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RESOLUTION AUTHORIZING EXECUTION OF AN AMENDED AND RESTATED TERMINAL AGREEMENT BETWEEN MIAMI-DADE COUNTY AND SEABOARD MARINE, LTD., FOR MARINE TERMINAL OPERATIONS AT THE PORT OF MIAMI; AND AUTHORIZING THE COUNTY MAYOR OR HIS DESIGNEE TO EXECUTE THE AGREEMENT FOR AND ON BEHALF OF MIAMI-DADE COUNTY, TO EXERCISE ANY CANCELLATION AND RENEWAL PROVISIONS; AND TO EXERCISE ALL OTHER RIGHTS CONFERRED THEREIN

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WHEREAS, this Board desires to accomplish the purposes outlined in the accompanying memorandum, a copy of which is incorporated herein by reference,

NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF MIAMI-DADE COUNTY, FLORIDA, that this Board:

Section 1. Approves the execution of an Amended and Restated Terminal Agreement between Miami-Dade County (�County�) and Seaboard Marine, Ltd., (�Seaboard�) for marine terminal operations at the Port of Miami, in substantially the form attached hereto and made a part hereof; and

Section 2. Authorizes the County Mayor or his designee to execute this Amended and Restated Terminal Agreement after review and approval by the County Attorney�s Office; to exercise any cancellation and renewal provisions; and to exercise all other rights conferred therein.

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Date:


To: Honorable Chairman Bruno A. Barreiro
and Members, Board of County Commissioners


From: George M. Burgess
County Manager



Subject: Resolution Authorizing Execution of Amended and Restated Terminal Agreement between Miami-Dade County and Seaboard Marine, Ltd.

STAFF RECOMMENDATION
It is recommended that the Board approve the accompanying resolution authorizing the execution of an Amended and Restated Terminal Agreement (�Agreement�) between Miami-Dade County (�County�) and Seaboard Marine, Ltd., (�Seaboard�) for marine terminal operations at the Port of Miami (�Port�).

SCOPE
The Port of Miami is located within District 5 � Chairman Bruno A. Barreiro. The impact of this agenda item is countywide as the Port of Miami is a regional asset and generates employment for residents throughout all of Miami-Dade County.

FISCAL IMPACT/FUNDING SOURCE
This Agreement will generate approximately $13 million in annual revenues to the Port, of which $9.6 million will be guaranteed. Current annual revenues from Seaboard to the Port are approximately $9 million, of which only $3.2 million are guaranteed. The guaranteed revenues shall increase annually at a weighted average rate of 4.1% throughout the Agreement�s twenty-year initial term. This rate takes into consideration increases in Seaboard�s annual commitments, based on the County�s ability to meet its development obligations under the Agreement. The guaranteed revenues are a function of land rent and cargo throughput pledge.

Additionally, should the Board approve this Agreement, Seaboard will pay the County a one-time payment of $15,000 per acre for Parcels A, B1, and B2, as shown on attached �Exhibit B�, for a total of $1,150,350, plus a one-time payment of $500,000 to settle outstanding/disputed balances dating back to 1997. Over the life of the Agreement, the County is committing up to $26 million in capital improvements to Seaboard�s terminal area. These improvements are included in the Port�s Five Year Capital Improvement Program. Funding for this commitment will come from future borrowings (to be paid from the additional revenues generated from this Agreement) and from federal and state grants.

Seaboard shall abide by Section 38 of the Agreement related to the County�s Inspector General�s review of this Agreement. However, it shall be exempt from the one quarter (1/4) of one percent (1%) fee assessment as this is considered a revenue generating contract.

TRACK RECORD/MONITOR
The Seaport Department staff members responsible for monitoring the Agreement are Juan Kuryla, Assistant Port Director, Maritime Services and Kevin Lynskey, Manager, Business Initiatives. Should the Board approve this Agreement and Seaboard pays the aforementioned $500,000 settlement for disputed charges, Seaboard�s accounts receivable will be current.

MANAGER'S BACKGROUND
In 1983, Seaboard was formed for the purpose of providing ocean transportation services. Since its establishment, Seaboard has grown from 2 vessels serving Central America, to 40 vessels serving nearly 40 ports in more than 25 countries in the Caribbean, the United States, and Central and South America.

Seaboard�s relationship at the Port began in 1987, with less than 20 acres of terminal space; and, from that time, Seaboard has continued to increase its cargo throughput in Miami. In 1998, the Board approved a 10 year (with two five year renewal options) volume-driven terminal agreement with Seaboard, which among other things, provided for (i) discounted tariff rates per each TEU in exchange for minimum guaranteed yearly throughput; (ii) approximately 55 acres of sub-conditioned land on the Port�s south side as well as an additional 14 acres sublet from an existing cargo operator; (iii) preferential berthing along bays 148-172; and (iv) construction by the Port of certain capital improvements within Seaboard�s terminal area to improve several acres of land. The Port has largely not lived up to its prior commitment to fund or effectuate terminal area improvements for Seaboard.

Seaboard averages 70 monthly sailings from the Port of Miami � by far the most of any cargo carrier at the Port. Since execution of the 1998 agreement, Seaboard�s volumes have increased by almost 50% from 2.2 million tons (approx. 247,000 twenty foot equivalent unit (�TEU�) containers to over 3.1 million tons (approx. 360,000 TEUs). These numbers represent more than 40% of the Port�s current total cargo throughput. Seaboard�s emphasis on exports has helped create and maintain a healthy balance of trade between the Port and Latin America and the Caribbean. This is an important factor toward the generation of jobs in the South Florida region. Approximately 60% of all exports at the Port of Miami are handled by Seaboard.

As the 1998 agreement is reaching conclusion of its initial ten year term (November 2008), and in an effort to avail Seaboard of the required space and infrastructure necessary to significantly grow its business at the Port, the parties wish to extend its relationship via the proposed Agreement. The term of the Agreement shall be for an initial twenty (20) year period, with two (2) five (5) year renewal options. Each renewal option shall be subject to a reappraisal of the land by independent appraisers using Florida�s five (5) busiest container ports as comparables. Should the land appraisal determine an increase in the rental rate from the Year 20 or Year 25 rate, Seaboard shall commit to the new rate for the upcoming renewal period, plus 3% annual increases commencing on the first day of year two of the renewal option period. Should the appraisal determine a decrease in the land rental rate from Year 20 or Year 25, then Seaboard commits to continue paying the existing year�s rent for the first year of the renewal option period plus 3% annual increases as stated above.

Such renewal option(s) shall be at Seaboard�s election provided (i) their aggregate average TEU throughput per throughput acre for the final five (5) fiscal years of the initial term (for the first renewal option) or for the five (5) years of the first renewal option period (for the second renewal option) exceeds the aggregate average per acre TEU throughput for all Port cargo terminal operators combined during those same five (5) fiscal years or (ii) provided they have generated combined revenues to the Seaport of at least $110 million during years 16-20 (for the first renewal option) and $128 million during years 21-25 (for the second renewal option). Revenues from land rent, TEU throughput, harbor fees, and any new fees, if imposed on Seaboard throughout the term of the Agreement, shall count toward the $110 and $128 million sums. Revenues from these sources for FY 08-09 are estimated at $11.45 million. Total revenues for FY 08-09 are estimated at $13 million; of which $9.6 million will be guaranteed. Crane and refrigerated plug usage fees as well as any utility or future capital development reimbursements, if any, shall not count toward the $110 and $128 million sums, as these fees may be reduced at any time during the Agreement should Seaboard choose to utilize only their cranes or install their own refrigerated plugs.

The above $110 and $128 million thresholds were negotiated to protect the County during the out years of the Agreement, should significant, unforeseen changes in the industry occur and Seaboard�s financial contribution to the Seaport turn downward toward their minimum guaranteed levels. These thresholds were calculated by escalating $11.45 million by 4.1% compounded annually for twenty and twenty-five years. When compounded, the sum of the revenues for years 16-20 is $113 million, while the sum for years 21-25 is $138 million. Through negotiations, the parties agreed on $110 and $128 million, respectively. In effect, this mechanism requires Seaboard to generate at least 15% more revenue to the Port than its guarantee during the last five years of the Agreement and 10% more during the first renewal period for them to have unilateral renewal options. Should Seaboard not meet these revenue thresholds, the option(s) would then be exercised upon mutual consent and either party may terminate or endeavor to renegotiate any terms of the Agreement. Should the latter occur, the renegotiated agreement would be brought back for the Board�s consideration. During the initial 20 year term and each renewal period, if exercised, Seaboard agrees to abide by the terms and rates shown on �Exhibit A�.

Additionally, among other things, the Agreement provides for Seaboard to:

* Commit to an annual minimum throughput guarantee of 4,000 TEUs per acre with 2% (non-compounded) yearly growth, except for years six (6) through fifteen (15) of the Agreement as a stabilization period, after which the growth percentage resumes. However, almost concurrent with the commencement of this stabilization period, Seaboard�s annual minimum throughput guarantee shall increase by 18% as the improvements to the land defined as Parcels B1 and B2 on �Exhibit B� are anticipated to be completed; thereby providing for the designation of such land as throughput acres and increasing the total throughput acres from 65 to 76.69. This stabilization period was agreed to by the Port as a result of the high initial throughput commitment agreed to by Seaboard. The 4,000 TEU per acre throughput guarantee is close to 80% of Seaboard�s existing volume at the Port and significantly exceeds similar industry pledges which are closer to 60% of actual volumes. Notwithstanding this, the Port will still be guaranteed growth throughout this period as a result of the aforementioned conversion of 11.69 acres of current non-usable land to throughput acres. Presently, Seaboard greatly exceeds its minimum 2,000 TEU per acre guarantee. For FY 2007, Seaboard averaged approximately 5,100 TEUs per acre on its approximate 70 acres of land. This throughput figure is the highest at the Port of Miami;
* Pay the following per TEU throughput rates for dockage and wharfage combined: $24.00 for the first 4,000 TEUs per acre, $15.00 for TEUs 4,001 � 5,000, $12.00 for TEUs 5,001 � 6,000, and $10.00 for all TEUs above 6,000 TEUs per acre. These rates will escalate at a rate of 3% compounded annually commencing on October 1, 2009, as shown on �Exhibit A�. This tier structure provides rate incentives for Seaboard to handle additional volume through its Miami terminal as it will generate additional revenues for them and the Port. These rates, in conjunction with the capital improvements committed under this Agreement will position both parties for significant growth and maximum utilization of the land;
* Pay $1.00 land rent per square foot throughout its terminal area for Parcels A, B1, B2, and C as defined on �Exhibit B�. This rate shall escalate 3% compounded yearly commencing on October 1, 2009, through the 20th year of the Agreement. This component of the deal is the largest concession gained by the Port during negotiations and will account for more than 90% of the additional revenues generated under the terms of this Agreement. In return for this new recurring revenue, and due to the existing condition of the terminal area, the Port agreed to the length of the initial term and to fund the infrastructure improvements listed on �Exhibit C�. Seaboard currently does not pay land rent;
* Contribute up to $5 million towards the improvements defined on �Exhibit C�, as well as other capital projects to be paid solely by Seaboard such as maintenance and repair buildings and cargo inspection facilities;
* Pay the Port a one-time infrastructure improvement fee of $15,000 per acre for 76.69 acres for Parcels A, B1, and B2 shown on �Exhibit B� for a total of $1,150,350;
* Pay a termination fee of $20 million should Seaboard desire to terminate the Agreement on or before September 30, 2013; $15 million should they desire to terminate after September 30, 2013, but on or before September 30, 2028; or $9 million should they desire to terminate after September 30, 2028. The County, however, does not have a reciprocal provision within the Agreement;
* Pay an assignment fee of $250,000 for each year remaining on the Agreement and any renewal period(s) should Seaboard elect to assign this Agreement to an entity that is neither a wholly-owned subsidiary nor affiliate of Seaboard. Such transfer or assignment shall require written consent by the County, which shall not be unreasonably withheld. Should Seaboard elect to assign this Agreement to a wholly-owned subsidiary or affiliate, it may do so upon notice to, but without prior consent of, the County; and without any assignment fee;
* At the County�s request, reduce its terminal area if Seaboard�s aggregate actual TEU throughput for three years falls short of its aggregate minimum guaranteed TEU throughput for those three years for reasons other than force majeure as described on the Agreement or an action by the County that is reasonably judged by the Port Director to have reduced by 10% or more Seaboard�s ability to meet its minimum annual TEU guarantee. Should such a reduction take place, the minimum guaranteed TEU throughput shall be adjusted downward and the land rent shall not be payable for that land which was removed from their terminal area; and
* Pay $1.35 per day for each County refrigerated container outlet (112 total) within their terminal area � whether utilized or not up until such time the outlets are removed.

Furthermore, Seaboard agrees to pay the Port $500,000 to settle disputed/undocumented charges dating back from 1997 through December 31, 2007, and related late fees through the effective date of the Agreement. These charges amount to approximately $970,000, of which more than $200,000 was incurred between 1997 and 1999. To avoid the reoccurrence of disputed charges reaching existing levels, the parties have agreed to create a joint accounts receivable committee to review this account on a bi-monthly basis.

In return, the County agrees to:

* Make available 81.19 acres of terminal area as shown on �Exhibit B�;
* Provide preferential berthing rights for bays 149 to 182, as well as 1,000 feet of gantry berth space west of bay 135, provided Seaboard utilizes at least one operable and available gantry crane;
* Construct certain infrastructure improvements as defined on �Exhibit C�, in accordance with the funding schedule also shown on same; and
* Allow for the establishment of a rent credit mechanism and a reduction of project funding by Seaboard should the Port not meet its construction commitments in accordance with the schedule shown on �Exhibit C�; as well as a pro-rata reduction of Seaboard�s annual minimum throughput guarantee and temporary waiver of any land rent resulting from any force majeure act mentioned in Section 28 of the Agreement. Although the terms of the force majeure provision in the Agreement are consistent with those in similar Port contracts, it does provide, however, for the temporary reduction of Seaboard�s annual commitments should any of the force majeure events occur, which includes events beyond Seaboard's reasonable control,. Likewise, this provision also affords the County relief from its obligations should any of the force majeure events in Section 28 occur.

Should the County complete each phase of the improvements by its target date indicated in "Exhibit C", Seaboard agrees that it will pay the County $1 million for each phase upon final acceptance of the work by both parties for that defined phase. Should the County fail to complete any phase by its target date indicated in "Exhibit C", then Seaboard will reduce its $1 million payment by $100,000 for every month past the target date the respective phase remains uncompleted. If any phase is completed more than ten (10) months past its target date, then Seaboard will not make any payment towards the respective phase.

Failure by the County to complete construction of any phase by its target date as indicated in "Exhibit C" will trigger a temporary land rental rate reduction for the impacted acreage until improvements are completed as follows: a thirty-three percent (33%) rent reduction for a phase completed up to ten (10) months after its target date, a sixty-six percent (66%) rent reduction for a phase completed up to twenty (20) months after its target date, and a one hundred percent (100%) rent reduction for a phase completed up to thirty (30) months after its target date. In addition to these land rental rate reductions, failure by the County to complete construction of any phase indicated in "Exhibit C" within thirty (30) months of its target date will reduce the acreage upon which the minimum guaranteed TEU throughput is calculated for the uncompleted portion of the phase. The land rental rate reduction and the reduction of acreage from the minimum guaranteed TEU throughput calculation will remain in place until such time as individual phases are completed or until the County has completed its obligation as described in Section 7 of the Agreement, whichever occurs first.

The County has also committed to complete construction of a bulkhead adjacent to Seaboard�s terminal area between bays 155 and 160 by December 31, 2010. Should the bulkhead project not be completed by June 30, 2011, the County commits to increase its maximum $21 million contribution for the improvements shown on �Exhibit C� by $1 million, plus additional $1 million increments for every additional six month period which the project completion date is delayed, up to a maximum of $5 million. These funds will only be utilized if the costs for the �Exhibit C� improvements exceed the $21 million cap; potentially increasing the County�s maximum contribution to $26 million. To ensure adherence with the construction deadline for the bulkhead and �Exhibit C� projects, the Port will assign an existing senior level person to track and expedite, on a full-time basis, the progress of these projects.

It is worth noting that the majority of the projects in �Exhibit C� are the improvements which the Port committed to construct under the 1998 Agreement; and, as previously stated, were not completed. These types of infrastructure improvements (drainage, paving, RTG runways) as well as waterside enhancements, such as the bulkhead project, are typically funded by landlord ports as is the case with the Port of Miami. Portions of the new land rent generated under this Agreement as well as anticipated grants will be utilized to fund these budgeted capital costs.

The $1.00 per square foot land rent is approximately twice the amount generated at competing ports for similar type land utilized for container handling terminal operations. Upon completion of these improvements, the Seaboard terminal area will be in similar condition than that of the other two terminal operators at the Port and allow Seaboard to increase its throughput capacity by stacking containers higher and wider. Any additional throughput will directly increase Seaboard�s revenues to the County.

Should the Board approve this Agreement, the Seaport will generate an additional $3.53 million annually in land rent. Additionally, under the proposed agreement, all other Port charges, including crane rental rates, will be at Port of Miami Terminal Tariff No. 010 rates. This will eliminate Seaboard�s current crane rentals discount of approximately twenty percent (20%) from the Tariff rate and generate an additional $220,000 based on their existing crane rental usage. Additionally, the Port may implement a reasonable security fee on Seaboard, but only if the security fee is equitably implemented on all other Port cargo terminal operators whose terminals are fifteen (15) acres in size or greater. The security fee shall not be applied to Seaboard if the Port�s operating security budget for any one fiscal year does not exceed $22,000,000, compounded five percent (5%) annually at the start of each fiscal year commencing on October 1, 2008. The above provision also protects the County throughout the entire term of the Agreement in the event the Port incurs substantial increases in security costs; as has occurred following the events of September 11, 2001. Since FY 2001, the Port�s operating security costs have increased from approximately $4.1 million to $20.1 million ($19.3 million for FY 08-09) as a result of new security requirements imposed by federal and state agencies.

As a point of reference, it is also important to note that the term of such terminal agreements in the maritime industry is determined by taking into consideration several factors including a terminal operator�s operational requirements and the amount of funds it plans to spend for capital investment in leasehold improvements as well as the ability of a port to manage its capacity and long term development. One of the recent practices of the industry has generally been for terminal operators to enter into long term lease agreements with ports in order to conduct their cargo handling operations. Terminal operators with lease agreements containing terms of at least twenty-four years include Crowley (Port Everglades), APM Terminals (Jacksonville and Los Angeles), Maersk Container Service Company (Port Authority of New York and New Jersey), Seaboard Marine (Ports of New Orleans and Houston), CMA CGM (Port of Mobile), and many others. Leases of twenty plus years are desired by terminal operators as they generally are responsible for solely funding related long-term assets such as gate and security structures, maintenance and repair facilities, and in-terminal cranes or handling equipment as will be the case with Seaboard.

The term of the negotiated Agreement provides for (i) certainty and predictability regarding the utilization of the Port�s facilities and income streams; (ii) a continuous revenue stream that will assist the Port in its efforts to borrow money to finance capital improvement projects (the dependable revenue flow provides lenders more confidence that the Port has a stable and reliable financial base); and (iii) the tenant�s (in this case Seaboard) eventual consent to contribute funds towards infrastructure and capital improvement projects to enhance their cargo handling operations in their terminal area - easing the investment burden on the Port.

A possible drawback to a port entering into a long term terminal agreement is that it could be locked in, for an extended period of time, with an income stream that may not reflect future market conditions. However, this possibility would only occur if the escalation clauses in the long term agreement were too low and did not allow for prudent periodic market rate adjustments. The Agreement has addressed this concern by providing competitive annual rate adjustments as follows: (i) minimum throughput guarantee (2% increase - except for the stabilization period during years six through fifteen, after which the growth percentage resumes); (ii) TEU throughput rates for dockage and wharfage combined (3% increase compounded annually- commencing on October 1, 2009); and (iii) land rent (3% increase compounded annually) plus the conversion of 11.69 acres of marginal land to productive land requiring Seaboard�s annual TEU throughput commitment to increase by 18%, likely in 2013. Equally important, the Agreement provides for Seaboard to remain on Tariff for other Port charges, such as harbor fees and crane rentals (crane increases capped at 4% compounded annually) and allows for the Port to institute a security fee should a major unforeseen incident occur in the future. As previously stated, over the Agreement�s twenty-year initial term, these escalation clauses will enable the Port�s guaranteed revenues from Seaboard to increase annually at a weighted average rate of 4.1%. As a result, whenever the industry experiences a prolonged period of growth and profitability, the Agreement�s annual rate escalations will further enable the Port to share in the upside of the business benefits reaped by Seaboard; while at the same time, safeguard the Port�s revenue stream in the event of a downturn in the industry. The inclusion of the above provisions, along with the minimum revenue thresholds established to effectuate the renewal options, provide for a very solid business deal for the County, both in the short and long term.
Approval of this Agreement will provide the Seaport with approximately $4 million in additional annual revenues and the necessary financial incentives for Seaboard to increase its cargo volume at the Port of Miami. These additional funds will be critical in balancing the Port�s budget for FY 2008-09 and beyond. Furthermore, this Agreement will also serve as the base for future port terminal agreements, whereby additional revenues from those existing today will be sought.

For 25 years Seaboard has maintained its headquarters in Miami-Dade County and currently employs more than 295 employees at its office in Medley, 396 employees at its Port facility, and contracts approximately 230,000 hours of annual longshoreman labor. In addition to these direct employment opportunities, Seaboard, with its focus on the Caribbean Basin and Latin America, has been a catalyst among the local freight forwarding, shipping, and international trade communities in making Miami the trade center it is today. It is estimated that Seaboard has a total economic impact of $5 billion annually in Miami-Dade County. Seaboard�s local economic impact and market placement makes them an extremely valuable business partner.

DELEGATION OF AUTHORITY
In accordance with Section 2-8.3 of the Miami-Dade County Code related to identifying delegation of Board authority, there are no authorities beyond those specified in the resolution. Although the Agreement provides for renewal option(s) and cancellation provisions, those are solely at Seaboard�s election provided that they meet certain revenue thresholds as noted within this memorandum. Additionally, the Port Director may authorize adjustments to the boundaries of Seaboard�s terminal area (not to exceed ten (10) acres) during and subsequent to the construction of improvements related to the Port Tunnel (Section 4 - Subsection G).




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Assistant County Manager