HomeMy WebLinkAboutCC 1999-02-16 Minutes4-1
CITY OF MIAMI
COMMISSION
MINUTES
OF MEETING HELD ON FEBRUARY 16, 1999 (Special Commission Meeting)
PREPARED BY THE OFFICE OF THE CITY CLERK/CITY HALL
Walter J. Foemae/Clry Clerk
ITEM NO.
INDEX
MINUTES OF SPECIAL MEETING
FEBRUARY 16,1999
SUBJECT
LEGISLATION
1. DISCUSS , COMMISSION REQUEST FOR CABLE .2-16-99
COMPANY TO CONSIDER REDUCING RATES ''FOR R 99-126
SENIOR CITIZENS RESIDING IN PUBLIC HOUSING AS 1-17
WELL '.AS TO INCREASE DOLLAR AMOUNT FOR
VOUCHERS TO $1,000,000. 00_ -- APPROVE SUBJECT TO
CONDITIONS REQUEST FOR RESTRUCTURING AND .
MERGER AMONG AT&T CORPORATION / ITALY.
MERGER CORP. / AND TELECOMMUNICATIONS INC.
(TCI) - DIRECT CONSULTANT MATTHEW LEIBOWITZ
TO MEET WITH - COMMISSIONER PLUMMER
REGARDING AT&T RELATED MATTERS - CONTINUE
DISCUSSION ON FUTURE CITY COMMISSION ACTION
REQUIRED TO CONSENT TO PROPOSED CABLE
FRANCHISE ORDINANCE / CABLE FRANCHISE
RENEWAL / MEDIAONE TRANSFER
2. DISCUSS FUTURE - OF MIAMI CIRCLE - URGE 2-16-99
DEVELOPER OF PROPERTY LOCATED AT 421 R 99-127
BRICKELL AVENUE (AKA: MIAMI CIRCLE) TO 18-35 _
RECOGNIZE PROPERTY'S POTENTIAL FOR HISTORIC
SIGNIFICANCE - CONTINUE DISCUSSION ON NEED
FOR MIAMI -DADE COUNTY COMMISSION TO
APPROVE A HOLD HARMLESS AGREEMENT FOR THE
CITY OF MIAMI BEFORE THE COUNTY AND THE CITY
ENTER INTO PARTNERSHIP TO SAVE THE MIAMI .
CIRCLE - TENTATIVELY' SCHEDULE SPECIAL
COMMISSION MEETING TO CONTINUE MIAMI CIRCLE
DISCUSSION FOR FEBRUARY 19, 1999, AT 10 A.M.
00 :1l wd 83 d3S 66
a�3A[. 03 ;
MINUTES OF SPECIAL MEETING OF THE
CITY COMMISSION OF MIAMI, FLORIDA
On the 16`h day of February, 1999, the City Commission of Miami, Florida, met at its regular meeting
place in the City Hall, 3500 Pan American Drive, Miami, Florida in special session.
The meeting was called to order at 10:23 a.m. by Presiding Officer/Chairman J.L. Plummer, Jr., with
the following members of the Commission found to be present:
ALSO PRESENT:
Vice Chairman Wifredo Gort (District 1) _
Chairman J.L. Plummer, Jr. (District 2)
Commissioner Joe Sanchez (District 3)
Commissioner Tomas Regalado ( District 4)
Commissioner Arthur E. Teele, Jr. (District 5)
Donald Warshaw, City Manager
Joel Maxwell, Assistant City Attorney
Walter J. Foeman, City Clerk
Maria J. Argudin, Assistant City Clerk
An invocation was delivered by Mayor Joe Carollo, who then led those present in a pledge of allegiance
to the flag.
1. DISCUSS COMMISSION REQUEST FOR CABLE COMPANY TO CONSIDER REDUCING
RATES FOR SENIOR CITIZENS RESIDING IN PUBLIC HOUSING AS WELL AS TO -INCREASE
DOLLAR AMOUNT FOR VOUCHERS TO $1,000,000.00 — APPROVE SUBJECT TO CONDITIONS
REQUEST FOR RESTRUCTURING AND MERGER AMONG AT&T CORPORATION / ITALY'
MERGER CORP. / AND TELECOMMUNICATIONS INC. (TCI) — DIRECT CONSULTANT
MATTHEW LEIBOWITZ TO MEET WITH COMMISSIONER PLUMMER REGARDING AT&T
RELATED MATTERS - CONTINUE DISCUSSION ON FUTURE CITY COMMISSION ACTION
REQUIRED TO CONSENT TO PROPOSED CABLE FRANCHISE ORDINANCE / CABLE
FRANCHISE RENEWAL/ MEDIAONE TRANSFER.
Mayor Carollo: Excuse. We will begin now. If everyone could stand up, please, for the invocation.
Chairman Plummer: Mr. Mayor, just for the -record, when this special meeting was called at the last
Commission meeting, it was for the purposes of TCI (Telecommunications, Inc.), and added to that was the
Circle. Mr. Matt Leiberman, who is here from TCI, does have to catch a plane and, for that reason, was told
February 16,1999
that he would be on the agenda for the first item, which that is the TCI item. Mr. Mayor, so I just want you
to know where it is.
Mayor Carollo: Thank you, Commissioner. That was made clear at the last meeting. Now, Matt, can you
come up, please, and let us know where we're at on this item today?
Mr. Matthew Leibowitz: Mr. Mayor, Mr. Chairman, thank you. Matt Leibowitz, counsel for the City, on
the cable franchising issues. As I presented to you during the last meeting, we've made substantial progress
on all the issues with respect to the outstanding renewal and we have looked at the two pending transfers.
First one is from Transfer of Control internally within TCI to AT&T and the second one .is MediaOne.
During the last several years, we have focused on the deficiencies, financially and technically, of the system
in the customer service, as well as all the other associated issues. We've distributed to you a modified
February 1st letter updating a lot of the issues. And you have before you a February 12th letter, which
constitutes a binding offer from TCI, AT&T, and MediaOne. In large measure, this is consistent without the
outline that I presented to you at the last meeting. There are some changes to that. If you'd like, let me go
through the outline of the letter on the issues. First of all, with respect to the overall technical plant, as we
all recognize, being discussed numerous times. The existing technical plant is wholly and efficient...
Chairman Plummer: Excuse me. You're speaking to a letter?
Mr. Leibowitz: The letter dated February 12th, that was attached to the resolution.
Chairman Plummer: All right. Hold on.
Mayor Carollo: It's on the back part of the middle there.
Chairman Plummer: Is this February the lfh9
Mr. Donald Warshaw (City Manager): Yes.
Chairman Plummer: OK.
Mr. Leibowitz: OK. So, we start off with the existing technical plant and the services that the technical
plant can pass through, and through the process we noted numerous deficiencies. So, the question was, how
do well deal with the technical plant until an upgrade is actually accomplished? What we did is, we agreed
to what we call an "enhanced maintenance program." Essentially, that is, we've identified -the existing
technical problems and TCI has committed to a quick remedial plan of those problems, as they are now
apparent to us. Subsequently, and during the entire rebuild period, there will be a technical review
committee that will be chaired by designee of the Manager's office, assisted by, when necessary, an
independent consulting engineer. There is up to seventy-five thousand dollars ($75,000) paid by TO to
support the cost of the consultant and the engineer, as required by the City. This group would meet on a
regular basis, called by the Manager's designee, to review the progress and to discuss any new issues that
come up throughout the technical rebuild to maintain the existing system in the highest state possible.
Perhaps the most significant piece of this puzzle, if you will, is that they have committed to dramatically
increase their staffing, not only their customer service, but their management and their actual technical
people on the ground. The thought there was, first of all, we already know that there are problems. We
already anticipate, during the rebuild, that there will be additional problems. So, the increase in staff to 125
percent of a standard was a rather critical piece of the puzzle. The upgrade itself will be accomplished in 24
months. As you may recall early on, the companies were saying they could never accomplish this in shorter
than a three-year period, and we were able to cut that down by 50 percent. Ultimately, at the end of that
2 February 16,1999
period, the City will be receiving a 750 megahertz system with all the bellsand whistles, state-of-the-art
type of technology, which will be able to drive all the services that the cable industry is about to provide at
that time. A footnote to that is, one of the services that they're contemplating providing is telephone and, as
I think, if you recall, my concern is, under state law, this City should adopt or modify a telephone ordinance
independently of the cable franchise, an ordinance, and they have agreed to come and apply for
authorization for telephone service at that time, and they recognize, which I think is very important, that this
cable franchise does not allow them to provide telephone _service until they have received that further
authorization. In terms of the technical system itself, there's an ongoing requirement of state-of-the-art.
Now, we had a variation to that, your old ordinance 10 — 12 years ago. Problem was, it was not well -written
and, more importantly, there were no enforcement mechanisms, other than the nuclear bomb, i.e., revoke the
franchise. What we have agreed to is a very workable definition and, more importantly, a definitive
enforcement mechanism that, if the City is not convinced that they are forthcoming, that the City can get
involved and provide up to two thousand dollars ($2,000) a day for liquidated damages in the event that they
fail to maintain this system as state-of-the-art. Moreover, in the 5th year, there is actually a further step, an
independent right that this City has, to force an upgrade, assuming they go through a procedure and make
certain determinations and that is something brand new and that will, again, provide this City with the clout
necessary to make sure that we don't end up with same antiquated deficient system 10 years, as we have — as
we find ourselves today. In terms of payment of the franchise fees, we have maxed out on that. We will be
able to collect the maximal allowable dollars under the law. Footnote again, recognizing that the County
has a certain percentage of the dollars which they take. But we were able to accomplish the inclusion within
the gross revenue definition of Internet services on a very broad definition, which, as we've discussed
earlier, is very important because the Internet dollars, the cable modem is perhaps the largest, potential
revenue source in the future for cable industry. On PEG (public educational and/or government) Access
Channels, we have the continuation of the Channel 9; an opportunity to get four additional channels once
the upgrade is concluded, on a very favorable basis, in terms of formula for the City, and the franchisee's
also committed to tape or .live cable cast, independently, up to 24 events per year, selected by the City.
Who's going to pay for this? We have included in this agreement a capital support mechanism. The support
is based on a formula of a — up to a dollar per subscriber, per month. We have sixty-three thousand
subscribers currently, approximately. It's anticipated that that number would grow substantially after the
upgrade. And, if so, you would have a potential of a dollar per month, per subscriber. Fifty cents of which
will not be passed through either to the City,. in term of an offset on franchise fees, nor will it be passed
through to the subscribers. The Institutional Network, as you know, has been a major concern of the City,
since we are a very large user at telecommunication services. And late in the process, we were given an
alternative by MediaOne to effectively use their broad band system, as opposed to developing an
independent INET (Institutional Network). Essentially, what you have is an old model, the tradition INET,
which is a certain amount of fiber, which would connect the City facilities that is provided dark, unused.
They would build it; they would maintain it in the event there was a cut, but it's up to the City to work it and
to add all the dollars that would be necessary for the peripheral equipment, the computers, the modems, the
encryption services, et cetera. That is still on the table, as an alternative, with TO committing to pay up to
50 percent of the projected two million dollar ($2,000,000) expense, if, in fact, the City chooses that.
However, we have the alternative of taking advantage of the MediaOne broad band system that they're going
to be building as part of this cable service, and that TCI would commit up to three hundred thousand dollars
($300,000) in the event that the City chooses this option for peripheral equipment, which would obviously
help the City, since that three hundred thousand dollars ($300,000) of monies, which we didn't have. The
concept here, today, is that we would have a 45-day period to further explore the new option and ask the
questions in terms of costs, efficiencies. One of the nice things, if you will, of the new alternative, is that it
allows the City potentially, at a cost-effective basis, to hook up and provide services, such as Internet
services, to all the parks, libraries, and facilities, addressing Commissioner Teele's concern, if we go that
way. Now, we could also do that under the tradition network, but it's a much more costly and more static
type of facility. So, we've decided, based upon meeting with the appropriate members of the Manager's
February 16,1999
office and the staff, that we need — simply more time to explore the Internet — the INET alternative. In
terms of service to the public buildings, this is one area where the original franchise really did cover the
waterfront. We've actually gone forward with that model and expanded it a bit such that, in terms of cable
service, all the public buildings will be included, both existing and in the future, as identified by this City.
In terms of service to the schools, I think we really did make a tremendous move there, in a sense that
whereas most cable franchises allow one cable hookup per building, we're going to have one free connection
per floor, up to -three floors, and most of our schools are less than three floors. As well as having a Internet
connection provided to the each floor with a modem, which -would allow perhaps as many as a hundred, two
hundred computers within each school. So, you'd have a number of computers within each classroom
hooked up through this provision. On the commercial lease access issue, which is one of the issues we were
asked to explore, we were not able to make sufficient headway in terms of TCI. The question is still open
with respect to MediaOne and can and should be explored with the MediaOne folks prior to the
Commission taking up the MediaOne proposal. In terms of service policies, again, we were able to extend
that, which we already had, which was the universal service requirement and, specifically, addressing the
areas of Watson Island, Port of Miami, and Virginia Key. Service standards, we have actually pushed the
limit. As you may recall, the FCC adopted minimum service standards. The problem we've had in the City,
and the County's had, is just poor service response time and commitments by the industry. Well, we've gone
well -beyond the FCC minimum standards and perhaps, most importantly, for the first time, this City will
have an enforcement mechanism that can work and work efficiently. If, in fact, the staff in the Manager's
office find that they're not living up to these very strict standards, there's an enforcement mechanism which
will allow for liquidated damages on a per incident basis, ranging from five hundred to two thousand dollars
($2,000) that could be used relatively quickly without the necessity of going to some very cumbersome,
bureaucratic, arbitration process and those — and we have security fund that will stand behind these
standards and this enforcement mechanism. In terms of security fund, we have a very substantial security
fund, as well as a construction bond for the period of time during the construction.- Finally, in terms of TCI
itself. As you know, we have an ongoing dispute of eight hundred twenty-five thousand dollars ($825,000)
that has gone on for years. We've resolved that. They've agreed to waive any claim of those dollars.
Moreover, in terms of other existing, known technical problems, they have offered to pay two point five
million dollars ($2,500,000) in cash, as well as five hundred thousand dollars ($500,000) in vouchers to
resolve these compliance issues. In addition, they have offered three hundred and fifty thousand dollars
($350,000) as a one-time capital grant. In fairness and complete disclosure, those dollars are the cost
recovery for my fees and those of the engineers and, at least at this point, it looks like those funds should be
completed coverage of those outstanding — of those dollars. So, essentially, that is the deal or the business
points that we have before us. Procedurally, what I am recommending to the Commission is that we
conditionally approve the AT&T portion of this several piece of the puzzle; that we do it on a conditional
basis. Conditional on one, them putting up the money in an escrow account today. We've already gotten the
fed number of confirmation that those dollars have been wired and we believe have — but waiting for
confirmation, has been received in Nation's Bank here in Miami.
Mr. Warshaw: They have been.
Mr. Leibowitz: Two, they are going to be giving us, to hold an escrow, the complete waiver and release on
the eight hundred twenty-five thousand dollars ($825,000). We'll have the vouchers all in escrow. The
other conditions that we propose is one, the ultimate resolution of the renewal and an execution — an
adoption by this Commission of the ordinance and franchise renewal reflecting the ultimate terms and
conditions. Now, we all know the term " the devil is into details" and that's why we're proposing to do this
on a conditional basis, which is simply not possible to get those voluminous documents done in time for this
meeting. As well as, of course, the resolution of the INET during this — the institutional network, during
this 45-day period. So, today is the next step of this very long process that I propose that the City adopt on a
conditional basis. The next step of this process would be the staff in my office continually to meeting with
4 February 16,1999
AT&T and MediaOne, in particular, to discuss and resolve hundred different questions on the institutional
network. We would make — we would propose — making a choice or propose a direction on that within the
45-day period. Simultaneously, on a parallel path, we would be resolving the outstanding issues on the draft
franchise and ordinance that is already been circulated and worked on with the parties and we're waiting on
comments from the staff and the Manager's Office. So, what the next step would be, we would come back
to you with a proposed new cable ordinance for its first reading, assuming you accepted that. At the second
reading, two weeks later, we would also have in front of you the franchise agreement, which would renew
the existing TCI relationship and, in addition to that, we would have the proposed MediaOne transfer. So,
we have a number of additional steps and a number of additional opportunities for you to consider in review
the steps that the Manager's office and my office has been undertaking in this process.
Commissioner Regalado: Mr. Mayor?
Mayor Carollo: Go ahead.
Commissioner Regalado: Matt, I'm really disappointed that we don't have in this Letter of Intent the
possibility of having reduction in rates for the senior citizens' public housing buildings. The City Attorney
or the County Attorney and the County's HUD (Department of Housing and Urban Development)
departments have been talking about this possibility and this is possible, according to the law, there have
been some cases of cities where this has been resolved in the benefit of the senior citizens, and 1 was
wondering if I can incorporate to this, on the record, the fact that when we go ahead and move forward on
this issue, that the discount or the flat rate for public housing buildings in the City of Miami will be part of
the agreement? The other thing is that, I think that all of the members of this Commission and the Mayor
have received many complaints from residents. The residents of the City of Miami, the customers, have
taken the brunt of these problems that we've been having with the technical aspect of TCI and I feel it's too
little for the customers to half a million dollars ($500,000) that the company's willing to give in terms of
vouchers. I know that the City is entitled because of what TCI and the City agreed but I would like to ask
the members of this Commission to try to move some funds that are allocated to the City in order to increase
the amount of rebates or vouchers, which shouldn't be vouchers, actually. It should come as a discount in
the bill to the consumers in the City of Miami. I would ask the Commission to raise that to a million dollars
($1,000,000) instead of five hundred thousand dollars ($500,000).
Mr. Leibowitz: With respect to your question, your point on senior citizen discounts, as we've discussed,
you know, that is a critical, important issue that has been raised by this Commission throughout the process.
There is a new case supporting the ability of the local franchising authority to enter an agreement with the
cable operator. TCI has been unable or unwilling to do that. However, the door is open for those
discussions with MediaOne and we will not — you know, we have, as I outlined a moment ago, another
opportunity with the MediaOne folks, where we can try to bring that issue to fruition. And two, in terms of
the vouchers, the vouchers would operate, essentially, as a direct credit against the cable bill. It would be
for existing services. It's not going to be one of these promotional deals that they've got to go buy something
else in order to qualify for the vouchers.
Vice Chairman Gort: Mr. Mayor?
Mayor Carollo: Go ahead.
Vice Chairman Gort: The representatives of TCI in the past have made commitment to do what
Commissioner Regalado just asked a little while ago. They stood there and they said they would work with
the public housing senior citizens to get base rates or lower rates. So, that's the commitment they made and
it should be on the records.
February 16,1999
Mr. Leibowitz: Well, for clarification, Commissioner, there was a statement early on by TO that they
would be willing to work with the City and HUD and the Housing Administration. There have been
meetings on there and there was a potential meeting last week that was canceled because of scheduling
problems. We just haven't found the resolution yet. But, again, I think that, particularly, there was a new
case issued by the FCC in the first week in February which, I think, not only supports our position but gives
more fuel for the fire, if you will. So, I would think that would be, especially, you know, if this Commission
directs, a particular issue that we need to press with MediaOne.
Commissioner Sanchez: Mr. Mayor?
Mayor Carollo: Go ahead.
Commissioner Sanchez: Matt, this is a very complex issue. I didn't have the opportunity to meet with you
during the week and I know that you were out of town and I had the opportunity to read this very large
contract, which is just about a half an inch thick, and I'm here to tell you, I'm not an expert in the cable
industry and I don't think that anyone up here is, unless they are. But, Matt, there's a lot of issues that are
going to be brought out here today and I, for one, need more explanation on one certain item, which is for
you to explain to me, what is the MT issue?
Mr. Leibowitz: OK. The INET is the Institutional Network and, traditionally, as part of the — first of all,
let's start on the law. It's part of the Federal Cable Act. One of the things that the cities are entitled to
negotiate is for the provision of an institutional network. In the simplistic form, Commissioner, the
institutional network was fiber or, years ago, a co -axial cable connecting just the City buildings and so that,
if there was internal communications between the City for data communications, telephone, computers,
emergency telephone service, that would be able to be accomplished through this internal network. In fact,
over the years, what happened is, a number of cities bargained for and received institutional networks. An
overwhelming portion were never built. Many that were built were never used or ran fallow. In fact, in this
City, there was an institutional network built as part of the original contract years ago. There was a lot of
problems with it and there was a renegotiation, if you will, that was pretty cumbersome. There still is a
network that the City uses. It is not a reliable path at all and we've had a lot of problems with it. So, the
question is, what do we do from here? So, what we have now in front of you is two different alternatives,
and we have a 45-day period to examine those alternatives. The first alternative is, essentially, the old
traditional methodology but using fiber and that is, that the cable company would hook up the existing
facility — office buildings and facilities of the City with its fiber. The fiber would give you enough capacity
or band width, if you will, to allow for the communication needs of the City today and as anticipated.
Essentially, it will.be a dark fiber. In other words, it would just be a wire. It would be up to the City to buy
all the necessary equipment to connect to the ends and, then,' work and manage that fiber and all the
communications that's going through that fiber, and that is one alternative. It is a static alternative, in the
sense it is not as flexible as alternative two, which I'll discuss in a moment. What we have in front of us, we
had earlier demanded in the negotiations a hundred percent compensation from the cable company. We
thought we were well down that path and, then, a number of events occurred, if you will. At this point, TO
has offered up to 50 percent of what the anticipated cost would be of two million dollars ($2,000,000) to
construct the MT to the 54 office locations that the City has identified.
Commissioner Sanchez: Let me interrupt you there. Who's going to pick up the other 50 percent? Would
that be MediaOne?
Mr. Leibowitz: The other 50 percent would be — no. The other 50 percent, under this scenario, would be
ours, Commissioners. So, it would either be the City or it could be done as a pass through to the
6 February 16,1999
subscribers. So, that's alternative one. Alternative two is this new technology. When MediaOne or TC1
builds this new network, they're.going to build it as a larger piece of a larger network, which will serve not
only the cable needs but they're going to be offering other services to the community. Businesses, for
instance for telephone, data communications, et cetera. And as part of the alternative process or approach,
they are offering access to us to those broad band services at a discounted rate. Now, the moment we have
discounted rate raises the issue of the necessity under the local and state law for competitive bidding. So,
it's unlike the first scenario, where we can, within the context of the cable agreement unto itself, resolve that
issue. If you elect to go to issue — to alternative two, we have to explore the alternative and likely go out to
a competitive environment to determine and make sure that the MediaOne deal is, in fact, as good as they
say. The advantage of the second deal — the second alternative, if you will, is that it provides a much higher
level of flexibility in terms of new facilities, new services, new locations, at a very low cost. But I cannot
stand up in front of you today and say to you that I have all the answers or I can recommend to you either,
you know, alternative A or alternative B. You know, it was presented to us very late in the game by
MediaOne and, candidly, we have more questions than we have answers and that's why we crafted this as an
alternative for purposes of today.
Commissioner Sanchez: I have another question. On the waiver, it claims a Resolution 88-711, the
settlement of eight hundred and twenty-five thousand dollars ($825,000). Who's picking up the tab on that?
Mr. Leibowitz: Well, actually, what's happening is that the — TCI is waiving any claims against the City. In
other words, the City would not have to pay those dollars. So, no one's paying it. We're actually taking that
liability off the City's balance sheet.
Commissioner Sanchez: Now, let me just elaborate a little bit on this. You stated we have or TCI has
sixty-three thousand customers.
Mr. Leibowitz: Approximately. Yes, sir.
Commissioner Sanchez: How much each customer's valued at, approximately, one thousand five hundred to
two thousand dollars round park figure, what I've heard numbers in the past meetings that we've had here at
the Commission?
Mr. Leibowitz: In terms of the fair market value of the system, sir? I think the number Wall Street is using
is probably two thousand, maybe even,a little bit more, per subscriber.
Commissioner Sanchez: Sixty-three point six million dollars ($63,600,000). ,That's a large amount. That's
a lot of money.
Mr. Leibowitz: This is a large system. Now, you — and that's one of the reasons it is being exchanged with
MediaOne for the consolidation because it's a very large system and it's a piece of a larger puzzle of South
Florida, and the concept is that TCI is going to consolidate around the Chicago area. MediaOne will
consolidate in South Florida.
Commissioner Sanchez: And you think — being that you're the attorney we paid to represent our best
interest, as well as we represent the best interest of the City and the taxpayers of the City, that this is a fair
contract or fair deal for this City?
Mr. Leibowitz: Absolutely. If you'd like, I can give you comparisons of other cities but I can tell you that,
in each area, we have matched or exceeded cities of like size, in like circumstance, all around the country.
February 16,1999
Commissioner Sanchez: Now, what assurement (sic) do we have that, when this is done, the transaction is
done, that MediaOne takes over, IvlediaOne will not raise its prices to the consumer?
Mr. Leibowitz: Unfortunately, we have none. As the Federal Law established.a number of years ago, the
local jurisdiction has very limited ability to influence rates. Your ability to influence rates is limited to the
basic tier and basic equipment. At this point, at least for the next month and a half, you have the FCC
responsible for the upper tier. I think its March 30th is the sunsetting, if you will, of that piece of the
,Federal legislation. It is up in front of Congress in their discussions on whether or not that's going to be
extended. But the ability of this City or any city to affect rates in any substantial manner has been
prohibited by Federal law.
Commissioner Sanchez: Thank you.
Chairman Plummer: Mr. Mayor?
Mayor Carollo: Go ahead, Commissioner.
Chairman Plummer: Matt, one of the major problems that we have around here — and the phone calls of
disgust — is customer service. People call. They can't get the people on the phone. And I read herewith
interest -- and I want to know what is, in effect, going to guarantee that which — and I'm going to read it into
the record because 1 don't think they can do it. "The franchisee shall answer all customer service and repair
telephone calls made under normal operating conditions within 30 seconds." There's not a scrivener's error
here?
Mr. Leibowitz: No, that's part of the FCC standard, sir.
Chairman Plummer: And reading on. "Including wait time and with an additional 30 seconds to transfer the
call." That means, if I call, that, within one minute, I'm going to have a live person to talk to?
Mr. Leibowitz: And they're supposed to meet that standard at least 90 percent of the time.
Chairman Plummer: Okay, 90 percent of the time. Now, my question is, if they don't, what is the penalty?
Mr. Leibowitz: The- City has the ability to do a number of things. One is, we can demand records to
demonstrate they're complying or they're not complying. Two is more importantly, we can issue a violation
notice and hit them with forfeiture damages on an amount approximate — depending on exactly which piece
of this puzzle they violate, somewhere between five hundred to two thousand dollars per day, per incident.
Chairman Plummer: And...
Mr. Leibowitz: And those dollars — let me just finish. Before, to the extent that we had any ability at all to
hit them with a violation notice, we were stuck in the worst bureaucratic system I had ever seen in terms of
collecting those dollars. That doesn't exist anymore under this agreement.
Chairman Plummer: All right. So, then, the people of this community can expect, from the time they call
TCI, 90 percent of the time, that they're going to have alive person to address their problems within 60
seconds?
Mr. Leibowitz: That's the law. And that would be your franchise requirement.
8 February 16,1999
Chairman Plummer: OK. Now, let me, if I may, get the timeframe so I understand. What we are approving
here today is basically, in principle, a proffer by the companies, that must go to the City Commission for
final approval in March. The first meeting in March is March the 9th and the second reading would be on
April the 13th, is that correct?
Mr. Leibowitz: Commissioner, we may — because of that 45-day period, delay it one meeting. So. we
would not make that first meeting. We'd push it one meeting back.
Mr. Warshaw: Second meeting.
Chairman Plummer: The second meeting in March would be the first reading?
Mr. Leibowitz: Correct. I think that's more like...
Chairman Plummer: The second meeting would be in April?
Mr. Leibowitz: I think that's more likely, sir.
Chairman Plummer: All right. Now, let me make sure. That means that that is only the respect between
TCI and AT&T?
Mr. Leibowitz: That's what's before you today.
Chairman Plummer: And it has nothing to do with the transfer to MediaOne?
Mr. Leibowitz: Correct, sir.
Chairman Plummer: OK. Then we go back into negotiations again with MediaOne, which we may or may
not approve?
Mr. Leibowitz: Correct. I think, for full disclosure, it is the company's intent and what they've attempted to
accomplish was that this was one business deal but there are clearly other issues that we have brought up
and we need to pin down before we — before I would recommend you approve the MediaOne deal.
Chairman Plummer: OK. I have one other question, which was never answered. If we deny this today,
what happens?
Mr. Leibowitz: If you deny the AT&T transfer, one, I think you have good grounds, if you so chose. But
unlike — I think the logical result, perhaps not logical but the apparent result would be a lawsuit with TCI
and AT&T on the basis of our denial — questioning or denial. They have, in fact, filed lawsuits, at least
against the City of Portland and I understand Kings County has either been filed or drafted.
Chairman Plummer: OK. Just for the record, Mr. Mayor, I expressed it to you but 1 want to put it on the
record, that I have talked with AT&T about the renewal as part and parcel of the package for the purposes of
their renewal of their package with Bayfront Park and that is still an ongoing negotiations and will be
developed at such time as it is appropriate. Thank you, Mr. Mayor.
Mayor Carollo: Thank you, Commissioner. Matt, could you sit with Commissioner Plummer on that
particular subject that he brought up?
9 February 16,1999
Mr. Leibowitz: Sure. Be my pleasure.
Mayor Carollo: So that whatever is finalized is done in a legal manner?
Mr. Leibowitz: Be my pleasure.
Mayor Carollo: Thank you. Commissioner Gort.
Vice Chairman Gort: My question was the question raised by Commissioner Plummer. My understanding
is, then the technical committee, that would be made out of the City of Miami employees, would oversee the
compliance of all this? In other words, the one minute response will take place within 90 percent of the
calls. Would that be part of it or not?
Mr. Leibowitz: No, sir. The enhanced maintenance is only up through the rebill period, which is about 24
months.
Vice Chairman Gort: Right.
Mr. Leibowitz: And that committee would be solely looking at the technical issues, as opposed to the
customer service. However, on a separate and parallel track, from day one, the City Manager's office has
the ability to oversee and enforce the customer service standards from the moment it's put into place.
Vice Chairman Gort: I want to make sure that's in part of the contract.
Mr. Leibowitz: Yes, sir.
Chairman Plummer: How do you — excuse me. How do you monitor that? See, I'm looking at that 90
percent as an out and I'm wondering how do you monitor — I mean, they must receive hundreds of calls a
day, and I want to make sure that we're sitting here voting to tell the people of this community, no more are
you going to be treated as you were in the past, being on hold for three hours; that you're going to be heard
within one minute. How is that going to be monitored and enforced?
Mr. Leibowitz: Well, Commissioner, you know, this was a debate that was started at the FCC, when this
proposal was put forth and they said, well, how were the cities supposed to deal with this and what is the
level of proof, if you will, and who has that burden of proof? Unfortunately, FCC said, "look, we're not
going to force the cable operator, on a regular basis, to make the records available to you to- demonstrate
that." However, if you — the City has a reasonable belief that there is a problem, they can request those
records and the cable operator has to provide them. Now, there is equipment that is available and, to the
best of my belief, TCI and MediaOne uses it, which actually tracks those phone calls on a regular basis,
moment by moment, so that, in the event the City, you know, gets the complaints, that we all anticipate that
they will, the first thing the City can do is request those documents. In the event that they determine that the
standards are not being met, they can issue the Notice of Violation.
Chairman Plummer: OK. Let's go to -the second port. Now, we've got them on the phone: "My cable's not
working." According to this document, they must respond within 24 hours. Does that mean respond and
have working or just to respond?
Mr. Leibowitz: Well, again, in those areas where they can complete the work in that period of time, they
have to respond. If not, that they have a very short frame thereafter. And I think it's only one additional
day, under most circumstances, to fix it. Now,.obviously, if we have another Hurricane Andrew, those —
10 February 16,1999
you know, those timeframes are all, you know, gone by the board.
Chairman Plummer: That's 24-hour clock time, not working time?
Mr. Leibowitz: It's 24 hours — they would have to respond within — on a 24-hours per day time. In other
words, if they get a question today, they have to be there tomorrow.
Chairman Plummer: OK. Let's run it. At eleven o'clock this morning, I'm going to call TCI with a problem
with my cable. They've got to answer my phone by 11:01, all right, and by tomorrow, at 11:01, they have
got to be at my place and fix my cable according to this document?
Mayor Carollo: Excuse me, J.L. Since you're close by, can you include me in that call, too?
Chairman Plummer: No.
Mayor Carollo: My cable's also not working right.
Mr. Leibowitz: Well...
Chairman Plummer: I want the people in this community to know what I'm voting on because this is a
document that is long overdue.
Mr. Leibowitz: Correct, sir.
Chairman Plummer: All right. And I want to make sure there are provisions with teeth in here that we can
say, OK, you didn't do it and now we're going to say, pay up.
Mr. Leibowitz: And the answer is, U., is that, first of all, they have 24 hours to respond to get to your
home. Real world, if you call today, they have to be there tomorrow. If they — and -if it's in their control,
they have to fix it either tomorrow or no later than the next day, under normal circumstances. Again, you
know, the hurricane issues and those things are...
Chairman Plummer: Excuse me. If that happens, it'll be so superb service we'd never had, that people are
going to be tickled pink. And, Mr. Mayor, just for your edification, I have to tell the truth, even though I
didn't want to. I have never had a problem with my cable at my house, even though the cables themselves
are out over the grass and I'm waiting for my gardener to put it out of business, OK. Some day they're going
to come and they're going to put that cable buried like it's supposed to be. But, at this point, I've had good
cable service. Mr. Mayor, thank you.
Mayor Carollo: Go ahead.
Commissioner Regalado: Thank you, Mr. Mayor. Matt, can we — if we vote today to approve what you're
presenting us, can this Commission decide now if we can transfer half a million dollars ($500,000), that has
been given to the City for the consumers, to upgrade the vouchers to the consumers from half a million to
one million dollars ($1,000,000), that would be a discount in the next three or four months in their bills?
Mr. Leibowitz: Well, first of all, this is the proposal, which is conditioned upon ultimately getting to the
ordinance in the franchise. So, you know, it's something we'd. have to go back to the company to discuss but
this — if the Commission so directs, this could be made a topic of the discussion prior to the ordinance and
the franchise being brought forth.
11 February 16,1999
a
Chairman Plummer: Well, excuse me. Mr. Regalado, the money is going to be ours. How we do and divvy
it up, will be after we receive the money. And I would assume we'll do that at the first meeting. .
Mayor Carollo: But if I can...
Chairman Plummer: I'm not saying its going to be done but I'm saying, if it were.
Mayor Carollo: If I can, Commissioner, since you have the gavel, J.L. One of the reasons that we're getting
that amount of dollars is to be able to build real studios, to have a real channel, and how much they would
be willing to be flexible on that, I don't know but, at the same time, I think that one of the things that we
have to be very conscious of that, if we want to have a real cable channel that is going to promote Miami, .
that is going to provide the public information and services that residents of the Miami and tourists that
come to Miami need and require, we have to have a real studio with sufficient equipment, to be able to
provide those services. And, frankly, even at two and a half million dollars ($2,500,000), it's not a lot of
money to do everything that we need to do and to buy all the equipment that needs to be bought.
Chairman Plummer: If no further discussion, Mr. Mayor, I will move, in principle, the adoption of the .
document presented to us this morning.
Mayor Carollo: There is a motion
Mr. Maxwell: You don't...
Commissioner Regalado: I would second the motion.
Mayor Carollo: There is a second.
Mr. Joel Maxwell (Assistant City Attorney): May I suggest you not use the word "in principle." The
resolution, as it presently reads, should be what you're approving.
Commissioner Regalado: I will second the motion but that the record show that, during the next weeks, the
issue of the public housing units in the City of Miami would have to be part of the talks with either TO and
MediaOne. And, also, that I will be requesting that the consumers do receive more than a half a million
dollars ($500,000) discount and the reason is because we have sixty-nine thousand or sixty-two thousand?
Mr. Leibowitz: Sixty-three thousand, approximately.
Commissioner Regalado: Right. You know, the people of Miami have taken a lot of pain with the cable
system, even the engineer for TCI said that the system has been in a very bad shape. So, I really think that
the City has to give the consumers a relief in terms of payments, since we do not have any kind of authority
in terms of rates: The only thing we can, do is the 50 cents per month, but I believe that this Commission
should consider the possibility of raising the discount for the consumers.
Chairman Plummer: Let me, if I may, since the City Attorney doesn't like the word "in principle." May I
reword my motion with the approval of the second to say that we approve this document but does not
preclude our right to change any prior to the first reading, which is what Commissioner Regalado was trying
to accomplish?
Mr. Leibowitz: No, no, no.
12 February 16, l 999
Mayor Carollo: Matt, we need your guidance on this because we're getting into trouble already.
Vice Chairman Gort: You need to read the resolution.
Mr. Leibowitz: I think what we're asking you to do is approve the AT&T transfer, which is the document
you have before you, on a number of stated conditions. Condition number one is, they put up the money in
escrow today.
Chairman Plummer: No, I heard all of that.
Mr. Leibowitz: OK. And that there is — one of the conditions is that the approval of this Commission of the
old cable franchise and ordinance.
Chairman Plummer: Well, I guess really 7then, I'm saying, why are we having a first reading and a second
reading, where the public have the right to come and voice. their opinion, if we've already approved it today?
Mr. Leibowitz: Well, you would — as part of this process, you would have the first reading of the
ordinance, where the public would have the right to participate.
Chairman Plummer: But it can be changed.
Mr. Leibowitz: And it can be changed.
Chairman Plummer: This document can be changed and that's what I'm saying. That we accept this
document, that has been proffered here today, with a full understanding that changes can be made in the first
or second reading.
Mr. Leibowitz: Of the cable ordinance and the franchise, correct.
Chairman Plummer: Of the cable ordinance. Only relating of the transfer from TCI to AT&T.
Mr. Leibowitz: Well, it's the overall ordinance and the renewal to TCI.
Chairman Plummer: Call it what you may. I'm just saying that we're reserving the right, in the first and
second, to make any changes that we deem is necessary.
Mr. Maxwell: You have that right. It's a legislative prerogative.
Chairman Plummer: OK. Just make sure
Mr. Leibowitz: And within that, sir, we would address Commissioner Regalado's issue and the appropriate
definition of economically disadvantage that senior citizens...
Commissioner Sanchez: Matt, and may I add?
Mr. Leibowitz: Yes, sir.
Commissioner Sanchez: Just take note, the concerns that we have. One is, that we would like to see — or at
least I would and I know that Commissioner Regalado has expressed concern and support — to make sure
13 February 16,1999
that people get more than half a million dollars ($500,000) in rebate. The elderly centers and some of the
nutritional centers in our community should get free cable, which we've had that discussion in the past. Just
note the concerns that we have, so when we come back the second reading, we could discuss them again and
if we need to make any changes on the matter, we should. So, we don't make a decision right now and
basically it goes forward and we don't have a final say on it.
Chairman Plummer: Well, let me make sure now, so the City Attorney doesn't get nervous over here on me.
This that we are accepting today is subject to a first and second reading by the Commission?
Mr. Leibowitz: Correct.
Chairman Plummer: Where it, at any time, takes three votes for approval?
Mr. Leibowitz: Correct.
Chairman Plummer: OK. So, let's don't make any mistakes about it.
Mr. Leibowitz: The ordinance...
Mr. Maxwell: Matt, if you will, explain exactly what's coming to them for first and second reading.
Mr. Leibowitz: OK. The ordinance is coming to you for the fast and second reading in the future.
Chairman Plummer: Right.
Mr. Leibowitz: At the second reading of the ordinance, you will also have in front of you the ultimate
franchise renewal, which is a resolution that you, again, had the legislative prerogative of.
Chairman Plummer: And you understand our laws, that nothing of an ordinance is effective until 30 days
after the second reading?
Mr. Leibowitz: Correct. And, at that time, you will also have the MediaOne and you'll have the legislative
input and the ability to vote on that one independently.
Chairman Plummer: Maybe.
Ms. Elaine Buza: If I could clarify one thing. Elaine Buza, Telecommunications Administrator. The
ordinance, which will be brought before you, will be a generic ordinance that would apply to any cable
television operator who wishes to franchise with the City of Miami. Following the first reading of that,
then, at the second reading of that, we would bring a specific franchise agreement with TCUMediaOne to
you, and I just wanted to give you that clarification.
Chairman Plummer: I'm not sure I agree with that but well see down the line as to the transfer from AT&T
— and made it very clear. The transfer from AT&T to MediaOne is a totally and separate issue from what
we're doing today.
Mayor Carollo: Matt, I'm sorry, but, for the record, I have to ask you again to, really, explain it very clear
and thorough to just what changes the Commission can and cannot make if this resolution is voted upon and
approved today? You know, I don't want there to be any doubt in colleagues' minds as to what they could
actually do or not do.
14 February 16,1999
Mr. Leibowitz: The business deal that you have in front of you encompasses the negotiations that we have
had with TCI, AT&T and MediaOne. These represent the principle terms that we've agreed upon. The
devil is always into details. Therefore, the franchise and the ordinance are designed to flesh out, in great
detail, all of those definitions, all of those enforcing procedures, all of those rights and obligations. The
basic meat and potato, the -business terms, are encompassed before you. So, therefore, as part of the
ordinance, which as Elaine pointed out appropriately, which would govern not only TCI, MediaOne or
anyone else that would provide cable services, you will have that before you and you will have your — you
know, your input and would require your consent. The franchise renewal with TCI, again, goes before you
for your consent and through the public meeting and then, finally, you will have the proposed MediaOne
transfer. I think it's important — and I'm glad you gave me this opportunity — is, I don't think it's fair to
suggest that we're going to start from square one with MediaOne or with TCI at the time of the ordinance
and the renewal. The concept is that these are the basic terms and conditions. However, we recognize that
there are certain items that have not been concluded. The Institutional Network, specifically, Commissioner
Regalado's issue concerning the discount to the senior citizens; commissioner Plummer's concern, these are
some of the details that we need to flesh out. The Commissioners, Commissioner Regalado and
Commissioner Sanchez has indicated today of a concern of additional dollars to be — in the form of
vouchers being provided to —
Chairman Plummer: That's it. Look...
Mr. Leibowitz: And those are the issues that we could explore but I don't want to sit here and suggest to you
that, you know, we have a total new opportunity to start from scratch with MediaOne. That's not true.
Mayor Carollo: Well, that's the point that I wanted to get across for the record. Because 1 think that the way
we were going before was that there was a false perception that we could start from scratch again once this
was approved.
Chairman Plummer: Well — but, Mr. Mayor, we also remembered that once an application is made, they
have a hundred and twenty days, right?
Mr. Leibowitz: Correct, sir.
Chairman Plummer: So, we've got a hundred and twenty-eight days from today? -
Mr. Leibowitz: No. Actually, that time for MediaOne has been — today is the deadline for the AT&T by
agreement.
Chairman Plummer: MediaOne can't put in an application for a transfer to something they don't own.
Mr. Leibowitz: Believe it or not, Commissioner, they can and they have. But they've agreed to the
extension of time into April, as we needed.
Commissioner Teele: On the motion, you indicated that we would have an opportunity to discuss the
connection with the Internet, with the park facilities...
Mr. Leibowitz: Correct, sir.
Commissioner Teele:... in the MediaOne transfer, is that correct?
15 February 16, l 999
Mr. Leibowitz: 'Correct. That would be part of two different discussions. One is the Institutional Network.
And then two is, we have a very broad definition of the service to the public buildings and we can bring it
under that discussion too.
Commissioner Teele: Now, up until today, the discussion has been whatever cash payment or payment and.
vouchers are made, it would be up to the City of Miami, the Commission and Mayor, to determine the uses
of those funds? I'm hearing today that the funds are being set aside for a studio or something? Is the
position being changed now? I mean, is this subject to the discretion of the Commission or are these funds
now being earmarked?
Mr. Leibowitz: The proposal for the parties do not dedicate these funds.
Commissioner Teele: All right. OK. As long as the parties don't designate the funds — because that's what
we have been lead to believe up until today. Now, does this matter have to go before the Oversight Board?
Chairman Plummer: It's a contract. Sure.
Mr. Warshaw: Yes, sir.
Commissioner Teele: So, in addition to the first reading and second reading, you'll also have a third reading
then? And there have been more changes — for the record, I've noted more changes coming from the third
reading of the Oversight Board than from the first and second reading. So, I think the public, as well as the
applicant, should be on notice of that. I would think that we really should move this matter on.- We've
certainly beat it to. death. And I appreciate, Matt, your willingness to be available and that of the industry.
And I would like to call the question so that we can get on through the day.
Mayor Carollo: Is there any further statements? Can you call the roll, please?
16 February l 6,1999
The following resolution was introduced by Chairman Plummer, who moved its adoption:
RESOLUTION NO. 99-126
A RESOLUTION OF THE MIAMI CITY COMMISSION, WITH
ATTACHMENT(S), CONSENTING TO AND APPROVING,
SUBJECT TO CONDITIONS SET FORTH HEREIN, THE REQUEST
PURSUANT TO THE AGREEMENT AND PLAN OF
RESTRUCTURING AND MERGER, DATED JUNE 23, 1998,
AMONG AT&T CORPORATION ("AT&T"), A NEW YORK .
CORPORATION ("PARENT"); ITALY MERGER CORP., A
DELAWARE CORPORATION AND A DIRECT WHOLLY OWNED
SUBSIDIARY OF PARENT ("MERGER SUB"); AND
TELECOMMUNICATIONS, INC., A DELAWARE CORPORATION
("TCI") CONDITIONAL ON DEPOSIT IN ESCROW OF ALL
MONETARY AMOUNTS IN THE BINDING OFFER, ATTACHED
HERETO, AND THE EXECUTION OF THE FINAL CABLE
TELEVISION FRANCHISE/LICENSE AGREEMENT; PROVIDING
THAT AS A RESULT OF THE TRANSACTIONS CONTEMPLATED
BY THE MERGER AGREEMENT, TCI WILL CONTINUE TO EXIST
AS A CORPORATION AND WILL BECOME A WHOLLY OWNED
SUBSIDIARY OF AT&T AND TCI WILL CONTINUE TO HOLD
THE CABLE TELEVISION FRANCHISE/LICENSE - AFTER
CONSUMMATION OF THE TRANSACTIONS.
(Here follows body of resolution, omitted here and on file in the Office of the City Clerk.)
Upon being seconded by Commissioner Regalado, the resolution was passed and adopted by the
following vote:
AYES: Vice Chairman Wifredo Gort
Commissioner Tomas Regalado
Commissioner Joe Sanchez
Commissioner Arthur E. Teele, Jr.
Chairman J.L. Plummer, Jr.
NAYS: None.
ABSENT: None.
Chairman Plummer: You want to take a break or you're going to go?
Mr. Leibowitz: Mr. Chairman, can I just make a personal note? 1 would like to thank Yamilie Tray and
Elaine Buza, who are members of the staff of the City. You know, they've been terrific through this whole
process and we wouldn't be here today without_them.
Mayor Carollo: Well, we certainly would too. Not only them but many others that have helped in this,
including yourself and your staff, Matt. We're very appreciative.
Mr. Leibowitz: Thank you.
17 February 16,1999
Mayor Carollo: Thank you. We're going to take, at least, a five minute recess before we come back for the
next item.
THEREUPON THE CITY COMMISSION WENT INTO RECESS AT 11:18 A.M. AND RECOVENED
AT 11:35 A.M., WITH ALL MEMBERS OF THE CITY COMMISSION FOUND TO BE PRESENT.
2. DISCUSS FUTURE OF MIAMI CIRCLE - URGE DEVELOPER OF PROPERTY LOCATED AT
421 BRICKELL AVENUE (AKA: MIAMI CIRCLE) TO RECOGNIZE PROPERTY'S POTENTIAL
FOR HISTORIC SIGNIFICANCE — CONTINUE DISCUSSION ON NEED FOR MIAMI -DADE
COUNTY COMMISSION TO APPROVE A HOLD HARMLESS AGREEMENT FOR THE CITY OF
MIAMI BEFORE THE COUNTY AND THE CITY ENTER INTO PARTNERSHIP TO SAVE THE
MIAMI CIRCLE — TENTATIVELY SCHEDULE SPECIAL COMMISSION MEETING TO
CONTINUE MIANU CIRCLE DISCUSSION FOR FEBRUARY 19, 1999, AT 10 A.M.
Mayor Carollo: The next item on the agenda. I'm song, we're getting ready to start the next item on the
agenda. That's fine. Look, you're interrupting a meeting. I'm sorry. All right. We'll talk to you after this is
over. If everybody could take a seat, if you can, please. And if there are no remaining seats, the only
requirement that we have is that you could find a place to stand up here or if you want to go upstairs, there's
plenty of room upstairs too. While we're waiting a couple of more minutes for everyone to get situated, if I
may, let me read the procedures that this body has, since I've seen that there are many people here that are
not local but from other parts of the state or other parts of the country. "Any person making impertinent or
slanderous remarks, who becomes boisterous while addressing the Commission, shall be barred from further
audience before the Commission by the presiding officer, unless permission to continue or again address the
Commission be granted by the majority vote of the Commission members present. No clapping,
applauding, heckling or verbal outbursts in support or opposition to a speaker or his remarks shall be
permitted. No signs or placards shall be allowed in the Commission Chambers area. Persons exiting the
Commission Chamber area shall do so quietly." The next item that we have for discussion on the agenda is
concerning the Miami Circle. This was an item requested by one member of the Commission. It was not
advertised as a public hearing item. Therefore, as the presiding officer, I will be making the judgment call
that the Commission would only be the ones discussing this item and we're not going to open it up for any
statements from the public. Mr. City Attorney, if I may, I want to be very specific in what we place on the
record here today and I would like for you to explain to the Commission the limitations that we have and on
what we can discuss on this particular item. Particularly, the consequences and liability that we will be
facing if we don't limit our discussions to certain areas. Go ahead, sir.
Mr., Joel Maxwell (Assistant City Attorney): Mr. Mayor, you pretty much said it there yourself.
Approximately, three and a half years ago, the developer of this property obtained a Major Use Special
Permit from the City of Miami. They satisfied all of the requirements for that permit and a couple of weeks
ago, the City of Miami issued the final permits for the developer of the project. We've reviewed the permits
and we are of the opinion that they have satisfied all of the requirements that the City has for development.
Therefore, they have certain property rights that are vested on the property. As I have and the City
Attorneys Office has in the past, we've advised you, on many occasions, about what may or may not or
should or should not be said at a Commission hearing on development items. This situation is very similar
to that. As I advised you during the last Commission meeting, you should stay away frbm' any subject or
conversations on issues that involve the City acquiring the property, in any way, that would not involve a
total voluntary cooperation of the property owner. Therefore, you should not get involved in any
discussions about condemnation or taking the property or doing anything of that nature. Your liability could
be immense if you do that. And even if we were to win in court later on, upon being challenged upon
18 February 16,1999
7
something you said, we would ultimately.. lose because of the costs involved in defending such a position.
We'll run into the hundreds of thousands of dollars. Therefore, any such victory will be purely a Pyrrhic
victory. Therefore, as I said before, I'm advising you that your conversations should stay totally away from
subjects of acquisition and the like all.
Chairman Plummer: If I may?
Mayor Carollo: Yes, Commissioner.
Chairman Plummer: I'll put you on the hot seat and let you make the statements. Tell me, as the
Commissioner, what are my options, I guess, here today or my options in this matter?
Mr. Maxwell: I don't believe you have any options, sir. They — as I said before, they have vested rights on
there. You've asked us several times in the past whether the City could stop the development. We've told
you, no, you cannot stop the development. Every entity — governmental entity that_ we're aware of has been
contacted and they've also advised you that they can't stop the development out there. Therefore, I don't see
that there are any options that you have, other than spending a substantial amount of City money by
acquiring, by condemning, and so forth and unless the City wants to spend that kind of money, inadvertently
or intentionally, you should stay away from those discussions.
Mayor Carollo: Mr. Assistant City Attorney, can you further be as precise and clear as you possibly can, in
laymen terms, in explaining to the City Commission the meaning of the inversed condemnation act?
Mr. Maxwell: Well, inversed condemnation is when the City passes some regulation that does something
that, in fact, takes the property and deprives the property owner of reasonable use and — economically
reasonable use of the property. That's inverse condemnation. Now, you can also end up in some action that
constitutes a taking. Now, that would depend on what the court said. Let me give you an example of what...
Mayor Carollo: That was my next question to you.
Mr. Maxwell: What could happen there is, the City could — you all may, while sitting here — and it's
happened in the past — you may say something and the financial institutions backing this project may decide
that they no longer want to do so, based on something that occurred here. If that happens, I would suggest
to you the developer's going to be looking around for someone and that someone would likely be the entity
that made those kind of comments. That would be the City of Miami. And then, again, we're looking at
substantial liability if that occurs.
Commissioner Regalado: Mr. Mayor?
Mayor Carollo: Hold on, Commissioner, please. Commissioner Plummer, you were making a statement?
Chairman Plummer: The only thing that — the final comment that I guess I really have is, when we spoke
before and we put into a resolution, Sarah Eaton made a comment in reference to Chapter 23, that basically,
the parcel in question had met all of the requirements of Chapter 23 but that, in her opinion, Chapter 23
could be modified or restructured to make it more in the future. Are we on that track and -can we be on that
track, realizing it doesn't address the issue of today but it does address the issue of a time delay that could be
effective in the future?
Mr. Maxwell: I'll let Ms. Eaton respond to that, sir.
19 February 16,1999
Ms. Sarah Eaton: We are working on an amendment to Chapter 23, to strengthen the provisions of the
archeological component of the ordinance. We're working with the City Manager's Office at this point.
Chairman Plummer: But the point I was trying to make, is that in the issue before us today, everything that
this City has within its capability of doing has been done in accordance with Chapter 23?
Ms. Eaton: Yes.
Chairman Plummer: And you went the other day on to say that the artifacts or. that the whole area, would
you explain on that a little bit more?
Ms. Eaton: Yes. The entire site, including both banks of the Miami River and along Biscayne Bay, have
been designated as archeological conservation areas so that, under that designation, they are subject to
review under Chapter 23, which did take place.
Chairman Plummer: And, Mr. Mayor, if I may? Mr. Manager, I would appreciate you putting on the record
the people of substance who you have, in fact, contacted in reference to some outside agency that has some
— you might say some authority in the matter and what — briefly, what their response was.
Mr. Donald Warshaw (City Manager): I'm going to let Ms. Eaton answer that question.
Ms. Eaton: I've contacted a number of representatives from the Department of the Interior, Maryland
Harper and Carol Shoel at the National Register of Historic Places, who felt that the responsibility lay with
the Archeology and Ethnographic Program. So, I spoke with the chief archeologist of the National Park
Service and I also spoke with the state archeologist in Florida and asked all of those individuals what the
State or the Federal government could do if there were any regulations that would apply, and unless there is
some type of Federal involvement in this project, whether it's funding, licensing, permitting — and we are
not aware of any of that. I've -spoken with the attorneys for the developers. There is nothing that any agency
can do from a regulatory point of view.
Chairman Plummer: My final question is two-part. The first part is, has there been any renown or expert
that has said that this site has been authenticated? Number one. Number two, did I not read in some place
where there is a five thousand gallon tank under this rock? Two questions.
Ms. Eaton: I defer to Bob Carr, the Dade County Archeologist, as far as the significance of the site. And, as
far as the second, there is a septic tank in the Circle and the representatives from the developers could speak
to that. I just know that it is present.
Chairman Plummer: It is present?
Ms. Eaton: Yes.
Chairman Plummer:, Thank you, Mr. Mayor.
Mayor Carollo: Mr. Regalado.
Commissioner Regalado: Mr. City Attorney, you have prepared a resolution that I asked you regarding the
Miami Circle, so I figure that this resolution, it's OK with the Law Department?
Mr. Maxwell: Yes, sir.
20 February 16,1999
Commissioner Regalado: OK. Let me ask you, if we were to say here, details of a plan, presenting this plan
to the developer, will this constitute that the City is exposing itself to liability? Talking directly to the
developer. Offering some kind of plan to the developer.
Mr. Maxwell: I couldn't answer that without knowing exactly what the plan was, what you were saying. .
But if the developer's willing, was willing to enter into a dialogue and waived all liability to the City for
that, certainly you could do such a thing but, remember, that would require the developer to enter into that
dialogue with you voluntarily.
Commissioner Regalado: Absolutely. So, the developer has its representative, their attorney here.
Mr. Maxwell: If he would — if that person is authorized to hold the City harmless, such dialogue probably
would not result in any liability but you'd have to be very careful about that.
Commissioner Regalado: OK. So, let me ask, is it possible to offer some alternative to the developer's
representative here in this meeting?
Mr. Maxwell: That would depend on the developer's representative, sir.
Commissioner Regalado: Well, I see her, Vicky, over there.
Ms. Vicky Garcia -Toledo: Good morning. For the record, Vicky Garcia -Toledo, with offices at 2500 First
Union Financial Center. Mr. Regalado, basically, we have been in conversations and cooperative attitude
for eight and a half months on this Circle. We have also have spent the better part of the last two and a half
weeks working with and cooperating with a task force at Metropolitan Dade County. All of the possible
options that could be thought, I think Metropolitan Dade County has asked and the developer has answered
in writing. They're all part of the public record.
Commissioner Regalado: But here we're not trying to fault the developer. The developer has had a lot of
patience and he has been very gracious in terns of letting the people explore the site but what I'm saying is
that, I would think that it's the City's responsibility to offer some kind of solution to this. Some people call it
problem. I call it a blessing because few cities can say to the world that we have this kind of event to
happen in a so young city as the City of Miami. So, what I'm saying to you is, what are the possibilities of
the developer redrafting the plans to build around or outside the Circle and the City and County and School
Board helping in the payment of those new plans and also helping in the costs of maintaining the Circle at
this site? Because I, myself, I think — and this is one person's opinion — I think that moving the Circle will
defeat the purpose and I think that the Circle should be where it is and I — (Applause) — I don't know if you
would consider that possibility.
Ms. Garcia -Toledo: That possibility was considered by my clients approximately seven months ago when
the Circle was identified. Those and many other possibilities were discussed with the archeologist for
Metropolitan Dade County, Mr. Carr, and studied in detail by my client and Mr. Carr. We revisited all
those options, once again, when Metropolitan Dade County asked us to revisit those possibilities. Our
answers have not changed. We have cooperated. We will continue to cooperate by abiding with a timetable
that has been agreed to with Metropolitan Dade County, but you need to understand that the developers on
this matter are ready to proceed.
Commissioner Regalado: But what are we doing here, then? I mean, if all the talks have been done with
Metropolitan Dade County, what is it that we're doing here? I thought that the Miami -Dade County Mayor
and the Commission decided that the City should take a lead and because of that, is why we're here today
21 February 16,1999
and because of that is — because I'm asking you — I don't know who did you talk to or dealt with in the
County. It wasn't with this City Commissioner, was it? My question again is, could you consider, and the
developer, the possibility of building around the site, leaving the site with the different entities, paying part
of the costs of the new draft of the plans?
Ms. Garcia -Toledo: That is not an option, sir.
Commissioner Regalado: That is not an option. So, you're leaving the City and the County, I guess, without
any options?
Ms. Garcia -Toledo: I don't think so. I don't think the developer is leaving the City or the County without
options. You have been advised by legal counsel that you have legal remedies in this.situati6Wand so, 1
think you do have an option. It is not the developer's position to determine whether or not you or any other
governmental entity chooses to exercise that legal option which is available to you. I can only speak on
behalf of my client, who has been extremely cooperative, who has spent substantial amount of monies, may
I add, because the only entity that has done anything proactive to help preserve this Circle — and let me put
it on the record, and you heard it from your own historic preservation officer. No one has certified. the
authenticity of this artifact. No one, in eight and a half months, have undertaken to do any scientific testing
to prove what we're dealing with. So, I think, at this point and time, it is really up to government to take
whatever steps they feel they need to take. My client, the developer, is comfortable that it has done
everything within its power to preserve the Circle and that it will continue its commitment to preserve the
Circle.
Commissioner Teele: Commissioner Regalado, will you yield?
Commissioner Regalado: Absolutely.
Commissioner Teele: That's totally inconsistent with what I was told and this Commission was told in the
last meeting and that is, is that every effort has been taken to determine the authenticity of the site based
upon the parameters of the laws that we have available to us. We went through a series of laws and it was
my understanding. Now, I mean — I think one of the problems and one of the challenges that we have is that
we seem to be talking past each other. Mr. Carr, who's becoming a folk hero, has not appeared before this
Commission, to my knowledge — has he, Commissioner Regalado? — in terms of giving a report here. I
think — Mr. Chairman, Mr. Mayor, I'm not sure what the order of the day is in a democracy such as ours, but
it would certainly seem to me — and I'm very uncomfortable saying this, Alex — but it would certainly seem
to me that we should give proper dignity and deference to the Mayor of Miami -Dade County, who Bob Carr
works for, and you're here, and I don't know at what point the Mayor is going to recognize you or the
presiding officer but I certainly think that we cannot even say that we're serious about this until the local
governments stop talking past each other and start working with each other. (Applause) So, the question,
Mr. Mayor, that I would ask, while I'm holding the floor- is, at what point are you going to allow the elected
officials, that are here working with us, so that we can have a real dialogue or have some form of dialogue?
Commissioner — who has the...
Mayor Carollo: Mr. Teele?
Commissioner Teele: No, no, no. Who has the...
Mayor Carollo: Commissioner, I am presiding. He has the gavel.
Commissioner Teele: Well, who — whoever has the gavel is who I'm directing the question.
22 February 16,1999
Mayor Carollo: He is presiding.
Commissioner Teele: Commissioner Plummer?
Chairman Plummer: Your question again, please.
Commissioner Teele: The question is this, at what point is the presiding officer going to recognize Mayor
Alex Penelas and Commissioner Sorenson, who are here, and I think so that we can have a serious
discussion. The County Manager, who obviously has done so much to maintain this City's survival. At
what point can we really have a serious intergovernmental discussion about this?
Mayor Carollo: Can I have the floor?
Chairman Plummer: I can — I'll give you the floor, Mr. Mayor. Just a moment.
Commissioner Teele: And if — J.L., specifically, I would like to hear from Mayor Penelas.
Chairman Plummer: OK. The Chair will rule that, as soon as the City Commission has asked their
questions, which I think we're about finished, the two of them will be the first to be heard for a limited time,
of course. Mr. Mayor.
Mayor Carollo: Thank you, Mr. Chairman. Mr. Teele, Mayor Penelas just walked in again, a couple of
minutes ago. I fully intended to recognize him. At the same time, I fully intend to conduct this meeting
with the dignity and decorum and courtesy that we should extend to fellow elected officials. Let me say this
on the record because there's a lot of statements that were just made about cooperating and I think we need
to briefly just go over what has transpired in the last weeks. Prior to announced statements at the County
Commission meetings to the media, that Dade County was going to contact Vice President Gore, the First
Lady, Hillary Clinton, and other national agencies or trusts to do whatever they thought that they should do.
There were no statements whatsoever about having any conversations, such as the one that you described,
with the City of Miami. It was only after the fact that apparently those conversations that the County
wanted to have or the County Mayor did not produce the beef — and that's the dollar and cents — have 1
heard through a letter that was faxed to my office late at night, Friday, that I was unable to receive until
today, that they want to endorse and have a partnership with us in whatever action we intend to do. Now,
that is up for this Commission to decide, if it wants to do anything other than has been' explained to us
already. But the one thing that I am going to do with everything within my power is to make sure that the
City of Miami is not going to be the fall guy in the front line, the top of the totem poll, to end up paying 40,
50, 60 millions or more dollars if this ends up in the courts. Because frankly, the City of Miami would not
be able to withstand that kind of judgment against it. So, having said that, I will ask Chairman Plummer to
proceed.
Chairman Plummer: Thank you. Are there any other members of the Commission that wish to make a
statement before I call on Mayor Penelas?
Commissioner Sanchez: I do, Mr. Chairman.
Chairman Plummer: Mr. Sanchez.
Commissioner Sanchez: Has the City done everything within its legal means to preserve the Circle, Mr.
City Manager? Have we done everything within our means, our legal means?
23 February 16, l 999
Mr. Warshaw: Commissioner, when you say done everything within means to preserve the Circle. I mean,
the property belongs to the developer and we are assisting the developer to ensure that trespassers and
people who might, in any way, attempt to destroy the property won't go there. But, other than that, we're not
involved in the archeological preservation of the Circle.
Commissioner Sanchez: Did the City contact — I ran across me some memos that I think Commissioner
Regalado made some requests for us to contact the Interior...
Mr. Warshaw: Yes, sir. Those were the individuals that Ms Eaton addressed in her comments earlier. The
answer is yes, we have contacted the individuals that she made reference to.
Commissioner Sanchez: OK. I would like to hear now from the County to see what we could work out
together.
Chairman Plummer: All right. Hold on just a moment, please. Is there any other discussion prior to? I call
on Commissioner — excuse me — Mayor Penelas. We're very pleased, Mayor, to have you here and to
Kathy (sic) Sorenson and, of course, our old and dear — Katy — our old and dear friend, the whip of the
community, Merrett Stierheim. The best decision you made, Mr. Mayor. Proceed, sir.
Mayor Alex Penelas (Mayor of Miami -Dade County): Thank you, Mr. Chairman. Mr. Chairman, Mr.
Mayor, members of the City Commission, ladies and gentlemen, good afternoon. I'm joined, of course, by
Commissioner Sorenson and County Manager Stierheim, Commissioner Morales was also scheduled to be
here but he is at another commitment at County Hall and could not be here. Understanding that we all have
to be extremely careful with our choice of words and in the fashion in which we proceed, let me say this,
personally — and I think I speak for a majority of the members of the Board County Commissioners — we
believe that preserving this historical site intact at its current location is what should be done. That's what
we believe. (Applause)
Mayor Carollo: If I can, please. As we stated before, no applauding. We have a lot of union
representatives here too and I don't want them applauding for anything else. So, if you would, I would
appreciate it for either side. Thank you. Go ahead, Mayor.
Mayor Penelas: Obviously, however, we also understand, as Commissioner Sanchez mentioned a moment
ago and Commissioner Teele, there is an intergovernmental aspect to this issue. This piece of property is
located within the geographical limits of the City of Miami at the mouth of the River of Miami, and we
believe that there needs to be a very clear indication by each of you, as policy makers, as to what your
priority is for that site. I want to be very clear. If this City Commission decides that it is in the best interest
of the citizens of this community, be it the City of Miami and beyond, to preserve the site as -is, whether it is
redesigning the building or trying to obtain title to the property, I want to let each of you know that the
County is a willing partner in those efforts, with resources, with attorneys, with our intergovernmental
relations, whatever the case may be. Conversely, if this City Commission decides, for other reasons, that
you would concede to the County the leadership on this issue, we, too, are willing to take the leadership on
this issue. But we will do it only with acquiescence by this board. This is a City issue. I'll be very clear. 'If
this piece of property were in unincorporated Miami -Dade County, I think we would be doing everything
possible to preserve it but its not within unincorporated Miami -Dade County. It's within the limits of the
city of Miami. And I think, out of respect to this institution, we should fast hear from this board. That's
why 1 decided to convene a special meeting of the board last Friday, to make this point abundantly clear
before this meeting today. I think, quite frankly, the flip side of this would be a much more difficult
situation, where the County on its own would be out there trying to acquire this property or trying to have it
24 February 16,1999
redesigned in some fashion without acquiescence from the City. Then, I think, we would really open up a
whole other series of issues that we don't need in this community. So, again, I stand here, on behalf of the
County, to say that we want to be willing partners with the City, if, in fact, the City decides that preservation
of the site is in the best public policy. We have done some leg work. We have identified numerous pots of
money. Mayor, although, perhaps, I haven't yet directly spoken with some of the individuals you
mentioned, a considerable amount of time has been put into speaking, not only with their offices, but with
other state and federal offices. We have identified a chart with a series of funding options that could be
available but, again, we are literally waiting to see what this board's policy directive is and we await your
decision today, if you decide again that preservation is the best public policy. We will be there to assist you.
Mr. Mayor, you and 1, at that point, would be able to meet then. There's not any prohibition with you and I
meeting. In fact, I could meet with any member.
Mayor Carollo: There wasn't any before, Mr. Mayor.
Mayor Penelas: Right. We could work out some sort of a mutual partnership on this issue that would be
beneficial to both the City and the County and we could proceed in that fashion. Thank you, Mr. Chairman.
Chairman Plummer: Commissioner Sorenson. Mr. Mayor, you wish to be...
Mayor Carollo: If I can, J.L., because there were some statements that were made that, I think, can clearly
be constituted a taking by the developer and since they have brought in one of the best legal minds on
eminent domain in this state, I want to be very, very careful as to what our position is. Now, frankly, it's
extremely unusual to hold these kind of talks about a partnership after everything that has happened and,
particularly, on something of this magnitude. I think, for the most part, we could look at history and you
would see time and time again that these kind of talks are held privately, not in this manner, until something
is finally decided by governments. But, I, for one, would be willing to enter into some of the discussions
that Mayor Penelas brought up here today. If he would get the authorization from his County Commission
to enter into a hold harmless agreement with the City, that, if this City is sued by the developer, that the
County will hold us harmless and they would pay for every dime the City would have to spend.
Chairman Plummer: Commissioner Sorenson, nice to have you.
Commissioner Katy Sorenson (Miami -Dade County Commissioner): Thank you, Mr. Chairman, Mr.
Mayor, members of the Commission. It's a pleasure to be here this morning. And to join with Mayor Alex
Penelas,l, too, come in the spirit of peace and spirit of cooperation for the past of this community, as well as
the future of this community. You know, it's often said that politics is the art of the possible but I've always
believed and I've built my career on politics being the art of the impossible. So, I think that this impossible
situation may really have some possibilities for all our community. I think, as the Mayor said, that what you
need to decide and what's clear to me and what's clear to the community is that saving the Circle should be
the number one priority. If you just make that very clear, that that's your priority, we can work on the other
issues. We think we can work together to find the money to make the purchase and do what needs to be
done for the entire community. But what I want to also say today and what hasn't been said, much has been
talked about with the developer.being very cooperative. Well, I just want to say to the developer directly
today, I call upon Mr. Baumann to do what's right for this community; to do what's best for the greater good
of this community. The power's in Mr. Baumann's hands to a great extent. He can still recoup his
investment. He can still make a little bit of money. This is his moment to shine and to really do what's in
the best interest of everyone. So, there's no law that says this has to be an adversarial proceeding. We could
work together for the future of this community. We're still so very young. Incorporated in 1896. That's
when the incorporation started, only 103 years old and, yet, we have heritage that goes back many, many
more years than that and we have the opportunity to learn so much more about what that is. So, again, I
25 February 16,1999
want you to know that we're willing to work with you. We're going to have a meeting on Thursday and
hope to work for what's in the best interest of everyone. Thank you very much. I think one other thing you
should do before this meeting adjourns today, you should hear from Mr. Carr, our archeologist. He has a
presentation. He.can tell you about the significance of this site and I urge you to hear his presentation.
Thank you very much.
Chairman Plummer: Thank you. Mr. Stierheim. Merrett, come on. You've never been bashful. -Don't start
now.
Mr. Merrett Stierheim (Dade County Manager): I don't — Mr. Mayor, members of the Commission, I don't
think I can add anything to what my Mayor and Commissioner Sorenson said. There was a very genuine
desire on the part of the Commission at the special called meeting for direct dialogue. As you know, there
have been some phone conversations and so forth. So, you know, I mean, we're here, I think, genuinely and
sincerely, desiring to work together. I think we have that opportunity. And I would echo — I've been on that
site twice and I've spent quite a bit of time with Mr. Carr. If you've not had that presentation, 1 think it
would be timely.
Chairman Plummer: Do we want to hear from Mr. Carr? I think that we'll now ask Mr. Carr — is he
present? Oh, you had a beard before.
Mr. Carr: That was a very ancient photo somehow...
Chairman Plummer: Before you start your speech, if you would, I think Commissioner Penelas — excuse
me. Mayor Penelas, I think you should give some serious consideration to what the Mayor just said about
holding the City harmless if we were to turn over the lead to you, and I'll ask you to speak to that after Mr.
Carr. Mr. Carr.
Mr. Carr: Well, I appreciate the opportunity to be here and be able to — actually, I have no formal
presentation planned but I would like to illuminate some of the information and some of the misinformation
that has appeared in the media. There's been a lot of hype. In separating the real from the unreal, I think is
part of my responsibility. There have been some questions raised today about the idea of authenticity and,
certainly, suggesting the significance of this site. If we go down that simple road to document authenticity,
the road ends in a very simple dead-end and, that is, the dead-end being simply that this is a very genuine
site. It has been looked at by world class experts. There have been, for example, Dr. William Sturdivan,
from the Smithsonian Institution. He was at the site when visitors were allowed, about six weeks ago. He is
an expert on Southeastern Indians of the United States. He's in charge of the Ethnographic Department for
the Southeast in Washington, DC. His assessment was simply this. He has never seen anything like it. He
believes that this is a very significant site. Dr. Randolph Woodmer, from the University of Houston in
Texas also visited the site. He is an expert on Meso American sites and also sites of South Florida. He does
most of his work on the southwest coast of Florida. His assessment of the site is simply this. That it is a
council house that is profoundly significant. It is the first complete structure, in his opinion, found in
southern Florida. This morning I had a conversation with the State Historic Preservation Officer, George.
Percy. Based on the data that they have looked at — they have not been to the site, by the way — they are
going on the record stating that this site is unique; it is the only site of this type known in the state of Florida
and, in fact, he goes on to say that it is the only site of this type known in all of North America. I think we
will see over and over again any expert and every expert that comes to Miami and views this site that this is
something very special. For the record, I would like to pass this aerial photograph, that was taken last
Friday, depicting the Circle from an aerial view. You will see that the foul septic tank occupies
approximately less than 10 percent of the site and certainly 85 percent of the Circle is intact. The evidence
thus far indicates that the Circle is part of the prehistoric town of Tequesta. Tequesta. The Tequesta Tribe
26 February 16,1999
were here during the period of Spanish contact. The first person to encounter that ancient tribe was Ponce
de Leon in 1513. He called the tribe or the group the Cequesta, with a letter "C." It later was translated to
"T." The town, at that time, was only on the north side of the river but, nonetheless, archeologically, we
have looked at sites along Brickell Avenue, along the Miami River since 1981, when our program began.
And we might add to that, we worked very. cooperatively with the City of Miami. This is an incredible
example of intergovernment cooperation between Sarah Eaton and our office. And I might add there had
been countless discoveries on Biscayne Bay, on Brickell Avenue, on Miami River during the last 20 twenty
years and many of them you have never heard about. The reason you have not heard about them is because
they have not been as significant. We've been able to work with the City using the ordinance that has been
passed. We've been able to go in there with the developer. We have never been into court before because
we have been able to always fix the problem. We've been able to mitigate the sites. For the first time, first
time, we have found a site that we can't simply, easily pick up and move. This is a very significant site.
This is the first time that we've found a site that we need to look seriously at the option of preservation in
place. Now, if that's not possible, on a scale of one to 10, preservation in place is a number 10, moving the
Circle is way down at a number two and bull dozing it is a zero. Obviously, we're going to pick the two
over the zero but if the 10 is a possibility, it needs to be looked at. And, in all fairness Mr. Baumann and his
partners, they have been excellent examples as cooperative partners and developers in working with us.
They went into this with -no knowledge that there was a significant site there. So, again, I want to make it
clear that we've been down this road before but always, we have found sites that we have been able to
archeologically mitigate. To move artifact into museums. We have never found something as profoundly
unique as this. There could be other things on the property but we don't know whether that's the case or not
because we have confined our investigation to about fifty square feet. But, again, in summary, the question
of significance is simply, this is something significant. The site overall is 2000 years old. The Circle may
be between five and seven hundred feet — five and seven hundred years of age. Now, a question was raised
last week, are we looking at a driveway from the Old Brickell House? Because if you look at aerial
photographs in plats from about 1921, curiously enough, there are actually circular driveways very close to
the Circle. Well, the surveyors have looked at it. That particular Circle is actually close but not in the same
location. It's at least a hundred feet away. And when you build a driveway, you don't go down and cut into
the rock and you don't leave ancient artifact and you don't have lamination on the lime stone that's hundreds
and hundreds of years old; where the things in these basins are so old that they're cemented to the rock
because of the water moving between the rock and so forth. Again, that's just a quick summary. They'll be
a lot more information as the radial carbon dates are completed.
Chairman Plummer: Question.
Mr. Carr: Yes.
Chairman Plummer: Even though it's a number two, in your opinion, can the rock be moved?
Mr. Carr: I don't know the answer to that. I know that they have moved monuments in other parts of the
world. The way to do that successfully is to have expertise. You have to have people who know lime stone
and they have to know how to do this. It can't be just a construction company coming in with saws and
cutting it. It has to be done with expertise. That's the only hope of moving this in any matter where it could
be actually reassembled.
Chairman Plummer: OK. Mayor Penelas, are you wanting to answer Mayor — I'm getting all goofed up this
morning — Mayor Carollo's question?
Mayor Penelas: Absolutely. Mr. Chairman, as I stated in my initial comments, if the City decides today, as
a matter of public policy, that it wants to preserve the Circle at its current location, intact, and decides also
27 February 16,1999
to concede to the County the lead in pursuing that goal, then I will be more than happy to recommend to the
Board of County Commissioners at our meeting on Thursday, that they seriously consider the Mayor's
proposal as it relates to a hold harmless agreement. In fact, I believe that that would only be the beginning
of a long process of discussions that we could have with our respective managers and legal staff. There
would be planning implications, even if County resources are utilized, to acquire the property. I believe the
City should be an integral part in the planning; in tenors of what we're going to do in the future with the site.
So, again, if you all decide that this is a high public priority for this City, we would be more than happy to
consider that request.
Chairman Plummer: Mayor Carollo.
Mayor Carollo: Alex, let me be very specific. What I have stated is, before this Commission can be getting
into making any policy statements, position statements, and open ourselves up to be the fall guy, that when
the suit comes, we're the first governmental agency on the totem poll that's going to be responsible for
paying the piper; that before we get into any public discussion, if this is the way that you would like to
proceed, public discussions, that we get a hold harmless agreement from the County Commission and then
we can proceed in having public discussions. At the same time, I may add, if we do get that, one of the
areas that I intend not to get into the public discussion is the whole area of payments in lieu of taxes. The
City of Miami can no longer afford to have approximately a third of all its properties that do not pay any
taxes. This is the real reason why we have run into the problems that we have had, financially. So, those
would be the two areas that I would like to get an answer to. One would be, hold harmless agreement so, if
we enter into any public discussions, we know that if a suit comes, and its going to come to the City of
Miami first, that the County government is going to be paying the bill. And two is the question that, I think
is long overdue, not just in this, but in many other properties, on payment in lieu of taxes. I think that this
Commission would be placing itself fully in harem's way. We would be placing ourselves in that position to
be the fall government that would have to pay the full amount of any suit that could derive because of this.
Mayor Penelas: Mr. Chairman, may I?
Chairman Plummer: Surely.
Mayor Penelas: Mr. Mayor, I think you are totally entitled to a fair answer to both of those questions. I ask
an,answer to only one question, however, and that is, does the City of Miami, as a matter of public policy,
wish to preserve the site? If I could get an answer to that today, I think it will open up a whole lot of other
doors, but I need an answer to that and, then, we'll be able to deal with these other issues.
Mayor Carollo: Mr. Mayor, as the Executive Mayor, like yourself, of this City, I, for one, feel that if this
City gets into the area of what really is eminent domain — and this is what you're asking for this Commission
to take its stand on today — that we have opened ourselves up fully and completely to be the governmental
agency that would be the first one to be sued by the developer; and this City cannot withstand having to pay
another 40, 50, 60 million dollars or more. And this is why I am asking for a hold harmless agreement from
the County before we entertain getting into any such discussions publicly.
Commissioner Teele: Mr. Chairman?
Chairman Plummer:, Mr. Gort has asked for the floor first. Mr. Gort.
Vice Chairman Gort: Mr. Mayor, at one time, when we were discussing this, we received a letter from your
department, where they said they needed additional time to study but for us not to stop the permitting; for us
to go ahead and issue the permit, which'means, at that time, they didn't want to take responsibility or the
28 . February 16,1999
liability for being responsible for that. I think we have a resolution in front of us that can be passed by us,
that gives the message, and it gives the opportunity for the two of you to get together and start talking and
discussing the matter. In that way, we can save our liabilities and it gives — opens the door for all of you to
talk and gives the opportunity to the developer to get involved also.
Chairman Plummer: Commissioner Teele.
Commissioner Teele: Mr. Chairman, I think Mayor Penelas and Mayor Carollo are really saying the same
thing. More like who goes first kind of thing.
Chairman Plummer: No, it's who's got the money?
Mayor Carollo: No, no.
Commissioner Teele: Well, I mean ... it's my opinion and that's my opinion. It seems to me that we could
pass a resolution that simply said, conditioned upon — whatever Mayor Carollo's words are — conditioned
upon the County Commission saving the City and holding us harmless and subject to an interlocal
agreement that would be worked out; that would be satisfactory to both the City and the County; we would
authorize the County to move forward in taking whatever steps the County deems appropriate in the
County's own name, which avoids the issue that Mayor Carollo is discussing. Because if the County moves
forward, they are taking the action in their own name. And so, it would seem to me that we could, Mayor
Penelas — and I really would like your reaction because I don't want to — if you're opposed to what I'm
saying, I don't want to, you know, get — you know, I realize when this cross...
Chairman Plummer: Mr. Teele, if I may? The City Attorney is getting a little nervous with your
conversation.
Mayor Carollo: And he should be getting nervous.
Chairman Plummer: Mr. Mayor, please. Mr. Teele, I'm only...
Commissioner Teele: Well, I have not talked about anything, other than the fact that the City determines
this site to be of such Metropolitan significance, that we authorize the County to take the lead...
Chairman Plummer: OK.
Mr. Maxwell: Commissioner, as I said before, I would recommend you not make such statements. As
Mayor Penelas, in all respect, pointed out, he said that he would seriously attempt to get his Commission to
pass such legislation. He didn't say that he could. Therefore, I think you would be putting the cart before
the horse. I would suggest to you that you let the County Commission meet. If they are willing to give us
the necessary protection that we deem sufficient, they should pass that legislation and, then, come back to
the City with it before you enter into any discussions on it. Or...
Commissioner Teele: Well, I'll go one better. Why don't we have a separate but joint meeting on Thursday?
Let's all sit there. Let's stop playing like this is a bureaucracy, you know, that we can't figure out how to do
anything. (Applause)
Mayor Carollo: Please.
Chairman Plummer: Hold it, hold it, hold it.
29 February 16,1999
Commissioner Teele: Because we all live in this community and if we're all sincere about this — and I'm
sure we are — then, we ought to just all agree to go down to County Hall, let the Mayor treat us with a little
bit more decorum and dignity and give us a seat at the dais or somewhere, where we can be a part of an
ongoing discussion and let the County vote, consistent with what our lawyer said, and, then, we would vote
right there at the same time, afterwards. Now, do you have a problem with that?
Mr. Maxwell: Well, I'm concerned about any discussions that may occur during that whole process. And, I
mean, you're there...
Commissioner Teele: You're concerned about the discussions that the County might have?
Mr. Maxwell: No, about the discussions that,our.Commission might have. .
Commissioner Teele: No. No, no, no. You didn't hear what I said.
Mr. Maxwell: You said a joint meeting.
Commissioner Teele: - No, I said a joint but separate meeting where we would all go in one room, let the
County vote and do what Mayor Carollo's saying and what you appear to be saying, and that is, to pass the
resolution, 'et cetera, et cetera, et cetera. Because what's going to happen is, we're going to run out of time
while we all talk and I don't want to be a part of a government that is talking while the bulldozers start
rolling.
Chairman Plummer: Mr. Teele, if I understand you correctly, what you're saying is, is that we would attend
the County Commission meeting. If they so wish to act and to do what Mayor Carollo has requested, then
we, as a body, once they have completed their action, that we are either satisfied what they have done,
covers this City or does not. Is that what you're indicating?
Commissioner Teele: Yes, sir. But we would do it right then -and there with our lawyers and our staff right
there, so that we can really show that we are a government that can work together. I think the citizens — this
thing's going to backfire on everybody if we're not careful.
Chairman Plummer: OK. I'm just trying to clear the record. I'm not that...
Commissioner Teele: I really believe that it is important that we go ahead and we either make a decision or
we don't make a decision.
Chairman Plummer: Fish or cut bait.
Mayor Carollo: Mr. Chairman?
Chairman Plummer: If I may, Mr. Mayor. May 1 read into Regalado's motion into the record. I think it
might understand some people and I'd like, if I may, Commissioner Regalado, it's your motion, but to read it
into the record. It's a resolution of the Miami City Commission, which has already been approved by the
City Attorney.
Commissioner Regalado: Mr. Chairman, if I may? I would like to amend that resolution with the consent
of the City Attorney.
30 February 16,1999
Chairman Plummer: Well, then, if that's the case, then I'm going to ask the Mayor to go ahead and take the
floor. He asked for the floor.
Mayor Carollo: _Thank you, Mr. Chairman.
Commissioner Regalado: OK.
Mayor Carollo: Again, for the record, so that there is no mistake in what I've requested of the County.
Before we would enter into public discussions; the key word is public discussions, that we would have hold
harmless agreement that the City would not be liable for one cent of any litigation, any suits, anything that
derives of whatever we might enter into discussing publicly. At the same time — and let me be very precise
for the record, why I am being so careful and protective of this City. The City of Miami, ladies and
gentlemen, and majority of the ones that are sitting here are not even from Dade County or 25 percent of
what is seen here is from out of the state — the City of Miami cannot afford to take a hit of 40, 50, 60 million
dollars or more in having to pay in a suit. We just cannot because we would not survive as an entity. I, and
all of us, have a tremendous responsibility to past civilizations; we have a tremendous responsibility to
respect them; to try to do what is right by them but, at the same time, I have a greater much greater,
responsibility to the present civilization, the present residents of the City of Miami. We have the fourth
poorest city in the whole country. Those of you that are from outside of Dade County and outside of the
state, go by East Little Havana, Allapattah, Wynwood, Overtown, Liberty City, Little Haiti, and some of
our other neighborhoods and you will see the need of the City of Miami has. Couple of years ago, when the
City of Miami found the dark conditions, financial conditions, that we were in — and I publicly, again, thank
Merrett Stierheim that came to our assistance, at my request at the time. I went to Dade County
Government and I met with the then Manager, the then Assistant Dade County Managers, and Mayor
Penelas, that then came to the meeting, and what I was told at the time that the way that County government
would help us monetarily was — and they brought out a list that they had already, full of prime waterfront
property that they would buy — and I'm going to use exact words that were said to me — in a fire sale. Fire
sale prices our properties to help us out. Now, after having gone through and after having gone through the
pain in the last two years that this City, all its employees, all its residents have gone through, I cannot take
any risks of seeing the City faced with such a large number because, at the end of the day, we're going to be
left holding the bag by ourselves again. Now, if I — Mr. Chairman, with your permission — ask the County
Manager to come up for a second. I need to get something on the record, Merrett, if I can.
Chairman Plummer: Mr. Stierheim, please.
Mayor Carollo: What I've been hearing from the County has been talk of a taking. IVs a legal terminology.
Mr. Teele: No
Mayor Carollo: Well, you could say no but this is my interpretation of what I'm hearing. Does the County
have any monies that is put aside to try to buy this land? What monies do you have, Merrett?
Mr. Stierheim: The only people that have used the word eminent domain, that I've heard this morning, are
you and your attorney. The...
Mayor Carollo: Because that's what's been talked about here.
Mr. Stierheim: The list of options, which I think the Mayor attached to the letter, goes from...
Mayor Carollo: I only have a two -page letter here; Merrett. There's no options here.
31 February 16,1999
Mr. Stierheim: Well, I apologize. And I'll see that you get that. There is a list of options that ranges from
doing nothing to the ultimate, which would be eminent domain. And there are — I can't recall exactly — but
there are about 10 or 12 items in between, and we were asked by the Commission and the Mayor to
elucidate those and list the advantages and disadvantages of each, which we did. We then attached a
scenario that was prepared by the Budget Office, which I stand behind, which lists a series of potential
sources of revenue that we could go after and they range from federal, state, support, city, school board,
county, foundations, native American organizations. I mean, there is a long range of areas that could be
explored for funding. Now, counsel for the property owner — property owners, I should say, because it's
more than just Mr. Baumann, obviously. You know, we have tried to explore some of those, like have our
structural engineers meet with their architect to determine whether it was engineeringly feasible to build a
cellar to preserve the site in the pad and what would that cost, preliminary estimates and so forth. Always
with the objective of keeping the developer whole. I mean, you know, the taking of the property is an
ultimate potential but I don't — no decision has been made in that regard whatsoever.
Mayor Carollo: Merrett, in one of your options that you just confirmed here of buying the property from the
developer, that you, the County, have presented, not the City — I'd like to clarify that.
Mr. Stierheim: That's correct.
Mayor Carollo: Since we do not have any kind of hold harmless agreement given to us to discuss anything
other than that. How much money have you, the County, identified in -hand now, not what you think you
might look at or what might be available in other areas, what do you have in -hand right now?
Mr. Stierheim: There are no —.excuse me. Well, the Mayor has discouraged me from answering. I think
my report speaks for itself. And I said potential sources of funding, so there have been no...
Mayor Carollo: But do you have...
Mr. Stierheim: There have been no decisions made in that regard.
Chairman Plummer: Mr. Sanchez.
Mayor Carollo: Thank you.
Commissioner Sanchez: Thank you, Mr. Chairman.
Mayor Carollo: Thank you, Merrett.
Commissioner Sanchez: You know, the City is basically between a rock and hard place.
Chairman Plummer: Yeah, Circle rock.
Commissioner Sanchez: In a Circle rock. I mean it. Our City is basically recovering from a financial crisis
that we had and there are things that we look upon to get this City heading in the right direction and one of
them is development. However, I will not compensate losing something that's significant to everyone,
including the young and the old, for development. There could be a solution to it. And I think that if — one
of the comments that were made here, we both work together, but the Mayor of the City of Miami is
absolutely right. The City cannot handle the financial impact. One of the lawsuits that are going to be filed
because the developer has basically got all his permits.' There is only three ways, I believe, right now that
32 February 16,1999
the developer could be stopped. One is through the court system, whether it be state, federal or local. But
I'm telling you, if we get involved in this =- and I am going to seek the — I am going to take the advice of our
City Attorney, which basically cautioned me on the language to be used here today. But the City cannot get
involved in this and pick up all the money to remove the Circle or preserve the Circle. If the County's
willing to do it and they want to pick up the ball, let them pick up the ball and run with it.
Chairman Plummer: Mr. Regalado for close.
Commissioner Regalado: Yes, sir. Thank you, Mr. Chairman. Mr. Mayor, members of the Commission,
Mayor Penelas, and Commissioner.
Chairman Plummer: I retract. It's not for closing.
Commissioner Regalado: I have a resolution that was written by the City Attorney and that resolution reads
in essence, "a resolution of the City — of the Miami City Commission strongly urging the developer of the
site located at the mouth of the Miami River, known as the Miami Circle, to recognize said properties
potential for historic significance and take all steps possible to cooperate in the preservation of said site."
Now, I — Mr. City Attorney, I just wanted to add two words and this is — you said to me that this is not a
binding resolution, is this correct?
Mayor Carollo: Where's the resolution at?
Mr. Maxwell: No, this resolution — no, no, no. I said it was a benign resolution. It's not...
Commissioner Regalado: No. When me discussed this on Friday, you said that this — whatever we said
there was supposed to be non -binding.
Mr. Maxwell: Yes, sir.
Commissioner Regalado: OK. So...
Mr. Maxwell: And also designed not to place us in any legal jeopardy.
Commissioner Regalado: Right, right. Since we are urging the developer of the site, we are not placing
ourselves in any harm's way, like we have said here in the past, right? Is that correct? What we're doing,
we're urging the developer. So, I would like to add to this resolution two words: "as is."
Mr. Maxwell: That's fine.
Chairman Plummer: What you're merely urging or suggesting. .I don't think that that would create a
problem.
Commissioner Regalado: Well, it — you see, it's a difference.
Mr. Maxwell: No. To said site as -is.
Chairman Plummer: He can do'the urging or he can do the suggesting at his own leisure. There's nothing
binding on him.
Commissioner Regalado: Absolutely. But what I'm saying — what I'm trying to do, if this body chooses to
33 1 February 16,1999
support this resolution, is to say that this City Commission is urging the developer to take all steps possible
to cooperate in the preservation of the site as it is in the same place.
Mr. Maxwell: If the Commission chose to say that, it could.
Commissioner Regalado: OK. So, that would be my resolution to the Commission. I'll move that, Mr.
Mayor.
Mayor Carollo: Joel?
Chairman Plummer: Is there a second?
Commissioner Teele: Second.
Chairman Plummer: Seconded by Commissioner Teele. Excuse me.
Commissioner Sorenson: If I may, I just have one short suggestion for an amendment that you may want to
make, that would add another three words. May I proceed, Mr. Chair?
Chairman Plummer: I'm listening.
Commissioner Sorenson: If it was a resolution of the Miami City strongly urging the developer of this site,
located at the mouth of Miami River, known as the Miami Circle, and the County, to recognize said
properties potential for historic significance and to take all steps possible to cooperate in the preservation of
said site.
Chairman Plummer: Mr. City Attorney?
Commissioner Teele: All voluntarily.
Chairman Plummer: I'm calling collect.
Mr. Maxwell: You're urging — I'm looking for a certain word.here.,
Chairman Plummer: All right.
Mr. Maxwell: Yes. I think you could. You probably could say that but we would have to emphasize, in
redoing the resolution, that what you're asking is for the developer to voluntarily.
Chairman Plummer: Urging or suggesting. Mr. Mayor, you have the floor.
Mayor Carollo: Again, Mr. City Attorney, the City of Miami has a lot riding on this for the present
generation, the present residents of the City of Miami. Can you assure us that, by the addition of the
language that we just heard here and the addition of the "as -is" that was not in this resolution before, that we
will legally be out of harm's way?
Mr. Maxwell: No, absolutely not. I can't assure you of that, sir. In fact, the as — well, the as -is language,
it's all fairly benign and as -is really doesn't change anything from what it now says. The addition of the
County, on the other hand, is — you know, as I think about it — and that's why I was hesitating when the
Commissioner spoke — is troublesome to me because we are, in fact, advocating the County's action and if
34 February 16,1999
the County then does something that results, in negative impact on the development and they don't later
acquire the property or whatever, a very, very good attorney would seek as many deep pockets as possible
and ours, of course, would be one of those pockets. Therefore, upon reconsideration, I would still go along
with the "as -is" language but I would suggest you not add the language regarding the County.
Chairman Plummer: All right. Mr. Regalado, you have heard the suggestion of the City Attorney.
Commissioner Regalado: I — yeah. Thank you, Mr. Chairman. I apologize to Commissioner Sorenson. I
think that the City Attorney is guiding us on this issue. I really believe that by adding "as -is", we're sending
a clear message to the community that this Commission, this government, wants to work with the developer
to preserve the site "as -is."
Chairman Plummer: There was no problem with the terminology "as -is."
Commissioner Regalado: Right. So, if there is no problem, Mr. Chairman, I move that these two words be
incorporated into the resolution.
Chairman Plummer: All right. Motion understood. Call the roll. There will be more action after this,
please. Call the roll.
The following resolution was introduced by Commissioner Regalado, who moved its adoption:
RESOLUTION NO. 99-127
A RESOLUTION OF THE MIAMI CITY COMMISSION STRONGLY
URGING THE DEVELOPER OF THE SITE LOCATED AT THE
MOUTH OF THE MIAMI RIVER, KNOWN AS THE MIAMI
CIRCLE, TO RECOGNIZE SAID PROPERTY'S POTENTIAL FOR
HISTORIC SIGNIFICANCE AND TAKE ALL STEPS POSSIBLE TO
COOPERATE IN THE PRESERVATION OF SAID SITE AS -IS.
(Here follows body of resolution, omitted here and on file in the Office of the City Clerk.)
Upon being seconded by Commissioner Teele, the resolution was passed and adopted by the following
vote:
AYES: Commissioner Tomas Regalado
Commissioner Arthur E. Teele, Jr.
Vice Chairman Wifredo Gort
Chairman J.L. Plummer, Jr.
NAYS: None.
ABSENT: Commissioner Joe Sanchez
Chairman Plummer: Commissioner Sanchez is not here? All right, now. Merrett, would you come back to
the mike because I think you're going to have to be the one to answer my question. As 1 understand where
we are right now, we're not doing anything other than this resolution that has just been passed. On
Thursday, you are meeting, correct?
35 February 16,1999
Mr. Stierheim: Correct.
Chairman Plummer: What time?
Mr. Stierheim: The meeting convenes at; what is it, nine? Nine thirty. They usually have awards before
that.
Chairman Plummer: Could we ask you to convene the meeting at eight o'clock?
Commissioner Teele: You have a colleague...
Commissioner Regalado: I can't go.
Chairman Plummer: Oh, he can't do it. Yeah, but I've got a problem also. All right. What I'm saying is,
this Commission is not going to take any further action until the County Commission has met, addressed the
issues and concerns of Mayor Carollo, which I think speaks for this entire Commission and, as such, once
that decision is made by them, we, in attendance, will be able to call a meeting of this Commission for the
purpose...
Mayor Carollo: No.
Mr. Maxwell: No, you can't do...
Chairman Plummer: -No.
Mayor Carollo: Mr. City Attorney, can you guide on this, please?
Chairman Plummer: All right, then, correct me if I'm wrong because I'm trying to lay out the timetable here.
Mr. Maxwell: No, no. You — no, no. Any meeting of the City Commission, of course, would have to be
noticed at least 24 hours in advance.
Chairman Plummer: All right.
Mr. Maxwell: So, it would have to be a public — advertised public meeting, accessible to the public.
Chairman Plummer: All right. Then, we will listen for their action on Thursday of the concerns expressed
by Commissioner Carollo ... Mayor Carollo and, as such, we then will make a determination to call a special
meeting on Friday for 24-hour notice if this Commission sees fit or the Mayor calls a special meeting or —1
don't know whether I have that authority or not. Butit's beside the point.
Vice Chairman Gort: You can call it.
Commissioner Teele: You can call a meeting.
Mayor Carollo: We meet...
Chairman Plummer: Well, OK. What we'll do then, if its agreeable with everybody, Mr. Mayor, we'll call a
meeting for Thursday — I'm sorry, Friday at 10 a.m. and maybe would. cancel if nothing is done by the
County Commission. Is that in accord with everybody's thinking?
36 February 16,1999
0
Vice Chairman Gort: Yes.
Chairman Plummer: Mr. Mayor, you have any problem with that? Again, I think we need to...
Mayor Carollo: I think you, need to verify it, J.L., first of all, for all the members of the Commission, what
would be the appropriate time for them to meet.
Chairman Plummer: You mean the City Commission?
Mayor Carollo: The members of the Commission, correct.
Chairman Plummer: I just add, is ten o'clock agreeable on Friday?
Commissioner Regalado: Ten o'clock is fine with me.
Commissioner Teele: Ten o'clock is fine. Yeah, fine.
Mayor Carollo: You have a majority that is.
Chairman Plummer: All right. Wait a minute. Now, hold on. I've got to look on mine. Mr. City Attorney.
Mr. Maxwell: Generally, under applicable rules, 24-hour notice of a special meeting ,is considered
adequate. I don't know what time in the day...
Chairman Plummer: We're giving 72 hours notice.
Mr. Maxwell: No. Well, are you actually scheduling the meeting now.
Commissioner Teele: Yeah, but — let me...
Chairman Plummer: Yes, sir, I am...
Commissioner Teele: I don't understand what the issue is. He can always cancel the meeting.
Chairman Plummer: I am calling for a special meeting of this City Commission on Friday morning at 10
a.m., to consider any actions taken or not taken by the County Commission.
Commissioner Teele: Commissioner Plummer?
Chairman Plummer: Mr. Teele.
Commissioner Teele: I really would like to hear from Mayor Penelas because I think we ought to...
Chairman Plummer: I have no problem. Mr. Penelas.
Commissioner Teele: ...at least afford some opportunity to have some feedback. I don't want to be in this
thing in the blind, and I really appreciate you and Merrett and Commissioner Sorenson being here, but I
really do think we need to move forward now. What do you recommend? What would you like to see us
do, other than the fact that,1 think, we all agree that Mayor Carollo is correct in expressing concerns about
37 February 16,1999
our less than deep pockets at this time, and willing to work with the City — with the County in moving
forward, as you would provide that full and hold harmless agreement. Although, I'm not really clear why
something that's condition -precedent couldn't have the same affect, but this is where we are and I'd like to
just understand, Mayor Penelas, what you're...
Chairman Plummer: Mayor Penelas is recognized.
Mayor Penelas: Mr. Chairman, Mr. Mayor, members of the Commission, I've been trying to figure out
myself where we are right now. With all due respect, I don't believe we are in any better position than we
were at 10 a.m., when I arrived here. In effect, if I combine a statement by Commissioner Teele, who said,
not in name — and you said with emphasis — and Commissioner — and Mayor Carollo, who insist on a hold
harmless. On the one hand, what I'm hearing is, you guys want to get out of this totally. That's what I'm
hearing on the one hand. But on the other hand, you are scheduling a meeting for Friday morning to take
further action if, in fact, the County approves a hold harmless. I'm going to be very honest with each of you.
At this point, it would be very difficult for me to recommend to the Board of County Commissioners to
proceed with any hold harmless agreement because there's really nothing on the flip side for us. We might
as well, for that matter, proceed by ourselves, which is exactly where I don't.want to be. All I came here this
morning was asking to hear, even if you didn't pass anything, hear something that would indicate to me that,
as a matter of policy, this City, the City where the Miami Circle is located, believes that, as a matter of
public policy, it would be best, if possible, to preserve the site intact. That's all I wanted to hear (Applause).
Chairman Plummer: That's what — whoa, whoa, whoa. Whoa, whoa.
Mayor Penelas: And, quite frankly...
Chairman Plummer: Mr. Mayor?
Mayor Penelas: Yes, sir.
Mayor Carollo: Mr. Chairman, if I can.
Chairman Plummer: Does it not encompass those words in the resolution just passed?
Mayor Penelas: No, sir, I don't believe it does.
Chairman Plummer: OK. You still have the floor. I'm sorry.
Mayor Penelas: No. That's all. I mean, that's all we came here trying to look. I'm trying to avoid... You
see, look at the flip side of this. There's no doubt that the County could have done whatever was within its
authority to do, including pursuing a voluntary type of purchase from the developer, without coming here
this morning. We could have done that had we chosen, but I specifically insisted, because of the same
reasons that Mayor Carollo mentioned, that we not proceed without the acquiescence of this City
Commission. And, quite frankly, I'm not hearing that. And with all due respect to your City Attorney, who,
he gave you the advice he had to give you. I think he is putting the cart before the horse. You know, there
first has to be a determination that you want to. save the thing. That's what you've got to decide first. Then,
everything else falls into place. We've already made that decision. We've gone on the record. A majority
of the members of the County Commission said, "Yes, it's important that we save the Circle." But I'm not
hearing the same thing from the City. So, why should the County put itself in a position to fight, not only
the developer, but to fight the City as well? You know, we're in a no -win situation and I'm not going to
allow the County to fall into that situation. So, unless I hear a very clear message from this City
38 February 16,1999
Commission, that, as a matter of public policy, it's important to preserve the site, then I'm not really going to
be — and, again, I work at the Commission differently. I do not sit on the dais, Mr. Mayor. I allow there to
be a separate, a legislative and deliberative process. If the Commission chooses to proceed in whatever
fashion it decides to proceed, that is their decision and I respect that within the parameters of the law, but
I'm not — having heard what I've heard today, I don't feel comfortable going to the Commission and
recommending that we enter into any hold harmless or anything of that nature because, in effect, you know,
we've only put the County in a worse position.
Chairman Plummer: Well, if I may, Mr. Mayor.
Mayor Carollo: Chair...
Chairman Plummer: Just a moment. You know, I think, by virtue of us meeting here this morning,
indicates that we are interested in doing what you have requested. But, according to my City Attorney, 1
have one option. One option and one option alone, and that is to buy. You know what? I don't have the
money to buy, so that eliminates what I see as my one option. Now, earlier in your conversation you spoke
about, if the City would like to relinquish its lead to the County. Then, there is where I think the Mayor,
rightfully so, asked that, if we did relinquish that right, which you've requested — I'm saying...
Mayor Carollo: I'm not saying relinquish.
Chairman Plummer: That, in fact, we, the City, would not be held in abeyance of any lawsuits...
Mayor Penelas: That is correct.
Chairman Plummer: ...if we did relinquish that. So, I think...
Mayor Penelas: But I haven't heard that, Mr. Chairman. I haven't heard that, nor have I heard a definitive
statement from this board that it is a matter of public policy for this City to preserve the site. You know,
and I...
Chairman Plummer: Well, I don't think there's any question in anybody's mind...
Mayor Penelas: I haven't heard it.
Chairman Plummer: ...that they would love to see it.
Mayor Carollo: See — if I can, Mr. Chairman?
Chairman Plummer: Mr. Mayor.
Mayor Carollo: Our City Attorney was very, very clear in his legal recommendations to us. You know,
Alex, several weeks ago when you and the County and you announced that you were speaking to Vice
President Gore, the First Lady and others to look for money, there was no statements about coming to the
City and what was the City going to be doing or not. After the fact, when there has not been any money
that's been found, it is, what I'm hearing, that the City is important, but what you haven't gotten is someone
to be the fall guy to pay the County's bills, legal bills, if we do what you want of us today and we get sued.
The City of Miami, if we take the actions and go against our attorney's advice today, we'll be the fall guy in
the lawsuit. We're going to be the ones that are going to have to pay tens of millions of dollars, whether it's
40, 50 or more, it's going to be us. And you know what you and the County are going to tell us when we go
39 February 16,1999
to you and say, "Hey, we had a partnership." You're going to say, "Here's a list of your waterfront
properties. We'll buy them at a fire sale." I'm sorry, Alex, but what I cannot let happen is for the City of
Miami to be the fall guy. And never, never, in all my years, since I was 22 years old and got involved in
politics in this community, have I seen a partnership, of the form that you're talking about, be discussed in
public like this. This is not the way that things are done, whether here or in Boston or Washington or
Virginia or North Carolina, like many of the people that came here to speak on this. The way that it's done
is like we worked in other things in the past. We worked quietly together, as a team, not trying to put the
City of Miami in a position that it might be the financial end of this City.
Chairman Plummer: The City of Miami Commission has passed a resolution. I ask...
Commissioner Teele: Commissioner Plummer.
Chairman Plummer: ... if my colleagues have any further discussion? Commissioner Teele has the floor.
Commissioner Teele: I heard Alex say, he doesn't need it in the form of a resolution. I guess, in that
collegial manner, sort of a straw vote or sort of a statement on the record, would that be sufficient if three
Commissioners said on the record...?
Chairman Plummer: But we said it.
Commissioner Teele: No, we haven't said it. We've not said it. If three Commissioners say on the record,
individually, no motion, that we believe that, as a matter of public policy, it is important that this Circle be
saved, would that be satisfactory?
Chairman Plummer: We urge it.
Mayor Carollo: Mr. City Attorney...
Commissioner Teele: I mean, just a simple statement. Not asking to take anything, not asking not to take
anything or do anything or cloud anything. Just a simple statement, as a matter of public policy, that I...
Chairman Plummer: Mr. City Attorney.
Mr. Maxwell: I believe individual statements of that type can be just as detrimental to the City's position as
a formal action.
Commissioner Teele: Do you — no, no. Do you believe that a statement of me saying that I believe, as a
Commissioner representing District 5, that the preservation of that site is important to the City of Miami?
You believe that constitutes a...
Mr. Maxwell: If you just...
Commissioner Teele: ... a cloud?
Mr. Maxwell: That's exactly what you just said in your resolution, sir.
Chairman Plummer: That's what I said.
Commissioner Teele: OK. So, what's the harm in saying it?
40 February 16,1999
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It
Mr. Maxwell: That -- if you...
Commissioner Teele: If that's what we just said, what's the harm in saying it?
Mayor Carollo: No.
Mr. Maxwell: No, no. If that's all you're going to say, Commissioner...
Commissioner Teele: That's all that I'm going to. say. Do you have a problem with that?
Chairman Plummer: You've already voted on it.
Commissioner Teele: Well, I mean — I think Alex has a right. He's come all the way over here. If three
Commissioners say what the lawyer just cleared that we can say...
Mr. Maxwell: But those three — the thing is, that you talk about three and, then, there's a connotation there
that those three represent a majority of the Commission and is somehow an official act of this Commission.
Commissioner Teele: No, that's not at all what I'm connotatiog. I'm just connotating that there are persons
here that believe that this Circle's important.
Commissioner Regalado: I — Mr. Mayor, if I may?
Chairman Plummer: I don't think there's any question about that.
Mayor Carollo: I think we've taken position on that already.
Chairman Plummer: I don't think there's any question in anybody's mind that this Commission feels that that
Circle is important. The question continues to resolve, what available options does this City have? And, as
I understand it, we have one and that one we can't do anything about because we don't have the money.
Commissioner Teele: Well, as unpleasant as it is to say it, we obviously have two.
Chairman Plummer: All right.
Commissioner Teele: And the second one is, to turn it over to the County and let the County do what they'd
like to do, and we just get out of it.
Chairman Plummer: So, they could do it without us.
Commissioner Teele: But, see, that's the cowardly way out and that's what — you know, I think, Alex is
saying, "I don't hear you saying anything," and the fact of the matter is, we aren't saying anything. So, why
can't we just say that we really believe that this is an important Circle?
Mayor Penelas: Mr. Chairman?
Commissioner Regalado: I...
Mayor Penelas: I'm sorry.
41 February 16,1999
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Chairman Plummer: Hold on. My Commission first. Mr. Regalado.
Commissioner Regalado: I — again, I just want to go on the record as saying that this Commissioner
believes that this is an area of great importance for the City of Miami and that we should preserve, as we
said in the resolution "as -is" and that's my statement. (applause)
Chairman Plummer: I think that says it all..
Mr. Maxwell: Commissioner, that's not — your resolution didn't say that, just for clarification., Didn't say
you should preserve "as -is." What the resolution says...
Commissioner Regalado: As urging the developer.
Mr. Maxwell: ...the developer should cooperate.
Chairman Plummer: No, no, wait. But wait a minute. The resolution says he is urging. He's not
demanding it. It's not binding.
Commissioner Regalado: Right.
Chairman Plummer: He's urging, and I don't see a thing wrong with that.
Mr. Maxwell: What...
Chairman Plummer: The developer can take that urge or not take that urge. That's up to him. .
Mayor Carollo: Mr. Chairman?
Chairman Plummer: Mr. Mayor. .
Mayor Carollo: We've beaten this enough already. We need to bring this to an end.
Chairman Plummer: I just would like to do that, sir, very quickly. Mayor Penelas, I'll — Mr. Gort first.
Vice Chairman Gort: -I think we, by meeting here today and passing the resolution we did, I think a message
is there.
Chairman Plummer: Mr. Penelas or Mr. Stierheim. No, no, no, I'm just going to give you a word that says,
"we have technically called a Commission meeting for Friday at ten o'clock: We will listen to Cable 26 and
listen to what the County does or does not do on Thursday's meeting and we will, then, meet or not meet on
Friday morning at ten o'clock to discuss our options. Now, if I may, since we're coming to a close. First of
all, Arva, I would like to thank you for a book that I've never seen and it is a great book on the City of
Miami.
Mayor Carollo: From all of us, Arva.
Chairman Plummer: Miami. And second of all, Mr. Mayor, I want tell you, I would like to congratulate all
the people here today. This thing was the potential of being noisy, out of question, and off the wall, and I,
personally, would like to thank the people for dealing with a courteous manner to the speakers here today.
42 February 16,1999
And, again, thank the Mayor, the Commissioner, and County Manager for appearing here today with us.
And I thank you very much. If nothing further, this meeting...
Commissioner Teele: You're going to yield to Commissioner...
Chairman Plummer: Oh, I'm sorry. Did you wish to say something further, Mr. Mayor?
Mayor Penelas: Mr. Chairman, I wanted to make sure something was abundantly clear, and 1 apologize if
this — the discussion took more of the financial aspect, as rightfully it should. I don't doubt that. When I've
discussed this issue with the Manager and members of the County Commission, the County totally
understands that we would be in the position, in whatever scenario is pursued, to assume the lion's share of
the financial responsibility for an acquisition, whether it be through public funds, private funds, or some sort
of state or federal grants. In fact, we've compiled that list of possible sources. However, let me try to be
very clear on this issue. I am really trying to do whatever I can to make sure that, from an intergovernmental
perspective, this is done the right way, and I think, perhaps, I haven't been clear or I haven't stated my point
of view clearly. Listen, we could have done whatever we wanted to have done two weeks ago and not even
be here today, OK, and your own City Attorney will tell you that. Any and all of the options or most of the
options set forth by the County Manager, we could have pursued. We could have spoken directly to the
developer. We could have done a whole host of things. But I don't think we should be here dictating — the
County should not be dictating what happens within the City of Miami. I don't want to be — think of the
reverse side of this. Had we taken action, some sort of action, whatever that may be, the conversation would
have been, "Oh, there goes that damn County again, trying — you know, trying to dictate what happens in
the City." That's what I'm trying to avoid. By partnership, I'm not trying to say that it's got to be a to 50/50
financial partnership. Maybe its a hundred percent to zero but, yes, if we do something, I would like to see,
Commissioner Teele, the City at the table with us because this is in the City of Miami. It's not in the
County. So, you know, I respect all the talk that's gone back and forth here, but I just came here asking for a
very simple thing that, quite frankly, I'm not sure I've heard yet and, that is, that there's a real commitment on
this City's part to preserve this site, and that, if the County were to take any sort of action, whatever that is,
voluntary or otherwise, that the City would stand with the County on that decision. Quite frankly, I haven't
heard that. Thank you, Mr. Chairman.
Mayor Carollo: And, quite frankly, Alex, the reason that I believe the County did not take any action was
that there was no money that was brought to the table.
Chairman Plummer: All right. Again, we thank all parties concerned. We'll listen to the County
Commission on Thursday. This motion — this Commission is adjourned.
43 February 16,1999
1
THERE BEING NO FURTHER BUSINESS TO COME BEFORE THE CITY COMMISSION.
THE MEETING WAS ADJOURNED AT 1:05 P.M.
JOE CAROLLO
MAYOR
ATTEST:
Walter J. Foeman
CITY CLERK
Maria J. Argudin
ASSISTANT CITY CLERK
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February 16,1999