CONVENTION CENTER CUSTOMER; LESSEE RESPONSIBILITY TO CAUSE
OPERATOR TO PERFORM; INDEMNITY ........16
7.O7
ARTICLE VIII EVENTS OF DEFAULT. ..............LT
8.01
ARTTCLE tX ADDIT|ONAT pROVtStONS .........18
4.0L
4.02
4.03
9.02
9.03
9.04
245
July 17, 2015 Draft
ROOM BLOCK AGREEMENT
THIS ROOM BLOCK AGREEMENT ("Aqreement") made and entered into as of the
-
day of _, 201_ (the "Effective Date") by and between City of Miami Beach,
Florida ("Citv"), a Florida municipal corporation, and Portman Miami Beach, LLC ("Lessee"), a
Delaware limited liability company, recites and provides as follows.
RECITALS
The City has a material interest in maximizing the quality and performance of convention
business attracted to the Convention Center, as hereinafter defined in Section 1.12, and
encouraging convention and tourism business in the City.
ln furtherance of those goals, and to facilitate the development of a full service
convention center hotel connected to the Convention Center, the City has entered into the
Development and Ground Lease Agreement ("Lease"), as hereinafter defined in Section 1.14,
with Lessee, under which the parties have agreed, among other things, to enter into a room
block agreement pursuant to which specific percentages of the Hotel's guest rooms will be
reserved for specific periods of time for attendees, participants and planners of conventions and
trade shows at the Convention Center. City and Lessee agree that the room block agreement
described in the Lease (and, accordingly, this Agreement) constitutes a contract for the
provision of services by Lessee to and for the benefit of City, which services are being provided
in exchange for the covenants and agreements of City set forth in the Lease.
City and Lessee intend that this Agreement satisfy such room block agreement
requirement in the Lease.
Lessee has or will execute and enter into a Management Agreement (as hereinafter
defined) with the lnitial Hotel Operator pursuant to which, among other things, Lessee shall
require, and the lnitial Hotel Operator must agree, to perform the obligations assigned to Lessee
and/or Operator herein during the term of such Management Agreement and to othenr,rise
operate the Hotel in a manner which complies with this Agreement.
ln consideration of the mutual covenants and agreements herein contained and other
good and valuable consideration, the receipt and legal sufficiency of which are hereby
acknowledged and confessed by the parties hereto, City and Lessee hereby covenant and
agree with each other as follows:
ARTICLE !
DEFINED TERMS
ln this Agreement, these terms shall have the following meanings:
1.01 "18-Month Room Block Request" is defined in Section 3.01(c).
1.02 "Active Negotiations" means (x) for purposes of Section 3.01(b), that Lessee or
Operator, on the one hand, and a bona fide potential Hotel guest, on the other hand, have
exchanged written correspondence between them that reflects an indication of mutual interest
for consummating a transaction whereby such Hotel contracts to block or books guest rooms at
the Hotel, and neither Lessee or Operator, on the one hand, nor such bona fide potential Hotel
guest on the other hand, has indicated that it no longer has any interest in pursuing such
negotiations and (y) for purposes of Section 3.02(b), that the GMCVB or the City or its
representatives, on the one hand, and a Potential Convention Center Customer, on the other
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July 17,20'15 Draft
hand, have exchanged written correspondence between them that reflects an indication of
mutual interest for consummating a City-Wide Event and neither the GMCVB or the City, on the
one hand, nor such Potential Convention Center Customer, on the other hand, has indicated
that it no longer has any interest in pursuing such negotiations.
1.03 "Agreement" is defined in this Agreement's preamble.
1.04 "Amended Offer" is defined in Section 3.01(d).
1.05 "Available Guest Rooms" means, as of any date in question, all of the Hotel's
guest rooms (including suites), excluding any guest rooms that are reasonably projected to be
unavailable on the dates in question due to scheduled renovations, repairs (including, without
limitation, repairs due to events of casualty that have occurred), or maintenance, and excluding
any of the Hotel's guest rooms that have been condemned in a taking and as to which physical
possession is projected to have been taken by the condemnor prior to the date in question.
1.06 "Block Notice" is defined in Section 3.01(d).
1.07 "Block Release Request Notice" is defined in Section 3.02(d).
1.08 "Business Day" means a day other than a Saturday, a Sunday or a day on which
national banks in Miami-Dade County, Florida are closed for business. lf any action is required
to be performed, or if any notice, consent or other communication is given, on a day that is not a
Business Day, such performance shall be deemed to be required, and such notice, consent or
other communication shall be deemed to be given, on the first Business Day following such non-
Business Day. Unless otherwise specified herein, all references herein to a "day" or "days" shall
refer to calendar days and not Business Days.
1.09 "City" means the City of Miami Beach, Florida, a municipal corporation of the
State of Florida.
1.10 "City Manager" means the Chief Administrative Officer of the City. The City
Manager shall be construed to include any duly authorized representatives designated in writing
with respect to any specific matter(s) concerning the Room Block Agreement (exclusive of those
authorizations reserved to the City Commission or regulatory or administrative bodies having
jurisdiction over any matte(s) related to the Lease).
1.11 "City-Wide Event" means a convention, trade show or other event requiring a
three (3) night stay, during which a Potential Convention Center Customer (i) needs to use a
minimum of 115,000 gross square feet of exhibit or meeting space in the Convention Center
and (ii) in connection with such event, requests 1,500 or more guest rooms be made available in
hotels in the City (including the Hotel) and surrounding metropolitan areas, in the aggregate, for
one or more days while the event is held at the Convention Center (and, potentially, the day
preceding the commencement of such event and the day following the conclusion of such
event). A City-Wide Event shall also include the annual Orange Bowl football game hosted by
the Orange Bowl Committee, and any Super Bowl football game that may take place in Miami-
Dade County or Broward County (without regard to whether either event utilizes the Convention
Center in any way).
1.12 "Convention Center" means the Miami Beach Convention Center located at 1900
Convention Center Drive, Miami Beach, Florida.
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July 17,2015 Draft
1.13 "Cure Period" is defined in Section 2.02(b).
1.14 "Development and Ground Lease Agreement" or "Lease" means that certain
Development and Ground Lease Agreement between Lessee and City dated 2015,
as may be amended from time to time in accordance with its terms.
1 .15 "Effective Date" is defined in this Agreement's preamble.
1.16 "Event Block Minimum Rate" means the lowest rate City may require the Lessee
and Operator to quote or charge a Potential Convention Center Customer for a room during a
City-Wide Event, as described and determined in accordance with Section 4.01.
1.17 "Event of Default" is defined in Section 8.01.
1.18 "Event Night" means any night during a City-Wide Event (including the day
preceding the commencement of and the day following the conclusion of such event, as
contemplated in the definition thereof) for which (i) City has exercised its rights under Section
3.01(a) by giving a Room Block Request Notice to the Operator and (ii) in response to such
Room Block Request Notice, 250 or more rooms have been booked, blocked or reserved by the
Operator either (i) pursuant to a contract with the Potential Convention Center Customer or (ii)
pursuant to lnitial Offers or Amended Offers that have been accepted or are still outstanding
(and, if such contracts are terminated or any of such offers are subsequently terminated or
rejected, then any of the blocked rooms that were subject thereto shall no longer be considered
blocked for purposes of this definition). lf rooms are blocked under this Agreement for multiple
City-Wide Events on the same night, that night will be considered to be a single Event Night for
purposes of the Maximum Event Night Ceiling but in no event shall any night during a City-Wide
Event be considered an Event Night for purposes of the Maximum Event Night Ceiling if City
has not given a Room Block Request Notice for that night to the Operator.
1 .19 "Event Room Block" means a block of guest rooms (including suites) at the Hotel,
, offered to or reserved for the attendees of a City-Wide Event in response to a Room Block
Request Notice.
1.20 "Force Majeure" means and includes causes without fault and beyond the control
of a party, whether or not foreseeable, including, without limitation, fire, explosion, accident,
flood, windstorm, earthquake, or other disaster or calamity, disruption of utility service;
restrictive new governmental laws or regulations; acts of war (whether declared or undeclared),
invasion, blockade, or sabotage; terrorism or threat thereof; riot, civil disturbance, insurrection or
acts of public enemies; and strike, lockout or other labor action and inability to procure
materials; provided that neither a material disruption of or material adverse change in financial,
banking or capital market conditions or a material adverse change in the business, financial
condition, operations, assets, liabilities or prospects of either party shall excuse any failure or
delay in performance under this Agreement.
1.21 "GMCVB" means the Greater Miami Convention & Visitors Bureau.
1.22 "Hotel" means the hotel to be constructed by Lessee on the Hotel Site pursuant
to the Lease, together with all supporting hotel facilities and amenities.
1.23 "Hotel Site" means the parcel of real property described on Exhibit A attached
hereto and made part hereof.
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July 17, 2015 Draft
1.24 "lnitial Offer" is defined in Section 3.01(b).
1.25 "Managed Hotels" means full-service, convention center hotels within the United
States of America operated as first-class hotels containing no less than 800 rentable guest
rooms operated under the Operator's brand name and managed by the Operator or any entity
controlled by, under common control with or that controls Operator, specifically excluding
franchised hotels.
1.26 "Management Agreement" means the hotel operating or management
agreement between Lessee and the Operator that exists from time to time, as it may be
amended or replaced from time to time.
1.27 "Maximum Event Night Ceiling" means the maximum number of Event Nights in
any calendar month during which Lessee or Operator shall be obligated to provide Event Room
Blocks pursuant to this Agreement. The Maximum Event Night Ceiling is fourteen (1a) Event
Nights per calendar month.
1.28 "Maximum Event Room Block" means eighty percent (80%) of all of the Hotel's
Available Guest Rooms.
1.29 "Midweek" means Sunday through Thursday, inclusive.
1.30 "Notice" or "notice" means each and every communication, request, reply, or
advice required or permitted to be given, made or accepted by any party to this Agreement to
any other party to this Agreement, each of which shall be given in writing, and deemed received
by the intended recipient, in accordance with Section 9.04.
1.31 "Offer Expiration Date" is deflned in Section 3.01(e).
1.32 "Opening" means the opening of the Hotel to the public for business.
1.33 "Operator" means the entity responsible for overseeing the day to day
management of the Hotel. The initial Operator (sometimes herein called the "lnitial Hotel
Operato/') of the Hotel is , ? _corporation.
1.34 "Lessee" means the entity defined as "Lessee" in this Agreement's preamble and
each subsequent Lessee of all or any part of the Hotel Site. An entity shall be deemed to be the
"Lessee" hereunder only during the term of its leasehold of the Hotel Site.
1.35 "Potential Convention Center Customer" means a person, entity, group or
association (or any combination thereof) that is planning a City-Wide Event.
1.36 "Public Records Act" is defined in Section 4.04.
1.37 "Rate Quote" is defined in Section 3.01(b).
1.38 lntentionallyOmitted.
1.39 "Room Block Contract" is defined in Section 3.01(0.
1.40 "Room Block Request Notice" is defined in Section 3.01(a).
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July '17, 20'15 Draft
1.41 "Sales Representative" is defined in Section 3.01(a).
1.42 "Special Event Block Minimum Rate" means, for up to six (6) City-Wide Events
per year as determined by City at its sole discretion, the lowest rate City may require the Lessee
and Operator to quote or charge a Potential Convention Center Customer for a room for such
City-Wide Events, as described and determined in accordance with Section 4.01.
1.43 "Standard of Operation" is defined in Section 6.01.
1.44 "Standard of Operation Failure Notice" is defined in Section 2.02(a)(ii).
1.45 "Suspension Period" is defined in Section 2.02(a).
1.46 "Term" is defined in Section 2.01.
1.47 "Weekend" means Friday and Saturday.
ARTICLE II
TERM OF THIS AGREEMENT
2.01 Commencement of the Term. The term of this Agreement (the "Term") shall
commence on the Effective Date.
2.02 Expiration of Term; Suspension Period.
(a) The Term shall continue until the earlier to occur of:
(i) the date upon which the Convention Center is no longer
designated by the City as the City's principal convention center;
(ii) the date upon which the Convention Center is no longer operated
and maintained substantially consistent with the Standard of Operation; provided, that, no
expiration of the Term pursuant to this Section 2.02(aXii) shall be deemed to have occurred
unless and until (1) Lessee has provided to City written notice (the "standard of Operation
Failure Notice") of any alleged failure by City to operate and maintain the Convention Center in
a manner substantially consistent with the Standard of Operation, which notice (to be effective
as such) must state with reasonable specificity the reasons why Lessee believes that the
Convention Center is no longer being operated or maintained substantially consistent with the
Standard of Operation (e.9., if Lessee believes the Convention Center is not being maintained in
substantial accordance with the Standard of Operation, Lessee's notice shall describe the
deficiencies in maintenance with reasonable specificity), and (2) City has failed to remedy such
failure within two hundred seventy (270) days following receipt of such Standard of Operation
Failure Notice (such 270-day cure period to be extended for delays resulting from Force
Majeure and, if the nature of the failure is such that the same cannot reasonably be expected to
be cured within said 270-day period, such 270-day period shall be extended such period of time
as is reasonably necessary to effect such cure so long as City commences the cure promptly
and uses commercially reasonable, diligent efforts to complete such cure as soon as reasonably
practicable; the 270-day cure period, as the same may be extended as provided for in this
clause, is herein called the "Cure Period"). Notwithstanding the foregoing, City shall have the
right to contest Lessee's determination that the Convention Center is not being operated or
maintained substantially in accordance with the Standard of Operation by giving Lessee notice
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July 17,2015 Draft
of such contest within thirty (30) days following receipt of the Standard of Operation Failure
Notice. lf City elects to contest Lessee's determination, then the commencement of the Cure
Period shall be delayed until the date of determination by a court of competent jurisdiction that
the Convention Center was not being operated and maintained substantially consistent with the
Standard of Operation; or
(ii) the termination of this Agreement pursuant to Section 8.01 of the
Lease.
ARTICLE !I!
ROOM BLOCK COMMITMENT: RELEASE OF BLOCK
3.01 Room Block. During the Term, City may from time to time require the Operator
to offer an Event Room Block to Potential Convention Center Customers in connection with a
City-Wide Event in accordance with, and subject to the limitations set forth in, this Agreement.
Notwithstanding anything herein to the contrary, City shall not have the right to require the
Operator to offer an Event Room Block to Potential Convention Center Customers if (a) the
number of Event Nights requested in the Room Block Request Notice for such Event Room
Block would cause the Maximum Event Night Ceiling to be exceeded, or (b) the total number of
rooms requested to be blocked in such Room Block Request Notice on any Event Night
exceeds the number of rooms Operator is required to offer to block pursuant to Section
3.01(bXi). Subject to the limitations set forth in the preceding sentence and elsewhere in this
Article lll, the right to require that the Operator so offer the Event Room Block will be exercised
in accordance with the following procedures:
(a) A management, sales or booking representative of City or, if authorized
by City, the GMCVB (the "Sales Representative"), will notify the Operator that a Potential
Convention Center Customer is seeking offers from local hotels to accommodate, among other
needs, the guest room needs of the Potential Convention Center Customer for a City-Wide
Event (the "Room Block Request Notice"). The Room Block Request Notice will (i) identify the
Potential Convention Center Hotel Customer, (ii) if the same is generally available to City, set
forth a documented history of the group's room block events for the most recent three year
period including a comparison of the number of rooms blocked and the actual number of rooms
actually used, (iii) specify each specific date for which the Potential Convention Center
Customer will require blocks of guest rooms (including those dates commonly known as "move
in" and "move out" dates), and (iv) specify the number of guest rooms in the Hotel the Potential
Convention Center Customer is seeking to block on each of the specific dates. Notwithstanding
the provisions of Section 9.04 or the definition of "Notice" set forth above, the Room Block
Request Notice will be communicated to the Operator in the same manner as such notifications
are customarily communicated by the Sales Representative to other hotels in the City.
However, a copy of all Notices required or permitted to be provided by the Sales Representative
or City under this Article lll shall be delivered to Lessee, and such notices to Operator shall not
be effective unless and until a copy of such notices are delivered to Lessee.
(b) Unless such deadline is extended in writing by the Sales Representative,
within five (5) Business Days after Operator's receipt of a Room Block Request Notice for a
City-Wide Event that is no sooner than thirty (30) months from the date of such notice (or, if
applicable by the operation of Section 3.01(c) below, eighteen (18) months from receipt of such
notice), the Operator will deliver to the Potential Convention Center Hotel Customer (with a copy
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July 17,2015 Draft
to the Sales Representative and City) an initial written offer in response to the Room Block
Request Notice (the "lnitial Offe/'). ln the lnitial Offer the Operator will
(i) offer to the Potential Convention Center Customer to block, on
each specific date that the Potential Convention Center Customer requires a block of guest
rooms as specified in the Room Block Request Notice, the lesser of (A) the actual number of the
guest rooms in the Room Block Request Notice for each specific date, or (B) the Maximum
Event Room Block after deducting from the Maximum Event Room Block the following:
1. any previously offered room blocks under this Agreement
for other City-Wide Events covering such dates, which offers have either been accepted or are
still outstanding;
2. any guest rooms released by City pursuant to Section
3.01(i) or Section 3.02 and that have actually been booked by Operator or are the subject of
Active Negotiations. lf such guest rooms are the subject of Active Negotiations, then at the
request of City Lessee and Operator shall (x) attempt to cause such proposed Hotel guest with
whom such Active Negotiations are being held to select other dates for the use thereof that
would permit Operator to accommodate the room block set forth in the Room Block Request
Notice or (y) require that Operator accelerate negotiations with such potential Hotel guest by
requiring such potential Hotel guest to execute a contract to block or book such rooms that are
the subject of such Active Negotiations within the fifteen (15) Business Days following City's
request to Operator under this clause (y), failing which, for purposes hereof, such rooms shall
no longer be considered under Active Negotiations; and
3. in the case where the Maximum Event Night Ceiling for
such month to which such block relates had previously been reached but, due to subsequent
cancelations of bookings there remain, as of the date of request for the lnitial Offer, available
Event Nights for such month, then less the number of rooms booked, blocked or resdrved by
Operator (i.e., rooms that were booked or reserved, or were offered by Operator to be booked,
blocked or reserved under offers that have either been accepted or are still outstanding)
following the- date such Maximum Event Ceiling Night had been reached and prior to such
cancelations3, and
(ii) quote a specific room rate for a standard single and double room
and suites (the "Rate Quote"). ln making the Rate Quote, the Operator will take into account
seasonality (i.e., using group event guest room rates received in a calendar month as the basis
for quotes for the same month in subsequent calendar years), Midweek versus Weekend rates,
and special events that occur regularly during the applicable period); provided, that, the Rate
t The following is an example of the intended operation of this clause (3). Assume that on
January 1,2020, the Maximum Event Night Ceiling was achieved for the month of January
2024. Then assume that, in accordance with its right to do so pursuant to Section 3.01(l),
during the month of January 2020 the Operator books 200 room nights for the month of January
2024. Then assume that a block for 400 rooms booked for January 2024 and that comprised
part of the Maximum Event Night Ceiling was canceled on February 1, 2020. Then assume that
a Room Block Request is delivered on March 1, 2020 for a block in January 2024. The 200
rooms booked by Operator in January 2020 would be deducted from the calculation of the
Maximum Event Room Block under clause (3).
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Quote shall not take into account non-recurring special events that occur in a particular month
which inflate group event room rates (such as Super Bowls, NCAA Men's or Women's
basketball tournaments, Major League Baseball playoffs and similar sporting or entertainment
events). ln addition, rates for groups whose stay consists of both Midweek and Weekend days
shall be determined in accordancewith Operator's booking policies described in Section 3.01(f).
The amount of the Rate Quote in the lnitial Offer will be at the sole, but good faith, discretion of
the Operator.
(c) Notwithstanding anything to the contrary set forth in Section 3.01(b) or
any other provision of this Agreement to the contrary:
(i) the Operator shall offer the Maximum Event Room Block to a
Potential Convention Center Customer for a City-Wide Event that will commence between
eighteen (18) and thirty (30) months from the date of such notice (a "18-Month Room Block
Request"), and Operator shall be obligated to issue an lnitial Offer (and othenruise perform its
obligations hereunder) for such a City-Wide Event only if the number of rooms requested in
such 18-Month Room Block Request are available as of the date of receipt of such Room Block
Request Notice (i.e., rooms that (x) have not been booked, blocked, or reserved, y) are not the
subject of active negotiations regarding same and (z) have not been previously offered by
Operator to be booked, blocked or reserved under offers that have either been accepted or are
still outstanding) on the Event Nights for which rooms are requested in such Room Block
Request Notice; provided, however, that
(ii) the Operator shall designate one consecutive four (a) day period
each calendar month to be able to offer a Maximum Event Room Block to a Potential
Convention Center Customer for City-Wide Events commencing between eighteen (18) and
thirty (30) months of a potential Event Room Block. Operator shall determine the consecutive
four (4) day periods for each respective month during the applicable period and shall notify City
of the schedule on a monthly basis.
(d) The Rate Quote included by Operator in the lnitial Offer shall be
determined in Operator's sole, but good faith, discretion, and in determining such rate, Operator
shall be entitled to take into account, among other considerations, the level of food and
beverage services that the Operator anticipates the Potential Convention Center Customer will
purchase in the Hotel. After reviewing the lnitial Offer, the Sales Representative may consult
with the Operator regarding the Rate Quote contained in the lnitial Offer. lf prior to acceptance
of the lnitial Offer (or any amendment thereto voluntarily offered by the Operator to the Potential
Convention Center Customer), City reasonably and in good faith believes that it might be in
City's or the City's best interest to compel the Lessee to offer the Potential Convention Center
Customer an alternative rate structure, City may, after consultation with the Operator and within
thirty (30) days following receipt of the lnitial Offer, elect to require (which election shall be
communicated by Notice from City to the Operator) the Operator to offer to the Potential
Convention Center Customer a rate lower than the rate in the lnitial Offer, but in no event lower
than the Event Block Minimum Rate or, for up to six (6) City-Wide Events annually as
determined at the City's sole discretion, the Special Event Block Minimum Rate, as applicable
(such written election being the "Block Notice"). Upon receipt of the Block Notice, Operator
shall, within two (2) Business Days thereafter, amend the lnitial Offer by substituting the rate
specified by City, which shall be no lower than the Event Block Minimum Rate, as the Rate
Quote (the "Amended Offe/').
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(e) Subject to the remaining provisions of this Section 3.01(e), the lnitial Offer
or the Amended Offer (if applicable) shall remain open for acceptance by the Potential
Convention Customer until the sixtieth (60th) day following the date of the lnitial Offer or
Amended Offer, as the case may be; provided, that in the case of an lnitial Offer or Amended
Offer given in response to a 1B-Month Room Block Request, then Operator may at any time
provide the Potential Convention Center Customer with written notice (the "Acceleration Notice")
that such lnitial Offer or Amended Offer will expire on the fifteenth (1sth) Business Day following
the date of such Acceleration Notice unless the Potential Convention Center Customer executes
and returns the Room Block Contract to the Operator. lf such customer fails to execute and
return the Room Block Contract within such fifteen (1S)-Business Day period, the offer shall
expire, and the Operator shall have no further obligation to City or the Potential Convention
Center Customer in regard to such City-Wide Event under the lnitial Offer or the Amended
Offer, as the case may be. The date of expiration of the lnitial Offer or Amended Offer, as the
case may be, determined pursuant to this Section 3.01(e) is herein referred to as the "Offer
Exoiration Date".
(f) lf either the lnitial Offer or the Amended Offer is accepted by the Potential
Convention Center Customer prior to the Offer Expiration Date, Operator shall endeavor to
negotiate a binding contract with the Potential Convention Center Customer applying Operator's
customary booking policies to the Event Room Block (the "Room Block Contract"), including
policies relating to contracts, advance deposits and cancellation, provided that these policies
shall adhere in all material respects to the general customs employed by the Operator at its
Managed Hotels, if any. Lessee will use its good faith efforts to cause Operator to consider
changes to Operator's customary booking policies to the extent necessary to accommodate any
prevalent and material local booking customs or practices. lf a Potential Convention Center
Customer has not for any reason (other than Operator's breach of its obligations set forth in the
preceding sentence) signed a contract with the Operator with respect to such lnitial Offer or
Amended Offer, as the case may be, on or before the Offer Expiration Date, then such offer will
expire, whereupon the Lessee shall have no further obligation to City or the Potential
Convention Center Customer in regard to such City-Wide Event under the lnitial Offer or the
Amended Offer, as the case may be. However, if such offer expires at a time when there are
more than thirty (30) months (or, by the operation of Section 3.01(c), eighteen (18) months) prior
to the first Event Night of the Potential Convention Center Customer's City-Wide Event, nothing
in this Agreement shall prohibit City from issuing a new Room Block Request Notice for such
City-Wide Event in accordance with, and subject to the provisions of, this Section 3.01.
(g) lf a Potential Convention Center Customer signs a Room Block Contract
with the Operator but later provides written notice to the Operator that it is terminating such
contract, the Operator, after Notice to City from the Lessee or Operator, will have no further
obligation to City in regard to the Event Nights covered by the Room Block Request Notice
(which shall be deemed released from the obligations hereunder), but only if such written
termination notice is given by the Potential Convention Center Customer on a date less than
thirty (30) months before the first Event Night. lf such notice of termination is given on a date
more than thirty (30) months before the first Event Night, then, unless rooms are blocked under
this Agreement for such Event Nights for another City-Wide Event, the Event Nights covered by
the Room Block Request Notice for such City-Wide Event will not be included in calculating the
Maximum Event Night Ceiling, and City may again deliver a Room Block Request Notice in
accordance with, and subject to the limitations set forth in, this Section 3.01; provided, however,
Operator will have no obligation to cancel any bookings to accommodate such subsequent
request (for example, as provided in Section 3.01(l), once the Maximum Event Night Ceiling has
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been reached the Operator is free to book rooms hereunder for such month and Operator shall
not be obligated to cancel any rooms reservations for such month to accommodate a
replacement block). City recognizes that the Lessee or Operator may be entitled to collect
cancellation fees from such Potential Convention Center Customer and City hereby consents
thereto and agrees that City shall have no right or claim to all or any portion of such fees except
as provided in the Lease. Similarly, the Lessee recognizes that City may be entitled to collect
cancellation fees from such Potential Convention Center Customer pursuant to the contract
between City and the Potential Convention Center Customer, if any, and the Lessee hereby
consents thereto and agrees that Lessee shall have no right or claim to all or any portion of
such fees.
(h) lf a Potential Convention Center Customer signs a Room Block Contract
with the Operator, then Operator will reserve rooms included in an Event Room Block for such
customer for purchase by the persons attending the applicable event until the later of (x) the
date required under the Room Block Contract executed with such Potential Convention Center
Customer and (y) the sixtieth (60th) day preceding the first scheduled day of the applicable
event, after which time any unbooked rooms shall be released from such Event Room Block
and may be rented for the dates covered by such Event Room Block at any rate to any person
Operator selects without restrictions imposed by this Agreement. lf within ninety (90) days prior
to the applicable event, the number of rooms actually booked is less than the number of rooms
blocked, then Operator may request City to release some or all unbooked rooms and City
agrees not to unreasonably withhold such consent. Furthermore, if the group history of the
Potential Convention Center Customer (whether in respect of events at the Convention Center
or elsewhere) reflects a pattern whereby the block of rooms reserved by such customer is
greater than the actual number of rooms used, then the Operator, with the consent of City
(which consent shall not unreasonably be withheld), shall have the right to block only such
number of rooms which Operator, in the exercise of its professional judgment and based on
such history of the customer, believes will be adequate to accommodate the number of rooms
which will be actually used by such customer; provided, that such decision of the Operator shall
not release or relieve Operator from providing other lodging (in accordance with industry
standard for handling overbookings) if the number of rooms so blocked by Operator actually is
not adequate to satisfy the actual use of rooms by the Potential Convention Center Customer
(up to the amount of rooms included in the Event Room Block pursuant to the contract between
Operator and such customer).
(i) Operator shall have the unrestricted right to commit up to twenty (20%) of
the Available Guest Rooms on any given date (and any other rooms that are not subject to
being blocked by City pursuant to this Agreement) to the Hotel's commercial or group guests. ln
addition, Operator shall have the unrestricted right to commit any and all rooms not subject to a
room block commitment pursuant to this Agreement for any date that is less than thirty (30)
months in advance; provided, however, if a 18-Month Room Block Request is delivered to
Operator, Operator shall issue an lnitial Offer with respect to such request only to the extent
required pursuant to Sections 3.01(cXi) and 3.01(cXii).
(j) lf Operator has a potential booking that would not be permitted under the
terms of this Agreement, Operator may by notice to City (with a copy to Lessee) request that it
be entitled to make such booking. City shall have five (5) Business Days in which to respond to
such request by notice to the Operator; provided, that a failure to respond shall be deemed a
rejection of such request (but such deemed rejection shall not prevent Operator from making
multiple requests for such release).
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(k) For the avoidance of doubt, the Operator shall have the right to freely
book all rooms within the Hotel on any day which the Convention Center cannot accommodate
a City-Wide Event because less than one hundred fifteen thousand (115,000) square feet of
meeting or exhibit space is available on such day for use by a Potential Convention Center
Customer (such determination to be made as of the time Operator makes or extends an offer to
make such booking).
(l) Once the Maximum Event Night Ceiling is reached for a month, the
Operator shall have the right to freely book the available rooms at the Hotel for that month,
regardless of when the booking is made (e.9., it may be more than thirty (30) months in
advance).
(m) Notwithstanding the foregoing, if a Potential Convention Center Customer
has (i) a documented history of causing material property damage or unusually heavy wear and
tear in connection with group events or (ii) poor credit or a questionable payment history, then
Operator shall have the right, at its option, to include in its lnitial Offer to such Potential
Convention Center Customer security, damage or other deposit requirements that, in Hotel
Lessee's judgment exercised in good faith, would compensate Operator and Lessee for the
damage, wear and tear or failure to pay (and, notwithstanding anything in Section 3.01(d) to the
contrary, but subject to resolution of any dispute described below, City shall not have the right to
require Operator to deliver an Amended Offer to such Potential Convention Center Customer
that does not include such security, damage or other deposit requirements); provided that (1)
Operator shall provide City notice that such Potential Convention Center Customer has a
documented history of causing material property damage, unusually heavy wear and tear, poor
credit or questionable payment history, as applicable, and also provide notice of its intention to
include such (and provide a statement of the amoqnt of the proposed) security, damage or other
deposit requirements prior to issuance of such lnitial Offer and (2) in such notice Operator shall
set forth in reasonable detail the basis for the Operator's concluiions. City shall have the right
to reasonably challenge Lessee's conclusion that such Potential Convention Center Customer is
a customer described in clauses (i) or (ii) of the first sentence of this paragraph but, for the
avoidance of doubt, Operator shall be entitled to deliver an lnitial Offer with such additional
security, damage or other deposit requirements prior to receipt of notice of any such challenge,
and if the parties subsequently agree that such additional requirements are unnecessary, City
shall be entitled, if such lnitial Offer remains outstanding, to require Operator to issue an
amended lnitial Offer omitting such requirements. City shall, to the fullest extent permitted by
law, keep such conclusions confidential in accordance with Section 4.04. ln the event of any
such challenge by City, the parties agree to meet and confer and attempt in good faith to reach
agreement as to the additional deposit requirements will be placed on any offer given to such
customer.
3.02 Release of Block
(a) lf the Operator desires to commit a block of more than twenty percent
(20%) of the Available Guest Rooms to non-Potential Convention Center Customer business for
a date more than thirty (30) months in the future, the Operator can request by Notice to City (a
"Block Release Request Notice") that City release that block from this Agreement. Each Block
Release Request Notice shall specify the dates as to which such request applies and the
number of event night rooms to which such request applies. Within five (5) Business Days after
receipt of such request, City shall deliver written notice to Operator either (i) approving such
release of such requested block for such specific dates and rooms or (ii) disapproving such
release. City shall be entitled to make such determination in its sole discretion, subject to
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Section 3.02(b) below; provided, that if the Block Release Request Notice describes a group
that is proposing to contract for regularly recurring events (including on a rotating basis with
other municipalities) at the Hotel and/or the Convention Center, City shall consider such request
for the release in light of the possible repeat nature of the proposed business. lf City fails to
either approve or disapprove such request in writing within such five (5) Business Day period,
then such request shall, except as set forth in the last two (2) sentences of Section 3.02(b), be
deemed denied (but such deemed denial shall not prevent Operator from making multiple
requests for such release).
(b) Notwithstanding the foregoing provisions of this paragraph, City shall
release the block requested in a Block Release Request Notice unless any of the following are
true:
(i) A Room Block Request Notice satisfying the requirements set
forth herein has been delivered that covers any of the dates reflected in the Block Release
Request Notice, unless any lnitial Offer or Amended Offer delivered by Operator in response
thereto has expired without the execution by the Potential Convention Center Customer of a
Room Block Contract with Operator or, if such a contract was executed, the same has been
terminated by the customer;
(ii) The GMCVB or the City is in Active Negotiations with a Potential
Convention Center Customer for a City-Wide Event that includes any of the dates covered by
the Block Release Request Notice; or
(iii) The dates covered by the Block Release Request Notice have
historically been booked in hotels in the City for a City-Wide Event and City reasonably
concludes that the release of the block in the Hotel will jeopardize booking of such City-Wide
Event.
(iv) City will provide Operator a list of known release dates on a
periodic basis (not less than semi-annual) identifying all future dates the Convention Center
cannot be utilized for City-wide Events due to maintenance, move in/out periods, or any other
reason ("Known Release Dates"). lf the City subsequently eliminates such dates from a
subsequent list of Known Release Dates, such date(s) shall be subject to all applicable
provisions of this Agreement, unless rooms have been booked, blocked or reserved by the
Operator pursuant to a contract with a hotel customer or group (and, if such contracts are
terminated, then any of the blocked rooms that were subject thereto shall no longer be
considered blocked for purposes herein).
Notwithstanding anything in Section 3.02(a) to the contrary, if City fails to either approve
or disapprove a request Block Release Request Notice within the five (5) Business Day period
described in Section 3.02(a), and Operator reasonably believes such release is required
pursuant to this Section 3.02(b), then Operator shall have the right to send a second written
notice to City (which second notice shall conspicuously include the following, in capital and bold
print letters: "SECOND NOTICE FOR RELEASE OF BLOCK UNDER SECTION 3.02(b) OF
ROOM BLOCK AGREEMENT; FAILURE TO RESPOND WITHIN FIVE BUSINESS DAYS
SHALL BE DEEMED APPROVAL OF THE REQUESTED RELEASE") requesting that it be
entitled to make such booking, setting forth in reasonable detailthe reason such release
complies with Section 3.02(b). lf City fails to deliver to Operator written notice disapproving
such request within five (5) Business Days of receipt of such second notice, then City shall be
deemed to have approved such request.
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(c) Operator shall, upon request by City following any release made pursuant
to this Section 3.02, use its good faith efforts to accommodate any Event Room Block
subsequently requested covering any of the dates for which a release has been provided by
City under this Section 3.02.
ARTIGLE !V
ROOM BLOCK PRIGING
4.01 Event Block Minimum Rates: Soecial Event Block Minimum Rates.
(a) The Event Block Minimum Rates and Special Event Block Minimum
Rates shall be as follows:
(i) The Event Block Minimum Rate shall be an amount equal to 105%
of the average group rate for the applicable period reflected in the Lessee's lnitial Projected
Event Block Rate Schedule or Lessee's Subsequent Projected Event Block Rate Schedule
(each as defined below), as applicable.
(ii) The Special Event Block Minimum Rate shall be an amount equal
to 100% of the average group rate for the applicable period reflected in the Lessee's lnitial
Projected Event Block Rate Schedule or Lessee's Subsequent Projected Event Block Rate
Schedule (each as defined below), as applicable.
(b) Concurrent with the execution hereof, Lessee has provided to City a
schedule of the projected Event Block Minimum Rate and Special Event Block Minimum Rate
forthefirstfive(5)calendaryearSaftertheopening(the..
Rate Schedule"). The Lessee's lnitial Projected Event Block Rate Schedule shall include a
schedule for both Event Block Minimum Rates and Special Event Block Minimum Rates, and
will include varying rates for room type and for periods within each applicable calendar year to
account for seasonality and day of the week (e.9., Midweek, Weekend). The rates for each
such year included in Lessee's lnitial Projected Event Block Rate Schedule shall represent
Lessee's good faith forecast of the rates that will be included in the pro forma budget for the
operation of the Hotel for such year and are the projections and forecasts being used by Lessee
in making its decisions, and planning for, bookings in the operation of the Hotel and the conduct
of Lessee's business generally.
(c) By no later than January 1 of each year commencing after the date
hereof, Lessee shall provide City a schedule of the projected Event Block Minimum Rate and
Special Event Block Minimum Rate for the ensuing five (5) calendar year period (each such
schedule, an "Lessee's Subsequent Proiected Event Block Rate Schedule"). The rates (x) for
the first twelve (12) months covered by the Lessee's Subsequent Projected Event Block Rate
Schedule shall be those set forth in the pro forma operating budget for the Hotel for such 12-
month period that has been approved by Lessee and Operator, and (y) for each other year
covered thereby shall represent Lessee's and Operator's then-current good faith forecast of the
rates that Lessee and Operator project will be included in the actual pro forma budget adopted
for the operation of the Hotel for such years and are the forecasts and projections being used by
Lessee in making its decisions, and planning for, bookings in the operation of the Hotel and the
conduct of Lessee's business generally. For each year, subsequent to January 1, Lessee may
deliver one (1) updated Lessee's Subsequent Projected Event Block Rate Schedule, which will
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replace the Lessee's Subsequent Projected Event Block Rate Schedule previously delivered for
such year.
(d) Each of the Lessee's lnitial Projected Event Block Rate Schedule and
each Lessee's Subsequent Projected Rate Schedule shall, when delivered to City, be
accompanied by (i) reasonable evidence that the same has been approved by both Lessee and
Operator, and (ii) a certification from Lessee to City indicating that the Event Block Minimum
Rate and Special Event Block Minimum Rate for each year set forth therein represents (x) for
the first twelve (12) months covered thereby those set forth in the Lessee's pro forma operating
budget for such 12-month period that has been approved by Lessee and Operator, and (y) for
each other year covered thereby, Lessee's and Operator's good faith forecast of the rates that
Lessee and Operator project will be included in the actual pro forma budget adopted for the
operation of the Hotel for such year and are the forecasts and projections actually being used by
Lessee in making its decisions, and planning for, bookings in the operation of the Hotel and the
conduct of Lessee's business generally.
(e) The rates reflected in the Lessee's lnitial Projected Event Block Rate
Schedule and each of the Lessee's Subsequent Projected Event Block Rate Schedules, as
increased up to one hundred and five percent (105%) of such rates, shall be the "Event Block
Minimum Rate" for each of the five (5) years covered by, as applicable, the Lessee's lnitial
Projected Event Block Rate Schedule or the then current Lessee's Subsequent Projected Event
Block Rate Schedule. The rates reflected in the Lessee's lnitial Projected Event Block Rate
Schedule and each of the Lessee's Subsequent Projected Event Block Rate Schedules, at one
hundred percent (100%) of such rates, shall be the "Special Event Block Minimum Rate" for
each of the five (5) years covered by, as applicable, the Lessee's lnitial Projected Event Block
Rate Schedule or the then current Lessee's Subsequent Projected Event Block Rate Schedule.
(i) The parties recognize that the Event Block Minimum Rate and
Special Event Block Minimum Rate may change each year (but only once per year and then
only with the issuance of the Lessee's Subsequent Projected Event Block Rate Schedule), it
being understood that each Lessee's Subsequent Projected Event Block Rate Schedule (and
the rates reflected therein) shall supersede all previously issued Lessee's Subsequent Projected
Event Block Rate Schedules even though the same relate to the same years (the following is an
example of the "rolling" nature of the determination of the Event Block Minimum Rate: assume
thatthe Lessee issues, on December 1,2020, an Lessee's Subsequent Projected Event Block
Rate Schedule. That schedule will coverthe period commencing January 1,2021 and ending
December 31,2025llhe "2021 Schedule"l. Then assume that on December 1,2021, Lessee
issues a Lessee's Subsequent Projected Event Block Rate Schedule. That schedule will cover
the period commencing January 1, 2022 and ending on December 31 , 2026 lthe "2022
Schedule"l. The 2022 Schedule will, as to any Block Notice issued on or after January 1, 2022,
supersede lhe 2021 Schedule and all prior schedules covering the years 2022,2023,2024 and
2025 and shall govern the determination of the Event Block Rate with respect to such Block
Notice).
(ii) lf a Block Notice is issued for a City-Wide Event where the first
Event Night will occur on a date in a calendat yeat that is not covered by the then current
Lessee's Subsequent Projected Event Block Rate Schedule (i.e., the date of such first Event
Night is beyond the five (5) year period covered by the then current Lessee's Subsequent
Projected Event Block Rate Schedule), the Event Block Rate reflected in the then current
Lessee's Subsequent Projected Event Block Rate Schedule shall be used but shall be adjusted
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by an usual and customary industry inflation factor as reasonably agreed upon by Lessee,
Operator and City.
4.02 General Matters Regarding Rates. All rates described are for single rooms.
Double occupancy rooms may be quoted at a rate not greater than twenty percent (20%) above
the single room rates. Triple and quad occupancy rooms may be quoted at rates with an
increase of not greater than thirty percent (30%) above the single room rates. Suites may be
quoted with an increase above standard room rates consistent with market practice, as
reasonably determined by the Operator.
4.03 Confidentiality. Subject to its obligations under the Florida Public Records Act
(the "Public Records Act") in force in the State of Florida from time to time, City will not disclose
any lnitial Offer or Amended Offer, any information provided by Operator under Section 3.01(m)
or any information obtained pursuant to Section 4.01 to any person or entity other than (i) its
employees, accountants, counsel and other consultants who have a need to know such
information, (ii) the Lessee and its officers, directors, employees, accountants, counsel and
other consultants, (iii) the Lessee's existing and proposed lenders, (iv) Operator and its officers,
directors, employees, accountants, counsel and other consultants, (v) prospective purchasers of
the Hotel or (vi) in connection with any legal proceeding (or alternative dispute resolution
procedure) between City and Lessee and/or Operator, provided that City shall use reasonable
efforts to obtain confidential treatment of same. Neither Lessee nor Operator will disclose any
information provided by City to Lessee or Operator hereunder to any person or entity other than
(1)their respective affiliates, and the employees, accountants, counsel and other consultants of
Lessee, Operator and their respective affiliates who have a need to know such information and
their respective partners, members, shareholders, and other holders of direct or indirect
beneficial lnterests in Lessee or Operator, (2) the Lessee's existing and proposed lenders and
investors and any proposed replacement Operator, (3).prospective purchasers of the Hotel or( ) in connection with any legal proceeding (or alternative dispute resolution procedure)
between City and Lessee and/or Operator, provided that Lessee and Operator shall use
reasonable efforts to obtain confidential treatment of same.
(a) Subject to City's obligations under the Public Records Act, City shall use
its good faith efforts to provide timely written notice to Lessee and Operator of any request
received by City pursuant to the Public Records Act requesting information held by City to which
Lessee or Operator may assert "confidential business information" or "trade secret" status under
the Public Records Act, all for the purpose of providing Lessee and Operator an opportunity to
seek to protect such information from disclosure by timely filing an appropriate action in a court
of competent jurisdiction seeking non-disclosure of the requested information.
ARTICLE V
STANDARDS OF HOTEL OPERATION
5.01 Standards. At all times during the term of this Agreement, the Lessee shall, to
the extent the Hotel is being operated (or, pursuant to the Lease, required to be operated),
cause the Operator to operate and manage the Hotel in accordance with the Management
Agreement and (to the extent the Hotel is required to be operated pursuant to the Lease) the
applicable provisions of the Lease. At all times when there is no Management Agreement,
Lessee shall, to the extent the Hotel is being operated, operate, or cause an Operator to
operate, the Hotel in a manner generally consistent with the general physical and service
standards applicable to other upscale convention center hotels and (to the extent the Hotel is
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required to be operated pursuant to the Lease) in accordance with the applicable provisions of
the Lease.
ARTICLE VI
STANDARDS OF CENTER OPERATION
6.01. Standards. During the Term, City shall operate and maintain the Convention
Center to at least the standard of quality consistent with the principal convention centers
operated in Orlando, Atlanta, New Orleans, Dallas, Houston, Boston, Chicago, San Francisco,
San Diego and Los Angeles, as of the Effective Date (the "standard of Operation").
ARTICLE VII
NO LIABILITY FOR PROPOSED CONVENTION CENTER CUSTOMER:
LESSEE RESPONSIBILITY TO CAUSE OPERATOR TO PERFORM: INDEMNITY
7 .01 No Liabilitv to Citv. ln no event shall City be in any way responsible or liable for
the performance by any Potential Convention Center Customer of its obligations under its
contract with the Lessee or Operator or for any charges, liabilities or other sums owed by, or
liabilities of, such Potential Convention Center Customer (or for those for whom it blocks rooms)
to either Lessee or Operator.
7.02 Lessee and Ooerator Resoonsibilitv: Authoritv to Grant Consents and Make
Decisions. Lessee shall cause Operator to perform all of the covenants and agreements of the
Operator under this Agreement, and to cause the Operator to observe all of the covenants and
agreements of Operator hereunder, and by entering into a Management Agreement Operator
shall, notwithstanding any contrary provision of its Management Agreement, be directly
responsible to City for the performance of the Operator's obligations hereunder. Furthermore,
all actions, consents, decisions, elections, offers, and determinations made hereunder by the
Operator with respect to covenants and obligations of the Operator under this Agreement shall
be binding upon both Lessee and Operator for purposes of this Agreement. As of the Effective
Date, Lessee has delegated the performance of the obligations and rights assigned to the
Operator hereunder to the lnitial Hotel Operator under a Management Agreement (for so long
as the same remains in effect) and, upon its termination, shall delegate any or all of such
responsibilities hereunder to any subsequent Operator pursuant to a subsequent Management
Agreement, but no such delegation shall release or relieve Lessee from its obligation to perform,
or cause to be performed, all of its covenants and agreements set forth herein.
All consents, decisions, waivers, and determinations to be made or given hereunder by
City may be made and given by the City Manager (or any person designated from time to time
by the City Manager by Notice to Lessee and Operator) and no inference to the contrary shall
be made because the defined term "City" is used in some places in this Agreement and the
phrase "City Manager" is used in others.
7.03. lndemnification. The Lessee shall indemnify, defend and hold harmless the City
and its officers, employees, agents and instrumentalities from any and all liability, losses or
damages, including attorney's fees and costs of defense, which the City or its officers,
employees, agents or instrumentalities may incur as a result of claims, demands, suits, causes
of actions or proceedings of any kind or nature arising out of, relating to or resulting from the
performance of the Room Block Agreement by the Lessee, Operator, or their respective
employees, agents, partners, principals or subcontractors. The Lessee shall pay all claims and
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losses in connection therewith, and shall investigate and defend all claims, suits or actions of
any kind or nature in the name of the City, where applicable, including appellate proceedings,
and shall pay all costs, judgments, and attorney's fees which may be incurred thereon. The
above indemnification provisions shall survive the expiration or termination of this Agreement.
ARTICLE VIII
EVENTS OF DEFAULT
8.01 Default. A default under the terms of this Agreement shall occur if any party
hereto shall default in the performance of any of the terms, conditions or covenants contained in
this Agreement to be performed or observed by it, and such party does not remedy such default
within thirty (30) days after Notice or, if the default is of such character as to require more than
thirty (30) days to remedy, then if such party fails to commence to cure and correct the default
within said thirty (30) day period and thereafter prosecute such corrective action diligently and
without interruption and complete the cure thereof within ninety (90) days following the original
Notice of such default (an "Event of Default"). Notwithstanding the foregoing, the failure of
Lessee or Operator to comply with the provisions of Article lll hereof within the time frames set
forth therein shall, if not cured within three (3) Business Days following written notice from City
to Lessee and Operator, constitute an Event of Default by Lessee hereunder without the need of
any additional Notice and without any further opportunity to cure such Event of Default. All
Notices of default shall be provided to Lessee and to Operator and shall also be given to
Lessee's mortgagee (provided such mortgagee has provided Notice to City of its name and
address where Notices to it hereunder are to be sent).
8.02 Remedies. lf an Event of Default shall have occurred because of a breach of any
provision hereof by City, on the one hand, or Lessee on the other hand then the nondefaulting
party shall have the right, at any time after the occurrence of said Event of Default to (i) initiate
and thereafter prosecute an action in equity for the specific performance of any covenants or
obligations to be performed by the defaulting party hereunder (City shall also have the right to
seek and obtain an order of specific performance against the Operator so as to compel
Operator, in its capacity as such under the Management Agreement, to comply herewith) or (ii)
exercise such other rights as shall be available at law or in equity. ln no event, however, shall
this Agreement be terminated due to an Event of Default (provided that the foregoing shall not
limit the provisions of Section 2.02).
Each party acknowledges and agrees that its covenants, obligations and agreements set
forth in this Agreement are a material and fundamental inducement to the City in executing and
delivering the Lease and any other agreements referenced therein, such that actual damages
may not be an adequate remedy at law for the breach hereof by City, the Lessee or the
Operator. Accordingly, any party shall be entitled to seek relief mandating action by City, the
Lessee andlor Operator hereunder in accordance with this Agreement. ln addition, each party
recognizes and agrees that monetary damages could not be calculated to compensate the other
party for any breach by the defaulting party of the covenants and agreements contained in this
Agreement. Each party may restrain and enjoin any breach or threatened breach of any
covenant, duty or obligation of the other party contained in this Agreement without the necessity
of (i) posting a bond or other security, (ii) any showing of irreparable harm, balance of harms,
consideration of public interest or the inadequacy of monetary damages as a remedy, or (iii) that
the administration of an order for injunctive relief would be impracticable. ln the event of any
breach or threatened breach of any covenant, duty or obligation contained in this Agreement,
262
July 17,2015Draft
the party breaching (or threatening breach) stipulates and agrees that the balance of hardships
which weigh in favor of injunctive relief and that non-breaching party may seek and obtain
injunctive or other form of ancillary relief from a court of competent jurisdiction in order to
maintain the status quo and enforce the terms of this Agreement on an interim basis pending
the outcome of the dispute or controversy hereunder.
Lessee agrees to include in each Management Agreement a provision similar to the
foregoing whereby the Operator makes such agreements to Lessee with respect hereto and
specifically agrees that City shall have the right to specifically enforce against the Operator the
provisions of this Agreement.
8.03 Lessee's Reservation of Riqhts. Notwithstanding anything to the contrary contained
in this Agreement, this Agreement shall in no way limit Lessee's or Operator's rights and
remedies against a Potential Convention Center Customer resulting from such Potential
Convention Center Customer's default under a contract with Lessee or Operator.
ARTICLE IX
ADDITIONAL PROV!SIONS
9.01 Exculpation. The liability of Lessee (and of any successor "Lessee") under this
Agreement shall be limited to its interest in the Hotel. City agrees that none of the Lessee's or
Operator's direct or indirect partners, members, managers, joint venturers, shareholders,
directors, officers, agents and employees shall have any personal liability with respect to, or
arising out of, this Agreement. ln no event shall any officer, director, agent, or consultant of
City, nor any employee or public official of the City, ever have any personal liability with respect
to or arising out of this Agreement.
Nothing within this Section 9.01 shall limit the right of any party to seek specific
performance of the terms and provisions of this Agreement as provided in Article Vlll.
9.02 Miscellaneous. lf any term of this Agreement or any application thereof shall be
invalid or unenforceable, the remainder of this Agreement and any other application of such
term shall not be affected thereby. This Agreement may be changed, waived, modified or
supplemented only by an instrument in writing signed by Lessee and City. The headings in this
Agreement are for purposes of reference only and shall not limit or define the meaning hereof.
This Agreement may be executed in any number of counterparts, each of which shall be an
original, but all of which shall together constitute one and the same instrument.
9.03 Estoppel Certificate. Within ten (10) Business Days after request therefor by any
party hereto or by Operator or by the holder of any loan made to Lessee or Operator, the other
party(ies) and Operator shall execute and deliver to the requesting party a statement in writing
and reasonably satisfactory to the requesting party and directed to the requesting party (and, if
requested, to the holder of any loan made to Lessee or Operator) certifying to such factual
matters as may be reasonably requested by such requesting party, including without limitation
(if such be the case)that (a)this Agreement is unmodified and in full force and effect, (b) to the
certifying party's knowledge the requesting party is not in default hereunder or, if in default, the
nature thereof in reasonable detail, and (c) there are no defenses or offsets to the Agreement
claimed by the other party.
9.04 Notices. Each Notice to be provided or given hereunder must be in writing (in
some instances in this Agreement the words "written Notice" or "notice in writing" may be used
and in others simply the word "Notice" or "notice" may be used; no inference is to be drawn
263
July 17,2015 Draft
therefrom as all Notices must be in writing) and must be delivered or provided in one of the
following methods: (a) certified mail, return receipt requested, postage pre-paid and addressed
to the party to whom such Notice is intended to be delivered; or (b) personal delivery to the
addressee by courier or other means of hand delivery. Notice delivered by certified mail
pursuant hereto shall be effectively given and received on the tnird (3'd) business day following
deposit of the same in the United States Mail, postage pre-paid, addressed properly to the party
to whom such notice intended. Notice by personal delivery shall be effectively given and
received upon acceptance thereof by the addressee as confirmed in writing by a receipt
executed by and retained by the party delivering such Notice.
to City:City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33139
Attention:
with a copy to:City Attorney's Office
City of Miami Beach
1700 Convention Center Drive, 4th Floor
Miami Beach, Florida 33139
to the Lessee:
with a copy to:
to the Operator:
Any mortgagee, trustee or beneficiary under any mortgage or deed of trust on the Hotel
may by Notice to the parties set forth hereinabove designate an address to which Notices to it
hereunder shall be sent. Any such party may from time to time by Notice as herein provided,
designate a different address to which Notices to it shall be sent.
9.05 Transfer of Lessee's or Operator's lnterest.
264
July 17,2015 Draft
(a) ln the event of the sale, assignment or transfer by Lessee of its fee
interest in the Hotel Site (other than a collateral assignment to secure a debt of Lessee) to a
successor in interest (who shall, upon acceptance of title to or an interest in the Hotel Site or
any part thereof, be deemed to have assumed the obligations of Lessee hereunder arising from
and after the date of such acceptance), the transferring Lessee shall be released or discharged
from all of its covenants and obligations hereunder, except such obligations as shall have
accrued prior to any such sale, assignment or transfer; and City agrees to look solely to such
successor in interest of Lessee for performance of such subsequently occurring obligations.
Notwithstanding the provisions of the preceding sentence, any successor Lessee hereunder
shall in all respects be obligated to honor any contract or agreement previously executed with a
Potential Convention Center Customer in accordance with its terms and shall be bound by any
outstanding lnitial Offers or Amended Offers, each Room Block Request Notice and the Event
Rate then in effect subject to and in accordance with the provisions of Article lll.
(b) ln the event that the Management Agreement with any Operator shall
expire or terminate for any reason then the Operator under such Management Agreement shall
be relieved from any obligations arising hereunder from and after the date upon which, as a
consequence thereof, such Operator is no longer operating the Hotel. Lessee shall be obligated
to secure the written consent and agreement of any replacement third-party Operator to comply
with all of the terms, provisions and conditions set forth herein; provided, that, a failure by the
Lessee to do so shall in no way release or relieve Lessee or any such third-party replacement
Operator from performing the obligations of the Lessee and Operator hereunder.
9.06 Suoeriorifu of Aqreement: Covenant Runninq with the Hotel Site. The provisions
of this Agreement shall constitute a restrictive covenant running with the Hotel Site binding upon
each Lessee thereof, and any and all operators or managers of the improvements thereon, and
each and every other person or entity claiming or holding any interest in the Hotel Site, shall
inure to the benefit of the City, and shall apply to any hotel now or hereafter located on the Hotel
Site, or any portion thereof.
9.07 Gender: Sinqular and Plural. As used herein, the neuter gender includes the
feminine and masculine, the masculine includes the feminine and neuter, and the feminine
includes the masculine and neuter, and each includes a corporation, partnership or other legal
entity when the context so requires. The singular number includes the plural, and vice versa,
whenever the context so requires.
9.08 Nature and Extent of Aqreement. This Agreement contains the complete
agreement of the parties regarding the terms and conditions of the Agreement. There are no
oral or written conditions, terms, understandings or other agreements pertaining to the room
block arrangements which have not been incorporated herein.
9.09 Governinq Law. This Agreement shall be governed as to performance,
interpretation and jurisdiction by the laws of the State of Florida, without regard to conflicts of
law rules. This Agreement shall be enforceable in Miami-Dade County, Florida, and if legal
action is necessary by either party with respect to the enforcement of any or all of the terms or
conditions herein, exclusive venue for the enforcement of same shall be in Miami-Dade County,
Florida.
9.10 Bindinq Effect. Subject to express provisions hereof to the contrary, this
Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their
respective heirs, successors and assigns during the Term hereof. Furthermore, and
265
July 17,2015 Draft
notwithstanding any provision hereof to the contrary, (a) the City is an express, intended, third
party beneficiary of the obligations, duties and covenants of the Lessee hereunder, (b) the City
has the right to enforce all of the covenants, obligations and agreements of the Lessee
hereunder, (c) City may at any time, without the need of prior notice to or consent from the
Lessee, assign this Agreement to the City or to any other entity designated by the City (provided
that no such assignment shall be effective against Lessee until Notice thereof is provided to
Lessee, and provided further that the City expressly assumes all of the obligations of City
hereunder and agrees to be bound by the terms and provisions of this Agreement) and (d) this
Agreement shall automatically be deemed assigned and transferred to the City upon any
dissolution of City (but only if the City expressly assumes all of the obligations of City arising
hereunder from and after the date of such assignment [and not attributable to a default by City
arising prior to the date of such assignment or transferl and agrees to be bound by the terms
and provisions of this Agreement). ln addition, the Operator shall be an express third party
beneficiary of the obligations, duties and covenants of City hereunder.
(signature pages to follow)
266
By:
July 17,2015Draft
Each of the parties hereto have caused this Agreement to be duly executed by their lawfully
authorized representatives effective as of the Effective Date.
Lessee:
Portman Miami Beach, LLC
By:
Name:
Title:
CITY OF MIAMI BEACH, FLORIDA
Philip Levine
Mayor
Approved for form and legal sufficiency
City Attorney
ATTEST
City Clerk
By:
267
July 17,2015 Draft
EXHIBIT A
HOTEL SITE
See Exhibit D to Development and Ground Lease Aqreement
268
July 17,20'15 Draft
Portman Holdings, LLC
EXHIBIT "M''
OWNERSH!P INTERESTS IN LESSEE
269
July 17,20'15 Drafl
EXHIBIT "N"
UNIFORM SYSTEM SUMMARY OF OPERATING STATEMENT
(See attached pages)
270
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EXHIBIT "O'
TRANSACTION RENT
EXAMPLE OF TRANSACTION RENT CALCULATION
The example of Transaction Rent in this Exhibit "O" is for illustrative purposes only.
1. Assuming that, for the first Transfer for which Transaction Rent would be payable, (i) Owner #1
sells a 51% Controlling interest in the Lessee to Owner #2 for a gross sales price (less typical closing
adjustments and credits) of $250,000,000, then no Transaction Rent would be payable in connection with
this first Transfer, as the gross sales price did not exceed $290,000,000 (50% of the $580 million hurdle
applicable to the first Transfer pursuant to Section 4.4(b)).
2. Assuming that, for the second Transfer for which Transaction Rent would be payable, (i) Owner
#2 sells a 51oh Controlling interest in the Lessee to Owner #3 for a gross sales price (less typical closing
adjustments and credits) of $300,000,000, then the Transaction Rent payable in connection with such
Transfer would be calculated as follows:
Gross sales price (less adjustments) $300,000,000.00
Transaction Rent: $750,000.00 (i.e., .25o/o of $300,000,000)
3. Assuming that, for the third Transfer for which Transaction Rent would be payable, a 75o/o interest
in the Lessee is sold, with Owner #3 selling a 38% interest in the Lessee to Owner #4 for a gross sales
price (less typical closing adjustments and credits) of $200,000,000, and Owner #1 selling a 37o/o interest
to Owner #4 for a gross sales price (less typical closing adjustments and credits) of $190,000,000, then
the Transaction Rent payable to City would be calculated as follows:
Owner #3 Transfer
Gross sales price (less adjustments) $200,000,000.00
Transaction Rent: $500,000.00 (i.e., .25% of $200,000,000)
Owner #1 Transfer
Gross sales price (less adjustments) $190,000,000.00
Transaction Rent: $475,000
273
July 17,2015 Draft
EXHIBIT "P''
LOCATION OF GEOTHERMAL SYSTEM
(See attached pages)
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EXHIBlT "Q"
RESERVED
285
July 17,2015 Draft
EXH!BIT "R''
SCHEDULE OF MINIMUM FIXED RENT
*As provided in Section a.a@), this amount shall apply from the Rent Commencement Date to
December 31 of the year in which the first anniversary of the Rent Commencement Date occurs,
prorated for any partial months and partial calendar years.
$1,458,413
$1,487,581
$1,517,333
$1,547,679
1,578,633
$1,610,206
$1,642,410
286
July 17,2015 Drafl
EXH!BIT ''S''
MANDATORY HOTEL PROJECT DESIGN ELEMENTS
A full-service convention hotel of not-to-exceed 800 rooms, including:
1. approximately (but not to exceed) 800 rooms (with a breakdown between kings,
double/double or double/queen rooms and suites necessary to obtain the Brand
Approval by the lnitial Hotel Operator);2. if required by the lnitial Hotel Operator, a club lounge;
3. a minimum of approximalely 72,000 net square feet (+/- 5%) of hotel conference space
for meetings or other events, including a minimum of 20,000 net square feet 1+7- 57o;
grand ballroom, 10,000 net square feet (+/- 5%) junior ballroom, and 42,000 net square
feet (+/- 5%) of breakout meeting space;4. appropriate space for kitchen facilities, used for room service and serving conference
and meeting rooms;
5. food and beverage locations of a total square footage size that is not greater than the
square footage size of food and beverage locations that are consistent with the size and
number of rooms in comparable 4 Diamond hotels in comparable locations, not less than
600 seats, in the aggregate, contained within a three-meal restaurant, specialty
restaurant, pool bar and grill, lounge and lobby bar (such restaurants and bars are to be
developed primarily along the perimeter of the ground floor of the Hotel Project) and as
necessary to obtain Brand Approval from the lnitial Hotel Operator;
6. a non-specialty retail facility which may consist of a sundry and/or coffee shop(s) selling
products such as news, coffee, overnight supplies, and travel necessities as necessary
to obtain Brand Approvalfrom the lnitial Hotel Operator;
7. a pool, fitness center and spa;
8. the exterior elements depicted in Exhibit E, subject to a height restriction of a maximum
three hundred (300) feet, in accordance with the provisions of the City's Land
Development Regulations;L a minimum of .40 parking spaces per room on-site, in accordance with the provisions of
the City's Land Development Regulations; and
10. the Skybridge.
For the avoidance of doubt, the Lessee may elect to include in the Hotel Project ballroom and
meeting space of a size that is greater than the 57o variances provided for above without City's
Approval (and Lessee shall not be deemed to have made a Prohibited Hotel Project Change or
to have failed to include the Mandatory Hotel Project Design Elements as a result of the
inclusion of such excess ballroom and meeting space).
287
July 17,2015 Draft
EXHIBIT "T"
LESSEE'S LLC DOCUMENTS
(See attached pages)
288
Defawore PAGE 1.
lfu first State
I, .tEerpay w_ BaLLocK, SECRETARr OF STATE OF THE STATE OF
DEI"AWARE, DO ITEREBY CERTIFY THE ATTACHED T^5 A TRAE AIID CORRECT
COPY OF TEE CERTTFTCATE OF FOAUATION OF ?IPORTM;A}I TLTAhLI BE;ACE,
LLC", FILED IN THIS OFFICE ON TEE SEIZENTEENTH DAy OF,JANE, A-D-
2075, AT 70:43 OTCLOCK A-M.
5768204 8700
750932745
Jeffrey W. Bullock, Secretary of StateIoN:2475278
You tuay veEify this certificaXe onTineax coip. deTaw-are. gov/authver. shtmT
DATE:06-77-75
289
State of Dejaware
Secretafii of StateDivision of CorwrationsbTiverd 70:46 Atr 06/77/2075FttsD 70:43 Atf 05/77/2075
sRv 75A%2745 - 5768204 FLLA
CERTIFICATE OF FORMATION
OF
PORTI}IAN MIAMI BEACH, LLC
TIIIS CERTIFICATE OF FORMATION of PORTMAN MIAMI BEACII,
LLC (the "Company") is being executed by the undersigned for the purpose of forming a
limited liability company pursuant to the Delaware Limited Liability Company Act.
FIRST:The name of the Company is:
Portman Vliami Beach, LLC
SECOND: The Company's registered offrce in the State of Delaware
is Corporation Trust Center, 1209 Orange Street in the City of Wilmington, Delaware
19801. The name of its registered agent at such address is The Corporation Trust
Company.
IN IVITNESS WHERIOF, the undersigned, being,;an authorized person of the
Company, has executed this Certificate of Formation on this{day of June, 2015.
Neal Kamin, Authorized Person
26196?46v1
290
July 17,2015 Draft
EXHIBIT "U''
FILLMORE THEATER PARKING
(See attached page)
291
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APPENDIX 2
293
Appendix 2
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Note re: Legal Description on Prior Page: lf approved as part of the regulatory Design
Review Board/development process, the cantilevered elements on the north property
line, depicted in Appendix E of the Lease with respect to the 4th Level of the proposed
Hotel, will be included within the legal description for the Leased Property.
295
APPENDIX 3
296
Appendix 3
Schedule of Proposed Minimum Fixed Rent
Minimum
Fixed Rent Growth Growth
Variable
Rent
2016
20t7
20t8
L 2OL9
2 2020
3 202L
4 2022
5 2023
6 2024
7 2025
8 2026
9 2027
10 2028
tL 2029
72 2030
13 2031
L4 2032
15 2033
t6 2034
77 2035
18 2036
19 2037
20 2038
27-99
Total
NPV @5%
5209,279
492,545
829,706
t,459,413
L,497,597
!,517,333
7,547,679
L,578,633
L,670,206
L,642,4L0
L,675,258
L,7O9,763
L,742,939
!,777,797
1,813,353
t,849,620
L,gg6,6L2
L,924,345
L,962,832
2,OO2,Ogg
385,946,474
-S416,56ry9j_
S35,209,343
5209,279
t35.4% 492,545
68.5% 829,706
75.8% 1,458,4L3
2.0o/o 7,517,403
2.oo/o L,577,800
2.0% 1,640,308
2.0% L,704,994
2.0% L,77L,930
2.0o/o 7,841,,L90
2.oo/o 1,878,013
2.0% 7,9!5,574
2.0% 1,953,885
2.0% L,992,963
2.0% 2,032,822
2.0% 2,073,479
2.0% 2,LL4,948
2.0% 2,757,247
2.0% 2,200,392
2.0% 2,244,400
432,657,370
_5466264,660'
538,907,292
Percentage
Rent Growth
s418,557
985,089 735.4o/o
1,659,413 68.5o/o
2,9L6,826 7s.B%
3,004,984 3.0%
3,095,133 3.0%
3,L87,987 3.0%
3,283,627 3.oo/o
3,382,\36 3.0%
3,483,599 3.0%
3,553,27L 2.0%
3,624,337 z.o%
3,696,824 2.0%
3,770,760 2.0%
3,846,L75 2.0%
3,923,099 2.0%
4,007,561 2.0%
4,O8L,592 2.0%
4,L63,224 2.0%
4,246,488 2.0%
818,603,844
s882,928,s24
574,L16,63s
135.4%
58.s%
75.8%
4.0o/o
4.0o/o
4.0o/o
3.9%
3.9%
3.9%
2.0%
2.0%
2.0%
2.0%
2.0%
2.0%
2.0%
2.0%
2.0%
2.O%
Note: The minimum fixed rent adjusts up or down every 10 years to 55% of the prior five
yearrs average total rent paid.
297
APPENDIX 4
298
Appendix 4
DRAFT
Referendum Re: Approval of City's
Should City lease 2.65 acre property at northeast
Center Drive to Portman Miami Beach LLC for
o Construction/operation of 800
Convention Center via pedestrian Sk
. Annual rent to City after
Rent or percentage of
No gambling,
No City fu
and Convention
solution 2015-
height nected to
greater of: Minimum Fixed
,
a
a
299
APPENDIX 5
300
Appendix 5
Planning Analysis
MIAMIBEACH
PLANNING DEPARTMENT COMMISSION MEMORANDUM
To: Jimmy L. Morales, a,,, Y"n%,
FRoM: Thomas R. Moonev. Atcfu'/f rl
Plannins Director ()lLtyl
DATE: June 25, 2015
SUBJECT: Analysis of Proposed Ground Lease Agreement for a Gonvention Hotel at the
approximately 2.6 acre site located on the 1700 Btock of Convention Center
Drive.
BACKGROUND
Section 82-38 of the Code of the City of Miami Beach requires that any proposed sale or
lease of City-owned land be analyzed from a planning perspective so that the City
Commission and the public are fully apprised of all conditions relating to the proposed sale
or lease.
The proposal is to execute a lease agreement between the City of Miami Beach (landlord)
and Portman Miami Beach LLC (lessee), for the development of a Convention Hotel at the
approximately 2.6 acre site located on the 1700 Block of Convention Center Drive. The
following is an analysis based on the criteria delineated in the Code.
ANALYSIS
1. Whether or not the proposed use is in keeping with city goals and objectives
and conforms to the city comprehensive plan.
Consistent - The future land use designation of the site is Public Facility:
Convention Center Facilities (PF-CCC). The proposed Convention Hotel use is
consistent with the purpose of the PF-CCC designation which permits the following:
Public Facility: Convention Center Facilities (PF-CCC)
Purpose: To provide development oppoftunities for existing convention center
and facilities necessary to support the convention center.
Uses which may be permitted: Convention facilities.
lntensity Limits: lntensity may be limited by such set back, height, floor area
ratio and/or other restrictions as fhe City Commlssion acting in a legislative
capacity determines can effectuate the purpose of this land use category and
otherwise implement complementary public policy. However, in no case shall
the intensity exceed a floor area ratio of 2.75.
301
Analysis of Proposed Lease Agreement for Convention Hotel
June 25, 201 5
Page 2 of 3
2. The impact on adjacent property, including the potential positive or negative
impacts such as diminution of open space, increased traffic, noise level or
enhanced property values, improved development patterns and provision of
necessary services. Based on the proposed use of the propefi, the city shall
determine the potential impact of the project on city utilities and other
infrastructure needs and the magnitude of costs associated with needed
infrastructure improvements. Should it become apparent that further
evaluation of traffic impact is needed, the proponent shal! be responsible for
obtaining a traffic impact analysis from a reputable traffic engineer.
Consistent - No negative impacts are anticipated by the proposed use of the
property.
A preliminary traffic analysis indicates that there will be net reduction of peak hour
trips in the area as a result of the proposal, since it will encourage conventions where
guests arrive to the area by shuttles or other means rather than by single occupancy
vehicles. However, additional reviews willtake place as the project develops further.
The site is currently used as a paved, surface parking lot; therefore there will be no
diminution of public open space.
The use should enhance commercial property values, because it will provide
additional patrons for the area's businesses.
A determination as to whether or not the proposed use is in keeping with a
public purpose and community needs, such as expanding the city's revenue
base, creating jobs, creating a significant revenue stream, and improving the
community's overall quality of life.
Consistent - This proposed use does keep with the public purpose and community
needs. The lease agreement expands the City's revenue base. lt is expected that
the convention hotel will improve the quality of conventions drawn to the convention
center, which will generate jobs and encourage economic development.
A determination as to whether or not the development is in keeping with the
surrounding neighborhood, will block views or create environmental
intrusions, and evaluation of the design and aesthetic considerations of the
project.
Consistent - The surrounding area consists of civic uses; including the Convention
Center, City Hall, and public parking garages. Therefore, the development will not
block views for other property owners or create environmental intrusions. The
design and aesthetic considerations will be further analyzed as part of the Design
Review process that is required of new development pursuant to the Land
Development Regulations.
3.
4.
We ore commilted lo providing excellal public servtce ond sofety to oll who ]ive, work, ond plcy in our vibront, tropicol, historic comnunity
302
Analysis of Proposed Lease Agreement for Convention Hotel
June 25, 201 5
Page 3 of 3
5. The impact on adjacent properties, whether or not there is adequate parking,
street and infrastructure needs.
Consistent - The convention hotel will be providing adequate parking on-site
pursuant to the requirements of the Land Development Regulations. Additional
modifications will be made to the surrounding streets and infrastructure as the project
is developed further.
6. Such other issues as the city manager or his authorized designee, who shall
be the city's planning director, may deem appropriate in analysis of the
proposed disposition.
Not applicable - The Planning Department has no other issues it deems
appropriate to analyze for this proposal.
CONCLUSION
The proposed use for the site is consistent with the Goals, Objectives, and Policies. The
use will generate no negative impacts for the surrounding area. The property would
continue to serve the public interest.
TRM/RAM
T:\AGENDA\201 SUuly\Convention Hotel - Planning Analysis.docx
\y'/dceca,aaited:cprovtciingexcellenloubiicseoriceondsobnTboll 'etholi'ie.wark )tCo!o./ir6x'1i[lSiT,topicol,historiccomnuntty
303
CITY
Hotel Lease
Minimum Fixed Rent
Variable Rent
Percentage Rent (4% Gross)
Taxes
CRA City (thru 3/2044)
cRA County (thru 3/?044)
New Resort Tax (Hotel 1 7o)
Resort Tax (Hotel 3%, F&B 2o/o)
CDT Allocation (thru 2044)
Property Taxes*
Subtotal
Appendix 6
Summary of Public Revenue lmpact
Over j0 years
2022 (Yr 4)
Sr.sm
1.5m
Totol NPV @ 5%
Over 99 years
Total NPV @ 5%
Ssam
59m
521m
23m
Satzm
466m
535m
39m
S2.9m
1.1m
0.8m
0.8m
3.0m
1.5m
0.1m
t1,2m
34m
26m
30m
118m
36m
13m
44m
16m
12m
12m
48m
16m
4m
883m 74m
34m 16m
26m L2m
229m 20m
902m 79m
36m 16m
326m 16m
7.2m
0.8m
1.1m
0.Lm
258m
54m
44m
t2m
20m
18m
4m
650m
336m
266m
44m
29m
14m
1,553m 159m
CITY TOTAL sto.tm Saegm Srsrm S2.436m SzEEm
COUNTY
Convention Devl. Tax (37o)
Local Option Sales Tax (170)
Property Taxes*
Subtotal County
SCHOOLS (Property Tax)
OTHER PROPERTY**
STATE SALES TAX (6%)
TOTAL
2.0m 110m 42m L,252m 87m
1.5m
0.2m
6.6m
60m
7m
264m
24m
3m
107m
453m 40m
55m 5m
2,019m L76m
S2o.+m 58tom S327m Ss,ztsm Ssaom
t 95% of general property taxes allocated to CRA through 3/2044
** Regional property tax and Children's Trust property tax
Key Assumptions:
All analysis completed on a calendar year basis
Year 1 through 10 based on developer proforma
Assumed Zyo growth rate beginning in year 11 and beyond
NPV to 2015
91.5m of County CDT allocated to City beginning in third year of hotel opening through 2044
Sources: Portman, City of Miami Beach, SAG.
304
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COMMISSION ITEM SUMMARY
Condensed Title:
A Resolution Of The MayorAnd City Commission Of The City Of Miami Beach, Florida, PursuantTo Section 46-
59, Of The City Code, Entitled "Tree Work PermitApplication Processing, Requirements, And Review"; Creating
And Adopting The Tree Code Permit Fee Schedule As Delineated ln Exhibit "A"; Which Fee Schedule lmplements
AllFeesRelatingToChapter46,"Environment,"Articlell,"CareAndMaintenanceOfTreesAndPlants," Division
2. "Trees." Sections 46-56 Throuqh 46-90.
Item Summary/Recommendation :
On November 19,2014, the City of Miami Beach passed the Tree Ordinance (Ordinance 2014-3904), which
serves as the official guideline for tree relocations, removals, remediation, and special tree designations within the
City's boundaries and is found at Chapter 46, "Environment," Article ll, "Care and Maintenance of Trees and
Plants," Division 2 "Trees," at Sections 46-56 through 46-90.
When the ordinance was created, the City neglected to establish a permit fee schedule, and due to the foregoing,
the City Commission amended Section 46-56 on July 29'n, 2015 to specifically provide the authority to the City
Commission to establish permit fees to administer Chapter46, Article ll, Division 2, Section 46-56 through Section
46-56 by Resolution.
On June 1,2015 Miami-Dade County officially notified the City of Miami Beach that it will no longer regulate tree
resources within the City beginning June 15, 2015, in order to allow the City to assume this regulatory
responsibilitypursuanttoChapter24oftheMiami-DadeCountyCode. PartoftheCity'sregulatoryresponsibility
is to charge fees for the various applications, permits, and reviews necessary to run the Tree Preservation
Permitting Program, as well as assess fines/penalties for the violation of the City's Tree Ordinance.
As of June 15,2015, the City of Miami Beach Department of Public Works assumed responsibility for enforcing
the Tree Ordinance (No. 2014-3904) from Miami-Dade County. The Greenspace Management Division of the
Public Works Department has established a Tree Preservation Permitting Program which receives and processes
applications for the performance of tree related work within the City. ln order for this program to function as
intended, it is necessary to collect fees associated with the types of services and permits that the Program offers.
ln discussions with Miami-Dade County, it was revealed that they are having a difficult time covering their costs
with their present fee schedule. Considering labor costs and the time required to perform site inspections, plan
reviews, and various administrative tasks, it was determined that the proposed Tree Preservation Permit Program
fees would need to be double the fee amount currently charged by Miami-Dade County to provide similar services.
For all new application submittals, the application and the initial inspection fee are required for processing. For
After{he-Fact (ATF) tree removal/relocation permits, the application and the per tree(s) fees are doubled (x 2). ln
order to renew/extend a permit you will be required to pay the original application fee amount prior to the
expiration of the current permit. Any application and initial inspection fee shall be required upon permit application
submission and are non-refundable if cancelled, withdrawn or denied, and shall not be refundable.
The City Commission desires to adopt its tree permitting fee schedule to implement Chapter 46, "Environment,"
Article ll, "Care and Maintenance of Trees and Plants," Division 2 "Trees," at Sections 46-56 through 46-90.
THE ADMINISTRATION RECOMMENDS APPROVING THE RESOLUTION.
Advisorv Board Recommendation:
Financial lnformation :
Source of
Funds:
OBPI
Financial lm
Clerk's Office
n-Offs:
Department Director Assistant $iJS$anager City l!\nager
ETC MT \L[)JLM Y\
T:Works, July 29\Tree Fees. Sum.doc
#MIAMIBEACH
hsenaa rtem F7B
Date 7-3l-l\307
City of Miami Beach, 1700 Convention Center Drive, Miami Beach, Florida 33139, www.miamibeachfl.gov
PUBLIC WORKS DEPARTMENT COMMISSION MEMORANDUM
To: Mayor Phillip Levine and Members
FRoM: Jimmy L. Morales, City Manager
DATE: July 29, 2015
the City
SUBJECT: A RESOLUTION OF THE MAYORTAND GITY COMMISSION OF THE CITY OF MIAMI
BEACH, FLORIDA, PURSUANT TO SECTION 46.59, OF THE CITY CODE, ENTITLED
..TREE WORK PERMIT APPLICATION PROCESSING, REQUIREMENTS, AND
REVIEW''; CREATING AND ADOPTING THE TREE CODE PERMIT FEE SCHEDULE
AS DELINEATED tN EXHIBIT..A,,;WHIGH FEE SCHEDULE IMPLEMENTS ALL FEES
RELATING TO GHAPTER 46, "ENVIRONMENT,'' ARTICLE II, ''CARE AND
MAINTENANCE OF TREES AND PLANTS," DIVISION 2, "TREES," SECTIONS 46-56
THROUGH 46.90.
BACKGROUND
On November 19, 2014, the City of Miami Beach passed the Tree Ordinance (Ordinance 2014-
3904), which serves as the official guideline fortree relocations, removals, remediation, and special
tree designations within the City's boundaries and is found at Chapter 46, "Environment," Article ll,
"Care and Maintenance of Trees and Plants," Division 2 "Trees," at Sections 46-56 through 46-90.
When the ordinance was created, the City neglected to establish a permit fee schedule, and due to
the foregoing, the City Commission amended Section 46-56 on July 29'n,2015 to specifically provide
the authority to the City Commission to establish permit fees to administer Chapter 46, Article ll,
Division 2, Section 46-56 through Section 46-56 by Resolution.
On June 1 ,2015 Miami-Dade County officially notified the City of Miami Beach that it will no longer
regulate tree resources within the City beginning June 1 5,2015, in order.to allow the City to assume
this regulatory responsibility pursuant to Chapter 24 of the Miami-Dade County Code. Part of the
City's regulatory responsibility is to charge fees for the various applications, permits, and reviews
necessary to run the Tree Preservation Permitting Program, as well as assess fines/penalties forthe
violation of the City's Tree Ordinance.
As of June 15,2015, the City of Miami Beach Department of Public Works assumed responsibility
for enforcing the Tree Ordinance (No. 2014-3904) from Miami-Dade County. The Greenspace
Management Division of the Public Works Department has established a Tree Preservation
Permitting Program which receives and processes applications for the performance of tree related
work within the City. ln order for this program to function as intended, it is necessary to collect fees
associated with the types of services and permits that the Program offers.
308
ln discussions with Miami-Dade County, it was revealed that they are having a difficult time covering
their costs with their present fee schedule. Considering labor costs and the time required to perform
site inspections, plan reviews, and various administrative tasks, itwas determined thatthe proposed
Tree Preservation Permit Program fees would need to be double the fee amount currently charged
by Miami-Dade County to provide similar services.
For all new application submittals, the application and the initial inspection fee are required for
processing. For After-the-Fact (ATF) tree removal/relocation permits, the application and the per
tree(s) fees are doubled (x 2). ln order to renew/extend a permit you will be required to pay the
original application fee amount prior to the expiration of the current permit. Any application and
initial inspection fee shall be required upon permit application submission and are non-refundable if
cancelled, withdrawn or denied, and shall not be refundable.
The City Commission desires to adopt its tree permitting fee schedule to implement Chapter 46,
"Environment," Article ll, "Care and Maintenance of Trees and Plants," Division 2 "Trees," at
Sections 46-56 through 46-90.
CONCLUSION
The Administration recommends approving the Resolution.
JLM/MT/ETC/JJF/RK
T:\AGENDA\2015Uuly\Public Works, July 29\Tree Fees . MEMO.doc
309
RESOLUTION NO.
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF
THE CITY OF MIAMI BEACH, FLORIDA, PURSUANT TO SEGTION
46.59, OF THE CITY CODE, ENTITLED "TREE WORK PERMIT
APPLIGATION PROCESSING, REQUIREMENTS, AND REVIEW";
GREATING AND ADOPTING THE TREE GODE PERMIT FEE
SCHEDULE AS DELINEATED lN EXHIBIT "A"; WHIGH FEE
SCHEDULE IMPLEMENTS ALL FEES RELATING TO GHAPTER
46, "ENVIRONMENT," ARTIGLE ll, "CARE AND MAINTENANCE
oF TREES AND PLANTS," DIVISION 2, "TREES," SECTIONS
46-56 THROUGH 46-90.
WHEREAS, on November 19, 2014, the City of Miami Beach passed the Tree Ordinance
(Ordinance 2014-3904), which serves as the official guideline for tree relocations, removals,
remediation, and special tree designations within the City's boundaries and is found at Chapter 46,
"Environment," Article ll, "Care and Maintenance of Trees and Plants," Division 2 "Trees," at
Sections 46-56 through 46-90; and
WHEREAS, when the ordinance was created the City neglected to establish a permit fee
schedule, and due to the foregoing, the City Commission amended Section 46-56 on July 29s,,2015
to specifically provide the authority to the City Commission to establish permit fees to administer
Chapter 46, Article l!, Division 2, Section 46-56 through Section 46-56 by resolution; and
WHEREAS, on June 1,2015 Miami-Dade County officially notified the City of Miami Beach
that it will no longer regulate tree resources within the City beginning June 1 5,2015, in orderto allow
the City to assume this regulatory responsibility pursuant to Chapter 24 of the Miami-Dade County
Code; and
WHEREAS, part of the City's regulatory responsibility is to charge fees for the various
applications, permits, and reviews necessary to run the Tree Preservation Permitting Program, as
well as assess fines/penalties for the violation of the City's Tree Ordinance; and
WHEREAS, as of June 15,2015, the City of Miami Beach Department of Public Works
assumed responsibility for enforcing the Tree Ordinance (No. 2014-3904) from Miami-Dade County;
and
WHEREAS, the Greenspace Management Division of the Public Works Department has
established a Tree Preservation Permitting Program which receives and processes applications for
the performance of tree related work within the City. ln order for this program to function as
intended, it is necessary to collect fees associated with the types of services and permits that the
Program offers; and
WHEREAS, in discussions with Miami-Dade County, it was revealed that they are having a
difficult time covering their costs with their present fee schedule. Considering labor costs and the
time required to perform site inspections, plan reviews, and various administrative tasks, it was
determined that the proposed Tree Preservation Permit Program fees would need to be double the
fee amount currently charged by Miami-Dade County to provide similar services; and
WHEREAS, for all new application submittals, plan review and inspection fees are required
prior to issuance of a tree removal/relocation permit; and
310
WHEREAS, for after-the-fact (ATF) tree removal/relocation permits, the plan review,
inspection shall require double permit fees; and
WHEREAS, in order to reneMextend a permit you will be required to pay one half the original
application fee amount prior to the expiration of the current permit; and
WHEREAS, plan review and inspection fees shall be required before issuance of a permit
and are non-refundable once a permit has been issued; and
WHEREAS, the City Commission desires to adopt its tree permitting fee schedule to
implement Chapter 46, "Environment," Article ll, "Care and Maintenance of Trees and Plants,"
Division 2 "Trees," at Sections 46-56 through 46-90.
NOW, THEREFORE, BE !T DULY RESOLVED BY THE MAYOR AND THE CITY
COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, pursuantto Section 46-59, of the City
Code, entitled "Tree Work PermitApplication Processing, Requirements, And Review"; creating and
adopting the "Tree Code Permit Fee Schedule" as delineated in Exhibit "A"; which fee schedule
implements all fees relating to Chapter 46, "Environment," Article ll, "Care And Maintenance Of
Trees And Plants," Division 2, "Trees," Sections 46-56 through 46-90.
PASSED AND ADOPTED this _ day of
Philip Levine, Mayor
ATTEST:
Rafael E. Granado, City Clerk
F:\ATTO\BOUE\RESOS\Tree Fee Resolution.doc
311
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THIS PAGE INTENTIONALLY LEFT BLANK
314
COMMISSION ITEM SUMMARY
Condensed Title:
RESOLUTION OF THE MAYOR AND CIry COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA SETTING
) THE PROPOSED OPERATING MILLAGE RATE; 2)THE REQUIRED DEBT SERVICE MILLAGE MTE; 3) THE
ATED "ROLLED-BACK" RATE;AND,4) THE DATE, TIME, AND PLACE OF THE FIRST PUBLIC HEARING
CONSIDER THE MILLAGE RATES AND BUDGETS FOR FISCAL YEAR (FY) 2015/16; FURTHER
THE CIry MANAGER TO TRANSMIT THIS INFORMATION TO THE MIAMI-DADE COUNry
RTY APPRAISER IN THE FORM REQUIRED BY SECTION 200.065. FLORIDA STATUTES
lntended Outcome
Ensure expenditure trends are sustainable over the long term
ln the 2014 Community Survey, both residents and businesses reported the following areafor the City related to
value for taxes paid:
Percentage of residents rating the Overall Value of City services for tax dollars paid as excellent or good
(Residents: 58%; Businesses 54%)
Item Summary/Recommendation :
FS 200.065, entitled "Method of Fixing Millage" establishes specific guidelines that must be used by all local
govemment entities in setting millage (property tax) rates. Under the statute, the City is required, within 35 days of
receipt of the "Certification of Taxable Value" (received July 1, 2015), to advise the Miami-Dade County Property
Appraiser of the proposed general operating millage rate, the calculated "rolled-back" rate and the date, time, and
place of the first public hearing to consider the proposed millage rates and tentative budgets for FY 2015/16. The
required Debt Service millage rate must also be set at the same time as the General Operating millage.
After setting the proposed operating millage rate, the Commission may, at any time prior to the final adoption, lower
the rates by adjusting priorities. However, increasing the millage rate may only be accomplished by an expensive
mailing and advertising process to every property owner on Miami Beach. The City's proposed operating millage
rate as well as that of other taxing authorities will be included in the Truth-in-Millage (TRIM) statement sent to each
property owner in the City on August 24o by the Property Appraiser.
For FY 2015116, the Administration proposes a total combined millage rate for the City of Miami Beach of 5.9123,
which represents a decrease of 0.1114 mills from 6.0237 in FY 20'14115. This amount meets the remaininq millaqe
rate qoal to lower the millage rate to the level in FY 2009/10 as property values have increased over time. The total
proposed operating millage includes a general operating millage rate of 5.6009 which is a decrease of 0.0850 and a
General Fund Capital Renewal and Replacement millage of 0.1083, which is proposed to remain flat. The
proposed voted debt service millage rate is adjusted from 0.2295 to 0.2031 , a decrease of 0.0264 mills. The FY
2015116 proposed millage rate requires a majority vote.
The proposed millage provides funding to offset increases to the FY 2015116 Current Service Level Budget in
employee costs such a 2 percent performance-based merit increase; additional steps for members of the Fratemal
Order of Police and lnternational Association of Fire Fighters; the impact of annualized costs for items added during
FY 2014115; higher operating costs; intemal service fund charge-backs; and several new program and service
enhancements.
Finance & Citywide Projects Committee meetings on June 3'", July 1'', and July '17"',2015
Financial lnformation:
iource of Funds:Amount Accouhtl(<1.) |tspr 1
Iotal
Financial lmpact Summary The July 1,2015 Certification of Taxable Value from the Miami-Dade County
Property Appraiser reflects a 13.3 percent increase in Citywide property tax values from the July 1,2014 tax roll
certification. Given that the City Center RDA had a 15.2 percent increase in taxable values, the increase outside the
City Center RDA, which impacts the City's General Fund revenues, was 12.9 percent. The proposed millage for the
FY 2015116 budqet results in increased oropertv tax revenues in the General Fund of $15.4 million.
trIlrl 74h/f& MIAMIBTACH 315
1915.2015
i', ,'1, i ,k t'z f',iW"T: fi { i *Yl "''.irn.l U \iW'*f",.\,* fi {
City of Miomi Beoch, 1700 Convention Cenler Drive, Miomi Beoch, Florido 33,l 39. www.miomibeochfl.gov
COMMISSION MEMORANDUM
To: Mayor Philip Levine and Members of
FROM: Jimmy L. Morales, City Manager
DATE: July 31 ,2015
SUBJECT: A RESOLUTION OF THE MAYOR AI.ID CITY COMMISSTON OF THE CITY OF
MIAMT BEACH, FLORIDA SETTING l) THE PROPOSED OPERATING MILLAGE
RATE; 2) THE REQUIRED DEBT SERVICE MILLAGE RATE; 3) THE CALCULATED
"ROLLED-BACK" RATE; AND,4) THE DATE, TIME, AND PLACE OF THE FIRST
PUBLIC HEARING TO CONSIDER THE MILLAGE RATES AND BUDGETS FOR
FTSCAL YEAR (FY) 2015/16; FURTHER AUTHORIZING THE CITY MANAGER TO
TRANSMIT THIS INFORMATION TO THE MIAMI.DADE COUNTY PROPERTY
APPRAISER IN THE FORM REQUIRED BY SECTION 200.065, FLORIDA
STATUTES.
ADMINISTRATION RECOMMEN DATION
The Administration recommends that the Mayor and City Commission adopt the attached
resolution which authorizes the City Managerto transmitthe following information to the Miami-
Dade County Property Appraiser:
1) Proposed Millage Rates for FY 2015116:
General Operating 5.6009 mills (0.0850 decrease from last year)
Capital Renewal & Replacement 0.1083 mills (same as last vear)
Sub-Total Operating Millage 5.7092 mills (0.0850 decrease from last year)
Voted Debt Service 0.2031 mills (0.0264 decrease from last vear)
Total 5.9123 mills (0.1 114 decrease from last year)
2) "Rolled-Back" Rate (Truth in Millage) 5.0584 mills
3) The first public hearing to considerthe proposed millage rates and tentative budgets for FY
204115 shall be Thursday, September 10, 2015 at 5:01 p.m., in the City Commission
Chambers, City Hall, 1700 Convention Center Drive, Miami Beach, Florida.
The "Rolled-Back" millage rate for FY 2015116 is the millage rate required to produce the same
level of property tax revenues in the General Fund in FY 2015/16 as anticipated to be received
in FY 2014115. lt is important to note, that the January 1, 2014, tax roll Citywide declined by
almost $832.6 million (3.1%) between the July 1,2014 valuation and the July 1 ,2015 valuation
due to appeals, adjustments, etc, which is part of the reason the FY 2015/16 "rolled-back rate" is
0.7358 mills lower than the FY 2014115 current millage rate and lower than it would be if the
rollback rate was only adjusted for the increase in revenues generated by higher property
values. The area outside of City Center RDA, which impacts General Fund revenues, declined in
value by approximately $550.9 million during the same period of time.
316
FY 2015/16 Proposed Millage Rate
July 31, 2015
Page 2
The proposed millage provides funding to offset increases to the FY 2015116 Current Service
Level Budget in employee costs such a 2 percent performance-based merit increase; additional
steps for members of the Fraternal Order of Police and lnternational Association of Fire
Fighters; the impact of annualized costs for items added during FY 2014115; higher operating
costs; internal service fund charge-backs; and several new program and service enhancements.
SUMMARY
ln FY 2010111 the city's approach to addressing the then deficit of $32 million included a
distribution of the shortfall between taxpayers and employees. Taxpayers had their tax rate
increased from 5.9123 to 6.5025, an increase of 0.5902 mills. The goal of the Commission has
been to bring them back to that level as property values increase over time. lt should be
remembered that between FY 2009110 and FY 2010111 values declined by $Z.O billion driving
the need for an increase in the millage.
ln FY 201 1112 the City took its first step in that direction with a reduction in the millage rate of
0.0486 mills. The millage rate for FY 2012113 reduced the millage by an additional 0.1062 mills.
ln the FY 2013/14 budget, the millage rate was reduced 0.2314 mills and in the FY 2014115
budget the millage rate was reduced 0.0926 mills. Over four years, this reduction represented
81 percent of the goal to get back to a millage rate of 5.9123. The remaining goal for millage
reduction is 0.1114.
For FY 2015116, the Administration proposes a total combined millage rate for the City of Miami
Beach of 5.9123, which represents a decrease of 0.1114 mills. This amount meets the
remaininq millaqe rate qoal to lower the millage rate to the level in FY 2009110 as property
values have increased over time.
The total proposed operating millage includes a general operating millage rate of 5.6009 which
is a decrease of 0.0850 from 5.6859 in FY 2014/15 and a General Fund Capital Renewal and
Replacement millage of 0.1083, which is proposed to remain flat. The proposed voted debt
service millage rate is adjusted from 0.2295 to 0.2031, a decrease of 0.0264 mills.
It is important to remember that in prior years, the City of Miami Beach significantly reduced tax
rates as property values increased. Between FY 1999/00 and FY 2009110, total combined City
of Miami Beach propefi tax rates declined approximately 2.8 mills. ln FY 2007/08 alone, the
millage rate declined by approximately 1.8 mills, with annual savings to the average
homesteaded property of over $400. Further, despite an adjustment of 0.56 mills in the
operating tax rate in FY 2010/1 1, City of Miami Beach propos'ed combined millage rates today
remain more than 2.7857 mills lowerthan in FY 1999/00 (33 percent), and 1.6493 mills lower
than 2006i07 (22%).
317
FY 2015/16 Proposed Millage Rate
July 31, 2015
Page 3
GENERAL FUND CURRENT SERVICE LEVEL BUDGET DEVELOPMENT
At the strategic planning retreat on May 29,2015, the Commission was briefed regarding the
preliminary General Fund Current Service Level (CSL) budget. The CSL represents the costof
providing the same level of services as in the prior year and serves as the baseline of funding for
the budget process.
Property taxes comprise 460/o of the total General Fund revenue and are a key driver of CSL
revenues. The Property Appraiser provided the preliminary 2015 property values on June 1,
2015. The Commission was'briefed regarding the updated CSL budget at the June 3'd Finance
& Citywide Projects Committee. The preliminary 2015 property values increased 12.0o/o, which
resulted in an increase of $14.6 million in General Fund property tax revenues.
CSL revenues were estimated to increase $16.1 million due to an $14.6 million increase in
property tax revenues (assumed keeping the operating millage rate the same), a $2.6 million
increase in non-property tax revenues including an increase in the Resort Tax contribution of
$1.7 million for items added in mid-yearand annualized items from FY 2014115, and a decrease
in prior-year set-aside (onetime revenue) of $1.6 million. These figures do not assume
additional contributions from the Resort Tax or Parking Funds.
CSL expenditures were estimated to increase $12.5 million due to the following:
o Higher pension contributions of $2.8 million as both pension boards voted to lower the
investment rate assumption
. 0-2o/o merit pay: $2.2 million
o Spike in leave payouts from retirements, DROP, and separations from the city: $1.2
million
o Annualized costs for items added during FY 2014115 such as $1.64 million for the new
landscaping contract, $534,000 for PC replacement from 5 to 3 years, $332,000 for
body camera maintenance, and $249,000 for Energov permitting software maintenance.
o Annualized costs for items added mid-year including $802,000 for staffing of 6 new
lifeguard stands, $285,000 for enhanced tuition reimbursement program, $283,000 for
pre-employment background checks, $276,000 for license plate reader on MacArthur
Causeway, $204,000 for additional windstorm insurance, $128,000 for security guards
on 4th floor of City Hall and at Housing & Community Services, and $105,000 for
Executive Services Program.
o Other miscellaneous cost increases to CSL include $210,000 for higher general liability
legal fees and workers comp legal fees based on trend, $160,000 for outside legal
counsel for labor negotiations and Watson lsland, $157,000 for actuary and pension
attorney for labor negotiations, and $154,000 for electricity for new streetlights (21%
increase in inventory) and irrigation costs from recently completed capital projects.
o These expenditure figures do not assume additional savings from potential efficiencies
or reductions.
ThepreliminaryCsLbasedonJunel'tpropertyvalueshadarevenueincreaseof $16.1 million
and an expenditure increase of $12.5 million for a net surplus of $3.6 million. At the June 3rd
Finance and Citywide Projects Committee meeting, direction was given to assume a millage rate
reduction of 0.0557, which represented half of the remaining millage rate goal. The millage rate
reduction reduced the projected CSL surplus to $2.5 million.
318
FY 2015/16 Proposed Millage Rate
July 31 , 2015
Page 4
BALANCING STRATEGIES
At the July 1't Finance and Citywide Projects Committee meeting, direction was given regarding
the proposed Millage Rate, enhancements and efficiencies for the Operating Budget, and
changes to the Capital Budget.
The impact of the change from the June 1't preliminary taxable values of 12.0 percent to the July
1't certified taxable values that increased 13.3 percentwas calculated at $1.2 million. The
Committee voted to reduce the combined millage rate bythe remainderof the millage rate goal,
0.1114 mills, which reduced the surplus by $t.t million. The proposed millage rate was reduced
from 6.0237 to 5.9123 and is now the same as it was in FY 2009/10 prior to the millage rate
increase in FY 2010111 of 0.5902.
On July 1st, the Committee accepted the recommended reductions/efficiencies except for the
recommended reduction in City Clerk - Central Services for $27,100 to eliminate printing of
Commission meeting agendas, Commission committee agendas, Land Use Boards agendas,
and annual Budget documents. The updated savings from the recommended
reductions/efficiencies totals $ 1,21 1,7 50.
The Committee also recommended accepting the proposed additions and service
enhancements with the following changes listed below:
. Remove $100,000 forthe Climate Action Plan in Building-Environmental Management
o Remove $150,000 for the North Beach Marketing funds in Tourism, Culture, & Economic
Development (funded by Resort Tax)
. Offset 50 percent ($55,000) of the Assistant Director in Tourism, Culture, & Economic
Development from Resort Tax funding
o Offset the $220,000 cost of the Urban Forestry Tree Preservation Program in Public
Works by budgeting the fee revenue associated with the new program
o Add $200,000 for Out-of-Region Data Center in lnformation Technology
. Add $500,000 in a reserve to offset the future cost of the Public Safety Radio project in
Emergency ManagemenU9-1 -1
Following the July 1't meeting, an additional savings of $130,000 was identified in the Current
Service Level Budget from funding the Fire Boat in FY 2014115 instead of FY 2015116.
At the Juty 17th Finance and Citywide Projects Committee meeting, the following two changes
were made to the list of proposed additions and service enhancements:
. Add $45,000 for one of two requested positions for the City Attorney Fellowship Program
o Reduce Parking's Loading Zone Program request from 12 to 8 positions (Parking Fund)
The updated recommended reductions/efficiencies total $3,869,000, which is offset by $530,000
from additional Resort Tax contribution for tourism-eligible enhancements. The remainder of the
surplus totaling $102,750 was placed into General Fund-Contingency in Citywide.
319
FY 2015/16 Proposed Millage Rate
July 31 , 2015
Page 5
:Preliminary-.-CSlsurplus.. . 3,600,000
,--based on June lstvalues .
Millage rate reduction
--XQo/o of rernaining millage rate goal
(.1_,100,000)
I
I
I
I
I
I
The remaining steps in the decision-making process include.the first public hearing on the FY
2015t16 Proposed Work Plan and Budget on September 10h and a second public hearing on
September 30th.
320
FY 2015/16 Proposed Millage Rate
July 31, 2015
Page 6
STATUTORY REQUIREMENTS
FS 200.065, entitled "Method of Fixing Millage" establishes specific guidelines that must be used
by all local government entities in setting millage (property tax) rates. Under the statute, the City
is required, within 35 days of receipt of the "Certification of Taxable Value" (received July 1,
2015), to advise the Miami-Dade County Property Appraiser of the proposed general operating
millage rate, the calculated "rolled-back" rate and the date, time, and place of the first public
hearing to consider the proposed millage rates and tentative budgets for FY 2015i16. The
required Debt Service millage rate must also be set at the same time as the general operating
millage.
After setting the proposed operating millage rate, the Commission may, at any time prior to the
final adoption, lower the rates by adjusting priorities. However, increasing the millage rate may
only be accomplished by an expensive mailing and advertising process to every property owner
on Miami Beach. The City's proposed operating millage rate as well as that of other taxing
authorities will be included in the Truth-in-Millage (TRIM) statement sent to each property owner
in the City.
ANALYSIS OF PROPERTY VALUES IN MIAMI BEACH
On July 1,2015, the City received the "2015 Certification of Taxable Value" from the Property
Appraiser's Office stating that the taxable value for the City of Miami Beach is $30.7 billion
including $267.0 million in new construction. The preliminary2015 value represents an increase
of $3.6 billion or 13.3 percent more than the July 1 ,2014, Certification of Taxable Value of $27 .1
billion.
The comparative assessed values for the Miami Beach Redevelopment Agency City Center
redevelopment district increased from $4.2 billion to $4.8 billion an increase of $635 million or a
15.2 percent increase over 2014 certified values. Citywide values excluding City Center
increased from $22.9 billion to $25.9 billion, an increase of $3.0 billion or 12.9 percent. Values
outside the City Center area determine General Fund revenues.
COMPARATIVE ASSESSED VALUES
Jon. 1 2Ol4 Volue (in billions)
% Cho
Jon. l,2Ol5
Volue (in
hillionsl
Chonge from2O14
Volue (Budqetl
As of July I , 2014
lFor 2014/15
Brrdoetl
Revised Volue
lFor 2O14/15
Proiectionl
Chonge in
2014
Volues
AsofJuly 1,2015
lFor 2O15/16
Brrdoetl
$
lin billionsl %Cho
Totol Citywide $ 27.1038 $ 26.2712 [0.8326)-3.1"/"$ so.oszs $ 3.5e41 13.3%
RDA - City Ch $ 4.1867 $ 3.9049 $ (0.28r 8)-6.7%$ +azte $ 0.634e 15.2%
Citywide Net of
City Center $ 22.9171 $ 22.3663 $ (0.5508)-2.4%$ 2s.8763 $ z.csci 12.9%
321
FY 2015/16 Proposed Millage Rate
July 31, 2015
Page 7
VALUE OF ONE MILL OF TAXABLE VALUE
The first building block in developing a municipal budget is the establishmentof the value of one
mill of taxation, wherein the mill is defined as $1.00 of ad valorem tax for each $1,000 of
property value. For the City of Miami Beach, the value for each mill is determined by the 2015
Certification of Taxable Value and has been set at $30.7 million. Florida Statutes permit a
discount of up to five percent for early payment discounts, delinquencies, etc. Therefore, the 95
percent value of the mill is $29.1 million. Net of Center City RDA tax increment available to the
General Fund, the value of one mill at 95 percent is $25.1 million.
MA)(IMUM MILLAGE DETERMINATION
For FY 2015116, the proposed operating millage rate for general City operations is 5.7092, which
is 0.0850|ess than inFY 2014115. Based on the July 1 ,2015, Certification of Taxable Value,
5.7092 mills would generate approximately $143,162,000 in general tax revenues, an increase
of $15,403,000 over FY 2014115 budgeted property tax revenues Citywide (General Fund and
City Center RDA).
Further, the January 1,2014, tax roll Citywide declined by $8SZ.O million between the July 1,
2014valuation and the July 1,2015 valuation due to appeals, adjustments, etc., which is partof
the reason that the FY 2015116 "rolled-back rate" is significantly less than the FY 2014115
current millage rate. The value of the area outside of City Center RDA declined by almost
$550.9 million.
Further, pursuant to recently enacted State legislation, the City may elect to approve millage
rates above the roll-back rate up to the constitutional cap of 10 mills subject to the following
votes by the Commission or referendum:
Option l: A majority of the approval of the Commission Millage is required to approve a
millage up to 6.6112 (equivalent to 1.96 percent increase in property tax revenues). The
1.96 percent increase is the state per capita personal income gain for the prior calendar
year.
Option tl: A twothirds approval (5 of 7 votes) of the Commission is required to approve a
millage up to 7.2723 (equivalent to a 10% increase in the ad valorem revenues above
Option l).
Option lll: A unanimous approval of the Commission or referendum is required to approve a
millage above 7.2723 up to the 10 mill cap
The proposed operating millage rate of 5.7092 therefore requires a majority approval (4 of 7
votes) of the Commission.
DETERMINING THE VOTED DEBT SERVICE MILLAGE LEVY
The general obligation debt service payment for FY 2015116 is approximately $5.9 million.
Based on the July 1 ,2015 Certified Taxable Value from the Property Appraiser, these bonds
would require the levy of a voted debt service millage of 0.2031 mills. This represents a
decrease of 0.0264 mills.
322
FY 2015/16 Proposed Millage Rate
July 31, 2015
Page I
COMBINING THE OPERATING AND VOTED DEBT SERVICE MILLAGE LEVIES
lllustrated below is a comparison of the combined millage rates and ad valorem revenues to the
City of Miami Beach for FY 2014115 and FY 2015116 (preliminary) including RDA. lt is
recommended that in the General Fund, 0.1083 mills of the total operating millage continue to
be dedicated to renewal and replacement, resulting in approximately $2.7 million in renewal and
replacement funding.
%lnc/(Decl
City of Miami Beach Millase Rates FY 06/07
7.1920
0.1820
FY 14115
5.6859
0.1083
Witfr'ffid##nd(oecl
'tffiw -0.085c
F,rl083 0.000c
From From
FY14t15 FY06/07
Operating
Capital Renqaral & Replacernent
Sub-total Operating Millage
Debt Service
Tota!
7.3740
0.2990
5.7942
0.2295
lWilllW '0'0850
iffirnofifi -o.o2u
-1.5o/o -22.60/o
-11.5o/o -32.1o/o
7.6730 6.0237 fli^l##,lt% -0.1114 -1.8Yo -22.9Yo
lf these recommended millage rates are tentatively adopted, then the City of Miami Beach's total
operating millage will decrease by the remainder of the millage rate goal, 0.1114 mills.
IMPACT OF JULY 31=t PROPOSED MILLAGE LEVY IMPACT ON PROPERTY OWNERS
Homesteaded Properties
Amendment 10 to the State Constitution took effect on January 1 , 1995 and limited the increase
in assessed value of homesteaded property to the percentage increase in the consumer price
index (CPt) or three percent (3%), whichever is less. For 2014, the CPI has been determined to
be 0.8 percent and therefore, the increase is capped at 0.8% for increased values as of January
1,2015.
Overall, based on the homesteaded properties in the January 1,2014 homestead values as of
July 1 ,2014 valuation, the median value of homesteaded property in Miami Beach for2014was
$143,680, and the average $351 ,189. Applying the increase to the market value of all existing
homesteaded properties from the 2014 tax roll, and the 0.8 percent CPI adjustment, the impact
of the millage rate adjustment to homesteaded properties would be as shown in the following
table.
Homesteaded Properties
FY m14t15
?t20t5lr6
with 0.8% CPt
l/edian Averaqe Nbdian Averaoe
2014 Prelirinary Taxable Value $ 143,680. $351,189 $ 14{,829: $353,!X'9
City oJ Miani Begch
Operating
Voted Deb!
Total Mami Beach
$ 833
33
$ 2,035
81
$ 827
29
$ 2921
72
$ 866:$ 2,1'.t6 $ 856: $ 2,093
$ lhgge in Tax.9_9-......-.. -
. OpgratilS
v!t9d Dqbl..
Total Miani Beach
tLl l9'
3 (10) $(23',
Source: Mami-Dade County PropertyAppraiser's - 201+average-median-homestead-residential-values file
323
FY 2015/16 Proposed Millage Rate
July 31, 2015
Page I
Historical Perspective
!t is important to remember that in prior years, the City of Miami Beach significantly reduced tax
rates as property values increased. Between FY 1999/00 and FY 2009/10, property tax rates
declined approximately 2.8 mills. ln FY 2007108 alone, the property tax rate declined by
approximately 1.8 mills, with annual savings to the average homesteaded propertyof over$400.
ln addition, in FY 2005/06 and FY 2OOOI07, the City funded $200 and $300 homeowner
dividends paid to homesteaded property owners in the City.
Property Volue, Milloge ond Property Tox Levy
Toxoble
Volues Chort
Toxoble
Property Volues
(billionsl
F ino l,/Revlse
d Toxoble
Volues
lhillinnsl
A4illooe Rotes Tox lew (in millions)
Totol
Combined
Citywide
Milloac
Gnerol
Fund,/RD
A Millooe
Totol Tox Levy
includinq Debt
Generol
Fund Totol
lincluding S.
Poinle, ond
Renewol &
FY 1997 /98 $ 6.46 $ 6.40 9.2 r 00 7.4990 s 57.45 s 46.78
FY 1998/99 s 697 $ o.ez 8.9830 7.4990 $ 60.37 $ 44.66
FYt 999,/00 $ 7.66 $ 7.5A 8.6980 7.4990 $ 64.29 $ 47.36
FY2000/01 $ 8.37 s 8.22 8.5550 7.3990 $ 69.08 $ 49.75
tY2001 /o2 $ 9.40 $ 9.22 8.3760 7.2990 $ 75.97 $ 5437
FY2002/O3 $0.56 $o.41 8.3220 7 2990 $ 84.81 $ 6t.05
FY2003/04 $2.O9 $r .85 8. I 730 7.2990 $ 9s.39 $ 68.17
FY2004/O5 $4.O4 $3.86 8.1730 7.4250 $10.74 $ 7938
FY2005/06 $7.45 $7.1 5 8.O730 7.4810 $35.91 $t.69
FY2006/07 $7A $ 2226 7.6730 7.3740 $68.3 B $40.31
FY2OO7 /OB $ 2685 s 26.14 5.8970 5.6555 $50.42 $25.33
FY200B/O9 $ 2690 $l5 89 s.8930 5.6555 $50.59 $25.9A
FY2OO?/o s 2470 $ 23.24 5.9r 23 5.6555 $38.70 $5.73
FY20 o/$ 22.10 $ 20.97 6.5025 6.21 55 $36.55 $2.14
FY20 1/2 $ 2t 98 s 20]5 6.4539 6.1 655 $a / 1<$1.29
FY20 2/3 $ 23.07 $ 22.02 6.3477 6.0909 $39.1 0 $4.32
FY2O 3/4 $ 2466 $ 23.64 61163 5.8634 $43.26 $7.41
tY20 4/5 $ 27.10 $ 26.27 6.0237 5.7942 $55.rO $27.76
FY20 s/6 $ 30.70 5 9123 s.7092 $72.39 $43.16
Further, although the City increased the operating tax rate by 0.56 mills in FY 2010111, the City's
proposed combined millage rate is now the same as in FY 2009110 and rate remains
approximately 2.8 mills lower or 33o/o, than it was in FY 1999/00.
TOTAT COMBINED MITTAGE
9ewo4
0 ilmog
= {m
3.m
2.m
9.m
8.@ +
7.m
llm:lfltl
9@O@@q66074@OUr1314
Fisc.l Years
|ffiolln
324
FY 2015/16 Proposed Millage Rate
July 31 , 2015
Page 10
FIRST PUBLIC HEARING
The first public hearing on the proposed millage rates and tentative budgets for FY 2015116
must be held no later than 80 days or earlier than 65 days from the start of the TRIM ("Truth ln
Millage") calendar(July 1st). Otherguidelines are: 1)the public hearing cannot be scheduled on
a Sunday or on those days utilized by Miami-Dade County or the Miami-Dade County School
Board for their public hearings; and 2) if on a day other than Saturday, the public hearing must
be after 5:00 P.M.
Based on these guidelines, the first hearing must be held between September 3rd and
September 18th. These dates are unavailable for the following reasons:
September 6 and 13 Sundays
September 3 and 17 Proposed dates for Miami-Dade County Public Hearings
September 9 Miami-Dade County School Board Public Hearing
Of the remaining days, it is recommended that the first public hearing be set for Thursday,
September 10,2015, at 5:01 P.M., in the City Commission Chambers, City Hall, and 1700
Convention Center Drive, Miami Beach, Florida.
JLM/JW
e_
325
RESOLUTION NO.
A RESOLUTION OF THE MAYOR AND CITY COMMISSION
oF THE C!ry OF MIAMI BEACH, FLORIDA SEfiING 1) THE
PROPOSED OPERATING MILLAGE RATE; 2l THE
REQUIRED DEBT SERVICE MILLAGE RATE; 3) THE
CALCULATED "ROLLED-BACK" RATE; AND,4) THE DATE,
TIME, AND PLACE OF THE FIRST PUBLIC HEARING TO
CONSIDER THE MILLAGE RATES AND BUDGETS FOR
FISCAL YEAR (FY) 2015/16; FURTHER AUTHORIZING THE
CITY MANAGER TO TRANSMIT THIS INFORMATION TO
THE MIAMI.DADE COUNTY PROPERTY APPRAISER IN
THE FORM REQUIRED BY SECTION 200.065, FLORIDA
STATUTES.
WHEREAS, Section 200.065, Florida Statutes, has specified the method by which
municipalities may fix the millage rate and adopt an annual budget; and
WHEREAS, development of the FY 2015/16 budget began early in the yearand has
included discussions with the Commission that included a review of priorities, economic
projections and their impacts on the budget, preliminary projected revenues and
expenditures; and
WHEREAS, over the last several years, the City of Miami Beach has adopted
budgets that provided tax and fee relief while at the same time providing improved services
that address needs and priorities identified by the community and providing structural
changes that enhanced capital funding and reserve; and
WHEREAS, maintaining and enhancing the City's priorities have become
increasingly more.challenging in the last eight years: first through property tax reform
where tax rates were dramatically reduced; and subsequently with the decline in property
as well as increasing pension costs; and
WHEREAS, the July 1,2015, Certification of Taxable Value from the Miami-Dade
County Property Appraiser reflects a 13.3 percent increase in Citywide property tax values
from the July 1,2014, tax roll certification, a 15.2 percent increase in the City Center
Redevelopment Area (RDA), and a 12.9 percent increase in values outside the City Center
RDA, which impacts the City's General Fund revenues; and
WHEREAS, at the July 1"t and July 17th,2015, Finance and Citywide Projects
(FCWPC) meetings the consensus was to set the proposed operating millage in July at the
rate of the millage rate of 5.9123, which is 0.1114 less than the FY 2014/15 rate; and
WHEREAS, the City of Miami Beach is required to advise the Miami-Dade County
Property Appraiser of the Proposed Millage Rates, the "Rolled-Back" Rate, and the date,
time, and place of the first public hearing; and
326
WHEREAS, the January 1,2014, tax roll declined by $agZ.6 million between the
July 1 ,2014, valuation and the July 1 ,2015, valuation due to appeals, adjustments, etc. ,
which is part of the reason the FY 2015116 "rolled-back rate" is 0.7358 mills lowerthan the
FY 2014115 current operating millage rate; and
NOW THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND THE CITY
COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, that the following
recommendations of the Administration be and are hereby ratified for transmittal to the
Miami-Dade County PropertyAppraiser, as specified in Section 200.065, Florida Statutes:
1) Proposed Millage Rates for FY 2015116
General Operating 5.6009 mills
Capital Renewal & Replacement 0.1083 mills
Total Operating Millage 5.7092 mills
Debt Service
Total Combined Millage
2) "Rolled-Back" Rate
0.2031 mills
5.9123 mills
5.0584 mills
3) The first public hearing on the proposed millage rate and the tentative budgetfor FY
2015116 shall be held on Thursday, September 10, 2015 at 5:01 P.M., in the City
Commission Chambers, City Hall, 1700 Convention Center Drive, Miami Beach,
Florida.
PASSED and ADOPTED, this 31't day of July, 2015.
ATTEST:
MAYOR PHILIP LEVINE
APPROVED AS TO
FORM & I.ANGUAGE
& FOR$(ECUTION
E*{*J- r(2'l(rj
City Attoiney Date
RAPHAEL E. GRANADO, CITY GLERK
327
THIS PAGE INTENTIONALLY LEFT BLANK
328
COMMISSION ITEM SUMMARY
lntended Outcome Su
Item Summary/Recommendation :
FS 200.065, entitled "Method of Fixing Millage" establishes specific guidelines that must be used by all local
govemment entities, including dependent taxing districts like Normandy Shores in setting its millage (property tax)
rates. Not unlike its principal taxing authority (City of Miami Beach), Normandy Shores is also required to transmit
within 35 days from receipt of the Certification of Taxable Value (received July 1,2015), to the Miami-Dade
County Prope(y Appraiser, a proposed operating millage rate, the calculated rolled-back rate and the date, time,
and place of the first public hearing to consider the proposed operating millage rate and tentative budget for FY
2015t16.
The proposed FY 2015116 cunent service level (CSL) budget is $226,000. The CSL budget provides for
continual 24-hour security and line items which were requested and approved by the Normandy District
Homeowners'Association on July 17,2015. These include $10,000 forguard house upgrades and $3,700 for
plastic poles and lines leading up to the guard gate. The budget is 2% ($4,000) lower than the FY 2014115
adopted budget.
The proposed ad valorem millage recommended by the Administration is 1.0093 mills. This millage rate will fund
the current service level budget for the district as well as some remediation work to be performed to the
guardhouse, as requested by the homeowners' association. The proposed millage rate is 0.1212 mills (10.7%)
lower than the FY 2014115 adopted millage of 1.1305. This tax levy would generate proceeds of $154,636
($147,000 at 95%). The FY 2015116 proposed millage rate will require a majority vote.
The rolled-back rate is the millage rate required to produce the same level of property tax revenue in FY 2015/16
as collected in FY 2014115. The rate is calculated as 0.9956, or 0.1349 mills less than the millage rate adopted
for FY 2014115. The rolled-back millage rate tax levy would generate proceeds of $152,537. The difference
between the cunent service level and rolled-back rate levy is $2,099.
I.IDA lrElll R7 D
Condensed Title:
A RESOLUTION OF THE BOARD OF DIRECTORS OF THE NORMANDY SHORES LOCAL GOVERNMENT
NETGHBORHOOD TMPROVEMENT D|STRTCT SETTTNG 1) THE PROPOSED GENERAL OPERATING
MILLAGE RATE FOR THE NORMANDY SHORES NEIGHBORHOOD IMPROVEMENT DISTRICT; 2) THE
CALCULATED ROLLED-BACK RATE; AND, 3) THE DATE, TIME AND PLACE OF THE FIRST PUBLIC
HEARING TO CONSIDER THE OPEMTING MILLAGE RATE AND BUDGET FOR FISCAL YEAR (FY) 2015116;
FURTHER AUTHORIZING THE CIry MANAGER TO TRANSMIT THIS INFORMATION TO THE MIAMI-DADE
COUNTY PROPERTY APPRAISER IN THE FORM REQUIRED BY SECTION 200.065, FLORIDA STATUTES
Ensure expenditure trends are sustainable over the long term.
Supporting Data (Surveys, Environmental Scan, etc.):
ln the 2014 Community Survey, both residents and businesses reported the following areas for the City to
address in an effort to improve public safety:o Neighborhood safety during the day (Residents: 98%)
o Neighborhood safety during the evening/night (Residents: 88%)
Normandy Shores Local Government Neighborhood lmprovement Board meetings on April 13"', June
Julv gth. 2015
Financial lnformation:
Source of
Funds:
Amount Account
1
2
OBPI Total
Financial lmpact Summary The July 1, 2015, Certification of Taxable Value from the Miami-Dade Property
Appraiser reflects a 14.0 percent increase in property tax values from the July 1, 2014, tax roll certification. The
proposed millage rate for the FY 2015116 budget results in property taxes of $147,000 in the Normandy Shores
Neighborhood District Homeowners' Association.
& AAIAMIBHACH o*:e ?-31-lr329
1915.2015
!*ii:^,{&,'ffi#r{r,,{_W
City of Miomi Beoch, 1700 Convention Center Drive, Miomi Beoch, Florido 33139, www.miomibeochfl.gov
COMMISSION MEMORANDUM
Mayor Philip Levine and the City
FRoM: Jimmy Morales, City Manager
DATE: July 31 ,2015
SUBJECT: A RESOLUTION OF THE OF DIRECTORS OF THE NORMANDY
SHORES LOCAL GOVERNMENT NEIGHBORHOOD IMPROVEMENT DISTRICT
SETTING 1) THE PROPOSED GENERAL OPERATING MILLAGE RATE FOR
THE NORMANDY SHORES NEIGHBORHOOD IMPROVEMENT DISTRICT; 2)
THE CALGULATED ROLLED.BACK RATE; AND, 3) THE DATE, TIME AND
PLACE OF THE FTRST PUBLIC HEARING TO GONSIDER THE OPERATING
MILLAGE RATE AND BUDGET FOR FISCAL YEAR (FY) 2015/16; FURTHER
AUTHORIZING THE CITY MANAGER TO TRANSMIT THIS INFORMATION TO
THE MIAMI.DADE COUNW PROPERTY APPRAISER IN THE FORM
REQUIRED BY SECTION 200.065, FLORIDA STATUTES
ADMINISTRATION RECOMM ENDATION
The Administration recommends that the Mayor and City Commission, acting in its capacity
as the Board of Directors for the Normandy Shores Local Government Neighborhood
lmprovement District, adopt the attached resolution which authorizes the City Manager to
transmit the following information to the Miami-Dade County Property Appraiser:
1) Proposed Millage Rate for the Normandy Shores Neighborhood lmprovement
District for FY 2015116:
General Operating 1.0093 mills (0.1212 decrease from last year)
2) "Rolled-Back" Rate (Truth in Millage) 0.9956 mills
3) The first public hearing to consider the proposed Normandy Shores Neighborhood
tmprovement District operating millage rate and tentative budget for FY 2015116 shall be
Thursday, September 10,2015 at 5:01 p.m., in the City Commission Chambers, City
Hall, 1700 Convention Center Drive, Miami Beach, Florida.
330
FY 2015/16 Normandy Shores Proposed Millage Rate
July 31, 2015
Page 2 of 4
BACKGROUND
The Normandy Shores Local Government Neighborhood lmprovement District, a dependent
taxing district of its principal, the City of Miami Beach, was established in 1994 to provide
continual 24-hour security to this gated community; FY 2015116 represents it twenty-second
year of operation.
The District was established by Ordinance 93-2881, and has the authority "to levy an ad-
valorem tax on real and personal property of up to two mills, provided that no parcel of
property will be assessed more than $500 annually for such improvements". During FY
1998/99 the amount of annual funding to be provided by the City and the dependent status
of the District were issues discussed by the Finance and Citywide Projects Committee. A
determination was reached that the City would fund 35% of the annual cost of the operation
of the community gate guard. This cost will eventually be funded from the golf course
operation of the Normandy Shores Golf Course. !t was further agreed that the City would
continue to supplement the District at current levels until both issues were resolved. On
August 29, 2002, the Administration met with the Normandy Shores Local Government
Neighborhood lmprovement District representatives and agreed to eliminate the $500 cap
on the highest valued home in the District. The enabling legislation was adopted by the
Commission on September 25, 2002. This ensures that the City's contribution from the
General Fund remains at 35o/o of the operating budget of the District.
ANALYS!S
On July 1, 2015, the City received the 2015 Certification of Taxable Value from the Property
Appraiser's Office stating that the taxable value for Normandy Shores is $153,211,486
which includes an increase of $1,138,178 in new construction, renovation, etc. The
preliminary value represents an increase of $18,848,290 from the July 1 ,2014 Certification
of taxable Value of $134,363,196 (14.0 percent) and an increase of 14.4 percent over
2015's July 2014 value of $133,926,705. lt is important to note that the January 1,2014 tax
roll for Normandy Shores decreased by almost $436,491 (0.3%) between the July 1,2014
valuation and the valuation on July 1,2015, due to appeals, adjustments, etc.
Current Service Level Budget
The current service level budget reflects budget increases or decreases necessary to
provide the current level of services in the coming year. The proposed FY 2015116 current
service level budget is $226,000. This budget includes line items which were requested and
approved by the Normandy District Homeowners' Association on July 17, 2015. These
include $10,000 for guard house upgrades and $3,700 for plastic poles and lines leading up
to the guard gate. The budget is $4,000 (2%) higher than the FY 2014115 adopted budget.
The proposed ad valorem millage recommended by the Administration is 1.0093 mills. This
millage rate will fund the current service level budget for the District as well as some
remediation work to be performed on the guardhouse, as requested by the homeowners'
association. This millage rate ls 0.1212 mills (10.7%) lower than the FY 2014115 adopted
millage of 1.1305. This tax levy would generate proceeds of $154,636, which will be
budgeted at 95o/o, $ 1 47,000.
331
FY 2015/16 Normandy Shores Proposed Millage Rate
July 31, 2015
Page 3 of 4
Statutory Requirement
FS 200.065, entitled "Method of Fixing Millage" establishes specific guidelines that must be
used by all local government entities, including dependent taxing districts like Normandy
Shores in setting its millage (property tax) rates. Not unlike its principal taxing authority (City
of Miami Beach), Normandy Shores is also required to transmit within 35 days from receipt
of the Certification of Taxable Value (received July 1 , 2015), to the Miami-Dade County
Property Appraiser, a proposed operating millage rate, the calculated rolled-back rate and
the date, time, and place of the first public hearing to consider the proposed operating
millage rate and tentative budget for FY 2015116.
The rolled-back rate is the millage rate required to produce the same level of property tax
revenue on FY 2015116 as collected in FY 2014115. The rate is calculated as 0.9956, or
0.1349 mills less than the millage rate adopted for FY 2014115. The rolled-back millage rate
tax levy would generate proceeds of $152,537. The difference between the current service
level and rolled-back rate levy is $2,099. The adoption of the current service level millage of
1.0093 would require a majority vote of the Commission.
After setting the proposed operating millage rate for Normandy Shores, the City Commission
may, at any time prior to the final adoption, lower the millage rate; however any increase
above the proposed millage rate of 1.0093, if adopted, would require an expensive mailing
and advertising process to each property owner of Normandy Shores. Therefore, this
proposed millage rate is viewed as the ceiling.
Further, pursuant to State Statute, the City may elect to approve millage rates above the
rolled-back rate up to the constitutional cap of 10 mills subject to the following votes by the
Commission or referendum:
. Option l: A majority of the approval of the Commission Millage is required to approve a
millage up to 1.0551 (equivalent to a 1.96% increase in Property Tax revenues). The
1.960/o inerease is the state per capita personal income gain for the prior calendar year.
. Option ll: A two{hirds approval (5 of 7 votes) of the Commission is required to approve a
millage up to 1.1606 (equivalent to a 10% increase in Property Tax revenues above
Option l).
. Option lll: A unanimous approval of the Commission or referendum is required to
approve a millage above 1.1606 mills
First Public Hearinq
The first public hearing on the proposed operating millage rate and tentative budget for FY
2015116 must be held no later than 80 days (September 18th) or earlier than 65 days
(September 3rd) from the start of the TRIM calendar (July 1st). Other guidelines are: 1) The
public hearing cannot be scheduled on a Sunday or on those days utilized by Miami-Dade
County or the Miami-Dade County School Board for their public hearing; 2) lf on a day other
than Saturday, it must be held after 5:00 P.M.; and 3) must be held immediately following
discussion of the tentative millage and budget of its principal taxing authority (City of Miami
Beach).
332
FY 2015/16 Normandy Shores Proposed Millage Rate
July 31, 2015
Page 4 of 4
Based on these guidelines, the first hearing must be held between September 3rd and
September 18th. These dates are unavailable for the following reasons:
September 6 and 13 Sundays
September 3 and 17 Proposed dates for Miami-Dade County Public Hearing
September I Miami-Dade County School Board Public Hearing
Of the remaining days, it is recommended that the first public hearing be set for
Thursday, September 10,2015 at 5:01 P.M., in the City Commission Chambers, City Hall,
1700 Convention Center Drive, immediately following the City of Miami Beach's public
hearing.
JLM/JW
@
333
RESOLUTION NO.
A RESOLUTION OF THE BOARD OF DIRECTORS OF
THE NORMANDY SHORES LOCAL GOVERNMENT
NETGHBORHOOD IMPROVEMENT DISTRICT SETTING 1)
THE PROPOSED GENERAL OPERATING MILLAGE
RATE FOR THE NORMANDY SHORES NEIGHBORHOOD
IMPROVEMENT DISTRICT; 2l THE CALCULATED
ROLLED.BACK RATE; AND, 3) THE DATE, TIME AND
PLACE OF THE FIRST PUBLIC HEARING TO CONSIDER
THE OPERATING MILLAGE RATE AND BUDGET FOR
FISCAL YEAR (FY) 2015/16; FURTHER AUTHORIZING
THE CITY MANAGER TO TRANSMIT THIS INFORMATION
TO THE MIAMI.DADE COUNTY PROPERW APPRAISER
IN THE FORM REQUIRED BY SECTION 200.065,
FLORIDA STATUTES.
WHEREAS, Section 200.065, Florida Statutes, has specified the method
by which municipalities may fix the operating millage rate and adopt an annual budget
for dependent taxing districts; and
WHEREAS, the Mayor and City Commission of the City of Miami Beach,
acting as the Board of Directors of the Normandy Shores Local Government
Neighborhood lmprovement District propose that the District's General Operating
Millage Rate be set at 1.0093 mills and that the Rolled-Back Rate be set at 0.9956 mills;
and
WHEREAS, the City of Miami Beach is required to advise the Miami-
Dade County Property Appraiser of the Proposed Normandy Shores Neighborhood
lmprovement District Operating Millage Rate, the Rolled-Back Rate, and the date, time,
and place of the first public hearing.
NOW THEREFORE, BE IT DULY RESOLVED BY THE BOARD OF
DIRECTORS OF THE NORMANDY SHORES LOCAL GOVERNMENT
NETGHBORHOOD IMPROVEMENT DISTRICT, that the following recommendations of
the Administration be and are hereby ratified for transmittal to the Miami-Dade County
Property Appraiser, as specified in Section 200.065, Florida Statutes:
334
1)Proposed Normandy Shores Local Government Neighborhood lmprovement
District Operating Millage Rate for FY 2015116
General Operating
"Rolled-Back Rate"
ATTEST:
RAPHAEL E. GRANADO, CITY CLERK
1.0093 mills
0.9956 mills2)
3)The first public hearing on the proposed Normandy Shores Local Government
Neighborhood Improvement District operating millage rate and tentative budget
for FY 2015116 shall be held on Thursday, September 10, 2015 at 5:01 p.m., in
the City Commission Chambers, City Hall, 1700 Convention Center Drive, Miami
Beach, Florida.
PASSED and ADOPTED this 31't day of July, 2015
MAYOR PHILIP LEVINE
APPROVED AS TO
FORM & LANGUAGE
& FOR EXECUTION
335
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336
COMMISSION ITEM SUMMARY
Condensed Title:
A resolution of the Mayor and City Commission of the City of Miami Beach, Florida, accepting the written
recommendation of the City Manager (as set forth in the city commission memorandum accompanying this
resolution) and waiving, by 5/7th vote, the competitive bidding requirement, finding such waiver to be in the
best interest of the city, and approving and authorizing the City Manager and City Clerk to execute an
agreement between the City and Woosh Miami Beach LLC, in connection with the implementation,
nt and operation of a for a network of smart drinkinq water stations.
N/A
Data (Surveys, EnvironmentalScan, etc.): N/A
At the March 11,2015 Commission Meeting, Commissioner Grieco referred a discussion regardtng a
proposal by Woosh Water Systems (Woosh) to create a Smart Water Stations Network in the City to the
Sustainability and Resiliency Committee (SRC). On April 22,2015 the SRC recommended that Woosh
work with City staff to develop a pilot program. On July 8, 2015, the City Commission authorized Staff to
negotiate an agreement for implementation of a pilot program.
Woosh is a company internationally renowned for their Smart Water Stations and water "onthe-go"
concept. The water stations are computerized and are programed to provide filtered, chilled drinking water
to residents and visitors for a faction of the price of what a regular bottle of waterwould cost at a store. The
stations also have a bottle cleansing system feature for reusable bottles, thereby reducing plastic waste
and promoting carbon footprint awareness. These Smart Water Stations are Wi-Fi enabled, contain LCD
screens that can be used as City message boards and/or for advertisement purposes, feature online
monitoring and remote control, and have a powerful cooling system.
The Concessionaire Agreement would be for a three year pilot program for 25 water stations. The City
would pay for the upfront cost of approximately $140,000 to connect the utilities to the stations and Woosh
would reimburse the City by September 30, 2016. Woosh will also pay the City for monthly water and
electrical usage monthly for each station. The City would also receive 15% ol gross sales receipts
generated from advertisement and 25% of gross sales generated through sponsorship. The Administration
seeks the direction from the City Commission with respect to allowing advertising on the water stations,
either 1 ) on the touch screen and/or 2) on the body of the water stations (i.e. a wrap concept). The City's
Code would need to be amended to permit advertising on City property and review by the Planning goaid.
Underthe proposed term sheet, the City is projected to receive 12 percent (12o/o) in yeartwo and 15
percent (15%) thereafter of the operational revenues. ln order to permit Woosh to recapture its upfront
investment, they will have a grace period in which they are exempt from sharing revenues in connection
with the operational revenues for 18 months or until they generate gross sales receipts under the program
totaling $1,300,000, whichever occurs first. Woosh will be responsible for the design, permitting,
construction, installation and maintenance of the water stations. ln addition, residents will receive a
discounted rate on refills.
The City Manager recommends waiving, by 5/7th vote, the competitive bidding requirement, finding such
waiver to be in the best interest of the City. The Administration recommends aoorovino the Resoiution.
On April 22,2015, the Sustainability and Resiliency Committee recommended that Woosfr wo* witn City
staff to develop a pilot orooram.
Financial Information :
Source of
Funds:
Amount Account
1
OBPI Total
AGENDA fiETT R7EE MIAMIBEACH DATE337
g MIAMIBEACH
City of Miomi Beoch, 'l ZO0 Convention Center Drive, Miomi Beoch, Florido 33139, www.miomibeochfl.gov
COMMISSION MEMORANDUM
TO:Mayor Philip Levine and Members offthe City
FROM: Jimmy L. Morales, City Manager
DATE: July 31 ,2015
SUBJECT: A RESOLUTION OF THE MAYORTAND CITY COMMISSION OF THE
CITY OF MIAM! BEACH, FLORIDA, ACCEPTING THE WRITTEN
RECOMMENDATION OF THE CrrY MANAGER (AS SET FORTH !N
THE CITY COMMISSION MEMORANDUM ACCOMPANYING THIS
RESOLUTTON) AND WA!V!NG, BY 5/7TH VOTE, THE COMPETIIVE
BIDDING REQUIREMENT, FINDING SUCH WAIVER TO BE IN THE
BEST INTEREST OF THE CITY, AND APPROVING AND
AUTHORTZTNG THE CITY MANAGER (ON BEHALF OF THE GITY)
AND CITY CLERK TO EXECUTE AN AGREEMENT WITH WOOSH
MIAMI BEACH LLC, IN GONNECTION WITH THE
IMPLEMENTATION, MANAGEMENT AND OPERATION OF A PILOT
PROGRAM FOR A CITYWIDE NETWORK OF SMART DRINKING
WATER STAT|ONS, FOR AN rNlTlAL TERM OF THREE (3) YEARS,
wtTH oNE RENEWAL OPTTON OF ONE (1) YEAR, AT THE CITY'S
SOLE DISCRETION; WHIGH AGREEMENT SHALL, AT A MINIMUM,
CONTAIN THE ESSENTIAL PROVISIONS CONTAINED IN THE
TERM SHEET SET FORTH AS EXHIBIT "A" TO THIS RESOLUTION;
AND WHICH FINAL NEGOTIATED AGREEMENT SHALL BE
SUBJECT TO LEGAL REVIEW AND FORM APPROVAL BY THE
CITY ATTORN EY'S OFFICE.
BACKGROUND
At the March 11,2015 Commission Meeting, Commissioner Grieco referred a discussion
regarding a proposal by Woosh Water Systems (Woosh) to create a Smart Water
Stations Network in the City to the Sustainability and Resiliency Committee (SRC). On
April 22,2015 the SRC recommended that Woosh work with City staff to develop a pilot
program. On July 8, 2015, the City Commission authorized staff to negotiate an
agreement for implementation of a pilot program.
ANALYSIS
Woosh is a company internationally renowned for their Smart Water Stations and water
"onthe-go" concept. The water stations are computerized and are programed to provide
filtered, chilled drinking water to residents and visitors for a fraction of the price of what a
regular bottle of water would cost at a store. The stations also have a bottle cleansing
system feature for reusable bottles, thereby reducing plastic waste and promoting
carbon footprint awareness. These Smart Water Stations are Wi-Fi enabled, contain 12"
multi-purpose LCD screens that can be used for directional, instructional or advertising
338
Woosh Smart Water Sfafions
July 29, 2015
Page 2 of 3
purposes. The screens also feature online monitoring and remote operational control.
The technical specifications are provided in Attachment A.
Woosh has submitted the attached term sheet for the installation and operation of water
stations throughout the City (Attachment B). The Concessionaire Agreement would be
for a three year pilot program for 25 water stations. The City would pay for the upfront
cost of approximately $t40,000 to connect the utilities to the stations and Woosh would
reimburse the City by September 30, 2016. Woosh will also pay the City for water usage
and a flat $5.00 per station fee for electricity monthly.
The business model developed by Woosh also includes revenues from advertisement
and sponsorship. The City would receive 15o/o of gross sales receipts generated from
advertisement and 25% of gross sales generated through sponsorship. The
Administration seeks the direction from the City Commission with respect to allowing
advertising on the water stations, either 1) on the touch screen and/or 2) on the body of
the water stations (i.e. a wrap concept). The City's Code would need to be amended to
permit advertising on City property and review by the Planning Board.
Underthe proposed term sheet, the City is projected to receive 12 percent (12o/o) in year
two and 15 percent (15o/o) thereafter of the operational revenues. ln order to permit
Woosh to recapture its upfront investment, they will have a grace period in which they
are exempt from sharing revenues in connection with the operational revenues for 18
months or until they generate gross sales receipts under the program totaling
$1,300,000, whichever occurs first. Attachment C provides a breakdown of projected
expenses and revenue generated over the three year pilot program.
Woosh will be responsible for the design, permitting, construction, installation and
maintenance of the water stations. They will also have a full-time employee to oversee
daily operations and administer the program. The units are connected to a dashboard
program that provides historical and real time data from the water stations including
revenue, water usage, and number of plastic water bottles saved. ln addition to having
access to this data, the City will also receive monthly reports on gross receipts, water
usage and maintenance.
Residents will receive a discounted rate on refills; residents will by $0.35 per 20 oz. fill
and non-residents will be charged $0.50 per 20 oz. fill. Attachment D provides a further
breakdown of the price per fill. The pilot program will be reviewed by the Administration
and if the program proves successful, the City may thereafter consider a longer term
agreement and/or increasing the number of water stations servicing the City, based
upon agreed upon financial terms.
CONCLUSION
The Administration recommends the approving the resolution, approval of the essential
terms negotiated by staff, a copy of which are attached hereto and incorporated herein
by reference as Exhibit "A", which will be formalized in a concession agreement, having
an initial term of three (3) years, with one (1) option for a period of one (1) year,
commencing from the rollout date of the program. Additionally, the City Manager
recommends waiving, by 5l7th vote, the competitive bidding requirement in connection
with this concession agreement, finding such waiver to be in the best interest of the City.
339
Woosh Smart Water Sfations
July 29, 2015
Page 3 of 3
Attachments: A - Water Station Technical Specifications
B - Woosh Smart Water Stations Term Sheet
C - Woosh Pilot Project Financial Terms
D - Woosh Estimated Price List
wrctc@esw
340
RESOLUTION NO.
A RESOLUTION OF THE MAYOR AND CITY GOMMISSION OF THE CITY OF
MIAM! BEACH, FLORIDA, ACCEPTING THE WRITTEN RECOMMENDATION
oF THE CITY MANAGER (AS SET FORTH tN THE ctTy COMMISSION
MEMORANDUM ACCOMPANYING THIS RESOLUTTON) AND WAIVING, By
5I7TH VOTE, THE COMPETITIVE BIDDING REQUIREMENT, FINDING SUCH
WAIVER TO BE IN THE BEST INTEREST OF THE C!TY, AND APPROVING
AND AUTHORTZTNG THE CITY MANAGER (ON BEHALF OF THE CtTy) AND
CITY CLERK TO EXECUTE AN AGREEMENT WITH WOOSH MTAMI BEACH
LLC, IN CONNECTION WITH THE IMPLEMENTATION, MANAGEMENT AND
OPERATION OF A PILOT PROGRAM FOR A CITYWIDE NETWORK OF SMART
DRINKING WATER STATIONS, FOR AN rNrTtAL TERM OF THREE (3) YEARS,
wtTH oNE RENEWAL OpTtON OF ONE (1) YEAR, AT THE CtTy'S SOLE
DISCRETION; WHIGH AGREEMENT SHALL, AT A MINIMUM, CONTATN THE
ESSENTIAL PROVISIONS CONTAINED IN THE TERM SHEET SET FORTH AS
EXHIBIT "A" TO THIS RESOLUTION; AND WHICH FINAL NEGOTIATED
AGREEMENT SHALL BE SUBJECT TO LEGAL REVIEW AND FORM
APPROVAL BY THE CITY ATTORNEY'S OFFICE.
WHEREAS, it is in the interest of the public health, safety, and welfare of its residents and
visitors to reduce litter and pollutants on land and in the waters of the City of Miami Beach ("City");
and
WHEREAS, Woosh Water Systems (Woosh) is internationally renowned for their Smart
Water Stations that are installed in public areas to provide the public with filtered water "on-the-go";
and
WHEREAS, this service provides an alternative to non-reusable plastic bottles; and
WHEREAS, the Smart Water Stations are computerized and provide to the consumer
filtered, chilled drinking water at a fraction of the cost than traditional bottled water; and
WHEREAS, the Smart Water Stations are Wi-Fi enabled to allow for online monitoring and
remote control and remote access to reports relating to usage and revenue; and also includes LCD
screens that can be used as City message boards and/or for advertisement purposes; and
WHEREAS, on April 22,2015, the Sustainabilig and Resiliency Committee recommended
that City staff negotiate a pilot program with Woosh; and
WHEREAS, on July 8, 2015, the City Commission authorized staff to negotiate an
agreement for the implementation of a pilot program; and
WHEREAS, the City Manager recommends waiving, by 5/7th vote, the competitive bidding
requirement, finding such waiver to be in the best interest of the City; and
WHEREAS, the Administration recommends the approval of the essential terms negotiated
by staff, a copy of which are attached hereto and incorporated herein by reference as Exhibit "A",
341
which will be formalized in a concession agreement, having an initial term of three (3) years, with
one (1) option for a period of one (1) year, commencing from the rollout date of the program.
NOW, THEREFORE, BE !T DULY RESOLVED BY THE MAYOR AND THE CITY
COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, that the Mayor and City
Commission hereby accept the written recommendation of the City Manager (as set forth in
the City Commission memorandum accompanying this resolution) and waiving, by 5/7th
vote, the competitive bidding requirement, finding such waiver to be in the best interest of
the city, and approving and authorizing the City Manager (on behalf of the City) and City
Clerk to execute an agreement with Woosh Miami Beach LLLC, in connection with the
implementation, management and operation of a pilot program for a citywide network of
smart drinking water stations, for an initial term of three (3) years, with one renewal option of
one (1) year, at the City's sole discretion; which agreement, shall, at a minimum, contain the
essential provisions contained in the term sheet set forth as Exhibit "A" to this Resolution;
and which final negotiated agreement shall be subject to legal review and form approval by
the City Attorney's Office.
PASSED AND ADOPTED this
ATTEST:
day of 2015.
Philip Levine, Mayor
Rafael E. Granado, City Clerk
,8R'^f8YiR8il?'
a ron EXEpuTloN
\&'\-; -JslY
342
1.
2.
Term Sheet
Goncession Aoreement with Woosh Miami Beach LLC
for Pilot Proqram of Smart Water Stations (Proqram)
Goncessionaire Name: "Woosh Miami Beach LLC, a Florida limited liability company"
Ag reement Term/Timeline:
A. lnitial three (3) year term, commencing from the Operational Rollout Date; with one
(1) renewal option for one (1) year, upon ninety (90) days notice, at City's sole
discretion, and if Concessionaire is not in default.
B. 60 days from Etfective Date, City to approve Concession locations for the 25 water
stations.
C. 90 days after City approves location of stations, to roll out stations (including
manufacture, set-up and permitting; and application to required City land use boards
(HPB and DRB), as applicable.
D. "Operational Rollout Date" shall be the earlier of: (1) roll-out of the 25 water stations
to the public; or (2) five (5) months from Effective Date. The City Manager, at his
sole discretion, will have the ability to extend the Operational Rollout Date.
Gity's Contribution:
A. lnitial upfront provision of Utility Connections for water (including water meter) and
electricity (collectively, Utility Connections) for each water station in the Program, in
the estimated amount of $140,000. Concessionaire shall reimburse the City the initial
outlay for the Utility Connections during the first agreement year; however, no later
than September 1 ,2016.
B. Banner/link for Program on City's website.
C. During first year of Agreement: (1) monthly feature in Miami Beach Magazine and
other placements; (2) Co-Present with stations in conferences which the City is
taking active party (i.e. Emerge cities); and (3) Quarterly e-mail blasts to City
employees.
D. Regular PSA features on Channel 77, on quarterly basis during initial term of
Agreement.
Utilities:
A. Water - (using City meter) monthly payment to City for water usage.
B. Electricity - monthly fee of $5.00 per Woosh Station.
Concession Fees:
A. Advertisement Revenues (15%)
15o/o of gross sales receipts received by Concessionaire, which are generated from
any approved advertisement on the water stations (Advertisement Revenues), shall
be paid to the City. Concessionaire has requested that it be permitted to place
advertisements on the following portions of the water stations: 1) the touch screen of
the water station and 2) the body of the water station (i.e. as a wrap). This will
require the initial approval, by the City Commission, to amend the City Code to
permit the requested advertisement privileges (as to options 1 and/or 2); the
3.
4.
5.
EXHIBlT
/\
bsequent review by the Planning Board; and final approval, by the City
343
6.
Commission, of an amendment to the City Code. The City Code amendment will be
submitted for approval after Concessionaire obtains the first full building permit. lf
Concessionalre is not able to secure the requisite approvals as to option 1
and/or 2 of the requested advertisement privileges, Goncessionaire shall have
thirty (30) days to terminate the Agreement for convenience, with each party
bearing its own costs and fees, and thereafter released from any further
obligation under the Agreement. The Grace Period shall not apply to
Advertisement Revenues.
B. Sponsorship Revenues (25o/o)
25o/o of gross sales receipts received by Concessionaire, which are generated
solely from any approved sponsorship (Sponsorship Revenues), shall be paid to
the City. Any permitted sponsorship shall be subject to prior written approval of
the City Manager. The Grace Period shall not apply to Sponsorship Revenues.
C. Percentage of Operational Revenues (10% - 15o/o)
The City shall be entitled to receive a percentage of gross sales receipts
generated from operating under the Agreement (Operational Revenues), which
will be separate from and in addition to Advertising and Sponsorship Revenues),
as follows. 10% during the first agreement year; 12o/o during the second
agreement year; and 15% during the third agreement year.
D. Grace Period for Operational Revenue Sharing- From the Operational Rollout
Date of the Agreement and continuing 1) during the first eighteen (18) months
following the Operational Rollout Date, or 2) until Concessionaire generates
revenues under the Program (inclusive of Advertising, Sponsorship and
Operational Revenues) totaling $1,300,001.00, whichever occurs first,
Concessionaire shall be exempt from any revenue sharing with the City under
the Operational Revenue category solely (except relating to the Utility
Connection up-front cost, which will be reimbursed to the City no later than
September 1, 2016), in order to provide Concessionaire with an opportunity (but
without a guaranty) to recapture its agreed upon estimated upfront investment.
E. Gross sales receipts generated from the sale or distribution of a pre-paid card
shall be exempted from revenue sharing until point of sale, as all purchases/uses
at the water stations shall be booked as a sale at each water station, for
purposes of revenue sharing, based upon the approved price list.
lmprovements, Maintenance, Repair and Operation: Concessionaire shall be
responsible for the design, permitting, construction, installation and maintenance of the
water stations.
Operation: Concessionaire shall designate a competent full{ime employee to oversee
the day{o-day operations, who will act as the administrator for the Program, as the
primary point of contact for the City. The water stations shall be in operation twenty-four
hours per day, 365 days per year.
7.
344
8. Price Schedules: Pursuant to the attached price list, which includes $0.35 per 20 oz. fill
for City residents; and $0.50 per 20 oz. fill for non-City residents.
9. lnsurance Requirements (Subject to revieMmodification by Risk Management):
A. General Liability insurance, in the amount of $1,000,000.00 (City an additional
insured/ waiver of subrogation rider);
B. Worker's Compensation, pursuant to Florida law;
C. Automobile lnsurance (owned, leased, and hired vehicles and non-ownership
liability, not less than $1,000,000; and
10. Performance Bond: $100,000.00 cash or performance bond, due within thirty (30) days
from obtaining first full building permit, to ensure Concessionaire's performance under
the Agreement.
11. Audit and lnspection of Records and Reports/APl Access: Concessionaire shall
maintain records as would be required by an independent CPA, pursuant to generally
accepted accounting principles.
A. Concessionaire shall provide the City shall have API access or a dashboard for
purposes of obtaining historical data from water stations (revenue, water usage,
number of plastic water bottles saved etc.).
B. Reports (intervals may be changed at discretion of City Manager or designee):i. Monthly report of gross receipts;
ii. Monthly water usage report;
iii. Monthly maintenance report.
12. Additional Terms: Agreement shall include additional standard terms, including, without
limitation, Default and Termination, Limitation of Liability, lndemnification, and other
provisions typical of City concession agreements.
345
ATTACHMENT A
WOOSH WATER SYSTEMS LTD.
Water Station Technical Specifications
7tzLtZOLs
346
Mb
posrtive drinking
Technical specif ication
. Model: Wooshl Outdoor
. Raw Water: City's mains
. Capacity: Up to24 Gallons/hour. Up to 90 people per hour
o Power Consumption* per Fill = 0.009 KWH.
. Power Consumption per Rinse = 0.008 KWH.
. CatalogueNumber: W00010500-110V
. Water inlet connection: 3/8" pipe PE type
. Drain connection:318" pipe PE type
. Electrical connection requirements: 1 phase, 110,60 Hz,20A Line
. Electric & water connections: Underground infrastructure required
. Required area: 39.5"x39.5", 29" deep
r Water inlet pressure : Min: 1 Bar, Max I
o Water inlet flow: min 2 GPM
(*) Our power consumption tests were made under extreme conditions of surroundint temperature 95"F/ direct sunlighU
40 fills per hour/tap water inlet temperature 7Z"F
347
positive drrnking
Fillrate:1GPM
Avg. Fill process: 13 seconds
Fills Any type of bottle / glass / cup etc.
Regulated fixed filling quantities: 5 - 33 oz. (150-1000 ml)
Cooling system controls and maintains outlet water's temperature.
Temperature can be modified manually by the technician.
Range:45'F - 55'F f)
Bottles
cleansing
system
Excess water
collection unit
Water
dispensing
system
h/ater treatment
unit
Water treatment unit ensures the outlet water's quality, improves taste
and removes bad odors. Prevents bacterial growth and contamination.
Treatment unit is automated (PLC operated)
Water cooling
system
0n site, 0zone (0a) based bottle cleansing system.
Bottle disinfection and removal of bad taste & odor. Encourages the end
user to re -use his own bottle and enjoy the water quality.
Cleansing process: L5 Seconds
Suitable for reusable bottles
Collection and disposal of excess water to drain.
No water spillage around the station
3
348
posrtive drinking
Touch screen
operated
Bottle presence
sensors
1 Bottle presence sensor ( Fill process)
1 Bottle presence sensor ( Cleansing process )
Prevents waste of water, water spillage or misuse of station
Magnetic cards
reader
Station is touch screen operated.
Suitable for outdoor usage- 1P55, anti-reflection and sunlight protection.
5 mm thick reinforced glass protection
1Z.1" size
Allows station operation with wooshTag* or other cross-platform RF tags
Allows station operation with magnetic cards, credit cards or other cross-
platform magnetic cards
Remote control I crttor.r service and assistance from service centersystem
| *.rno,. monitoring and alarms
Remote start-up / shut-down
3G (cellulaQ remote control unit allow for remote connection to each
station
Data collected from stations is stored and analyzed in a main data base
(SQL servefl with a back office control and management system.
Data mining tools for statistic information.
4
349
posrtlve rJrrnkrng
lnstallation
The woosh'stations installation is "plug-n-play". The assembly of the stations is done in
the factory. The outdoors installation requires the following elements:
. Electric connection: 1. phase, 1L0, 60 Hz, 20A Line.
o Station's Nominal current: t4.67 amps at 110 volts.
o Electrical connection cable: 3X2.5 mmz TYPE - XLPE
o lnstall through circuit Breaker 1 X 204. Under earth leakage protection relay.
o See the power line connection in Figure 5.
. Water connection:A 3/8" pipe is required. The pipeline connects to the station
underground in a protected l" plastic pipe. See Figure 5.
. Drain connection:The station generates a minimum amount of water excess when
operating. The drainage pipeline connects underground from the station in a 3/8"
pipe a drainage system. See Figure 5
. Tools & Machinery required:
"ffi,. . i::;i
SmallCrane Max weight- 300 KG
Cargo Straps
Small Excavator / Shovel
Gravel 15 cubic feet
Security Torx (pin-in Torx) screwdriver Head= O
Electricity screwdriver Flat head
Teflon tape
Wrench 3/4" (19mm), 15/15"(24mm)
Measuring tape
Pipe cutter
Cable cutter For electric wire
Level
Anti-Seize Lubricant for stainless steel
350
positive drinkrng
Dimensions
Figure 1
6
351
1.
2.
ATTACHMENT B
Term Sheet
Concession Aqreement with Woosh Miami Beach LLG
for Pilot Proqram of Smart Water Stations (Proqraml
Goncessionaire Name: "Woosh Miami Beach LLC, a Florida limited liability company"
Agreement Term/Timeline:
A. lnitial three (3) year term, commencing from the Operational Rollout Date; with one
(1) renewal option for one (1) year, upon ninety (90) days notice, at City's sole
discretion, and if Concessionaire is not in default.
B. 60 days from Effective Date, City to approve Concession locations for the 25 water
stations.
C. 90 days after City approves location of stations, to roll out stations (including
manufacture, set-up and permitting; and application to required City land use boards
(HPB and DRB), as applicable.
D. "Operational Rollout Date" shall be the earlier of: (1) roll-out of the 25 water stations
to the public; or (2) five (5) months from Effective Date. The City Manager, at his
sole discretion, will have the ability to extend the Operational Rollout Date.
City's Gontribution:
A. lnitial upfront provision of Utility Connections for water (including water meter) and
electricity (collectively, Utility Connections) for each water station in the Program, in
the estimated amount of $140,000. Concessionaire shall reimburse the City the initial
outlay for the Utility Connections during the first agreement year; however, no later
than September 1 ,2016.
B. Banner/link for Program on City's website.
C. During first year of Agreement: (1) monthly feature in Miami Beach Magazine and
other placements; (2) Co-Present with stations in conferences which the City is
taking active party (i.e. Emerge cities); and (3) Quarterly e-mail blasts to City
employees.
D. Regular PSA features on Channel 77, on quarterly basis during initial term of
Agreement.
Utilities:
A. Water - (using City meter) monthly payment to City for water usage.
B. Electricity - monthly fee of $5.00 per Woosh Station.
Goncession Fees:
A. Advertisement Revenues (15%)
15o/o of gross sales receipts received by Concessionaire, which are generated from
any approved advertisement on the water stations (Advertisement Revenues), shall
be paid to the City. Concessionaire has requested that it be permitted to place
advertisements on the following portions of the water stations: 1) the touch screen of
the water station and 2) the body of the water station (i.e. as a wrap). This will
require the initial approval, by the City Commission, to amend the City Code to
permit the requested advertisement privileges (as to options 1 and/or 2); the
subsequent review by the Planning Board; and final approval, by the City
3.
4.
5.
352
6.
7.
Commission, of an amendment to the City Code. The City Code amendment will be
submitted for approval after Concessionaire obtains the first full building permit. !f
Concessionaire is not able to secure the requisite approvals as to option 1
and/or 2 of the requested advertisement privileges, Concessionaire shall have
thirty (30) days to terminate the Agreement for convenience, with each party
bearing its own costs and fees, and thereafter released from any further
obligation under the Agreement. The Grace Period shall not apply to
Advertisement Revenues.
B. Sponsorship Revenues (25o/o)
25o/o of gross sales receipts received by Concessionaire, which are generated
solely from any approved sponsorship (Sponsorship Revenues), shall be paid to
the City. Any permitted sponsorship shall be subject to prior written approval of
the City Manager. The Grace Period shall not apply to Sponsorship Revenues.
C. Percentage of Operational Revenues (10% - 15o/o)
The City shall be entitled to receive a percentage of gross sales receipts
generated from operating under the Agreement (Operational Revenues), which
will be separate from and in addition to Advertising and Sponsorship Revenues),
as follows: 10o/o during the first agreement year; 12o/o during the second
agreement year; and 15% during the third agreement year.
D. Grace Period for Operational Revenue Sharing- From the Operational Rollout
Date of the Agreement and continuing 1) during the first eighteen (18) months
following the Operational Rollout Date, or 2) until Concessionaire generates
revenues under the Program (inclusive of Advertising, Sponsorship and
Operational Revenues) totaling $1,300,001.00, whichever occurs first,
Concessionaire shall be exempt from any revenue sharing with the City under
the Operational Revenue category solely (except relating to the Utility
Connection up-front cost, which will be reimbursed to the City no later than
September 1, 2016), in order to provide Concessionaire with an opportunity (but
without a guaranty) to recapture its agreed upon estimated upfront investment.
E. Gross sales receipts generated from the sale or distribution of a pre-paid card
shall be exempted from revenue sharing until point of sale, as all purchases/uses
at the water stations shall be booked as a sale at each water station, for
purposes of revenue sharing, based upon the approved price list.
lmprovements, Maintenance, Repair and Operation: Concessionaire shall be
responsible for the design, permitting, construction, installation and maintenance of the
water stations.
Operation: Concessionaire shall designate a competent full-time employee to oversee
the dayto-day operations, who will act as the administrator for the Program, as the
primary point of contact for the City. The water stations shall be in operation twenty-four
hours per day, 365 days per year.
353
8. Price Schedules: Pursuant to the attached price list, which includes $0.35 per 20 oz. frll
for City residents; and $0.50 per 20 oz. fill for non-City residents.
9. lnsurance Requirements (Subject to reviedmodification by Risk Management):
A. General Liability insurance, in the amount of $1,000,000.00 (City an additional
insured/ waiver of subrogation rider);
B. Worker's Compensation, pursuant to Florida law;
C. Automobile lnsurance (owned, leased, and hired vehicles and non-ownership
liability, not less than $1,000,000; and
10. Performance Bond: $100,000.00 cash or performance bond, due within thirty (30) days
from obtaining first full building permit, to ensure Concessionaire's performance under
the Agreement.
11.Audit and lnspection of Records and Reports/APl Access: Concessionaire shall
maintain records as would be required by an independent CPA, pursuant to generally
accepted accounting principles.
A. Concessionaire shall provide the City shall have API access or a dashboard for
purposes of obtaining historical data from water stations (revenue, water usage,
number of plastic water bottles saved etc.).
B. Reports (intervals may be changed at discretion of City Manager or designee):i. Monthly report of gross receipts;
ii. Monthly water usage report;
iii. Monthly maintenance report.
12. Additional Terms: Agreement shall include additional standard terms, including, without
limitation, Default and Termination, Limitation of Liability, lndemnification, and other
provisions typical of City concession agreements.
354
ATTACHMENT C
IYoorh mtmrtrd cc lirt - Milml Bcech
fill emount ml pdce (cr$mrtcdl
200 s 035
350 s 045
500 s 050
600 s 055
750 s 065
1 000 s 080
Bottle cleansinq (additionall s 0 15
('lresidents will be enUtled to up to 30rr discount
355
ATTACHMENT D
WOOSH WATER SYSTEMS LTD.
Miami Beach Pilot Project - Financial Terms
7t22t20L5
356
positive drinking
a.
b.
Miami Beach Pilot Proiect - Financial Terms
Woosh's total investment= $1.27 4.500
Woosh starts to share revenues once reaching the breakeven
point, or after 18 months, whatever comes first.
City's Revenue Share (*Based on the concession fees below)c.
laoEx (lncludino infrastructure costs)-qA?q ooo s0 s0 -s625 000
Set Uo Costs -s1 1 5 000 -$1 15 000
Vlarketinq -s150.000 -s100 000 -$100 000 -s350 000
ncome $8S4.825 $1 .002.204 sl 252.755 s3.149.784
)pEx (lncludinq water and electricitv costs)-s384 500 -q?R4 qon -q144 60n -s1 153 500
lity's Share -$74,703 -$187,913 -$262,617
tJet Profit -$379,675 $63,326 $643,667 $643,667
fohl lnvestment -$1.274.500
Year 1 Year 2 Year 3 Total
$74,703 $187,913 $262,617
357
THIS PAGE INTENTIONALLY LEFT BLANK
358
r.-,.-.
OFFICE OF THE CITY ATTORNEY
Mayor Philip Levine
Members of the City Commission
City Manager Jimmy Morales
COMMISSION MEMORANDUM
TO:
FROM:
DATE:
SUBJECT:
Raul J. Aguila, City Attorne4fl*(0g,(-
July 31 ,2015
RESOLUTION CALLING FOR A NOVEMBER 3, 2015 SPECIAL ELECTION FOR
THE PURPOSE OF SUBMITTING TO THE ELECTORATE OF THE CITY OF
MIAMI BEACH, FLORIDA, A QUESTION ASKING WHETHER MIAMI BEACH
clTY CHARTER SECTTON 1.03(bX4) SHOULD BE AMENDED TO REQUTRE A
4NTH PLANNING BOARD VOTE AND A 7/8TH VoTE oF THE MtAMt BEAcH
REDEVELOPMENT AGENCY TO APPROVE THE SALE, EXCHANGE,
CONVEYANCE OR LEASE OF 10 YEARS OR LONGER OF PROPERW OWNED
BY THE MIAMI BEACH REDEVELOPMENT AGENCY.
Pursuant to the request of Commissioner Michael Grieco, the attached Resolution has
been prepared calling for a City of Miami Beach Special Election to be held on November 3,
2015 for the purpose of submitting to the City's voters the following question:
Amendins Charter Section 1.03(bX4) to Provide for
Alienabilitv of Miami Beach Redevelopment Aqencv
("Agencv") Propertv.
Charter Section 1.03(bX4) requires the sale, exchange,
conveyance or lease of ten years or longer of City-ownedpropefi (not requiring voter approval or otheruvise
addressed in City Gharter) to be approved by Planning
Board's 417 vote and City Commission's 5/7 vote. Should
Section 1.03(bX4) be amended to require Planning Board's
417 vote and Miami Beach Redevelopment Agency's 7/8 vote
to approve sale, exchange, conveyance or lease of ten years
or longer of Agency property?
This proposal seeks to amend Section 1.03(bX4) of the City's Charter by providing that
the sale, exchange, conveyance or lease of ten years or longer of property owned by the Miami
Beach Redevelopment Agency (Agency) shall require approval by a majority 417 vote of all
members of the Planning Board and a 7/8 vote of the Agency. This requirement would be
comparable to the provisions in Charter Section 1.03(bX4) which require a 417 vote of all
members of the Planning Board and a 6/7 vote of the City Commission to approve the sale,
exchange, conveyance or lease of City-owned properties that do not require voter approval and
that are not otherwise addressed in Charter Section 1.03. The requisite Agency vote would be
Agenda ltem F? F
Date359
November 3, 2015 Special Election
July 31, 2015
Page 2
7/8 due to the fact that the Agency has eight members.l
Currently, the City Charter does not address requirements for the alienation of property
owned by the Agency; however, the provisions in Chapter 82, Article ll, of the City Code,
entitled "Sale or Lease of Public Property," have been interpreted to apply to the sale or lease of
Agency property and the requirements therein have been utilized when Agency property has
been sold or leased. Pursuant to Article ll of Chapter 82 of the City Code, the requirements for
the sale or lease of City and Agency properties include review by the City's Finance and
Citywide Projects Committee and a public hearing; a written analysis by the City's Planning
Department for the sale or lease of property for a term of more than ten years; and an
advertised public bidding process and an independent appraisal requirement, both of which may
be waived upon a determination that the public interest would be served by such waiver. The
proposed amendment to Section 1.03(bX4) would specifically provide for a requirement in the
City's Charter of a 417 Planning Board vote and a 718 Agency vote to approve the sale,
exchange, conveyance or lease of ten years or longer of Agency property.
Pursuant to directive of the Miami-Dade County Elections Department, the final date by
which the City may adopt Resolutions placing ballot measures on the November 3,2015 ballot
is September 4,2015. Accordingly, this Resolution is timely presented to the City Commission
for adoption.
F:\ATTO\TURN\COMMMEMO\Spec Election Memo Charter Sec. 1.03(bXa) Nov. 3, 201S.docx
1 Pursuant to the Third Amendment to the lnterlocal Cooperation Agreement between Miami-Dade
County, the City of Miami Beach, and the Miami Beach Redevelopment Agency dated January 20,2015,
the membership of the Agency was expanded to include one County Commission member for County
Commission District 5 in addition to the seven City Commission members.
360
RESOLUTION NO.
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF
MIAMI BEAGH, FLORIDA, GALLING FOR A NOVEMBER 3, 2015 SPEGIAL
ELECTION FOR THE PURPOSE OF SUBMITTING TO THE ELECTORATE OF
THE GITY OF MIAMI BEACH, FLORIDA, A QUESTION ASKING WHETHER
MIAMI BEACH CITY CHARTER SEGTTON 1.03(bX4) SHOULD BE AMENDED TO
REQUTRE A 4NfH PLANNING BOARD VOTE IruD e 7/8TH VoTE oF THE MIAMI
BEACH REDEVELOPMENT AGENCY TO APPROVE THE SALE, EXCHANGE,
CONVEYANCE OR LEASE OF 10 YEARS OR LONGER OF PROPERTY OWNED
BY THE MIAMI BEACH REDEVELOPMENT AGENCY.
NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CIry
COMM]SSION OF THE CITY OF MIAMI BEACH:
SECTION 1.
ln accordance with provisions of the Charter of the City of Miami Beach, Florida and the
general laws of the State of Florida, a Special Election is hereby called and directed to be held
in the City of Miami Beach, Florida, from 7:00 a.m. to 7:00 p.m. on Tuesday, November 3, 2015,
for the purpose of submitting to the electorate the question as set forth hereinafter.
SECTION 2.
That the appropriate and proper Miami-Dade County election officials shall conduct the
said Special Election hereby called, with acceptance of the certification of the results of said
Special Election to be performed by the City Commission. The official returns for each precinct
shall be furnished to the City Clerk of the City of Miami Beach as soon as the ballots from all
precincts have been tabulated.
SECTION 3.
That the said voting precincts in the City of said Special Election shall be as established
by the proper and appropriate Miami-Dade County Election Officials. All electors shall vote at
the polling places and the voting precincts as determined by the Miami-Dade County Election
Officials as set forth in the attached Exhibit "A".1
I To date, the City of Miami Beach has not received from the Miami-Dade County Elections Department the final list
of polling places for the City's November 3,2015 Special Election. Accordingly, attached to this Resolution is a list of
polling places from the City's November 2014 Special Election, which upon receipt from the County, will be
superseded by the Department of Elections' list of polling places for the City's subject November 3, 2015 Special
Election, which list of polling places for the City's November 3, 2015 Special Election will be publicly noticed by the
City.
361
SEGTION 4.
Not less than thirty days notice of the adoption of this Resolution and of its provisions
calling this Special Election shall be given by publication in the Miami Herald, a newspaper of
general circulation in Miami Beach, Miami-Dade County, Florida. Such publication shall be
made in accordance with the provisions of Section 10Q.342, Florida Statutes, and Section 38-3
of the Code of the City of Miami Beach.
SECTION 5.
The Notice of Election shall be substantially in the following form:
THE CITY OF MIAMI BEACH, FLORIDA
NOTICE OF SPECIAL ELECTION
NOTICE IS HEREBY GIVEN THAT A SPECIAL ELECTION HAS BEEN
CALLED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF
MIAMI BEACH, FLORIDA, AND WILL BE HELD IN SAID CITY FROM 7:OO
A.M. UNTIL 7:00 P.M. ON THE 3rd DAY OF NOVEMBER, 2015, AT WHICH
TIME THERE SHALL BE SUBMITTED TO THE DULY REGISTERED AND
QUALIFIED VOTERS OF THE CITY OF MIAMI BEACH THE FOLLOWING
QUESTION:
Amendins Charter Section 1.03(bX4) to Provide for
Alienabilitv of Miami Beach Redevelopment Aqencv
("Agencv") Propertv.
Charter Section 1.03(bX4) requires the sale, exchange,
conveyance or lease of ten years or longer of City-owned
property (not requiring voter approval or otherwise
addressed in City Gharter) to be approved by Planning
Board's 417 vote and City Commission's 5/7 vote. Should
Section 1.03(bX4) be amended to require Planning Board's
417 vote and Miami Beach Redevelopment Agency's 7/8 vote
to approve sale, exchange, conveyance or lease of ten years
or longer of Agency property?
YES
NO
Said Notice shall further set forth the several polling places in the election precincts as
established in accordance with Section 3 hereof, and shall further set forth pertinent information
regarding eligibility of electors to participate in said elections.
362
SECTION 6.
That the official ballot to be used in the Special Election to be held on November 3,
2015, hereby called, shall be in substantially the following form, to-wit:
..OFFICIAL BALLOT"
Amendins Charter Section 1.03(bx4l to Provide for
Alienabilitv of Miami Beach Redevelopment Asencv
("Agencv") Propertv.
Charter Section 1.03(bX4) requires the sale, exchange,
conveyance or lease of ten years or longer of City-ownedpropefi (not requiring voter approval or otheruvise
addressed in City Charter) to be approved by Planning
Board's 417 vote and City Commission's 5/7 vote. Should
Section 1.03(bX4) be amended to require Planning Board's
417 vote and Miami Beach Redevelopment Agency's 7/8 vote
to approve sale, exchange, conveyance or lease of ten years
or longer of Agency property?
YES
NO
SECTION 7.
The form of the ballots to be used in this Special Election and their preparation shall be
in compliance with all statutory requirements relating to the use of mechanical or other approved
voting machines or devices.
SECTION 8.
Registration of persons desiring to vote in the Special Election shall be in accordance
with the general law of the State of Florida governing voter registration. Qualified persons may
obtain registration forms to vote at the Office of the City Clerk, City Hall, 1700 Convention
Center Drive, First Floor, Miami Beach, Florida 33139, during normal business hours, and at
such other voter registration centers and during such times as may be provided by the
Supervisor of Elections of Miami-Dade County. The Miami-Dade County Supervisor of
Elections will register voters for this Special Election until 5:00 p.m. on October 5,2015. All
persons eligible to vote at this Special Election must be registered before the time and date set
forth herein or have registered previously, as provided by law. Each person desiring to become
a registered voter shall be responsible for properly filling out the registration form and returning
363
it to the Miami-Dade County Elections Office. All questions concerning voter registration should
be directed to the Miami-Dade County Elections Office, 27OO N.W. 87th Avenue, Doral, Florida
33172; Telephone: (305) 499-VOTE (8683).
SECTION 9.
That the absentee voters participating in said Special Election shall be entitled to cast
their ballots in accordance with the provisions of the Laws of the State of Florida with respect to
absentee voting.
SECTION 10.
That the City of Miami Beach shall pay all expenses for conducting this Special Election
and will pay to Miami-Dade County or directly to all persons or firms, upon receipt of invoice or
statement approved by the Supervisor of Elections of Miami-Dade County, Florida.
SECTION 11.
lf any section, sentence, clause or phrase of the ballot measure set forth above in this
Resolution is held to be invalid or unconstitutional by any court of competent jurisdiction, then
said holding shall in no way affect the validity of the remaining portions of said ballot measure.
SECTION 12.
This Resolution shall be effective immediately upon its passage.
PASSED and ADOPTED this day of 2015.
ATTEST:
PHILIP LEVINE
MAYOR
RAFAEL E. GRANADO
CITY CLERK
(Sponsored by Commissioner Michael Grieco)
APPROVED AS TO
FORM & I-ANGUAGE
& FOR EXECUTION
$tu
Dole
F:\ATTO\TURN\ELECTIONS\SpeC Elec{ions Reso Charter Sec. 1 .03(bX4) *or. a, ,0, U.foH
anarcV 6z
364
PROPOSED BALLOT TITLE AND BALLOT SUMMARY
NOVEMBER 3, 2015 SPECIAL ELECTION
PROPOSED BALLOT TITLE AND BALLOT SUMMARY:
Amendins Charter Section 1.03(bX4) to Provide for
Alienabilitv of Miami Beach Redevelopment Aqencv
("Agencv") ProperW.
Charter Section {.03(bX4) requires the sale, exchange,
conveyance or lease of ten years or longer of Gity-owned
property (not requiring voter approval or otherwise
addressed in Gity Gharter) to be approved by Planning
Board's 417 vote and City Gommission's 5/7 vote. Should
Section 1.03(bX4) be amended to require Planning Board's
417 vote and Miami Beach Redevelopment Agency's 7/8 vote
to approve sale, exchange, conveyance or lease of ten years
or longer of Agency property?
YES
NO
II. PROPOSED CHARTER TEXT:
Sec. 1.03. Powers of city.
(b) Alienability of property.
1. The only limitation concerning alienability of City-owned park, recreation or
waterfront property is the restriction of the sale, exchange, conveyance or lease of ten
(10) years or longer (including option periods) of park, recreation, or waterfront
property in the City of Miami Beach, unless such sale, exchange, conveyance or lease
is approved by a majority vote of the voters in a City-wide referendum. This provision
shall be liberally construed in favor of the preservation of all park, recreation and
waterfront lands.
2. The sale, exchange, conveyance or lease of ten years or longer of the following
properties shall also require approval by a majority vote of the voters in a City-wide
referendum: (1) lofs West of the North Shore Open Space Park: All City-owned
property bounded by 87th Street on the North, Collins Avenue on the East, 79th Street
on the South, and Collins Court on the West; (2) Cultural Campus: All City-owned
property bounded by 22nd Street on the North, Park Avenue on the West, 21st Street
on the South, and Miami Beach Drive on the East; (3) 72nd Sfreef Parking Lof; The
City-owned surface parking lot bounded by 73rd Street on the North, Collins Avenue
on the East, 72nd Street on the South, and Harding Avenue on the West; and (4)
365
Lincoln Road Parking [ofs: All City-owned surface parking lots in the vicinity of Lincoln
Road located within the area bounded by 17th Street on the North, Euclid Avenue on
the East, 16th Street on the South, and West Avenue on the West.
3. The sale, exchange, conveyance or lease of ten years or longer of the following
properties shall require approval by vote of at least sixty (60) percent of the City's
voters voting thereon in a City-wide referendum: (1) Convention Center Parking Lots:
All City-owned surface parking lots located in the Civic and Convention Center
District, generally bounded by Lincoln Lane on the South, Washington Avenue on the
East, Meridian Avenue on the West and Dade Boulevard on the North; (2) Convention
Center Campus: All City-owned property, except for the Convention Center and Carl
Fisher Club House, located within the Civic and Convention Center District (includes
City Hall, 1701 Meridian Street, 555 17th Street, 21st Street Community Center, The
Fillmore Miami Beach/Jackie Gleason Theater, and the 17th Street Parking Garage).
All local laws, charter provisions and ordinances of the City in conflict with this
provision are hereby repealed. This provision shall become effective immediately
upon acceptance of the certification of election results by the City Commission.
4. The sale, exchange, conveyance or lease of ten years or longer of all remaining
City-owned property (other than public beach rights-of-way - see (d) herein below,
and other than those properties addressed more specifically in this Charter section
1.03) shall, as provided by Ordinance, require approval by a majority 4ft vote of all
members of the Planning Board and 617 vote of the City Commission. The sale,
exchanqe, convevance or lease of ten vears or lonoer of propertv owned bv the Miami
Beach Redevelopment Aoencv (Aoencv) shall require approval bv a maioritv 4/7 vote
of all members of the Plannino Board and 7/8 vote of the Aoencv.
5. The terms of this Charter section shall not apply to any valid written contractual
commitments or bids or bonded indebtedness, which commitments, bids or
indebtedness existed prior to January 14,2004; nor shall this Charter section apply to
any City property which is the subject of a settlements of a claim which the City had
notice of as of January 14,2004.
(c) The floor area ratio of any property or street end within the City of Miami Beach shall not
be increased by zoning, transfer, or any other means from its current zoned floor area ratio as
it exists on the date of adoption of this Charter Amendment [November 7, 20011, including
any limitations on floor area ratios which are in effect by virtue of development agreements
through the full term of such agreements, unless any such increase in zoned floor area ratio
for any such property shall first be approved by a vote of the electors of the City of Miami
Beach. The provision shall not preclude or othenruise affect the division of lots, or the
aggregation of development rights on unified abutting parcels, as may be permitted by
ordinance. ln addition, this provision shall not apply to settlements of any claims the City has
notice of as of December 10, 2003. This Charter Amendment shall become effective on the
day after its approval by the voters of the City of Miami Beach. No rights in derogation of the
provisions of this Amendment under any ordinance or any other action of the Miami Beach
City Commission between the time this measure is approved by the Miami Beach City
Commission for placement on a ballot and the adoption of this Amendment shall be enforced
against the City of Miami Beach.
366
(d) Public Beach Rights-of-Way. The sale, exchange, conveyance, lease, or any other
transfer of any City interest in a public beach right-of-way (extending eastward from Collins
Avenue/Ocean Drive to the erosion control line) shall require approval by a majority vote of
the voters in a Citywide referendum, excluding permits of no greater than one year, and
excluding the sale, exchange, conveyance, lease or any other transfer not exceeding 10o/o in
width of such public beach right-of-way.
(e) Public Sfreef-Ends Bordering GU, GC, or Waterfront Land. The sale, exchange,
conveyance, lease, or any other transfer of any City interest in any public street-end
bordering on land designated "Government Use", "Golf Course" or Waterfront land, shall
require either the unanimous approval of those members of the City Commission with power
to vote or approval by a majority vote of the voters in a Citywide referendum, excluding a
sale, exchange, conveyance, lease, or any other transfer not exceeding 10o/o in width of such
street-end which advances a significant public purpose, and excluding underground utility
easements.
F:\ATTO\TURN\ELECTIONS\Special Election Charter Sec 1 . 03(b)(4) Text.docx
367
MIAMIBEACH
MIAMI BEACH SPECIAL ELEGTION
NOVEMBER 4, 2014
MIAMI BEACH PRECINCTS LIST
PCT Place Name Location PCT Place Name Location
011.0 Biscayne Elementary
School
800 77"'Street 031.0 MiamiCity Ballet 2200 Liberty Avenue
013.0 North Shore Branch
Librarv
7501 Collins Avenue 032.0 Miami Beach Regional
Librarv
227 22"" Street
014.0 North Shore Park Youth
Center
501 72"" Street 033.0 Miami Beach Senior
Hioh School
2231 Prairie Avenue
015.0 Normandy Shores Golf
Club
2401 Biarritz Drive 036.0 Miami Beach Police
Athletic Leaoue
999 11"' Street
018.0 lndian Creek Fire Station
#4
6880 lndian Creek
Drive
037.0 Miami Beach City Hall 1700 Convention
Canter F)rivc
019.0 Normandy Park & Pool 7030 Trouville
Esplanade
038.0 Veterans Foreign War
Post #3559
650 West Avenue
020.0 Ronald W. Shane Center 6500 lndian Creek
Drive
040.0 South Pointe Elementary
School
1050 4"'Street
022.0 Miami Beach Fire Station
#3
5303 Collins Avenue 04't.0 South Shore Community
Center
833 6u' Street #2
023.0 Miami Beach Fire Station
#3
5303 Collins Avenue 042.O Feinberg Fisher K-8
Center School
601 14'" Place
024.0 Nautilus Middle School 4301 N. Michigan
Avenue
043.0 Miami Beach Police
Deoartment
1 100 Washington
Avenue
025.0 St. Johns on the Lake
Methodist Church
4760 Pine Tree Drive o44.0 South Pointe Park
Communitv Center
l Washington
Avenue
028.0 Temple Beth Sholom 4144 Chase Avenue 047.0 Rebecca Towers 200 Alton Road
029.0 North Beach Elementary
School
4100 Prairie Avenue 048.0 Rebecca Towers 200 Alton Road
030.0 Miami Beach Botanical
Garden
2000 Convention
Center Drive
Please note that the above list is subject to change, if needed.
The voting precincts for the November 4,2014 City of Miami Beach Special Election shall be as established by the proper and appropriate
Miami-Dade County election officials. On Election Day, all electors shall vote at the polling places and the voting precincts in wnicn tne
official registration books show that said electors reside. Please note that the above list is subject to change. All questions concerning polling
places and voting precincts should be directed to Miami-Dade County Elections Department, 2700 NW 87 Avenue, Doral, Florida 33172;
Telephone: 305.499.VOTE (8683) or 305.499.8480 TYY.
Rafael E. Granado, City Clerk
City of Miami Beach
EXHIBIT A
368
m.* *"*I-r-ftmreffi
tffiffi
* : .-.-.-:..fj ji-.:.,:.: ::...
] r":,:' ; tl. i- ;., ,.* -
OFFICE OF THE MAYOR AND COMMISSION MEMORANDUM
TO: Jimmy L. Moroles, City Monoger
FROM: Joy V. W. Molokoff, Commissioner
DATE: luly 22, 2015
SUBIECT: Request for Finol Negoiiotions ond Approvol of Tier I Finol Controct
odding Economic Anolysis ond Recommendotions for Town Center ond
West Lots with Dover, Kohl ond Portners for Moster Plon for North Beoch
District
Pleose ploce the obove item on the July 31 , 2015 City Commission Awords ond
Presentotions Agendo.
lf you hove ony questions, pleose contoct me ot extension 6622.
JVWM
We ore commiffed to providing excellent public service ond sofenT rc oll who live, work, and ploy in our vibranf , t,.r,r",, n,tt{;,;"{f,;rt1em
fr,-l koate ?-jl_tf369
Dovrn, K*HL {g FgnrNERs
town planning
June 18, 2015
Alex Denis, Director
Department of Procurement
1700 Convention Center Drive
Miami Beach, FL 33139
RE: tr.FQ2{il5-086-yG MASTER I'IANNEII OF THE NORTH I}EACH DISTIITC'r
Dear Members of the Evaluation Committee:
Thank you for the opportunity to amend our initial cost proposal. This new proposal better utilizes existing plans and plans that
are under way and avoids duplication of work. Thank you for your input.
The enclosed proposal outlines the overall strategy for the development of the Master Plan vision in three phases, followed by a
Project Timeline, three separate fee proposals and a fee comparison sheet. You may contact me or Hernan Guerrero, Project
Director, at 305-666-0446, if you have any questions.
Thank you for the opportunity; we look forward to working with you.
n. Konl & P,tnr:re nsIL...,n r \_(ins, AJC,ffC\U-A
,al & Seniffirbjed Director
doverkohl.com
Dover, I(ohl & Partners ' fune
RFQ 2015-086-YG . Master
lB,20l5 . DRAFT Scope and Budget
Planner of the North Beach District
370
PROIE,CT PROPOSAL
The follor,ving proposal outlines our recommended approach for creating the North Miami Beach Master Plan.
How this Proposal is Structured
The enclosed proposal outlines the overall strategy for the development of the Master Plan vision in three
phases, followed by a Project Timeline, three Fee Proposals and a Tier Comparison sheet. Please refer to the
fee proposal and fee comparison sheets for reference as to the level of analysis and deliverables included in
each tier.
PFIASE l: Review, Inventory & Assessment of Existing Conditions: As part of Phase I, Dover-I(ohl will
coordinate with City of Miami Beach staff to establish a steering committee made up of key individuals that
will help guide the development of the master plan. This will include the review of all relevant information
including previous plans and studies and background information on the North Beach District supplied by
the City, as well as the inventory and analysis of urban design,land use, building conditions, building heights,
building locations, density and/or intensity of development, the condition of the built environment, and
transportation issues that affect the Master Plan area.
PI{ASE 2: Create the Master Plan Area Vision: This phase will involve the creation of the future vision for
the Master PIan Area in accordance with public input and stakeholder involvement during an intensive, week-
long planning Charrette held on-site in North Beach at a Iocation to be determined with City Staff.
PHASE 3: Final Master Plan and Recommendations: This phase includes recommendations, revisions and
completion of the Master PIan Document, and public presentations of the final Plan.
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PHASE I: Rrvrpw, INvpNroRv &AssrssuENr oF ExsrrNc CoNorrroNs I Morurrrs .l-5
Phase I rvill include the review of all relevant information including previous plans and studies and
baclground information on the North Beach District supplied by the City, as well as the inventory and
analysis of urban design, land use, building conditions, density and/or intensity of development, historic
preservation, transportation and sea level rise issues that affect the Master Plan area. It will include meetings
with the City staff, the public, stakeholder interviews, meetings with steering committee and on-site analysis
by Dover-I(ohl team members.
ilitliiF iiii
Dru-.ii.E
Preliminary Conference Call
At the start of the project, a Principal and Project Director from
Dover-I(ohl r,vill schedule a conference call or meeting with City
staff to review base information needs, identify stakeholders, and
strategize on the public participation process.
Review of Existing Plans & Studies
The team will become familiar with the details of previous plans,
studies, and regulating documents related to the master plan area and
Y= surrounding parts of North Beach including baclground information
==:i: on the district supplied by the City, and other studies including the
= Intensity Increase Study, the Coastal Communities Tiansportation
Master Plan, the North Beach Town Center, and others. These plans
current applicability to the master plan study area and how they will affect
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and studies lvill be assessed to their
future outcomes in the area.
Documentation of Neighborhood Character
The team rvill survey the study area, coordinate with City staff and the public to identi$z buildings, stylistic
elements and locations symbolic of the study area. This survey will be included as part of the Site Visit Report and
can inform the development of specific design guidelines or suggestions that can be include in the final Master Plan.
Analysis Maps
The team r,vill utilize ArcMap GIS or similar base data mapping service, aerial and ground level photography,
land use surveys, and expertise provided by the City to acquire the necessary information to create a series
of Analysis Maps for the plan study area. Information to be mapped may include existing land uses, open
space, zoning, planned land uses, utility easements, property boundaries, olr,rrership, topography, natural
resources, environmental conditions including floodplains, cultural and historic resources, existing vacant or
underutilized buildings, building height as well as buildings available for adaptive reuse, and a transportation
system map. Maps will be field verified during an initial site visit.
Utilizing this information Dover-I6hl will produce base maps of the planning area to be used throughout the
Charrette in Phase 2 bv the desi.qn team and members of the public.
Public Outreach
Dover-I(ohl and City staff will strategize on the best mechanisms for outreach to individuals and groups. A
strategy for soliciting community input, and establishing on-going public outreach throughout the process
will be addressed. Dover-I(ohl will assist in the design of flyers, posters, banners, postcards, mailers, and press
releases to be distributed to the media, neighborhood associations, business associations, and community
organizations (among others).
Throughout the planning process Dover-I(ohl will provide information for the City of Miami Beach's website
and updates can be posted on a proiect Facebook page to keep the community informed of public meetings and
help them follor,v the planning process. Information to be provided will include project updates, photographs,
maps, renderings, images, and other submitted deliverables.
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Initial Site Visit
I(ey members of the Dover-I(ohl team will conduct a 2 to 3 day site visit in North Beach. The team rvill work
closely with City staff and r,vill conduct initial intervier,vs with key stakeholders. Descriptions of tasks that can
be completed during the site visit are as follows:
Project Initiation Meeting
The Dover-I(ohl team will meet with City staff to refine the goals and objectives of the planning process.
Together we will review the existing characteristics of the Master Plan Area including information compiled
to create analysis maps. I(ey elements and recommendations from existing plans and reports that affect
the study area will be discussed as to their relevance with the future potential for the Master Plan Area.
From these discussions key issues, opportunities, and constraints for the Master Plan Area will be outlined.
Initial planning principles and objectives for the area will be developed. These planning principles will later
be explored and tested against the publics' desires during Phase 2 of the planning process.
Stakeholder Meetings, Interviews & Meetings with Staff
The team will hold additional meetings during the site visit with key stakeholders including property owners,
community groups, and other local stakeholders to discuss their goals and obiectives for the Master Plan.
Area Tbur
Dover-I(ohl will tour and examine the existing urban form and analyze the network of streets, blocks
and lots, building types, and building patterns with City staff. The analysis will include a review of the
existing land use, density, transportation issues, existing streetscape characteristics, urban design elements,
and development issues affecting the study area. The team will assess, measure, and document existing
building types, building placement relative to the street, building massing, scale, height, primary facade
transparency, density and intensity of land use including vertical and horizontal mixing, sidelvalks,
plantings, lighting, signage, spacial enclosure, and level of street life activity
IGck-Of Pres s Conference (Optio nal )
Dover-I(ohl rvill be available to participate in a press conference along with the City to inform the
community of the upcoming public planning process.
PUASE, 2: Cor-E rHE MasrEn PraN Anse VrsroN I MoNru 6
The centerpiece of Phase 2 will be the creation of the future vision for the Master Plan Area in accordance
with public input and stakeholder involvement during an intensive, roughly week-long planning Charrette held
on-site in North Beach at locations to be determined with City Staff.
During the Charrette, Dover-I(ohl will lead a series of public meetings, design sessions, stakeholder interviews,
and technical meetings to quicldy engage the community and form the frame',vork for the Plan, including
phr.'sicai cJesigr-i fe;.tni e s, ti-.tii:puii.,iiurl, infiiistrLic-LLrrc, liousing, lrisioi'ic pi-csci-\';'ition, slistiiinribiiitr,' antl
resilient redevelopment goals and obiectives along with the community's values and aspirations for the plan
area. The hands-on nature of the Charrette and the opportunity to interact with differing perspectives allows
issues to be quicldy identified and resolved. City staff and officials will be involved throughout the lveek at
various meetings, workshops, and presentations. Updates will be provided to the project website and Facebook
page periodically throughout the charrette.
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Design the Charrette Format
Dover-I(ohl will work with City Staff to structure the format of the charrette to best meet the needs of the com-
munity Emphasis will be placed on establishing a community vision for the plan area, and creating methods to
make that vision a reality The charrette will include multiple opportunities for people to offer input, including small
group conversations, exit surveys, keypad polling, one word cards, and one-on-one conversations. A preliminary
format for the charrette follows.
Charrette
On mutually agreeable dates, the entire Dover-I(ohl team will be in
North Beach to work on-site with the community for a charrette.
Given the seasonal nature of Miami Beach we recommend hosting
the Charrette after the Columbus Day weekend holiday (October l2)
when most of North Beach's residents are back on the island. Ideally,
all major project meetings will occur after Columbus Day to ensure
the maximum possible public involvement.
The following tasks will be completed during the charrette:
Symposium
On or before the first day of the Charrette, Dover-I(ohl will organize
an event structured in a lecture format with time for questions and
answers. The symposium will allow North Beach stakeholders to hear
national exper[s present best practices on topics such as transporta-
tion, economic development, sustainability and revitalization. This
rvill inspire participants to think about the issues they are interested
within the context of what makes the most sense for the future of
North Beach overall.
IGck-0ff Event & Hands-on Design Session
On the first official day of the charrette, Dover-I(ohl will lead a
Community ICck-off Event to mark the official start of the public
planning piocess. The event will feature a "Food For Thoughi" p.e-
sentation to educate the public on best practices in mixed-use, mixed-
income development, livable transporlation, traditional urban design,
sustainability, community character, and adaptation to sea level rise,
especially how they apply to peer beach communities with a large
tourist industry. In addition, the inventory and analysis of existing
conditions lvill be presented to the public to inform and educate them
on the numerous planning challenges that must be dealt with during
the planning process.
Follorving the IGck-off )resentation, the meeting will transition to
the Hands-on Design Session. Participants will divide into small table groups around the room, oriented
to base maps of the plan area, and a set ground rules and goals for the session will be laid out. Each table
will have a facilitator from the Dover-I(ohl team or City staff to assist participants in a number of design
exercises. During the first part of the table sessions, the community will identify the important issues
associated with the future of the master plan area and discuss them in small groups. Participants will then
continue to work together and draw on base maps to illustrate how they might like to see the area evolve
in the future by describing the uses, open spaces, building design and type, landscaping, street design,
housing options, parking, and services, as well as key transportation concerns.
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At the end of the workshop, a spokesperson from each table will report the findings and major points to the
entire assembly. The goal of the Hands-on Design Session is to forge a community consensus and develop
a short- and long-range vision for the future of the study area.
IGypad polling, exit surveys, and one word cards may be incorporated throughout the event to calculate
and present public opinion on selected topics identified during Phase l.
Open Design Studio
Following the Hands-on Design Session, the planning team will set-up an Open Design Studio, preferably
in a storefront location in or near the master plan area for the duration of the Charrette week. The team
will work on-site to integrate the information gathered during the analysis of existing conditions phase and
Initial Site Visit with the input gained during the Hands-on Design Session to create an overall vision for
the area while continuing to gather community input.
I(ey stakeholders, City staff and the community will be encouraged to stop in tlroughout the week as new issues
come to mind and to check on the project's status. The following tasks will be completed in the Open Design Studio:
Tbchnical Meetings
While working on-site, the Dover-I(ohl team will lead technical meetings with government agencies and
local experts to address housing, open space, mobility, historic preservation, sea level rise and other rele-
vant topics. The purpose of these meetings is to review the emerging vision and receive immediate focused
feedback from all stakeholders. Additional meetings with key stakeholders such as property owners, devel-
opers, neighborhood associations, the Chamber of Commerce, the Mayor's Blue Ribbon Panel and local
merchants may be held to ensure their plan obiectives are reflected in the overall plan.
Draft Illustrative Plan
During the Charrette week, the design team will create an illustrative plan illustrating urban design char-
acteristics such as massing, density and land use, transporlation options, open space and recreation, and
economic development opportunities. Scenarios will likely include varying degrees of density, intensity,
and building variety.
While the master plan is being developed issues concerning the growth of the district and development will
be addressed and solutions studied. The assessment of the current built environment begun during Phase
I will test existing regulations as they address the interface between different land uses, the surrounding
neighborhoods, and current built conditions.
Visunlizntions
Visualizing change is a key component of Dover-I(ohl's planning methodology. Illustrations often com-
municate ideas better than words, and are valuable tools to test or confirm plan concepts and gather
meaningful input. Illustrations, ground level and aerial perspective drawings, and diagrams that present
emerging planning concepts r,vill be created in the Open Design Studio to obtain immediate feedback from
Cirr,'staff ancl the cotnr.tLr-ri.tit\: 't'isuiilizations u,'i11 pi:or,ride "change ovci'tinie" scLlLrclrces oi intili proposals,
redevelopment strategies, and streetscape improvements. The draft Illustrative Plan and Visualizations will
be accessible throughout the week to allow casual feedback, and will be presented at the end of the lveek
for more formal community input.
Ti' an s p o rt ati o n An aly s i s
Street Plans Collaborative will examine transportation opportunities throughout the Master Plan Area
and how they connect to the surrounding community from the perspective of all modes of travel: walk-
ing, biking, transit, and driving. This holistic approach to transportation needs will reveal new methods
of recovering lost connections. The transportation analysis r,vill inform improved pedestrian and vehicular
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connectivity, improved access to open spaces and the beach, and streetscape improvements. Tiansportation
improvement strategies will be integrated with streetscape design, based on the belief that successful
streets have a duel role of moving people and providing great addresses. Team members Chen Moore will
can assist with transportation or civil engineering specific concerns related to transportation.
Work-in-Progress Presentation
At the conclusion of the Charrette, the planning team will present the week's work at a "Work-in-Progress"
presentation. At this presentation, the team will present ideas generated for the Plan including the draft
Illustrative Plan and Visualizations. A summary of transportation, revitalization and housing strategies will
be presented, highlighting the opportunities for quality development.
During the Work-in-Progress presentation, keypad polling will be utilized in order to generate real-time survey
results and opinion polls from members of the audience. We can track response information and view results
during the presentation. I(eypad polling can help us understand if the plan is on the right-track.
Prmsr 3 FtNat- Mnsrsn Pr-aN &RrcorrauENDATroNS I MoNrrus 7 - 12
The draft illustrative plan, visualizations, and transportation concepts begun during the Charrette will be
refined to best illustrate the community's short- and long-term goals for the Master Plan Area. Graphics and
text will be used to demonstrate the common vision and show what is possible by describing the mix of uses,
building types, transitions to the surrounding neighborhoods, and street details.
Refine Illustrative Plan & Visualizations
The Illustrative Plan will be refined based on feedback received from City staff, elected officials and the public
following the Work-in-Progress presentation. The illustrative plan will illustrate both short- and long-term
development prospects and will designate development intensity and the appropriate mix of uses.
The team will also refine the numerous visualizations, based on input received after the Work-in-Progress pre-
sentation and in the follorving weeks. Renderings of key design concepts r,vill demonstrate the possibilities for
future development as well as suggested recommendations for height, scale and scope of building construction
that will be proposed in ner,v regulations.
Recommendations & Implementation
Based on the preferred vision for the community, recommendations and implementation steps to make the
community's vision a reality will be drafted. These may include suggested revisions to land development regu-
lations, comprehensive plan amendments, and/or the creation of an overlay district for the master plan area.
Implementation strategies will include steps to implementing the vision within the 5 year terms that the City
has been using to gauge development time-lines. Short-term steps that the City can immediately begin rvill be
highlighted to give the community confidence that their vision will come to fruition.
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Plan Report
Dover-I(ohl lvill create a concise plan document that incorporates and refines portions of the inventory and
assessment reports and describes the details of the preferred community vision for the Master Plan area.
Clear planning principles developed by the community throughout the charrette, rvill guide the Master Plan.
Recommendations and implementation steps will also be detailed within this document. The Master Plan report
including recommendations will be completed within an agreeable time-frame to be determined with City Staff.
The Master Plan report will detail the following. Note that Tier I and Tier 2 may not include each of these sec-
tions. The differentiation between the Tiers is made at the end of this proposal.
r Historic Preservation Plan
. Analysis of National Register Areas
o Local Designation Report
. Land Development Regulations
. Design Guidelines
r Infrastructure
. Tiasnsportation Plan
. Parking Plan
. Open Space Plan
o Existing Open Space Improvements
o Opportunities for new Open Space
. Civic Improvements
o Existing Civic Facilities Assessment
o Civic Facilities Plan
. Sustainability
. Tovrm Center
. Economic Analysis and Recommendations
. Land Development Regulations/FAR Study
. Design Guidelines
r West Lots
. Economic Analysis
. Development PIan
. Land Development Regulations/FAR Study
. Design Guidelines
r Single Family Home Areas
. Land Development Regulations
. Other Areas
. Land Development Regulations
. Design Guidelines
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De=trrnnarrES
lli Master Plan Components in Detail
iritlii The following is a detailed account of what the elements outlined
,a$i above may entail:
l, Historic Preseruation Plan: All of the elements of Historic Preservation
.'-." ' will be considered by team member |SI( architectural in order to pro-
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mote the tools and incentives for the rehabilitation of the distinctive+fiiii$ architecture of North Beach.
,1,' Design guidelines, existing regulations and incentives will be applied
in order to promote the success of the plan by retaining, reprogram-
' ming and rehabilitating those sites, structures and buildings that have
,,,, been deemed "historic" and listed in either or both the Miami Beach
i1i Designated and Contributing Historic Buildings or the National
LNf$ Register of Historic Places.
,1,
2.;,J;
The Dover-I(ohl team will identify areas and individual structures
that are included within the existing historic districts (and opportunities for possible new designations) in
order to apply pre-existing incentives established by the City of Miami Beach with the follorving objectives,
tools and available incentives:
Recommend Potential Adaptive use of proiects
Assist Owners in Comprehending the Incentives:
o Tiansfer of Development Rights (TDRs)
o Ad Valorem Thx Credits
o Investment Thx Credits (for depreciable properties)
Identifu, create and promote potential ideas for the reinvigoration of North Beach through its
Historic resources.
To that end, the Dover-I(ohl team may address isolated structures that are better suited to a new use and pos-
sibly require a conditional use or special use per the Zoning Code. For example, multi-family residential areas
which border commercial uses might be rehabilitated for smaller boutique hotel use.
InjlastnLcture: Consultant shall provide an infrastructure analysis for the project including utilities such as
roadlvay, water, selver, and stormwater management for the Tolvn Center, West Lots, Ocean Terrace/Collins
Corridor, and other areas to be determined with the oumer and client.
Tiansportation Plan: A detailed streetscape plan incorporating the principles of Complete Streets, multiple
modes of transportation, traffic calming, detailed vision for hardscape, landscape, and other site elements
typical of the public realm such as street furnishings and pedestrian lighting.
P,i;'l:i 13,Pl.rrr: Lr coo',:dination u,'ith Citv staff, :rvailable plrking r.,'ithin tht public r:igllt of u'ar.' and the
irrfluence of private parkingfacilities in the districtrvill be ana|yzed to develop a plan thatwili suitthe
needs commensurate with the details of the Master Plan. The parking plan is expected to rely on data
previously collected by the City.
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Open Spnce Plan: Existing open space rvili be analyzed in coordination with City staff. The goal will be
to identify opportunities for open space acquisition, and develop an overall design strategy for the design
of the public realm r,vith regards to theming and developing an identity for the proiect area.
Civic Improvements: The Dover-I(ohl team will inventory the locations of Civic facilities within the
proiect area such as parks, museums, libraries, and other facilities to be determined with City staff, and
North Beach stakeholders in order to develop a strategy for the physical locations of future facilities.
Sustainabilifl: The Dover-I(ohl team will coordinate with City Staff and North Beach stakeholders to
analyze current strategies for adaptation to Sea Level fuse (SLR).
Economic Analysis and Recommendations: In order to get a solid foundation upon which to develop
an overall vision for the study area, the Dover-I(ohl team will prepare a detailed analysis of study area
demographics, and market conditions for residential and commercial uses.
I.) Demographic Information and Analysis: This analysis will include an overview of the North Beach
Primary Market Area (PMA) and metro market trends, as well as specific research and analysis of the area
housing market and surrounding competitive areas. This analysis will include such factors as:
. Identification of competitive market area. Population trends and projections. Household formation (trends and proiections)
. Demographic analysis of PMA
. Tiends and analysis of household tenure
. Household composition (size, age, children, etc.)
. Existing and proiected households by income range
2.) Residential Market Analysis
Residential Competitive Supply Analysis:
. Identification of the competitive supply (existing and planned residential for-sale, and multi-family
rental projects)
. Area occupancy patterns and sales or rental rates (if required)
. Profile of competitive development activity and trends. Evaluation of selected competitive projects in terms of (if required)
Residential Site and Location Analysis: Location and physical characteristics of the subject site and
surrounding area represent important considerations impacting the project's competitive position and
market potentials. An evaluation of the proposed re-development area and features of the surrounding
area will be performed to address the extent to rvhich such factors 'r,vill influence the competitive
positioning and market potentials of the property. This evaluation will include:
. Pin'sicrii fe-atu;.es,'cstiretics ot' the site
. Area amenities
. Access/transportation
. Development trends in the area. Impacts of surrounding and adjacent land uses
. Proximity to area activity generators. Support facilities (schools, shopping, medical, etc.)
. Image/reputation
. Others, as identified
Residential Market Potential: Based on the results of the foregoing tasks, conclusions and
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recommendations for each of the various residential components will be developed concerning the
following key planning factors:
. Competitive framelvork
. Absorption time frame
. Achievable rental and/or sales prices
Project Planning Guidelines: With respect to each of the residential components that we may
recommend, we will review market and development planning guidelines for the proiect, as appropriate
based on our analysis, our conclusions and recommendations will include such factors as:. Unit design
. Unit mix and sizing. Sales pricing or rental rates of base units (if required). Thrget market profile. Critical amenities and features
ResidentiaVMarket Position Analysis: We will be examining the program in terms of any features
and amenity development that should be considered. We will be providing you with an analysis that
documents the market potentials for either condominiums, the market rate low or mid-rise rentals, or for-
sale residential and townhomes within the PMA. We will also translate the findings of our research on
the market, competitive, and the economic environments into specific conclusions and recommendations
for a course of action which indicate the most attractive marketability prognosis.
The report will include an analysis of current and future economic and market opportunities in North
Beach overall with paragraphs/sections describing conditions specifically in the:. Tor.r,n Center
. West Lots. Single Family Home areas
. Other areas TBD
3.) North Beach Retail Market Analysis: The purpose of this section of the study is to assess the market
demand potential for retail development within the North Beach District. The assessment rvill include
an analysis of retail supply and demand that is based on the follorving scope of work.
a.) Supply:
Market Overview - The Dover-I(ohl team will review and quanti$z the current inventory of retail
in the North Miami District with comparison for Miami-Dade and other competitive submarkets
covering total inventory as well as trends for occupancy/vacanry and rental rates.
Competitive Audit - The supply analysis will include a competitive audit of significant shopping
centers in the study area covering:
. Location
. Sire
. Year Built
. Tenant Mix
. Occupanry/VacancyRates
. Rental Rates & CAM
. Parking
b.) Demand
Retail Sales - Retail sales trends in the greater Miami-Dade market, including resident and tourisVvisitor
shares to gain perspective on spending patterns by consumer categories will be reviewed.
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c.) Economic & Demographic Overvielv - Dover-I(ohl will research and analyze local and regional
economic/market trends focusing on the economic and demographic determinants of retail demand.
d.) Estimating Retail Demand in the North Beach District -Goodkin will apply a retail demand model
for estimating retail demand by major retail category in the North Beach District. The model will be
based on estimates and assumption derived from the analysis of economic and demographic determinants
of demand as well as productivity factors (sales per square foot) and capture rates by retail category to
estimate projections of retail demand by major category over a five- to ten-year horizon. The analysis will
also include estimates of inflow (retail expenditures flowing into the area) from residents living outside
the study area as well as tourists and visitors and outflow (retail expenditures leaking out of the area) by
North Beach residents.
Deliverable - Dover-I(ohl will prepare a final draft report of findings and conclusions prior to the planned
Charrette date. The final draft report will address the demand potential for retail in the North Beach District
by maior retail category including total and annual average demand potential over and five- and/or ten-
year horizon. The final report will be delivered two to three (2-3) weeks after the charrette to incorporated
revisions or changes as lvarranted.
Land Development Regilations; The creation of a new Vision for the North Beach District will require the
modification of existing regulations that reflect the aspirations of the area's stakeholders. The Dover-I(ohl
team will worh with City staff to review existing regulations and determine how to incorporate changes so
as to ensure that the physical details of the Master Plan are translated in to built reality. This will involve
the fine-tuning of existing regulations or creating a form-based code that will outline the desired character of
buildings and public spaces through their individual volume, scale, and detailing.
Design Guidelines: Dover-I(ohl will work with City Staff to develop guidelines aligned r,vith the goals of
the Master Plan. These guidelines r,vill enable the City to have a solid framework witihin which to evaluate
proposals for new development applications. They will serve as metrics for details such as how the building
meets the street, a provision for uniformity of signage, landscaping, frontage, parking and other elements to
be determined.
Public Presentations of the Plan & Recommendations
A Principal and Project Director from Dover-IGhl and key members of the Dover-I(ohl team will be on-site
in North Beach to present the Master Plan Report and Recommendations to the public. This presentation
could be a special meeting or at an official public hearing for the commission and/or City Council. The team
members will be available to answer questions and explain the details of the plan, overlay district, plan amend-
ments and other recommendations. Additional meetings with the public and City Staff follor,v to insure plan
consensus with the number of meetings determined by the City's selected Tier.
A Principal and Project Director from Dover-IGhl and kev members of the Dover-I(ohl team be available to
the City tbr additional City Council or other pr-rblic rneetings ior the approval of the .fr'l:ister Plan anci master
plan amendments.
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Pnolncr Trvr,LrNE
Puese I - Rrvrr,w, INVENToRY
& AsspssvENT oF ExrsrrNc
CoNorrroNs
Preliminary Conference Call
Public Awareness
(outreach strategy & materials; create
website)
Review Existing Plans/Studies
Site VisiVReport
(interviews & meetings; area on-site analysis;
press conference; site visit report)
Psasr,2 - Cru,errNc THE Mesrsn
Pr-aN Anr,e VrsroN
Kick-off Presentation
Hands-on Design Session
Open Design Studio
(define vision; produce draft plans & design
concepts, technical analysis of design
concepts; meetings with Steering Committee,
stakeholders and experts; open house)
Work-in Progress Presentation
Pnasr 3 - FrNar MasrrR PmN &
Rrponr
Refine lllustrative Planfuisualizations
(illustrate the vision)
Master Plan Recommendations Report
(updated analysis, vision and guiding
nrinciples: land use and urban design
recommendations; hultimodal transportation
and stormwater improvements; implementation
strategy, including funding options)
Review & Revise the North Miami
Beach Master Plan
Final Presentation
Meetings with City and Public
months
1-3
n:lonths
4,- 6
mdnths
=..i..r- g.
mohths
1A'' -12
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RFQ 2015-086-YG .
. fune lB,2015 '
Master Planner of
DRAFT Scope and Budget
the North Beach District
382
FEr ScgroulE
Every project is customized in close consultation with our clients. We recognize the need to maintain
a reasonable budget while at the same time creating a useful and detailed Master PIan. The budget
summary identifies three (3) fee tiers comprised of the necessary major phases to create a Master PIan.
RsrHagunsABLE ExpENsE s
Typical reimbursable expenses include travel (including transportation, food, and lodging), reproduction expenses,
mailing, long-distance telephone, or any other miscellaneous or out-of-pocket expenses reasonably contemplated by
the scope of services for this proiect.
TIER 1
PsesE I - REvrEw, lNvrNToRy &AssEssrvrENT oF ExsuNc CoNutroNs $38,500
Preliminary Conference Call; Establising a Steering Committee; Public Awareness;
(outreach strategy & materials; create website); Review Existing Plans/Studies;
Site Visi{Report (interviervs & meetings; area on-site analysis; press conference; site visit report)
Prnsr 2 - CnEauNG THE Mesrr,n PraN AnEe VrsroN $ I 14,000
. 5-day Charrette Process. 3 Community Meetings. 4 Public Hearings. Meetings with Citv Staff as needed
IGck-off Presentation; Hands-on Design Session; Open Design Studio
(define vision; produce draft plans & design concepts, technical analysis of design concepts; meetings rvith
Steering Committee, stakeholders, and experts; open house); Work-in Progress Presentation
Master Plan Recommendations Report (updated analysis, vision and guiding principles;
land use and urban design recommendations; multimodal transportation and stormwater
improvements; implementation strates/, including funding options) ;
Review & Revise the North Miami Beach Master Plan (to include the follorving elements):
Historic Preservation Plan (Analysis of National Register Areas for Local Designation;
Land Development Regulations; Design Guidelines) . Infrastructnre . Tiansportation Plan. Tolr,rr
Center (Land Development Regulations/FAR Study; Design Guidelines) . West Lots (Development
1'1an; Liuirl Dcvelopnren'. F-egr-llaiiors,'F,Ul Sir.i.11'; L)csicn Gr,iiilelines) . Oil'r.I ,Lciis (Design
Guidelines)
Final Presentation
Prmsn 3 - FlNar MesrEn PraN & Rrponr
Refine Illustrative Plarflisualizations ; (illustrate the vision) ;
Reimbursable Expenses
Total Fee
$89,750
$22,750
$20s,000
l4
Dover, I(ohl & Partners o )une
RFQ 2015-086-YG . Master
lB, 2015 . DRAFT Scope and Budget
Planner of the North Beach District
383
TIER 2
Prnss I - Rr,vrr,w, lxvrNronv & AssEssurNT oF Exsrwc CoNoIuoNs
Preliminary Conference Call; Establising a Steering Committee; Public Awareness;
(outreach strategy & materials; create nebsite); Review Existing Plans/Studies;
Site VisitfReport (interviews & meetings; area on-site analysis; press conference; site visit report)
Psesn 2 - CnreuNG THE Mesrr,n PreN AREA VIstoN
. 5-day Charrette Process
. 4 Community Meetings
. 5 Public Hearings
. Meetings rvith City Staff as needed
IGck-off Presentation; Hands-on Design Session; Open Design Studio
(define vision; produce draft plans & design concepts, technical analysis
of design concepts; meetings lvith Steering Committee, stakeholders,
and experts; open house); Work-in Progress Presentation
Pnesr 3 - Fmer Mesrsn PreN & Rrponr
Refine Illustrative Plan/Visualizations; (illustrate the vision);
$48,500
$134,000
$t3o,ooo
Master Plan Recommendations Report (updated analysis, vision and guiding principles;
land use and urban design recommendations; multimodal transportation and stormwater
improvements; implementation strategy, including funding options); Review & Revise the North
Miami Beach Master Plan (to include the follorving elements):
Historic Prcservation Plan (Analysis of National Register Areas - Local Designation Report)
Land Developn-rent Regrrlations, Design Guidelines) . Infrastructure . Tiansportation Plan '
Parking Plan . Open Space Plan (Existing Open Space Improvements; Oppor-tunities for new Open
Space) . Sustainability . Town Center (Economic Analysis and Recommendations; Land Development
Regulations/FAR Study; Design Guidelines) . West Lots (Economic Analysis; Development Plan, Land
Development Regulations/FAR Study; Design Guidelines) . Other Areas (Design Guidelines as needed)
Final Presentation
Reimbursable Expenses
Toial Fee
$22,7sO
$335,250
I5
Dover, I(ohl & Partners
RFQ 2015-086-YG .
. June lB,2015 .
Master Planner of
DRAFT Scope and Budget
the North Beach District
384
TIER 3
Prmsr I - RrvrEw, h.trvENTony &Asssssl,rENT oF Exsrwc CoNorrroNs $58,500
Preliminary Conference CaIl; Establising a Steering Committee; Public Awareness;
(outreach strategy & materials; create website); Review Existing Plans/Studies;
Site Visit/Report (interviews & meetings; area on-site analysis; press conference; site visit report)
PnasE 2 - CnEeuNG THE Masrr,n PreN AREA VrsroN $ t 70,000
. 5 *-day Charrette Process. B Community Meetings. 6 Public Hearings. Meetings r,vith City Staff as needed
IGck-off Presentation; Hands-on Design Session; Open Design Studio
(define vision; produce draft plans & design concepts, technical analysis
of design concepts; meetings with Steering Committee, stakeholders,
and experts; open house); Work-in Progress Presentation
PuasE 3 - FrNar MesrEn PraN & Rrponr $179,000
Refine Illustrative PlarWisualizations; (illustrate the vision);
Master Plan Recommendations Report (updated analysis, vision and guiding principles;
land use and urban design recommendations; multimodal transportation and stormwater
improvements; implementation strategy, including funding options); Review & Revise the North
Miami Beach Master Plan (to include the following elements):
Historic Preservation Plan (Analysis of National Register Areas - Local Designation Report)
Land Development Regulations, Design Guidelines) . Infrastructure . Tiansportation Plan .
Parking Plan . Open Space Plan (Existing Open Space Improvements; Opportunities for new Open
Space; Design and Landscape Architecture) . Sustainability . Toum Center (Economic Analvsis and
Recommendations; Land Development Regulations/FAR Study; Design Guidelines) . West Lots
(Economic Analysis; Development Plan, Land Development Regulations/FAR Study; Design Guidelines). Other Areas (Land Development; Reg.ilations Design Guidelines)
Final Presentation
Reimbursable Expenses
Total Fee
$22,7s0
$430,250
t6
Dover, I(ohl & Partners . )une IB, 2015 . DRAFT Scope and Budget
RFQ 20I5-086-YG . Master Planner of the North Beach District
385
TIER COMPARISON
Funding Tiers : E E E] Funding Tiers describe the relative amount of focus available based on funding.
Steerin[{ommit@Level of Consultant Staffi ng
Hi sto dC Prewv-6'tion PIa n
. Analysis of National Register
Local Designation Report
Land Development Regs
. Design Guidelines aa
. Resiliency Plan
Infrastructure
. Transportation Plan
General Streetscape Plan
Detailed Streetscape Plan
Landscape Architecture
Complete Streets,Atretwork Plan
Trafflc Calming Plan
Open Space Plan a
Existing (Improvements)
New Opporhrnities aa
Design and Landscape Arch
Civic Improvements aa aaa
Existing Civic Facilities Assessment a
Civic Facilities Plan
Sustainability aa
Sea Level Rise Mitigation Plan
Sustainability Plan
Economic Analysis & Recommendations (Tti*n
Center, West Lots)
t aa
Land Development Regulations/FAR Stud;
(Town Centcr, West Lots)
a !
Development Plan (West Lots)a
Design Guidelines (AIl Areas)
Public Proccss
Charrette
Symposium (Big Ideas)
Duration of Charrette 5 days 5 days 5 days
Community Meetings
Public Hearings
Meetings with Staffas needed a aa aaa
t7
Dover, I(ohl & Partners . June lB, 2015 . DRAFT Scope and Budget
RFQ 2015-086-YG . Master Planner of the North Beach District
386
R9
NEW BUSINESS
AND
COMMISSION REQUESTS
387
MIAMI BEACH
City of Miomi Beoch, ,l700 Convenlion Center Drive, Miomi Beoch, Florido 33139, www.miomibeochfl.gov
COMMISSION MEMORANDUM
TO: Mayor Philip Levine and Members
FRoM: Jimmy L. Morales, City Manager
DATE: July 29, 2015
SUBJECT: Storm Water Pump Stations Policy
BACKGROUND/ANALYSIS
On July 8,2015, the City Commission adopted Ordinance 2015-3952, to exempt DRB review for
the installation of storm water pump stations (ltem RSF). Although the Ordinance precludes
DRB review of the actual pump stations, the screening of such pump stations would still require
the review and approval of the DRB under a Citywide Master Screen Plan for pump stations
located outside of the boundaries of a local historic district.
Additionally, the City Commission requested that the Administration develop an internal
approval protocol for all future pump stations, so that aesthetic issues can be taken into
consideration, in addition to minimum engineering requirements. ln this regard, the following
standard guidelines will be incorporated into the Public Works Manual and will be followed for all
future pump station installations:
1) A plan and architectural drawing will be developed for each pump station identifying
the proposed pump station location and specific architectural screening treatment;
2) The location will be approved by the Director of Public Works and the Planning
Director, or designee;
3) The Planning Director, or designee, will review and approve the landscaping and
screening plan, in accordance with the master screening plan approved by the
Design Review Board;
4) The placement of the of the pump station shall, to the greatest extent possible,
minimize any negative aesthetic impacts on adjacent properties and the surrounding
neighborhood, but shall be located in a manner that optimizes drainage;
5) The approved plan and architectural sketch or rendering will be presented at a public
meeting prior to the commencement of the proposed work;
6) Notice of the public meeting will be provided in writing to any registered
Neighborhood Association, as well as abutting property owners;
388
Commission Memorandum
Storm Water Pump Procedures
July 29, 2015 Page 2 of 2
7) Evidence of these tasks will be maintained in the project files for auditing purposed.
As indicated previously, the City has retained the services of an architect to assist in developing
methods to screen and create approximately three different concepts using landscaping,
architecture screening walls and modification of construction practices for electrical panels to
reduce the visual impact of these storm water pump stations. The development of these
approaches are anticipated to be completed within the next three months, at which time an
application will be made to the Design Review Board (DRB) for final approval.
GONCLUSION
The Administration recommends that the City Commission discuss the proposed location
protocol and provide appropriate policy direction.
d[,1
JLM/TRM I
T:\AGENDA\201SUuly\Planning July 29\Storm Water Pumps Procedures - MEM.docx
389
R9 - New Business and Commission Requests
RgB Presentation On The Beautification Of The Alton Road Flyover Bridge At The Eastern
End Of l-395.
(Public Works)
Agenda ltem fl,? fi -Date ')-11-t5390
THIS PAGE INTENTIONALLY LEFT BLANK
391
g MIAMIBEACH
OFFICE OF THE MAYOR AND COMMISSION
MEMORANDUM
TO:
FROM:
DATE:
SUBJECT: Discussion waiving city fees and charges for the "Dwayne Have A Heart
Foundation Sl(Run Walk"
Please place on the July 31't City Commission Meeting Agenda a discussion item
concerning waiving remaining city fees and charges for the "Dwayne Have A Heart
Foundation Sl(Run Walk" to benefit the Dwayne Have a Heart Foundation Inc. The
foundation is benefitting Dwayne Mitchell, son of Miami Beach Police officers Chris and
Shantell Mitchell who has been diagnosed with Wolff-Parkinson-White, an extremely rare,
undiagnosed heart disease. Dwayne has missed his high school graduation and has been in
ICU fighting for a second chance at life. Although Dwayne has health insurance, the medical
expenses for longterm treatment far exceed what the insurance will cover.
lf you have any questions please do not hesitate to contact Danila Bonini at extension 6457.
MG/db
ond ploy in 6Ltr yi[r6et rropicol, h;sforic commun;ly
Jimmy Morales, City Manager
Michael Grieco, Commissioner
July 20th, 2015
Vy'e are commiffed to providing excellent public service and solel to oll who live, work
Agenda ltem RQC
Date 7-31-l{392
THIS PAGE INTENTIONALLY LEFT BLANK
393
m*.*.+
I!--ffifitrrfrrxirmfiilmffi
' ! r I rt J a
OFFICE OF THE MAYOR AND COMMISSION MEMORANDUM
TO: Jimmy L. Moroles, City Monoger
CC: Rofoel Gronodo, City Clerk
Roul Aguilo, City Attorney
FROM: Joy V. W. Molokoff, Commissioner
DATE: )uly 22, 2015
SUBIECT: Request the City Attorney prepore bollot longuoge for o vote by the City of
Miomi Beoch during the November 3, 2015 election to increose the FAR
for the proposed Oceon Terroce Overloy District
This request is contingent upon possoge of both the proposed Oceon Terroce Overloy
District Comp Plon omendment ond the LDR omendment on First Reoding during the July
31 , 20,l5 Commission Meeting.
lf you hove ony questions, pleose contoct me of extension 6622.
JWVM
We ore commiffed to provtdtng excellenr publtc servtce ond sofef,T to oll who live, work, ond plcy in our vibranl, tropicol, hist'oric conmunil,y
Agenda ttem frQ hoate .7-jl-t{
394
THIS PAGE INTENTIONALLY LEFT BLANK
395
g MIAMIBEACH
OFFICE OF THE MAYOR AND COMMISSION
To: Jimmy Moroles, City Monoger
From: Jonoh Wolfson, Commissioner
Dote: )uly 23, 2015
Re: Discussion ltem - Mount Sinoi
MEMORANDUM
Pleose ploce on the July 3 1 , 2Ol5 Commission Discussion Agendo:
A discussion regording whot rights we hove to toke owoy Mt. Sinoi's gront of l5 million
dollors due to their being bod corporote citizens. Specificolly, Mt. Sinoi hos continued to
oppose Boptist bringing good quolity heolthcore to the South Beoch oreo. They hove
submitted the ottoched items in o tronsporently orrogont ottempt to oct os if they core
obout troffic in south beoch. Rother, their desire to mointoin o monopoly on heolthcore
in Miomi Beoch borders on evil ond, if successful, will cost our residents deorly when it
comes to their heolth ond sofety.
It is cleor thot they put profits over people. Their gront must be rescinded. I osk the City
Attorney to outline whot grounds we moy hove.
Pleose feel free to contoct my Aide, Brett Cummins ot x6437, if you hove ony questions.
JW
We ore commifted to providing excellent public service ond sofety to oll who live, work, ond ploy in our vibront, tropicol, historic."ffi*."
nem RQ E _-
oate Ti__l_{396
1,. Operational Plan Review & Curriculum Vitae - National Healthcare Associates
2. State Building and Fire Code Review & Curriculum Vitae - Health Facility Consulting
3. Traffic Report Review - The Corradino Group
4. Parking Review Report - Walker Parl<ing Consultants
F, \e Csflt
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397
ATIONAT
HEALTIICARE
A,SSOCI/\TES, lh!e.
The purpose of this memo is to compare the Baptist Health South Florlda (BHSF) Miami Beach Proiect
Operational Plan for 709 Alton Road to healthcare industry norms and standards to arrive at the
potentialcapacity of the facility based on the information given,
ln its OperationalPlan, BHSF confirms only some of the services it will offer in the building along with
hours patients can enter, arnbulance activity, estimated vlsitor throughput, high level schematics
(blocks) and other information. Much of the information provided in the Baptist Operational Plan is
talcen from suburban locations and is averaged to provide a volume estirnate, The patient volumes
represented do not coincide with the potential volume of the facility'
Urgent Cqre Center
The BHSF's Operational Plan places an Urgent Care Center on the buildlng's fourth floor adjacent to
physician offices in approximately 4,200 square feet of clinical space with a fully allocated space of
6,625squarefeet, ThehoursofoperatlonidentifiedirrtheOperationalPlanarel2hoursaday,Tdays
a weel< from ltam to 1lpm, The listed hours of operation appear to correspond to when the first and
last patients can enter the facility and not the business operation, Tradltionally, a walk-ln facility will
operate a few hours prior to and later than the listecJ hours with patients receiving services beyond
the,entrance hours.
Treotntent Rooms
At a facility of this size with 7 treatment rooms, there could be as many as 1LB trips perday' This
would result in 21,488 annual patient encounters or 42,896 trips generated, BHSF forecasts lt will
have 30 patients per day or 60 daily trips. This would be 51 percent of the actualvolume capacity of
the rooms.
Transfers from Urgent Care to Hospital
The Operational Plan indicates 0,6 percent of all patlents at its Brickell UCC were transferred to a
hospital during the last six months ol2Ot4. lf the new urgent care location reaches its full volume
potential, this 0,6 percent rate would result in 257 ambulance trips a year, or almost 1 trip per day just
from the urgent care center and not inciuciing tire"ambulaiory suige;y ceniei,
D i a g nosti c T re at m e nt Ce nte r
The Diagnostic Center as presented in the Operational Plan will be on the fifst floor in 6,000 net
square feet, and g,464 square feet on a fully allocated basis, BHSF indicates the average BHSF
rliagnostic center is 7,000 square feet. Other Baptist Diagnostic cenlers provide MRl, CT Scan, EKG,
ultrasound, dlgitalmammography, dlgitalx-ray, fluoroscopy and bone clensity, The OperationalPlan
"il,ii
'[-;
999 Ponce De Leon Boulevard o Suite 950 u Coral Gables, Florlda 33134 . TelePhone 305,444'5007 n Facsimile 305.444.5598
398
Review of BHSF Operational Plan
709 Alton Road
July 15, 2015
Page 2
doesnotindicatethenurnberof diagnostictreatmentmachines, Thetypeandnumberofmachlnesis
the driver of patient volume,
BHSF's Operational Plan suggests it will provide 37 procedures daily generating 74 trips, which
represents 19 percent of what could be the full capacity of the Diagnostic Center at this site,
Some Doy Surgery Center
The Ambulatory Surgery Center in BHSF's Operational Plart will be open 6am to 6pm lUonday thrcrugh
Friday, Our original analysis assumed 11 hours a day Monday through Friday and 5 hours on Saturday,
The Ambuiatory Surgery Center will be located on the first floor in 10,000 net square feet of space
with 4 operating roorns; fully allocated surgery center would include 15,773 gross square feet, The
Operational Plan states BHSF plans to focus on gastroenterology and colon-rectal procedures, These
procedures require less time than art average case at a surgery center,
The Operational Plan indicates the first surgery will begin at 7am and the last of the day to begin by
2pm, Of note, while the plan states the surgeries to be provided wtll be gastroenterology and colon'
rectal, the plan provides no detail as to the non-primary care physicians to have offlce space in the
building, Additionally, it is industry norm for a center with short cases of this nature to have the last
case at more like 4 PM when the center is open until 6PM for recovery, Therefore, it could have an
additional two hours of case time between 2 and 4 PM,
The BHSF Operatlonal Plan results in half of the forecasted daily trips than could be generated bythe
AmbulatorySurgeryCenter, Thedetailsoftheplanindicateitwillhave24surgeriesaday,or43trips
per day in contrast to full potentialof L08 daily trips (adjusted for not being open on Saturday) and
assumingghoursof directcasetime. Theestimateoffullvolumepotentialof l0Btripsisbasedon40
minute case/turn time, Shortening that duratiorr to 30 minutes results in maxirnum trips of 152; atZa
minutes,itwouldbe2l6trips. TlreshortertimeismoreconsistentwithGlandcolon-rectal cases,
BHSF proposes the Surgery Center will lrave 22 employees though we believe this is understated given
fcr,l' cpelaiirg roor'lrs and the neeC Jor p)'a-Dp, llcst-tc. scr'.r!: nurse, techs, anesthesia, phrTsicians,
admissions/discharge clerk, room cleaners, transporters and a manager(s), We believe that the 22
ernployees are reasonable if it excludes plrysicians (surgeons) and anesthesia physicians/personnel.
With the number of operating rooms and potential case load, we would anticipate an addiiional :1.2
surgeons/anesthesia per day.
Physicol Theropy
Physical Therapy will be located in 5,300 net square feet of sllace on the 3rd floor of the bullding;
gross allocated square footage is 9,937 square feet, Per the Operational Plan, it will be open for
399
Review of BHSF Operational Plan
709 Alton Road
July 15, 2015
Dean ?
patlents L2 hours a day, Monday through Friday, The Operational Plan assumes it will have 6
therapists, 10 employees, and patlents willbe scheduled in 30 minute [:locks,
The Operational Plan does not lndicate nurnber of rehab stations or types of equlpment, Like
diagnostic treatment centers, volume is driven by the type and number of statlons and equipment.
The Operational Plan lndicates there will be an average of LL-12 patients per hour, which suggests 6
stations, However, its maximum capacity is stated to be 18 patients per hour, 'l-his suggests tlrere are
9 stations; it ls estimated that the full capacity of the 9 stations would be 1.44 patlents per day or288
daily trips,
P hysi ci on s / M e d i co I Offi ces
The BHSF Operational Plans states its intent to have prlmary care, gastroenterology and community
'physician offices. However, the plan only provides information surrounding the primary care ph\tsician
space and omits detail surrounding gastroenterology and community physician offices,
All of the physician office space will be on the 4th floor, adjacent to the urgent care center in
11,350netsquare feet, and 77,gOZ gross square feet, Less than half the space (5,200 of 11,350
square feet) will be dedicated to primary care physlclan space, BHSF Operational Plan lndicates 4
primary care physicians and 10 exam rooms,
Prlmary care will supposedly have 10 exarn rooms and 4 physicians, Hours of operatlon will be
MoncJay through Friday from 7am to 7pm and 4 hours on Saturdays, BHSF forecasted 81 patients a
day or L63 trips, Based on the full volume capacity of the space, parameters, primary care physicians
could see an average of 198 patients per day or 396 trips per day, Layering on community physicians
and gastroenterology would increase forecasted utilization as the space indicated on the floor could
accommodate another 10-12 physicians. Even just doubling the 163 trlps BHSF forecasts for
the 4 primary care physicians would be 325 daily trips, Primary care and other physicians servlces
appear 50 percent or more under capacity.
Employees
TheOperationalPlanstatesthetotalstaffwlllbeLL5. Lisestimatedbasedontheservicesandfacility
size there will more than likely be 145 employees.
For some {but not all) of the services proposed for the building, BHSF indicates the number of
employees it anticipates, ln some services it appears some staff has been omitted such as in in the
ambulatory surgery center there are not any anesthesia personnel or surgeons forecasted,
Additionally, io the extent commurrity physicians travelwith thelr own team, those personnelare not
included. In the medical office space, the physicians, physician extenders such as advanced nurse
400
iI,
Review of BHSF Operational Plan
709 Alton Road
July 15, 2015
Page 4
practitioners and physician assistants, and other personnel are all omitted in the community physician
a nd gastroenterology practices,
On top of servlce line specific employees, the Operational Plan indicates 3 security guards between
SAM and l.t:3OPM, or L8,5 hours per day, Ihis translates into 9.8 FullTime Equivalents (FTEs), The
Plan does not identify other building personnelsuch as maintenance and housekeeping which willalso
be incremental,
Parking
Parking remains understated based on industry standards relative to the functions occurring within
the bullding and industry metrics ln terms of parking spaces per square foot, With the number of
employees, plus more than one shift per day and parking needing to accommodate shift changeover,
the number of spaces is insufficient for employees let alone the patient volume.
Spoce Allocation
Table 1 below provides a space allocation by use for the building. lt is an allocation of common area
(program support) space to each ofthe medical uses to arrive at a total use square footage,
Use
Listed
Square
Footage
Percent Net
Space
Common
Area
Allocation
Total Area
Medical Office 11,350 3CI.0y 6,552 17,902
Diagnostic Center 6,000 ts.9%3,464 9,464
Surserv Center 1o,000 26.4%5,773 15,773
Physical Therapy 6,300 t6.6%3,637 9,937
Ureent Care 4,200 77,7%2,425 6,625
Medical Uses Total 37,850 1_00,0%21,850 59,700
Common Area 21,850
Retall/Caf6 3,900
)'^r ^ I <? qon
If
401
PATRICIA G REEN BERG, FACHE
N ATIO NAL H EALTHCARE AS SOCIATES, I N C,
999 Ponce De Leon Boulevard
Goral Gables, Florida 33134
305-444-5007
BUSINESS
EXPERIENCE:
1990- NATIONAL HEALTHGARE ASSOC|ATES, coral Gabtes, Florida
President
Established a healthcare and senior living consulting firm which specializes in expansion,
diversification, and acquisition analysis; strategic market positioning and market evaluation;
healthcare administration, planning and finance; compliance and regulatory support and
applications, including Certificate of Need applications; litigation support; financial modeling and
forecasting; workout services; market, financial and operational evaluations and assistance in
acquisitions or refinancings; determination and analysis of financing alternatives; securing
financing; and development. Clients include hospitals, nursing homes, senior living facilities,
physicians, other healthcare providers and related organizations and financing companies
serving the healthcare industry.
Experienced in preparing Certificate of Need applications for acute hospital services,
rehabilitation hospitals, long term acute care hospitals, hospices, psychiatric facilities,
home health agencies and nursing homes and providing related litigation support
services qualified in health planning, health finance, feasibility and operations
Skilled in needs assessments, markel studies and economic feasibility analyses for
healthcare services, hospitals, post-acute services, assisted living, skilled nursing and
retirement housing for new development, evaluation of existing operations and
acquisition opportunities
Provide on-going operational, regulatory and management support for healthcare
facilities including utilization evaluation and enhancement, regulatory reporting, financial
assessments and controls and administration support.
Conceptualized, structured and negotiated off-balance sheet transactions and physician
ventures.
Strategized and implemented business and service line opportunlties to enhance
revenues, increase market share and improve return on investment for hospital and
healthcare clients,
Evaluated properties for potential conversion to senior living facilities, including physical
plant and programmatic issues.
Planned and developed healthcare and senior living communities, including site
selection/analysis, project conceptualization, market and economic feasibility studies,
facility planning, campus master planning, medical equipmentation and development,
Formed NHA Management Services, lnc., a company specialized in the development
and operation of assisted living facilities, including those designed for lower income
population; serves as the company, s President.
402
PATRICIA GREENBERG
(coNTTNUED)
Partnered with clients in the planning, implementation, ownership and operation of
various types of healthcare related facilities, including congregate facilities, assisted
living facilities, nursing homes and medicaloffice buildings.
Qualified as an expert in judicial matters in the areas of health/hospital planning,
healthcare/hospital finance, financialfeasibility, long term acute care hospital planning
and operations, hospice planning and operations, staffing, budgeting and otherfinancial
operating criterion.
1984-1990 LAVENTHOL & HORWATH, Miami, Florida
Director, Southeast Healthcare Consultinq (1 990)
Assumed a new management position with broader responsibilities which was created as a
result of the Firm's reorganization. This one position replaced the roles of two positions - the
healthcare practice leader for Florida (previous position) and Georgia.
. Assumed professional staff responsibility for the healthcare consulting personnel in
Atlanta, in addition to responsibility for Florida personnel.
. Retained Florida clients and accepted responsibility for developing clients throughout the
Southeast region.
. lncreased utilization and chargeable time for the professional staff in Atlanta.
. Performed in this position untilthe Firm filed for bankruptcy. Have since retained client
base despite the bankruptcy filing.
Manaoer, Healthcare Consultinq (1986-1 990)
Managed lhe Firm's Florida Healthcare Consulting Practice, including client development,
seruice delivery and professional staff training and development.
Diversified practice from a predominantly retirement housing and long-term care base to
include substantial representation of hospitals.
Expanded practice to include strategic market positioning, Certificate of Need
preparation, rate optimization and hospital diversification strategy development.
Prc-r,ideC litigaticn suppor"t sen4ces relaied to Certiflcate cf I\.leed ad:,^rinls'lrat:ve hearlngs
and business interrupiion and damagdclaim cases.
ldentified product opportunities and market entry strategies forvendors to the healthcare
industry.
Supervised and directed the professional staff in the conduct of an engagement.
Authored and co-authored articles on annual basis focusing on topics of interest
including indigent care funding, long-term care joint ventures, hospital strategic planning
and converting a hotel to an assisted living facility, among others,
Presented numerous seminars related to the healthcare industry.
403
PATRIC]A GREENBERG
(coNTTNUED)
Assoclate, Healthcare Consultins (1984-1986)
Conducted healthcare market and financialfeasibility studies to support applications for
financing and for inclusion in public bond offering documents.
Evaluated sites for the development of retirement housing facilities and developed the
appropriate project conoept, including service focus, pricing and design, suitable forthe
site.
Cond ucted operational overviews of healthcare faci lities.
Supervised the staff and senior consultants in the execution of their responsibilities.
1983-1984 DELOITTE, HASKINS & SELLS, Miami, Florida
Healthcare Consultant
Conducted patient acoounting study that included management of a special receivables
reduction and cash flow improvement task force effort which resulted in the decrease in
accounts receivable days from in excess of '100 to below 50. Performed operational reviews of
hospital accounting, billing and collection functions, Managed automated thlrd-party
reimbursement programs for client hospitals in Florida and Puerto Rico.
1980-1982 WOMEN & INFANTS HOSPITAL, Providence, Rhode Island
Special Projects Coordinator
lnvolved in Certificate of Need application preparation for a $54 million replacement hospital
project. Assisted in writing a Request for Proposal for a computer system subsequent to
completing a Management lnformation System Study. Prepared preliminary operating budgets
and conducted capital asset planning and budgeting process.
EDUCATION:
Columbia University, Masters Degree in Health Administration
Boston University, BSBA, Finance and Operations Management
Board Certified in Healthcare Management
PROFESSIONAL
ACTIVITIES:
Fellow, American College of Healthcare Executives (ACHE)
Advanced Member, Healthcare Flnancial Management Association
Member, American Hospital Association
Member, Florida Hospital Association
Officer, Executive Committee, Treasurer - Board of Directors, South Florida Hospital/Healthcare
Association, Formerly Secretary (three years) and Treasurer (eight years) through 2010
Regents Advisory Council, ACHE (1991-1997)
Past RegionalVice President, NationalAssociation for Senior Living lndustries
Past Chairperson, Advisory Board, Florida Metropolitan University System
Past Board Member, The Healthcare Consortium
404
From: Skip Gregory
Date:fuly 20,2A75
Subject Code References for Project 0ceania
Please find some additional information concerning the project Oceania and
outpatient surgical services and outpatient clinical services in general.
The building and fire codes are determined by state rule and are applied to a project
as the rule of the reviewing agencies dictate as follows:
L. Unless the project received a Stage II approval from AHCA prior to December
31,,20!4, itwill be reviewed using the20LZ edition of the NFPA 10l" LSC and
all other NFPA codes as revised by the State Fire Marshal's Rule, Chapter
694-3,012 FAC.
2. Unless the project received a Stage II approval from AHCA prior to June 30,
2015, it will be reviewed using the 5u, edition of the Florida Buiiding Code
[FBC).
3, Unless the project has received construction document approval from the
]ocal authority having jurisdiction for fire codes review prior to December
3L,201-+, itwill be reviewed using the2012 edition of the NFPA 10L LSC and
all other NFPA codes as revised by the State Fire Marshal's Rule, Chapter
594-3,012 FAC.
4. Unless the project has received construction document approval from the
locai authority having jurisdiction for building codes review prior to June 30,
2075, it will be reviewed using the 5tt' edition of the FBC,
Although the Sfl, edition of the FBC still classifies an ambulatory health care
occupancy and an outpatient clinic as Business Occupancies, it has added a new
definition of an ambulatory surgical center that is aimost identical with the
definition of a hospital as follows:
AMBULAT0RY CARE FACILII'Y, Buildings or portions thereof used to provide medical,
surgical, psychiatric, nursing or sinrilar care on a less than Z4-hour basis to persons who are
rendered incapable ofself-preservation by the seryices provided.
HOSPITALS AliD FSYCIiIATRIC j-i0SPITi\LS. Faeili;.ies ;,rai prc;'ia; :ar; ri'creain:e;-ri for tlie
medical, psychiatric, obstetrical, or surgicai treatment of care recipients that
are incapable of self-preservation,
This similarity is carried into Chapter 4, Special Detailed Requirements Based on Use
and Occupancy,by the new section for ambulatory surgical centers, Section 422,
Because both types of facilities house patients "incapable of self-preservation", this
section has added new requirements that were not previously part of the FBC
including mandatory sprinklering requirements for all ner,v ambulatory surgical
centers.
405
Tlre Sth edition of the code also has added a new section to Chapter 4 for 7ffice
Surgery Suite, Section 469.Because outpatient clinics often perform surgical
procedures that are not covered by other design, building or fire codes, and because
these procedures can render the patient "incapable ofselfpreservation" section 4.69
was added,
This section now references the State Fire Marshal's rule, 694-3.0 j.2 FAC, the
Guidelines for the Design and Construction of Health Care Facilities, and just Iike
ASCs, it also references Chapter 20, Ambulatory Health Care occupancies in NFpA
101, Life Safety Code,
As can be seen from these revision taking place in the fire and building codes that
regulate ambulatory surgical centers and outpatient clinics, there is a growing
concern about the acuity and safety ofthe patient being treated in these settings,
Tlrerefore, the regulatory codes are moving more towards a rusk based assessment of
the services provided, whether they be inside of a hospital, an ambulatory surgical
center, or an outpatient clinic or doctor's office, As the commentary of the building
code states,
Complex outpatient surgeries outside of the hospital are now commonplace,
They are performed in facilities often called "day surgery centers" or
"ambulatory surgical centers" because patients are able to walk in and walk
out the same day. Procedures render patients temporqrily incapable of self-
preseryation by application of nerve blocks, sedation or anesthesia.
Patients in these facilities Spically recover quickly, A definition of "Ambulatory
care facili4t" is provided in Section 202. The code identlfies medical care Group
I occupancies as having Z4-hour stay. Without a Z4-hour stay, these surgery
centers are classified as Group B, Strictly regulating such occupancies as a
typical Group B accupancy is considered inappropriate, as this would allow the
rendering of an unlimited number of people incapable of self-preserttation with
no more protection than a business office. These types of facilities contain
distinctly dffirenthazards ta life and safety than other business occupancies,
such as:
1. Patients incapable of self-preservation require rescue by other occupants or
fire personnel.
2. iVledicctl stalJ must stabilize the patient priorto evacuation; therefore, staff
may require evacuation as well,
3, Use of oxidizing medical gases, such as oxygen and nitrous oxide.
4, Prevalence of surgical fires.
In the past, there wqs a. movement to classify ambulatory care facilities as
Group I-2 occupancies. Federal and statejurisdictions have recognized that
there is a middle ground between Groups B and I-2. These requirements
provide a scaled approach to protection. T'he occupancy classification is a
406
Group B, butwith some enhanced safety features focused on the concernwitlt
occupants being incapable of self-preservation on a temporary basis, The
enhanced requirements are based on the concepts in the regulation of the
Group I-2 occupancy requirements found in Section 4A7.
407
HEAIJTH FAC]IJTTY CONSULTING, L. IJ. C.
TAIJIJAHASSEE, FLORIDA
funans R. (Srcr) Gnncony, NCARB
HpaIrH FACILITY CoNsuI.rNc
TarlauassEn, FloruoA
WWW.I.IEALTHFACILITYCONSUT,TING. COM
E>CBruBNCBD IN THE REVIEW oF THE DESIGN AND CoNSTRUCTIoN oF HoSPITALs,
NURSING HOMES, AMBULATORY STIRGICAL CENTERS, AND OTHBR SIMILAR HEALTH
CARE FACILITIES To MEET VARIoUS CoDES AND STANDARDS. SERVES oN MANY
NATIONAL CODE WRITING COMMITTEES AND ADVOCACY GROTIPS FOR THE
ADvANCEMENT oF HEALTH cARE FACILITy DESIGN. OursporeN ADVocAt'E rroR
RESIDENT DIRECTED CARE AND HOUSEHOLD DESIGNS IN NTIRSING HOMES AND
PATIENT CENTERED CARE IN HOSPITALS.
EDUCATIoN
UrvtvpRsrry op TBxas - B. A. DscREB
fucp Uuvensu'v-MesrERS oF ARcnrrpcruRn DEcnpB
Pnornssrontal RpcIstrurrox nxo Apru,urroNs
R.ucrsrpRro AncsrrBcr - SrarB or FroRna Q.{o. 11759)
NCARB CnRrrrmo (No, 32824)
CsRrm'tso Sppcml FIRB Sarsry INspecron - Srarr oF FLONDA
CBRTMIPO FTNU SAFPTY INSPECTOR _ CPITITBR rON MTOTCANB/MEDICAID SNNVTCPS
CBRtm'mo FtnI Sarsry EvaruarroN SvsrBu luspncroR (FSES NFPA 101 A)
ExBcurrvn BoARD IUEIvtsER oF THE HBaLrs Caru SncuoN, NFPA
VoitNc rVovmnn t-t't Coons ttuo Stu;vortRDs REt'tEW Cotntrrrr, Hpalrg CaRn
SECTIoN, NFPA
Cuan op tur, Lnn Stwtry Coot Suacoutrutrrnt, HBalru CaRs SpcrtoN, NFPA
VoTING MnMsEn op NFPA 110/1ll TBcrucal Covnarrrpp, SrtuoAno tron
Eueacmtcy lxo Srlt ro pr P owon Srvmts,NFPA
VorNc MSMBBn or UL CoruurrrBr, Sr,q.ttoAnos Tocat'ncu PANEL 1069
Sravo,ano ron Hosptrlt StcutttNc ,qNo Nunsr, Cut EgunuoNr
4L28 ZefilaLt Drive,Tallahassee, FL 32303-2252 T 850-567-3303 Fu/Home850-514-
2495
unuwww.heaLthfacilltyconsuLtinq.com Emair@
408
Resume- James R. Gregory
Page2 of7
Voluc MeMBnR oF UL Couvrrrps, SraNo,q.nos Tncautcu PttNm 2560,
Sr.tNo,qno ron Eunncnt'tcy CALL Srsrzus FoR AsstsraD Ltvtwc AND INDEzENDENT
LtytNc Fluunos
VorrNc MpNrepn oF UL Couruirr:pr, StAtnAnos TECHNTcAL PANEL 1698,
PERSoNAL EMenceNcy RESPoNSE EQUIPMENT
Vormc MBvrsBR oF STANDARD 170, Vawru.qTloN FoR Hatmn Ctna Ftcturrus,
AITABRTczTI.I SoCmry oF HEATTNG, REFRIGERATION, AN. CONPITTONTNC
ENGrNrnns, (ASHRAE)
MsMnun oF Tr-rE Fr.oRna Frru SpzuNrr-nn AssoctATIoN (FFSA). NauoNaI- FIRB
SpnnrxrBR AssocrATroN, (NF SA)
MervmBR FloRroa Fmr MaRsHALS AND INspBcroRs AssoctATIoN, (FFMIA),
FnB Mansnam AssocrtrroN oF NonruAwpucL
MBMeBn oF Jus'TASKASHE, Sun,ttcr Marttn Expunr (SME) Ttsx FoncE, ASIIE
A ov oc ec y A ow s onv C o t t u ntt d, A tdaarc,qt't S o c t ETy o F H EA t rn c enn Et't c tu mrutt c
Crun oF THB Cwruns CnaNcs WoRKGRoup oN PsvstcaL ENvm.oNMENTS,
CuTTUnp CTUNCp CO{.INCIL, FLORIDA FIEALTH CARB ASSOCIATION
MBMenn oF THE NanoNal Cotrzfl,qrrpB FoR Tr-IE Rscoauot'lono Srluo,lnos pon
rna Dasrcu,lt'to CoNsrnucruot't or NnzNATAL lxrawstrz Cmt Uutrs NICU)
LnerrME MpNassR or Ftozuott Htttruclna ENGINEENNG Assocuruov (FHEA),
Arunrucnw Socrnrv HnqLruc.enr ENcwruntrc (FHEA)
MBvmpn oF THE 1997,2001,2006,2010,2014, AND 2078 CouutrruE ro Rrrtsr,
rut Gutotuxrs ron DasrcN,luo Cousrnucruou or Hpatrn Cann F,q:rLITIES
ExEcuuvr Boann MEMBER oF THE Socrurr FoR THE AortNcaunw or
GERONTO LOGICAL ENVTRONMENTS (SAGE)
Mr,usnR oF THE N,quorut Lna S,qpnrv Cooa Tznx Foncz ro REVISE rHB Lrp
Sapprv Cooss 2012 AND 2015 EDTIoNS, ProuBBn NETwoRK AND THE
Rorgscmlo FoI.INDATIoN
MBumnR or TecHNrceL Expsnr PANDL, CMS' Ntrtottat lr'trcuurB ro lupnovs
Bzu,qrtonn Hnetru & Raouca ruo Usr, or Auupsrcaorlc MEDI:ATIqNS FoR
lltrnstt c H o lg R e s n e lirs. B.zrr-ll,ronp. MlRvlarln
PunuczitroNs
CoNrsNr AUTHoR pov lwrnooucrroN ro B.estc Lru Slpzrv CzDE, NFPA 101,
2000 portoN, coNTRACTED By CTNTBR roR Mpucans/MrotcaIo SBnvIcrs
(cMs)
EottoR FoR A coMMENTARy/HaNngoor poR 7na GwoauNas FoR THE Dtstctrt
It'to Cot'tsrnucrtot't or HuLra Cmz Fa)ILITIES, CoNTRACTED BY TIII Guiopt tNBs
4128 Zermatt Drive, Tallahassee, FL 32303-2252 T 850-567-3303 Fu/Home850-514-
2495
uRt www. heal-thfacil ttyconeultinq, com Emall qreqory6klp@qmal I ' com
409
Resume- James R, Gregory
Page 3 of7
4128 zerrnaLt Drive, Tallahassee, FL 32303-2252
2495
URL
Facntrv INsururB AND AMERICAN SocIETy oF FIEALTHCARE ENcnrtppRnqc.
WOnx IS INPROGRESS.
Awnnos aNn Rncocxrrrous
CBRuprcere oF ArrRecmttoN, AvrpntcaN CoLt pcB oF }lparrg Canr
ARCHrrECTS,2010
ENcTNJapzuNG AwARD oF EXCELLENCE, FLORIDA HEALTHCARE ENGINEERING
AssocnnoN,2010
Cpnrmlcnrr Eor AppnscIATIoN FoR rnn AoveNcplvmNr or Crnrunr Cuaucr nq
NURSTNG HoMES, Flozuoa Healru Cap.BAssocnuou, 2009
Purr,rc SpRvaNr AwARD, FLoRIoR AssocnrtoN or Holrass AND Ssnvtcss roR
rss AcrNc,2009
CpRrlrIc,q.rE oF ArrRECTATIoN, AcpNcv FoR HEALTU Carul AoutNtstRauoN,
2009
EmcnrrBpp.rNc Awanp or Excplr,nuce, FLonIDA HEALTHcanB ENoINSERING
AssocmnoN,2007
CpRrmIcarr or AppRBcIATIoN, Facu,trv Gutoplnrms INstttute, 2006 aNo 2010
2012. 2013 ano 2014 PnrsrNrnrroNs
2014
o ,, 2OI4 FaCu,ITy GUmpmrms INSTITUTE UPDATES,,, ACE SUIvTIvtT AND RgVgItSIi
Expo,NEw Oru.raNs, LoursIaNA, FEB. 03-05,2014
o "SAGE PLACE", ENvtRonrr,mNTS FoR AcrNc, ANAHEIIvI, CalmoRue, Mav 3-
6,2014
o..LIFE SaTgTy Cons PaNEL OF EXPERTS,,, TELS SUMMIT, MIIWAUTEE,
wrscoNsrN, Mw 14-15, 2014. ..BUILDING AND FIRE SATSTY COOSS: NO LONCEN ITWPUUSInS T,O CHANGE,,
Snnnqc INTo tIE FuruRE, Ft-oruoa LEADING Acp, JecrsoNVILLE, SrrtevsnR 8,
20t4
o'oNEw ASHE auo AIA Srauoanos: Crurtcal IssuBs pon HSaTTHCARE
MAINTENANcp, ReNoverioN, AND CoNsrRucrIoN, FLoRIDa PRopssstoNAL IN
INrpcrroN CoNrRor 39t' Axlrual EoucauoNAl CoNrTRBNCB, ORtaNlo
FLoRTDA, SpprBMsnR 17 -19, 201 4
o "Allllut,AToRy Sur.clcei Cexirns Cope Upp.\rES", NEW Coots .\)'iD
sraNoeRps" 30" ANNUAL AHCA srumaR ANo 52*'At'INuaL FHEA Tnaps
SHow, Oru.ANno, FLozuDA, SBpreI\Gnn 22-24, 2014.
o OOFGI GurnsI,TNBs UPDATE, 2014,'WEBINAR, AMEzuCAN SOCMTY }IEALTHCARE
ExcrxrnnruNc AssocnnoN, OcroBER 7 4, 201 4
oOONEW ASHE auo AIA S.I.ANDARDS: CruTTCAL LSSUES TOR FIIAITHCARE
MaTNTBNaNCE, RTNOVATIoN, AND CONSTRUCTION,,
r "THE DestcN aNo CoNsTRUCTIoN or OurpartuNr SuRcrcal, FACILITIES" AIA
FoRr LauoERDALE CHArrrR, FoRr I-auoBRDALE, FLoRIDA, NovnMspR L5,2014
T 850-557-3303 Fax/Home 850-514-
Ematl qreqorvskio@qmal1 . com
410
Resume- James R. Gregory
Page 4 of7
2013. "'WHAT Wrr-t, AHCA Appnovn? DsvnloptNc Successrul ICRA AND ILSM
PRoGRAtr,ts", MIAMI, FLoRIDA, MARCH 2013. ..SAGE P.L.A.C,E, PRocnaiTavTNG FoR LIvTNC AND ACHIEVING CULTURE-
CuaNcp ENvrRoNtvmNTs", ENVIRoNMENTS pon Acnqc AxNuat- CoNFERENCE,
NEWORLEANS,ATTI 2013. ..CoDE IMPACT! How Culrunn CrraNcE INSPIRED RSvTSIoNS wILL AFFECT
YouR HoN,G" LEADTNG Acr FloruoA, DISNEy Onr-aNoo ResoRT, lut-v,2013. "CULTURE CriaNcr IN 2013", Flozupe Hsat-ru CARE AssocIATIoN 2013
ANNUAL CoNpBnBNcE AND TRaos SFIow, Hou-vwooD FLoRIDA, Aucusr 2013. "FIRE/Lmr Saprtv Upparcs roR NuRsnqc HotvGS, FHCA RectoNal
EDUCATION SEMINARS, TALLAHASSEE, TAMPA, ORIANDO, DAVM, OCTONER 1-4,
2013. CoDE CnaNcus ron CulrunB CHANGE, 65'" ANttual FnB PRsvBNroI!
CoNrpRpNcn, FLonne Fnp M,q.nsIrALS AND INspncroRs AssocIATIoN, KEY
WBST, FLoRIDA, NOVEMBER 20 1 3
2012. 'NEW Coors AND SraNoanos Rrvpw Fon Flotuoa Htalru Cans
FACILITIES", OFntce or PI-aNs aNp CoNSTRUCTIoN, TallagassEE, ORLANDo,
ANDMIAMI, FLORIDA, FaenuARv 2012. ..FGI GUToBLINBS AND IIVPACT ON FIRE SAFETY,,, NAUONAI- TRENDS IN
DBuvpRy oE HBeLts AND LoNG TBnu CanB: IuplrcattoNs roR Sargrv Copps
axo StaNoARDs", BaLfitvtoRE, MARyLAND, Mencn 2012. "SAGE P.L.A.C.E, PRocnAiul,nNG FoR LtvtNc eNo AcmBvNc CuLruRE-
CIIANcE ENVIRoNT\.GNTS", RoTHScHILD FoLrNoauoi.l AND AclNc AND
ENvIRoNMENT, ORLANDo,FLoRIDA, Aprul 2012
. O.THIRD AuNuar AIAS/SAGE SruopNr DPSICT.I COIpBTITTON, ENVTRONMENTS
EonAcntc 2012, OnraNoo, FLoNoA, ArNL 2012. "SAGE SruorNrDrstcN Colalnrll'roN aNo RsvtstoNs ro Copes pon CulruRB
CHANGE", AHCA/FHEA AN.nrrual CoNrBrcNcE AND Tnaop SHow, ORLANDo,
Fr,oruoa,2012
PnornssroN.q.L ExpnMENcp
Hnalru Facrlruv CoNsulrnc, LLC
TALLAHAssnu, l'lonloa
Pnr,sros,Nr
2010 ro PnEspNr
Du-nus .ltr,o R.r-spo\TSIBILITIE s :
PROvTopS CODE AND DESIGN CONSULTING SERVICES FOR NEW AND EXISTING
IIEALTH CARE FACILITIES INCLUDING HOSPITALS, NURSING HOMES, AMBULATORY
STJRGICAL CENTERS, AND OTHER LICENSED AND CERTIFIED HEALTI-I CARE
FACILITIES.
IRoDUCES rHE ANNUAL AceNcv non HeaLrn CRns AourNtsrnnrtou (AHCA)
TRAINTNG sEMTNAR THRoucH coNTRACT To rHE Flonroa Hpalru Cans
ENcnvBpruNc AssocnrIoN, (FHEA),
4L28 zermatt Drive, Tallahassee, FL 32303-2252
2495
T 850-567-3303 Fu/Home 850-514-
Emall@uRt www . healthf acil i qyeonsultj-ng . com
411
Resume- James R. Gregory
Page 5 of7
PROVDES CODE AND DESIGN TRATI\ING SEMINARS AND PRESENTATIoNS FOR
HEALTH CARB PROFESSIONALS AND ASSOCIATIONS, ARCHITECTS, AND ENGINEERS.
AcnNcv FoR HEALTH CARE AorumrsturroN
Office of Plans and Construction
Tallahassee, Florida
BuRBau CuIpr
1993 -2010
DUTIES AND RESPoNSIBILITIES :
MANAGED THE ACTIVITIES oF 46 ancTuTBCTS, ENGINEERS, FIRE PRoTECTIoN
SPECIALISTS AND ADMINISTRATIVE STAFF LOCATED IN THREE SEPARATE OFFICES IN
THE REVIEW AND APPROVAL OF ALL NEW CONSTRUCTION AND RENOVATION
PROJECTS IN AtL HOSPITALS, NURSING HOMES, AMBULATORY SURGICAL CENTERS,
AND INTERMEDIATE CARE FACILITIES FOR THE DEVELOPMENTALLY DISABLED.
MANACco THE ARCI-UTECTURAL REvIEw oF ALL CERTIFICATE oF NEED
SUBMISSIONS AND ALL ANNUAL LICENSURE SURVEYS LOCATED IN THE STATE OF
FLonroa.
PLENupn AND CooRDINATED THE TRAINING FoR 10 T.InE SA-FETY INSPECToRS IN
T'I]E FIELD OFFICES OF TIIE I]IVISION OF HEALIH QUALITY ASSURANCE.
PIEMTNo AND COoRDINATED THE AGENCY,S RESPoNSIBILITIES IN TFIE EMERGENCY
OPERATIONS CENTER AND OF THE DEPLOYMENT OF DAMAGE ASSESSMENT STAFF
PERSONNEL IN EVENT oF EMERGENCY AS PART oF THE ESF-8 REspoNsp PLAN.
PT.AMTTPO AND CONDUCTED THE STATE wIDE ANNUAI SEMINAR PRESENTED To ALL
DESIGN PROFESSIONALS, CONTRACTORS, OWNERS AND PROVIDERS OF HEALTH CARE
PRACTICING IN THE STATB oF FLoRIDA.
SECUREo, PLANNED AND BUDGETED TECHNICAL TRAINING SEMINARS AND SCHooLS
FOR ALL SI'AFF PEITSONNEL.
RBwRoTe AND UPDATED TTIE STATE RULES AND CoDES GovERNING HEALTH CARE
CoNSTRUCTIoN IN THE SrarB op FLozuoI..
MawramBD LTAISoN wrrH oT'ltER oFFrcES IN THE AcsNcv p'oR HEaLru CanB
AomNrsrRaTroN, Flozuoa Hosprtal Assocmttol, Fr,oRIoa HBar,rH CeRs
AssoclrrroN, FLo?,iD.\ \{r,olc.tr- Assoct.tuox, cFllcES oF TI-IE St,rtp Frc.
MARSHAL AND oT}IER INTERESTED PRoFESSIoNAL ASSoCIATIoNS AND oFFICIAL
AND VOLUNTARY AGENCIES CONCERNING THE FACILITY DESIGN, STRUCTURE AND
FTINCTION OF }IEALTH CARE FACILITIES.
DBTTnumpD WHICH PRoJECTS PRoPoSED BY THE HEALTH CARE FACILITIES MUST
BE SUBIECT To REVTEw By rIrE OrprcB or Plalls auo CoNSTRUCTIoN.
RBPRBSPNTBD TTIE AGENCY To THE STATE LEGISLATURE CoNCERNING ALL FIEALTH
CARE CONSTRUCTION ISSTIDS.
4L2B Zerfi\att Drive, Tallahassee, FL 32303-2252 T 850-567-3303 FaxlHomeB50-514
2495
URL www. healthf ac i1 itvconsul.tinq . com Email qreqorygkip@gmaiL , com
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REPRESENTED THE STATE ON VARIOUS NATIONAL CODE COIVMITTEES INCLUDING
THE FLORIDA BUILDING COMMISSION AND THE NFPA.
AcsNcy FoR HEALTH CARE AouINrsrnauoN
Oprrcn oF PLANs AND CoNsrRUCTroN
Tu,lanassEE, FLoRIDA
ARcurrpcr SuppnvrsoR
1989 - 1993
DurrBs AND RESPoNSIBILTUES :
SupEnvtsro 11 rucrsrrnpD ARCHTTECTS rN THE REVTEW AND TNSpECTToN oF ALL
NEW CONSTRUCTION AT ALL LICBNSED AND CERTIFIED HEALTH CARE FACILITIES IN
rns Srare or FLoRma, REGULATED UNDER Cnapron 395 alrn 400, F.S.
INCLUDING HOSPITALS, NLIRSING HOMES AND AMBULATORY SURGERY CENTERS.
RPVMWTO AND APPROVED ALL WoRK PERFoRMED BY THE ARCI{ITECTURAL STAFF
INCLTIDING STAND-UP REVIEWS, PLAN REVIEWS AND CONSTRUCTION SURVEYS.
IUTTNvmWPD, H]RED, EVALUATED, TRAINED AND DISCIPLINED ALL MEMBERS oF
THE ARCHITECTT'RAL STAFF.
PA TTCTpITED IN THE SUPERVISIoN oF TWo REGISTERED ARCHITECTS wHo
REVIEwED THE ARCHTTECTTTRAL sEcTroN oF THE Crnrmrcatp oF Nspo
AppLICATIoNS. CooRorNarBD THIS REVIEW pRocEss wITH THE CpRnrrcttB op
Npno Orprcn ro ENSURE coMpLtANCE wrrH ALL Srars RULES AND REGULATIoNS.
PARTICIPATED IN THE SUPERvISIoN oF EIGHT INTERDISCPLINARY REvIEw TEAMS
COMPOSED OF A REGISTERED ARCHITECT, MECHANICAL ENGINEERAND ELECTRICAL
ENGINEER IN THE RXVIEW AND INSPECTION OF ALL LICENSED AND CERTIFIED
HEALTH CARE FACILITIES.
PlaxNno woRKLoADS, woRK FI,ows, DEADLINES, woRK oBJECTIVES AND TIME
UTILIZATION OF THE ARCHITECTS AND THE SURVEY TEAMS.
PIANUPo AND CoNDUCTED WEEKLY STAFF MEETINGS AND QUARTERLY
WORKSHOPS FOR ALL STAFF PERSONNEL SO THAT CONTINTIITY OF CODE
ENFORCEMENT AND INTERPRETATION IS MAINTAINED,
WAS TIIE DELEGATED AUTHORITY FOR ALL TECHNICAL STIPERVISION DLrRING THE
ABSENCE oF THE Bun-aru CiiigI.
AcnNcy roR IInar,rH CARE AonumsrnarroN
Orucr or PLANs a.Nn CoNSTRUCTIoN
T.lr,urussEo, FLoRroA
AncmrBcrII
Prau Rrvrpwsn/CoNsrRucTroN SuRveyoR
1986- 1989
4L28 ZermaEt Drive, Tallahassee, FL 32303-2252 T 850-567-3303 Fu,/Homo850-5L4-
2495
unl- www. healthf acilitvconeultino. com Emall@
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Durtps AND RESPoNS rB n,rrrEs :
Srarr ARCHTTECT wrrH THE OrprcB oF LrcpmsuRe AND CERTTFTcATIoN.
RPSpoNSISLE FoR THE REVIEW AND APPRoVAL orTHE PLANS AND CoNSTRUCTIoN
OF ALL }IEALTH CARE FACILITIES IN THE STATE OF FLORIDA REGULATED TINDER
CuaprBR 395 AND 400, F.S., TNCLUDTNc HospITAI-s, NURSTNG HoMEs,
AMBULATORY CENTERS AND OTHBRS. REVIEWED PLANS AND SPECIFICATIONS (3
STAGES: SCHEMATIC, PRELIMINARY AND CONSTRUCTION DOCUMENTS) TO UUTT
TIIE STATE ADMINISTRATIVE CODES, BUILDING CODES, FIRE SAFETY CODES AND
HANDICAPPED ACCESSIBLE CODES.
ACTSo AS TI-IE TEAM LEADER FoRAN INTER-DISCIPLINARY TEAM CoMPoSED oF AN
ARCHITECT, MECHANICAL ENGINEER AND ELECTRICAL ENGINEER. Coonon,IaIso
THESE FINDINGS AND ALL DEFICIENCIES WITH l'HTi TEAM MBMBERS AND PREPARED
wRrrrEN REpoRTS FoR TrrE AppRovAL oF THEARCHITECT SupBRvrsoR. Sunvpvuo
EXISTING FACILITIES FOR COMPLIANCE TO THE MINIMUM REQUIREMENTS OF
CuanrR 13, NFPA 101. CoNouctBo oN-srrE TNSIECTToNS DURTNG
CONSTRUCTION TO ASSUIIL COMPLIANCE WITH THE APPROVED PLANS AND
SI'ECIFICATIONS, REVIEWED ALL CONSTRUCTION CI-IANGE ORDERS AND FIELD
CHANGES AND RECoMMENDED To THE OFFICE oF LICENSURE aNo CSRTIpICATIoN
THAT THE PHYSICAL PLANT WAS READY FOR OCCUPANCY.
RnnnnnNcns OxRuoursr:
4L28 zermatt Drive, Tallahassee, Fl 32303-2252
2495
unL www. heal!hf acl 1 i tvcgneulting . com
T 850-557-3303 Fu/Home850'514-
Emall qreqorvskip@qmail . com
414
TF{H C$RRAMINO ffiffiffiUP INffi"
ENGINEIFG' PIANNERS . PROGMMI\4ANAGERS . ENVIRONMEIITALSCIENTISI"SoZ
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Project #:
Subject:
Iuly 20,2015
Stephen I(, Bryan, PE, PTOE
TCG# 42't6-01
Proposed 709 Alton Road Project
Updated Traffic Impact Study Review (Dated June 9,2015)
Trip Generation Study Review (Dated April20, 2015)
MEMOR.ANDT]M
To whom it may concern:
This memorandum documents the findings of the detailed review of the proposed'709 Alton Road
Froject Traffic hnpact Study prepared by Traf Tech Engineering, Inc., dated June 9, 2015, The
review also iucludes the accompanying Trip Generation Study prepared by David Piurnmer &
Associates dated April 20,2015. The review comments have been divided into the following tluee
sections:
UPMEU @ATED JUNE i,2015)
Data Collection
i. The traffic study lvas noted as "Upilated June 9, 2AI5", horvever traffic data coliection
deficiencies frorrr the original traific study (conducted during October 2013) were not
updated. kr particular, the signalized intersection of Alton Road and 86 Street was not
updated, As noted on Page 6 and in Figure 3, the northbound and southbound movements at
this intersection were blocked off during the Alton Road construction project and
assumptions were made for these movements in the future traffic analyses, However, the
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,)
Alton Road northbound and southbound left turn movement restrictions were removed in
.lanuary 2015 and the updated traffic study did not reflect this change, The collection of new
traffic counts reflecting actual operating conditions will remove the previous assunptions
that were made in the original trafftc study. Update the traffrc volumes for this intersectiorr
to reflect current traffic conditions.
2. The traffic study only contained traffic couirts collected during the PM peak period, but the
trip generation data collected reflected both the AM and PM peak periods. Therefore, the
traffic analyses contained in the traffic study can only reflect PM peak period operating
conditions, The AM peak period cannot be considered in the traffic analyses ra,ithout traffic
counts collected during the AM peak period.
Trip Generation and Distribution
3. The foilowing ate comments regarding Table 1 on Page B:
a, The ITE Land Use Code 826 (Specialty Relail) contained 10 total trips that were
calculated from the rate equation. Since the ITE I* value was 0,98, the equation
fbrmula should be used to determine the total nunber of trips (31 total trips). Update
the land use to reflect the equation formula,
b. The Same Day Surgery Land Use is listed as 9,900 SF in size, however the
independent vaiable that the trip generation rate was based on was Procedure Rooms
(riot SF size area). The number of procedure rooms for this land use is not listed in
Table 1 or in the proposed land uses on Page 3. Explain how Procedure Rooms
correlate with the SF size area.
c. For the Common Areas, the weighted average of all other iand uses was used to
determine its trip generation rate (2.49). However, the weighted average of all other
land uses was not used to determine the inbound/outbound percentages (34% and 66%,
respectively), in addition, the 2.49 trip generation weighted average rate included the
published average rates for the ITE land use codes (LUC "120 and 826). The trip
ge;r:;eti...'. l:i:;';s:.1 :::'"1:e ri:l;l:::J i..':.:'lg; :.::: cal:,:l1'.ici.S f,.r t1::*.3 11ya h:id L:s-.
codes should be quantified from the equation fomula results. ln oflrer words,
LUC 720 should be 3.60 (instead of 3,57) and LUC 826 should be 8.16 (instead of
2.71).Update the land use to reflect the equation formula results.
d. Daily trips were calculated and provided in the originai traffic study, but has been
removed from the updated traffic study. This information could not be checked.
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4,
5.
3
In Figure 4 on Page 1 0, the intersection of Alton Road and 8s Sheet depicts 25 inbound trips
traveling southbound on Alton Avenue. FIow do fliese 25 inbound trips become part of the
55 inbound trips entering the site during the PM peak hour?
ln Appendix E, the cornmitted deveiopment trips shown for each intersection should be
further detailed to show how these committed developments trips for the proposed
development were derived from the committed development trips contained in Appendix D.
Provide more details on the committed development trips, especially how they relate to the
proposed development.
ln Appendix E, the intersections of Alton Road and 7e Street along with Alton Road and the
project driveway depicts 36 northbound through trips for the 600 Alton committed
development instead of 72 trips shown in Appendix D. Which is correct?
Fuh:re Conditions Traffic Volumes
7 . On Page I 1 and contained in Appendix C, a 1.01 peak season factor was used to convert the
existing traffic counts to peak season conditions based on the factors provided for Category
8700 Miarni-Dade North in2012. Subsequently, the Florida DOT has published 2014 peak
season factors and due to its proximity to the proposed development, Category 8739 Miami-
Dade I-395 is the most appropriate category of peak season factors to use for this traffic
study (1.06 peak season factor). Update the future traffrc volunes,
8, On Page 11, the study notes that "minimal traffic growth has occured during the past 5
yeaxs" and that a conservative approach of 1o/o was used for the arurual glowth rate.
However, using the information contained in Appendix C, the past 5 years (2A08 b 2012)
reflected a2.87% compounded anrrual growth rate for Site 2527 and a 1.61.Yo compounded
arurual growth rate for Site 6059. The average growth rate of these two sites would equal a
2.24% compounded annual growthrate instead of the 1% used inthe traffrc study. Update
the future traffic volumes,
9. On Page 11 and in Appendix D, at least frve of the nine committed developments presented
Saiurday peak hour trips. This report did noi noie thai at assuiriptioll was made io iquaie the
Saturday peak hour trips to weekday peak hour trips. Note this assumption along with any
other assumptions in this study.
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6.
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4
Trafflrc Analyses
10, i1 Table 3 on Page i5, the 2013 existing analysis was not updated to include the current
traffic conditions noted previously in Comment 1,
1 1. In Appendix E, the intersection of Alton Road and 86 Street was not updated to include the
current traffic conditions noted previously in Comrnent l.
12. Il Appendix F, the report summary for the intersection of Alton Road and 8s Street does not
reflect the signal timings provided in Appendix B, Verify with the Miami-Dade Conty
Siglals and Signs Division that these signal timings are still the same or if not, obtain the
latest signal timings and update the traffrc alalyses accordingiy. In addition, the current
traffic conditions were not updated as noted previously in Comment 1. The peak hour factors
(PHF) for the approach to this intersection were not provided and could not be checked.
13 . I1 Appendix F, the repofi summary for the intersection of Alton Road and 7e Street depicts a
PHF for the northbound and southbound approaches of 0.95 and A.92, respectively. The PHF
for both of these approaches should equal 0.98 to match the traffic count data contained in
Appendix B,
14. Ip Appendix F, the report summary for the intersection of Lenox Court and 7ft Street depicts
a PEIF for the southbound approach of0.92. The PHF for this approach should equal 0'58 to
match the traffic count data contained in Appendix B.
Miscellaneous Comments
15. On Page 72, "(HCS) should read "(HCM)",
16. For Tables 3 and 4 on Page 15, the source information sliould also include SYNCHRO.
1 7. In Appendix E, the intersection of Lenox Court and 7tr Street header ilrfonnation should read
7e Street instead of 8e Street.
18. The Appendix G comments are detailed in the Trip Generation Study review comments
provided in the next section.
TRIP G_ENERATXON SllUUv R.EVTEW (p. ATED AFB,rL 20" ?015)
Data Collection
19. At BHSF sites, the in-office surveys were conducted for each visitor and employee, Were
the employee in-office surveys conducted to include all physicians performing services at
each BHSF site?
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5
20, The traffic data for the trip generation study was not collected consistently. On Page 3 and
Exhibit 2 onPage 4, the traffic data was collected three different ways (i,e. In-offtce surveys,
windshield surveys, and driveway counts). These data collection procedures varied within
each larrd use and these dissimilar ways of data oollection could lead to some data being less
accurate than other data that was collected,
Trip Generation
21. On Page 1, the Community Center land use should be revised as the Commons Area land use
to match the traffic study (e.g. Page 3 and Table 1 on Page B). This change sliould also
eliminate any possible confusion with ITE LUC 495 (Recreational Community Center).
22.InBxhibit 3 on Page 5, the Sane Day Surgery Land Use independent variable that the trip
generation rate was based on was Procedure Rooms (not SF size area). The number of
procedure rooms for this iand use is not listed in Table I of the traffic study report. Remove
the SF size area and replace with the number of procedure rooms that are encompassed in
the proposed development.
Trip Generation Sunmary Tables (.Attachment A)
23, In Attachment A, rounding errors are contained in the spreadsheets and needs to be checlced,
24. In Attachment A, the in/ouVtotal trips for each land use were developed by averaging the
counted trips during the 3-day data collection period. These averages were then diluted by
averaging them with the tluee different locations where data was collected, Since the trip
data was collected during the peak periods for three days and to be conservative, the highest
peak hour during the data collection period for each of the three different locations should
have been used ancl averaged together to determine a trip generation rate for each lald use,
In addition, the in/out percentages should have been based on these same peak hours.
25. In Attachment A for the Physical Therapy Land Use, the Doctors Hospital Sports Medicine
& Rehab trip generation summary survey stated that data was collected from April 14,2015
tcr April 16,2015. Horvevei, the trip generation indlvidr-ral sr-rrveys reflect April 7,2015 to
April 9, 2015. Wirich 3-day data collection period is correct?
26. In Attaclment A, the following trip generation resuits provide a brief calculation sumnary
using the methodology noted in Comment 23 (i.e. the highest peak hour in lieu of the
average peak hour). A comparison of trip generation rates to the Trip Genetation Study is
also noted. Update the trip generation analyses used for both studies accordingly.
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a, Urgent Care Center Land Use (2,83 vs. L86 in the Trip Generation Study)
b, Diagiostic Center Land Use (1.47 vs, 0.69 in the Trip Generation Study)
c. Physical Therapy Land Use (8,25 vs. 4.80 in the Trip Generation Study)
d. Same Day Surgery Center Land Use (2,17 vs" 0,89 in the Trip Generation Study)
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Location
Highest PM Peak Hour Independent
Variable
Trip Gen. (PM Peak I{our)
In Out Total Rate In Out
BMPCG 7 9 t6 s664 SF 2.82 44%56%
BMPT 9 9 18 7217 SF 2.49 s0%s0%
BMPB 5 10 15 47OB SF 3.19 33%67%
Overatrtr.dvg,2t 2E 49 2.E3 43Y"51o/"
Location
Highest PM Peak lfour lndependent
Variable
Trip Oen, (PM Peak Hour)
In Out Total Rate In Out
BMPT J 10 13 6689 SF 1.94 23%770
BMPCG J oo 11 80s7 sF 1.37 27%73%
BESC 2 6 8 72s1 SF 1.10 25y,75%
0veralX Avg.I 24 32 \.47 250h 750/o
Locatiotr
Highest PM Peak Hour lndependent
Variable
Trip Gen, (PM Peak IJour)
In Out Total Rate In Out
PPT 14 22 36 1962 SF 18.35 39%61%
SCG 5 9 t4 3s00 sF 4.00 36%64%
DHSMR 11 13 24 10000 sF 2.40 46%s4%
Overall Avg.30 44 74 8,25 41|}59Yo
Location
Highest PIt4 Peak Hour lndependent
Variable*
Trip Gen. (PM Peak Hour)
hr Cut Total Rate In Out
BHGEC 3 12 l5 6PR 2.50 20%80%
BI.IECCS ))4 4PR 1.00 s0%s0%
BESC .,15 1B 6PR 3,00 17%83%
Overall Avg.B 29 31 2.77 220 780/o
*Procedure Rooms (PR) do not correlate with the SF independent variable.
420
7
'IRAFEIEST@IEE R$YXEW EUMMARY
27. The Trafflc Study should be revised and updated to reflect the comments contained in this
rnemorandum, in particular, but not limited to, the following items:
a, Update and provide a new traffrc count at the intersection of Alton Road and 86 Sheet
to reflect the cunent traffic patterns.
b, Update the trips generated by the site and distributed on the roadway network based on
these review comments including those provided for the Trip Generation Study,
c. If the AM peak hour needs to be analyzed, then AM pealc period trafflc needs to be
counted to be collected and analyzed in the traffic study.
d. Update the future total traffic volumes based on these review comments,
e, Update the traffic analyses based on these review comments,
28, The Trip Generation Study should be revised and updated to reflect the comments contained
in this memorandum, in particular, but not limited to, the following items:
a. Update the trip generation to provide information on the Procedure Room independent
variable for the Same Day Surgery Center Land Use. If not available, then the trip
generation rate needs to be revised and determined by the SF independent variable,
b. Update the trip generation rate analyses for each ofthe four land uses based on these
review comments.
After your review, if you have any questions, please feel free to contact me or Salman Rathore to
discuss.
Sincerely,
Ttr{E CORR.ADINO GROUP, rNC.@
Stephen K. Bryan, P,E,, PTOE
sbryan@comadino,com
(61s)982-6204
CC: Salman Rathore, The Corradino Group
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421
MEMCRAI{D['4,1
SUBJECT: PARKING IMPACT REVIEW
!,UALKffiM
PAIII(NO CONSUTTANTS
DATE:
FROM:
SUBJECT:
July 20, 2015
Jon Mortens
Review of Proposed 709 Alton Rood Porking
4904 Eisenhower Boulevord, Suite I50
Tompo, F133534
Office: B 13.888.5800
www,wolkerporking.com
Wolker Porking Consultonis (Wolker) provides the following points to consider regording the
plonned porking for the proposed medicol outpotient heolthcore focility locoted ot 709 Alton
Rood, Miorni Beoch. Our review indicotes 278 spoces ore recommended before ony locol
odjusiments ore mode to meet the projected peok hour demond. Considering potentiol
odjustments, we recommen<1 providing no less thon the 212 spoces required by City code.
Recomnnended, Requined omd Froposed Forking
The Zoning Doto Summory sheei for the project proposes to provide 175 porking spoces (2'76
spoces per 1.000 sf).
This equotes to o 17.5% reduction io the City requir,ements bosed on providing 1 spoce per 300
sf (3.33 spoces per 1,000 sf).
Wolker recommends using o bose rotio of 4.5 to 5.0 spoces per 1,000 sf depending on the
specific medicol lond use. A slightly lower bose rotio for retoil ond cof6 lond uses is
recommended, which reflects the cof6 will be primorily used by on-site potrons. Wolker's
roiios ore bosed on the previous internol reseorclr on medicol office use porking demond ond
dolo from the lnstitute of Tronsportotion Engineers (lTE) Porking Generotion, 4th Edition, ITF-
publicotion. The resuliing bose demond moy be odjusted to occount for locol conditions, but
is designed to ensure sufficient porking during the peok hour of demond. A comporison of the
recommended, required, ond proposed porking is provided below'
The required porking is considerobly less ihon the typicol recommended bose rotio' When
odjustments to the bose rotio ore opplied to occount for drive rotio reductions {most likely for
employees) the recommended bosed rotio con be odjusted downword, but likely not to o
level below the required porking by City code.
ffiJ00
Colculoted
Rotio
Wolker Reseorch
MedicolOfflce
Diognosiic Center
Surgery
PhysicolTheropy
18,444 GSF
8,089 GSF
'!6,01 7 GSF
10,03r GSF
7,',r '19 GSF
4,50 /k GSF
4,50 /k GSF
4,50 /k GSF
4.50 /k GSF
5,00 /k GSF
B3
36
72
45
36
Sub-Totol Medicol Uses 59,700 GSF 272 4,s6 /k GSF
422
IUEft/loRAE\lDIJM
SUBJECT: PARKING IMPACT REVIEW w mfm:;i$ffim
Impoct of Disploced Forking
This site wos included in ihe overoll observotions of Souih Beoch porking study conducled
during o weekdqy ond weekend in November 2013 (report issued in 2014), During the
observotions 57 spoces were inven'toried on the poved surfoce lot locoted on the site. This
porking lot oppeors to hove exponded since the originol observotions were mode.
Occuponcy levels on lhe surfoce lot during the weekdoy ofternoon reoched 4?%; weekend
occuponcy reoched 98%, The proposed development Wll disploce this porking demond
which will most likely need to be qbsorbed within the surrounding oreo.
While the redevelopment of the siie does not require ihe existing demond be occounied for in
the new development, the loss of the porking will likely hove o negotive lmpoct to the
surrounding oreo,
Othen lterns
Considering ihe Iond uses ond intended funciions, peok demond would be during o weekdoy
doy period with limited to no shoring due io ihe commonolity of the lond uses (medicol).
Reductions in porking demond for odding bicycle porking should be limited to employee
porking, os potrons (medicol poiients) ore unlikely or unoble to utilize o bicycle to visit the site
for treotment. The totol number of bicycle spoces provided on fhe site is not cleor ond only
stotes one porking spoce per 12 short-term bike spoces.
423
MIAMIBEACH
City of Miomi Beoch, I700 Convention Center Drive, Miomi Beoch, Florido 33139, www.miomibeochfl.gov
COMMISSION MEMORANDUM
TO: Mayor Philip Levine and Members of the City Commission
CC: Jimmy L. Morales, City Manager
Raul J. Aguila, City Attorney
FROM: Rafael E. Granado, City Clerk
DATE: July 31 ,2015
SUBJECT: Request From The Miami-Dade County Supervisor Of Elections For Permission
To Do Absentee Voter Outreach, Pursuant To Florida Statutes 101.655, To
Electors Residing ln Assisted Living Facilities (ALFs) And Nursing Home
Facilities Located Within The Gity Of Miami Beach for the upcoming November 3,
2015 Elections.
The Miami-Dade County Supervisor of Elections is requesting permission from the City of Miami
Beach to do absentee voter outreach, pursuant to Florida Statutes 101.655, to electors residing
in assisted living facilities (ALFs) and nursing home facilities located within the City of Miami
Beach for the upcoming November 3,2015 Elections.
lf permission is obtained from the City, Miami-Dade County Elections staff will contact the
administrators of said ALFs and nursing home facilities to determine if they will allow the
Elections Department to contact the registered voters residing in their facilities to offer them
supervised absentee voting. lf there are registered voters residing in these facilities interested in
this service, Miami-Dade County Elections staff prints the absentee ballots, takes them to the
facility, facilitates the voting process such that the voter completes their own ballot, and then
staff returns to the office with the completed ballots in a secure manner.
There are four (4) assisted living facilities (ALFs) and one (1) nursing home facility in Miami
Beach that qualify for this service.
Cost estimates are not available at this time given the number of variables. Cost is based on the
actual hours invested to perform supervised voting (i.e., how many sites, how many people, how
many hours, etc.).
I am hereby requesting direction on how to proceed with this request from the Miami-Dade
County Elections Department.
A copy of Florida Statutes 101 .655 is attached hereto.
T:\AGENDA\201SUuly\CITY CLERK\Absent Electors in ALFs Nursing Homes - Discussion ltem - July 31 , 201 5.doc
Agenda ltem R?F =Date ?-31-l{424
Statutes & Constitution :View Statutes : Online Sunshine Page I of2
Setect Year: lroGv| E
The zor5 Florida Statutes
Titte lx chaoter 101 view Entire chaoter
ELECTORS AND ELECTIONS VOTING METHODS AND PROCEDURE
101.655 SupeMsed voting by absent electors in certain facilities.-
(1 ) The supervisor of etections of a county shatl provide supervised voting for absent electors
residing in any assisted tiving facitity, as defined ins.429.02, or nursing home facitity, as defined in s.
400.021, within that county at the request of any administrator of such a facitity. Such request for
supervised voting in the facitity shatt be made by submitting a written request to the supervisor of
etections no later than 21 days prior to the election for which that request is submitted. The request
sha[[ specify the name and address of the facitity and the name of the electors who wish to vote
absentee in that etection. lf the request contains the names of fewer than five voters, the supeMsor of
elections is not required to provide supervised voting.
(21 The supervisor of etections may, in the absence of a request from the administrator of a facitity,
provide for supervised voting in the facitity for those persons who have requested absentee battots. The
supervisor of etections shalt notify the administrator of the facitity that supervised voting witt occur.
(3) The supervisor of etections shatl, in cooperation with the administrator of the facitity, select a
date and time when the supervised voting will occur.
(4) The supervisor of elections sha[[ designate supervised voting teams to provide the services
prescribed by this section. Each supervised voting team shatt inctude at least two persons. Each
supervised voting team must inctude representatives of more than one potiticat party; however, in any
primary etection to nominate party nominees in which only one party has candidates appearing on the
ba[[ot, a[[ supervised voting team members may be of that party. No candidate may provide supervised
voting services.
(5) The supervised voting team sha[[ detiver the battots to the respective absent etectors, and each
member of the team shatl jointty supervise the voting of the battots. lf any etector requests assistance in
voting, the oath prescribed in s. 101.051 shalt be compteted and the elector may receive the assistance
of two members of the supervised voting team or some other person of the elector's choice to assist the
etector in casting the elector's baltot.
(6) Before providing assistance, the supervised voting team shatt disctose to the elector that the
battot may be retained to vote at a later time and that the elector has the right to seek assistance in
voting from some other person of the etector's choice without the presence of the supervised voting
team.
(7) lf any elector declines to vote a battot or is unabte to vote a baltot, the supervised voting team
shatl mark the battot "refused to vote" or "unabte to vote.,,
(8) After the battots have been voted or marked in accordance with the provisions of this section,
the supervised voting team sha[[ deliver the battots to the supervisor of etections, who shatl retain them
pursuant to s. 101.67.
History.-s. 6, ch. 96-57; s. 5, ch. 2@6-197.
http://www.leg.state.fl.us/statutes/index.cfm?App_mode:Display_Statute&URl=0100-01... 7l23l2}l5425