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10-24-2019 Special Commission Workshop MeetingThe City of City Commission , eiEfura Speciai WMeeting October 24, 2019 Following the 9 a.m. Commission Liaison Meeting " Executive Conference Room 19200 West Country Club Drive Aventura, FL 33180 AGENDA Call to Order/Roll Call 2, Agreement Between the City and Virgin Trains USA, LLC* 3, Adjournment * Back-up Information Exists ** PowerPoint Presentation This meeting is open to the public. In accordance with the Americans with Disabilities Act of 1990, all persons who are disabled and who need special accommodations to participate in this meeting because of that disability should contact the Office of the City Clerk, 305-466- 8901, not later than two days prior to such proceeding. One or more members of the City of Aventura Advisory Boards may be in attendance and may participate at the meeting. Anyone wishing to appeal any decision made by the Aventura City Commission with respect to any matter considered at such meeting or hearing will need a record of the proceedings and, for such purpose, may need to ensure that a verbatim record of the proceedings is made, which record includes the testimony and evidence upon which the appeal is to be based. Agenda items may be viewed at the Office of the City Clerk, City of Aventura Government Center, 19200 W. Country Club Drive, Aventura, Florida, 33180, or online at cityofaventura.com. Anyone wishing to obtain a copy of any agenda item should contact the City Clerk at 305-466-8901. AGREEMENT CONCERNING AVENTURA STATION BETWEEN THE CITY OF AVENTURA AND VIRGIN TRAINS USA, LLC This Agreement is made and entered into as of the 14th day of October 2019, by and between THE CITY OF AVENTURA, FLORIDA, a Florida municipal corporation ("City"), and VIRGIN TRAINS USA, LLC, ("Virgin Trains"), collectively the "Parties." WHEREAS, on October 14, 2019, pursuant to Resolution No. 2019-56, the City Commission of the City of Aventura (the "City") approved an Interlocal Agreement Between the City of Aventura and Miami-Dade County (the "County") (the "Interlocal") concerning the pedestrian bridge (the "Bridge") to be built by Virgin Trains to connect the proposed new passenger rail station (the "Aventura Station") to be operated by Virgin Trains, to connect from the Aventura Station to the Aventura Mall complex , as described in the Interlocal, a copy of which Interlocal is attached hereto and incorporated herein as Exhibit "A"; and WHEREAS, the City Commission approved the Interlocal subject to this Agreement between the City and Virgin Trains; and WHEREAS, the Parties desire herein to address certain issues pertaining to the design, construction, and operation of the Bridge in order to promote the public health, welfare and safety and the goals and objectives of the Parties. NOW THEREFORE, for good and valuable consideration of the mutual covenants set forth herein and in the Interlocal and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereto do covenant and agree, as follows: 1. RECITALS. That the foregoing "WHEREAS" clauses are ratified and confirmed as being true and correct and are made a specific part of this Agreement. 2. OBLIGATIONS OF VIRGIN TRAINS. a. Virgin Trains shall assure that the design of the Bridge is presented to and approved by the City Commission after input by AMV and Seritage (as those entities are described in the Interlocal). The design features shall comply with all applicable bridge construction codes, illumination standards, and with aesthetic features which conform to City standards as may be set and determined by the City Commission. b. Virgin Trains shall provide for and obtain City Commission approval of a construction time-table (including milestones) for the completion of the design and physical construction of the Bridge by Virgin Trains. c. Virgin Trains shall consult with the Aventura Police Department and Aventura Mall complex security personnel, and obtain the written approval of the Aventura Police Department, as to the security and surveillance systems and security and patrol operations of the Bridge. d. Virgin Trains shall diligently work with the City, County, and FDOT to enable the Bridge to be closed to pedestrian traffic at those times that the Aventura Station is closed, so that public safety is protected. The required efforts of Virgin Trains shall include, but shall not be limited to, obtaining any necessary legislative authorization or formulating the grant of easements for the Bridge in a manner that enables such Bridge closures to be implemented. e. Virgin Trains shall provide and obtain the City Manager's written approval of a Hurricane Evacuation Plan by which the Virgin Trains may be utilized to assist residents of the City and other persons located in the vicinity of the Aventura Station to utilize the railway as a means of evacuation in advance of a storm event. f. Virgin Trains shall, at its sole cost and expense, provide for the relocation or adjustment of any City landscaping in any right of way in the vicinity of the Aventura Station, the railway tracks or the Bridge, which landscaping is in any way impacted by the Aventura Station, railway tracks or Bridge, subject to the City Manager's written approval. g. Virgin Trains hereby grants to the City the exclusive naming rights for the Bridge, and recognizes that the City shall retain and use all revenue related to those naming rights in the event that City subsequently grants naming rights to others at City's discretion. h. Virgin Trains shall demonstrate to the City satisfactory evidence of Virgin Train's binding commitment to build the Aventura Station and the Bridge, in the event that the County does not construct the Aventura Station or the Bridge. 3. OTHER PROVISIONS. a. In case of any conflict between this Agreement and the Interlocal, this Agreement shall control. The terms used in this Agreement have the same meaning as those used in the Interlocal unless expressly noted otherwise herein. b. No term of this Agreement may be modified except in writing executed by all Parties to this Agreement. The City Manager may act for City hereunder. c. If any term of this Agreement is found by a court of competent jurisdiction to be void or unenforceable, said finding shall not affect the enforceability of the remaining terms of this Agreement. d. This Agreement shall be effective upon execution, and shall remain in full force and effect for the duration of design, construction, and existence of the Aventura Station and/or Bridge. IN WITNESS WHEREOF, the parties hereto have made and executed this Agreement on the respective dates under each signature, effective upon the date first appearing above, with the City of Aventura, signing by and through its City Manager, authorized to execute same, and by the representative of Virgin Trains, authorized to execute same. FOR CITY: ATTEST: CITY OF AVENTURA By: .. . _ _.. . Ellisa L. Horvath, MMC Ronald J. Wasson City Clerk City Manager Dated: Approved as to form and legal sufficiency for the use of and reliance by the City of Aventura only: City Attorney FOR VIRGIN TRAINS: By: Dated: Managing Member INTERLOCAL AGREEMENT BETWEEN THE CITY OF AVENTURA AND MIAMI-DADE COUNTY This AGREEMENT made and entered into this 14th day of October, 2019, by and between the CITY OF AVENTURA, FLORIDA, a municipal corporation of the STATE OF FLORIDA, hereinafter referred to as the "City", and MIAMI-DADE COUNTY, a political subdivision of the STATE OF FLORIDA, hereinafter referred to as the "County". City and County collectively referred to herein as "Parties." WITNESSETH WHEREAS, Virgin Trains USA LLC ("Virgin Trains") has constructed and is operating a privately-owned passenger railway system with passenger train stations in Downtown Miami, Fort Lauderdale and West Palm Beach, generally along the Northeast Corridor of the Strategic Miami Area Rapid Transit (SMART) Plan; and WHEREAS, the County and Virgin Trains are collaborating on a project to construct a passenger rail station(s) and pedestrian bridge, generally along the Northeast Corridor, at or around NE 197th Street (the "Project"); and WHEREAS, both Parties herein wish to facilitate said transportation improvements and provide transportation alternatives for the residents of Miami-Dade County; and WHEREAS, pursuant to Resolution No. 2016-69, approved by the Aventura City Commission on November 17, 2016, the City, Aventura Mall Venture hereinafter referred to as "AMV", TB Carpenter Parcel, LLC hereinafter referred to as "TB Carpenter", and Seritage SRC Finance, LLC hereinafter referred to as "Seritage", entered into an agreement (the "Tripartite Transportation Contribution Agreement") wherein AMV and Seritage irrevocably committed to contribute funds to the City in an amount of TWO City of Aventura—Interlocal Agreement with Miami-Dade County MILLION DOLLARS ($2,000,000) each, totaling FOUR MILLION DOLLARS ($4,000,000.00), to fund a major transportation improvement (the "Project") , which pursuant to this Agreement consists of a pedestrian bridge from the Aventura Mall to a proposed passenger rail station; and WHEREAS, the Project consists of the major transportation improvement, namely the pedestrian bridge, that was the subject of the Tripartite Transportation Contribution Agreement; and WHEREAS, pursuant to the terms of the Tripartite Transportation Contribution Agreement, the funding commitments of AMV and Seritage must be secured by a surety bonds, escrow deposits or Letter of Credit; and WHEREAS, AMV and Seritage must maintain legally sufficient guarantees in place throughout the term of the Tripartite Transportation Contribution Agreement; and WHEREAS, on February 1, 2018, the City, AMV, Seritage, and TB Carpenter entered into the First Amendment to the Tripartite Transportation Contribution Agreement (the "First Amendment"); and WHEREAS, the First Amendment provides in part that AMV may also secure its funding commitment with a corporate guaranty given by Shopping Center Management, a Florida general partnership, or any other type of security, approved in writing by the City Manager and City Attorney; and WHEREAS, the First Amendment additionally provides in part that Seritage may also secure its funding commitment with any other type of security, approved in writing by the City Manager and City Attorney; and WHEREAS, the First Amendment provides that in the event construction work or the implementation of the transportation improvement project that is the subject of the Page 2 of 10 City of Aventura—Interlocal Agreement with Miami-Dade County Tripartite Transportation Contribution Agreement has not commenced by January 1, 2025, AMV's and Seritage's funding commitment as required by the Tripartite Transportation Contribution Agreement shall be terminated and the City shall release AMV and Seritage of any and all such funding obligations, except as otherwise provided in the Tripartite Transportation Contribution Agreement. NOW, THEREFORE, in consideration of the promises and covenants contained herein, the Parties agree: 1. RESPONSIBILITIES OF CITY: 1.1.Funding Contribution: The City agrees that it will disburse to the County funding in the amount of FOUR MILLION DOLLARS ($4,000,000.00) for the design and construction of an elevated pedestrian bridge from, at or near, the east right-of- way line of Biscayne Boulevard/State Road 5 traversing across to, at or near, the west right-of-way line of West Dixie Highway at or near NE 197th Street and providing pedestrian access to and from the proposed train station(s)/center platform to either an outparcel at the Aventura Mall or the adjacent right-of-way (the "Bridge"). The City shall disburse said funds, upon receipt of the funds from AMV and Seritage, but in no event shall the disbursement be later than thirty (30) calendar days after the execution by Virgin Trains, the County, or another third- party developer of a contract for the physical construction of the Bridge. The County may utilize these funds for payment towards the costs of design and/or construction of the Bridge, either via disbursement to a County contractor or to Virgin Trains or other third-party developer. In the event that the County fails to have the Bridge constructed in accordance with this Agreement by no later than January 1, 2025, then the County shall refund the Bridge Funds to the City to be Page 3 of 10 City of Aventura—Interlocal Agreement with Miami-Dade County held and disbursed by the City in accordance with the Tripartite Transportation Contribution Agreement. The City shall incur no liability for any costs in excess of said funding amount unless there has been a duly authorized increase which is expressly approved by duly adopted Resolution of the City Commission. 1.2.Obligation to Pursue Rights: The City shall diligently pursue all its rights under the Tripartite Transportation Contribution Agreement, including but not limited to enforcing the requirement in that agreement that AMV and Seritage must secure its respective funding commitment by a surety bond, escrow deposit or Letter of Credit or other form of security as described above at all times throughout the term of the Tripartite Contribution Agreement. In the event that the City does not successfully enforce its rights under the Tripartite Transportation Contribution Agreement concerning the funding commitment, and upon the County's request, the City shall assign its rights under that agreement to the County so that the County may directly seek such funds from AMV and Seritage. 1.3.Right-of-Way and Permitting: The City shall assist the County, and/or any contractor or third-party developer, in obtaining access to any right-of-way that is within the City's boundaries and is required to complete the construction of the Bridge. The City shall also assist the County, and/or any contractor or third-party developer, in any permitting or plan review necessary to construct the Bridge within the City boundaries. 1 A.Condition. The Parties recognize that the City's obligations under this Agreement are expressly subject to the condition precedent that the City reach a separate agreement directly with Virgin Trains ( "the City/Virgin Trains Agreement") to address the City's specific concerns as to the timely construction of the Bridge, Page 4 of 10 City of Aventura—Interlocal Agreement with Miami-Dade County the Bridge's aesthetic design, lighting, security (including input from both the City's Police Department and Aventura Mall complex security) , Bridge naming rights being exclusively allocated to the City, preservation of landscaping along the right of way in the vicinity of the Aventura Station, railway tracks and Bridge, and other components and features. 2. RESPONSIBILITIES OF COUNTY: 2.1.Construction: The County shall enter into an agreement with Virgin Trains or any other third-party developer to require the developer to procure and manage the services of licensed professionals to design and construct the Bridge. The County may also, at its sole discretion, procure the services of licensed professionals to design and/or construct the Bridge. The County's failure to enter into any agreement(s) or contract(s) for the design and/or construction of the Bridge shall not be deemed a violation of this Agreement, except as specified below. In no way does this Agreement require the County to enter into agreements for the design or construction of the Bridge, except as provided by that certain Land Acquisition and Development Agreement between the County and Virgin Trains (the "Bridge Agreement") which was approved by the County's Board of County Commissioners on October 11, 2019. Notwithstanding anything to the contrary, the County shall diligently pursue all its rights and remedies under the Bridge Agreement, including but not limited to enforcing the requirement that Virgin Trains (or its successors or assigns) use commercially reasonable efforts to acquire the rights necessary to construct the Bridge. In the event that the County defaults on the Bridge Agreement or does not diligently pursue its rights and remedies thereunder, the City may, at its option, terminate the Agreement, upon Page 5 of 10 City of Aventura—Interlocal Agreement with Miami-Dade County which termination the County shall refund the Bridge Funds to the City to be held and disbursed by the City in accordance with the Tripartite Transportation Contribution Agreement. 2.2.Design and Review: The County shall cooperate with the City during the design and construction of the Project as provided herein. The County shall name the station as the "Aventura Station" if requested by the City Commission. The City shall be invited to be a part of design discussions and shall be provided with any revisions as the design progresses. Communications made by the County to the City shall be via email to the City Manager with a copy to the City Clerk. The County shall provide the City with the design plans of the Project, which, at a minimum shall include provisions for a covered and air conditioned pedestrian bridge with a moving sidewalk, for the City's review. The City shall provide any and all comments it may have on said design plans to the County within ten (10) business days of receipt of the design plans. The City's failure to provide comments within the timeframe set out herein shall be deemed as though the City has no comments. The City's comments, as shall mutually be agreed upon by the parties after discussion, will be incorporated into the design plans. The City acknowledges that the provisions of this paragraph are not intended to cause a disruption or delay in the design or implementation of the Project but are included to keep the City apprised of the design of a Project spanning the major arterial roadway within in its corporate boundary. Further, in light of the circumstance that location and manner of the connection of the Bridge to the Aventura Mall is a key component of the purpose of the Bridge, the Parties agree that the location, design, and construction of the Bridge is subject to the reasonable prior approval Page 6 of 10 City of Aventura—Interlocal Agreement with Miami-Dade County of AMV, its successors and assigns, and to the reasonable approval as Seritage, its successors and assigns, for consistency with the purposes of the Tripartite Transportation Contribution Agreement. 2.3.Bridge Closure. In order to protect public safety and security, the County shall work with Virgin Trains and FDOT to assure that the Bridge shall be closed to pedestrian traffic at times and hours when the passenger trains are not operating at the Aventura Station. 3. COMPLIANCE WITH LAWS: The Parties shall comply with applicable federal, state and local laws, codes, ordinances, rules and regulations in performing their respective duties, responsibilities, and obligations pursuant to this Agreement and with all applicable laws relating to the Project. The Parties shall not unlawfully discriminate in the performance of their respective duties under this Agreement. 4. INDEMNIFICATION: To the extent authorized by Florida law, the City hereby agrees to indemnify, defend, save and hold harmless the County to the extent of all the limitations included with Section 768.28, Florida Statutes, from all claims, demands, liabilities and suits of any nature whatsoever arising out of, because of or due to the breach of this Agreement by the City, its agents or employees. It is specifically understood and agreed that this indemnification clause does not cover or indemnify the County for its sole negligence or breach of contract. To the extent authorized by Florida law, the County hereby agrees to indemnify, defend, save and hold harmless the City to the extent of all the limitations included in Section 768.28, Florida Statutes, from all claims, demands, liabilities and suits of any nature whatsoever arising out of, because of or due to the breach of this Agreement by the County, its agents or employees. It is specifically understood and agreed that this Page 7 of 10 City of Aventura—Interlocal Agreement with Miami-Dade County indemnification clause does not cover or indemnify the City for its sole negligence or breach of contract. 5. DISPUTE RESOLUTION, APPLICABLE LAW: The Parties shall resolve any disputes, controversies or claims between them arising out of this Agreement in accordance with the "Florida Governmental Conflict Resolution Act", Chapter 164, Florida Statutes, as amended. This Agreement shall be governed by the laws of the State of Florida. Venue in any proceedings shall be in Miami-Dade, Florida. Each Party will bear its own attorney's fees. 6. ENTIRE AGREEMENT, AMENDMENTS: This document incorporates and includes all prior negotiations, correspondence, conversations, agreements and understandings applicable to the matters contained herein and the Parties agree that there are no commitments, agreements, or understandings concerning the subject matter of this agreement that are not contained or referenced in this document. Accordingly, the Parties agree that no deviation from the terms hereof shall be predicated upon any prior representations or agreements, whether oral or written, unless referenced in this document. It is further agreed that no modification, amendment or alteration in the terms contained herein shall be effective unless set forth in writing in accordance with this section. No modification, amendment or alteration in the terms or conditions contained herein shall be effective unless contained in a written document prepared with the same or similar formality as this Agreement and executed by the Parties. The City Manager shall act for City hereunder. 7. JOINT PREPARATION: The Parties acknowledge that they have sought and received whatever competent advice and counsel as was necessary for them to form a full and Page 8 of 10 City of Aventura—Interlocal Agreement with Miami-Dade County complete understanding of all rights and obligations herein and that the preparation of this Agreement has been their joint effort. The language agreed to expresses their mutual intent and the resulting document shall not, solely as a matter of judicial construction, be construed more severely against one of the Parties from the other. 8. SEVERANCE: In the event a portion of this Agreement is found to be invalid by a court of competent jurisdiction, the remaining provisions shall continue to be effective unless the City or County elect to terminate this Agreement. An election to terminate this Agreement based upon this provision shall be made within seven (7) business days after the finding by the court becomes final. 9. NOTICES: Any and all notices required to be given under this Agreement shall be sent by first class mail, addressed as follows: To the County: Attention: Department of Transportation and Public Works do Director Miami-Dade County 701 NW 1 Court, Suite 1700 Miami, Florida 33136 (786) 469-5406 To the City: Attention: City Manager Aventura City Government Center 19200 W. Country Club Drive Aventura, FL 33180 (305)466-8900 10.RECITALS. The recitals set forth on pages 1-3 hereof are incorporated herein as a part of this Agreement. Page 9 of 10 City of Aventura—Interlocal Agreement with Miami-Dade County IN WITNESS WHEREOF, the Parties hereto set their hands and official seals the day and year first above written. ATTEST: MIAMI-DADE COUNTY, FLORIDA, BY ITS BOARD OF HARVEY RUVIN COUNTY COMMISSIONERS CLERK OF THE BOARD BY: BY: Deputy Clerk County Mayor or County Mayor's Designee Approved by County Attorney as to form and legal sufficiency: County Attorney ATTEST: CITY OF AVENTURA, a municipal corporation of the State of Florida BY: BY: Ellisa L. Horvath, MMC, City Clerk Ronald J. Wasson, City Manager (Affix City Seal) Approved by City Attorney as to legal form and correctness: City Attorney Page 10 of 10