AMENDED AND RESTATED TERMINAL AGREEMENT BETWEEN MIAMI-DADE COUNTY
AND SEABOARD MARINE LTD. FOR MARINE TERMINAL OPERATIONS
THIS AMENDED AND RESTATED TERMINAL OPERATING AGREEMENT is
hereby made and entered into as of the 30 day of May,
2008, by and between MIAMI-DADE COUNTY, FLORIDA, ("County"), and
SEABOARD MARINE LTD., a Liberian Corporation, authorized to do
business in the State of Florida ("Seaboard"), by and through
their authorized representatives in accordance with the terms,
conditions and covenants contained herein below. The County and
Seaboard are jointly referred to as "the Parties."
W I T N E S S E T H :
WHEREAS, the County and Seaboard are parties to a "Terminal
Agreement between Miami-Dade County and Seaboard Marine Ltd. for
Marine Terminal Operations" dated October 1, 1998; and
WHEREAS, Seaboard's vessels now carry over forty percent
(40%) of the total cargo and nearly sixty percent (60%) of the
total exports that pass through the Port of Miami; and
WHEREAS, Seaboard has operated at the Port of Miami since
1987 and for more than twenty years has contributed to the
economic health and growth of the County; and
WHEREAS, the County and Seaboard now desire to enter into an
Amended and Restated Terminal Operating Agreement, which extends
the term of the Agreement and makes various other changes to the
Agreement;
NOW, THEREFORE, for and in consideration of the premises and
mutual covenants and agreements hereinafter contained, the
parties hereto do and hereby mutually covenant, agree and bind
themselves as follows:
Section 1. Rules of Construction.
For all purposes of this Agreement, unless otherwise expressly
provided:
A) A term has the meaning assigned to it;
B) An accounting term not otherwise defined has the meaning
ordinarily given to it by accountants in accordance with
generally accepted accounting principles;
C) Words in the singular include the plural, and words in
plural include the singular;
D) A pronoun in one gender includes and applies to other
genders as well; and
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E) The terms "hereunder," "herein," "hereof," "hereto" and such
similar terms shall refer to the instant Terminal Agreement in
its entirety and not to individual sections or articles.
F) The Parties hereto agree that this Agreement shall not be
more strictly construed against either the County or Seaboard.
Section 2. Definitions as used herein:
"Actual TEU Throughput" means the number of TEUs each Fiscal
Year that Seaboard loads on and/or discharges from its Vessels
and/or the Vessels of other carriers calling at the Port berths,
as well as TEUs moved through the Terminal Area from third party
terminal services (as described in Section 5(L)) and multi-
terminal ships (as described in Section 6(K)).
"Agreement" means this Amended and Restated Terminal
Agreement between Miami-Dade County and Seaboard, including all
attachments and exhibits, and any documents incorporated by
reference herein.
"Applicable Laws" means any and all federal, state, and
County laws, rules, ordinances, resolutions, administrative
orders, implementing orders, and tariffs, including, but not
limited to Port of Miami-Dade Terminal Tariff No. 010, that apply
to the conduct of operations at the Port and the Parties' conduct
thereunder, arising out of or related to this Agreement, all as
such may be amended from time to time, including but not limited
to all federal, state and County security requirements.
"Berths" means bays 149 to 182 at the Dante B. Fascell Port
of Miami-Dade (as hereinafter defined), or as may be modified
under the terms of Section 4(A).
"Cargo" means freight ladened or unladened from a vessel.
"Container" means a marine cargo container or a trailer,
flatbed, lowboy, platform, or flatrack. If empty flatracks,
flatbeds or platforms are bundled, each bundle shall count as one
(1) container.
"County" means Miami-Dade County, a political subdivision of
the State of Florida, and all departments, agencies and
instrumentalities thereof, including but not limited to the Miami-
Dade County Seaport Department.
"Discount TEU Rates" means the rates that apply to that
portion of the Actual TEU Throughput in each Fiscal Year that
exceeds the Tier 1 TEU Throughput for that Fiscal Year as set
forth in Exhibit "A", which shall be inclusive of Wharfage and
Dockage, as well as gate fees, reefer fees, storage fees, and
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facility improvement fees. Discount TEU Rates shall not include
Security Fees as identified in Section 6(I) which if assessed
shall be charged separately.
"Dockage" means the charges the County assesses pursuant to
the Tariff against a vessel for berthing at a wharf, pier,
bulkhead structure, or bank, or for mooring to a vessel so
berthed.
"Effective Date" means the effective date of the Board of
County Commissioners' resolution that approves this Agreement as
set forth in Section 3.
"Expiration Date" means the date this Agreement shall
expire, subject to any Renewal Terms as set forth in Section 3.
"Fiscal Year" means the County fiscal year, which runs from
October 1 through September 30.
"FMC" means the Federal Maritime Commission or any other
federal agency that might act as successor to or in the capacity
of the Federal Maritime Commission.
"Initial Term" means the time during which this Agreement
shall be in effect between the Effective Date and the Expiration
Date but before any Renewal Terms are exercised as set forth in
Section 3.
"Land Rental Rate" means the per square foot rental rate
agreed upon by the parties and reflected in Section 5(A) hereof.
"Lay Berth" means any Vessel using a berth for maintenance
or lay up and not for loading or discharging cargo.
"Minimum Guaranteed TEU Throughput" means the minimum number
of TEUs per Throughput Acre that Seaboard agrees to load on
and/or discharge from its Vessels and/or the Vessels of other
carriers calling at the Port of Miami during a Fiscal Year as
shown in Exhibit "A.".
"Non-throughput Acres" means acres within the Terminal Area
that will be excluded from the calculation of the Minimum
Guaranteed TEU Throughput, identified as Parcels "B1" and "B2" in
Exhibit "B", but will be subject to Land Rental Rates. Such
acreage may become Throughput Acres subject to its improvement
consistent with Section "7" and Exhibit "C."
"Original Agreement" means the "Terminal Agreement between
Miami-Dade County and Seaboard Marine Ltd. for Marine Terminal
Operations" approved by the Board of County Commissioners in
November 1998.
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"Preferential Berthing Rights" means a preferential right to
use specified berths as set forth in Section 4(A) over any other
similarly situated vessel, but expressly does not mean an
exclusive right. "Port" means the Miami-Dade County Seaport
Department, also known as the Dante B. Fascell Port of Miami-
Dade, or its successors or assigns.
"Port Director" means the Director of the Miami-Dade County
Seaport Department or designee, or anyone acting in the capacity
of Port Director as designated by the Mayor or designee.
"Rail Line" means the railroad tracks near the northern
boundary of the Terminal Area, the land beneath such railroad
tracks, and such land adjoining the railroad tracks that is
necessary for the effective and efficient movement of cargo.
"Renewal Term" means the time during which this Agreement
shall be in effect in the event any renewal option is exercised
as set forth in Section 3.
"Seaboard" means Seaboard Marine Ltd., and shall include
all affiliates and majority-owned subsidiaries.
"Security Fees" means a fee that may be included as a future
Tariff charge to help pay for expenses associated solely with
increases in the Port's operating security costs as identified in
Section 6(I).
"Shortfall Fees" means the difference between Actual
Throughput and the Minimum Guaranteed TEU Throughput multiplied
by the Tier 1 TEU Rate for any applicable Fiscal Year as set
forth in Exhibit "A" and in Section 5(E).
"Tariff" means the Port of Miami-Dade Terminal Tariff No.
010, Rates, Rules, and Regulations for the Seaport Facilities of
Miami-Dade County, Florida, as such may be amended from time to
time.
"Terminal Area" means the seventy-six and sixty-nine
hundreths (76.69) acres of land designated in Exhibit "B",
attached hereto and incorporated by reference herein, as Parcel
"A", Parcel "B1" and Parcel "B2", and including those buildings
and structures that are currently vacant, those currently
occupied by Seaboard, and those currently occupied by other non-
Seaboard tenants as well as 14.16 subleased acres of land within
Parcel "A.". The Terminal Area is subject to adjustment pursuant
to Sections 4(F), 4(G), 4(H), 4(K) and 5(G).
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"TEU" means one twenty (20) foot equivalent unit Container,
whether full or empty. Any Container thirty (30) feet or less in
length shall count as one TEU. Any Container over thirty (30)
feet in length but less than fifty (50) feet in length shall
count as two TEUs. Any container fifty (50) feet in length but
less than sixty-five (65) feet in length shall count as three
TEUs. All Containers more than sixty-five (65) feet in length
shall be divided by twenty (20) feet to determine a TEU value.
For TEU throughput calculation purposes only, each Vehicle shall
count as two-thirds (2/3) of a TEU.
"Throughput Acres" means acreage that is suitable for
vertically stacking of more than two loaded containers, as shown
in Exhibit "B" and identified as Parcel "A", which represents
approximately 65 (including the 14.16 subleased acres) acres at
the Effective Date of this Agreement and is subject to revision.
"Tier I TEU Rate" means the rate that applies to the number
of TEUs for each Fiscal Year as set forth in Tier 1 of Exhibit
"A", which shall be inclusive of Wharfage and Dockage, as well as
gate fees, reefer fees, storage fees, and facility improvement
fees. The Tier I TEU Rate shall not include Security Fees as
identified in Section 6(I), which if assessed shall be charged
separately.
"Trans-Shipment" means the transfer of a Container or
Vehicle from one vessel at the Port to any other vessel at the
Port.
"Trans-Shipment Rate" means the rate that the County applies
to Trans-Shipment Containers discharged from vessels docked at
the Port as set forth in Section 6(D). This rate shall include
Wharfage and Dockage, as well as gate fees, reefer fees, storage
fees, and facility improvement fees. The Trans-shipment Rate
shall not include Security Fees as identified in Section 6(I),
which if assessed shall be charged separately.
"Tunnel" means the Port of Miami Tunnel, inclusive of
improvement to the Port's road system that is planned for
construction from Watson Island to Dodge Island and is subject to
a tri-party agreement among the Florida Department of
Transportation, County and the City of Miami.
"Vehicle" means a motorized wheeled conveyance used for
transporting persons or cargo on land.
"Vehicle Rate" means the rate that applies to Vehicles
loaded to or discharged from Vessels at the Berths as forth in
Section 6(H), which shall be inclusive of Wharfage and Dockage,
as well as gate
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fees, reefer fees, storage fees, and facility improvement fees.
The Vehicle Rate shall not include Security Fees as identified
in Section 6(I), which if assessed shall be charged separately.
"Vessel" means any waterborne vessel or barge that uses the
Terminal Area and that is either (i) owned or exclusively
chartered, leased, managed, operated or controlled by Seaboard or
trading under the name of Seaboard Marine and/or (ii) any vessel
and/or barge which are part of VSAs, if legally required, as
defined below, covering vessels trading under the name of
Seaboard Marine.
"VSA" means an FMC or other similar governing entity
approved vessel sharing arrangement with other shipping lines.
"Wharfage" means the charges the County assesses pursuant to
the Tariff against the cargo or vessel on all cargo passing or
conveyed over, onto, or under wharves or between vessels (to or
from barge, lighter, or water), when berthed at a wharf or when
moored in a slip adjacent to the wharf. Wharfage is solely the
charge for the use of the wharf and does not include charges for
any other service.
Section 3. Effective Date and Term
The Effective Date of this Agreement shall be the effective
date of the Board of County Commissioners' resolution approving
this Agreement. The Expiration Date shall be September 30, 2028,
unless Renewal Terms are exercised, and subject to the
cancellation and other terms and conditions contained herein.
Subject to the conditions below, Seaboard shall have the sole
option to renew this Agreement on the terms and conditions
contained herein for two (2) Renewal Terms of five (5) years
each. Seaboard's renewal option for the first Renewal Term
requires it to meet either one of the following two (2)
conditions: (i) Seaboard's aggregate average TEU Throughput per
Throughput Acre for the final five (5) Fiscal Years of the
Initial Term exceeds the aggregate average per acre TEU
Throughput for all Port cargo terminal operators combined during
those same five (5) Fiscal Years, or (ii) Seaboard's total
payments ("Total Payments") to the Port for any and all charges
and fees (including those in this Agreement and the Tariff) other
than County-owned crane fees (described in Section 6C), electric
outlet charges (described in Section 6F), and/or payments
associated with rental, lease or development agreements entered
into after the Effective Date exceed one hundred and ten million
($110,000,000) for the final five (5) Fiscal Years of the Initial
Term, which sum shall be adjusted on a pro rata basis for changes
in Throughput Acres acreage. Seaboard shall have the same two
(2) conditions for its option to
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exercise the second Renewal Term except the required amount of
the Total Payments shall be one hundred and twenty-eight million
dollars ($128,000,000) for the five (5) Fiscal Years of the first
Renewal Term. For purposes of the options, Seaboard's Total
Payments shall be adjusted for force majeure, failure of the
County to fulfill its commitments, or actions by the County that
reduce Seaboard's ability to reach the Total Payments
requirement. Should Seaboard wish to enter into a Renewal Term
after having met either of the two (2) conditions listed above,
Seaboard shall notify the County of its intent to exercise the
first renewal option no less than ninety (90) days prior to the
expiration of the Initial Term, and shall notify the County of
its intent to exercise the second renewal option no less than
ninety (90) days prior to the expiration of the first Renewal
Term. Should Seaboard fail to meet both of the conditions listed
above for the first Renewal Term and the Parties do not agree
to enter into the first Renewal Term or a successor contract,
the County agrees to reimburse Seaboard for the unamortized
portion of useful capital improvements made by Seaboard within
the Terminal Area during the final five (5) years of the Initial
Term. Any such reimbursement shall be equal to the value of the
asset's scheduled amortization over the five (5) year period
following the Initial Term, calculated using asset lives in
accordance with generally accepted accounting principals
Section 4. County Commitment to Seaboard.
A) The County agrees to allow Seaboard Preferential Berthing
Rights at the Berths at 149 through 182. In the event the
Port no longer has obligations with the current user of
Berth 183, the Port Director shall assign Berth 183 to
Seaboard for its preferential use. The Port shall provide
Seaboard the use of one (1) operable container gantry crane
and up to an additional one-thousand (1,000) feet of
Preferential Berthing Rights at a berth located west of Bay
135. Seaboard's usage of such bays west of Bay 135 is
subject to Seaboard utilizing the Port's operable and
available gantry crane(s).
B) The County agrees to allow Seaboard exclusive use of the
Terminal Area in conjunction with Seaboard's marine
transportation business, including the preferential berthing
of Vessels for loading, discharging and efficient transfer
of cargo from Vessels to either other Vessels or land-based
(principally truck or rail) transport modes and for storage
of cargo. The Port will allow other uses consistent with
Seaboard's marine transportation business, including, but
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not limited to, construction of any improvements thereon,
subject to the prior written approval of the Port Director,
such approval not to be unreasonably withheld. Seaboard
shall comply with other applicable requirements, including,
but not limited to, submission of a Facilities Modification
Form (Exhibit "D") or similar document as required by the
Port for all improvements to real property at the Port.
C) The County agrees to allow Seaboard the exclusive use of
the Terminal Area for the duration of this Agreement,
pursuant to the terms and conditions contained herein.
D) The County agrees to provide Seaboard with the right of
ingress and egress leading to and from the Terminal Area,
subject to any and all security and other requirements
imposed by Applicable Laws. In the event the Port's main
terminal gate complex is not able to process vehicles owing
to a backup at a non-Seaboard terminal, the Port will
promptly use reasonable efforts to marshal traffic to allow
for the prompt processing of Seaboard vehicles at the Port's
main terminal gate complex.
E) The County represents and warrants that it has good title
to the Terminal Area free and clear of mortgages, liens or
encumbrances and the County covenants that it will not grant
any mortgage liens or encumbrances on the Terminal Area.
F) The County acknowledges that Seaboard desires to conduct
its terminal operations from a contiguous tract of land on
the Port. In this regard, the County agrees that if
additional land contiguous to the Terminal Area becomes
available for permanent use, other than acreage to the west
of the Terminal Area, and such land is free from contractual
or other obligations and not needed for general Port uses,
the County shall extend to Seaboard a right to negotiate to
enter into an agreement for use of such land on terms to be
agreed upon. Under Seaboard's right to negotiate, the
Parties agree to work in good faith regarding such land and
improvements thereto. However, Seaboard shall have a first
right of refusal to lands adjacent to the northern boundary
of the Terminal Area, which are designated as areas Parcels
"C" and "D" and on Exhibit "B" and the "1790 Building".
Should the lands designated as "C" and "D" and "1790
Building" become available, the Port shall offer them to
Seaboard prior to offering them to any other third party.
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G) The County and Seaboard also acknowledge that the
Terminal Area will be adjusted by mutual written agreement
during and subsequent to the construction of improvements
relating to the Tunnel. Any such adjustment of the Terminal
Area may be performed administratively by the Port Director,
so long as any such adjustments do not cumulatively change
Seaboard's terminal by ten (10) or more acres. Any
adjustment resulting in a cumulative change to Seaboard's
acreage by more than ten (10) acres will require Board of
County Commissioners approval. Notwithstanding any other
provision of this Agreement, the County reserves the right
to use available lands for any lawful purpose.
H) The County may offer Seaboard land for temporary rental
if land becomes available, at the Land Rental Rate
then-applicable under this Agreement. Temporary lands at
the time of the Effective Date include both land designated
as Parcels "C" and "D" in Exhibit "B". Unless otherwise
agreed to by the parties, Seaboard shall not pay land rent
on Parcel "D".
I) The Parties agree to make certain improvements to the
Terminal Area during the term of this Agreement as set forth
in Exhibit "C" and Section 7. Any improvements to the
Terminal Area that are not expressly addressed in this
Agreement shall not be the responsibility of either the
County or Seaboard and shall be subject of future
negotiations.
J) The County acknowledges that it is responsible for
bulkhead repair and maintenance and that failure to
adequately repair or maintain bulkheads, inclusive of the
scheduled construction of the bulkhead located between bay
155 and bay 160 ("East Bulkhead"), could negatively impact
Seaboard's use of the Terminal Area. The County commits to
substantially complete the East Bulkhead by December 31,
2010. Should the County fail to substantially complete the
East Bulkhead by June 30, 2011 then the County will
contribute an additional one million dollars ($1,000,000)
toward the improvements described in Section "7" and Exhibit
"C". For every six month interval delay thereafter, the
County will contribute an additional one million dollars
($1,000,000) up to a maximum of five million dollars
($5,000,000) towards its improvement commitments described
in Section "7" and Exhibit "C". For example, if the East
Bulkhead is completed after December 31, 2012 but before
June 30, 2013, the County will
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contribute an additional four million dollars ($4,000,000)
toward the improvements as described in Section 7 and
Exhibit "C".
K) During the time the County is making the improvements as
set forth in Section 7 and Exhibit "C", including but not
limited to the Tunnel, the County shall undertake
commercially reasonable efforts to make up to ten (10) acres
of land available to Seaboard that is not otherwise under
lease agreements with other Port tenants. If such land is
available, it will be subject to the Land Rental Rate and
Minimum Guaranteed TEU Throughput as set forth in this
Agreement, but only on the amount of acreage made available
that exceeds the acreage rendered unavailable because of
improvements and only during the time of such improvements.
Should Seaboard sublease ten (10) or more acres (excluding
the 14.16 subleased acres described in Section 4(P) from any
other terminal operator, the Port will not have an
obligation to provide acreage. If no additional lands are
available to Seaboard from the Port or through sublease of
cargo lands at the Port, the Port will temporarily reduce
Seaboard's Minimum Guaranteed TEU Throughput and its TEU
Throughput under Tier 1 of Exhibit "A" by the affected
acreage until improvements are completed.
L) Seaboard may not provide terminal services for third
parties at the Port prior to January 1, 2014. After this
date, Seaboard may provide terminal services for third
parties providing that: (i) for each third party, the third
party's vessels have not called at the Port more than five
(5) times in the twelve (12) months prior to the date
Seaboard first begins to provide terminal services to such
third party, (ii) third party business will not represent
more than twenty-five percent (25%) of Seaboard's then
current TEU throughput, and (iii) the TEU rate for third
party cargoes will be charged at the higher of the then
applicable Tier I TEU rate charged to Seaboard in this
Agreement or the average of the highest Base (or Tier I) TEU
rates of the other cargo terminal operators at the Port. The
TEUs from Seaboard's third party terminal services will
count towards Seaboard's Minimum Guaranteed TEU Throughput.
M) The parties agree that existing leases between Seaboard
and the County for buildings and structures in the Terminal
Area, which are within the Terminal Area as identified in
Exhibit "B", currently are terminated as of the Effective
Date. The County agrees that Seaboard shall
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no longer have rent payment obligations for these buildings
and structures once terminated, but Seaboard shall be
responsible for all maintenance, repairs and demolition
costs.
N) The County agrees that currently all unoccupied buildings
in the Terminal Area, located within Parcels "B1" and "B2"
in Exhibit "B"., can be utilized by Seaboard for any lawful
business relating to its terminal operation until such
buildings are demolished by the County. The County shall
have no obligations related to or liability for Seaboard's
use of said unoccupied buildings, and Seaboard shall
indemnify the County pursuant to the indemnity provisions of
this Agreement related to any claim arising out of or
related to Seaboard's use of these buildings. The County
shall have no obligation to maintain said buildings.
O) The County agrees that the leases on all buildings,
structures, and land in the Terminal Area, located within
Parcels "B1" and "B2" in Exhibit "B" that are currently
occupied and leased by tenants other than Seaboard ("Third
Party Leases"), shall be terminated as soon as reasonably
possible. Such buildings, including those referenced in
Section 4(N) and the warehouse located at 1470 Port
Boulevard, shall be demolished on or before September 30,
2010 by the County. Should the demolition of all of the
referenced buildings occur by September 30, 2010,
one-hundred percent (100%) of the aggregate demolition cost
shall count toward the County's Funding Cap described in
Section 7(F). For every month the demolition is delayed
beyond September 30, 2010, ten percent (10%) of the
aggregate demolition cost shall not be counted toward the
County's Funding Cap. In connection with such demolitions,
the County shall remove all debris and leave the ground
properly graded. The County then intends for this acreage
to become Throughput Acres subject to its improvement
consistent with Section "7" and Exhibit "C". The County also
hereby agrees that:
1. the County shall remain responsible for all of its
current obligations under the Third Party Leases,
including but not limited to, any maintenance and
environmental obligations.
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2. the County shall assume any and all liability
associated with the Third Party Leases until the
Third Party Lease is terminated by the County and
the tenant vacates the Third Party Area.
3. The County, as landlord, shall collect any and all
rent associated with the Third Party Leases until
their termination.
4. The County shall ensure that none of the Third
Party Leases are renewed or extended and shall
terminate them as soon as possible pursuant to the
terms of the leases.
5. The County shall ensure that each property subject
to a Third Party Lease is prepared for demolition
upon its termination.
P) The County acknowledges that Seaboard currently subleases
14.16 acres of land on the Port from Port of Miami Terminal
Operating Company (POMTOC). Such acreage is included within
the Terminal Area and shall be subject to the then current
Land Rental Rate and counted toward the calculation of
Seaboard's Minimum Guaranteed TEU Throughput regardless of
whether these lands are assigned to Seaboard during this
Agreement. For purposes of calculating the Land Rental Rate
owed the County on this 14.16 acres, Seaboard shall be fully
credited by the County for the amount paid to POMTOC for its
sublease of the 14.16 acres. Should the County gain
possession of this land through assignment prior to,
concurrent with, or after the Effective Date of this
Agreement, the County agrees to transfer these 14.16 acres
to Seaboard, at which time Seaboard shall pay the County
the then applicable Land Rental Rate.
Q) The County acknowledges that acreage dedicated to the
Tunnel impacts Seaboard's operation more than any other Port
user and will force Seaboard to relocate its terminal truck
gates and entrance. Due to the uncertainty of timing and
costs of such relocation and construction of a new truck
gate structure, the Port agrees that Seaboard may use the
Port's existing scales at no charge but only until
Seaboard's new truck gate structure is completed and
operational which shall not be later than November 1, 2010,
subject to the transfer of the subleased 14.16 acres
described in Section 4(P).
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Section 5. Seaboard Commitment to the County.
A) Land Rent. Beginning on the Effective Date and continuing
throughout the Initial Term and any Renewal Terms, Seaboard
agrees to pay one dollar ($1.00) per square foot annually on
all land in the Terminal Area paid in monthly installments
subject to an annual increase of not more than three percent
(3%), starting on October 1, 2009. If for any reason the
County does not increase the Land Rental Rate in any given
Fiscal Year(s), the County may thereafter add the amount of
such allowed (but not imposed) annual increase in later
years but only in the then current term. For example, if
the County elects not to impose a Land Rental Rate increase
in Fiscal Years two or three, in Fiscal Year four the County
could impose a Land Rental Rate increase of approximately
9.3% (the 3% compounded for three years) to account for the
two prior Fiscal Years in which no annual Land Rental Rate
increase was imposed provided, however, that the foregoing
annual increase shall not apply during the first year of any
Renewal Term in which land rent has been changed resulting
from an appraisal. During the Initial Term of the Agreement,
the Land Rental Rate may not vary by more than 38 cents per
square foot in any one year than would have been charged in
that year had the Southeast Regional CPI escalator been
applied from October 1, 2009 in place of a 3% annual
increase. The calculation comparing the cumulative effect
of having used a 3% escalator as opposed to the CPI
escalator shall be performed each year during the Initial
Term only. For example, if on October 1, 2018, the Land
Rental Rate would be $1.34 per square foot based on the
annual 3% escalator, but the Land Rental Rate would have
risen to $1.82 per square foot using the Southeast Regional
CPI escalator-a difference of 48 cents--then because the
latter number is more than 38 cents above the former number,
pursuant to the terms of the this section, the Land Rental
Rate to apply at the commencement of Fiscal Year starting
October 1, 2018 would be $1.44 per gross square foot of the
Terminal Area ($1.82 - .38 = $1.44).
B) Renewal Term. At the beginning of each Renewal Term, the
Land Rental Rate shall be adjusted to reflect any increase
in value pursuant to independent appraisals of comparable
land at Florida's five (5) busiest container ports. Such
adjustment shall apply to the relevant
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Renewal Term in addition the annual increase not to exceed
three percent (3%) applicable to the Renewal Term(s) (other
than the initial year of each Renewal Term). Each Party
shall, within ten (10) calendar days of the County's receipt
of Seaboard's intent to renew this Agreement, select an
independent Florida licensed land appraiser to undertake
the "Appraisal" of the then fair-market value, using the
aforementioned criteria, of the Terminal Area on a square
footage basis (collectively "Appraisals"). Upon completion
of the Appraisals, each party shall transmit a certified
original appraisal to the other party no later than thirty
(30) days from the date Seaboard's written notice of intent
to renew was received by the County. If the Appraisals are
within ten percent (10%) of each other and do not reflect a
decrease from the then applicable Land Rental Rate, the
Appraisals shall be averaged and the resulting rate shall
become the base Land Rental Rate for year one of the
applicable Renewal Term, and which shall be subject in
subsequent years to annual Land Rental Rate increases
pursuant to Section 5 hereof. If, however, the two square
footage rates vary by more than ten percent (10%), the two
appraisers shall jointly select a third independent Florida
licensed land appraiser to calculate the then fair market
rental value of the Terminal Area. The third appraiser's
then fair market rental value (per square foot) shall be
averaged with the original Appraisals to determine the new
base Land Rental Rate, but only if the calculation results
in an increase in the Land Rental Rate. In no event shall
the Land Rental Rate in the initial year of a Renewal Term
be less than the Land Rental Rate of the previous Fiscal
Year; however, the three percent (3%) annual increase shall
not apply in the initial year of each Renewal Term.
C) Infrastructure Fee. Seaboard shall initially pay the
County a one-time Infrastructure Fee of one million
one-hundred and fifty thousand and three-hundred and fifty
dollars ($1,150,350), which is the equivalent of $15,000 per
acre for seventy-six and sixty-nine hundredths (76.69) acres
included within the Terminal Area within sixty (60) days of
the Effective Date, which Infrastructure Fee shall be used
to help fund the Port's financial commitment for
improvements to the Terminal Area. The Infrastructure Fee
shall apply to partial acres on a pro rata basis.
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D) Minimum Annual Throughput. During each Fiscal Year of the
Initial Term and any Renewal Term, Seaboard shall provide
the Minimum Guaranteed TEU Throughput as set forth in
Exhibit "A", subject to force majeure or the failure of the
County to comply with this Agreement, hereunder. The Minimum
Guaranteed TEU Throughput will be adjusted pro rata to
reflect any partial year. For TEU throughput calculation
purposes only, each Vehicle shall count as two-thirds of a
TEU. Seaboard cargo on a non-Seaboard vessel as part of a
VSA shall count towards Seaboard's Minimum Guaranteed TEU
Throughput totals, but any non-Seaboard cargoes on
a non-Seaboard vessel, which is part of a Seaboard VSA,
although counting towards the Minimum Guaranteed TEU
Throughput, shall be assessed at the higher of the
then-applicable Seaboard Tier I TEU Rate or the average of
the highest Base or Tier I TEU Rates of the other cargo
terminal operators at the Port. Trans-shipped TEUs will
count towards TEU throughput calculations, but only if
future rates for Trans-shipped TEUs are equal to or greater
than the then-applicable Tier I TEU Rate. However,
notwithstanding the manner of calculation of TEU throughput,
Seaboard will be responsible for paying to the Port the
equivalent full TEU Rate for all TEUs falling under Tier I
in Exhibit "A".
E) In any Fiscal Year in which Seaboard fails to meet the
Minimum Guaranteed TEU Throughput, Seaboard shall pay the
County Shortfall Fees within sixty (60) days of the receipt
of an invoice from the County after the end of the Fiscal
Year. Shortfall Fees shall be the difference between Actual
TEU Throughput and the Minimum Guaranteed TEU Throughput
multiplied by the Tier I TEU rate for the applicable Fiscal
Year.
F) Within ninety (90) days of the end of each third full
Fiscal Year during the Initial Term and any Renewal Term,
the County shall evaluate Seaboard's Actual TEU Throughput
for those three (3) Fiscal Years. If Seaboard's aggregate
Actual TEU Throughput exceeds its aggregate Minimum
Guaranteed TEU Throughput for those three (3) years, then
Seaboard will be eligible to receive a full credit for
Shortfall Fees paid. The credit will be evenly provided over
the remainder of the Fiscal Year against invoiced charges,
and in subsequent Fiscal Years if the entire credit is not
used in the remainder of the Fiscal Year in which it is
granted.
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G) At the end of each third full Fiscal Year during the
Initial Term and any Renewal Term, the County reserves the
right for the Port Director using, reasonable discretion, to
reduce the size of the Terminal Area but only if it notifies
Seaboard within sixty (60) days of said Fiscal Year end.
The Port Director may reduce the size of the Terminal Area
only if Seaboard's aggregate Actual TEU Throughput for a
three (3) year period falls short of its aggregate Minimum
Guaranteed TEU Throughput for reasons other than force
majeure or an action by the County that is reasonably judged
by the Port Director to have reduced by ten percent (10%)
or more Seaboard's ability to meet its Minimum Annual TEU
Guarantee. The reduction in the size of the Terminal Area
shall correspond on a percentage basis to the percentage
that Seaboard's aggregate Actual TEU Throughput falls short
of its aggregate Minimum Guaranteed TEU Throughput over the
three (3) year period, or as adjusted owing to an action by
the County that is reasonably judged by the Port Director to
have reduced by ten percent (10%) or more Seaboard's ability
to meet its Minimum Annual TEU Guarantee. The particular
part of the Terminal Area that the Port Director uses to
reduce the size of the Terminal Area shall be determined in
the Port Director's sole discretion; provided however, that
Seaboard shall have the right to provide the Port Director
recommendations that minimize the impact on Seaboard's
operations. In the event the size of the Terminal Area is
reduced in accordance with this Section 5(G), the Minimum
Guaranteed TEU Throughput and the TEU Throughput under Tier
1 shall be adjusted downward and the land rent as set forth
in Section 5(A) shall not be payable with respect to land
that is removed from or no longer available in the Terminal
Area.
H) Seaboard acknowledges that a Rail Line runs along the
northern boundary of the Terminal Area. In the event the
County, in the exercise of its reasonable discretion after
prior consultation with Seaboard, desires that the Rail Line
be used within the Port for the movement of cargo, then
Seaboard shall use commercially and operationally reasonable
efforts to provide other terminal operators either access to
cargoes carried on the Rail Line if the rail terminus is in
Seaboard's Terminal Area, or Seaboard will handle such
cargoes on a reasonable cost basis as agreed to by Seaboard
and the Port Director. The County reserves
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the right to modify the Terminal Area to exclude the Rail
Line. In this event, the County agrees to use commercially-
reasonable efforts to work with Seaboard to minimize the
adverse impacts upon Seaboard from the use and location of
the Rail Line. Seaboard agrees that it will not construct
permanent structures on the Rail Line or its right of way
during the term of the Agreement unless the County and
Seaboard mutually agree.
I) Except as otherwise provided herein, the use of the
Terminal Area shall be subject to the Port Tariff. In the
event of a conflict between this Agreement and the Port
Tariff, this Agreement shall prevail.
J) The use by Seaboard of its own mobile harbor cranes
and/or rubber tire gantries within the Terminal Area and/or
bays inclusive and west of bay 149 to load and discharge
Vessels or ships shall not be subject to any fees or charges
imposed by the County.
Section 6. Scheduled Rates Applicable to Seaboard
The County and Seaboard agree that the following rates and
charges shall apply during the Initial Term and any Renewal
Terms, except as otherwise provided:
A) Tier I TEU Rate: The Tier I TEU Rate payable by Seaboard
shall be as set forth in Exhibit "A".
B) Discount TEU Rates: Discount TEUs Rate payable by
Seaboard shall be as set forth in Exhibit "A".
C) Crane Charges: Rates and charges related to County-owned
cranes shall be the lesser of:
(1) the prevailing rates and charges as set forth in the
Tariff; or
(2) Tariff crane rates as of the Effective Date of this
Agreement escalated by no more than 4% each Fiscal Year;
or
(3) any crane rate or charge agreed to by the Parties
pursuant to Section 6 (L).
D) Trans-shipments. From the Effective Date through
September 30, 2013, the County will charge Seaboard the
following Trans-shipment Rates for Trans-shipment containers
it discharges each Fiscal Year: ten dollars ($10.00) per TEU
for TEUs 1 - 15,000; fifteen dollars ($15.00) per TEU for
TEUs 15,001 - 30,000; and fourteen dollars ($14.00) per TEU
for all Trans-shipped TEUs beyond 30,000. Starting on
October 1, 2009, these rates are
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subject to an annual increase of not more than three percent
(3%) per Fiscal Year. Seaboard and the Port agree to enter
into negotiations by June 1, 2013 regarding the Trans-
shipment Rates to be charged after September 30, 2013.
Should Seaboard and the Port fail to agree on a new Trans-
shipment Rate schedule, the lesser of the then Tariff rate
for Trans-shipments or the then Current Tier I Rate shall
apply.
E) Lay Berth: The rates that apply to any Lay Berth Dockage
shall be the Tariff rates, except that when repairs are
undertaken concurrent with the loading or discharging
operations there shall be an allowance of up to twenty-four
(24) hours after the completion of loading/discharging
operations before Lay Berth Tariff rates are applicable. A
forty-eight (48) hour, rather than a twenty-four (24) hour
allowance, will be granted for up to ten percent (10%) of
Seaboard's Vessels in a Fiscal Year.
F) Outlets for Refrigerated Containers: Seaboard shall have
the right at its own expense to place all existing
electrical outlets for powering refrigerated containers
within the Terminal Area on separate electrical meters,
subject to inspection and audit by the County. Seaboard
shall maintain any County constructed electrical outlets
used for powering refrigerated containers within the
Terminal Area in good working condition and repair at its
own expense until such time as these outlets are removed or
demolished consistent with the improvements described
in Section 7. For all electrical outlets constructed by the
County, Seaboard shall be responsible for electric usage
costs as actually billed the County plus an additional $1.35
daily availability fee for each electrical outlet, whether
or not Seaboard uses each electrical outlet. The County
shall provide Seaboard copies of any electric utility
company billings owed the County under this Agreement as
part of its delivery of the County's monthly invoices to
Seaboard. Seaboard shall be responsible for the cost of
installation, recurring utility payments for usage and
maintenance of any infrastructure related to Seaboard's
construction of new electrical outlets for refrigerated
containers. Any new outlets that are not invoiced by the
electric utility to the County will not be subject Seaboard
to any County fees. The County shall issue Seaboard a
credit of thirty-two thousand and six hundred dollars
($32,600) by October 31, 2008. Seaboard acknowledges that
this credit represents the final
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County granted credit under the Original Agreement as
reimbursement for Seaboard's costs for constructing
refrigerated container electrical outlets at the Port.
G) Non-Containerized and Non-Trailerized Cargo: Non-
Containerized and Non-Trailerized Cargo, excluding Vehicles
and cargo loaded on flatbeds, platforms or flatracks shall
be at the prevailing rates and charges as set forth in the
Port Tariff.
H) Vehicle Rate: The rate payable by Seaboard for wharfage
and dockage on Vehicles shall be $4.50 per Vehicle, subject
to an annual increase of no more than three percent (3%),
starting on October 1, 2009. In no case shall such Vehicle
Rate be higher than the Tariff rate in effect at that time.
I) Security Fee: 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 budget, as calculated consistent
with the Port's accounting policies and practices as of the
Effective Date, for security costs for any one Fiscal Year
does not exceed twenty-two million dollars ($22,000,000),
compounded five percent (5%) annually at the start of each
Fiscal Year commencing on October 1, 2008.
J) All Tariff rates shall govern Seaboard's activities at
the Port other than those identified in this Agreement,
subject to specifically mentioned exclusions for gate fees,
reefer fees, storage fees, facility improvement fees, and
Security Fees identified in Section 6(I). Seaboard shall
not be subject to scale fees at the Port's main terminal
gate complex unless it requests to use such scales or as
provided in Section 4(Q).
K) Dockage for Multi-Terminal Ships. In this Agreement,
Dockage is included in the Tier I or Discount TEU Rates,
Trans-shipment Rate, and Vehicle Rate. To the extent TEUs
and/or non-TEU cargo are loaded on and/or discharged from a
ship to or from a Port cargo terminal other than Seaboard's
Terminal Area, then Dockage shall be due the County from
such ship pro rata to the percentage of total TEUs and non-
TEU cargo loaded on and/or discharged from said ship to or
from a cargo terminal other than Seaboard's Terminal Area.
By example, if sixty percent (60%) of the TEUs and non-TEU
cargo loaded and/or discharged on or from a
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ship is processed to or from Seaboard's Terminal Area and
the other forty percent (40%) is processed to or from a
cargo terminal at the Port other than Seaboard's Terminal
Area, then in such event the ship would be charged forty
percent (40%) of the Dockage due under the Tariff.
L) Future Crane Rate Agreements. Should the Port execute a
crane rate discount agreement with any other Port user of
County-owned cranes, the Port shall within forty-five (45)
days offer Seaboard similar terms and conditions, which may
include requirements for crane usage guarantees.
Section 7. Improvements to Seaboard Terminal Area It is the
County's and Seaboard's desire to improve the Terminal Area so
that it is suitable for using a rubber tire gantry (RTG) system
of handling cargo containers and that appropriate and reasonable
marine terminal construction standards be utilized in making such
improvements. In addition, the parties recognize that
construction sequencing must be cooperatively planned and
coordinated in an effort to contain the costs of improving the
terminal while minimizing the impact to Seaboard's operation.
A) Construction Phasing. While an exact construction
phasing plan does not yet exist, it is agreed by Parties that
Seaboard will provide input to the County for its review and
approval. Seaboard shall have the right to review and provide
comment on any architectural and engineering proposals and work
performed by a contractor on behalf of the County within the
Terminal Area. In addition to Seaboard's preferences for
project phasing, Seaboard shall provide a "Basis of Design" plan
for the Terminal Area that will contain, but not be limited to, a
fully dimensioned Terminal Area layout and circulation. It may
also include preferred sequencing of demolition activities,
lighting, access, and RTG runway locations, as well as critical
spot paving elevations, slope limitations, horizontal and
vertical configuration of wharves for Berths, and performance
criteria for critical construction components.
B) Minimum Criteria. Although it will be up to the County
to determine minimum criteria for paving and drainage in the
Terminal Area, the County does commit to making improvements
consistent with RTG operations. Preliminarily, Seaboard has
expressed a preference for design criteria that includes runway
rigid pavements designed to accommodate channelized multi-wheeled
RTG's with lifting capacities of 50 tons and yard flexible
pavements designed for a combination of RTG's, top-picks, reach
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stackers and 18 kip axle loads. Seaboard will also present
information relating to the appropriate grading for RTG
operations and standards for discharge of surface drainage.
C) Phasing. It is agreed by the Parties that the above
generally described improvements will be designed and constructed
in five (5) phases as shown in Exhibit "C". Seaboard agrees that
it will pay the County one million dollars ($1,000,000) for each
of the five (5) phases upon final acceptance by the Parties of
the work for that defined phase. If there is more than one
project for each phase, then Seaboard's payment will be made
based upon final acceptance by the Parties for the work for the
last project in that phase.
D) Failure to Meet Phasing Completion Dates. Should the
County fail to substantially complete the phased improvements by
the respective target dates shown in Exhibit "C", subject to
force majeure, Seaboard's contribution for each phase will
decrease by one-hundred thousand dollars ($100,000.00) for every
month past the targeted completion date for that respective
phase. If the improvements are completed more than ten (10)
months past the respective target date for any phase, then
Seaboard will not make any payment towards that respective phase.
Further, if the improvements are not completed for each phase by
the respective target date, the County agrees to decrease the
then Land Rents and the Minimum TEU Guaranteed Throughput for the
impacted acreage according to Exhibit "C".
E) Improvement Phases. For those improvements that are
the responsibility of the County, Exhibit "C" defines the amount
of phased acreage to be improved by the County. The actual
locations and limitations of the acres to be developed and the
construction phases will be defined later taking into account
Seaboard's "Basis of Design" document. However, such
modification does not change the minimal amount of acreage to be
improved by the County, but could change the location and
configuration of such improvements.
F) County Funding Cap. The County agrees to fund the
allowable demolition costs set forth in Section 4(O) and phased
improvements set forth in Exhibit "C" up to a cap of twenty-one
million dollars ($21,000,000) (the "County Funding Cap"), plus
whatever funds the County receives from Seaboard from its
commitment to contribute funds to completed phases. The County's
twenty-one million dollars ($21,000,000) funding commitment could
be increased by a maximum of five-million dollars ($5,000,000)
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if the County fails to meet East Bulkhead construction deadlines
as set forth in Section 4(J). Should the County complete the
improvements identified in Section "7" and Exhibit "C" for an
amount less than its maximum funding commitment, the County shall
not be obligated to expend the remaining funds. The County
agrees that the following costs will not count toward its Funding
Cap: contract administration, permitting (excluding contractor
costs), environmental review, and time spent by County employees.
Section 8. Use of the Terminal Area
Seaboard shall not use the Terminal Area for any unlawful
purpose, including, without limitation, any unauthorized use, or
any use prohibited by Applicable Laws. Seaboard agrees not to
abandon or cease service to the Terminal Area, unless expressly
permitted to do so by another provision of this Agreement or
authorized to do so by the County.
Section 9. Maintenance and Repair of Terminal Area
A) Subject to subsection (B) below, except for damage
caused by the act or omission of the County and agents, employees
and contractors of the County, or which is the responsibility of
the County pursuant to Section 4(N), all general day-to-day
maintenance and repairs of the Terminal Area shall be Seaboard `s
sole responsibility. Seaboard shall, at its own expense, keep
the Terminal Area and the improvements constructed thereon (if
any) in a clean and orderly condition, and in good working order.
Prior to or at the termination of this Agreement, damage done by
the installation or removal of personal property of Seaboard
shall be repaired so as to restore the Terminal Area to its
original state, except in cases where the Terminal Area may have
been altered by Seaboard with the approval of the Port. At the
termination of this Agreement, Seaboard agrees to quit and
surrender up the Terminal Area in the same good order and
condition as it was at the commencement of this Agreement;
provided however, that such return of the Terminal Area under
this Section shall not relieve Seaboard of its obligations for
damages to the Terminal Area that may be specifically provided
elsewhere in this Agreement. In this regard, Seaboard and the
County shall perform a joint inspection of the Terminal Area at
the commencement of this Agreement in order to determine the
condition of the Terminal Area.
B) Any damage to County property or facilities caused by
Seaboard, including but not limited to damage to paved surfaces
and damage caused by tracked vehicles, shall be repaired by
Seaboard at its sole cost and expense. Seaboard shall not be
responsible for repair caused by normal wear and tear.
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C) The County, its agents and/or representatives may at all
times and with reasonable advance notice enter the Terminal Area
to view and inspect, the Terminal Area and facilities, or for any
other purpose; provided, however, that any such entry and/or
inspection will be conducted at a time and in a manner that will
minimize its impact on Seaboard's operations. Sworn law
enforcement officers may enter the Terminal Area at all times
without notice, as may County personnel solely for reasons of
safety, security and construction management.
D) The Port shall be responsible for maintaining lighting,
bulkheads and drainage and any obligations referenced under
Section 4(O). Seaboard shall be responsible for maintaining
above-ground improvements (except for lighting) constructed by
Seaboard for Seaboard's use, and for maintaining all paving
inclusive of concrete pads for rubber tire gantry operations.
E) Removal of Trash:
Seaboard shall, at its sole cost and expense, remove from
the Terminal Area all trash and refuse which might accumulate and
arise from its use of the Terminal Area and the business
operations of Seaboard under this Agreement. Such trash and
refuse shall be stored temporarily and disposed of in a manner
that complies with all Applicable Laws and is approved by the
Port.
F) Failure to Maintain:
If it is determined by the County that Seaboard has failed
to properly clean, remove trash and refuse, maintain, repair,
replace and refurbish the Terminal Area as required by this
Section and not caused by the County or its affiliates, employees
and subcontractors, the County shall provide Seaboard a list of
deficiencies in writing, reflecting the amount of time to be
reasonably allowed for Seaboard to correct same. If Seaboard
fails to correct such deficiencies within the time allowed and
has not registered an objection as to its obligation to do so,
the County, following thirty (30) days further notice to
Seaboard, may enter upon the Terminal Area and perform all work,
which, in the judgment of the County, may be necessary and the
County shall charge Seaboard for the cost of such work, plus
twenty-five (25%) for administrative costs. Subsequent to
receipt of the further notice of intent to perform repairs or
cleanup from the County, Seaboard shall not undertake performance
of such repairs or cleanup without specific prior written
authorization from the County.
G) Environmental Protection:
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1) Seaboard's Obligations: At all times during the
term of this Agreement, Seaboard shall comply with the following:
a) Disposal of Wastes: Seaboard shall dispose of all
industrial, domestic, hazardous, and solid wastes
generated by it in accordance with all Applicable Laws,
it being Seaboard's responsibility to determine the
approved method of disposal of its wastes and take
action accordingly.
b) Records: Seaboard shall maintain such records as
are reasonably necessary to adequately assess
environmental compliance in accordance with all
Applicable Laws.
c) Monitoring Equipment: Seaboard agrees at its
expense, to the extent required by Applicable Law, or
by environmental or law enforcement officials of the
County or other governmental environmental entity
having regulatory authority and then only to the extent
required by applicable regulations, to install
monitoring equipment in a number and type sufficient to
monitor Seaboard's activities in its use of the
Terminal, and to assign appropriate personnel to
monitor such equipment and provide periodic reports to
the County.
2) Seaboard's Failure to Comply with Environmental
Laws: Seaboard acknowledges that material non-compliance with its
obligations under this section constitutes an event of default
pursuant to Section 25 of this Agreement, and that illegal
discharges and material violations may result in penalties,
issuance of civil violation notices and penalty orders, which
material non-compliance and material violations are also subject
to Section 25 of this Agreement.
3) Seaboard shall comply with all Applicable Laws
related to environmental protection and regulations applicable to
the use, storage and handling of hazardous substances, hazardous
materials, industrial wastes and hazardous wastes in, on, or near
the Terminal Area. Seaboard shall indemnify and hold the County,
its officers, employees, agents, successors and assigns
(collectively "Indemnitees") harmless from, and assumes any and
all liability for, any and all claims, liabilities, causes of
action, obligations, damages, penalties, costs, charges and
expenses (including, but not limited to reasonable attorney's
fees, environmental response and remediation costs and the costs
and expenses of appellate action, if any), imposed on, incurred
by, or asserted against Indemnitees, by any other parties
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(including, with limitation, a governmental entity), in the event
arising out of, in connection with, or relating to any
environmental condition of contamination caused or created in
whole or in part by Seaboard, or any violation of any federal,
state, or local environmental law with respect to the Terminal
Area created and caused solely by Seaboard.
4) County Responsibility for Pre-Occupancy
Environmental Events:
a) Responsibility and Indemnity: To the extent
allowed by law and subject to the limitations
contained in Section 768.28, Florida Statutes,
the County shall be responsible for and does
hereby agree to indemnify, defend and save
harmless Seaboard and its officers, employees,
agents, directors, and stockholders from and
against any and all claims, actions, demands,
costs, damages, loss, fines, judgments,
liabilities of any kind, and expenses,
including reasonable attorney's fees,
relating to or in any way arising out of:
i) The use, storage, disposal, discharge or
release of any Hazardous Material (as
defined below) at, in, on, under above,
originating from, or generating at the
Terminal Area prior to the date of the
Original Agreement or Seaboard's
occupancy or use of the Terminal Area,
whichever came first, whether or not
originating outside the Terminal Area,
so long as not caused by any action or
inaction of Seaboard; or
ii) Any violation, accrual or alleged, of
any Environmental Law (as defined below)
on, under, or above the Terminal Area,
or relating to or arising from
operations or activities at the Terminal
Area prior to the date of the Original
Agreement or Seaboard's occupancy or use
of the Terminal Area, whichever came
first, so long as not caused by the
action or inaction of Seaboard.
For these purposes, the term "Hazardous
Materials" shall include, but not be limited
to, any substance defined as "hazardous
substances,"
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"hazardous air pollutant,"
"pollutants," "contaminants," "hazardous
materials," "hazardous wastes," "toxic
chemicals," petroleum or petroleum products,"
"toxics," "hazardous chemicals," "extremely
hazardous substances," "pesticides" or
related materials, including, but not limited
to, radon and asbestos, as defined in any
applicable federal, state, or local law,
regulation or ordinance, including, but not
limited to, the Comprehensive Environmental
Response, Compensation and Liability Act of
1980, as amended by the Superfund Amendments
and Reauthorization Act of 1986 42 U.S.C.
9601 et seq., the Emergency Planning and
Community Right to Know Act, 42 U.S.C. 1101
et seq., the Resource Conservation and
Recovery Act, 12 U.S.C. 6901 et seq., the
Hazardous Materials Transportation Act of
1974, 49 U.S.C. 1801 et seq., the Federal
Water Pollution Control Act, 33 U.S.C. 1251
et seq., the Clean Air Act, 42 U.S.C. 4701 et
seq., the Federal Insecticide Fungicide and
Rodenticide Act, 7 U.S.C. 136 et seq., the
Safe Drinking Water Act, 42 U.S.C. 2601 et
seq., and any laws regulating the use of
biological agents or substances, including
medical or infectious wastes (collectively
"Environmental Laws").
b) Remediation: The County agrees that it will
take or cause to be taken appropriate steps
to cause the remediation of all Hazardous
Materials covered by the indemnity set forth
in this section, above, as shall be required
in order for the Terminal Area to be in
compliance with Environmental Laws.
c) Seaboard's Obligations during Pre-Occupancy
Remediation Efforts by County: Seaboard
agrees to cooperate with the County in such
remediation steps by assigning appropriate
personnel of Seaboard to coordinate the
remediation steps with the party or parties
actually
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performing the remediation access to and use
of the portion of the Terminal Area
involved in such remediation steps.
d) No Liability to Seaboard: Seaboard
acknowledges that remediation steps taken to
correct any environmental contamination may
extend over a number of years and may cause
inconvenience and business interruption to
Seaboard. The County shall not be liable to
Seaboard in any manner for such
inconveniences and disruption, but will
exercise reasonable efforts to minimize them
to the extent reasonably possible.
5. Environmental Indemnities:
a) The County agrees that Seaboard shall have no
liability for, and provided Seaboard
demonstrates that an event was a pre-occupancy
event for which Seaboard is not liable
hereunder, that the County, to the extent
allowed by law, will indemnify and hold
Seaboard harmless from, all costs and expenses
(including, without limitation, all attorney's
fees and costs) associated with any
environmental contamination of the premises
arising out of a pre-occupancy event which was
not caused by Seaboard. Notwithstanding and
prevailing over the foregoing, such
environmental indemnity shall not extend to,
and Seaboard shall be solely responsible for
all such costs and expenses which arise out of
environmental contamination for which the
County may be held liable caused in whole or
in part by Seaboard, Seaboard's agents,
employees, contractors, or invitees,
including, but not limited to, any
environmental contamination committed by
Seaboard, its agents, employees, contractors,
or invitees during any prior or current
tenancy or occupancy of the Terminal Area or
any portion thereof.
b) The parties' responsibilities, obligations
and liabilities pursuant to this Section
Environmental Indemnities shall survive the
expiration or early termination of this
Agreement.
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6) No waiver: Nothing in this Agreement or otherwise
shall be deemed to be a waiver of the County's or Seaboard's
right to take action against responsible parties for
remediation of or payment for environmental deficiencies on
the Terminal, nor be deemed to be an assumption by the
County of the responsibility for such remediation or payment,
except as may be imposed on the County as a matter of law.
H) Use of Public Port Facilities: The County grants to
Seaboard, in common with all others desiring to use the
Port, the nonexclusive privilege to use the roads of ingress
and egress, service roads and such other facilities and
improvements as may be now in existence or hereafter
constructed for the use of persons lawfully using the Port.
Such grant of use shall only be to the extent necessary to
carry out the rights granted Seaboard under this Agreement
and Applicable Laws and only so long as such use does not
conflict with the County's operation of the Port in the
County's reasonable discretion. Nothing contained herein
shall be construed to grant Seaboard the right to use any
real or personal property that is leased to a third party
except any acreage subleased to Seaboard, including the
14.16 acres subleased from POMTOC.
I) Right To Search: Subject to Applicable Laws, Seaboard
agrees that its vehicles, cargo, goods and other personal
property are subject to being searched when attempting to enter
or leave the Terminal Area. Seaboard further agrees that, to the
extent consistent with Applicable Laws, the Port has the right to
prohibit any individual, agent or employee of Seaboard from
entering the Port, based upon facts which would lead a person of
reasonable prudence to believe that such individual might be
inclined to engage in theft, cargo tampering, sabotage or other
unlawful activities. Seaboard acknowledges and understands that
these provisions are for the protection of all users of the Port
and are intended to reduce the incidence of thefts, cargo
tampering, sabotage and other unlawful activities at the Port.
Section 10. Port Bond Obligations.
Notwithstanding and prevailing over any other provision of
this Agreement, the County reserves the right to increase the
rates contained in this Agreement at a percentage increase no
greater than that applied to other cargo operators upon a
reasonable determination by the County's independent Financial
Advisor that Port revenues in the aggregate will not be
sufficient to meet the rate covenant and/or
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additional bonds tests on all outstanding Port bonds obligations
or any bond coverage requirements. The County shall give Seaboard
ninety (90) days written notice of its intent to increase the
rates pursuant to this provision of the Agreement, and shall make
reasonable efforts, within the limitations of the applicable bond
documents, to provide Seaboard more than ninety (90) days notice.
Seaboard shall have the right to terminate this Agreement by
written notice to the County within sixty (60) days of the date
of such notice. If Seaboard does not terminate this Agreement
within the sixty (60) day period, the increased rates shall
become effective immediately and Seaboard shall have no other
recourse with respect to such increase.
Section 11. Right to Regulate
Nothing in this Agreement shall be construed to waive or
limit the governmental authority of the County, as a political
subdivision of the State of Florida, to regulate Seaboard or its
operations.
Section 12. Zoning Changes and Approvals
Notwithstanding any rights under this Agreement this
Agreement shall not bind the Miami-Dade Board of County
Commissioners, the Zoning Appeals Board, the Building Department,
the Planning and Zoning Department, any successor board or
department, or any other department or board of the County,
including Community Councils, to agree to or grant any zoning
changes, permits or any other approvals.
Section 13. Licenses, Permits and Approvals
Seaboard shall obtain all land use, construction and
operating permits and approvals required by all Applicable Laws
for Seaboard's activities in the Terminal Area at Seaboard's sole
cost and expense. Seaboard shall not require the Port to take
any action or perform any tasks within the Terminal Area to
enable Seaboard to obtain such permits and approvals.
Section 14. Audits
Seaboard agrees that the County or its duly authorized
representatives or governmental agencies shall, until the
expiration of three (3) years after the expiration of this
Agreement and any extension thereof, have access to and the right
to examine and reproduce any of Seaboard's books, documents,
papers and records, and those of its subcontractors and suppliers
acting on Seaboard's behalf, which relate to Seaboard's
performance of its obligations under this Agreement..
Section 15. Suitability of Terminal Area.
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Seaboard acknowledges that the County has made no
representations, except as provided in this Agreement, as to the
Terminal Area, the condition of the Terminal Area or the
suitability of the Terminal Area for Seaboard's purposes.
Section 16. Terminal Agreement
It is agreed that this Agreement is not a lease, and that no
interest or estate in real property or the improvements located
in or on the Terminal Area is created by this Agreement.
Section 17. Commitment on Indemnity and Insurance
A) Seaboard shall procure and maintain throughout the
Initial Term and any Renewal Terms, at its sole cost and expense,
the following insurance policies on which the County shall be
named as an additional insured, with not less than the limits
specified for each policy below:
1) Workmen's Compensation Insurance to cover all
persons employed by Seaboard in and about the
Terminal Area (including longshoremen and harbor
workers coverage) as required by Florida Statute
440 or any successor thereto. Whenever applicable,
protection shall also be provided for liability
under the Jones Act, 46 U.S.C. Section 688, and
under General Maritime Law.
2) General Liability Insurance - With respect to the
use and activities of Seaboard, its employees,
agents, customers and guests in and around the
Terminal Area, General Liability Insurance in the
minimum amount of one million dollars ($1,000,000)
combined single limits for the death of or personal
injury to one or more persons and for property
damage for each occurrence in connection with the
use thereof or the activities of Seaboard thereon.
3) Automobile Liability Insurance covering all owned,
non-owned and hired vehicles used in connection
with Seaboard's operations in an amount not less
than five-hundred thousand dollars ($500,000)
combined single limit per occurrence for bodily
injury and property damage.
4) Terminal Operator's Liability Insurance shall be
for the amount of at least four million dollars
($4,000,000) per occurrence.
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5) All insurance policies required by this section
shall be issued by companies authorized to do
business under the laws of the State of Florida
with the following qualifications:
The company must be rated no less than "B" as to management,
and no less than "Class V" as to financial strength by the latest
edition of Best's Insurance Guide, published by A.M. Best
Company, Oldwick, New Jersey, or its equivalent, subject to the
approval of the County Risk Management Division, or companies
holding a valid Florida Certificate or Authority as shown in the
latest "List of All Insurance Companies Authorized or Approved to
do Business in Florida," issued by the State of Florida
Department of Insurance and are members of the Florida Guaranty
Fund.
Such insurance policies shall contain a provision to the
effect that the insurance company shall not reduce coverage or
cancel such policy without first giving written notice thereof to
the additional insured at least thirty (30) days in advance of
such cancellation or material modification. Seaboard and the
County shall promptly provide to the other, certificates
evidencing that insurance has been obtained meeting the
requirements of this section.
B) Seaboard shall indemnify and hold harmless the County 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 County 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 this
Agreement and caused by the negligence of Seaboard or its
employees, agents, partners, principals, contractors or
subcontractors. Seaboard shall pay all such claims and
losses in connection therewith and shall investigate and
defend all such claims, suits or actions of any kind or
nature in the name of the County, where applicable,
including appellate proceedings, and shall pay all costs,
judgments, and attorney's fees which may issue thereon.
Seaboard expressly understands and agrees that any insurance
protection required by this Agreement or otherwise provided
by Seaboard shall in no way limit the responsibility to
indemnify, keep and save harmless and defend the County
or its officers, employees, agents and instrumentalities
as herein provided. The foregoing indemnity
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shall not apply to the extent caused by the negligent acts
or omissions of the County or its employees, agents,
partners, principals or subcontractors.
C) In those situations where this Agreement imposes an
indemnity obligation on Seaboard, the County may, at its
expense, elect to participate in the defense if the County
should so choose. Furthermore, the County may at its own
expense defend or, after consulting with Seaboard,
reasonably settle any such claims if Seaboard fails to
diligently defend such claims, and thereafter seek indemnity
for costs from Seaboard.
Section 18. Choice of Law and Exclusive Venue
The parties agree that this Agreement was entered into in
the State of Florida and that the laws of Florida, and any
applicable federal law, shall govern its interpretation,
application and enforcement. Venue for any suit or dispute
arising under this Agreement shall lie exclusively in Miami-Dade
County, Florida.
Section 19. Entirety of Agreement; No Oral Change or
Termination
This Agreement is the entire agreement between the Parties
with respect to the subject matter hereof, and supersedes any
prior agreements or understandings between the parties with
respect to the subject matter hereof. No change, modification or
discharge hereof in whole or in part shall be effective unless
such change, modification or discharge is in writing and signed
by the party against whom enforcement of the change, modification
or discharge is sought and, in the case of the County, such
change is approved by the Board of County Commissioners. This
Agreement cannot be changed or terminated orally.
Section 20. Compliance with Applicable Laws
Seaboard, its employees, agents, affiliates, contractors,
and guests shall comply with all Applicable Laws in its action
related to this Agreement and while conducting any activity in
the Terminal Area or on any other County property. If any
renewal option is exercised, Seaboard shall comply with all
Applicable Laws in effect at the time of such renewal.
Section 2-11.1(d) of Miami-Dade County Code as amended by
Ordinance 00-1, requires any County employee or any member of the
employee's immediate family who has a controlling financial
interest, direct or indirect, with Miami-Dade County or any
person or agency acting for Miami-Dade
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County from competing or applying for any such contract as it
pertains to this solicitation, must first request a conflict
of interest opinion from the County's Ethic Commission prior to
their or their immediate family member's entering into any
contract or transacting any business through a firm, corporation,
partnership or business entity in which the employee or any
member of the employee's immediate family has a controlling
financial interest, direct or indirect, with Miami-Dade County
or any person or agency acting for Miami-Dade County and that
any such contract, agreement or business engagement entered in
violation of this subsection, as amended, shall render this
Agreement voidable. For additional information, please contact
the Ethics Commission hotline at (305) 579-2593.
Seaboard agrees to comply, subject to applicable
professional standards, with the provisions of any and all
applicable Federal, State and the County orders, statutes,
ordinances, rules and regulations which may pertain to the
services required under this Agreement, including but not
limited to:
a) Equal Employment Opportunity (EEO), in compliance with
Executive Order 11246 as amended and applicable to this
Contract.
b) Miami-Dade County Florida, Department of Business
Development Participation Provisions, as applicable to this
Agreement.
c) Environmental Protection Agency (EPA), as applicable to this
Agreement.
d) Miami-Dade County Code, Chapter 11A, Article 3. Seaboard
shall provide equal opportunity for employment because of
race, religion, color, age, sex, national origin, sexual
preference, disability or marital status. The aforesaid
provision shall include, but not be limited to, the
following: employment, upgrading, demotion or transfer,
recruitment advertising; layoff or termination; rates of pay
or other forms of compensation; and selection for training,
including apprenticeship. Seaboard agrees to post in
conspicuous place available for employees and applicants for
employment, such notices as may be required by the Dade
County Fair Housing and Employment Commission, or other
authority having jurisdiction over the work setting forth
the provisions of the nondiscrimination law.
e) "Conflicts of Interest" Section 2-11 of the County Code, and
Ordinance 01-199.
f) Miami-Dade County Code Section 10-38 "Debarment".
g) Miami-Dade County Ordinance 99-5, codified at 11A-60 et.
seq. of Miami-Dade Code pertaining to complying with the
County's Domestic Leave Ordinance.
h) Miami-Dade County Ordinance 99-152, prohibiting the
presentation, maintenance, or prosecution of false or
fraudulent claims against Miami-Dade County.
Notwithstanding any other provision of this Agreement, Seaboard
shall not be required pursuant to this Agreement to take any
action or abstain from taking any action if such action or
abstention would, in the good faith determination of Seaboard,
constitute a violation of any law or regulation to which Seaboard
is
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subject, including but not limited to laws and regulations
requiring that Seaboard conduct its operations in a safe and
sound manner.
Section 21. Taxes and Other Charges
Seaboard shall pay all taxes, fees, charges, including
interest and late charges assessed pursuant to all Applicable
Law, with respect to Seaboard's operations as part of this
Agreement.
Section 22. Nuisance
Seaboard shall not commit any nuisance in the Terminal Area
or on any other County property or do or permit to be done
anything that may result in the creation or commission of a
nuisance in the Terminal Area or any other County property.
Section 23. No Exclusive Remedies
No remedy or election given by any provision in this
Agreement shall be deemed exclusive unless expressly so
indicated. Wherever possible, the remedies granted hereunder
upon a default of the other party shall be cumulative and in
addition to all other remedies at law or equity arising from such
event of default, except where otherwise expressly provided.
Section 24. Failure to Exercise Rights Not A Waiver
The failure by either party to promptly exercise any right
arising hereunder shall not constitute a waiver of such right
unless otherwise expressly provided herein.
Section 25. Events of Default
A) Seaboard shall be in default under this Agreement if
any of the following events occur and continue beyond the
applicable grace period:
(i) Seaboard fails to timely comply with any payment
obligation arising hereunder which is not cured
within thirty (30) days from Seaboard's receipt of
written notice from the County of failure to meet
such payment obligation.
(ii) Seaboard fails to perform or breaches any term,
covenant, or condition of this Agreement which is
not cured within sixty (60) days after receipt of
written notice from the County specifying the
nature of such breach; provided, however, that if
such breach cannot reasonably be cured within
sixty (60) days, and such breach
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does not materially interfere with the operations
of the Port, Seaboard shall not be in default if
it commences to cure such breach within said sixty
(60) day period and diligently prosecutes such
cure to completion.
(iii)If Seaboard (excluding subsidiaries and/or
affiliates not involved in the performance of this
Agreement) shall be adjudicated bankrupt, or if
Seaboard (excluding subsidiaries and/or affiliates
not involved in the performance of this Agreement)
shall make a general assignment for the benefit of
creditors, or if any proceedings based upon the
insolvency of Seaboard (as defined in this sub-
Section) are commenced and not dismissed within
sixty (60) days of filing or a receiver is
appointed for all the property of Seaboard which
is not dismissed within sixty (60) days of such
appointment.
B) The County shall be in default under this Agreement if
the County fails to perform or breaches any term, covenant, or
condition of this Agreement and such failure is not cured within
sixty (60) days after receipt of written notice from Seaboard
specifying the nature of such breach; provided, however, that if
such breach cannot reasonably be cured within sixty (60) days and
such breach does not materially interfere with the operations of
Seaboard at the Port, the County shall not be in default if it
commences to cure such breach within said sixty (60) day period
and diligently prosecutes such cure to completion.
C) Upon the occurrence of a default under this Agreement
not cured within the applicable grace period, the non-defaulting
party may pursue all remedies available at law or in equity,
including but not limited to specific performance of this
Agreement, termination of this Agreement, and, as to the County,
the right to re-enter the Terminal Area and expel Seaboard in
which case Seaboard shall remain liable for all charges due at
the time of such termination under the terms of this Agreement
and any repairs and alterations necessary to prepare the Terminal
Area for further Port use.
Section 26. Obligations Surviving Termination Hereof
Notwithstanding and prevailing over any contrary term or
provision contained herein, in the event any party hereto
exercises any lawful termination rights herein, the following
obligations shall survive such termination and continue in full
force and effect until the expiration of a one year term
following the
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earlier of the termination date or the expiration
of this Agreement: (i) any and all outstanding payment
obligations hereunder of any party hereto arising prior to
termination; (ii) any and all indemnity obligations hereunder of
any party hereto; (iii) the exclusive venue and choice of law
provisions contained herein, and (iv) any other term or provision
herein which expressly indicates either that it survives the
termination or expiration hereof or is or may be applicable or
effective beyond the expiration or permitted early termination
hereof.
Section 27. Lack of Agency Relationship
Nothing contained herein shall be construed as establishing
an agency relationship between the County and Seaboard and
neither Seaboard nor its employees, agents, contractors,
subsidiaries, divisions, affiliates or guests shall be deemed
agents, instrumentalities, employees, or contractors of the
County for any purpose hereunder, and the County, its
contractors, agents, and employees shall not be deemed
contractors, agents, or employees of the Seaboard.
Section 28. Force Majeure - Inability to Perform
County and Seaboard shall not be liable for any failure,
delay or interruption in performing their individual obligations
hereunder due to causes or conditions beyond the reasonable
control of the County, Seaboard, and their agents, employees,
contractors, subcontractors, and guests including, without
limitation acts of God, an act of state or war, public emergency,
strikes, boycotts, picketing, work stoppages or labor troubles of
any other type, providing that the party claiming the existence
of a force majeure event delivers written notice to the other
party of such event within fifteen (15) calendar days of the
commencement of such event. Seaboard shall be entitled to a pro-
rata reduction of the Minimum Guaranteed TEU Throughput and a
temporary waiver of any land rent resulting from any Force
Majeure.
Section 29. Severability
If any term or provision of this Agreement or the
application thereof to any person or circumstance shall, to any
extent, be invalid or unenforceable, the remainder of this
Agreement or the application of such term of provision to persons
or circumstances other than those as to which it is held invalid
or unenforceable shall not be affected thereby and shall continue
in full force and effect.
Section 30. Sole Benefit of Parties
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The County and Seaboard intend that the mutual covenants
contained in this Agreement shall be for their sole benefit and
that no other person, corporation or other entity is intended to
be a beneficiary of this Agreement.
Section 31. Representations.
Each party represents and warrants that it is empowered to
enter into this Agreement and to perform any and all of the
duties and obligations imposed upon it or assumed by it under the
terms and provisions of this Agreement.
Section 32. Early Termination.
Seaboard shall have the option to terminate this Agreement
for any reason or no reason, subject to the conditions set forth
herein. Seaboard shall give the County written notice of early
termination six (6) months in advance of its desired termination
date. At the desired termination date, Seaboard shall pay the
County upon exercise of the Early Termination option, as follows:
(i) if the desired termination date is on or before September 30,
2013: twenty million dollars ($20,000,000); (ii) if the desired
termination date is after September 30, 2013 but on or before
September 30, 2028: fifteen million dollars ($15,000,000); and
(iii) if the desired termination date is during any Renewal Term
after September 30, 2028: nine million dollars ($9,000,000).
Section 33. Assignment
Seaboard shall not transfer or assign its rights under this
Agreement without the prior written consent of the County, which
consent shall not to be unreasonably withheld. Any assignment
without prior written consent shall be void. An "Assignment"
shall include any transfer of this Agreement, including but not
limited to a transfer of this Agreement by sale, merger,
consolidation or liquidation, or by operation of law.
Notwithstanding anything in this Section 33 to the contrary,
Seaboard may assign this Agreement to any wholly-owned subsidiary
or wholly-owned affiliate upon notice to, and without prior
consent of, the County. Should Seaboard elect to assign this
Agreement to an entity that is neither a wholly-owned subsidiary
or affiliate, Seaboard must pay the County two-hundred and fifty
thousand dollars ($250,000) for each year remaining on the
Agreement and both Renewal Terms.
Section 34. Amendments
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This Agreement may be amended from time to time provided the
County and Seaboard mutually agree to such amendment and the
amendment is stated in writing, executed by both parties and
attached to the original executed copies of this Agreement. Any
amendment to this Agreement shall be approved by the Board of
County Commissioners.
Section 35. Encumbrances
The County represents and warrants that it has good title to
the Terminal Area free and clear of mortgages, valid liens or
encumbrances and the County covenants that it will not grant any
mortgage liens or encumbrances on the Terminal Area. Likewise,
Seaboard will not grant any mortgage, collateral assignment,
hypothecation or any other liens or encumbrances on the Terminal
Area and shall ensure that none of its employees, agents, vendors
or other affiliates take any actions that result in any such
liens, hypothecations, mortgages, collateral assignments, or
encumbrances being placed on any land owned by the County without
first obtaining the County's written consent, and that any action
contrary to this general prohibition shall be void ab initio.
However, should any such liens, mortgages, hypothecations, or
encumbrances be placed on any County land due to the acts or
omissions of Seaboard or any of its employees, agents, vendors or
other affiliates, Seaboard shall promptly take all steps required
to remove, defend against and otherwise satisfy such liens,
mortgages and encumbrances at its cost and expense.
Section 36. Surrender at End of Term
Seaboard agrees that, at the expiration or lawful
termination of this Agreement, whichever comes first, it shall
peaceably yield the Terminal Area to the Port.
Section 37 Notices
All notices, demands and requests which may or are required
to be given hereunder shall, except as otherwise expressly
provided, be in writing, delivered by personal service, or shall
be sent by, telecopy, United States Registered or Certified Mail,
return receipt requested, postage prepaid, to the parties at the
following addresses:
To the County: Seaport Director
Miami-Dade Seaport Department, Suite 200
1015 North America Way
Miami, Florida 33132
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With a copy to: Miami-Dade County Attorney
111 N.W. 1st Street, Suite 2810
Miami, Florida 33128-1930
To Seaboard: President
Seaboard Marine Ltd.
8001 N.W. 79th Avenue
Miami, Florida 33166-2100
With copies to: ATTENTION - Legal Department
Seaboard Marine Ltd.
8001 N.W. 79th Avenue
Miami, Florida 33166-2100
General Counsel
Seaboard Marine Ltd.
9000 West 67th Street
Merriam, Kansas 66201
Section 38. Inspector General Reviews.
Independent Private Sector Inspector General Reviews
Pursuant to Miami-Dade County Administrative Order 3-20,
the County has the right to retain the services of an
Independent Private Sector Inspector General (hereinafter
"IPSIG"), whenever the County deems it appropriate to do so.
Upon written notice from the County, Seaboard shall make
available to the IPSIG retained by the County, all requested
records and documentation pertaining to this Agreement for
inspection and reproduction. The County shall be responsible
for the payment of these IPSIG services, and under no
circumstance shall Seaboard's prices and any changes thereto
approved by the County, be inclusive of any charges relating to
these IPSIG services. The terms of this provision apply to
Seaboard, its officers, agents, employees, subcontractors and
assignees. Nothing contained in this provision shall impair any
independent right of the County to conduct an audit or
investigate the operations, activities and performance of
Seaboard in connection with this Agreement. The terms of this
Section shall not impose any liability on the County by Seaboard
or any third party.
MIAMI-DADE COUNTY OFFICE OF THE INSPECTOR GENERAL REVIEW
According to Section 2-1076 of the Code of Miami-Dade
County, Miami-Dade County has established the Office of the
Inspector General (IG) which may, on a random basis, perform
audits, inspections, and reviews of all County/Trust
contracts. This random audit is separate and
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distinct from any other audit by the County. To pay for the
functions of the Office of the Inspector General, any and
all payments to be made to the Contractor under this
contract will be assessed one quarter (1/4) of one (1)
percent of the total amount of the payment, to be deducted
from each progress payment as the same becomes due unless,
as stated in the Special Conditions, this Contract is
federally or state funded where federal or state law or
regulations preclude such a charge. The Contractor shall
in stating its agreed process be mindful of this assessment,
which will not be separately identified, calculated or
adjusted in the proposal or bid form. The audit cost shall
also be included in all change orders and all contract
renewals and extensions.
The Miami-Dade Office of Inspector General is authorized to
investigate County affairs and empowered to review past,
present and proposed County and Public Health Trust
programs, accounts, records, contracts and transactions. In
addition, the Inspector General has the power to subpoena
witnesses, administer oaths, require the production of
witnesses and monitor existing projects and programs.
Monitoring of an existing project or program may include a
report concerning whether the project is on time, within
budget and in conformance with plans, specifications and
applicable law. The Inspector General shall have the power
to audit, investigate, monitor, oversee, inspect and review
operations, activities, performance and procurement process
including but not limited to project design, bid
specifications, (bid/proposal) submittals, activities of the
(Contractor/ Vendor/ Consultant), its officers, agents and
employees, lobbyists, County and Public Health Trust staff
and elected officials to ensure compliance with contract
specifications and to detect fraud and corruption.
Upon ten (10) days written notice to the Contractor shall
make all requested records and documents available to the
Inspector General for inspection and copying. The Inspector
General shall have the right to inspect and copy all
documents and records in the
(Contractor/Vendor/Consultant's) possession, custody or
control which in the Inspector General's sole judgment,
pertain to performance of the contract, including, but not
limited to original estimate files, change order estimate
files, worksheets, proposals and agreements from and with
successful subcontractors and suppliers, all project-related
correspondence, memoranda, instructions, financial
documents, construction documents, (bid/proposal) and
contract documents, back-change documents, all documents and
records which involve cash, trade or volume discounts,
insurance proceeds, rebates, or dividends received, payroll
and personnel records and supporting documentation for the
aforesaid documents and records.
The Contractor shall make available at its office at all
reasonable times the records, materials, and other evidence
regarding the acquisition (bid preparation) and performance
of this contract, for examination, audit, or reproduction,
until three (3) years after final payment under this
contract or for any longer period required by statute or by
other clauses of this contract. In addition:
1. If this contract is completely or partially
terminated, the Contractor shall make available
records relating to the work terminated until three
(3) years after any resulting final termination
settlement; and
2. The Contractor shall make available records
relating to appeals or to litigation or the settlement
of claims arising under or relating to this contract
until such appeals, litigation, or claims are finally
resolved.
The provisions in this section shall apply to the
(Contractor/Vendor/Consultant), its officers, agents,
employees, subcontractors and suppliers. The
(Contractor/Vendor/Consultant) shall incorporate the
provisions in this section in all subcontracts and all other
agreements executed by the (Contractor/Vendor/Consultant) in
connection with the performance of this contract.
Nothing in this section shall impair any independent right
to the County to conduct audits or investigative
activities. The provisions of this section are neither
intended nor shall they be construed to impose any liability
on the County by the (Contractor/Vendor/Consultant) or third
parties.
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Exception: The above application of one quarter (1/4) of
one percent fee assessment shall not apply to the following
contracts: (a) IPSIG contracts; (b) contracts for legal
services; (c) contracts for financial advisory services; (d)
auditing contracts; (e) facility rentals and lease
agreements; (f) concessions and other rental agreements; (g)
insurance contracts; (h) revenue-generating contracts; (i)
contracts where an IPSIG is assigned at the time the
contract is approved by the Trust; (j) professional service
agreements under $1,000; (k) management agreements; (l)
small purchase orders as defined in Miami-Dade County
Administrative Order 3-2; (m) federal, state and local
government-funded grants; and (n) interlocal agreements.
Notwithstanding the foregoing, the Trust may authorize the
inclusion of the fee assessment of one-quarter (1/4) of one
percent in any exempted contract at the time of award.
Nothing contained above shall in any way limit the powers of
the Inspector General to perform audits on all Trust
contracts including, but not limited to, those contracts
specifically exempted above.
Section 39. Mutual Obligations
Nothing in this Agreement shall be construed for the
benefit, intended or otherwise, of any third
party that is not a parent or subsidiary of a party or otherwise
related (by virtue of ownership control or statutory control) to
a party.
Section 40. Disputed Invoice Settlement
The Parties agree that there are approximately nine-hundred
and seventy thousand dollars ($970,000) in disputed and unpaid
Seaboard invoices dated before January 1, 2008 (collectively "the
Invoices"). Seaboard agrees to pay the Port five-hundred
thousand dollars ($500,000) within fifteen (15) days of the
Effective Date to settle any and all financial claims made on
such Invoices. The Port agrees that upon receipt of the five-
hundred thousand dollars ($500,000), it will consider the
Invoices to be fully paid and releases Seaboard from any other
payment obligations. Further, the Port agrees that it will waive
and release Seaboard from any late payment penalties through the
Effective Date of this Agreement.
Section 41. Business application and forms
Seaboard shall be a registered vendor with the Miami-Dade
County, Department of Procurement Management, for the duration of
this Agreement. It is the responsibility of Seaboard to file the
appropriate
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Vendor Application and to update the Application file for any
changes for the duration of this Agreement, including any
Renewal Terms.
Section 42. Nondiscrimination
During the performance of this Agreement, Seaboard agrees
to: not discriminate against any employee or applicant for
employment because of race, religion, color, sex, handicap,
marital status, age or national origin, and will take
affirmative action to ensure that they are afforded equal
employment opportunities without discrimination. Such action
shall be taken with reference to, but not limited to:
recruitment, employment, termination, rates of pay or other
forms of compensation, and selection for training or retraining,
including apprenticeship and on the job training.
By entering into this Agreement with the County, Seaboard
attests that it is not in violation of the Americans with
Disabilities Act of 1990 (and related Acts) or Miami-Dade County
Resolution No. R-385-95. This agreement shall be voidable by the
County if Seaboard submits a false affidavit pursuant to this
Resolution or Seaboard violates the Act or the Resolution during
the Initial Term and any Renewal Term of this Agreement, even if
Seaboard was not in violation at the time it submitted the
affidavit.
Section 43. Conflict of Interest
Seaboard represents that:
a) No officer, director, employee, agent, or other consultant
of the County or a member of the immediate family or
household of the aforesaid has directly or indirectly
received or been promised any form of benefit, payment or
compensation, whether tangible or intangible, in connection
with the grant of this Agreement.
b) There are no undisclosed persons or entities interested with
Seaboard in this Agreement. This Agreement is entered into
by Seaboard without any connection with any other entity or
person making a proposal for the same purpose, and without
collusion, fraud or conflict of interest. No elected or
appointed officer or official, director, employee, agent or
other consultant of the County, or of the State of Florida
(including elected and appointed members of the legislative
and executive branches of government), or a member of the
immediate family or household of any of the aforesaid:
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i) is interested on behalf of or through Seaboard directly
or indirectly in any manner whatsoever in the execution
or the performance of this Agreement, or in the
services, supplies or work, to which this Agreement
relates or in any portion of the revenues; or
ii) is an employee, agent, advisor, or consultant to
Seaboard.
c) Neither Seaboard nor any officer, director, employee,
agency, parent, subsidiary, or affiliate of Seaboard
shall have an interest which is in conflict with Seaboard's
faithful performance of its obligation under this Agreement;
provided that the County, in its sole discretion, may
consent in writing to such a relationship, provided Seaboard
provides the County with a written notice, in advance, which
identifies all the individuals and entities involved and
sets forth in detail the nature of the relationship and why
it is in the County's best interest to consent to such
relationship.
d) The provisions of this Section are supplemental to, not in
lieu of, all applicable laws with respect to conflict of
interest. In the event there is a difference between the
standards applicable under this Agreement and those provided
by statute, the stricter standard shall apply.
e) In the event Seaboard has no prior knowledge of a conflict
of interest as set forth above and acquires information
which may indicate that there may be an actual or apparent
violation of any of the above, Seaboard shall promptly bring
such information to the attention of the County's Project
Manager. Seaboard shall thereafter cooperate with the
County's review and investigation of such information, and
comply with the instructions Seaboard receives from the
Project Manager in regard to remedying the situation.
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IN WITNESS WHEREOF, the County and Seaboard have caused this
Agreement to be duly executed.
SEABOARD MARINE LTD. MIAMI-DADE COUNTY,FLORIDA,
a political subdivision of the
By: /s/ Bruce A. Brecheisen State of Florida
Name: Bruce A. Brecheisen
Title: Exec VP By: /s/ Ysela Llort
Mayor or Designee
Date: May 5, 2008
Date: June 2, 2008
ATTEST: ATTEST:
Name: Charles J. Arochoa CLERK OF THE BOARD
By: /s/ Charles J. Arochoa By: /s/ Elizabeth Adorno
Deputy Clerk
Title: Vice Pres. OPS
Date: May 5, 2008 Date: June 2, 2008
/s/ Jess M. McCarty
Approved as to form and legal
sufficiency
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EXHIBITS TO AMENDED
AND RESTATED TERMINAL OPERATING AGREEMENT
Following is a list of the Exhibits to the Amended and
Restated Terminal Operating Agreement, which are omitted
from the Amended and Restated Terminal Operating Agreement
which is filed with the Securities and Exchange Commission
("SEC"). Seaboard Corporation ("Seaboard") undertakes to
provide to the SEC the Exhibits, as requested, subject to
Seaboard's right to request confidential treatment under the
Freedom of Information Act.
Exhibit A -- TEU Minimum Throughput Guarantees and Rates
Exhibit B -- Sketch of Seaboard Parcels
Exhibit C -- Phased Improvements
Exhibit D -- Installation or Modification of
Facilities Port Authorization Application