Legislative Matter

Miami-Dade Legislative Item
File Number: 231692

Printable PDF Format

File Number: 231692

File Type: Resolution

Status: Withdrawal Requested

Version: 0

Reference:

Control: Board of County Commissioners

File Name: MIAMI WILDS LEASE AMENDMENT AND NPS RESCINDMENT AGREEMENT

Introduced: 8/29/2023

Requester: Parks, Recreation and Open Spaces

Cost:

Final Action:

Agenda Date: 12/12/2023

Agenda Item Number: 8H2

Notes:

Title:

RESOLUTION APPROVING (1) THE FIRST AMENDMENT TO THE DEVELOPMENT LEASE AGREEMENT (THE “LEASE AMENDMENT”) BETWEEN MIAMI-DADE COUNTY, AS LANDLORD, AND MIAMI WILDS, LLC (“MIAMI WILDS”), AS TENANT, (2) THE FIRST AMENDMENT TO THE PARKING CONCESSION AGREEMENT BETWEEN MIAMI-DADE COUNTY AND MIAMI WILDS, AND (3) THE RESCINDMENT OF THE 2022 AMENDMENT NO. 1 TO THE RELEASE AND TRANSFER OF TERMS, CONDITIONS, COVENANTS AND RESTRICTIONS (THE “RESCINDMENT AGREEMENT”) BETWEEN MIAMI-DADE COUNTY AND THE NATIONAL PARK SERVICE, ACTING ON BEHALF OF THE UNITED STATES DEPARTMENT OF THE INTERIOR (“NPS”); AUTHORIZING THE COUNTY MAYOR OR COUNTY MAYOR’S DESIGNEE (A) TO EXECUTE THE LEASE AMENDMENT AND THE RESCINDMENT AGREEMENT, (B) FOLLOWING APPROVAL BY NPS OF THE FIRST AMENDMENT TO THE PARKING CONCESSION AGREEMENT, MAKE CERTAIN REVISIONS TO, FINALIZE, AND EXECUTE THE FIRST AMENDMENT TO THE PARKING CONCESSION AGREEMENT, AND (C) EXERCISE ANY AND ALL RIGHTS CONFERRED IN SUCH AGREEMENTS

Indexes:

NONE

Sponsors:

Kionne L. McGhee, Prime Sponsor

Sunset Provision: No

Effective Date:

Expiration Date:

Registered Lobbyist:

None Listed

Legislative History
Acting Body	Date	Agenda Item	Action	Sent To	Due Date	Returned	Pass/Fail

Board of County Commissioners	12/12/2023	8H2	Withdrawn
REPORT:	Commissioner Regalado noted that Agenda Items 2B6 and 8H2 should be considered simultaneously and acknowledged the public speakers who appeared during the reasonable opportunity to be heard to express their support for the Pine Rocklands area and Zoo Miami. Commissioner Regalado voiced her concerns with the foregoing proposed resolution which would create a water park called Miami Wilds adjacent to Zoo Miami and would endanger the Pine Rocklands, the area’s fauna and flora. She expressed her commitment to protecting and re-establishing the Pine Rocklands and other natural areas with the collaboration of County Administration and the Miami-Dade Department of Environmental Resources Management (DERM); and encouraged the Board to review a DERM report that stated the micro-climate ecosystems like the Pine Rocklands helped address global warming. Commissioner Regalado also expressed her support for Zoo Miami. Commissioner Regalado opined that the Pine Rocklands was not an appropriate site for the Miami Wilds. She noted that the lengthy period from the initial approval of the water park by the Board until now allowed for thorough examination of the project and its consequences. Additionally, she highlighted that the federal government had also concluded that the proposed location was unsuitable. Commissioner Regalado urged her colleagues to approve the report presented under Agenda Item 2B6 to solidify the County’s position on why the Pine Rocklands ecosystem should be protected; and moved to direct the County Mayor or County Mayor’s designee to take all actions necessary to proceed to rescind the lease and concession agreement with Miami Wilds, Inc. in consultation with the County Attorney’s Office. In addition, she stated that until such time the lease and concession agreement with Miami Wilds was rescinded, the County Mayor or County Mayor’s designee be directed to strictly enforce all deadlines and requirements of the lease and concession agreement, and seek to exercise all remedies for breach thereof, included but not limited to termination of the lease and concession agreement in accordance with the provisions therein and in consultation with the County Attorney’s Office. Commissioner McGhee invoked the 4-Day Rule on Commissioner Regalado’s motion and made a motion to withdraw Agenda Item 8H2. He stated a withdrawal was due to recent updates such as a federal court order from the United States Court Southern District of Florida issued on December 11, 2023 that restored land-use restrictions in the Pine Rocklands area and a memorandum from Miami-Dade County Mayor Daniella Levine Cava that recommended the lease agreement be rescinded. Commissioner Cabrera seconded the motion to withdraw. Commissioner Cohen Higgins inquired if a withdrawn agenda item could be presented to the Board at a later date. Assistant County Attorney Monica Rizo clarified that the legislation could be brought back to the Board for consideration if the withdrawal was approved. In response to Commissioner Cohen Higgins’ inquiry as to what would happen to the lease agreement after the agenda item was withdrawn, Assistant County Attorney Rizo explained that the lease would remain in place. She advised that the proposed resolution did not extend the lease agreement, but instead changed the lease term commencement date, which would now begin upon the completion of the federal government’s reviews under the Endangered Species Act and the National Environmental Policy Act. Assistant County Attorney Rizo clarified that when the lease was initially approved by the Board, additional agenda items were approved simultaneously. She indicated that among them was a condition related to the execution of the lease agreement, which involved releasing deed restrictions agreed upon by the County and the federal government. She explained that this agreement, a prerequisite to the lease, was invalidated by a federal court, rendering the conditions of the Board's actions null. Assistant County Attorney Rizo stated that the Board had several choices, and in light of the federal ruling, the County Administration informed the tenant that, in accordance with Board policy, the lease agreement would be revoked. Commissioner Cohen Higgins pointed out that withdrawing the foregoing proposed resolution would not terminate the contract with Miami Wilds. She further noted that the only mechanism available to the Board to terminate the lease agreement was to approve the motion made by Commissioner Regalado or in the alternative the County Administration would have to bring forth an item for consideration. Assistant County Attorney Melanie Spencer clarified that the Board’s intent was for the lease to take effect following the satisfaction of specific precedent conditions. She noted since these conditions were not met per the federal ruling, the County could seek to rescind the lease without any further action by the Board. Assistant County Attorney Spencer noted that the County Administration had since informed the tenant that it would move to rescind the lease agreement once the deed restrictions were reinstated. Chairman Gilbert III stated that while the Board acknowledged that no further action was needed by the Commission to rescind the lease agreement, Commissioner Regalado’s motion would still be brought before the Commission in January as a cautionary measure. Assistant County Attorney Spencer reminded Chairman Gilbert III that there were other options available to the Board with regards to the lease agreement. Chairman Gilbert III commented on the possibility of the matter being litigated and cautioned all parties to be mindful of the discussions and legal advice presented to the Commission. Assistant County Attorney Spencer explained that Commissioner Regalado could present legislation to rescind the lease agreement at a future Board meeting and clarified that the County Administration would have to litigate the matter to rescind the lease agreement. Assistant County Attorney Rizo clarified that the Board’s vote would support the County Mayor’s position. She added that the County Mayor’s action and Commissioner Regalado’s proposed motion reiterated the Board’s prior policy directive. Commissioner Bermudez indicated his support for rescinding the lease agreement. Commissioner Regalado noted that she would present the motion at the January 2024 Board meeting and noted the tenant may seek to delay proceedings in order to receive approval to develop the water park. Commissioner Regalado reiterated her concerns regarding the Miami Wilds project citing environmental issues. She also noted there were no site plans or permits, and the jobs at Miami Wilds would pay less than jobs at Zoo Miami. Commissioner Regalado emphasized that the National Park Service and the federal court did not support the project and commented on her commitment to stopping the project both as a commissioner and as a private citizen. Commissioner Higgins stated the proposed resolution should not have been presented to the Board. She noted several environmental issues needed to be addressed and recommended that the County Mayor proceed with rescinding the lease agreement. Commissioners Garcia and Steinberg agreed that the lease agreement should be rescinded. Commissioner Steinberg indicated her support for the motion to withdraw the proposed resolution. There being no further comments or questions, the Board approved the withdrawal of the foregoing resolution. Special Note: The Board voted separately on Agenda Item 2B6 to accept the report.

Office of the Chairperson	12/11/2023		Withdrawals

Board of County Commissioners	9/19/2023	8H1	Deferred		12/12/2023
REPORT:	During consideration of the changes to today's (9/19) agenda, the Board, by motion duly made, seconded and carried, deferred the foregoing proposed resolution to the December 12, 2023, Board meeting.

Office of the Chairperson	9/14/2023		Deferrals
REPORT:	The Prime Sponsor is requesting deferral to no date certain.

Board of County Commissioners	9/6/2023	8H1	Deferred		9/19/2023
REPORT:	County Attorney Geri Bonzon-Keenan announced that sponsor of the foregoing proposed resolution requested a deferral to the September 19, 2023, Board meeting and that several Board members pulled the item for discussion. Commissioner McGhee noted that the deferral date was requested by the parties involved with legislation regarding the proposed water park. Commissioner Garcia pointed out that his office did not receive any information about the proposed agenda item or the issues surrounding the matter until September 1, 2023. He supported the deferral request. Commissioner Regalado suggested that if the item was to be deferred and amendments were made, that perhaps the Board should discuss the matter today. She sought clarification regarding the public hearing, particularly since members of the public already spoke on the issue during today’s (9/6) meeting, and stressed that the public should be allowed to speak on the item if it was to be amended. In response to Chairman Gilbert III’s inquiry, County Attorney Bonzon-Keenan noted that Board’s rules and the state statutes provide that the public had a reasonable opportunity to be heard at least once during the decision making process, which was held today. She further clarified that the Chairman had the discretion to re-open the public hearing on the foregoing proposed resolution. Commissioner Cohen Higgins commented that any questions raised by the Board members would prompt more questions. She expressed that the Board had to decide if discussion would be held today or if the proposed resolution would be deferred. She continued that the agenda item could then be discussed by the Board members at a later date. Miami-Dade County Mayor Daniella Levine Cava voiced her support for the deferral to explore additional actions that could be taken to further protect and safeguard the environment in the future. She indicated that the Administration would address any questions the Board members had. There being no further questions or comments, the Board proceeded to vote on the deferral for the agenda item. Following the vote of deferral, Chairman Gilbert III announced he would re-open public hearing on the foregoing proposed resolution if there were significant changes.

Jimmy Morales	8/29/2023		Assigned	Office of Agenda Coordination	8/29/2023	8/29/2023

Office of Agenda Coordination	8/29/2023		Assigned	County Attorney	10/3/2023
REPORT:	PROS - Commissioner McGhee sponsor - pending September cmte - administration will request a waiver out of cmte and onto the September 6 BCC. - County attorney Monica Rizo Perez - attachment 1, 2, exhibits D, D-1, J-1, M - PGS 44

County Attorney	8/29/2023		Assigned	Monica Rizo		8/29/2023

Legislative Text

TITLE
RESOLUTION APPROVING (1) THE FIRST AMENDMENT TO THE DEVELOPMENT LEASE AGREEMENT (THE �LEASE AMENDMENT�) BETWEEN MIAMI-DADE COUNTY, AS LANDLORD, AND MIAMI WILDS, LLC (�MIAMI WILDS�), AS TENANT, (2) THE FIRST AMENDMENT TO THE PARKING CONCESSION AGREEMENT BETWEEN MIAMI-DADE COUNTY AND MIAMI WILDS, AND (3) THE RESCINDMENT OF THE 2022 AMENDMENT NO. 1 TO THE RELEASE AND TRANSFER OF TERMS, CONDITIONS, COVENANTS AND RESTRICTIONS (THE �RESCINDMENT AGREEMENT�) BETWEEN MIAMI-DADE COUNTY AND THE NATIONAL PARK SERVICE, ACTING ON BEHALF OF THE UNITED STATES DEPARTMENT OF THE INTERIOR (�NPS�); AUTHORIZING THE COUNTY MAYOR OR COUNTY MAYOR�S DESIGNEE (A) TO EXECUTE THE LEASE AMENDMENT AND THE RESCINDMENT AGREEMENT, (B) FOLLOWING APPROVAL BY NPS OF THE FIRST AMENDMENT TO THE PARKING CONCESSION AGREEMENT, MAKE CERTAIN REVISIONS TO, FINALIZE, AND EXECUTE THE FIRST AMENDMENT TO THE PARKING CONCESSION AGREEMENT, AND (C) EXERCISE ANY AND ALL RIGHTS CONFERRED IN SUCH AGREEMENTS

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

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

Section 1. The foregoing recital is incorporated into this resolution and is approved.

Section 2. This Board approves the First Amendment to the Development Lease Agreement (the �Lease Amendment�) between Miami-Dade County (the �County�), as landlord, and Miami Wilds, LLC (�Miami Wilds�), as tenant in substantially the form attached hereto as Attachment 1 and authorizes the County Mayor or County Mayor�s designee to execute the Lease Amendment, to exercise all provisions contained therein and to prepare jointly with Miami Wilds a cumulative amended and restated agreement that incorporates the Lease Amendment and the Lease Agreement into a single document, for ease of reference.

Section 3. This Board approves the first amendment to the Parking Concession Agreement (�Amended Concession�) between the County and Miami Wilds in generally the form attached to the Lease Amendment. This Board acknowledges that the Amended Concession is subject to the review and approval of the National Park Service, acting on behalf of United States Department of the Interior (�NPS�) and authorizes the County Mayor or County Mayor�s designee to make revisions to the Amended Concession requested by the NPS, execute the Amended Concession and exercise all provisions contained therein, provided that: (a) any revisions to the Amended Concession do not have an adverse fiscal impact to the County nor violate any policies of the Board; and (b) review and approval for legal sufficiency by the County Attorney�s Office is first obtained.

Section 4. This Board approves the Rescindment of the 2022 Amendment No. 1 to the Release and Transfer of Terms, Conditions, Covenants and Restrictions (the �Rescindment Agreement�) with NPS in substantially the form attached hereto as Attachment 2 and authorizes the County Mayor or County Mayor�s designee to execute the Rescindment Agreement and to exercise all provisions contained in therein. This Board directs the County Mayor or County Mayor�s designee to record, within 30 days after the execution of the Rescindment Agreement, the Rescindment Agreement in the public records of Miami-Dade County, Florida.

HEADER
Date:

To: Honorable Chairman Oliver G. Gilbert, III
and Members, Board of County Commissioners

From: Daniella Levine Cava
Mayor

Subject: Recommendation for Approval of the First Amendment to the Development Lease Agreement between Miami-Dade County and Miami Wilds, LLC (�Miami Wilds�), the First Amendment to the Parking Concession Agreement between the County and the National Park Service (�NPS�) and the Rescindment Agreement with the United States through the NPS

STAFF RECOMMENDATION
Executive Summary

The purpose of this item is to recommend approval of: (1) an amendment to the Development Lease Agreement between the County and Miami Wilds; (2) an amendment to the Parking Concession Agreement between the County and Miami Wilds, subject to the approval of the United States Department of the Interior, through its NPS; and (3) an agreement to rescind the 2022 Amendment No. 1 to the Release and Transfer of Terms, Conditions, Covenants, and Restrictions between the County and NPS, each of which were approved by the Board of County Commissioners (the �Board�) on October 20, 2020 via Resolution R-1083-20. The 2022 Amendment No. 1 to the Release and Transfer of Terms, Conditions, Covenants, and Restrictions (the �2022 Amended Release�) with NPS removed land restrictions from a portion of the premises to be leased to Miami Wilds. The Development Lease Agreement (the �Lease�) with Miami Wilds permits Miami Wilds to lease and develop land adjacent to Zoo Miami for economic development purposes, and the Parking Concession Agreement allows the County to contract with Miami Wilds for the non-exclusive operation and management of the parking lots for Miami Wilds, the County, the Gold Coast Railroad Museum and the Military Museum (the �Museums�).
Subsequent to the Board�s approval and the County�s final execution of the Lease and the 2022 Amended Release, three environmental groups sued NPS and the United States Fish and Wildlife Service (�FWS�) in federal court seeking to void the 2022 Amended Release. Plaintiffs in the case allege that NPS failed to complete certain legal requirements involving environmental reviews prior to approving and executing the 2022 Amended Release. NPS and FWS have admitted most of the allegations and concede that they did not undertake the reviews required by federal law prior to approving and executing the 2022 Amended Release. Accordingly, the County joined in the federal case as a defendant and seeks, jointly with NPS and FWS, to rescind the 2022 Amended Release to allow NPS and FWS to undergo the reviews and consultations required by applicable law prior to releasing any of these County lands from the deed restrictions. Because NPS�s approval and execution of the 2022 Amended Release was a condition precedent to both the Board�s approval of the Lease and the execution and effectiveness of the Lease, the County seeks a parallel resolution to its Lease. The County has reached agreement with Miami Wilds to amend the Lease, which will delay the effectiveness of Miami Wilds� occupancy and development of the Zoo Miami lands that were leased to it. Similarly, revisions are needed to the Parking Concession Agreement between Miami Wilds and the County to account for the rescindment of the 2022 Amended Release. The amendment to the Parking Concession Agreement is also subject to review and approval by NPS.
The accompanying resolution approves the First Amendment to the Lease Agreement (the �Lease Amendment�) with Miami Wilds, the First Amendment to the Parking Concession Agreement with Miami Wilds, and the Rescindment of the 2022 Amended Release with NPS (the �Rescindment Agreement�).

Recommendation

It is recommended the Board approve the accompanying resolution, which achieves the following:

1. Approval of the Rescindment Agreement, which rescinds the 2022 Amended Release and allows NPS to comply with its legal obligations prior to entering into another amended release of deed restrictions with the County.
2. Approval of the Lease Amendment, which delays Miami Wilds� ability to secure a leasehold interest in the County property, and to occupy or develop the property, until one of two conditions occurs: (a) NPS completes its legal obligations and approves and executes another amended release of restrictions for the leased premises; or (b) two years pass without a release from NPS, and Miami Wilds elects to instead develop the project on the lands that are not subject to deed restrictions.
3. Through the Lease Amendment, revision of the terms and conditions of the Lease, including but not limited to the removal of Miami Wilds� obligation to build a hotel on the leased premises; instead, the Lease Amendment facilitates and extends the time for Miami Wilds to develop a hotel and new affordable housing on the Coast Guard Housing Site, which is the option parcel identified in the Lease.
4. Approval of the First Amendment to the Parking Concession Agreement to conform to the reimposed restrictions on County land that will occur upon the approval of the Rescindment Agreement.
5. Through the Lease Amendment, revision of the terms and conditions of the Lease to include the requirement for Miami Wilds to provide to the County, along with the draft of the final site plan, a detailed noise and lighting plan, subject to approval by the County. The noise and lighting plan shall include, but not limited to, any lighting and use requirements resulting from consultation with FWS and incorporates certain restrictions on nighttime lighting and use after the commencement date.
6. Through the Lease Amendment and First Amendment to the Parking Concession Agreement, revise Exhibit M and Attachment A maps, respectively, to remove an area of designated Pine Rocklands that was inadvertently shown on the maps as part of the proposed parking areas.

Background

On October 20, 2020, through Resolution R-1083-20, the Board approved the Lease with Miami Wilds for approximately 27.5 acres of vacant, undeveloped County land located at 12400 SW 152 Street. The Lease granted Miami Wilds rights to develop a Zoo Miami Entertainment Area with a water park, a retail development, and a family hotel for economic development purposes. Through the same resolution, the Board also approved a parking license or concession to Miami Wilds to operate a large parking lot for the joint, non-exclusive use of Miami Wilds and the County, which left a smaller lot for only the County�s and Museums� uses. The Board also approved, through the same resolution, the 2022 Amended Release, which removed land-use restrictions from part of the leased premises. The 2022 Amended Release and the Lease were then executed on June 23, 2022.
In February of 2023, NPS was sued for its failure to comply with certain legal obligations prior to executing the 2022 Amended Release, and the County was made aware of this failure by NPS. In June 2023, the County was granted leave to intervene as a defendant in the matter, Center for Biological Diversity, et. al., v. Debra Haaland, et. al., case no. 1:23-cv-20495, S.D. Fla. (Seitz). In order to resolve and moot the case, NPS and the County determined that the 2022 Amended Release should be rescinded to allow NPS to comply with its legal obligations and determine whether NPS can properly enter into an amended release of restrictions for the portion of the leased premises that is subject to land-use restrictions. This agreement is attached to the accompanying resolution as the Rescindment of the 2022 Amendment No. 1 to the Release and Transfer of Terms, Conditions, Covenants, and Restrictions.
In recognition of the issues with the 2022 Amended Release, the County and Miami Wilds have agreed to amend the Lease and the Parking Concession Agreement. The Lease Amendment grants Miami Wilds certain pre-development rights for the design and future development of the leased premises and affords NPS time to comply with its legal obligations prior to executing another amended release of restrictions. Additionally, the amendment to the Parking Concession Agreement provides for a delayed effective date and, if the new amended release of restrictions is not timely processed and approves, identifies certain lands as parking solely for the County and the Museums.
The Lease Amendment also removes the family hotel development from the Lease so that Miami Wilds is no longer required or permitted to develop a hotel on the leased premises. This in turn reduces the hiring and job numbers associated with the hotel development such that the minimum hiring conditions were revised from 304 to 225 and the minimum capital investment in the project from $99 million to $47 million. Instead, the Lease Amendment facilitates the potential future development of a hotel on the Coast Guard Housing Site, which is identified as an option parcel in the Lease, along with affordable housing so as not to displace existing affordable housing residents currently on that property. Any negotiated agreement for the development of the hotel and/or affordable housing on the Coast Guard Housing Site is subject to this Board�s approval. Any future development of this option parcel will require Board approval.
Scope

Miami-Dade County�s Zoo Miami, a park of Countywide significance, is located at 12400 SW 152 Street, Miami, FL 33177, in County Commission District 9, which is represented by Commissioner Kionne L. McGhee. The economic development opportunities, job creation, and positive impact from the Miami Wilds development are expected to accrue throughout the County.

Fiscal Impact/Funding Source

If approved, the First Amendment to the Lease Agreement will provide for Miami Wilds� rent obligations under Section 4.2 and 4.3 of the Lease Agreement to cease and begin on the revised commencement date, which can be as late as three years from the effective date of the First Amendment to the Lease Agreement. The Lease Amendment also provides that all rent previously paid by Miami Wilds will be credited against future land rent due after the commencement date of the Lease Amendment or refunded if the Lease Agreement is terminated. The fiscal impact to the County associated with these changes is projected to be approximately $170,500. The removal of the hotel from the leased premises is not anticipated to have a fiscal impact to the County. This projection is derived from the minimum annual guarantee rent calculations which remain consistent across the water park, retail area, and the hotel. Furthermore, the overall footprint of the leased premises will remain unaltered. However, precise estimates are not currently available.

Track Record/Monitor

The County has no record of any negative performance issues with Miami Wilds. Christina Salinas Cotter, Assistant Director of Performance Excellence, will monitor the Lease and Lease Amendment for the Parks, Recreation and Open Spaces Department.

Delegated Authority

Upon approval of the accompanying resolution, the County Mayor or the County Mayor�s designee will have the authority to execute and exercise all provisions of the Rescindment Agreement and the Lease Amendment, including any termination, extension, and renewal provisions. The County Mayor or Mayor�s designee will also be authorized to prepare jointly with Miami Wilds a cumulative amended and restated agreement that incorporates the Lease Amendment and the Lease Agreement into a single document, for ease of reference. Further, the County Mayor or Mayor�s designee may negotiate, accept changes and finalize the first amendment to the Parking Concession Agreement to the extent required to comply with directions from, and as a condition to, NPS approval of the first amendment provided that no such revisions are estimated to have an adverse fiscal impact to the County nor violate any policies of the Board and review and approval for legal sufficiency by the County Attorney�s Office is obtained.

__________________________
Jimmy Morales
Chief Operations Officer