Safer Cleaner Ships representatives on Friday sent a new legal memo to Key West officials and attorneys, claiming the city of Key West never authorized cruise ship operations at Pier B’s current cruise port, which was built five years after its 1994 agreement with the city. The memo states that Pier B received state, but not city approval, for cruise operations at the newer pier. The memo asks city officials to press pause on current negotiations with Pier B until a judge weighs in on the new argument.
The city commission meets at 5 p.m. Tuesday, April 5 at City Hall, 1400 White St. The new legal memo has been added to the agenda.
“There is no legal authorization for present-day cruiseport operations at Pier B,” the memo states. “Modern Pier B is entirely outside the authorized area of the 1994 agreement with the city. Thus, the City did not authorize or agree to cruise port operations at this new site.”
Attorneys Linda Wheeler and Ralf Brookes drafted the memo that SCS treasurer Arlo Haskell sent to the city on Friday, asking that it be added to the Tuesday, April 5 city commission agenda.
Commissioner Mary Lou Hoover declined to comment on the memo until she spoke with the city’s attorneys. City Attorney Shawn Smith has not commented to the media about the ongoing cruise ship debate. Smith meets regularly with city commissioners and provides updates at city commission meetings.
In the memo, Wheeler and Brookes state the Pier B property includes “multiple structures located on two separate parcels of private and state-owned property. The main components of the Pier B cruise port are (1) the Historic Pier B formerly owned by the US Navy and transferred to private developers as part of the Truman Annex development; (2) the Modern Pier B, which Pier B Development Corp. built in 1999 on sovereign submerged lands it leases from the state of Florida; and (3) a series of three concrete mooring dolphins also built by PBDC in 1999 on the property it leases from the state….”
The memo states that Pier B representatives and city officials have said that any limitations on cruise ships at Pier B must be agreed upon by the company’s owners through changes to the 1994 agreement.
“We respectfully submit that the facts and applicable law lead to a different conclusion,” the memo states. “There is no legal authorization for present-day cruise port operations at Pier B …
“The site on which the city authorized a cruise port in 1994 is NOT where Pier B Development Corp. operates its cruise port today,” the memo continues. “This discrepancy of sites is not the result of scrivener’s error, nor the result of an erroneous survey. It is the result of PBDC constructing a much larger pier in 1999, five years after the [city agreement] was signed and without proper authorization from the city, so that PBDC could attract and accommodate much larger cruise ships.”
The memo continues, saying that although Pier B officials received approval from the state of Florida in 1999 to modify and expand the length of its submerged lands lease, “it never obtained consent from the City of Key West to change the site and footprint for operations of its cruise port as set out in the 1994 [agreement]. Pier B thus changed the location of its cruise port without City consent and in violation of the parties’ 1994 [agreement]. Such a change of location was never contemplated at the time the parties’ agreement was signed in 1994….”
Therefore, the memo states, “…The City is well within its rights to declare Pier B’s present-day cruise port operations in material breach of its contractual obligations pursuant to the 1994 [agreement].”
Wheeler and Brookes argue that given Pier B’s violation of the 1994 agreement, the city has legal remedies that could include termination of Pier B’s right to operate a cruise port; enforcement of the terms of the 1994 agreement, requiring Pier B to return its port to its historical boundaries that were in existence in 1994, or “enter into a modification or amendment of the 1994 agreement which would approve the Pier B cruise port at its current location, subject to mutually agreed terms.”