HomeMy WebLinkAboutSubmittal-City Attorney-Bid Protest Docs-Virginia Key Marina RFP No. 12-14-077CITY OF MIAMI, FLORIDA
MEMORANDUM
Submitted into the pub!if,'
record" fpr itqm(s)
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TO: City of Miami Commissioners
Virginia Key SMI, LLC
FROM: Daniel Rotenberg,
Director
Department of Real Estate and
Asset Management
DATE: May 10, 2016
SUBJECT: Response to Bid Protest submitted on
behalf of Virginia Key SMI, LLC
REFERENCES: Virginia Key Marina RFP No. 12-14-077
ENCLOSURES: Bid Protest submitted on behalf of
Virginia Key SMI, LLC
RESPONSE TO BID PROTEST
SUBMITTED ON BEHALF OF VIRGINIA KEY SMI, LLC
Background
The City of Miami Department of Real Estate and Asset Management ("DREAM") issued RFP No. 12-14-
077 for the development and lease of a city -owned waterfront property located in Virginia Key ("Virginia Key
Marina RFP"), and proposals were received from the following firms: Virginia Key, LLC ("RCI Group"), New
Rickenbacker Marina, LLC ("Tifon"), and Virginia Key SMI, LLC ("Suntex"). The Selection Committee
("Committee") appointed by the City Manager, met on March 16, 2016 to evaluate the proposals and
recommended that the City negotiate with the highest ranked proposer, RCI Group. The City Manager concurred
with the Committee's recommendation, and Tifon and Suntex submitted timely bid protests. The responses
were reviewed by Mr. Rotenberg, the Director of Dream, as Chief Procurement Officer for RFPs regarding real
estate per Section 18-176.3, City Code.
Protest Allegations
Suntex claims the following, as more specifically detailed in their bid protest, which is enclosed for
your review.
1. RCI Group and Tifon are non -responsive;
2. RCI Group and Tifon are non -responsible; and
3. The Committee improperly scored Proposers.
Response
In this protest, the Chief Procurement Officer's position is filled by the Director of DREAM. See Section
18-176.3, City Code. Per Section 18-104(a)(2), the Chief Procurement Officer shall limit his review to the
arguments alleged in the written protest, and no other facts, grounds, documentation, or evidence shall be
considered. As such, my response shall be limited to the arguments raised in the Protest. See Section 18-
104(a)(2), City Code. As Director of DREAM acting as the Chief Procurement Officer for this RFP, I submit to you
the following response, which provides, that the protest submitted on behalf of Suntex should be denied.
1. Both RC! Group and Tifon are responsive
Suntex alleges that both RCI Group and Tifon should have been deemed non -responsive for failure to
meet requirements set forth in the RFP. The arguments proposed by Suntex, however, are simply incorrect and
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based on misinformation and/or misstatements of fact. It is apparent that Suntex is misapplying the
requirements in order to protest the award.
The first argument made by Suntex is that RCI Group and Tifon failed to make the required parking
contribution because they claim that it should have been provided at the time of proposal submission. Although
the RFP originally required proposers to submit the minimum parking contribution at bid submission, this
requirement was changed by virtue of the very first Addendum to the RFP, which provided that the parking
contribution would be paid upon execution of the Lease. In fact, Suntex is very much aware of this revision as
they also did not provide the parking contribution upon bid submission. If this were truly a basis upon which to
disqualify proposers, Suntex would be non -responsive as well.
Concerning the parking garage contribution, Suntex further alleges that RCI Group should be deemed
non -responsive because it proposes to build, operate, and collect revenues from its own separate garage. As
established in the response to Tifon's Bid Protest, the points and arguments of which are adopted and
incorporated hereto by reference, RCI Group appropriately clarified that the garage would be built and operated
by MPA. Ironically, it is actually Suntex that proposes to "build, operate, and collect the revenues from its own
separate garage."
Suntex then proceeds to argue that both RCI Group and Tifon are non -responsive because they failed
to incorporate "green" and "sustainable design elements" as required by the RFP. First of all, the RFP does not
even use the terms/phrase "green" or "sustainable design elements". The RFP provides certain objectives,
including compatibility with the Virginia Key Master Plan. However, this is merely a stated goal of the RFP. It
does not specifically require the proposers to provide "green" and "sustainable design elements" in their
proposals. It was optional for the proposers to include, and the Committee did consider the compatibility with
the Virginia Key Master Plan in its determination of ranking. Second of all, both RCI Group and Tifon include
elements in their proposal to take into account the requirements and spirit of the Virginia Key Master Plan.
Therefore, even if the RFP had been amended to include this requirement, they would have met the burden and
been deemed responsive.
Further, Suntex attempts to argue that the competing proposers are non -responsive for having made
significant changes to the Lease, which is an ironic argument in light of the numerous revisions to the lease
submitted by Suntex. The RFP was drafted to allow proposers to suggest modifications to the lease except for
those provisions that are non-negotiable, including those mandatory RFP requirements. The fact that numerous
revisions were made does not deem a proposal non -responsive. Proposers were free to propose terms for
negotiation -that -were not specifically indicated as mandatory requirements in the-RFP.-The-City would not be -
required to accept any of those terms, but rather, the City would then negotiate with the highest ranked bidder
and proceed to execute a contract. In addition, the highest ranked bidder, RCI Group, specifically provided that
any revisions that would deem them non -responsive were to be withdrawn.
In addition, Suntex attempts to argue that RCI Group and Tifon are non -responsive for having had past
litigation with the City. However, the RFP was amended to specifically provide that the City would "have the
sole and absolute discretion" to deem a proposer non -responsive for having had past litigation with the City.
This does not mean that proposers will be automatically disqualified, and it also does not mean that Suntex will
have the discretion to determine whether a company is non -responsive for having past litigation. The City
ultimately can make the determination whether those proposer who have had past litigation with the City will
be disqualified.
Finally, Suntex attempts to deem Tifon non -responsive by piggybacking on a letter sent on behalf of RCI
Group on March 22, 2016. It is unnecessary to address these arguments as Tifon is not the winning bidder, nor
is Tifon the second -ranked bidder, and is therefore not the subject of the bid protest. However, the arguments
stated therein to allege Tifon's non -responsiveness are either non -material or go to the weight of certain
evaluation criteria considered by the Committee in its selection. In short, the arguments stated therein would
not deem Tifon non -responsive. Submitted into the public
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2. Both RCI Group and Tifon are responsible
Suntex also contends that RCI Group and Tifon are non -responsible. First, Suntex argues that RCI Group
and Tifon are non -responsible because they fail to meet the required RFP qualifications. However, both
proposers clearly identify the individuals within each proposers' principals, project team, and/or development
team that meet all of the qualifications required in the RFP. Ironically, Suntex is the only proposer that actually
failed to identify a representative with the required restaurant experience; however, the City afforded Suntex
an opportunity to clarify which member of their team had the required experience and Suntex subsequently
identified the same.
The next argument made by Suntex regarding RCI Group's and Tifon's alleged non -responsibility is that
they lack financial ability to perform the RFP requirements. Suntex bases this argument on their analysis that
both RCI Group and Tifon will need to raise significant capital and that such financing is unrealistic. This is a
subjective analysis that was left to the Committee to consider in their ranking of proposals. The fact that they
would require financing is not a failure to meet a minimum RFP requirement.
Suntex then repeats that both RCI Group and Tifon have past litigation with the City, and argues that
this alone renders them non -responsible. However, as provided above, the RFP was amended to specifically
provide that the City would "have the sole and absolute discretion" to deem a proposer non -responsive or non -
responsible if they have had prior litigation with the City. Thus, it is not a mandatory requirement that they
never have had litigation with the City, nor does that fact alone deem them non -responsible without a further
determination by the City. The fact is that there is no pending litigation or pending/unpaid debt involving the
City and any of the proposers. In sophisticated transactions involving business entities who have various
principals within them, the standard is often whether there is any current default in a contract with the public
agency awarding the contract. There is no current or pending default suffered by the City as to any of the
proposers.
Lastly, Suntex yet again incorporates the arguments made on behalf of RCI Group in the correspondence
dated March 22, 2016 to argue that Tifon is non -responsible. The City hereby incorporates the points previously
made in the above section.
3. The Committee's recommendation was supported by logic and necessary facts
The final argument proposed by Suntex is that the Committee improperly scored the Proposers simply
because they believe that they are the better proposer, and that they should have received the highest score.
Suntex argues that based on the fact that RCI Group received a higher score, that the scoring must not have
been supported by logic or necessary facts. The Committee is charged with making the determination of which
of the proposals is in the best interest of the City. The analysis provided by each Committee member is
consistent with and supported by the criteria set forth in the RFP. The Committee's recommendation in favor
of RCI Group cannot be thrown out simply because Suntex believes themselves to be the best proposer. So long
as the Committee's recommendation is supported by logic and fact, it cannot be deemed arbitrary or capricious.
In surnmation, Suntex's arguments do not rise to the degree of showing the Evaluation or the City
Administration's recommendation was arbitrary or capricious or departed from the essential requirements of
law, or violated due process, or was infected by fraud, collusion or undue influence. As such, the Suntex protest
should be denied because the Committee and the City Administration did not act arbitrarily or capriciously.
The general standard for these kinds of matter was stated by one court as follows:
Furthermore, in a bid protest dispute where the petitioner alleges the County abused its discretion and
did not comply with the RFP in evaluating proposals and/or the evaluators misinterpreted the RFP,
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proposal, statute or facts, the reviewing court need not second guess the members of the evaluation
committee to determine whether reasonable persons might reach a contrary result. Scientific Games,
Inc. v. Dittler Bros., Inc., 586 So.2d 1128, 1131 (Fla. 1st DCA 1991). Rather, a "public body has wide
discretion" in the bidding process and "its decision, when based on an honest exercise" of the discretion,
should not be overturned even if reasonable persons might disagree. See Sutron Corp. v. Lake Co. Water
Auth., 870 So.2d 930, 932 (Fla. 5th DCA 2004) (explaining that discretion of public entity to solicit, accept
or reject contract bids should not be interfered with by the courts absent a showing of dishonesty,
illegality, fraud, oppression or misconduct.
See Emerald Correctional Mngmt. v. Bay County Bd. 0f County Com'rs, 955 So. 2d 647 (Fla. 1 DCA 2007).
Conclusion & Recommendation to City Commission
After a review of their protest, it is apparent that the arguments crafted by Suntex fail, and that their
protest must be denied. Suntex's entire argument rests on their opinion and belief that they are the proposal
in the best interest of the City. This argument is not based on any law or any proper justification. The Committee
considered all three proposals and made a logical and reasonable determination based on the information
provided. It was within the Committee's purview to recommend which proposal provided the best result for the
City.
Based on the above, I submit the following recommendation to the City Commission: (1) the City should
deny the bid protest submitted by Suntex; and (2) the City Manager, or his designee, should be allowed to
proceed to negotiate with the top -ranked bidder, RCI Group.
Respectfully,
Daniel Rotenberg, Director
Department of Real Estate and Asset Management
DR/JL
Enclosures
Ex. A — Protest by Suntex
DREAM160032
Subject to Approval 41.
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ARNSTEIN 85 LEHR LLP
Accomplished lawyers who understand your goals.
April-12, 2016
Siibmittedninto the Pali c
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on
City Clerk
zoo E. Las Olas Boulevard o Suite i000
Fort Lauderdale, Florida 333oi
Phone 954.713.7600 • Fax 954.713.77o0
www.arnstein.com
Gary L. Brown
Board Certified in Construction Law
954.713.7615
glbrown@arnstein.com
Via Hand Delivery
Mr. Daniel Rotenberg
Director of Real Estate & Asset Management
City of Miami
444 SW 2nd Avenue, 3rd Floor
Miami, FL 33130
k,\ *
Re: Protest of Recommended Award — Request For Proposals No. 12-14-077 — Lease of
City -Owned Waterfront Property for Marina/Restaurant/Ship's Store Uses
("Project")
Dear Mr. Rotenberg:
I. INTRODUCTION
As you know, this firm represents Virginia Key SMI, LLC a/k/a Suntex Marinas ("SMI" or
"Suntex"), the second ranked proposer, in connection with the above matter. On behalf of SMI,
and in accordance with Article XI, Section 2 of the RFP, and relevant provisions of section 18-
104 of the City of Miami Code ("Code") which are incorporated into the RFP, on April 7, 2016,
SMI filed its Notice of Intent to Protest the recommended award of the Project to Virginia Key
LLC a/k/a RCI Group ("Virginia Key" or "RCI"). In accordance with Section 18-104(a)(2)(c) of
the Code, this protest is being filed timely within five (5) days of the filing of SMI's Notice of
Intent to Protest. Pursuant to Article XI, Section 4(d) of the RFP and Section 18-104(f) of the
Code, enclosed herewith is a cashier's check for SMI's filing fee of $5,000.00.
For the reasons set forth below, the RFP process in this matter was both substantively and
procedurally flawed. The City's application of its own evaluation criteria was arbitrary and
capricious. Both Virginia Key and the third ranked proposer, New Rickenbacker Marina, LLC
a/k/a Tifon Miami ("Rickenbacker" or "Tifon") were non -responsive and non -responsible, and
should have been disqualified, leaving SMI as the only responsive and responsible
Proposer. Even if Virginia Key and Rickenbacker were responsive and responsible (which they
clearly were not), SMI should have received the highest score. Therefore, the Selection
Committee's recommendation of Virginia Key is legally unsustainable. Accordingly, SMI should
CHICAGO SPRINGFIELD MILWAUKEE
FORT LAUDERDALE MIAMI TAMPA WEST PALM BEACH BOCA BATON
Arnstein & Lehr LLP is a member of the International Lawyers Network
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Mr. Daniel Rotenberg
April 12, 2016
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be recommended for award of the Project. Alternatively, the City has the right to reject all
Proposals and re -issue the solicitation!
If. -BACKGROUND
A. Request for Proposals
On June 15, 2016, the City issued Request For Proposals No. 12-14-077 — Lease of City -Owned
Waterfront Property for Marina/Restaurant/Ship's Store Uses ("Project"). The solicitation
consists of the RFP which includes Exhibits A-H, Attachments 1-9, Appendices A-K, as
modified by subsequently issued Addenda 1-30, which are incorporated herein by reference.
As set forth in Article I, Project Opportunity, of the RFP, the City sought a qualified proposer to
"plan, redesign, renovate or redevelop, lease, manage and operate a mixed -use waterfront facility
including, but not limited to, two marinas, a boatyard, dock master's office, ship's store, dry
storage, wetslip docks, and at least one restaurant."
The RFP required a detailed evaluation and selection process. Specifically, City staff was
required to conduct an initial administrative review of proposals for completeness and
compliance with the content requirements of the RFP ("Administrative Review"). Only
proposals that comply with all requirements of the RFP can be deemed responsive. See RFP,
Section ER.
Following the Administrative Review's determination of responsiveness, separate committees
appointed by the City Manager (a Technical Review Committee and Financial Review
Committee, collectively "Review Committees") were required to conduct a technical review and
flaancial review of proposals f r�feasibility related to_planning and_zoning_restrictions, and
financial capabilities, respectively, and provide written comments _ and recommendations of their
findings to a separate selection committee ("Selection Committee")? See RFP, Section II.S.
1 It should be noted that throughout the solicitation, numerous questions were raised by the Proposers and
prospective proposers about perceived or actual zoning improprieties and Master Plan conflicts in the
RFP requirements. See RFP, Addendum 7, p. 12-13; Addendum 8, Response to Questions 1, 5, 6, 7, 8, 9,
11; Addendum 9, Response to Question 4; Addendum 11, Response to Question 4; RFP, Addendum 14,
Response to Question 1; Addendum 17, p. 8-12. See also Zoning Memo and Matrix, Exhibit "A."
Should the City elect to reject all Proposals, prior to issuing a new solicitation, the City should attempt to
minimise or eliminate these zoning issues and Master Plan conflicts.
2 Relevant here, the Selection Committee must be comprised of five (5) individuals that "shall have
experience in real estate, finance renovation projects and/or experience with development projects of this
nature." (emphasis added). The Selection Committee was comprised of the following five (5) individuals
and one (1) alternate:
Pamela Weller, Senior General Manager, Bayside Marketplace
Rolando Tapanes, Director of Planning and Development, Miami Parking Authority
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Thereafter, the Selection Committee was required to evaluate and score all Proposals. See RFP,
Section II.T. The solicitation's stated objective in evaluating each Proposal is to obtain the
Proposal deemed most -advantageous to the City by considering the financial returns -to the City,
the Proposer's experience and management history, the Proposer's and its consultants'
capability, the Proposer's financial ability and qualifications, the overall design of the proposed
Project, and local participation. See RFP, Section IV, Proposal Objectives.3 The corresponding
criteria and scoring requirements used to achieve this objective are set forth in detail in the RFP.4
The Selection Committee's determination must be based solely on the criteria contained in the
RFP and no other factors or criteria may be used in the evaluation. See RFP, Section II.T.
Pursuant to the RFP, the Selection Committee was required to elect a chairperson to prepare a
written recommendation to the City Manager which may approve or reject the recommendation.
See RFP, Section II.U. The ultimate decision rests with the City Commission which may accept
the City's Manager's recommendation, or seek a recommendation directly from the Selection
Committee. See RFP, Section II.V. Alternatively, the RFP grants the City the right to reject any
or all Proposals, and have the solicitation re -issued. See RFP, Section ILW.
Kevin Warthen, Right of Way Agent, Florida Department of Transportation
Francisco Garcia, Director of Planning and Zoning, City of Miami
Daniel Rotenberg, Director of Real Estate and Asset Management, City of Miami
Alternate
Nathalie Goulet, In House Counsel, Flagstone Property Group
Other -than -Ms eller—the--other-Seleetion-Eonamittee-members-had-little-or-no-prior-experience-with----
marinas.
3 Significantly, a Proposer must meet certain minimum threshold qualification standards, and have
minimum qualifications. See RFP, Sections VI.F(12), (13)(b), and (14)(a)-(b), respectively.
4 In accordance with Article IX of the RFP, the City is required to the use the following Evaluation
Criteria and Scoring Values:
Criteria Weighted Value
Overall Project Design/Proposed Renovation and Activities & Projects 25
Proposer's Team Experience, Financial Capacity & Operational History 25
Management & Operational Plan 15
Financial Returns to the City 30
Extent of Local Participation 5
Total 100
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B. Proposals Submitted
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In response to the RFP, on February 1, 2016, three (3) entities submitted Proposals, to wit:
Virginia Key, LLC;
Virginia Key, SMI, LLC; and •
New Rickenbacker Marina, LLC.
See Bid Security List, Exhibit `B".5 As reflected in the comparison matrix attached hereto as
Exhibit "C," when considering the RFP's clearly defined criteria and stated goal of selecting the
Proposal "most advantageous to the City," SMI was by far the most qualified firm whose
Proposal should .have received the highest score. For example, unlike Virginia Key and
Rickenbacker, SMI has an unparalleled and proven track record of designing, building, owning
and operating marinas of similar scope and complexity.6 Further, SMI's financial qualifications
and key financial aspects of its Proposal are far superior to Virginia Key and Rickenbacker.7
Moreover, SMI's proposed design, unlike the others, uses a proven rack system and maximizes
integration of the City's Virginia Key Master Plan for sustainability and "green" building
5 The Proposals of each are incorporated herein by reference. Any and all citations to Proposals
reference .PDF page numbers, unless otherwise indicated.
6 Being 100% committed to marinas as its sole business mission and goal, SMI/Suntex has designed and
built over 300 marinas; currently owns and operates 30 marinas with 8,029 wet slips, 4,257 rack
slips, and 14 restaurants; has built the "greenest" marina in the world; and is the nation's largest and
publicly traded recreational boat and yacht retailer. (See SMI Proposal, pp. 3, 4, 17, 34, 36, 37, A-2) On
the -other -hand; Vir-ginia-Key'RCI bas rojeetions-based-on--a-system-ncvcr builtbcforc; has -built -only 1
wet slip marina; has owned/operated only 5 marinas with 1,285 wet slips, zero rack slips, and only 3
restaurants. (See Virginia Key Proposal, p. 20) Similarly, Rickenbacker/Tifon has never bought or sold
marinas; has never built a marina (wet or dry) in the United States (its primary experience is in residential
and commercial projects); and only operates, but does not own, an existing marina with 376 wet slips,
300 rack slips, and only 1 restaurant. (See Rickenbacker Proposal, p. 4)
SMI/Suntex has over $200 Million cash on hand (See SMI Proposal, p. ii), while Virginia Key/RCI and
Rickenbacker/Tifton have to raise capital (See Rickenbacker Proposal generally, Reference Letters in --
Addendums referencing bank accounts in good standing). Significantly, Virginia Key/RCI has to secure
75% financing. (See Virginia Key Proposal, p. 34) Further, SMI/Suntex has proposed payment of rent to
the City from day one and committed $3.45 Million to the City for the MPA-owned parking garage (in
addition to building a second garage at no cost to the City). (See SMI Proposal Proposed List of Capital
Improvements to Property) On the other hand, both Virginia Key/RCI and Rickenbacker/Tifton have
proposed significant rent deferrals of five (5) years and two (2) years, respectively (See Virginia Key
Proposal, p 34; Rickenbacker Proposal p. 40) and have not contributed any funds to the MPA-owned
garage as required by the RFP (See Tifon/Miami Proposal, Lease Base Rent, Section 4.1.1; Rickenbacker
Proposal p. 2).
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concepts to provide world class LEED-certified facilities.8 Notably, SMI is committed to small
and minority -owned participation in the Project and involvement in the local community, unlike
Virginia Key and Rickenbacker'9 Perhaps most importantly, as a true team player, SMI has never
initiated litigation with the City, or any other governmental agency or landlord for that matter. In
contrast, both Virginia Key and Rickenbacker (through their respective related principals and/or
entities) have had major legal battles with the City over substantial monies owed to the City.10
When considering the long-term lease the City will have with the successful Proposer and the
anticipated multi -million dollar revenue stream it will generate for the City, SMI presents as a
much sounder business partner than the other Proposers who have demonstrated their
unwillingness to meet their contractual obligations to the City.
C. City's Review and Evaluation
Following an internal Administrative Review, all Proposals were deemed responsive. On
February 29, 2016, the Review Committees submitted their findings to the Selection Committee.
See Interoffice Memo, Exhibit "E". On March 16, 2016, the Selection Committee met to evaluate
8 SMI/Suntex's design uses "green" building components including the roof, walls, and solar panels.
Further, SMI's design incorporates a nationally proven rack system. (See SMI Proposal, pp. 6,11, 14, A-
6) In contrast, the design concepts for both Virginia Key/RCI and Rickenbacker/Tifton call for use of a
large glass building with no "green" elements or renewable energy sources. See Virginia Key Proposal,
p. 42, See Project Plan, generally. Further, Virginia Key/RCI proposes to use an automated rack system
never built anywhere in the world before, while Rickenbacker/Tifton has previously built only one
automated rack system before outside of the United States (in Argentina). See Virginia Key Proposal, pp.
252, 359; See also Virginia Key Proposal, Project Plan, Boat Storage, p. 8).
9 SMI/Suntex has committed to a goal of 30% participation, and is heavily involved in community
programs--and-organizations such -as -the Buoniconti -Fund /The-Miam4-Preject-to Cure -Paralysis; the
Veterans Program, MAST Academy, University of Miami, and Shake -A -Leg. See SMI Proposal, p. 8)
Virginia Key/RCI and Rickenbacker/Tifton, on the other hand, have not committed to any minority or
small business participation and have no discernable community involvement. See Virginia Key Proposal
and Rickenbacker Proposal, respectively).
1° For instance, Virginia Key's Robert Christoph (Bayshore Landing LLC) agreed to pay the City -
$150,000 in October 2015 after a City audit alleged the company owed $386,000 in unpaid "additional
rent"-- from - over- a decade operating Bayshore Landing, And Rickenbacker's Aabad Melwani-
(Rickenbacker -
Marina Inc.) agreed to pay $750,000 to the City in order to resolve a lawsuit with the City
that alleged he defaulted under his lease and owed $2 million toward a parking garage. See Miami Herald
Article, Exhibit "D". These matters, standing alone, were sufficient justification to disqualify both
Proposers. See REP, Section II.N.(v.) as modifed by Addendum 3 ("...the City shall have the sole and
absolute discretion to deem any proposal non-responsive/non-responsible if the proposing entity or any of
its members...) have any past, present or on -going litigation with the City..."). Beyond constituting a
ground for disqualification, their propensity to litigate with the City is a negative factor that militates
heavily against them and should not be overlooked, particularly on a project with the magnitude and
importance as this one is to the City and its residents.
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the criteria and scoring values assigned and to determine a rank order. On April 4, 2016, the City
published its ranking and recommended award. See Interoffice Memo, Exhibit "F". As set forth
therein, the Selection Committee ranked the Proposals as follows:
1. Virginia Key, LLC (433 pts)
2. Virginia Key SMI, LLC (426 pts)
3. New Rickenbacker Marina, LLC (418 pts)
M. FACTUAL AND LEGAL GROUNDS FOR PROTEST
This protest is filed in accordance with the RFP, incorporated provisions of Section 18-104 of the
Code, and applicable Florida law. As an initial matter, the City's Administrative Review was
flawed, as the Proposals from Virginia Key and Rickenbacker were non -responsive. Further,
neither Virginia Key nor Rickenbacker was a responsible Proposer. As a result, the Selection
Committee should not have scored and ranked either of them. Even if it was legally permissible
to consider and score their Proposals, the Selection Committee's scoring —which resulted in a
higher score for Virginia Key —was arbitrary and capricious, and reflects a disregard of the
requirements of the RFP. Accordingly, the Selection Committee's recommended award should
be rescinded. Based upon an objective application of the requirements of the RFP and evaluation
of the Proposals, it is clear that SMI was the only responsive and responsible Proposer, or
should have otherwise received the highest score, resulting in a recommendation for award.
A. Virginia Key and Rickenbacker Are Non -Responsive
All Proposers were required to present a definitive Proposal responding to all requirements of the
RFP. See RFP, p. 1. See also RFP, Section V ("The Proposer must meet all required project
components listed herein.")(emphasis added); RFP, Section VI.E ("Submissions received in
response to the s a meet _ requirements spec e rvi t e u missions deficient
in providing the required information shall be automatically deemed non -responsive and
disqualified, and shall be ineligible for further consideration.") (emphasis added).11
In order to confirm the completeness and compliance of the Proposals with all content
requirements, the City was required to conduct an initial Administrative Review, and only those
Proposals that complied with all requirements of the RFP should have been deemed responsive.
See RFP, Section II.R. See also RFP, Section II.T ("...the Selection Committee shall evaluate
each proposal deemed responsive."); Section II.0 ("City staff will reject any proposal deemed to
be non -responsive..."). A non -responsive Proposal is defined as "a proposal that does not
conform in all material respects to this RFP." See RFP, Section ll.W (emphasis added). Further,
the Selection Committee is required to evaluate Proposals based upon the criteria contained in
the RFP. See RFP, Section II.T.
11 The Code similarly provides that a responsive bidder, proposer, offeror, or respondent is "a business
which has submitted a bid, offer, proposal, quotation or response which conforms in all material respects
to the solicitation." See Section 18-73 (emphasis added).
ARNSTEIN & LEHR LLP
Mr. Daniel Rotenberg
April 12, 2016
Page 7
Submitted into the public c),
record fo ite
on 841L► . City Clerk
Virginia Key and Rickenbacker are non -responsive for the following reasons, including but not
limited to:
1) Both failed to make the required parking garage contribution; 2) Both failed to incorporate sustainable design elements required by the RFP;
3) Both made significant changes to the proposed Lease; and
4) Both have past litigation with the City of Miami.
Each of these grounds is discussed in turn below.
1. Failure to Make Parking Garage Contribution
One of the critical components of the RFP is a Proposer's contribution of at least $3.45 Million
to a parking trust fund for a parking garage to be built and operated by the Miami Parking
Authority (MPA), with funds being tendered at the time of the Proposal submission. See RFP,
Section I, p.8. See also RFP, Section III.C. ("However a total minimum of 230 parking spaces
shall be required (for a total minimum parking contribution of $3,450.000.00 to be paid by
cashier's check or money order).... This parking garage contribution will be deposited into an
escrow account whose designated use shall be applied to the Parking Trust Fund.")(internal
parenthesis in original)(emphasis added).
Neither Virginia Key nor Rickenbacker made the required contribution, And Virginia Key
proposed to build, operate, and collect the revenues from its own separate garage12 which
directly conflicts with the RFP's explicit requirement that the parking garage contemplated by
the RFP be "a municipal parking garage operated, directed and maintained by the MPA." See
RFP, Section I, p.8 (emphasis added). See also RFP, Section III.C. ("...the City believes it is in
the best interest of the Project and the public to...utilize a new proposed parking garage facility,
which the MPA shall build, operate, and maintain.")(emphasis added). The City could not have
made this requirement clearer.13 SMI also adopts and incorporates by reference the factual and
legal arguments concerning Virginia Key's non -responsiveness relating to the garage, as set in
Richard A. Perez's letter of March 24, 2016. See Exhibit "G." The failure of Virginia Key and
12 See Virginia Key Proposal, Lease Section 4.2.
13 See Addendum 9, Response to Question 3 ("The City and MPA shall retain total discretion over the
location and design of the parking garage, which the MPA shall build, operate, and maintain, and for
which the Selected Proposer shall be required to contribute a minimum amount as required by the terms
of this RFP.")(emphasis added); See also Addendum 26, Response to Question 3 ("The parking garage is
currently anticipated to be built on the cut out parcel outside of the RFP Lease Area because it shall be
built, operated and maintained by the MPA The Selected Proposer shall not construct, operate, or
maintain the parking garage. Under the City Charter this is a task of the MPA.")(emphasis added).
ARNSTEIN & LEHR LLP
Mr. Daniel Rotenberg
April 12, 2016
Page 8
Submitted into the public (
record f r ite (s)
on 6�iz�'� h . City Cie;
Rickenbacker to provide the required parking garage contribution renders their Proposals non-
responsive.
2. Failure to Incorporate. Sustainable Design Elements
The Proposals of Virginia Key and Rickenbacker should also have been deemed non -responsive
for ignoring the sustainable design elements contemplated and required by the RFP. As stated
above, the design concepts for both Proposals call for use of a large glass building with no
"green" elements or renewable energy sources, unlike SMI's proposed design which uses
"green" building components including the roof, walls, and solar panels.
3. Significant Changes to Lease
As set forth in the attached Lease Comparison Matrix, Exhibit "H", Virginia Key and
Rickenbacker made significant changes to the proposed Lease14 which is not permitted- by the
RFP. See RFP, Article VIII ("In order to be considered for the award of this RFP, the successful
Proposer must accept the Lease attached herewith as Attachment 9. Certain provisions of the
Lease shall remain non-negotiable, including, but not limited to, any and all items required by
this RFP, as well as those provisions relating to indemnification, hold harmless, insurance, and
guarantees.")(emphasis added). These changes present material deviations to the Lease proposed
by City of Miami making both Proposers non -responsive.
4. Past Litigation with City
As discussed above, both Virginia Key and Rickenbacker have been involved in litigation with
the City which is a ground for non -responsiveness and disqualification: See RFP, Section
II.N.(v.) as modified by Addendum 3.
Rickenbacker is- also-noir-responsive-for-the-reasons-sei: forth n-Cdr erN MMcDowlPs-letter--of
March 22, 2016, which SMI adopts and incorporates by reference.15 See Exhibit "I."
14 For example, but not by way of limitation, the following changes were made:
Key Biscayne modified Sections 1.3.19, 4.7, 4.8, 5.3, and 5.4, Article 8, Sections 9.1, and 13.2/14.2,
Article 15, and Section 16.1, which relate to significant or non-negotiable aspects of the Lease such as
gross revenue definition, audit rights, payment and performance bonds, removal of improvements,
insurance and indemnity obligations, right of termination, special assessments, and default.
Rickenbacker modified Sections 4.1.1, 4.2, and 16.1 which relate to significant or non-negotiable aspects
of the Lease such as minimum base rent, parking trust fund contribution, and default.
15 Significantly, Rickenbacker's Proposal:
- violates the 50' City Charter setback requirements for buildings;
- violates Flood Zone requirements, as shown on its Project renderings;
- lacks detailed, accurate and complete architectural plans and elevations;
ARNSTEIN 86 LEHR -LLP
Mr. Daniel Rotenberg
April 12, 2016
Page 9
B. Virginia Key and Rickenbacker Are Non -Responsible
Submitted into the public ( 1
record • 'te i s)
on :7iAAi{. City Clerk
The RFP sets forth threshold qualification standards, and provides that "[e]ach Proposer shall
meet... (the following) minimum requirements":
Either of member of the Project Team and the Proposer (the latter as applicable)
or its staff "must have played a leading role with principal responsibility for the
design of a project(s) of similar size, complexity and constraints as the facilities
and uses proposed."
See RFP, Section VI.F.(12)(b)(emphasis added).
Any of the principals or Project Team Members must have successfully
developed...at least one project of similar size, complexity and with similar uses
and constraints.
See RFP, Section VI.F.(12)(c)(emphasis added).
The RFP also provides that:
The Proposer must demonstrate that it has the applicable number of years of
experience in the management and successful operation of marina, restaurant and
any ancillary facilities of equal size and complexity as detailed in the threshold
standards in Section VI(F)(12) of this RFP...
The Management/Operations Team as a whole must have the requisite expertise,
financial and management capability to develop a marina/restaurant destination
facility of similar scope and complexity as identified in the project objectives.
See RFP, Section VI.F.(13)(b).
The RFP also provides that the "Proposer and/or its consultants shall at a minimum demonstrate
professional expertise in (the following) disciplines":
(a) Architect: The Proposer shall have at least one (1) architect...(which) shall
have substantial experience in the design and renovation of the specified Required
Uses.
contains conflicts in the actual number of slips shown in the plans (i.e., 603) versus the number of
slips listed in the narrative of its Proposal and in its financial projections (i.e., 840); and
provides three (3) different numbers for the total parking count (i.e., 174 ground parking spaces
and 1,662 spaces in the parking garage per the plans versus a total of 840 spaces per the
narrative).
ARNSTEIN & LEHR LLP
Mr. Daniel Rotenberg
April 12, 2016
Page 10
Submitted into the public,
record fo jte( +
on City Clerk
(b) Landscape Architect: The Proposer _shall have at least one (1) landscape
architect... (which) shall have substantial experience in the design and renovation
of the specified Required Uses.
(d) General Contractor and/or Construction Manager: The Proposer shall
have at a minimum one (1) General Contractor...(which) shall have substantial
experience in managing and performing construction of facilities of similar type
and scope the Required Uses and ancillary facilities described in the proposal.
See RFP, Section VI.F.(14)(emphasis added).
A non -responsible Proposer is "one that does not have the capability in any or all respects
material respects to fully perform the requirements set forth in the proposal or Lease or that does
not have the relevant experience, integrity and reliability which assure good faith performance."
See RFP, Section ILW (emphasis added).16 The RFP mandates that the City reject a Proposer
that is non -responsible. See RFP, Section Il.W ("City staff will reject any proposal deemed to
be ...not responsible. ") (emphasis added).
Virginia Key and Rickenbacker are non -responsible for three primary reasons, including but not
limited to:
1) Both lack the necessary qualifications and experience with prior projects of similar
scope and complexity;
2) Both lack the financial ability to perform the requirements of the RFP; and
3)Both .have past litigation with the City of IVEF-rni.
Each of these grounds is discussed in turn below.
16 The Code similarly provides that a responsible bidder, proposer, offeror, or respondent means a
business which has submitted a bid, offer, proposal, quotation or response, which has the capability, as
determined by the city, in all respects to perform fully the contract requirements, and the integrity and
reliability of which give reasonable assurance of good faith and performance. See Section 18-73
(emphasis added). The Code also lists several factors for determining non -responsibility, as follows:
(1) Availability of appropriate financial, material, equipment, facility, and personnel resources
and expertise, or the ability to obtain them, to meet all contractual requirements;
(2) A satisfactory record of performance;
(3) A satisfactory record of integrity;
See Section 18-95 (emphasis added).
ARNSTEIN & LEHR LLP
Mr. Daniel Rotenberg
April 12, 2016
Page 11
Submitted into the public
reco
on
City Clerk
1. LackofQualifications and Experience
As stated above, Virginia Key's Proposal is based on a system never built before, and it has built
only-1 wet slip marina -in the -past. -Further, -it has owned/operatedonly-5-marinas-with 1,285-
wet slips, zero rack slips, and only 3 restaurants. (See Virginia Key Proposal, p. 4) Having its
primary experience in residential and commercial projects, Rickenbacker has similarly never
bought or sold marinas, and has never built a marina in the United States. Further, the single
marina that it has ever operated contains 376 wet slips, 300 rack slips, and only 1 restaurant.
(See Rickenbacker Proposal, p. 34) These Proposers' qualifications and past experience (or lack
thereof) in designing, developing, building, owning, and operating marinas falls far short of the
RFP's minimum requirements. Clearly, neither Virginia Key nor Rickenbacker has prior
"substantial" experience with similar projects, as required.. For this reason, they should be
deemed non -responsible, as neither has "the relevant experience, integrity and reliability" or
"satisfactory record of performance" which "assure good faith performance" of the RFP
requirements.
2. Lack of Financial Ability
Even if, based on past experience, Virginia Key and Rickenbacker could be considered
minimally qualified, both Proposers lack the financial ability to successfully complete the
Project. As stated, both must raise sigpuificant capital (unlike SMI which has 100% cash on
hand), and Virginia Key proposes to finance 75 percent of the Project costs. Virginia Key's
expectation to obtain this level of financing on a marina project is iinrealistic and evidences its
apparent misunderstanding of the banking market. Virginia Key has presented no guarantee that
it will be able to obtain the necessary financing. Accordingly, neither Proposer reasonably has
ppropriat-e-frnanc- al=resourees; -or=the-abili to -obtain --them to rieet all contractual
requirements" and is therefore non -responsible.
3. Past Litigation with City
As discussed above, both Virginia Key and Rickenbacker have been involved in litigation with
the City which makes them non -responsible.
Rickenbacker is also non -responsible forthe reasons set forth in Carter N. McDowell's letter of
March 22, 2016, which SMI adopts and incorporates by reference.17 See Exhibit "I."
17
Significantly, Rickenbacker's Proposal provides:
an unrealistic two-year timeframe for the design, permitting, and complete construction of its
entire project;
substantial rental projections for second and third level retail uses at unrealistic rental rates and
projected that those spaces would account for as much as 25% of the percentage rent it would pay
the City; and
ARNSTEIN & LEHR LLP
Mr. Daniel Rotenberg
April 12, 2016
Page 12
Submitted into the public,.. 11
record 'grite)
on r 1 1.1 1 1 1, City Clerk
The Selection Committee's consideration of Virginia Key and Rickenbacker, despite their clear
lack of proven experience and financial responsibility, as defined by the RFP and Code, as well
as their litigation history with the City, constitutes a material deviation and irregularity which is
prohibited by Florida law.. While Florida courts have held -hat a public agency may waive minor
technicalities, rninirrum responsibility criteria as defined by the RFP are not minor, and go to the
heart of each firm's ability to provide the services pursuant to the RFP. The City may not
disregard the -terms and conditions of the RFP and rank and/or award a contract to a non -
responsible Proposer. See City of Sweetwater v. Solo Construction Corporation, 823 So. 2d 798
(Fla. 3d DCA 2002); Emerald Correctional Management v. Bay Cnty. Bd. of Cnly.
Commissioners, 955 So. 2d 647 (Fla. lst DCA 2007); Harry Pepper & Associates, Inc. v. City of
Cape Coral, 352 So. 2d 1190 (Fla. 2d DCA 1977).
A decision to award the contract to Virginia Key (or Rickenbacker) would not be considered "an
honest exercise of (the City's) discretion." Liberty County v. Baxter's Asphalt & Concrete, Inc.,
421 So. 2d 505, 507 (Fla. 1982). To the contrary, it would arbitrary and capricious, based upon
an unlawful disregard of the RFP requirements. See Marriot Corp. Metro Dade Cnty, 383 So. 2d
662, 665 (Fla. 3d DCA 1980)("the public authority may not arbitrarily and capriciously
discriminate between bidders, or make the award on the basis of personal preferences"), quoting
Hotel China & Glassware Co. v. Board of Public Instruction, 130 So. 2d 78, 81 (Fla. lst DCA
1961).18 While the City, as -a public authority, has wide discretion in awarding contracts, it must
act in a reasonable manner See City of Sweetwater v. Solo Const. Corp., 823 So.2d 798 (Fla. 3rd
DCA 2002). To proceed otherwise would be toundermine the public interests of using the
competitive bidding process "to secure fair competition on equal terms to all bidders," Liberty
County, 421 So. 2d at 507, and to remove any impropriety, or the appearance of impropriety, in
the award of public contracts.
G - he-SeIeetio mi eeee Improperly-Seared-the-Preposer
As set forth above, Article IX of the RFP sets forth specific evaluation criteria and scoring
values. Each Proposer may obtain a total score of 100 points based on the specific criteria.
As reflected by the score sheets and tabulations (See Exhibit "J"), the Selection Committee failed
to properly and fairly allocate points to each Proposer. Inexplicably, four of the five Selection
Committee members scored Virginia Key higher than SMI even though: a) SMI had vastly
greater qualifications, experience, and operational history with marinas; b) SMI's financial -
profile was far superior in light of its ability to complete the Project without any financing, its
that its capital budget is approximately $27,000,000 less than that of SMI and approximately
$47,000,000 less than that of Virginia Key, despite the fact that the development programs are
similar in size and scope, calling into serious question the validity of its capital budget.
18 As stated in Hadi v. Liberty Behavioral Health Corp., 927 So. 2d 34, 38 (Fla. lst DCA 2006), "[a]n
action is 'arbitrary if it is not supported by logic or the necessary facts,' and 'capricious if it is adopted
without thought or reason or is irrational.'
.
ARNSTEIN & LEHR LLP
Mr. Daniel Rotenberg
April 12, 2016
Page13
Submitted into the public
recorc fy ri r( )
City Clerk
proposed payment of rent to the City upon Lease commencement (asopposedto rent deferment),
and its ability and commitment to make the required parking garage contribution in addition to
building a second garage; and c) SMI's design was the only one that consistently utilized
required sustainability elemenfs.19 This is a clear indication that -the scoring was "not snppOtted
by logic or the necessary facts" or was assigned "without thought or reason". Hadi, 927 So. 2d
at 38. As such, the Selection Committee's actions were arbitrary, capricious, and inconsistent
with the -requirements of the RFP.-- — -
IV. RELIEF SOUGHT
Based upon the forgoing, neither Virginia Key nor Rickenbacker should have been evaluated.
As referenced above, consideration of the. Virginia Key and Rickenbacker Proposals, which were
both non -responsive and non -responsible, was a material deviation and irregularity which is
prohibited by Florida law. Moreover, an objective evaluation of SMI's qualifications, experience
financials, and proposed design, as compared to the other Proposers, would result in a
recommended award to SMI. Thus, the April 4, 2016 recommended award to Virginia Key is
erroneous and must be rescinded. While SMI recognizes that the City has invested a substantial
amount of time and resources in preparation of the RFP and solicitation of the Proposals, it
nonetheless is compelled to submit this protest for the reasons stated.
V. PERTINENT DOCUMENTS
In accordance with Article XI, Section 2 of the RFP and Section 18-104(a)(2)(c) of the Code,
included herewith are the following pertinent documents:
Exhibit "A" — Zoning Memo and Matrix
Exhibit "B" - Bid Security List
Exhibit "C" - Proposal Comparison Matrix
Exhibit "D" - Miami Herald Article
Exhibit "E" - Interoffice Memo from Review Committees to Selection Committee dated
February 29, 2016 — —
19 Based upon an objective and proper allocation, SMI's total would have been 23 points higher for the
first two categories (Overall Project Design/Proposed Renovation and Activities & Project; and
Proposer's Team Experience, Financial Capacity & Operational History) than Virginia Key (i.e., 4 points
for Mr. Rotenberg, 9 points for Mr. Garcia, 6 points for Mr. Warthen, and 4 points for Mr. Tapanaes).
Given there was only a 7 point differential in the final scoring, SMI should have been ranked the
highest.
ARNSTEIN & LEHR LLP
Mr. Daniel Rotenberg
April 12, 2016
Page 14
Submitted into the public(
rlcordfq uis +o
City Clerk
Exhibit "F" - Interoffice Memo from -Selection Committee to City Manager dated March 16,
2016
Exhibit "G" - -Letter from Richard KIse e2 dated Mauch 24,-2016
Exhibit "H"-- Lease Comparison Matrix -
Exhibit "I" - Letter from Carter N. McDowell dated March 22, 2016
Exhibit "J" - Selection Committee Score Sheets and Tabulations
Additionally, SMI incorporates by reference any and all documents in the City's file for this
solicitation, including but not limited to the RFP (including all Exhibits, Attachments,
Appendices and Addenda thereto), Proposals, memoranda and commnnications set forth therein.
VI. CONCLUSION
For the reasons set forth herein and applicable Florida law, SMI protests the recommended
award to Virginia Key and respectfully requests that SMI be recommended for award of the
Project, as required by the RFP. Alternatively, the City has the right to reject all Proposals be
rejected and new solicitation issued.
Respectfully submitted,
L. Bro
Miguel A. Diaz de la Portilla
GLB/mt
Enclosures
cc: Daniel Alfonso, City Manager (via email)
Rafael Suarez -Rivas, Assistant City Attorney (via email)
Todd Hannon, City Clerk (via email)
Aldo Bustamante, Assistant Director - Real Estate and Asset Management (via email)
Jason Spalding, CBRE (via email)
Virginia Key SMI, LLC (via email)
Submitted into the Public(
record fo ite s) I
on City Clerk
DANIEL ROTENBERG, DIRECTOR OF REAL ESTATE & ASSETIVIANAGEMENT
IN RE: THE PROTEST OF THE
MARCH 16, 2016 MANAGER'S
RECOMMENDATION OF AWARD OF
VIRGINIA KEY MARINA REQUEST _
FOR.PROPOSALS NO. 1244-077
VIRGINIA KEY SMI, •LLC,
(SUNTEX)
Petitioner,
vS,
CITY OF MILVv11, a political
subdivision of the State of Florida,
Respondent,
and
VIRGINIA KEY, I:LC,
(RCI),
Intrvenor.
VIRGINIA KEY, LLC'S RESPONSE TO VIRGINIA KEY SMI, LLC'S
PROTEST -OF -RECOMMENDED AWARD
Virginia Key, LLC, also referred to as RCI (-RC1"), hereby responds in 'Opposition to
petitioner Virginia Key SMI, LLC d/b/a Suntex Marinas' ("Suntex") Protest of Recommended
Award relating to 'Virginia Key Marina Request for Proposals 12-14-077 ("RFP") that was
issued by the City of Miami (the "City"), and states the•folloWing:
BRIEF SUMMARY
Suntex has never developed or built arty marina facilities in Florida. Sut ex's primary
business is acquiring existing previously -developed propert les. Suntex has never developed or
built any marina fheilides requiring Mt pH -ghee with City of Miami, Miaini-Dade County or
MIML 4961428.10 74183146889
ZEN SUMBER-0 BAENA PFUCE & .AXELROP LIP
1450 Bead AvenEto, Sifte 23311: FL 33131-3456
Submitted into the public c n
record o ite . I
on City Clerk
Florida laws and regulatory schemes and in particular the Biscayne Bay Aquatic Preserve.
Suntex's Percentage Rent proposal to the City is in four (4) different places in its response -to
the REP and ALL four (4) are different amounts! Suntex's proposed parking garage would
violate the City's height restrictions, In one place in its proposal, Suntex says that it will
provide 751 parking spaces and in another only ISO parking spaces, in one place in its
proposal, Suntex promises to develop 6000:41: :ofeommercial,space; pod hi &other .place4
Snotex lowers its promise to 17,500 sq: ft. of commercial *tee> Yet, its toVer letter -8ay--
241,500 sq. ft; and its frost projections say the commercial space totals 240,500 sq.
Assuming Suntex could develop its plan -and -its financial prof were, accurate, RCI
alit pay .the City $6. rttialot more than &luck, Yet, Suntex questiont it failure t convince the
Selection Committee -pod the Manageilo award the Virginia Key Marina tease to
Suntex eg bid :pit-tett is filled with all or the custornaty„ and often baseless, complaints
of a disappointed bidder. Suntekeven made up some facts to try to!support its attacks.
SUntex.demands.that the City award Suntex the Virginia -Key Marina lease for a project
withocilottiereialdevelopinent the.size of 'Which neither Suntex nor the City knows With
,.patking-4bat-rnay- or-rnay not:twain -sufficient-space,--and ard.rentarfalffi :to the City or
attiourit thittit-talytines guess, but a. rental rate that is at best $67:milliottlessi*UL
Although: it is ottylotts why the Selection Committee and the City Manger -did not
recommend.Suntex for the await!, we have explained moretully below that:
1. Suntex's baseless attacks are surely not grOunds to, award :the Virgiola Key
Marina lease to Suntex.
2. Suntex's finish behind Clkwas well founded and legally sustainable.
3. The Selection Committee and the City Manager Recommendation must be
adopted and approved.
MIAMI 4963428.1674183146889
2
BtLzIN SUMBERG BAENA pRicE 8 AXELROD LLF
14508640 Aviulo, Suite 2300, mibmi. FL 33131-3456
Submitted into the public
recordfir ite (s) k
on ttiiii 11 City Clerk
I. FACTS
1. On June 15, 2015, the City issued Request for Proposals No, 12-14,077- Lease of
City -Owned Waterfront Property for MarinaiRestaurantiShip's Store Uses.
2. The. RFP required a detailed evaluation and selection process. Suntex did not
protest the RFP, its specifications, its evaluation criteria, nor its stipulated evaluation procesS.
Therefore, Suntex waived arty;tight to do SD JIM Presumably„ Suntex was okay with the
p ss; they just don't like the outcome.
... Proposals were submitted by three propogers: C1, Suntex, and New
RiekenbaciteF Miami, LLC dibia Tifon Miami ("Tifon"),
4. RCI is a responsible proposer that stibinitted a timely and fully responsive
proposal to the RFP. RCI submitted a 'complete and detailed proposal with all the required forms
and drawings, containing -all the information required by the RFP.
S. The City Manager appointed members of a Technical Review Committee and a
Financial Review Committee to review the proposals. Both provided written comments and
recommendations of their findingsio_the Selection Committee.
6. The Selection Committee invited all three proposers to participate in oral
presentations. Then, the Selection Committee evaluated and scored all three proposers in
accordance with the RFP, City regulations, and Florida law.
7, The Selection Cotnrnittee determined that the RCI plan and proposal offered the
City the :best overall project design, the best 'experience. The best financial capacity and
operational history, the best management and operational :plan, the best financial returns to the
City, and the best local participation. Suntex -1,-‘as ranked number 2 by the Selection Committee;
MIAMI 496342 .10 74183/46889
BIL2IN SUMBERG BAENA PRICE & AXELROD LIP
1450 Bricked Avanue, Suite 2300, Miami, FL 33131-3456
Submitted into the publi
record for itern(q) cSVA
on () I IL I 1 t . City Clerk
Tifori was ranked number 3. Thus, Re' was recommended for award. by the Selection
Coinmittee and the City Manager.
8. Following •the issuance of the Manager's Recommendation, Suntex filed a bid
protest, raising for the first time digit regarding the.RFP evaluation process that was outlined in
the RFP, attacking RCPs and Tifon's proposals, and attacking the Selection Committee's scores.
11. STANDING
9. To file a bid ,protest that 'the City can cOnsider, Florida law requires Sint* to
have legal standing, not just be a complaining disappointed proposer disgruntled about the
outcome. Freston Carroll Co Inc v. Florida Keys Aqueduct Auth., 400 So. 2d 524 (FIa. 3d
DCA 1984 Suntegmust ptoVide that its proposal is legally responsive to the RFP requirements,
•See .afro Rimer v. Florida, Case NO, 954/290BID MOM May 5, 1995) (explaining that in
order to have standing in a bid protest action, the /AM):thaV6 submitted a responsive bid).
Stintex .must prove that. its proposal does not suffer the same infirmities that it claims RCFs
proposal sufkrs. Jr/Pip.Inc,Dept of Health and Rehab. Servs,, 606 So. 2d 380 (Fla. 3d
DCA 1992) ra party protestingnn award to the low bidder must be prepared to Shim fiat only
_ that the tow hid Was deficient, ha must also_show that -the protestoris- own bid -does not suffer- — -- -
from the same defielency'l Surttex triuSt provide that it has not waived any of its newly asserted
Charges. Suntex can prove NONE a this, As such, Sunte lacks legal Standing to protest an
award to RI. Florida law is clear that Suntex's protest must be dismissed.
10. Rowe -vet- Florida law is equally clear that .RCI has legal standing to intervene in
Suntex' s attacks on the City and the RP. Po As the recommended award recipient, RI is a party
interested in the outanne Of this bid protest proceeding and has standing to-thalltftge Sanfoes
protest. See RCS Peal:scni DeP't ofEduc., Case No. 044976BID, 2005 In 310776; at
MA1\4149634410 14103146889 4
BILZIN SUMBERO BAENA PR1C & 'AXELROD LIP
1450 Britkett AVeititie, Suite 230Q, Mien; FL am 31-3456
Submitted into the public(' r\
recor figr m(s) \DY 4 1
on 111 I City Clerk
86 (Fla, DOAH Feb. 8, 2005) (holding that first -ranked bidder had standing to intervene),
SLINTEX'S PROPOSAL IS INCOMPREHENSIBLE
AS TO AS TO SCOPE AND RENTAL PAYMENTS
11. Suntex's proposal contains some very material inconsistencies that make •its
financial proposal and the -proposed •scope of its project incomprehensible and therefore
ineligible to be selected for an award,
12. For instance, Suntex proposes four (4) different Percentage Rent payments,
a, On page A-19 of •its proposal, in its summary form, Suntex proposes a
Percentage Rent of S829,086 a dollar amount, not a percentage,
VIM PROPOSED .RENT (BASE RENT AND PERCENTAGE RENT OF GROSS
REVENITS).
PROPOSED BASE RENT:
PERCENTAGE RENT:
056,ixt
b, On A-69, Suntex proposes (via a lease markup) a Percentage Rent of:
• Three percent (3%) of gross revenues far the restaurant if operated
directly by the. Lessee, or other negotiated percentage of the Lessee's
income _received from a Sub -lessee or assignee restaurant as set forth
in the applicable sublease or assignment, if the restaurant is operated
by a third party;
• Six percent (6%) for the marina operation (non -fuel);
• Five percent -(5%)- Ori-grosSftiel profits (gross .fuel profits defined as
gross fuel sale price per gallon minus cost of delivered fuel per
gallon); and
• Three percent (3%) for the ship's store or any other marine related
sales other than those described above.
•MIAMI 4963428.10 74183/46889 5
BiLZIN SUMBERG BAENA PRICE & AXELROD LIP
1450 Beckett Avenuii suite 2300. Miami, FL 33131-3456
Submitted into the public sc)
record ite s)
' I
on 1 t 1, 11 b City Clerk
The Pergentaze Relit shall be equal to pesceqn ''A;) dffhe
,z\nntincdpetcentazesof Gros S Revenues of the Lessee for any preceding Lease l'zt:‘.
PERCENTAGE RENT FL1LLRE '1:21ECT IDN-EITI-LER "NATIT22_
'n-YeIts and 4:ha.ilnot.exteed:thetilititnnstit hniir et forth
itt the RFP and. recited
. Three nercent (3°.)oftrroSs reVenue65t. the irerautan if®ratd directlt by
the Le,r•,see,:at othetnegotiated pett entaite oithe Lessee's inconte- rectived 'from
a Sztb-lesseiznee- rtsbutant a t forth in -tile itOPliciible.:_sAibleae or
aiganierit. irthe ref.,taurani iov€'s io,d 'by a riaid-na/Vv. 1-. - - -
Srfor the niairfa
- Five oerCent-(5%)oifrt&,•;-,i Lel ofit 1 vrofin .defitted -sross ntel
sale otite ner gallon min -It:, cost of deliveiedTher net 2,..allonIL
Three nercent (3441-for the shins -iore oraffitothecnttitne -related 'sales other
than those itlei-ortibed above
c. On page 2a of its ptoposal, in the Financing Plan, Suntex lists a different
Set of rent percentages that will include the folloWing, without mention of
the restaurant revenue:
• 6% of all marina relatedistoraee revenue
6 5% of all base rent lease income from third party tenatits +plus 15%
of % rent income from third party tenants
• 5% of gross profit of fuel sales
• 3% of all 'merchandise income
.•""Vo•tft"- cr; k4n;
• Ohi g•zed t4-C-kit-4.5Yr.'); 3 0.495'A4.
• Total Pr,..•:,octtel Rent EC City ft;0 Yrs-A $ 541.40:641:71#.4••&
tate,:lz.t.s-d by' p.a•OAtt:ng 314i yezr-4."421,"Aar ttp Old bstitbreinbtxf
Orr.;ptry
ctetf Rent teta G(75 Yr4 1-0/1,474)4,1 ItimPtrspiew
-Xltr,-4-Ed ter 75 IfiTaVelVf. {041$1, t'S4,
w
apisrnoim
• -rts. •son pr4e-enz."-'4•thr-i.ear -
zros47.h e'ner sod Fr•.•perly
+.7:7571 .ire ett• fmaced it-4•Wo mei:1113A eitorito
tJ
inrt.“2 ptsmoe deye-qrvitTg,
Teat plans incl,de catr4blEett Mail* $1..X0 tritt,
*hot; iomi:tiyof
4 Vitb be:44f Vie Precnet ,04 sr.kitoWyteiSfzet4blidet#tritt,6
6,616t6k.
* tuvt•tqrtate.d a 75.-U(54:004priylVir4-Nottt4r6.4',
sioode ,e4 fueffe.
• 4314Vtiedari4i'ilat / fe.i411.ue.
• %of:2f, '61t.t retztlezt- e trove eirdFirr'"-e'aMl; 15%d
=r•:*.em, f* rytensnts.
.• 77.% ardsi
• Attatineralair.v..e t:^4rArf..
'? V!, taLe appreti&rtztati 'Sat torat
ri*terf 5,0
Weirtdpatito.ti cjiy tn. SVOP;ISS St+
•7e4q. after izrt.,÷.--ct
• AA ettreirjy trIttipat deentSC't owelgtrro
1,74,erti-an It.owrz monz tinaepat teztibi*
d.
On page 32, in its financial calculations, Suntex calculates its percentage
rate based what was included on page 28 (Le., no restaurant), and in no
year does the total percentage rent to the City equal the S829,026 that it
listed on page A-19! In short, Suntex proposed four (4) different
percentage rents, with no indication of which one counts, Suntex giving
itself the opportunity to choose which among its three proposed rents is
the one that counts is clearly an unfair competitive advantage, thus it
cannot be considered for award.
MIAMJ 4963428.19 74183fila 89 6
LZIN SUMBERG BAENA PRICE 8 AXELROD LLP
1450 Bdch,,I1AVenue, Suite 2301), Miami, FL 33131-3455
Submitted into the public r n
record fpr ite(s) \
on I City Clerk
22:4 Itzst ta Ciry lx1F0:000 .1.21404 4.110,9313 2,34g,163
et RE= trz.... Ei-g4t 5,-01AF,* a.4.1oz. x-A.-spo
f .,.Rils -....h.-.7. Fve..4 5441 . 2 6.32-.•:, 'IT ..i'M
Ford ti Raat to 017 - . 603,151 •i:40197
To 41 R441/ tf CitY 9'69 ,Ii-5- 2,3 •:..0,ti,04. 1,2114$04 2,7P,0${ Urijii0
i10,6g3,04-1,
"Itoi Av„,,x-tai Madztv C (60 Yrt.i..
Tatallajerad Rut CirrOSYrt.):
221,1i7,113
1,,419,8U' 201,439 2,..,i47212 14L3?29 1,123144
t. 074.241: 111:0,..134 L.N7,444 I.10.41,IS l',44a,;74 I, 4,313
63, f:7k41,1: 41.174 ,5:,, 65.0 4$45R t4t.f4
Iti.724 ,Z$3.V •10431 tb-.5?1
i -11W If..31; Li ;46 )*.424
1,1,414 i_1^11,44..„1,331,4!0
47I01-; if$0,6w :i,..\ i5,514 .0.111441$ ' 4.4M4.4.
.1104tolitett itiaail*=inclivradT : ' .: .--ct.,ittiottAvaitiOa
13. Then, there is the prohibited "flexibility" than."
grants itself unfairlyi
ineonsiAetteiet that Stintex
a. To meet the parking demands of its plan, Suntex would need to provide
between approximately 751 and 1,240 parking spaces depending upon
which program number one chooses to use. The garage will also have to
provide 200 spaces for the Rusty Pelican so the garage would need to be
more than 7+ levels in any case, making it taller than Marine Stadium, The
RFP prohibits proposed buildings from being higher than the crown of the
Miami Marine Stadium, which is 65 feet. (RFP, Section IV D, page 23,
Addendum VIII, Question 8, page 4). Suntex states on page 15 of its
proposal narrative that it will provide 150 parking spaces,
rat zt4gtOmttty ISO ptivarikg 4a* fp( Mar4.1.
aq."POr.St
wt,
itc-6,0:006t, vthet -,enit.061i44-4440tW kt44tialtelOtt
0:410yz The 411.r.*:#,,:olridilear-4-ce bf the cid batyng5 furl
the ve10*f tatt,aeldOati tit.64
iiiveitmihti16:iiiiierit 000 000 ..aWi`o*.trtio,i'iro,
b. Suntex lists on page 22 that it will develop 64,000 sf of cornMirciaispace*
but on page A-19, its lists 17,500 of cotmnercial space,
MIAMI 4 63428.10 74183/46889
eit.Z!N SUME3ER3 BAENA PRICE & AXELROD LLP
1450 13riekell Avenue, Suite 2300; FL 33131-3458
Submitted into the public c n
to•encordtfTitilss)
. City Clerk
Our proposed project phn viffinckfde the followhg:
turrent Expanded
Wet Hatt 190 slips 554 sd 2s
Rack Stodffte Capady 46bp 820 slios
Co'rertWMixed-the NIA 84,000
Our ream hs the exper&e ro met and exceed the required redevetopenekt
Videlines
• Consult& tiarinefia% showc 'a 30.000 sf state of the aft Bot:
FitmtiracIri arid Mrirte &r4re• t6tre'
4 COnStrUCt 50 spat* tar :paridttg structure in addition to rite city's
structure) for addelOng parlikt t%'eds
• COTISEIlict Miamis Finest 1000 sf luxthy iadk dub on rap of parking
strucalre
• Construct &LOW sf cormertith adding a Fresh MAE:1, Wen]
Restauranu and Reza. Space -orag. the prorrenade
VL PROPOSED LIST OF CAPITAL IMPROVEMENTS TO PROPERTY
Netol Matiha:fittiating Dock 554
VuiFy Err:Sus-ad DrySteekt2C4Racks
Private Parking Gera4a•S9„500 SF
Yacht Club
2a,trobt
Mar a Oparaticns Struderes
5,500 SF
New fitaurseit ..,...„
Col-mem/A S
17,500 Sf
mannemax shewroominflices/service :30:oca SF
2 Shlp acre Upgrades, 1,000 S.5,000 SF
Roadway trnpraiiefilentt, 11Boardwalk 30,000 SF, ISAISF
14. in Northrop Grumman Corp. v. United States, 50 red. Cl: 443, 468 (2001), the
Court found, "[a] bidder to a government contract who makes material misstatements in itt
proposal taints the aWard to such a bidder. Misstatethents in a bid proposal prevent gOVentnent
officials from determining the best value to the government." Suntex's proposal contains
4963428.10 74183/46889
sILZIN -$1.i4pERG BA.,1\1A .PFtICE & AXELROD LIP
1450 aqticeli Avenue, suite 2300, MZiiii. FL:3i:3455
Submitted into the public
record r it m(s)
on Litittt City Clerk
deficiencies and inaccuracies that call into question the financial return it is offering to the City
and thus prevents a true accounting of the value that the City will obtain from Suntex's proposal.
As such, Suntex's proposal cannot form the basis of an award.
IV. SUNTEX'S DEFICIENT PLANS AND RENDERINGS
PREVENT THE CITY FROM AWARDING LEASE TO
SUNTEX
15. Any one of the factors described below, viewed independently, supports a
determination that Suntex's bid protest should be rejected Taken together, a decision to award
the Virginia key lease to Suntex would not be considered an honest ekereise of [the City's1
discretion." Liberty City v. Baxter's Asphalt & Concrete, Inc, 421 So. 2d 505, 507 (Fla. 1982),
and is arbitrary and capricious, see Miami -Dade County v. Church & Tower, inc,, 715 So, 2d
1084, 1089 Fla. 3d DCA 1998).
SUNTEX SUBMITTED INACCURATE AND DEFICIENT
PLANS AND RENDERINGS
16. Suntex failed to submit the required detailed plans at the required scale. [Suntex
proposal Appendix pages A-6 through A-I4 as compared to RFP requirements in Section VI B
on page 24 and Subsections (F)(6) (a-b) page 29 and 301. Anther, Suntex did riot submit
accurate renderings of its plan or accurate and complete architectural plans and elevation . Why
does this matter? Suntex's estimated financial returns to the City are based On plait and
renderings that when examined closely are revealed to be inaccurate at best and milleading and
deceptive, at worst. In the absence of -an economic advantage, a deficiency is a minor
irregularity; but when a deficiency gives a proposer an unfair economic and competitive
advatitap or "6ves the bidder a substantial advantage over the other bidders and thereby
restricts or stifles corripetitiein," as •would be the case in this Matter with Suntex, that ,deficiency -
cannot be waived. Tropabest Foods v, State Department of General Services, 493 So, 2d 50, 52
AMP 4963428.10 74183,146889
BILZ1N SLIMBERG 13AENA PRICE & AXELROD LIP
1459 Stickel' AvOni.A SUlte 2300, Miarhi, FL 33131-3456
•
Submitted into the public
record en- ite (s)
on I LI, City Clerk
bimtimoics.-Ina Y.-Department-of Health
and Rehobilitative Services, Case No, 93-3951B1D (Fla. DOM' August 24, 1993).
17, Since Suntex failed to address existing applicable federal, state, and county
regulations, not to mention the City Charter -required 50 foot setback and the Miami-21 Zoning
Code, Suntexs plan will need to be re -designed in a Manner' that would ultimately reduce the
financial returns that it promised to the City. In failing to conform to Flood Zone requirements
(Which is .diseussed on page 15 of the RFP), failing to respect the Charter -required 50 foot
setback requirement, and failing to raise or provide continuous pedestrian promenade, '-untex
was able- to design a plan that purports to maximize the site and allow for extensive retail and
coinitercial space -and boat Storage eartleity„ het It does not.
lg. The Substantial majority of Suntex 's proposed retail space unlawfully invades the
50 foot Setback mandated by the City Charter. Suntex cannot achieve the slip counts it dEdin8 in
its proposal without violating the applicable height limitations and would further have to reduce
the slip counts to be able to reach its proposed retail square footage. [Suntex plans Aprendix
pages A-6 through A-14].
- 19.- Suntex is proposing the use of an already outmoded forklift -system livits-proposed - - -
dry stack. This system sitriply cannot achieve the density of slips Suntex claim's in the footprint
and height limits available pursuant to the REP, in order to actually build the project, Suntex
must take the applicable 1.41u/di-ions and RFP limitations into account, ikhleii iNotild require Its
plans to change, simificantly reducing the available revenue -generating space ofits plan.
20, Suntex's plans were not sufficiently detailed. Section VI F(6) of the RFP requires
-detailed illustrative drawings" and "a site plan showing The proposed layout of all project
components, including all additional ancillary fatilitie& to be provided, including the size,
MIAN 496342810 741b./46889 10
it-Zit4 SUMSERO 'BAENA PRICE a AXELROD LIP
1450 Bidell Avenue, Suite 2300. Wan* FL 33131-3456
Submitted into the public c ,
record f r item(s)
City Clerk
on
dimensions and configuration of buildings to be reconstructed andfor renovations." [RFP,
Section VI F(6), page 29]. Based on what Suntex submitted, it is impossible to count all the boat
slips or parking spaces that it claims it will provide.
21 Further, there are various RFP requirements with which Barite did net eornply.
The required plans at various scales Were not included .in Surttex,s stibmittal, hook or its piffled
boards. [RFP, page 29]. Suntex's design does not avoid existing Boat Show tents, nor does it
prOVide the space for tents on -site, all of Which are necessary to be compatible with the Boat
Show. Its proposal did not include a signage plan. (R), Section VI F(6)(A.), page 29), marketing
plan. (RFP, Section VI F(2)(b), page 27), or evidence bf the qualifications of its architect (RFP,
Sedion VI F(14)(a), page 35). 'While these omissions may be have been waived by the City as
minotirreguIarities, taken together with the fact that Suntex's numbers are not verifiable clearly
lead s to the conclusion that Suntex cannot be properly selected or awarded the RFP.
22. Further, it is impossible to set -vice 840 boats using forklifts in the developable
footprint of the property, as Suntex proposes, without exceeding the available. height, even
though Suntex has already limited the vesseis size in its proposal to 45 feet which does not Meet
even today's standards. See Exhibit 2. -
23. More clearly, Suntex's plan:
i. Lacks the exact ntunber of boats on every level and the exact dry Stack
marina dimensions, density and slip reit:
Lacks accountability for each and every parking space, including
handicapped and bicycle parking locations.
tn. Lacks clear identification of -every floor level and number of floors for - -
each of its proposed building.
iv. Lacks loading bays and service •access,
v. Lacks passenger loading/drop off area
MIAMI 4963428,1.74183146889 11
8ILZIN SUMSERG BAENA PRICE & AXELROp Lt.P
145G Dicke Avitve, Suite 2300, Mem!, FL 33134,3456
Submitted into the public
I
record porknigs)
on . City Clerk
vi. Lacks docks dedicated to staging for dry Slip Storage.
vu. Lacks dimensioned plans showing on and offsite circulation,
viii. Does not have the required continuous public promenade or raised
promenade because the forklift operating area must be closed to the public
for safety reasons,
ix. Does not have an active waterfront -- because the forklift operating area
must be closed to the public for safety reasons.
x. Does not show how the public will access the promenade because the
forklift operating area must be closed to the public for safety reasons.
xi Does not show vertical circulation of the parking garage -- indeed it shows
no plans for the two proposed garages at all.
xii. Does not clearly show the property line and whether its project is within
the RFP property line.
Does not preserve the existing 138' landscape buffer along the
Rickenbaeker Causeway, and does not provide multiple pedestrian -
accessible routes to the waterfront in order to maximize public access to
the waterfront.
24. As stated above, when these deficiencies and material omissions are taken
togtther, any deciSion to award the. Virginia Key lease to Suntex cannot be upheld as an honest
exercise of [the City's] discretion." Baxters Asphalt .& Concrete, Inc., 421 So. 2d at 507, and is
by definition is athitr -•_aty_and capricious, see Church !,v Tower Inc.,71 5 So. 2d at_10,89..
YL SUNTEX'S PROPOSAL DEMONSTRATES A FAILURE OF
UNDERSTAND THE PERMITTING PROCESS
25. An experienced proposer for a marine project understands that the permitting
approach and associated phasing is among the most crucial aspects of the development plan.
Unlike many non -waterfront development projects, there are multiple agencies that must review
and coordinate permits on Waterfront development, Lead times on perniits for changes to
existing marinas, excluding new construction, can take upwarthof 24 -months. The City
MiAMI 490418,10 74183/46889
BILZIN SUMBERG BAENA PRICE & AXELROD LLP
1450 Bri_dkell Av6iluO, Suite 2300, Miami, FL 3313123456
Submitted into the public(
record f r ite s) ,
on City Clerk
emphasized the importance of the permitting process by highlighting it in the general conditions - - -
of the RFP (Sections II E and H, page 13). Suntcx proposes to develop its new 364 marina the
Marine Stadium Basin as Phase 2 of its program and its entire dry stack in a single Phase 3
thereby displacing virtually all of the cuttent users. [Stintex Proposal page lg
26„ For example, it took ittriOgt. two years for the Miami -Dade County Restoration &
Enhancement Section to secure a simple te-authorization of their previously permitted artificial
reef siteS -that are 'clearly beneffttirtg the enVironment. Promising to permit new boat slips in
seagra.ss habitat in less than a year clearly deolonstrates no experience with the current reality of
permitting in Miarni-Dade County's sensitive et/Nimbi-nett. Again, at best Suntex is uninformed
about the petinitting process and lackrequisite experience to navigate a complicated
permitting process, or at worst, Suntex is misleading the City with turealistic timelines and
goals, Regardless of which is the truest description of Suntees capabilities and intent, both
suggest that Suntex is a non -responsible proposer and cannot be relied upon to deliver. its
proposal as described in its response,
VII. WITH NO REAL GROUNDS TO PROTEST, SUNTEX
INVENTED FACTS .. . THATARE SIMPLY FALSE
27, Suntex makes material misrepresentations in its bid protest. Suntex alleges that
RCI was involved in major legal battleWith the dity and that RCI sued the City. [Suntex Bid
Protest page 5 and Exhibit cri, This is patently faise, kcr has never been involved in a lawsuit
against the City or any other governinental entity with which it has Cotittaeted,..RCI .has never
sued the City and the City has never sued RC'. Because such claims by Suntex art easily
verifiable through a simple search for public and court -related documents these
misrepresentations raise. salons 'questions about the validity all of Suntex's claims in its bid
N11AN114963428 10 74183/46889 13
BILZIN SUMBEFIG BAENA •PRICE & AXEI,ROD LLP
1450 Brt6W11 Avtnue, Stifle 2300, Mi4m14 FL 33131-3456
Submitted into the public r
record ftr ite
on I II City Clerk
protest. Having said that Suntex raises a valid issue with regard to the Tifon, which does have a
history of litigation with the City as recently as the last year.
VIII. SUNTEX'S MATERIALLY INACCURATE FINANCIALS
ALSO EXPLAIN WILY SUNTEX WAS NOT
RECOMMENDED FOR AWARD
28. Without an accurate analysis of the true value ofSuntex's proposal and the related
aaalisis of whether Suntex can actually deliver what it is proposing Florida law prohibits the
City tia raise Suritex's scores or increase its ranking, Suntex's deficient development :pith and
mcornplete fin
al proposal do Mt glow the City the opportunity to be assured of the costs and
revenues that would be associated with a lease to Suntex or the services that the City seeks and
Suntex has promised. Robinson Elec. CO. v. :DadeGnIy, 417 So. 2d 1034, 1034 (Fla. 3d DCA
1982). 40biastiti Electrie COMpany makes clear that when assessing whether to accept or reject
a proposal, the munielpality mosi consider ''Whether the effect...would be to deprive the
municipality of its assurance that the contract will be entered into, priormed and guaranteed
according to its specified requirements," Id. 1034. Suntex's proposal does not afford the City the
opportunity to evaluate the true costs and returns associated with its proposal Ihetice its :lower
ranking is appropriate and supported by the facts, hmte its ranking is- correct end its proles
without basis
29. Suntex's incomplete development plan and design, as well as Stintex*S proposed
financial returns, which are contingent on required redesign, are aspects of 800toes proposal
for -which Suntex cannot be given the benefit of the doubt. See Floridian Constr. and Dev. Go
kw, v. Florida Deptt of awl. Prot., 07-5636BID,-11 46-47 la: DOAFI Mara. 21, 2008)
Mirtidence requires an agency to assume the worst„ not hope for the best. Such caudon is not
MIAMI 4963428.1 4183.146889 14
BILZ/N SUMBERG BAENA PRICE $, AXELROD LLP
1450 Brick&I Menus., Suite noat Mimi, FL 33131-3456
Submitted into the public c
record or it m(s) 3
on i 1 Il City Clerk
Only prudent, but also a matter of fairness to the other Competitors Who complied with the
specification.").
30. Suntex fails an both grounds and has shown no basis in its bid protest to justify
changing its second platetanking. Suntex's use ofthe outdated fork lift,systern not1 only prevents _
-maximum return from the dry stack facility, it also loaves no room for the mandatory setbacks or
bay walk -because the launching and retrieval operations _would have -to close the_bay_walk to
pedestrians in order to operate in the space that is provided in Suntex"s design.
31. If Suntex were selected for award of the Virginia Key Marina lease, the _City
would have improperly permitted- Stintex to submit aptoposal that has unverifiable design
elements and costs, misstated reVenues, and deficiencies and misrepresentations. The city, in
such a case, will have granted Suntex an unfair competitive advantaae, thereby undermining the
necessary common standard of competition. Robinson Plea Co.., 417 So. 2d at 10..34. The
procedures followed in competitive solicitations must afford an -equal advantage to all vendors'
and not adversely affect the interests. of the agency, but rather allow the agency to tonfidently
tOtittact by being able to verify costs . Xetax Corp. v. Department of Gen1 Seri, Case No. 79
2226131D, 1980 WL 142896, (Fla. DOAI-1Feb, '29, 1980).
32, Courts have denied government the discretionwaive irregularities when one
proposer would be placed "in a position of advantage over other bidders." Robinson Elec. Crx,
417 SO, 2d at 1034; 8E8 eitstt Liberty CntyV. Paler Aspbalt imd Concrete Inc, 421 So. 2c1 505.
Minor irregularities that are waivable are those that do not affect price, give a competitive
advantage, or adversely impact the procuring agency's interests. Therefore, Suntex's
deficiencies are not minor.
W44 4963428,10 74183/46889 15
BILZiN SUMBERG BAENA PRICE & AXELROD" LLP
1450 BrickellAitenue,Stilte 2300, Mittriii, FL 33131-3456
Submitted into the public 0
record r ite s) 1
on City Clerk
33. Further, an award to gutitefs cannot be supported because there is =pie basis in
the record to reduce its scores and to support no more than a second place ranking. See
Laboratofy Corporatiortof America v. Department qf Health, Case No, 12-3170MD, 2012 WL
6512603, at 1.2 (Fla. DOAH Da. 10, 2012); Oualtech cleaning Viet, Ida AttioTheletihingv:
Florida State (In/versify, Case No. 00-4420BID, 2001 WL 92108, at ¶ 7 (Fla, DOAH Feb. 1,
2001); Nec Bidihess C01721721171iCCIE011 Systems (East), Inc. v. Semiat County School Board,
Case N. 45-508BID, 19.55 WL 1053245, atl 13 (Fla. DOAN Dec. 29, 1995).
iMv.11 0042a10 74183/46885 16
BLZIN SUMBERG BAENA PRICE & AXELROD LLF
1450 Thicken Avenue. Suite 2300, Miami. FL 33131-3456
Submitted into the publicc
record for iter(s) L.) r
on (, 7, I . City Clerk
IX. SUNTEX CANNOT OVERCOME ITS MATERIAL
DEFICIENCIES
34. Where there is mandatory competitive bidding, the contract must be awarded to a
responsible -proposer -whoSe-proptts'ftl-fs--reSponsive:--6trber-- stems; Ine.-v.—Depatimeht of-- - —
General Services, 53Q St.; 2d 325 (Fla, lst -DCA 197g). An. tiWard to Suntex would create an
unacceptable level of risk to the City and is likely to result in significant losses in time and
'money if it contracts with an unreliable PrOpOser. Coupled with the inaccuracies and
deficiencies in Suntex's proposal, warning igri that cautions the City to more closely examine
Stintex's proposal and its financial projections and deem it properly ranked and not qualified for
award,
35. M ,gas explained by Florides Department of Administrative Hearings, Iejach
deviation from the rile or standard fixed in the [RFP1 is a material deviation_Each deviation
affects the contract price and adversely impacts the interests of [the procuring agency]"
partionlarly. Uhert the deviatiOn "giveS a benefit not enjoyed by other bidders." Marpan Supply
Company, Inc, v. Department qf Management Serviee, C ase No. 96-2777B1D, 1996 WL
1060376, at II 6 (Fla. DOAH Sep, 26, 1996). Suntex's proposal adversely impacts the City'S
interest in contractin€,Y with a qualified and capable developer. The City -Cannot risk selecting a
developer that is not up to the task, nor can it contract with a developer through process that
permit a hi:Al-responsible proposer tct be ranked as highly as proposers Who have verified
success with comparable projects, the required financial strength, and technically accurate
plans. Id at 7; see also In re: ITB S.825(4), Central Florida Equipment Rentals, Inc v. Miami-
MIAMI` 496342tA14183i46889 17
B1LZIN SLIMBERG BAENA PRICE 8, AXELROD LIP
1450 Bricktil AVenue, Suite 2300, Miami.. FL 33131-3456
Submitted into the public cc)
record fir ite on City Clerk
Dade County (The Hon. Robert Newman; Nov. 15, 2007), citing Hati,i Pepper &Ass()clot& v.
City of Cape Coral, 352 So. 2d 1190, 11936 (Fla. 3rd DCA 1977.
X. RCI WAS PROPERLY RATED FIRST AND HAS THE
EXPERIENCE TIM CITY SEEKS
— 36. — RCI's plans are specific and-oomplete—Everysingle parking space canbe counted
and accounted for and its .$98-1V1 capital budget is both complete and based upon contractor
eStimatet that were •subinitted as.part &MCI'S proPosal, tRCI Proposal, Section VII, page 121 of
pdf, Budget Attachment. RC' has Volunteered to provide CAD drawings 'fOr Ilb f its plans,
which will verify every detail and compliance of:Ras proposal.
.RCI too incorporates green elements and sustainability into its proposal that
dedicates sti-efitire section of its proposal, tin -page 1.1, to describing .the green initiatives WO
will irripiernefit in its project and discusses green alternatives for parking. ERCris PropoSaI,
Section V, page 1.1; Section IV, page 51.
38. Additionally, RCI's proposed Aero-Docks patented automated dry stack system
incorporates citildt and .greai .electrical operation. This State-OfAhe-art system incorporates
technology that has heen used for more than 30 years in heavy industry and is used by companies
stieh as Paid,. MitsUbishi, and Boeing. The autornation equipment is designed., installed arid
baCked by Rockwell Automation: a $6.3 billion I1 year old Company. RCFs hopos4-,
Section IV, page Th of site plan]. With this system boat launch times will. be 2-3 kninuteS. tRCI's
_Proposal, Section .IV, page.Z3. There will be a cell phone application that:Will allow boat:oat()
request boats, set times to pick up boat; and request provisions for boats from merchants
operating at the marina, [Ras Proposal, Section V, page 299 of pdf, AetO-Doekt Attaehmerttl.
This will drasti cal ly-irn prove-efficiencyand-customersati sfact -driVe-TeVentle, Tice
MIAMI 4963428.10 74183/46889 18
BILZIN SUMBERG BAENA PRICE & AXELROD UP
1450 BrIckell AVenue, Suite 2300. Miami. FL 3313-1-3456
Submitted into the public sc)
record fpr itein(s)
on CILL(16 • City Clerk
system will use computer density software that will determine the placen ent of boats and the
mix of boat lengths so that at all times up to 90%+ linear footage of all rows of space of all levels
will be income producing, also driving revenue. fRCI's Proposal, Section 'V, page 299 of pdf,
Aero-DOcks Attachmentj. RCI's plan Ins the design that is the most advantageous for the City
because it maximizes revenue generation and financial returns.
39. With respect to experience, the RFP requires a proposer to have "a minimum of
ten (iO) years' experience with a marina of similar size and complexity," [RFP, Section VI F
(I2)(a), page 34. SunteX's experience is not sufficient to Outrank RCrs experience. Suntex was
not able to point to one development that is comparable in all aspects to the 'development
requested in the •RFP.
40, Suntex's Liberty Landing Marina in New Jersey is olosett in size, but it is not
comparable to a South Florida salt water marina. Liberty Landing is listed as having a total
project cost of $53:14, but Suntex estimates a total project cost of $73M for its proposed Virg„inia.
Key project, so even if the two marinas were similar enough to wenant an apples4o-apples
compatisort., Liberty Landing -is clearly a fess ,complex project given its total cost. While in the
aggregate 'Suntex may have managed or developed a large number of marinWet slips, and dry
stacks, according to its proposal, it does not have the experience with a singleproject that has all
of the complexities, components, and restrictions of the project required by the RFP,
41. Importantly,. Suntex only has two .small facilities in Florida:. one in FL,Myers and
the other north of Jacksonville. Even more importantly, Suntex did not build or develop either
facility —it purchased existing operating facilities. Hence, it -has never developed -arid built sirnilar-
facilities in Florida under the 'Florida regulatory scheme.
MIAMI 496342310 74183146889 19
LZIt BUMBERG 'BAENA PRICE & A)(ELROD ,LIP
1456 Bit Avenue, Suite 2B00, Mlarni,.PL 3313144:56
Submitted into the public
1
record,fir iteip(s) Ji 4
on tdi fit . City Clerk
42. The RFP did not require experience developing a minimum nuniber of slips or
experience managing. a certain number of restaurants, it required: comparable experience.
Simply adding up the total nutabers of slips and restaurants it has operated, does not mean that
Suntex has the required experience and expertise 10 design., permit and develop what the RFP is
requiring -- in Florid; which will be one of the largest marine facilities in the Southeast United
States Thus, Suntex is not_quatifieLto provide the developrnent_of the facility ttlatthe REP is
requesting.
4. RCI has met the. RFP's minimum threshold requirement of having demonstrated
experience with projects of similar size and scope as is required by the RFP. RCI re -developed
the Miami Beach Marina which is an approximately 45.34 acre mixe&USe marine development
that include& retail aitiel office Space, three testantants !and residential towerg. MO Proposal,
Section X; Page 21]. Bahia Mar has an. associated hOtel use and a total prOjett cost of $400
million and as detailed in RCI's proposal, both Marker One Marina and Little Harbor Marina
have dry stack facilities, [RCI Proposal, Attachment 5, Page 1], The projects that RCI ha
developed and operated and ninated have: had Simile, br more complexity and capital
itiVeStinerit costs as that whith is required by the RFP and all of that experience is local in. south
RCI has also developed and operated facilities in other states but the relevant experience
iS het e South Florida,
44, Another Minimum threshold requirement listed in the RFP is that Itjhe Project
Team or any ofitsprincipals must have secured or provided, at ritidittirri,Mietttliniflion &Hatt
tS20hlillion)or more in financing for at least one (I) single project." fRiF?„&otior$ VI-PO2)(6)T
page 33}, Suntex lists several projects with dollar amounts ahave $20 Mititth, but does not
4963428.1014ig3/46889 20
BTLZIN SLIMBERO BAENA PRICE & AXELROD LLP
1450,Briael1 Avenue, Suite 2300, Miami, FL 33131-3456
Submitted into the public,::
record r it (s) Jyt
on City Clerk
indicate where the funds carne fro . Thus, SunteX's proposal did not contain sufficient
infoiiiiation that would require that it be ranked higher than RC1,
45. ROT did provide this information in ils proposal. Suntex may want to harp on the
fact that RCI will have to secure financing, but as referenced above, the ItFP. 't.eNsuires that award
be based on financial return to the City Award of the RFP is not based on• how the prOpoSer
prbpbot to finance the Project.
46. Moreover while SunteX claimsit does not need to finance its projed its own
proposal -contradicts that statement, in its financial projections and model Suntex dearly states
that it assumes the tise a two separate construction loans, [Suntex Proposal page 3IJ.
Regardless what the City seeks is the most advantageous return.
47: EVen if Suntex's proposed tent from:stabilized operatiots is accepted as acturate,
which it is .11(it, after ten years, Suntex would be providing the City With .$43,235,000 in rent,
while Ref would :be__providing the City with $49,272,000 in rent. [Financial Proposal
C�mparion E.thiMt51. This must be taken into account when comparing the proposals, These
are the numbers that the RFP requires the City to evaluate. These are the litimbers that Make
dear that Suntex is not eligible for award arid catinot and should hot have received a higher
overall score.
48. Not only will RCI provide the City with the highest tent, RCI will save the City
money_ The RFP requires a -parking contribution for the number of parking spaces required .for
each proposees project and a minimum contribution. of $1.45 Million. RCPS. Phased Capital'
- - Outlay inmates a -total- of-$103 -million for -parking -as -that -total incorporates- the -requited- - — -
minimum contribution that RCI. would need 16 make to the MPA garage.. in other words,. RCI
provides a contribution of 100% of the cost of proVidiug the parking in RCI's Preferred
MIAMI 4963428.10 74183146889 21
SUMBERG BAENA PRICE & AXELROD LLP
i 450 Britket1Actentle:Stilt0 231:10, IVITami, FL 33131-345B
Submitted into the public Si?
record for ite
on City Clerk
Alternative not only the 50% required by the RFT: Suntex offered to contribute Only 50% of the
49. Given that under the Preferred Plan, RCI would provide an of the parking for its
project (111-site, its required contribution to the MPA garagewbuld be the t3A5 million minim
detailed in the RFP. RCI's Proposal states that it is preparod to male any required contribution
to the MPA garage. "RCI is prepared to make the required contribution of $15,00'0 pervhee
the MPA garage if it is to be btrift, MCI Proposal, Sectioti IV, Page 9];- RCN- Prefetred Pia
does not preclude Ilie.City from deyetving a municipal garage to be construtted, operated, and
maintained by the MPA,
50. ID providing the City With two options, RCI offered the City the innovation and it
gave the City a better position from which tO analyze % Options, It is and. Will always be the
Cityice as to which plan it wants to accept under the RCI Proposal.
51. RCI proposed an alternate location for surface parking, just as Tifon and Suntex
did, but RC' also offered to pay for it if the City wishes to accept the alternate location. This
would be a net gain for the City btegfuse 'RCI would be Providing Iowa of the 00St 0-f all
required parking grid paying a parking contriblifion that would lessen the City's tad. monetary
burden for the parking garage. Suntex's proposed returns to the City would need to be reduced
by approximately $I 1 million to deduct the cost that the City would have th pay to provide its
hilf atilt Tnatchthat is needed to cotistrtitt ibeiviPA garage.
MIAMI 496342&10 7418314689 22
BILZIN StittDRG SAENA PRICE & AXELROD LLP
1450 Biictell Averitie, SUite 2300, Miami, FL 33134-3456
Submitted into the public c h
record for it m(s)
on jj 1il 6 City Clerk
XL CASELAW AND THE CITY CODE DO NOT PERMIT OR
REQUIRE RE -SCORING
52. Suntex attempts to protest the Selection Committee's scores, but the RFP and the
City Code do not permit challenges to the relative weight of evaluation -criteria or the formula for
sissrighint- -points. [RFP, Section XI, page 39]; Miami Fla -:Code §18 104E4) (2) (2002).
Additionally, Suntex must prove prejudice or bias which it cannot.
53. "To be legally sufficient, a protestargument must allege facts that, if Shown to be
true, would demonstrate an impropriety," L-3 Straits, B-404865, 2011 CID -1119 (Comp. Gen.
Dec, June 8, 2011), Without proof that the Selection Committee's scoring was outside of the
published criteria Or animated by bias, Suntex's argument fails and the City is required to retain
the Selection Committees scores. Suntex does not even attempt to allege bias or prejudice and
makes no reference to proof in the record that the Selection Cohintinee's scores were improperly
derived, arbitrary, or capricious. Instead, it simply states its opinion and belief that its proposal
was the best. That is not sufficient proof upon which a protest can be sustained.
XII. 'REQUEST FOR RELIEF
54. Based on the foregoing reasons and authority, RCI -respectfully requests that
Suntex's protest be dismissed -and that the Director of Real Estate and .Asset Management
recommend that the protest be dismissed to the City Manager. Further the Selection
Committee's and the City Manager's recommendation to sward the RFP to RC1 should be
followed forthwith. RCI respectfully requests a response to this communication from the City
confirming that Suntex's hid protest will be denied.
MiANIT 4963,42&10 74 83146889
BILZIN .SUMBERG BAENA PRICE & AXELROD LIP
1450 Bricka Averiue, Suite 2300, Nfired, Ft 33131=3455
Submitted into the public
record fpr itqlncs)
on (5 ( 1,14 I b . City Clerk
Respectfully submitted,
Bilzin Sumberg Baena Price & Axelrod LLP
Attorneys fix. Virginia Key LLC, (RC')
1450 Brickell Avenue, 23rd Floor
Miami, Florida 33131-3456
Telephone: (305) 374-7580
Facsimile: (305) 37 -759-3
By:
ALBERT E. DOTSON, JR, ESQ.
Fla, Bar No.: 724203
adotson@blizin.com
CARTER N. MCDOWELL, ESQ.
Fla. Bar No.; 603236
emedowellabilzin.com
MIAMI 4963428.10 74183/46889 24
BILZIN SUMBERG BAENA PRICE & AXELROD LLP
1450 Brickell Avenue. Suite 2300, Miami, FL 33131-3456
Submitted into the public
record f r i
on $p t
L City Clerk
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that -a true and correct copy Of the foregoing was served this 25
day of April 12016 via email to the following: Daniel Rotenberg, Director of Real Estate and
Asset Management, DRotenbergRmiamiROV.COM , Victoria -Mendez, City Attorney,
vmendezi&i.miami.f1,us, Rafael Suarez -Rivas, Sr. Assistant City Attorney, rsuarez-_
rivaStgeisniami.fl.us; and Todd Eamon, City Clerk, City of Miami, clerksei.ralarniflAts.
By
MIAMI 496342S. 74183146889 25
B ZIN SUMBERG BAENA PRICE & AXELROD LLP
1450 Brickell Avenue, Suite 2300, Miami. FL •33131.;3456