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HomeMy WebLinkAboutItem #03A - Discussion ItemS=4M1 IIID t Fin-Cirt VI-Cmglm Mian >foM11ip0.' Gdos climmm FROM' OIDL! COi CRY 1iMWI, FLOWDA IB *ATE Sepnudw 7.2001 aAUWT : Panowppono I�F@FFNCEA I mpweuuymp"dm Mt. Fad Hu Iampmt of the Waum Wmd Review Ccmmdaft, be s}Saniad m. +e d,e eiq►Ca�mm�r�on at tine rau ft ftitmMW V be hold -in 17.2001. Cc: AmaNk Ofioe INVI:STNI FT T C;ORPORATIA1 OF "I'MERTGA P O BOX 43-2810 MIAMI. FLORIDA 33'_'4n -U810 5129 5 W 701^ STREET CA, 13051 1•REDRIC B ©URNS. RRCSiarWr TF_rP 0NF. X3051 66•^: Br.� The Honorable Mayor and For Hearing of September 27, 2001 Members of Miami City Commission RE: Minority Reply Report for the Watson Island Review Committee Dear Honorable Mayor and Commissioners: The City has advised me that: "You should bring with you whatever materials you may desire. My department does not handle the distribution of materials related to personal appearances. I believe individuals normally provide their own documents and copies." Therefore I am handing you my response at this time. Unfortunately, staff continues to misconstrue the basis upon which I sought their help. The Review Committee specifically authorized the undersigned to supplement the minority report (the first portion of which staff has previously provided you) which would, to the extent necessary, make clear the minority position, so that the CITY might have the maximum amount of analytical summary available for review. The City Commission might wish to ask itself three questions: 1. Is the. proposal responsive to the RFP? 2. Is the proposal clear and unambiguous, especially as to the amount of rent, the certainty of its payment, and the commencement dates thereof? 3. Does the proposal serve a clear public purpose, both as to the aesthetic aspect, as well as to the functional aspect of the project, so as to justify taking the City's "crown jewel" off the market and expending the necessary resources to enter into protracted lease negotiations and to support the requisite referendum? I note that Adorno & Zeder, on behalf of Watson Island Partners, withdrew their protest fetter following the terrorist attacks against the Pentagon in Washington, D. C. and the World Trade Center in New York. One can only speculate whether or not this was an implicit recognition that a structural change in our economy (particularly in the lodging, time-share and financial sectors) may have occurred because of this act of war and the necessity of retaliation against terrorists. In light of our prior experiences in dealing with fundamentalist extremists, this might necessitate a sustained effort. The banner headline of this Sunday's Herald blared that "W�'re at war" --- Bush: "Americans should brace for great sacrifice." Prior to the withdrawal of their protest, Watson Island Partners pointed out that the Flagstone proposal failed to include required RFP response forms and failed to comply with minority participation requirements. For the details of same, I direct your attention to their letter of September 6. Submitted Into the publlo DISCUSSED record In connectionv th Item _� on 241 7.1,oj Walter Foeman City I`.ier4c • Notwithstanding the Manager's summation of the "CPA report", I direct your attention to their tactful warning, which is whispered in the mode of reputable consultants. For example, PricewaterhouseCoopers stated that they limited their review to: "Verification of facility programming for each component of the proposed developments, evaluation of the marketing plans and analysis of the market assumptions to the extent it was presented in the oroboals ." "We were not* commissioned to go out and do market studies." "No further analysis was provided in the proposal and, therefore, PWC is not* in the position to evaluate this component." [of Flagstone's proposal] They go on to observe that the hotel portion of the plan is "aggressive*". They also felt the restaurant/retail component "appeared aggressive*' Abramson & Associates, Inc. (the real estate consultant) had a similar opinion and attempted to explain same by noting that the location was a "plonyering location*, with a proposed flag [brand] that he considers as yet to "establish a strong market presence". "[T)he retail/restaurant component warrants particular attention*". He goes on to courteously opine that, while It is " s' a*, [it is] by no Means assured* that the proposed space will be able to be leased at the projected rents". They consider the viability of the retail component "ambitious*... [and] the lack of a clear comparable for success reinforced concern about this component." "Basically, it canngt_pe determined* whether or not this component as proposed will be viable and can support the level of rents projected." He goes on to thoroughly warn that, "financial performance of these components may vary* from that projected in the proposal." The bottom line is, as Mr. Abramson tactfully stated in consultantese during his opening remarks of August 30, 2001: "But to summarize It very quickly, you know, as Scott [Berman, CPA] had said in the last go -around a few weeks ago, all of the projects certainly have some element of risk to there In terms of project viability and performance." We have already witnessed the longest closure of U.S. markets since 1929. As was noted on the front page of The Miami Heraid, in Sunday's Business & Money: "Quite a few economists believe the economy - already barely growing could be tipped into a recession as a result of the terrorist acts." "On Thursday, September 13, Reuters released a report captioned "Study: Attack to Dee en motel Downturn* - [U)sing the Gulf War as a model, a leading hotel data firm forecast on Thursday-that•this week's air attacks in New York City and Washington, O. C. will make the ongoing contraction* and demand for U.S. hotel rooms almost three times as s ver * as it would have been otherwise. "People's reluctance to travel for the foreseeable future ... is understandable, given these events, Bears Stearns analyst Jason Ader wrote in a separate research note, also released on Thursday. The financial impact on the nation's airlines ... will likely be severe. If people aren't traveling, lodging _ e and* can be expected to shoal significant d@ine*, as 'mined Into the public record. In connec ton with D�ISOUSSED item -_ on ,. Walter Foeman �/ :� City Clark • • Submitted into the public record in connection with' item lb - on 9 r r2 Wafter Foeman City 011etk Another article captioned: "Leisure Industry Can Expect Some Pain 'Disproportional impact' likely, especially for iodginng* by William Spain, CBS, marketwatch.com" on September 13, 2001," "estimates of the airlines industry's monetary losses mount into the billions, sectors that depend on air travel for customers - iodai *, gaming and cruise lines - can expect to feel some financial pain*, as well." The Market Watch goes on to note, "[H]owever, that event [Persian Gulf War] was thousands of miles away and the 'vague threat' of terrorism was the deterrent to travel ... We think the fall off in hotel demand will be far more significant*this time." The possibility of further investigation into certain principals, the status of which is not public (PWC, Appendix A, pg. II), coupled with the current chaotic financial markets, the aggressive nature of the proposal, and the increasingly difficult times for the lodging industry, casts further doubt on the financeability of this project. In the recent Circuit Court case of Roxcle Bolton, et al., vs. The City of Coral Gables, et al., the Judge entered Summary Judgment on behalf of Petitioners, finding "That the City Commission unlawfully delegated Its legislative authority to the City Manager to negotiate and execute a contract with Turner to build a new administration building and parking garage ...". The Court reaffirmed that the Florida Constitution prohibits one branch of government, i.e. the Manager of the City of Coral Gables, from exercising the powers given to another branch of government, i.e. the legislative (City Commission), As a direct result of the violation of the separation -of -powers doctrine, the partially constructed building had to be torn down, an abutting street reopened, substantial damages paid to the contractor, and an enormous amount of the City's resources were dissipated. In the instant case, it is obvious from a reading of the Minutes of the Watson Island Review Committee that judicial, legislative and executive powers were all improperly delegated and combined into the Watson Island Review Committee. During the August 2, 2001 meeting, the Chairman stated at page 31 - "I am merely echoing what John [Committee member Hall] said ... and that, in considering the RFP, we have to follow the RFP. And the RFP allows us to invoke discretion*". Further on at page 31, Mr. Diaz (Assistant City Attorney advising the Committee) states: "That's correct. We should honor the RFP the way it is, and you should consider it and go forward." At page 32, he goes on to state, "There is a section of the Code that actually says that leases entered into by the City should be [are] subject to affirmative action." Mr. Parente, on page 33, inquires if, "[T]his Is a definition of affirmative action?" [Referring to Article IV. At Sec. 18-137] Mr. Diaz, Assistant City Attorney and Counsel for the Committee, responds at page 33, "Correct." Mr. Robins, at page 33, then asks - "[W]ell, is our consideration of this, as per the RFP, a legal consideration. And are we allowed to consider this." Mr. Diaz responds, "Yes*, you are allowed [required] to consider it. The whole gist of this ordinance is really - the ordinance really refers to the intent of the City to give the substance consideration to minorities. The gist Is intent. There is no requirement really to do anything. [What?] The Commission retains the authority in and of itself. In other words, they can approve whomever, in the end, that they want to approve," D18CUSSED Sutior into ;bio public recl In corn 1 octiurs with item On _ LL2v i Wafter Foeman This is a peculiar interpretation of the law, inasmuch as the Manager'sWW&vised under letter dated July 18, 2001, the Review Committee Members that "Total points per criteria category are designated by the RFP and cannot be altered*. The letter then went on to advise that the maximum points that could be assigned to affirmative action is five (5) points. In effect, the problem with Mr. Diaz's advice, quoted above, is that he is stating that the City Commission need not follow their own ordinance and that the end justifies the means. This is a system of jurisprudence with which I am not familiar. In addition, the colloquy involving Mr. Hall and Chairman Robins highlights the unlawful delegation of the legislative function to the executive branch and the unlawful consolidation of the judicial branch in the Manager's office, as well. This wrong -minded view of the law is further confirmed during the August 30 meeting of the Review Committee, at page 51, whereat Ms. Haskins sets forth her understanding, "[T]hat if, as Members, we feel that minority interest and minority participation percent is not as valid a criteria as maybe some other criteria, personal criteria, we are not required to use a percentage?" Mr. Diaz responds - "Yes. The language is very broad." Then, Mr. Robins goes on -- --, "So we are - we are subjectively* [to] analyze what we think* the priorities are in the RFP." The response by Mr. Diaz is telling - "That's correct. That's correct." In effect, the Assistant City Attorney is arguing for a rule of individual personal opinion, rather than rule of law. At page 58, the problems presented and compounded by this procedure are reflected when Mr. Hall states that he "would be willing to support the Flagstone proposal only on the condition that the Manager negotiate* with them to approve some adenuate level of minority participation* ... Otherwise, I would not." The problem with that approach is readily apparent. Ms. Nation then inquires -- "Could you define adequate level?" Mr. Halt responds - "You know, I would rather leave that to the Manager." The Chairman pretty well sums up the Committee's thinking, when he states at page 61, "We are advising the Manager to consider minority participation and use his discretion*." Reading through the Minutes, one would wonder if there is an ordinance enacted by the Commission or if individual whim and individual discretion govern. . It is pretty tough for the Manager to use his discretion when the minorities who have been discriminated against at the expense of others are so impermissibly defined by the Committee, and when the controlling ordinance is not current. The ordinance requires at Section 18-38(b) that the Minority and Women Business Affairs and Procurement Committee "be responsible for monitoring the implementation of the program and making recommendations for achieving the requirements of this Article. The Committee shall be responsible for generating yearly progress reports to the City Commission and the community at large. At Section 18-31, the ordinance, in recognition of the potential for mischievous results, states that the "program established herein shall be in effect only un�li* such time as the effects of prior unwarranted discrimination against Blacks, Hispanics and Women have been compensated for, at which time the goals and set -asides provided for herein shall DISCUSS.3ED __ A no longer be observed. Such needs shall be reviewed every two years' by the City Commission, upon recommendation of the City Manager." According to the Inter -office memorandum from Maria Ferrer -Miracles, Administrator, of 1 August and 30 August, there has been no official update since 1978. One wonders how the Committee and/or the Manager can comply with a law that is 21 years out of date and which, within its four comers, requires that it "shall be in effect only until* such time as the effects of prior unwarranted discrimination have been compensated for?" The question of whether or not such effects have been compensated for, and whether or not there are minorities against whom the benefits of that ordinance are stili warranted can only be determined after the MANDATED REVIEW required every TWO years. For all the reasons set forth above, the City should reject ail of the proposals and, at a subsequent point in time, take advantage of what has been teamed, and reconvene to construct a better RFP, which will also be able to take into account the earth -shattering events of the 111h of September. Respectfully submitted, redri& . FBB: mw CC: City Clerk Chairman Craig Robins, Watson Island Review Committee * emphasis added Submitted into the public record in connection with 'tem �- on ai Walter F'oeman City Cleric DISCUSSED .ti