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HomeMy WebLinkAboutCC 2016-06-22 MinutesCity of Miami City Hall 3500 Pan American Drive Miami, FL 33133 www.miamigov.com Meeting Minutes. Wednesday, June 22, 2016 2:00 PM Special Meeting City Hall Commission Chambers City Commission Tomas Regalado, Mayor Keon Hardemon, Chair Ken Russell, Vice Chair Wifredo (Willy) Gort, Commissioner District One Frank Carollo, Commissioner District Three Francis Suarez, Commissioner District Four Daniel J. Alfonso, City Manager Victoria Mendez, City Attorney Todd B. Hannon, City Clerk City Commission Meeting Minutes June 22, 2016 2:00 P.M. INVOCATION AND PLEDGE OF ALLEGIANCE ORDER OF THE DAY Present: Commissioner Gort, Vice Chair Russell, Commissioner Carollo, Commissioner Suarez and Chair Hardemon On the 22nd day of June 2016, the City Commission of the City of Miami, Florida, met at its regular meeting place in City Hall, 3500 Pan American Drive, Miami, Florida, in special session. The Commission Meeting was called to order by Chair Hardemon at 2:05 p.m., recessed at 2: 09 p. m., reconvened at 2:14 p. in., recessed at 3:34 p. in., reconvened at 4:06 p. in., and adjourned at 7: 49 p.m. Note for the Record: Commissioner Suarez entered the Commission chambers at 2:09 p. m. and Commissioner Gort entered the Commission chambers at 2:11 p.m. ALSO PRESENT: Daniel J. Alfonso, City Manager Victoria Mendez, City Attorney Todd B. Hannon, City Clerk Chair Hardemon: Welcome to the June 22, 2016 meeting of the City of Miami Commission in these historic chambers. The members of the City Commission are Wifr�edo Gort, Frank Carollo, Francis Suarez; the Vice Chairman, Mr. Ken Russell; and myself, Keon Hardemon, the Chairman. Also on the dais are Daniel J. Alfonso, the City Manager; Victoria Mendez, the City Attorney; and Todd Hannon, our City Clerk. The meeting will be opened with a prayer; and the pledge of allegiance, led by our Vice Chairman. Invocation and pledge of allegiance delivered. Chair Hardemon: Meeting is back in order. Commissioners, thank you all for being here on this day before our Commission meeting to handle such an important issue. Thank you for the members of the public that are here to also observe and participate in what we're about to do. Commissioners, I'm tasked with moving this agenda along. As you know, we have SP.1 and SP Vice Chair Russell: Mr. Chair, I'd like to move that we take the item out of order; number 2 first. Chair Hardemon: All right. The motion (UNINTELLIGIBLE) -- Commissioner Carollo: Second. Chair Hardemon: -- is properly seconded. As I was saying, I was about to get into that; that we should do SP.2 possibly before SP. 1. Since there is a motion, there is no discussion of this, all in favor, say liye. " Commissioner Carollo: Aye. Vice Chair Russell: Aye. Commissioner Gort: No. Commissioner Suarez: No. Chair Hardemon: Okay. The hoes'have it. City of Miami Page 2 Printed on 101412016 City Commission Meeting Minutes June 22, 2016 Vice Chair Russell: I'm sorry, what was the vote? Chair Hardemon: The vote is a failing vote on taking it out of order. Commissioner Suarez: I voted fio. "I think I'm the only one -- Chair Hardemon: You voted fro. " Commissioner Suarez: You voted ffo, 'as well? Chair Hardemon: Right. It would be 2-3 then. It's a very simple vote. We have two Yeas, 'hvo verbal hoes." my vote then will be included as a ho, 'as well. Commissioner Suarez: I was a fio. " Chair Hardemon: You're a fro? Commissioner Suarez: I was a fro, 'correct. Chair Hardemon: As far as taking it out of order. Commissioner Suarez: Correct. 16-00518 Summary Form.pdf 16-00518 Back -Up from Law Dept. pdf 16-00518 Legislation (Version 1). pdf 16-00518 Legislation (Version2).pdf 16-00518 Legislation (Version3).pdf 16-00518 Exh i bit. pdf 16 -00518 -Submittal -City Attorney -Miami City Code Sec. 18-104.pdf 16 -00518 -Submittal -Commissioner Francis Suarez -Letter from Arnstein and Lehr.pdf 16 -00518 -Submittal -Joyce Landry-Map.pdf 16 -00518 -Submittal -Virginia key LLC -Exhibits and Presentations -Virginia key LLC response to Bid 16 -00518 -Submittal -AI Dotson -RFP No. 12-14-077 with Addendums.pdf 16 -00518 -Submittal -AI Dotson -VA Key RFP Responsiveness Comparison.pdf 16 -00518 -Submittal -City Attorney -Bid Protest Docs -Virginia Key Marina RFP No. 12-14-077.pdf 16 -00518 -Submittal -Richard Perez -Virginia Key Harbour and Marine Center -Financial Analysis.pdi 16 -00518 -Submittal -City Manager -Letter from Tate Capital re -Daniel Rotenberg.pdf 16 -00518 -Submittal -City Manager -Affidavit from Daniel Rotenberg.pdf City of Miami Page 3 Printed on 101412016 SPECIAL MEETING ITEMS SP.1 RESOLUTION 16-00518 Department of Real A RESOLUTION OF THE MIAMI CITY COMMISSION, WITH ATTACHMENTS, Estate and Asset ACCEPTING AND APPROVING THE DEPARTMENT OF REAL ESTATE AND Management ASSET MANAGEMENT DIRECTOR'S DECISION TO DENY THE BID PROTEST OF VIRGINIA KEY SMI, LLC REGARDING REQUEST FOR PROPOSALS ("RFP") NO. 12-14-0773 FOR THE LEASE AND DEVELOPMENT OF CITY OF MIAMI OWNED WATERFRONT PROPERTY FOR MARINAS/RESTAURANT/SHIP'S STORE USES LOCATED AT VIRGINIA KEY; FURTHER DENYING THE BID PROTEST OF NEW RICKENBACKER MARINA LLC REGARDING RFP NO. 12-14-077 DUE TO ITS LACK OF STANDING. 16-00518 Summary Form.pdf 16-00518 Back -Up from Law Dept. pdf 16-00518 Legislation (Version 1). pdf 16-00518 Legislation (Version2).pdf 16-00518 Legislation (Version3).pdf 16-00518 Exh i bit. pdf 16 -00518 -Submittal -City Attorney -Miami City Code Sec. 18-104.pdf 16 -00518 -Submittal -Commissioner Francis Suarez -Letter from Arnstein and Lehr.pdf 16 -00518 -Submittal -Joyce Landry-Map.pdf 16 -00518 -Submittal -Virginia key LLC -Exhibits and Presentations -Virginia key LLC response to Bid 16 -00518 -Submittal -AI Dotson -RFP No. 12-14-077 with Addendums.pdf 16 -00518 -Submittal -AI Dotson -VA Key RFP Responsiveness Comparison.pdf 16 -00518 -Submittal -City Attorney -Bid Protest Docs -Virginia Key Marina RFP No. 12-14-077.pdf 16 -00518 -Submittal -Richard Perez -Virginia Key Harbour and Marine Center -Financial Analysis.pdi 16 -00518 -Submittal -City Manager -Letter from Tate Capital re -Daniel Rotenberg.pdf 16 -00518 -Submittal -City Manager -Affidavit from Daniel Rotenberg.pdf City of Miami Page 3 Printed on 101412016 City Commission Meeting Minutes June 22, 2016 Motion by Commissioner Suarez, seconded by Commissioner Gort, that this matter be ADOPTED WITH MODIFICATIONS PASSED by the following vote. Votes: Ayes: 5 - Commissioner(s) Gort, Russell, Carollo, Suarez and Hardemon R-16-0286 A motion was made by Vice Chair Russell, seconded by Commissioner Carollo, which failed by the following vote: AYES: Commissioner(s) Russell and Carollo; NOES: Commissioner(s) Hardemon, Suarez and Goat; to hear agenda item SP.2 before agenda item SP. 1. A motion was made by Commissioner Suarez, seconded by Commissioner Gort, and was passed unanimously, to designate Miami City Code Section 18-104(a)(2)(c), specifically paragraph 3, as the rules to be followed by the City Commission when addressing agenda item SP. 1. A motion was made by Commissioner Suarez, seconded by Commissioner Gort, which passed by the following vote: AYES: Commissioner(s) Hardemon, Suarez and Gort; NOES: Commissioner(s) Russell and Carollo, not to hear the protest of the third ranked proposer, New Rickenbacker Miami LLC d/b/a Tifon (Tifon)' because Tifon lacked standing to maintain this protest under the case of Preston Carroll Co., Inc. v. Florida Keys Aqueduct Authority, 400 So. 2d 524 (Fla. 3rd DCA 1981) because they have not plead a substantial interest in the award of this contract. Chair Hardemon: SP. 1. Considering SP. 1, the last time we discussed this item, there were some -- well, first of all, let's read the item into the record, please; SP. 1. SP. 1. Daniel Rotenberg: SP. 1. Good afternoon. Daniel Rotenberg, director, Department of Real Estate and Asset Management. SP.1 is a resolution of the Miami City Commission accepting and approving or rejecting and denying the City's protest for the new Rickenback -- I'm sorry --for the protests for RFP (Request for Proposals) 12-14-077 for the lease and development of 'the City of Miami -owned waterfront property, located on Virginia Key. Chair Hardemon: Thank you very much. The last time this item was being discussed, we were attempting to determine who would have had standing to -- for the bid protest; what parameters we were going to discuss within the bid protest. Of course, the Chairman had discussed at length that the bid protest should be limited to the four corners of the affidavit; however, one of 'the parties proffered that they would allow the opposing parties to speak on the record, outside of the four corners of the affidavit to include details that were not included within this original bid protest. Time -- in considering its timeliness, et cetera. And is that offer still on the table? You're recognized, sir. Al Dotson: Mr. Chairman, just for the record, Al Dotson, with Bilzin Sumberg, 1450 Brickell Avenue, representing the recommended proposer. Yes, at the last meeting, we indicated we wanted to get to the substance and not continue to be mired down in the procedure. We will, however -- however you want to want to proceed, we're prepared to proceed, either way. It's up to you how you want to proceed, but that offer is still on the table. Chair Hardemon: Right. So the matter then for the board -- board members, this is where I am: As you know, I'm a stickler for the rules when it comes to what should or should not be discussed on the matter, but if the parties that are litigating this issue believe that they can have everything on the record and still keep a clean record enough for them to move forward in court, then it's their decision. It affects them, and I would say not us; however, it will affect the future of our possible development. So if they're comfortable with it, then -- Commissioner Suarez: Mr. Chair. City of Miami Page 4 Printed on 101412016 City Commission Meeting Minutes June 22, 2016 Chair Hardemon: -- I'm willing to move forward with it. Commissioner Suarez: Mr. Chair, if I may? Chair Hardemon: You're recognized, sir. Commissioner Suarez: Obviously, you have the right; and certainly, this board has the right to decide how it wants to move forward. I just -- I'm concerned simply because this is a process that I feel may be challenged in court, and I think that the safest way for us to proceed is to follow our own ordinance and our own RFP, if you will, which clearly states forth the procedure by which we have to operate. And so, not that I don't think it can be waived by the parties or that the parties can sort of *come to some other kind of agreement, but I think in order -- Part of the reason why we kept the order as we had legally noticed it to the public was because we wanted to ensure that there was due process and that no one can make a due process argument after the fact if 'we make a decision. Again, I promise you that every single word that we say here today is going to be scrutinized; not only will it be scrutinized judicially, but it also is going to be scrutinized by every single person who is here in the audience today. So my suggestion, humbly, is that we stick to our law and stick to our bid protest -- I'm sorry -- our RFP document, which specifically spells forth what can and cannot be admitted in the bid protest. Chair Hardemon: Madam City Attorney, the first issue that we were attempting to decide at the last hearing -- or the first hearing, rather -- was whether or not one of the parties will be allowed to go outside the four corners of the bid protest. Can you specify exactly what the issue was for the public? Ms. Mendez: Pursuant to 18-104(A)(2), as has been stated, that the written protest states the facts, and then that is pretty much what is going to be the evidence and the information that this board is guided on, which would be the parameters of this bid protest. However, if Mr. Dotson, representing the number one, RCI, is waiving and agrees that they will not be prejudiced at all by bringing or allowing more information to come in, I think we should specify what that information, that extra information will be; spell that out so that Mr. Dotson is able to adequately agree and respond that he is willing, within the four corners of -- you know, to address this outside of 'the four corners of the bid protest. Chair Hardemon: All right. Commissioner Suarez: Mr. Chairman. Chair Hardemon: So there are two things -- Commissioner Suarez. Commissioner Suarez: No, just the -- go ahead. Chair Hardemon: The written protest states the facts, so those are the four corners of the -- of that affidavit that we wish to abide by, and that you just spoke of earlier. And so, for us to move forward only on those facts without bringing in any extra information, would require just a simple vote, majority vote of this Commission. Since there are five of us here, maybe that's more appropriate. Commissioner Suarez: Mr. Chair, if I may? Chair Hardemon: Yes. Commissioner Suarez: You know, again -- and I am sort of dovetailing off what the City Attorney said. When you read Section 18-104 of our Code, which is our laws, it says, in 2C, paragraph 3, last sentence, This shall form the basis for review of the written protest, and"- in a City of Miami Page 5 Printed on 101412016 City Commission Meeting Minutes June 22, 2016 highlight -- fro facts, grounds, documentation or evidence not contained in the protest or submission to the Chief Procurement Officer at the time of filing the protest shall be permitted in the consideration of the written protest. "So the RFP tracks that language, as well; I think it's on page 18, if I'm not mistaken. And so I would just caution the Commission that to keep this process as clean as possible. No matter what we do, I think the right thing to do is to simply follow our law, irrespective of what the parties waive or would like to waive, or whatever the case may be; just from the simple perspective of maintaining the integrity of the process, and making sure that any subsequent judicial review takes into account the fact that we followed our own laws. Chair Hardemon: So I would accept that as a motion to stay within the four corners of the affidavit, which will settle the issue that we'd been discussing before about extraneous information coming in. And if that's the motion, the Chair will take that as a second, and we can take it to a discussion (UNINTELLIGIBLE) -- Gary Brown: Mr. Chairman, may I be heard on behalf of Virginia Key SMI, also known as Suntex; the number -two bidder? Gary Brown, Arnstein and Lehr, 200 East Las Olas Boulevard, Fort Lauderdale, 33301. Chair Hardemon: Before you go on -- Mr. Brown: Yes, sir. Chair Hardemon: -- for --I know your --what your position is. You stated your position clearly on the record a couple meetings ago, because, of course, you want to be heard on the extraneous information that is outside those four corners of the affidavit. Mr. Brown: I won't belabor the point. We've already been there. I just want the Commission to be aware that there is no procedural bar to this Commission considering those things, because 18-104 of your Code clearly deals with what the Procurement director -- in this case, the DREAM (Department of Real Estate and Asset Management) director -- may consider in a timely jiled protest. There is no law, there is no ordinance, there is no statute, there is no case law that I'm aware of that prevents the Commission from independently reviewing what's in the protest or any other relevant information in determining whether or not a bidder is responsive and responsible. And so, it's our position that there is no -- quote/unquote -- exclusionary rule that would preclude the Commission from considering the spill in Biscayne Bay. Chair Hardemon: Thank you very much. So there is the motion that is on the floor. Is there any other discussion about the motion on the floor? To clarify, the motion on the floor would be to -- Commissioner Gort: Bless you. Mr. Brown: Thank you, Mr. Chair. Chair Hardemon: -- keep the discussion on the bid protest within the four corners of,the actual bid protest; that's the motion on the floor. Commissioner Suarez: Mr. Chair, may I restate the motion? Chair Hardemon: You can. Commissioner Suarez: The motion is for us to follow Section 18-104(C), paragraph 3. Commissioner Gort: Second. City of Miami Page 6 Printed on 101412016 City Commission Meeting Minutes June 22, 2016 Chair Hardemon: It's been properly moved and seconded. Is there any further discussion on this issue? Seeing none, all in favor, say 11ye. " The Commission (Collectively): Aye. Chair Hardemon: That motion passes. The next issue -- Commissioner Suarez: By the way, if I may, I think to his point, which was a concern about potential extraneous issues, I think the reason why we ordered the agenda the way that we did was so that there will be an opportunity for many of those things to be heard. Mr. Brown: I would suggest one thing, and I know it's not in the order that was voted on, but I think I'd like to just renew our request that the Commission consider whether or not to throw out the RFP first, because if the Commission does that, it would moot the bid protest and potentially save a lot of *time of 'us arguing over the protest. If you all decide not to throw out the RFP, then, of course, we would then have to have our bid protest heard. That's just my humble suggestion; but, obviously, whatever the Commission wants to do, we'll abide by. Chair Hardemon: Thank you very much. Commissioner Suarez: We just voted on that. Chair Hardemon: We have another item that we need to get past before we move to the bid protest, and that is the standing in which the number- three bid -- well, the number -three person; not a bid protester, but a -- I don't believe the number three -- did they turn in a bid protest? Richard Perez: Yes. Chair Hardemon: Okay, so the number three did turn in a bid protest, but the question is whether or not they have the standing to actually turn in a bid protest. So, if ,we may, I'll allow some argument to be made on that behalf. The number three is here, represented. I'll let the number three speak, and then I'll -- for five minutes -- then I'll give the winning bidder an opportunity to speak for five minutes, and then a response from the City. Okay, you're recognized as the number three. Mr. Perez: Oh, you want me to go first? Sure, no problem. Richard Perez of Holland and Knight; offices at 701 Brickell Avenue. This particular issue should be a very, very easy issue. I think the case law is very clear that, with respect to standing, it really is a lout forVandard; in other words, but for the arguments that you're making, you would have been awarded the RFP. Here, our bid protest, which was timely submitted; our bid protest, which had copious recitations to the record, et cetera, establishes two -- establishes three things. One is our point that RCI is nonresponsive because of* its failure to meet the parking requirements in the RFP. RCI is nonresponsive because its purported cure, its purported variance, its purported clarification still doesn't meet the requirements of the RFP; and third, that the process itself was tainted by what we call an organizational conflict of interest, which is that one of the evaluators had a conflict of interest. One evaluator was the general manager of Bayside. That person was the person who decided -- and you'll hear this in my main presentation, if I'm given the opportunity -- that person became the decider of this RFP. That person, because of 'the huge discrepancy in score between that person and the others, decided who would get this piece of property. And that organizational conflict of interest, the case law is clear, warrants a rebidding or a redoing of the solicitation process; which I add was the first opinion of the DREAM director with regards to that. And if you throw out that entire process, we would be selected. So -- and in addition to that, we raised multiple issues with regards to Suntex's proposal, including the fact that they had -- they did not identify anybody on their -- in their RFP that met the require -- one of *the few mandatory requirements in the RFP to have restaurant experience. They subsequently amended City of Miami Page 7 Printed on 101412016 City Commission Meeting Minutes June 22, 2016 it, but what it gave them was an impermissible option in this particular bid, right? And the case law indicates that bidders should not be permitted that. In addition to that, they had included and they put in -- and you've seen it -- a big building between the Rusty Pelican and the rest of this property. The RFP was very, very clear that that access way could not be impinged by any building, and that access needed to be preserved; and therefore, RCI -- Suntex's bid is also nonresponsive. So we've made all of 'the arguments. We've made the arguments that one and two are both nonresponsive; and but for that, we would have been selected. And we've argued that the entire process is -- was flawed because of this conflict of interest. And I've given the case law to the City Attorney's Office. This is very, very clear that somebody challenging both the first and the second bidder and is the third bidder has standing to raise it. And this is a very distinct issue from the issue raised previously. This isn't about your process. This is an argument about standing that is outside of your process. This is not about following your process. This is about allowing us an opportunity to make our arguments and present our arguments to you, which we think should be well taken by this Commission. And let me point out, with regards to that organizational conflict of interest, if you take out that one score, we are, in fact, the highest bidder. Vice Chair Russell: Mr. Chair. Chair Hardemon: You want to allow the rest of them to speak? Vice Chair Russell: I just had a question with regard to what he -- Chair Hardemon: No problem. Vice Chair Russell: -- a question for our City Attorney, though. Does our Code speak to whether or not -- who can file a protest -- second place, third place, fourth place? Ms. Mendez: No. Vice Chair Russell: It doesn't speak to it, actually. Ms. Mendez: No, Vice Chairman, it doesn't speak to that; however, we're just going off of *the case law. Vice Chair Russell: Thank you. Ms. Mendez: Thank you. Chair Hardemon: Can you state for -- well, that's later. You're recognized, sir. Mr. Dotson: Are you finished? You have two minutes and 20 seconds left. Mr. Perez: No, I could keep going. Chair Hardemon: That's why I was quiet when you -- Mr. Perez: No, no, but, look, I don't need to speak more. I think that, again, the case law is -- and I will say this: On their papers -- and all credit to Mr. Dotson --these are not issues that were raised by, I believe, that were raised by RCI in terms of our standing related to being the number -three bidder. They made other arguments, saying that maybe our bid did not contain particular things that needed to be in the bid, but they did not raise this particular issue. And so, I really -- this is about an opportunity to put things on the record, and I think that the best course of action for this body is to allow us an opportunity to speak. I won't say any more. City of Miami Page 8 Printed on 101412016 City Commission Meeting Minutes June 22, 2016 Chair Hardemon: Thank you very much, sir. You're recognized, Mr. Dotson. Mr. Dotson: Well, the reason I wanted to make sure he had sufficient time -- and I'm going to reintroduce myself just for the record, and I want to set up a easel, if you don't mind. Again, my name is Al Dotson, Jr., with Bilzin Sumberg, 1450 Brickell Avenue, representing the recommended proposer. The reason I wanted to make sure that he had all the time and used it appropriately, because there's a three prong test with respect to standing in a bid protest, and everything you just heard ignored two of the three prongs of standing. First, in order to have standing to have a -- in order to have standing in connection with a bid protest, you must first prove that your response legally met all the requirements of the RFP. Not only did he not prove it, he didn't even say it. Number two: He's got to show that Suntex and RCTs proposal were both nonresponsive; you heard a lot of discussion about that. And then, three: He must show that whatever he's claiming we failed to do that they didn't do it, also. You heard no discussion about that. So just on that alone, the case law suggests he does not have standing. But let me go through why they're nonresponsive. First of all, let's be clear on a couple of points. You've cited case law that are actually in their protest. The problem with that case law is that it's the wrong cases. The first case was Hattie v. Liberty Behavioral Health. That's behind tab 32 of the document that was just handed to you and -- I want to make sure that was handed to you by the Clerk. Chair Hardemon: No, we haven't received anything just yet. Mr. Dotson: I would ask that my time -- Chair Hardemon: Can we halt the time? And whatever the document is that Mr. Dotson needs to pass to the Commission, could we have that passed? Todd B. Hannon (City Clerk): And, Chair, if I may make a brief statement about a Fire Code issue. Ladies and gentlemen, those of you who are standing in the aisle here, we do need to have this open. It's been explained to me that it is a violation of our own Code, so if you would like to -- maybe some of you go out into the lobby, you'll still be able to see the proceedings on a flat screen TV, and still be able to hear exactly what's being said in the chambers. Thank you. Mr. Dotson: Real quick, behind Tab 32 touches on all of the cases. There were two cases cited by Mr. Perez, and those cases do not say what he says they say; and nor, nor do they address the -- two of the three points that I mentioned. So it's important that you look at the correct cases that area behind tab 3 -- I mean, excuse me -- 31. And this is about the scoring issue. He talked about scores. You can argue all you want that you think you should have been scored higher, but you've got to give proof that the error was arbitrary, capricious -- Commissioner Suarez: Mr. Chair, if I may? May I interrupt? Chair Hardemon: Sure. Commissioner Suarez: It seems like you're going into the scores, and what we're talking about here is standing. Mr. Dotson: Yeah. He was raising that issue as part of his standing. Commissioner Suarez: He said a lot of things. Mr. Dotson: Yes. Commissioner Suarez: And I apologize. I probably should have interrupted him, too, because he talked about a lot of things that were towards the merit of his protest versus the standing City of Miami Page 9 Printed on 101412016 City Commission Meeting Minutes June 22, 2016 issue. And so, my question to you is, Mr. Chair, is, to me, the standing issue, from what I look at in his document, is confined to the citation of one case, which is actually a DOAH (Division of Administrative Hearings) case. Did you cite any other cases other than the DOAH case? Because that's the only one that I see here. Mr. Perez: That's the case we cited and -- Commissioner Suarez: Okay. Mr. Perez: -- subsequently sent additional pieces to the -- Commissioner Suarez: Understood. Mr. Perez: --for the -- Commissioner Suarez: You sent additional cases subsequent to this? Mr. Perez: -- to the City Attorney's Office. Commissioner Suarez: I didn't get a copy of that. So I've gotten additional cases from you, but not on this issue. Mr. Perez: If I recall correctly, we sent additional cases to the City Attorney's Office. Commissioner Suarez: Okay. So right now, as far as I'm seeing is he only cites one case on standing. And can you talk about standing, just focus on standing? Mr. Dotson: You know what? I'll just stick there. Chair Hardemon: I guess the reason -- three prongs. There was a three prong standing test, and I think that's what Mr. Dotson was getting into -- Mr. Dotson: Right. Chair Hardemon: -- that he must meet these three things. If I follow his argument, he's saying they spoke on one of the issues; but the other two, they have not. And I believe he was getting into those two other issues, because these three things will amount to standing, so. Mr. Dotson: Yeah. I'll make it real brief, and I won't use all of my time -- Chair Hardemon: One second. Mr. Dotson: Clearly, he hasn't shown that he's legally responsive. He hasn't even alleged -- he hasn't said that and he hasn't proven that. I'm going to pass out a document that shows all the errors in the Tifon response that makes it clear that they are nonresponsive; and therefore, do not have standing. He also has not been able to demonstrate at all that his proposal does not suffer the same infirmities that he's claiming that we have; there's no proof of that. So without that proof, there's nothing more for me to say, quite frankly, because that's what's before you, and he has not yet proved that. Chair Hardemon: Mr. Dotson, can you -- the three prong standing test, which case is that? Commissioner Suarez: And let me -- Mr. Chair, if I may, while he's looking for that, let me apologize to everyone in the audience. Unless you guys like Judge Judy -- you're going to be in for a long episode of Judge Judy in hearing all these legal arguments, so please bear with us; we City of Miami Page 10 Printed on 101412016 City Commission Meeting Minutes June 22, 2016 have to do this. Chair Hardemon: She's the highest paid judge on television. Commissioner Suarez: Is she? Chair Hardemon: Yeah. So -- Commissioner Suarez: We have to do this to make sure that we are acting in conformity with our laws and our rules and our regulations, so thank you for your patience. Mr. Dotson: The Hattie case is fine for the three prong test. It is -- you have to prove three things: One, that you as a proposer are legally responsive; number two, that all of the proposers in front of you are not legally responsive; and number three, that your proposal, whatever it is you're complaining about, whatever it is you say took place, your proposal does not suffer the same infirmities that you're claiming that Suntex and RCI have in their response. And this summary that I have put up just identifies why the Suntex -- excuse me -- the Tifon proposal is illusory and nonresponsive, and the RFP requirements that they failed to meet. Don't worry about this one; we'll get to this side later with respect to their bid protest. But just with respect to the RFP requirements, they do not meet the RFP requirements. And it's not just what I say; your City Attorney, in affirming the bid protest, agreed with this, too; your Manager, in affirming the bid protest -- affirming the Manager's recommendation -- agreed with this, too. This isn't just our position. Mr. Perez: And -- Chair Hardemon: I allowed you to get your five minutes to speak. It's his turn for his five minutes. I'll allow the Commission to ask questions to Mr. Dotson at this time if they have a question before we get there; but remember, we have to get to the City's position, also. You're recognized, sir, Vice Chairman. Vice Chair Russell: Another question for our City Attorney: Do we hold to a three prong test for our bid protest standing issue? Ms. Mendez: The -- yes. The City Attorney's Office agrees with Mr. Dotson's argument with regard to the standing by Tifon. At this time, they do not have standing. If for some reason, the number -one bid were thrown out, then they could have standing; and then, we could have a protest at that time, with regard to that. But the only case that we're relying on that shows that they do not have standing is R. Preston Carroll v. NCS Pearson case. It's the controlling case in the Third DCA (District Court of Appeal), and it states that a third -ranked bidder is unable to establish a substantial interest that grants standing. So we agree with the position that they do not have standing at this time. Vice Chair Russell: Madam City Attorney, but in that specific case, wasn't it -- was it simply that a third-place bidder does not have standing; or in that case, that third-place bidder did not have standing for various reasons that they could not prove? Ms. Mendez: The case that he is citing is the Hadley [sic] case. Vice Chair Russell: No; the one that you're referring to. Ms. Mendez: Oh. The one that -- Commissioner Suarez: Preston Carroll. City of Miami Page 11 Printed on 101412016 City Commission Meeting Minutes June 22, 2016 Ms. Mendez: -- I'm referring to, the Preston Carroll case, it did not have a three prong test. The Hadley case -- Vice Chair Russell: No, no, I'm not asking about the three prong test -- Ms. Mendez: Okay. Vice Chair Russell: -- but you had mentioned that they did not have standing because of the case law, citing the Preston case that said a third-place bidder could not file a protest. And my question to you is: Is that precedent being set by the fact that their decision simply was that a third place -- any third place should not have standing? Or in that particular case, did their third place not have standing for very specific issues and reasons that made them lose that case ? How are we interpreting the precedent? Rafael Suarez -Rivas (Assistant City Attorney, Supervisor): Preston Carroll was a case that held that the third -low bidder was unable to demonstrate that it was substantially affected, and it therefore lacked standing to protest the award of the contract to another bidder. I believe that what we've been saying is that that is a Third District Court of Appeal decision from this appellate district and is the governing case law. The facts of that case talk about the fact that there was a bidder who was contesting the award and that the -- it was contested, and it was held that they did not reach the merits of that case, because they found that the appellant lacked standing. And the court said it needed a substantial interest. A second -lowest bid establishes a substantial interest, and then the second -low bidder had it. The third low bidder -- you have to be in the line of award; you have to be able to get the contract. And I believe that that is where the court was going to, and that's why the court ruled in that manner. Ms. Mendez: You know, in a circular way, unfortunately, is how we have to explain it to you in that it was considered by the court that they did not have a substantial enough -- a big enough interest, because they were third in line, and that is what the case -- you know, basically says why there is no standing, because they were the third on the totem pole, basically. Vice Chair Russell: So that was the reason they were not granted standing -- Ms. Mendez: They didn't have -- Vice - Vce Chair Russell: -- not from specifics of their case. Ms. Mendez: Right. Vice Chair Russell: Simply that they were third in line, which didn't give them substantial interest. Ms. Mendez: Correct. Vice Chair Russell: Thank you. Mr. Perez: And with all due respect, we don't disagree with that being the case law. In fact, that is, in fact, the case law. There, they didn't challenge the number two, if *I'm correct. And so the issue here is that we challenged both one and two. And with regards to his point -- Chair Hardemon: Sir. Mr. Perez: -- it is just arguments Chair Hardemon: Sir, sir. City of Miami Page 12 Printed on 101412016 City Commission Meeting Minutes June 22, 2016 Mr. Perez: -- related to our non -responsiveness. Chair Hardemon: I understand, sir. Five minutes, five minutes. Mr. Dotson still has one minute left that he has not released. I opened up for the Commission to ask questions to the City Attorney. The City Attorney is going to have her time to make the arguments on what her position is. And I'll give you a one -minute rebuttal as long -- as well as Mr. Dotson, as well as the City. Mr. Perez: Thank you. Chair Hardemon: But at this time, Mr. Dotson, do you have any additional thing for me? Mr. Dotson: Yes. In my minute and one second, I just want to say that we absolutely agree that the third-place proposer can, in fact, have standing; this particular third-place proposer does not. The Preston Carroll case stands for something else, as well. The third-place proposer must show that their proposal was responsive. And there has been no showing before you today that the third-place proposer's response was responsive. The other case is International Property, Inc. v. Department of Health and Rehabilitative Services. That's also a Third DCA case. They must show that their own proposal does not suffer the same infirmity. So there is a three prong test; that's what the law requires. You've heard a lot of discussion about why we aren't responsive. You haven't heard the other two. Commissioner Carollo: Mr. Chairman. Chair Hardemon: You're recognized, sir. Commissioner Carollo: Just -- point of clarification. It appears like the City Attorney and Mr. Dotson both agree that Mr. Perez doesn't have standing -- or his company doesn't have standing, but on different issues, different reasons. Madam City Attorney, let me ask you something. Does that mean that in your position, any bid protest, the third-place winner cannot protest? Ms. Mendez: No, that's not the case. We agree -- in this instance, we agree with both of his arguments. With regard to the Pearson case -- I'm sorry -- the Preston case. But when -- there are instances when a third-place bidder would have standing; this, pursuant to case law, is not one of them though. That's what I -- how I wanted to clarify it. Commissioner Carollo: So could you clarify when a third-place proposer would have standing? Mr. Suarez -Rivas: When they claim that the entire process is flawed, is corrupted, is biased, is collusive, departs from the essential requirements of law. And what we're trying to explain, Commissioner, was that when the City denied the protest -- I mean, we felt that the procedure did comply with the essential requirements of law. We do not believe that the procedure was fatally flawed. And when they attack one and two, the response to that is that the City staff and the City, you know, Administration, we have felt that the proposers all met -- this was an RFP, not a sealed bid -- they all met the minimum requirements of being responsive and responsible. So we don't acknowledge that they're not responsive and responsible. That's the debate before you. Mr. Perez: And that exactly answers it. Ajve've argued that the entire process was flawed because of the organizational conflict of interest. B, 'because he says we're nonresponsive doesn't mean that we are nonresponsive; it is argument. And you've just heard it from them; we were found to be responsive and responsible. You heard it from them; and moreover, what's good for the goose is good for the gander. What we put in our bid protest in our last footnote were all of the arguments against their position that we were nonresponsive. What they said was we violate Miami 21. Well, you know what? This entire process violates Miami 21; everybody's bid violates City of Miami Page 13 Printed on 101412016 City Commission Meeting Minutes June 22, 2016 Miami 21. They said that we didn't provide sufficient detail in our plans; that's what they said. But you heard from them right now that we were responsive and responsible. And §Ufficient detail'is not a material variance; it's in the eye of the beholder, and because they say so doesn't make it so. And third, they point out the discrepancies in our parking calculations. Now, what they don't point out is we got our parking contribution correct, and that is what the park -- that is what the RFP required; that we get our parking contribution number correct. That we had some differences in a 500 page proposal, everybody has those; those are not material variances. That is all covered in our bid protest document. What's good for the goose is good for the gander. Chair Hardemon: Thank you very much, sir. Your minute rebuttal has expired, and so, what I'll do is I'll allow the City to have its five minutes; and then I'll have -- Mr. Dotson, you'll do your one -minute rebuttal, and the City will have their one -minute rebuttal. Ms. Mendez: Thank you, Chairman. Basically, I'll split my time, just an advice to you as the board; and then, Ms. Ramos may want to add something to that on beha4fof staff.' It's basically our position that Tifon does not having standing under NCS Pearson, as well. That is a DOAH case; not a Third DCA case, as Preston Carroll is; however, the Third DCA repeatedly reviews the decision of 'DOAH and Commissions, and has held that a Commission is not bound to hearing an examiner's recommendation. Also, a sister district opinion is merely persuasive. The Third DCA in GEICO Indemnity, relying on a Florida Supreme Court Case, has stated: A district is only bound to apply existing precedent fl"om another district when its own district is silent. Here in the Third DCA, Preston Carroll spoke and has ruled that a third -ranked bidder, as in this situation, lacks standing to be part of this. Further, in Intercontinental Properties -- it's another controlling Third DCA case -- states: A protesting party must show that its own bid does not suffer the same infirmities as it claims for the other bidders. This is information that Mr. Dotson also claimed and stated in his argument. Here, it is claimed that Tifon has the same deficiencies, and it claims the other parties suffer, as well. So in point, Tifon argues that there are -- in materials that they submitted that RCI eliminated the parking garage. It also says that RCI did not propose to pay for the parking contribution. It also says that there is a variance that affects the price of 'the bid, and it gives the bidder an advantage not enjoyed by others, and adversely impacts the City's interest. Tifon, however, has suffered similar infirmities. With regard to the parking contribution language, Tifon has failed to provide accurate financials. And with regard to the parking location, Tifon provides for a terrace above the MPA (Miami Parking Authority) parking surface structure, which will also be obstructed and operated and profited by Tifon alone. And finally, with regard to providing alternate surface parking, Tifon also provides surface parking throughout its plan, which is not constructed, operated, or maintained by MPA. So in short, the third -ranked bidder in this case, Tifon, does not have standing to speak before you at this time. Commissioner Suarez: Mr. Chair. Ms. Mendez: If for some reason the counsel does want to hear from Tifon, the City of Miami reserves all rights and arguments, objections and challenges relative to Tifon, including, without limitation, that it lacks standing, in order to preserve our rights in subsequent proceedings. The City of Miami does not acknowledge Tifon's claim that RCI and Suntex are neither responsive or non -responsible, and that there is any material defect in the process. Thank you. Commissioner Suarez: Mr. Chair. Chair Hardemon: You're recognized, sir. Commissioner Suarez: Thank you. So the Preston Carroll case is pretty short. It's one, two, three paragraphs long, and it basically says -- and by the way, counsel, you don't cite it in your memo, so I'm not sure why, because it's a Third DCA case that you would think controls on the issue of standing, but it's pretty straightforward. And it says that the second -lowest bid City of Miami Page 14 Printed on 101412016 City Commission Meeting Minutes June 22, 2016 establishes that substantial interest. And then it goes on to say -- the third -ranked proposer sort of attacks the second -low bidder's calculation of how it comes up with its value, and the court decides not to get into that, and essentially uphold what the finder of fact, if you will, determined. So, you know, I guess I'm -- the reason why I disagree with your argument is because you didn't cite a Third DCA case, which I think is controlling, and I think both sides cited it. And I do think you would have standing -- and Madam City Attorney, correct me if *I'm wrong -- if 'we heard the bid protest of the second -ranked proposer and then somehow agreed with the second -ranked proposer and threw out the first bid, then I believe that he would have a substantial interest and he would be a proposer, essentially, with a valid bid protest with standing. Ms. Mendez: Correct. Miriam Ramos: Mr. Chair, if I may? Chair Hardemon: You have the additional -- what is it? -- two and a half minutes? Ms. Ramos: I don't need two and a half minutes, but thank you. Miriam Ramos, Deputy City Attorney, City of Coral Gables, serving here today as conflict counsel to the City of Miami staff in this case. Staffs position is exactly the same as that of the City Attorney's Office. We believe that they do not have standing until such time, if there is a time, when the number one is thrown out and the number two is then considered. Number three would then have standing, but does not have it at this point. Chair Hardemon: Is there anything else from the City? Seeing none, I will leave time now for the one -minute rebuttal from -- Mr. Dotson: We won't belabor the point. I don't -- there's nothing more to be said. Chair Hardemon: Okay. And I'm assuming the one -minute rebuttal from the City is also waived at this time? All right, the discussion from the Commissioners. So basically, what we need then is to make a decision. So there has to be some motion, whether or not we go with allowing the third bidder to -- Commissioner Suarez: Yeah. My recommend -- Chair Hardemon: -- participate in the bid protest or not. Commissioner Suarez: Right. So my recommendation would be that we hear the second place bidder, who I think we all agree has standing to protest the bid. And then once that determination is made, we should decide whether or not the third-place bidder has standing. That's my motion. Chair Hardemon: I'm confused. Commissioner Gort. Commissioner Gort: You don't need a motion; just let us hear this. Commissioner Suarez: I don't think you do either, but if you want -- I mean, I'm fine with making a motion if you want, if it clarifies things for you. Whatever. Chair Hardemon: I just want to be clear where we're going. So is the motion to hear from the first bid protest and not the second? Commissioner Suarez: Yes, that's correct. In other words, the second place person, which is Suntex, they have, I think, established a substantial interest based on Preston Carroll, and I think they have standing to protest, and I think we should hear that first. City of Miami Page 15 Printed on 101412016 City Commission Meeting Minutes June 22, 2016 Chair Hardemon: All right. Is there a second to that motion? Commissioner Gort: No problem. Chair Hardemon: Been seconded also. Is there any further discussion on that motion? Vice Chair Russell: Yes, please. Chair Hardemon: You're recognized, Vice Chairman. Vice Chair Russell: The City Attorney Suarez -Rivas did state, though, in his exception -- there was the question Commissioner Gort asked: When would the third place have standing? and he stated the several case -- issues where a third place -- we're saying that the whole issue itself was a problem, and the third place was nodding that that's where they were in this. So that's where I guess I'm not fully seeing where the City Attorney's position is that number three does not have standing. It -- did their protest not allege those criteria that you stated? Mr. Suarez -Rivas: Mr. Perez, on beha4fof -- I don't want to speak for him, but I do think he pled that there was an infirmity in the process, and that one and two were not responsive and not responsible. He did plead the right things, but what the City Attorney's Office I believe is suggesting to you, Commissioner, is that we do not think that, based on the documents in the four corners that are considered, again, that there was an infirmity in the process. We don't think that there was collusion or bias in the vote; you know, that kind of thing. We don't think that there was an essential departure from the requirements of law, and we don't think that one or two are nonresponsive or nonresponsible. Therefore, he has pled it, but we do not think that -- we don't think that, as a matter of law, that is shown, because the process does pass legal muster. They were not found to be nonresponsive or nonresponsible. So we don't think that on the pleadings, if it were, that that element is there, and that's why we disagree. All I -- all the City Attorney's Office was trying to do was that if the Commission, in its wisdom, wanted to hear from number three, we felt that it was imperative that the City reserved its rights to, you know, contest the standing of them in any and all subsequent proceedings. Thank you. Commissioner Suarez: Mr. Chair, if I may? Chair Hardemon: (UNINTELLIGIBLE). Commissioner Suarez: Yeah, and that's why I'm not so sure -- and I say this respectfully to our Assistant City Attorney, that he sort of -- I don't want to say he's falling into the counsel's trap, which is -- he's a very, very able litigant and attorney, but the -- that standard that he's reading from is from the DOAH citation that counselor cites in his bid protest, and I think the better practice is to say that the standard that we're governed by is the Third DCA in Preston Carroll, which is governing law in this district, and that case is very straightforward, it's very simple, and it sets out the standard in a very simplistic way, and I think that's the advice that I think the City Attorney was giving us. And so to sort of engage in this additional discussion, I think, sort of, you know, dovetails away from Preston Carroll, which is what I think the controlling case of the district; and gets into a DOAH case, which is outside of the Third DCA in terms of, you know, where the Third DCA has spoken on this matter. Commissioner Carollo: Mr. Chair? Chair Hardemon: The reason why your mike is off *is because your time has expired. Commissioner Carollo: Mr. Chair? Chair Hardemon: Yes. City of Miami Page 16 Printed on 101412016 City Commission Meeting Minutes June 22, 2016 Commissioner Carollo: Thank you. And listen, I think we went down this path, because I asked a very simple question to our City Attorney, which was, "When does the third-place " -- Commissioner Suarez: Right. Commissioner Carollo: -- "person or company have standing? " And that's when it was mentioned that if he, she, the company protest that everything should be thrown out that then they have standings, and that's where they said that they're protesting, so -- Ms. Mendez: Just to clarify and this gets -- standing is always very complicated, but in a nutshell, in a situation where you -- states that the process was flawed, that everything was incorrect; not a simple numbering situation or a scoring, not something as simple as that, but something that the whole process was flawed. In that situation, arguably, a third-place bidder does have standing, pursuant to the DCA case -- I mean, pursuant to the -- Unidentified Speaker: DOAH case. Ms. Mendez: -- actual DOAH case. And with regard to this situation, though, that is why we're just clarifying, as Commissioner Suarez has said, that the Third DCA has spoken as to when you have standing. However, Commissioner Carollo, you're right. If you find several irregularities that rise to the level, yes, you can make an argument that a third place has standing, but in this situation, none of the irregularities were found to be irregularities, and that's the -- Commissioner Carollo: And Madam City Attorney, who makes the determination that those irregularities are significant or material where the protest is valid? Ms. Mendez: Well, the case law has been very specific. Commissioner Carollo: So who's making that determination? Is it the City Attorney's Office? Is it the Commission? Who makes that determination? Ms. Mendez: Before -- with regard to standing, before it ever gets to you, those situations, based on case law, are determined. Simply scoring -- a simple scoring error is not enough to grant people standing. However, when the whole process is incorrect, that could give a third bidder standing. We're not saying that they would not have standing in another situation, but right now, as it stands, them in a third-place position, they do not have standing. Chair Hardemon: Commissioner Gort. Commissioner Gort: I'm not an attorney, so I need to ask this question. Whatever we do today, we're going to be in court for the next two to three years. Now, my question is -- my understanding is our position is we hear from the opposition or the protester, and then they'll present their argument; staff and Administration responds, if they believe they're correct or not, and then we make a decision, is my understanding. Chair Hardemon: We will definitely hear in that order. However, we just want to tackle this one issue, because right now you have two people who are asserting a bid protest right. Commissioner Suarez. Commissioner Suarez: Yeah, I just -- again, I'm a little bit confused because, to me, the City Attorney cites the Third DCA case, the counsel for the staff cites a Third DCA case, counsel for the first place bidder cites the Third DCA case as the controlling case on standing, and that case is simple. And so to me, to have a discussion about how the DOAH case could potentially apply is outside of the bounds of what the controlling law is. That's my perspective on it. And so we've City of Miami Page 17 Printed on 101412016 City Commission Meeting Minutes June 22, 2016 gotten perspectives from three different people who agree. And to be frank, I mean -- and, you know, I can understand why, you know, counsel for Tifon didn't cite the case in his standing provision, which is a paragraph long, but that doesn't make it not controlling and not the controlling case for this board and for this body. And so I suspect, as Commissioner Gort said, that if they do file suit, if -- depending on how things work out today, which we don't know, this will be one of 'the arguments that they make; that they have standing and, you know, we deny them standing if we go through the process, but the reverse is also true. If we give them standing, then I suspect, you know -- and things work out a different way -- that they'll be suing us, saying that we gave somebody standing that should not have been given standing, and so our job is to apply the law to the facts and, you know, based on everything we've been told. Everyone, I think, agrees -- who's sort of, objective, with all due respect, in this process -- that the best way to go forward is to hear the second place bidder, who has a substantial interest, based on Preston Carroll. If we agree that that protest has merit, then we can hear the third-place bidder's protest. They will have standing under those circumstances. Otherwise, we just go forward to the next item on the agenda. Chair Hardemon: All right. So the motion that's on the floor right now is to hear from the second bid -- ftom the first bid protester and not the second. That is the motion that is on the floor, to clarify and to hear from the number -two winner of the -- or the number -two response who responded to the bid -- to the RFP and not the number three at this time. Is there any further discussion on that? Seeing none, all in favor, say cfye. " The Commission (Collectively): Aye. Commissioner Carollo: Mr. Chairman. Chair Hardemon: All against? Commissioner Carollo: Mr. Chairman, real quick. You're saying, hear from the number two first? Chair Hardemon: No. I'm saying that this is a bid -- right now we're trying to have a bid protest. Currently on our table before us are, really, two bid protests. Commissioner Carollo: Understood. Chair Hardemon: And so what we want to do is narrow this down to one bid protest. The City and opposing -- and counsel has made arguments that the only entity that's -- Commissioner Carollo: Mr. Chairman, I don't mind listening to the second bid protester -- second-place bid protester, but if the question is we're going to listen to the second and not the third, you know, that's something different than listening to the second and then seeing what happens and then (UNINTELLIGIBLE) the third at that time. Chair Hardemon: That's not how -- Commissioner Suarez: Mr. Chair. Chair Hardemon: You want to have two very different bid protests. That's not how I understood this to be. Right now the motion on the floor -- you want to clarify for the motion that's on the floor? Commissioner Suarez: No. I mean, the motion on the floor is, in my --from my perspective, to follow the law of *the Third DCA, which is to hear the second bid protest; and then based on the determination there, we'll decide whether or not the third proposer has standing. City of Miami Page 18 Printed on 101412016 City Commission Meeting Minutes June 22, 2016 Chair Hardemon: Okay. Commissioner Carollo: That's what I'm saying. So -- Vice - Vce Chair Russell: So -- Commissioner Carollo: -- you're not necessarily shutting out the third bid protester right now. You're saying -- Vice - Vce Chair Russell: Yes, he is. Commissioner Carollo: -- let's take it by the second place bid protester, and then we'll see where we go from there? Commissioner Suarez: Exactly. Commissioner Carollo: Yeah. Okay. Vice Chair Russell: I disagree with that. It seems that we are -- we would be shutting out the third, unless we deem number two -- number three -- with a Yes "vote on this, number three would have no chance against number one, even if we don't agree with number two. I do agree with what the City Attorney said with regard to when a third-place bidder can protest, but I do not agree in that they interpreted the protest to say it was immaterial. So if *the third place made protests that fell within the bounds of what our City Attorney has told us would give them standing, they should have standing. Now, it's up to us to determine if what they actually allege is material or not or merits winning that protest, but I think we should hear them. Commissioner Suarez: Mr. Chair. Chair Hardemon: You're recognized. Commissioner Suarez: Why don't we all agree that we should hear the second place bidder first? How 'bout that? And then based on what we decide on that person's protest, we'll decide whether or not the third-place bidder has standing. Ms. Mendez: If I may? Chair Hardemon: I don't understand how any of that goes. I thought we were deciding standing now. Commissioner Suarez: I'm comfortable deciding standing now. Chair Hardemon: (UNINTELLIGIBLE) five minutes to one (UNINTELLIGIBLE). Commissioner Suarez: Mr. Chair, I'm comfortable deciding standing now, because I'm comfortable with what -- how the law applies. Chair Hardemon: Right. Commissioner Suarez: But I see some consternation fl"om some of my colleagues as to what applies, so I'm just trying to chart a path forward that allows us to do this in an orderly fashion and make decisions that are justifiable. Chair Hardemon: But my thing is that if we just vote, I think that would decide how we move City of Miami Page 19 Printed on 101412016 City Commission Meeting Minutes June 22, 2016 forward. Commissioner Suarez: Well, I mean, that's fine too. I'm fine with that too. Chair Hardemon: Because right now -- as I understand it right now, the motion on the floor is to hear from the first bid protester, the person who -- which is the person who placed second in the RFP. Ms. Mendez: But if 'I may clarify, Chairman? Because it's either a motion that does not give standing to number three at this time, you're going to go through a bid protest, make a decision on that bid protest, and that would determine whether they have an opportunity to argue in a second bid protest. You have to be a little clear on what the motion is, because if not, we won't be able to determine what the order of procedure will be. Commissioner Suarez: Mr. Chair. Ms. Mendez: So it has to be whether we decide standing based on Preston Carroll. Commissioner Suarez: Mr. Chair. Chair Hardemon: You're recognized. Commissioner Carollo: And that was my point. Chair Hardemon: I mean, that's why when I first started this, I -- my language was more specific. My language that I tried to have everyone move forward with was that we state that the number -- the first bid protester -- the number -two person has standing and not number three, but there was more evasive language that's been placed before us, and I think that's what's making this a bit more difficult. Commissioner Suarez: Yeah, I would agree. I think -- I'm comfortable with following Preston Carroll right now, because I think that's the controlling law. I see that some of my colleagues are not -- maybe struggling with that in terms Of'-- Vice f'-- Vce Chair Russell: The concern, if I may colloquy, is that if we go with Preston Carroll, and we do not give standing to number three, and we do not find that number two merits, then we will never hear from number three, because we have taken away their standing at this point. Commissioner Suarez: That's correct. Ms. Mendez: Correct. Commissioner Suarez: Correct. Vice Chair Russell: Commissioner Suarez' suggestion is that we hear -- and if 'we give merit to number two, then we can hear number three. I would like to hear all three. I really feel that the actual protest being raised from the number -three level that there are problems throughout does have merit, and then we need to discuss all of them. And hearing them air that will -- I believe they do have standing in that sense, because that's what our City Attorney Suarez -Rivas did say; that if that was part of their protest, that they should be heard, that they would have standing. And so that's what they've said. So why do they have standing? Commissioner Suarez: So, let me -- Chair Hardemon: But the thing is this, is that at this time, when we're talking about standing, City of Miami Page 20 Printed on 101412016 City Commission Meeting Minutes June 22, 2016 they were supposed to raise the issues that would give them standing. And so, for instance, you heard from opposing counsel that they didn't raise the three issues that they -- that would give them standing to present at this time. So then it begs the question. Let's say, for instance, if this was six different parties and all six different parties submitted bid protests, how would you go about then deciding who's going to be heard? Would we have six different bid protests or one with all six people? Madam City Attorney, can you give us some guidance on what it was -- or what it is that the number -two person in the RFP has -- or the second bid protester has to prove or allege to have standing in this case? Ms. Mendez: They would have to prove what you've heard thus far. They would have to prove that the number one or the number two was nonresponsive and nonresponsible; they have to prove that the whole process is flawed; they would have to prove that there is, you know -- everything that has been done by staff thus far has been arbitrary and capricious. They would have to prove many things. They just gave a statement -- as the Chairman has reminded everyone, there was argument placed as to why they feel that they have standing. If this Commission at this time, as the trier of fact, feels that they have standing, then you let them be a part of this process. If you don't feel they have standing and follow Preston Carroll, then you just deal with the one bid protest. So this Commission, based on the vote that you're about to take, will decide whether or not they have standing, based on what has -- Chair Hardemon: And Vice Chairman, the reason I bring that up is because that's the reason I gave everyone five minutes so they can make that argument. You don't give someone five minutes so they make that argument, and then say, Okay, well, let's hear them, if they have standing, " and then have a -- give them standing, and then have them argue the bid protest. That's just -- that's -- I wouldn't think that that's how we would want to move things forward for this to make sense. I think we should decide first who has standing, who does not have standing, so that we can get to the merits of the bid protest. Mr. Dotson: Mr. Chairman, I think that there is a misunderstanding as it relates to what's in the 26 page bid protest filed by Tifon. You've heard how a third-place proposer could get standing. Not only did they not say it today; it's not in their protest. You've already ruled that you don't want to bring in anything that's not within the four corners of the protest. The issue regarding there not being -- there been an issue throughout the entire process -- I'm not a fast reader, but I perused it; I don't see it. Mr. Perez: Right here. Right there. Vice Chair Russell: Mr. Chair? Ms. Perez: And let me -- Mr. Dotson: Excuse me? Ms. Perez: -- remind you, since he had an opportunity to protest. At the time we filed our bid protest, and I think still today, the Administration's position is that we're responsive and responsible, so these were issues that we did not have to raise in our bid protest. And the reason that we didn't put Preston Carroll is that we put the case that we thought was the closest analogy to this one, right? Chair Hardemon: But would -- Ms. Perez: And so -- Chair Hardemon: -- you think it would be irresponsible for you not to include case law that was controlling in this case? City of Miami Page 21 Printed on 101412016 City Commission Meeting Minutes June 22, 2016 Mr. Perez: We thought that it was -- what was most important is to put the case law that was most analogous to this particular situation. We were not trying to hide Preston Carroll. Chair Hardemon: But let me ask you a question. Ms. Perez: Preston Carroll is a very well -- is a case that's been out therefor a long, long time. We were not trying to hide anything. And -- Chair Hardemon: But my -- and the reason that I'm very -- when it comes to issues like this -- I mean, this is like 101, something that I feel that you should not do. Because if you give me a case and you say this is a case that I should listen to in making my decision, and you don't give me the controlling case in that matter, to me, it makes me feel like as if you're trying to -- Ms. Perez: It was certainly not in -- it was certainly not an intent to hide anything. In fact, I don't think that there's much disagreement amongst any of us in terms of what the law is. Chair Hardemon: So are you saying that the law is Preston Carroll? Ms. Perez: The law is what I've said before, which is -- Chair Hardemon: My question to you -- Ms. Perez: -- but for causation. Chair Hardemon: But is the law what has been stated in Preston Carroll? And I want you to answer that, and I'll give you a chance to think about it. Because it seems to me that you're telling me, "Okay, the law is what it is in Preston Carroll. However, we want" -- "this case is a little different, and you should go along with DOAHfor these reasons. " Is that what you're trying to tell us? Ms. Perez: Mr. Chairman, the law is in order to have standing, you have to have a substantial interest in the outcome. That is the law, right? And the question is, what do you need to have a substantial interest in the outcome? And you've heard multiple ways in which you can have a substantial interest in the outcome. Chair Hardemon: Okay. So for that substantial interest, is it those three things that were outlined? Ms. Perez: It is -- we can run through them. In order to have a substantial interest, you have to have a responsive bid, yes; you have to -- but for what you have alleged, you had to have received the -- you have to have received the -- you would have received the award, which is exactly what we did here. And look, Preston Carroll is a very short case, and so I'm not sure that we -- that all of the particular facts here. But the other cases that we cited to -- And it's common sense. It's common sense. If 'not, a third-place bidder would never have a chance. You could do whatever you want. Chair Hardemon: You're making an argument, but you still haven't really given me the law, and that becomes part of the issue, and that's why I want to move through things as -- because it seems like that -- what's -- we've been given the law, and so we need to make a decision, as a board, whether or not we're going to hear from the third-place RFP or not. It's really a simple question. Instead of us continuing to talk about this, have a simple vote: Are we going to hear from the third place bidder or not? Commissioner Suarez: Mr. Chair? City of Miami Page 22 Printed on 101412016 City Commission Meeting Minutes June 22, 2016 Chair Hardemon: Yes. Commissioner Suarez: I would love to hear from the third place bidder. I just don't think we're legally allowed to, but I would love to hear from -- of course, I would love to hear from them. I'd love to hear from everybody as to what their perspective is on the bid, certainly, and I've read their entire protest. I just don't think that the case law allows us to depart from the Third DCA 's articulation of the standard, and that's what every attorney here that's impartial seems to agree on, and so I think that's the safest way to move forward. I mean, there's no such thing as a hundred percent certainty in anything that we do. We have to do the very best that we can, given the law as we understand it. So I think to get three lawyers, maybe four, maybe five to agree on a standard is pretty rare. So, you know, it's -- Chair Hardemon: So to clarify what the question is then, the question would be -- Commissioner Suarez: No, I think I've been very clear. I think the motion should be that we hear the second place proposer; and depending on what we decide, whether their protest has merit or does not have merit, that determines whether the third-place proposer has standing. Vice Chair Russell: So I'll be a "no " vote on that, because I do believe all three, from what I've heard today, should have standing and be heard, regardless of how we decide on number two. Commissioner Suarez: Understood. Vice Chair Russell: That's just my opinion on it. Chair Hardemon: I guess I'm fractured at that, because when you say, Depending on what we do with the first bid protest, it determines whether or not the third one has standing, 7o me, that doesn't make any sense. To me, they either have standing right now or they don't. That's just the way that I see it. Commissioner Suarez: And by the way, I think you can make that argument as well, because I think it says in Preston Carroll that for a -- that it says that "a second lowest bid establishes a substantial interest, " so that is clear; that the second -place person has a substantial interest. What I'm arguing is if the first place bidder gets kicked out because the bid protest is upheld, then that means that they are, in effect, the second place bidder, and that that would establish their substantial interest. That's what I'm arguing. That's what I'm -- that's what I based that on. Chair Hardemon: So you're saying, if'the first -- Commissioner Suarez: But I think you're right. You can make the counterargument. Chair Hardemon: I just want to hear from the City. Are we saying -- when Commissioner Suarez states that if -- say, for instance, the bid protest is upheld, number one will go to number three or does the order -- what's happening? Ms. Mendez: If the bid protest is upheld, then RCI would be out -- Vice Chair Russell: Disqualified. Ms. Mendez: -- and then the second place, which is Tifon, would become number one. At that point -- Vice - Vce Chair Russell: Suntex. City of Miami Page 23 Printed on 101412016 City Commission Meeting Minutes June 22, 2016 Ms. Mendez: I mean, the -- okay, let me start again. If RCI is thrown out, then Tifon would become number two; and then, at that time, would be when he would actually have standing based on his argument, because he would have standing; he would be the number two. Chair Hardemon: So -- and my question to you is, just what you just stated: If number one is disqualified, number three becomes number two, you're saying that would give him standing? Ms. Mendez: And then you would have a bid protest, a separate bid protest hearing -- Chair Hardemon: But is there -- Ms. Mendez: -- on that. Chair Hardemon: -- case law to that, to what you just stated there? Ms. Mendez: Well, at that point --the case law is just that, at that point, you no longer have RCI in the --for you to decide on an award, so they automatically are bumped up to number two to have standing to have a bid protest. It just has to be separate. Vice Chair Russell: But it would be a new protest, is what you're saying? Ms. Mendez: A new -- Vice - Vce Chair Russell: A new protest (UNINTELLIGIBLE). Ms. Mendez: Another protest with different -- no, I'm -- would -- it would be another bid protest not within the first bid protest that you have not started yet and are about to start. Chair Hardemon: And why do you believe that it would be another bid protest? Because I'm running this through my mind. And in this case, they filed a bid protest; they, 'meaning Tifon, filed a bid protest. However, say this body says that they don't have standing for that bid protest, so their bid protest is disregarded; it's not taken up. And so when you say -- say, for instance, RCI is disqualified, and now Suntex is number one, Tifon is number two. That's the award that's now being proposed. I'm assuming the Manager would either say, "I want to " -- `7 propose that you accept this award, " or "I want to reject this award. " However, you know, at what point is it then that Tifon gets to file another -- or a bid protest in order for them to be now bumped up to number one? Ms. Mendez: I guess I wasn't clear when I said it would be a second bid protest. What I'm saying, it would be a separate protest at that time, if you wanted to entertain that they have standing to challenge at that point when they are the number -- when Suntex becomes the number two. Chair Hardemon: So I just want to be clear, because I hear where you're going with things. I just want to know if there is any case law that says that if 'numher one is removed from the ranking, then at this point, at a bid protest, then the number three can file a bid protest (UNINTELLIGIBLE) ? Ms. Mendez: We didn't find anything on point on that, but I would be then again going back to Preston Carroll and saying, "Okay, at this point, you know, you have true standing, the second -ranked bidder. " So I'm just going back on the fallback of the -- Chair Hardemon: Yes. So there's no -- but the second -ranked bidder -- Ms. Mendez: There's -- City of Miami Page 24 Printed on 101412016 City Commission Meeting Minutes June 22, 2016 Chair Hardemon: -- that's assuming then that you have three bidders and -- say, for instance, what you're describing to me, it doesn't anticipate that a bid protest was taken up -- Ms. Mendez: Right. If you'll give me one moment -- Chair Hardemon: -- and number three -- Sure. Ms. Mendez: -- to double check. In all of 'our cases, I don't remember finding something just like that on point, so give me one second. It's -- thank you, Chairman. It's what I've said. Basically, we would be falling back on Preston Carroll and the Third DCA saying that the second bidder at this time has substantial standing, so then you would start like the second part, and then you can hear from them at that point. Now, if I may, just for purposes of -- the reason why it's important to determine who's going when is just for -- like the order. Who's going to be speaking when and determining, you know, the time frames, the equal time, and all that. After we have opening statements, we have the protest; whether we're going to have protest one and protest two. So that's why -- just for clarity and for the record, that's why we have to determine whether there's the standing issue now. Chair Hardemon: Right. Madam -- Ms. Mendez: The other thing to suggest -- Chair Hardemon: -- I have a question for you. If*-- there were three protesters. Number one is successful in the -- Ms. Mendez: Recommendation. Chair Hardemon: -- rank -- right -- in being ranked from number one, number two. Number one is successful. Say number one is RCI. Number two decides to file a bid protest. Number three does not file a bid protest. And the bid protest that number two files -- number two, we take up; we find good cause for the bid protest. Number one is removed from being number one, and number two is now number one; number three is now number two, okay? The question I have for you then is could number two then -- because you're saying by case law, they are now deemed -- they have a substantial interest, and they can file a bid protest. But I'm assuming, though, that there are some standards in which a bid protest must be filed within a time period, correct? So in that fact pattern that I've given you, understand that the time for bid protest has expired, so you only have one bid protest that's filed. Now, that number one is now disregarded and now number two becomes number one, how can the number -three person who became number two file a bid protest outside of the guidelines? Ms. Mendez: No, they can't. They would not be able -- if they didn't file a bid protest and timely, then they could not protest at that time; they did not preserve any of their remedies from before. What I'm saying is that the number -three bid actually preserved his rights, so if, for some reason -- I'm sorry I keep on saying this. But if,* for some reason, RCI was knocked out, then -- since they preserved their rights, then they can bump up and have a protest. That's all I'm saying. I wouldn't say somebody who did not preserve their rights could. Chair Hardemon: So your -- Ms. Mendez: They could not. Chair Hardemon: -- point is that even if you file a bid protest and it is not -- you don't have standing to take it or to put one, then you've preserved your right? City of Miami Page 25 Printed on 101412016 City Commission Meeting Minutes June 22, 2016 Ms. Mendez: Preserved their right with regard to filing -- timely filing a bid protest. It does not mean that it automatically confers standing at the one bid protest that you 're going to have. Chair Hardemon: Okay. So, Commissioner Suarez, your motion on the floor is to hear from the first bid protester, which, in fact, in this case would be Suntex? So this bid protest would be -- would include the parties of'-- right now of *RCI and Suntex and the City of Miami. So I just want to make sure -- Commissioner Suarez: I'm sorry. What was that again? Chair Hardemon: We're not -- basically, at this time, the motion on the floor is to hear the bid protest from Suntex, which is our number two -- Commissioner Suarez: Right. Chair Hardemon: - and that would include parties Suntex, RCI, and the City of Miami. So at this junction, we will not be hearing -- Commissioner Suarez: Here's how I would say it. I think that under Preston Carroll, Suntex has a substantial interest, as established by the case law, by virtue of the fact that they're the second lowest bidder, and nothing that I've seen in terms of controlling case law establishes the same thing of the third place, because otherwise, the fourth and the fifth and the sixth -- Chair Hardemon: No, I understand -- Commissioner Suarez: -- and the seventh and the eighth are -- you know, 20 people could claim to have a substantial interest and -- you know, at some point, even the court, in Westinghouse versus Jacksonville, says -- and this is a nonbidder that's trying to get standing. It says, `7n fact, this case is a perfect example of the importance of limiting standing in the bidding process. " I mean, you have to -- some point, you do have to sort of move on. Vice Chair Russell: Mr. Chair. But by claiming that both one and two were nonresponsive, nonresponsible, number three is asserting that they should have the standing. Now, if 'we don't hear them and we only deal with number one and number two, we never get to the true argument that number three has and we may actually make the decision between one and two. Number three should have standing if they're saying that both numbers one and number two are nonresponsive, nonresponsible. Commissioner Suarez: So let me just play -- Chair Hardemon: That's what we were just talking about. Commissioner Suarez: -- devil's advocate to that point, which is then number four could claim that number one, two and three; and number five could claim number one, two, three, and four; and number six could claim number one, two, three, four, five, et cetera, et cetera, et cetera. So I think the court in Preston seeks to limit standing by saying that you have a substantial interest if you're the number -two bidder. And then there's some other cases in other districts that talk a little bit more about -- articulate a little bit more about a substantial interest, but they're not cited by the person who's making the standing argument, and I haven't heard any allegations to support that. Chair Hardemon: Commissioner Carollo, you had something? If not -- because the reason -- and I appreciate -- Commissioner Carollo: No. I mean, this has gotten so convoluted, it's like "who's on first? " City of Miami Page 26 Printed on 101412016 City Commission Meeting Minutes June 22, 2016 Chair Hardemon: Listen, it shouldn't be convoluted. I understand -- Commissioner Suarez made an argument, but all I'm trying to clarify is the question. There was a motion and there was a second. There was a motion and there was a second that was put before this body. If I need the Clerk -- do you want to clarify what the motion and the second is; not the arguments, but the motion and the second? Because I attempted to take a vote. Now, had I said, All in favor, 'lead I said, All against '=- I could have just ruled in -- favorably for this thing, but I did not, so I want to give you all an opportunity to actually make a vote. Commissioner Carollo: Right, because I want to make sure what we were voting on -- Chair Hardemon: Right. Commissioner Carollo: -- and that was my question. Chair Hardemon: Mr. Clerk, can you clarify what the question is for the vote? Todd B. Hannon (City Clerk): I would prefer to defer to Madam City Attorney to ensure that it's exactly stated the way it needs to be stated. Commissioner Carollo: Probably be a lot easier if 'it was a whole bunch of accountants and not lawyers. Ms. Mendez: The -- just for purposes of clarity, the motion is whether to give number three, Tifon, standing in -- with regard to -- the -- Commissioner Carollo: That's not the motion. Chair Hardemon: Say it the opposite way, because -- Commissioner Suarez: Want me to say it? Chair Hardemon: -- you're saying things in the negative. I'm going to say it. The motion is -- and this is the motion that's on the floor right now for us to decide. This is what we're going to vote on: Whether or not we're going to allow the first bid protester, which is Suntex, to be heard in this bid protest; thus, not allowing Tifon to participate in this bid protest. Ms. Mendez: Okay, that's perfect. Commissioner Suarez: Yeah, and I would just add: Because they have not pled a substantial interest as defined by the Third DCA and its progeny. Chair Hardemon: Which they that had an opportunity to do when we had the five minutes for each of the parties, and that's what we're making our decision on now, okay? That is the question. All in favor of that, say 11ye. " Commissioner Suarez: Aye. Chair Hardemon: All against? Vice Chair Russell: No. Commissioner Carollo: No. Chair Hardemon: Motion passes. All right, now we move on to the bid protest. We need to City of Miami Page 27 Printed on 101412016 City Commission Meeting Minutes June 22, 2016 establish some type of order. Madam City Attorney, do you have an order that which you wish to move forward in? Ms. Mendez: The first thing, Chair, I just wanted to confirm that -- unless, obviously, there is a objection by RCI or by Suntex, the time frames. I believe that we need to give them equal time. Is 10 to 15 minutes for their protest presentation and rebuttal, is that sufficient time in order to Chair Hardemon: I intend to give them 10 minutes to make their case in chief and then 5 minutes for any rebuttal, and that wouldn't -- I'm not going to allow anyone to continue to interrupt people, so you will not be able to continue to add additional time to what you have to speak. So it's 10 minutes, uninterrupted time, and then a five-minute rebuttal from each party. So the order then would be the bid protester, I'm assuming? Ms. Mendez: Right. So opening arguments -- what we were contemplating for an orderly procedure would be opening statements by the DREAM director; opening statement by Virginia Key, LLC (Limited Liability Corporation), RCI, the top-ranked firm; then protest number one, which is the protest we have remaining, which is Suntex; and then rebuttal from RCI and the City; and then closing statements from RCI and Suntex; and then public comment at the time that you wish to allow one minute or two, but based on your determination on the information that has been given thus far; maybe the closing statements, if 'so wished by the counsel, can be after public comment, but that is up to you, Chairman. Mr. Dotson: Mr. Chairman, we have to object to that order. I believe the order that you've placed in front of the board was RCI going first at -- before the protest actually is stated, or did I misunderstand you? Chair Hardemon: She said DREAM before RCI, but I'm going to reorder that. Mr. Dotson: Oh, okay, okay. Chair Hardemon: But -- Ms. Mendez: Right. Chair Hardemon: So this is what I propose that we do: We can have an opening statement; the opening statement is limited to two minutes. The order in which it will go in for the opening statement would be Suntex, then RCI, and then the City. Then we will have case in chief; that will be 10 minutes each in the same order, 10 minutes: Suntex, RCI, City. Next, we will have a closing in the same order: Suntex, RCI, City; and after the closing, we will allow a short rebuttal -- I'm sorry. The closing will be limited to five minutes. Then we'll have a short rebuttal at two minutes after the closing, in that same order: Suntex, RCI, City. Then, I'm guessing, we have to allow for public comment at some point -- Ms. Mendez: Right. Chair Hardemon: -- through the process? So we'll have -- after everyone has presented and the rebuttals are complete, the bid protesters come -- at least the presenting of ,the arguments have come to an end, then we'll have some public comment, and we'll allow, too, the Commissioners then to engage in discussion. Commissioner Suarez: Mr. Chair. Chair Hardemon: Yes. City of Miami Page 28 Printed on 101412016 City Commission Meeting Minutes June 22, 2016 Commissioner Suarez: I just want to admonish the counsel that the issues to be discussed are the issues that are part of the protest only, please. Okay? I know -- I'm not saying you're not going to respect that. There's no reason to believe that you won't, but I just want to make sure that that happens. Chair Hardemon: Right. And at this point, I'm going to allow the attorneys to get themselves in order so they can prepare themselves for that argument. Also, from staff, City, can you ensure that each of the Commissioners has a copy of the actual bid protest that we're considering today? So the bid protest and there would be -- did you all file a response to the bid protest? Mr. Dotson: Yes, we did. Chair Hardemon: Okay. And the response to the bid protest. So those are the two items that we should be considering; make sure that each of us have a copy of it. Commissioner Gort. Ms. Mendez: I will double check on that. Commissioner Gort: Are they different documents from what we had? There's some changes -- Chair Hardemon: That's why I want to make sure that we have -- we all (UNINTELLIGIBLE) same thing. Commissioner Gort: Okay. Chair Hardemon: So at this point, I'm going to allow the attorneys to prepare themselves for argument. Mr. Dotson: Just want to get clarification on one point. You said there'll be public comment. I'm assuming the public comment is limited to the bid protest? Chair Hardemon: Correct. Mr. Dotson: Okay. Chair Hardemon: Correct. Okay? Now, so I'm going to allow a two -minute recess for you to prepare yourselves, and we can get the information that we need before us. Commissioner Suarez: Just remember, 3:50. I'm going to step out till 4:10. Chair Hardemon: Okay. Chair Hardemon: Okay. Later... Chair Hardemon: Decorum, please. Now, each Commissioner has a copy of ,the actual bid protest and the responses by RCI and by the City of Miami or DREAM. And so I'd like to start this process by beginning our opening statements, so now we'll officially begin the bid protest. So the first opening statement will be heard by Suntex. And please, Clerk -- the Clerk's Office ensure that there's a two -minute limit on it. You know, when you hear the beep, you got about 30 seconds left to come to a conclusion, and then you'll hear a louder noise from the machine that indicates that your two minutes have expired, and I will stop you when your two minutes have expired. Mr. Brown: Thank you, Mr. Chair. Gary Brown, Arnstein and Lehr, on beha�fof *Suntex. First of all, I just wanted to renew our objection that the Commission is not going to allow us to City of Miami Page 29 Printed on 101412016 City Commission Meeting Minutes June 22, 2016 address the spill in Biscayne Bay as part of this protest. I understand the ruling there and -- but I just want to renew my objection. Chair Hardemon: Okay. Can you hold the time for one second, please? Mr. Brown: And second of all, I just wanted to clarify something on that ruling before my time starts. Chair Hardemon: Before you go -- Mr. Brown: Yes. Chair Hardemon: -- because I just stopped your time. I want to be clear that the information that you give is limited to the bid protest. So we have a copy of the bid protest before us. There area number of things that you have alleged within the bid protest. That is what you should speak on, and that is what the responses will be limited to, and that's what we're going to make our decision upon; the information that's within the four corners of the bid protest. Understood? Mr. Brown: Understood. I just wanted to renew my objection -- Chair Hardemon: Understood. Mr. Brown: -- so it wasn't deemed waived. Chair Hardemon: So you can start the time now. Mr. Brown: Okay, thank you. When we were here last time on May 26, there was a question asked by Vice Chair Commissioner Russell as follows; it's on page 4 of the transcript from that: l did not realize there were very specific criteria under which we could say that the Manager's decision was correct or incorrect, so this is new for me. Could you list those again for me, or bring them to me in printout, please? "Mr. Suarez -Rivas, from the City Attorney's Office: Well, the Manager's decision can be upheld unless you think it is arbitrary, not supported by facts or logic or capricious, taken irrationally, without thought or action, or departs from the essential requirements of law; for example, due process, sunshine, Charter requirements, or is subject to fraud, collusion, bad faith, bias or similar factors. "So what you have here before you is a recommendation from the DREAM director to deny Suntex's bid protest. There is a threshold issue that we will get into in our case in chief that deals with a conflict of interest of the DREAM director, who has a financial interest in a business venture with the principals of RCI, which taints this entire process. It is fundamentally unfair for the Commission to even consider the DREAM director's recommendation because of his business relationship with Tate Capital, who is business partners with -- Mr. Dotson: Mr. Chairman -- Chair Hardemon: (UNINTELLIGIBLE) make your objection. Mr. Brown: -- the Christoph, that taints this entire process, and that is something that we intend to discuss. And second of all, we will obviously get into the reasons why RCI is nonresponsive and non -responsible, and I can quickly go through those as part of my opening. Ms. Mendez: Chairman -- Commissioner Suarez: Mr. Chair Ms. Mendez: -- I think you gave -- City of Miami Page 30 Printed on 101412016 City Commission Meeting Minutes June 22, 2016 Chair Hardemon: Wait, let his 10 seconds expire. He has 10 seconds. Mr. Brown: I'll cover those in my case in chief; that's fine. Chair Hardemon: Now, I thought I was very clear that you are to remain within the four corners of the affidavit. I believe that's why you had an objection from opposing counsel; that's why you then had a hand raised by a board member; that's why my chief of staff and everyone else is upset; that's why the City Attorney now has stepped into the picture. As I understand, there are a certain number of things that I am not going to put on the record -- because that's your responsibility to do -- as to why your bid protest should be considered. And so there are things that are written specifically within this document, and you just stated outside of the four corners of this document. And so it doesn't help you when you go out -- hear what I'm saying. Don't -- it doesn't help you to go outside of what the rules are by this body, because that's what we're going to consider. And when you waste time outside the -- what the rules are, what the corners of this document are, they are not things that will be considered when we make our decision. Okay? So I want you to understand that. And the next time there is an objection, I want the opposing party who is making the objection to make the objection. I would allow you -- and we'll rule on that objection, on whether or not we're going to allow them to continue to speak about that issue, or stop them in their tracks, but I thank you for making the objection at this point. And now, we're moving into our two -minute opening by RCI. Mr. Dotson: Mr. Chairman and members of the City of Miami Commission, there are a lot of statements that have been floating around, but there are only seven allegations in the bid protest. You will hear from us why all seven, just like your City Attorney and your City Manager agreed, should not be heard or sustained. You will also hear from us why the City Manager and DREAM did a superb job in putting together their RFP; why the RFP respects the Virginia Key Master Plan; why the RFP provides you with the flexibility to make the appropriate decisions as you gain information, and most importantly, why the evaluation committee accurately selected RCI as the number -one proposer. There's absolutely nothing that Suntex can show you that should suggest that the evaluation committee's scores were incorrect or that RCI should not have been ranked first, and we will put all of that on the record. But I ask that you listen for three things again: One, are they going to prove to you that their proposal is responsive? Number two, are they going to prove to you that our proposal is not? Number three, are they going to prove to you that their proposal does not suffer the same infirmities? Listen carefully. I submit to you in the 20 seconds that I have left that they will not do that. Thank you. Chair Hardemon: Thank you very much. I appreciate you for following instructions. DREAM. Ms. Ramos: Good afternoon. I'm speaking on behalf of DREAM and on behalf of staff. First of all, regarding the allegation that was brought up during Suntex's argument just a few minutes ago, that was something that was again filed at the eleventh hour, not within the four corners, cannot be considered. If it were to be considered, there's an affidavit that's been put together by the DREAM director addressing that issue. There is absolutely no conflict. Obviously, staff stands by the recommendation to award to RCI. A couple of legal things I want to kind of propound so that you keep that in mind as you listen. It's well established in Florida law that a public entity's rejection of a contract bid will be affirmed when challenged, unless the court finds that the public body's actions were arbitrary, unreasonable, or capricious. Furthermore, the discretions of a public entity to solicit, accept, or reject contract bids should not be interfered with by the court, absent a showing of dishonesty, illegality, fraud, oppression, or misconduct, and it is our position that none of those things exist here. An agency's decision will not be overturned by a court if it was based upon an honest exercise of discretion and good faith, absent a finding of fraud, oppression, illegality or misconduct. Again, it is our assertion that that does not exist in this case. Furthermore, the public policy argument from the point of view of staff 'is that keeping bidders in promotes competition and yields abetter product for the taxpayers. And City of Miami Page 31 Printed on 101412016 City Commission Meeting Minutes June 22, 2016 finally, please keep in mind that this was an RFP; not an ITB (Invitation to Bid). It is not a mirror image rule. As long as the bids are substantially compliant, they are allowed to be considered. That concludes my presentation. Chair Hardemon: Thank you very much. Moving on now to our case in chief. Suntex, you have 10 minutes. Mr. Brown: I just want to clarify something. Mr. Dotson likes to talk about due process, and we just heard fl"om counsel -- Chair Hardemon: Can you (UNINTELLIGIBLE), please? Mr. Brown: -- that the Commission needs to decide whether there's fraud, illegality. And am I to understand that this Commission is not going to consider the relationship of the person who is making a recommendation before this Commission? Am I going to be denied due process to bring that before this Commission on behalf of Suntex ? Chair Hardemon: Commissioner Suarez. Commissioner Suarez: Mr. Chair -- Mr. Brown: Because that needs to be looked at as a threshold issue. Ms. Mendez: If 'I may? Commissioner Suarez: Sure. Ms. Mendez: For the counsel that -- I don't know how to clarify to counsel that he needs to stay within the four corners of this bid protest for the bid protest. Before the award, you can sing, talk, do everything you want to, to your heart's content. For now, please, I ask that you stick to the four corners of this bid protest, because that is what we're here for. Chair Hardemon: Can you start his time? Mr. Brown: Thank you. RCI should be disqualified for being nonresponsive and non -responsible, as stated in our protest. They're nonresponsive for several reasons: One -- this is on page 5 of our protest -- they did not offer sustainable design elements, which is something that was fundamental as part of the Virginia Key Master Plan. For instance, Suntex's proposal uses green building components, including the roof walls and solar panels. Our design incorporates a nationally -proven rack system, which is in our proposal, in contrast of RCI calls for use of a large glass building with no green elements or renewable energy sources. Further, RCI proposes to use an automatic rack system that was never built anywhere in the world before. And so, clearly, that does not comply with the Virginia Key Master Plan, what it contemplates. They also made significant changes to the lease. This is in Exhibit N'to our protest, but it's on page 8, footnote 14. And if 'I can, I'm going to go through those. Key Biscayne -- excuse me -- RCI modified Sections 1.3.19, 4.7, 4.8, 5.3, 5.4; Article 8, Sections 9.1 and 13.2/14.2; Article 15 and 16.1. All of those provisions to the lease relate to significant non -negotiable aspects of the lease, such as gross revenue definition, audit rights, payment and performance bonds, which are required by the RFP; removal of improvements; insurance and indemnity allegations; right of termination; special assessments in default. The RFP made very clear that those were non-negotiable; and yet, they made significant changes to the lease. We believe that's another reason that they were nonresponsive; also, not the least of which is their past claim history with the City of Miami. In fact, initially, the RFP stated that past claims history could disqualify a bidder outright; there was no discretion. That was later changed to allow discretion to determine whether or not past claims with the City of Miami would disqualify a bidder. In this City of Miami Page 32 Printed on 101412016 City Commission Meeting Minutes June 22, 2016 case, Robert Christoph, who is a principal of RCI, also involved with Bayshore Landing, LLC, paid the City of Miami $150, 000 in October of 2015, after -- after'=- a City audit found they owed $386, 000, roughly, for unpaid additional rent from over a decade of operating Biscayne Landing. So here you have a proposer that -- it took an audit by the City to determine that this proposer failed to pay back rent for a 10 year period of time; and in fact, he ultimately did pay $150, 000 in back rent, and as a result of that, we believe that he is non -- that RCI is nonresponsive. It goes to the heart of the qualifications for a proposer to be a responsible and trustworthy partner with the City. We clearly believe that a proposer who would withhold significant, substantial monies owed to the City, and only turn them over once they were caught, clearly goes to their lack of trustworthiness, lack of being a good business partner with the City; and therefore, they should have been deemed nonresponsive. RCI is also non -responsible. They lack the necessary qualifications and experience with other projects of similar scope and complexity. That's on page 11 of our bid protest. As stated above, RCI's proposal is based on a system that's never been built before. It has built only one wet -slip marina in the past. It has owned and operated only five marinas with roughly 1,285 wet slips, and zero -- fero'rack slips; and only three restaurants. That's in their proposal on page 4. They have primary experience in residential and commercial projects -- excuse me --further, the marina that was built only contains 376 wet slips and 300 rack slips. The qualifications and experience, or lack thereof, in designing, developing, building, owning and operating marinas falls far short of the RFP's requirements; and therefore, they lack the necessary qualifications and experience to build the marina called for in this proposal; therefore, they are non -responsible. They also lack the financial ability; page 11 of our protest. RCI offered to finance 75 percent of this project. There's no guarantee that they will ever secure financing. On the other hand -- and there's no commitment from lenders; just -- I believe there are some statements in their proposal that show interest from several lenders, but there is no firm guarantee, no firm commitment that they will ever get the financing necessary. On the other hand, Suntex has cash on hand, more than enough for the value of this project, and could pay for this project in full out of *its own funds. And as I stated above, their claim history with the City would also render them non -responsible. Furthermore, the City's application of its own evaluation criteria was arbitrary and capricious, and you've heard from your City Attorney that that is the standard. And if you find that this -- throughout this process, if the determination made by the selection committee in scoring Suntex was -- excuse me -- RCI -- was arbitrary and capricious, you could reject that recommendation. Based on an objective application of the RFP requirements, Suntex was the only responsive and responsible bidder. We should have received the highest award and recommendation for award. And in fact, the selection committee was supposed to be comprised of five individuals that, quote, 'hall have experience in real estate, finance, renovation projects, and/or experience with development projects of this nature. "Only one member -- Ms. Weller -- met those qualifications, and so it's no mystery why she gave them the highest score. She was the most qualified person on the selection committee to evaluate their proposal. Suntex is the most experienced. We have an unparalleled track record of designing, building, owning and operating marinas of similar scope and complexity. We offered more sustainable and green building concepts -- the roof, the walls, the solar panels -- than RCI, which is consistent with the Virginia Key Master Plan objectives. We're financially superior. As I stated, we have over 200 million in funds available, no financing required. Now, while we certainly could apply for financing, it is not required for us to fund this project; unlike RCI, who needs to finance 75 percent. RCI also failed to offer the parking fund to build a separate garage at no -- excuse me -- we offered to fund and build a separate garage at no cost to the City, in addition to making the parking garage contribution; unlike RCI, who failed to offer to make that contribution. We offered to pay rent to the City of Miami from day one; unlike RCI, who asked for rent deferrals for a significant period of time. And so, here you have a proposer that offered to defer paying rent to the City; unlike RCI [sic], who offered to pay rent from day one. And I think it's worth -- there, I want to get back to the scoring. How could four out of five committee members score RCI higher, based on everything I just told you: lack of available financing, lack of proven track record and experience? How is it that we got scored lower than them? An objective scoring of our proposal would have ranked us the highest. And in fact, on page 13 of our protest, footnote 19, we list how we should have City of Miami Page 33 Printed on 101412016 City Commission Meeting Minutes June 22, 2016 received 23 -- excuse me -- how we should have received additional points. And if you look on footnote 19, our total would have been 23 points higher than RCL Chair Hardemon: Thank you very much, sir. Your time has expired. Moving on now to the case in chief for RCL Mr. Dotson: Yes. I just want to have the IT (information technology) people make sure they connect our laptop to the screen, and I believe you all can see the screen in front of you. Chair Hardemon: It's up. Mr. Dotson: Okay. Let me start by answering the question, Why RCI? "The reason the evaluation committee selected RCI is because RCI was the only proposer that complied with the requirements. We had to comply with the flood requirements; that's part of the RFP. We wanted to make sure that our proposal did not -- excuse me -- our development did not cause a flood in the event that there was a flood. We were the only proposer, the only proposer7o raise our development above the base flood level of 10 feet. We were the only proposer to respect the 50 foot requirement in your Charter; we were the only one. And we were the only proposer to respect the height requirement of being below 65 feet. You can see that none of our revenue -generating areas would flood in the event of a flood event; you can see that right on your screen. All of our equipment, everything is above the flood level. No revenue -generating spaces are underwater. And what about Suntex? They violated the flood zone requirements. In fact, if you look at their proposal and you apply the flood zone requirements, significant parts of their retail space would actually be underwater in the event of *a flood. They failed to respect the FEMA (Federal Emergency Management Agency) requirements; that's why they want another bite at the apple. RCI complied with the 50 foot mandated setback requirement. You can see the setback requirement there in blue, and RCI -- all of our development is within the 50 foot setback. Only marine -related uses can extend within a setback, and that's all that we have. No building violates the 50 foot setback requirement. What about Suntex? This is their proposal; 50 foot setback is in red. You can see buildings that they proposed that violated the 50 foot setback requirement, multiple buildings; not one, not two, but multiple buildings. Their percentage rent, the percentage rent was illusory. They probably can't tell you today what it is they're proposing. The reason is they had three different numbers in three different places. At one point, they proposed a percentage rent of 829,086 In another place in their proposed lease, they came up with all these percentages that they were going to pay you. None of them, when you add them all up, equal 829, not -- don't take my word. The document in fi"ont of you is from their proposal. Not one year in their financing projections equals 829. And by the way, in Fort Lauderdale, as you are aware, Suntex had their proposal removed for their failure to be able to comply and show their ability to pay the City -- Commissioner Suarez: Mr. Chair, that's not in the bid documents, either. Mr. Dotson: Suntex space -- commercial space -- I agree with you. Commissioner Suarez: What's good for the goose is good for the gander. Mr. Dotson: I agree with you. Commissioner Suarez: We can't hold them to a standard that we don't apply to you. Chair Hardemon: That's good. Mr. Dotson: I agree with you. Chair Hardemon: And I would think -- and I'm going to -- City of Miami Page 34 Printed on 101412016 City Commission Meeting Minutes June 22, 2016 Mr. Brown: Also, object to this; factually inaccurate but -- Chair Hardemon: That's -- night. That's something that counsel has to object to. If counsel does not object to it, then there's no way that, you know, we would know. So. Mr. Dotson: The commercial space -- Ms. Mendez: Well, then, I just -- I apologize. So then, just to be clear, for the record, the Commission is not going to take that information into account in deciding -- Commissioner Suarez: I think that information is outside the bounds -- Ms. Mendez: Okay. Commissioner Suarez: -- of the bid protest. Chair Hardemon: Correct. Ms. Mendez: Thank you. Thank you so much. Mr. Dotson: Also, with respect to their commercial space, inconsistent proposal offering you commercial space that differs indifferent places in their proposal. The significance of that is the revenue that you will receive is based on the retail space. One place, it's 64, 000; another place, it's 17-5. Don't take my word for it; these are their documents. RCTs marina experience, that's almost laughable. These are our documents. This shows you RCTs marina experience. Miami Beach Marina, Bahia Mar, Bridgeport Landing, Maker One Marina, Little Harbor Marina. And they told you just now we only had one, and that's just RCI; including our -- the members of our team, they also have experience in marina. They tell you one; the documents suggest something else. This is exactly what we proposed; this is why the evaluation committee ranked us number one. And it's not just our architects; throughout our proposal, we put together a team that has significant marina experience; not because I'm telling you now; it's exactly what we proposed; that's what the evaluation committee saw; that's why they ranked us number one. And I also passed out to you this book. If you would take a look behind page -- I'm going to start with tab 11. They claim that we failed to make a trust fund contribution. I'm not sure where they got that from, but if you look behind tab 11 in the book I handed you, we actually did say just that; not only would we pay 100 percent of the parking garage we were going to build, and we had $10 million in our budget for parking; we agreed to pay the parking trust fund contribution, in writing. The second thing he mentioned was the failure to incorporate sustainable design element, and I'm not sure, again, where that comes from, but -- excuse me -- I will always pause when children are here. Commissioner Suarez: You're making me jealous. Now I want my little guy over here. Commissioner Gort: Say (UNINTELLIGIBLE) brings a little smile. Unidentified Speaker: Pardon me. Chair Hardemon: (INAUDIBLE). All right. You may continue. Mr. Dotson: Okay. They claim that we failed to incorporate sustainable design element. Again, I'm not sure where they got that from, but if you look behind tab 12 of the document I gave you, that's directly from our response. Page 11 of Section 5, we actually said the sustainable design element that we were incorporating. Then he went through this long discussion about all the significant changes in our lease. If you look behind 12 -- tab 13 -- the very front page of the City of Miami Page 35 Printed on 101412016 City Commission Meeting Minutes June 22, 2016 lease itself at the very bottom says, in red letters, if anything that we are proposing would result in us being deemed nonresponsive, then you don't have to consider it. We said that in the lease itself; that's what we submitted. Tab 14. He claims that we have past litigation with the City. You notice he didn't use the word, litigation after he said it the first time, because there is no litigation. What he mentioned was a dispute between the City of Miami and RCI together, and an auditor on how to calculate a particular payment. We agreed to make the payment if' the auditor changed that methodology, which we did; no litigation; and more importantly, we disclosed it. Look behind tab 4 at the bottom. There's a -- that was what we submitted -- tab 14 -- excuse me -- at the bottom, you'll see it actually written right there. Nothing was hidden. We wanted to make sure in an abundance of caution we disclosed that. Then he claimed we lacked experience. I've gone through all of that. But one of the things he mentioned is quite interesting. He talks about our system of loading and unloading boats. Now, the United States Department of Defense uses the system to load and unload airplanes on aircraft carriers, and they're saying it's not good enough for a boat. Miami -Dade Water & Sewer Authority uses this system; Georgia Pacific, Ford, Mercedes all use this system. And in fact, Jerry Powers, with Suntex, came over to Aerodocks and said, 1f you don't go with RCI, would you come with us? "Tab 16, they claim we only had one wet slip. I mentioned that. Tab 17 -- Mr. Brown: Objection. Mr. Dotson: -- the lack of financial -- Mr. Brown: Excuse me. I have an objection. Commissioner Suarez: Is that in your bid protest, that last allegation that you just made? Mr. Dotson: No, but -- Mr. Brown: It's not, and there's no Jerry Powers at Suntex, so it's not only Mr. Dotson: Johnny Powers, Johnny Powers. Mr. Brown: -- is it outside the four corners, but it's also inaccurate. Commissioner Suarez: Understood. Ms. Mendez: Commissioners, then you're instructed not to take that into consideration. Thank you. Mr. Dotson: Behind tab 17, they claim we lack financial -- the financial ability, but they don't show you the letter from -- they don't talk about the letter from J.P. Morgan, indicating $125 million availability. They don't talk about all the other financial letters that we had that we submitted with our response. They claim the selection committee improperly scored, tab 18. Now, you hear that discussion, but they haven't indicated what really happened, other than they weren't ranked first; and in the inverse, they claim they should have been ranked first; there's no reason why the evaluation committee ranked us first. I've given you all of our experience; that's why the evaluation committee ranked us first. I've given you our financial ability; that's why the evaluation committee ranked us first. I've given you that we were the only ones to respect the Virginia Key Master Plan, and we look forward to talking about that, because that's why the evaluation committee ranked us first. We were the only proposer to respect your Charter and not build in the 50 foot setback; that's why the evaluation committee ranked us first. And the staff got it right. They required us to comply with the Virginia Key Master Plan. They required us to make sure that we had all of the documents that would make us a responsible proposer; that's why the evaluation committee and the Manager got it right. So the documents speak for themselves. You have them in front of you. Don't take my word for it. These are their City of Miami Page 36 Printed on 101412016 City Commission Meeting Minutes June 22, 2016 documents. And our documents, at the time of submittal, it's very clear that everything he said we didn't do, we actually did, and now you have the evidence. Everything I've shared with you they did not do, don't take my word for it. I've given you the documents, so now you have the evidence. And I will say one more time: Your staff was very clear in that RFP to make sure that we complied with the Virginia Key Master Plan, and we look forward to talking about that later. Thank you. Chair Hardemon: Thank you, counselor. City, 10 minutes. Ms. Ramos: The City's position is as follows: Regarding the allegation that RCI failed to make the parking contribution and the claim that the funds were due to be paid with submission: The first addendum explained that the funds would be paid at lease extension; not at submission, number one. Number two, RCI clarified that the garage would be operated by the MPA (Miami Parking Authority). And number three, at the time that the submission was made, Suntex did not pay it, either. And according to International Properties versus State of Florida Department of Health, a protesting party must show that its own conduct did not suffer from the same infirmity; and therefore, are not even able to bring up that point, should they want to, or should it be true. Number two, regarding the allegation that RCI failed to incorporate sustainable elements: Number one, it was not required by the RFP. What the RFP required was that it was compatible with the Virginia Key Master Plan, and staffs position is that, in fact, it was. The Virginia Key Master Plan is aspirational and was complied with. Furthermore, as RCTs representatives have explained, there were initiatives that were green, i.e. solar powered low -wattage light sources; solar powered security cameras; electric car charging stations; in -slip sanitary pump -out systems; recycling and security on foot and bicycles. Regarding the allegation that RCI made material deviations to the lease, the City's position is that the deviations that were made were allowed by the RFP, as they were not material; that the City can accept or reject the proposed lease changes during negotiation. Proposers may suggest modifications; not only RCI, but any others. Furthermore, RCTs bid response stated specifically that any revisions that would deem them nonresponsive would be withdrawn. Regarding the allegation that there was past litigation with the City, pursuant to City Code Section 18.95(D)(2), this matter should not be considered if the matter has been resolved. Further, I'd like to clarify that there was not a lawsuit filed; and currently, there is no pending or unpaid debt to the City by RCI. Lastly, the City has the sole discretion to deem them nonresponsive for past litigation or similar concerns, and they chose not to do so. Regarding that -- the allegation that RCI lacks qualifications and experience: Number one, RCI identified principals and teams with the required experience, and they currently operate major marinas, including Miami Beach, as they've already stated. Furthermore, the same principle of International Properties apply. Suntex also had failed to rep -- identify representatives with required restaurant experience, and the City allowed them to clarify; and therefore, they cannot bring it up, as they suffered from the same infirmity. Regarding RCTs lack of financial ability, based on the fact that they required financing: First off, financing -- requiring financing is not a failure to meet the minimum qualifications. Second, that was considered by the financial review committee, and they found that RCI did have the -- or does have the financial capacity to complete the project. And lastly, it is a subjective analysis that is left for the selection committee to consider. It was considered by them and disregarded -- or appropriately considered, and the scoring reflected the same. Regarding the allegation of improper scoring: First and foremost, Suntex knew the guidelines from the beginning, and they did not protest them. Section 18.104(A)(2) of the City Code does not permit a challenge to the relative weight of the evaluation criteria. Regarding, again, the improper -- the alleged improper scoring: They have submitted nothing to show that the scoring was arbitrary or capricious. And regarding the consideration of scoring, again, with the community outreach being considered by the evaluation committee member, that can be appropriately part of ,the, quote, 5verall project design, proposal, renovations and activity projects, 'and irrespective of that fact, it would be harmless error. Chair Hardemon: You forfeit the rest of your time? City of Miami Page 37 Printed on 101412016 City Commission Meeting Minutes June 22, 2016 Ms. Ramos: I do, Mr. Chair. Commissioner Suarez: Mr. Chain, if I may? Chair Hardemon: You're recognized. Commissioner Suarez: Just one quick question for counsel for the City -- for the Administration. You cite the standard for the scoring system and that the scores cannot be arbitrary or capricious, correct? Ms. Ramos: That's correct, sir. Commissioner Suarez: What is -- how do you define that? Ms. Ramos: Arbitrary7s defined as a decision that is not supported by facts or logic. And Capricious 7s defined as an action taken irrationally, without thought or reason -- Commissioner Suarez: Thank you. Ms. Ramos: --pursuant to case law. Commissioner Suarez: And you're saying that based on what -- the comments that were made by the scorers; or what leads you to argue that the scores were not either arbitrary or capricious ? Ms. Ramos: All the comments made by the scorers on the sheets made it evident that there was a valid and reasonable thought process that went behind what they scored. And whether one agrees or disagrees with the score is not the test. The test is whether there was a reason behind it; and, clearly, there was. Vice Chair Russell: Mr. Chair. Chair Hardemon: You're recognized. Vice Chair Russell: Isn't it correct, though, that at least one of the scorers left no comments at all? Ms. Ramos: I will let DREAM answer to that; and they're telling me that, yes, that that is correct. However, that -- Vice - Vce Chair Russell: So how could you say that they -- there was reasoning behind their scoring? Ms. Ramos: My understanding again -- and please correct me if I'm wrong -- is that the scorer that they are referring to did, in fact, provide an explanation and criteria. Vice Chair Russell: But not on that score sheet? Ms. Mendez: Vice Chairman, I --right. I -- Ms. Ramos: On the score sheet. Ms. Mendez: Well, Mr. Rotenberg can clarify, but the -- Ms. Ramos: If you'd like to (UNINTELLIGIBLE) address it, I will let the director of'DREAM address it. City of Miami Page 38 Printed on 101412016 City Commission Meeting Minutes June 22, 2016 Ms. Mendez: -- score that's being complained of that's having the scoring difference -- Vice Chair Russell: That's not what I asked though. Mr. Rotenberg: To make it clear, the person that they're describing who was the one outlier that did vote for Suntex gave reasons in every single one of the comments -- Commissioner Suarez: That's not what he's asking. Mr. Rotenberg: -- explained why they were voting. There was rationality behind -- Chair Hardemon: Can you speak directly into the microphone? Mr. Rotenberg: -- I'm sorry. The person who gave the scores that they're rely -- relating to, that person gave reasons for every score. They were logical, they were rational, and voted accordingly. Vice Chair Russell: Thank you, but I wasn't speaking about the outlier. Your statement was that all of the scoring was done not arbitrarily, not capriciously, and your definition for that was that reasoning was given for the scoring. My question was: Wasn't there one of 'the scorers -- not necessarily the outlier that's being referred to -- that gave no reasoning, whatsoever? Because when I studied the scoring, that left me with a blank, trying to figure out what their thought process was, and I thought it would have been a requirement for them to make comments in the comments section. So it was very difficult for me to analyze the scoring. And if that's your definition of lirbitrary'cznd capricious, 'it's hard for me to say that that's not, if it's just numbers on a page. Ms. Ramos: Understood, sir, so let me clarify. I was referring specifically to the person that they've been bringing up as an outlier; and she did, in fact, give reasons. However, the law does not require for a selection committee member to give reasons. If the person's able to articulate in their mind, even if it's to themselves, a good reason why they're scoring, it is not arbitrary and capricious. Vice Chair Russell: So how are we to interpret whether their scoring was arbitrary and capricious? Ms. Ramos: That, I cannot answer. I think that's within your purview. Chair Hardemon: Now, we'll move on to our closing arguments. Five minutes by Suntex. Mr. Brown: What happened to rebuttal? Vice Chair Russell: What happened to -- what? Chair Hardemon: Excuse me? Mr. Brown: (INAUDIBLE) rebuttal. Chair Hardemon: No. Five-minute closing, and then I'll allow you -- Mr. Brown: Oh, okay. Chair Hardemon: -- a two -minute rebuttal. Well -- City of Miami Page 39 Printed on 101412016 City Commission Meeting Minutes June 22, 2016 Mr. Brown: To -- Chair Hardemon: -- you know what I'll do? Mr. Brown: Oh, I'm sorry. Chair Hardemon: -- and I apologize. I will flip it. I will allow a two- minute rebuttal, and then the closing will be last. So two -minute rebuttal by Suntex. Mr. Brown: To Vice Chairman Commissioner Russell's point, how in the world can the Commission decide what was in the mind of one of the selection committee's scorers if the reasons aren't articulated? What I just heard is, Well, in their mind, they could have done something and had a reason. "If it's not articulated, then, obviously, there's no objectivity. There's nothing for you objectively to look at to decide whether or not it was arbitrary and capricious. But let me quickly address the points I heard Mr. Dotson say. He says we violated the flood zone. We weren't even found to be responsive and responsible by staff, and --with respect to that, with respect to the setback requirement. So clearly, we were found to be responsive and responsible. The point about sustainable design was that we offered more. And so how could we be scored less? And by the way, I want to clarify. We're not challenging the criteria, the scoring criteria. We're challenging the objectivity of the scores given. And on page 2, footnote 1 of the -- our protest, we laid out exactly why we should have been given 23 more points, based on an objective evaluation. There's only a seven point differential between us. With those 23 points, we would have been the highest proposer. And the two categories specifically that we should have been scored higher were overall project design, proposed renovation and activities in project; and proposer's team experience, financial capacity and operational history. Based on everything that I -- we talked about in our case in chief and is set forth in our protest, we should have gotten four points from Mr. Rotenberg; nine points from Mr. Garcia; six points from Mr. Wharton, and four points from Mr. Tapanes (phonetic). And so, had we been given an objective score, we would have received 23 points higher and been the highest -ranked proposer. Chair Hardemon: Thank you very much, sir. Miguel de la Portilla: We still have about 40 seconds left, I think. Chair Hardemon: You have -- no. It's -- time expired. Mr. de la Portilla: Okay. Chair Hardemon: But you'll have a five-minute closing. Mr. de la Portilla: I'll use it in the closing. Chair Hardemon: Okay. Commissioner Suarez: And I'll ask a question, I guess, and maybe it'll allow you to answer. It sounds like in the way you just articulated your -- sort of interpretation of what your score should have been -- it almost feels like you're just rescoring it. I mean, if you were on the selection committee, clearly, you would have scored the project more in your favor, and that's the part that, to me, just -- it just sounds like you're just rescoring it. Mr. Brown: No, and let me just clarify; I appreciate that, Commissioner Suarez. Based on everything that we talked about -- why we were more qualified, why we had better experience, our financial capacity; all those things that we talked about -- we should have gotten the highest score for the particular criteria addressed, and objectively. We believe it was arbitrary and City of Miami Page 40 Printed on 101412016 City Commission Meeting Minutes June 22, 2016 capricious that we didn't get the highest score on those particular points that I mentioned in footnote 19 of our protest. Had we gotten the highest score that we should have, based on an objective evaluation of *our qualifications versus the others, we would have received 23 more points. Mr. de la Portilla: Just to answer that question, if 'I may, Commissioner Suarez, since you did ask the question, the real question here is not in the actual criteria, but in the application of the criteria. And if there isn't a reason articulated, then you're left to guess. Now, you have to ask yourself,' f=low in the world is it possible for somebody who's maybe, 'fou know, designed and built a handful of marinas to score higher in that category than somebody who has designed and built 300 marinas; how someone who operates a handful of marinas can be scored higher than someone like Suntex, who operates and runs 30 marinas; how somebody who doesn't have the money in hand but has to apply for financing be scored higher in that category than somebody who has $200 million in hand, in cash? "And so that's why it was arbitrary and capricious, to answer your question. Commissioner Suarez: So my counter to that would be that I presume when you made your arguments before the selection committee, you explained your qualifications, et cetera, et cetera. And they listened to your arguments, they listened to their arguments, they listened to the third-place person's arguments, and then they scored it, based on what they interpreted from those arguments. So I understand that you feel that 300 is better than five, for example, but you can have five massive things and then 300 small things. I mean, that's -- and I'm just saying -- Mr. de la Portilla: But that's not the case. Commissioner Suarez: -- I'm not saying that that is the case. I'm just saying that you're looking at a qualitative aspect of that scoring system, and you're sort of creating a general presumption from that. And what I'm saying is that my understanding of our role here is to give broad discretion to the scorers, unless they're acting in some wild and arbitrary and capricious manner. Mr. de la Portilla: Right. And to answer that question, that's exactly my point. It's not a matter of opinion. $200 million in hand is better than no money in hand. Not deferring rent and paying from day one is better than saying, Hey, give me five years to make you the first payment. "That's just objective. I mean, that is so obvious that a blind man could see it, right? So the reality is that when you have scores that deviate from common sense -- 200 better than zero; 300 marinas better than 14 or five -- right? 30 in operation versus a handful -- Commissioner Suarez: I get what you -- Mr. de la Portilla: -- right? Those -- that's that obvious and that plain on its face. Now, we can't get into motive and we can't get into bias, and we can't get into these things, because we've been limited, right? We can't talk about that; we've been told we can't talk about that. So we can't talk about the bias in the selection committee; we can't mention that. We can't mention that there is a conflict, for example, if *the -- Commissioner Suarez: But you're mentioning it. Mr. de la Portilla: -- same person who is chairing the selection committee is also the -- Commissioner Suarez: But you're mentioning it. Unidentified Speaker: (INAUDIBLE) Commissioner Suarez: So, guys, guys, guys -- City of Miami Page 41 Printed on 101412016 City Commission Meeting Minutes June 22, 2016 Chair Hardemon: So the reason I turned off the mike is because now -- Commissioner Suarez: Yeah. Chair Hardemon: -- we've taken a two -minute rebuttal -- Commissioner Suarez: Sure. Chair Hardemon: -- and elongated it to something that is much longer than two minutes. Commissioner Suarez: Understood. Chair Hardemon: And even within the four corners of their argument, it says -- it goes to the -- This is a clear indication that the scoring was not supported by logic or the necessary facts, but was assigned without thought or reason. "I mean, that was --from what I'm hearing, Commissioner, as was indicated by the City Attorney in her case in chief, the thought or reason -- for instance, it doesn't even have to have -- it has to have logic but doesn't -- it could be foolish logic. I mean, there has to be some thought or reason to why they came about and made the decision, and we don't know what that thought or reason is. However, what --from -- I'm looking at -- I'm looking for something within their argument that says that it was without thought or reason, and that's what I don't see that has been alleged thus far. So I want to allow everyone to continue, so I'll allow RCI to present its two -minute rebuttal before we get into our closing arguments after the City's been heard. Mr. Dotson: Will The given a question that I could then argue for two more minutes? Commissioner Suarez: I think it -- Chair Hardemon: You will. Mr. Dotson: Okay. Commissioner Suarez: -- in fairness, yeah. Mr. Dotson: Thank you very much. Mr. de la Portilla: And absolutely. Mr. Dotson: Let me just go to the scoring. We have the score sheets right here. We'd be happy to pass them out. We're missing something. The evaluation committee did more than just score. They heard oral presentations; they reviewed the proposals; they had an opportunity to ask questions. So when you say, 1' don't see anything written on one or more particular scorer's sheet; it means they did not have a reason, 'the record is replete with discussion and evaluation, and then scoring. Second, the evidence that the scorers who didn't write something is not arbitrary as they are in line with everybody else. There's nothing arbitrary about their scores. Third, the one propo -- the one evaluator that had the -- what they're calling the score that was problematic -- happened to give them 100, so I know they're not complaining about that; but if they are, then maybe the 23 points they got, we should deduct some more, because of *all the information I just shared with you. They claim that they've designed all of these particular marinas. The reason that the evaluation committee voted us number one, they've never built or developed a marina in the State of Florida. I'm going to repeat that again. They've never built or developed a marina in the State of Florida. So to say that there are no facts that support the evaluation committee's decision, notwithstanding what is written, what was heard, what was discussed, what was asked, what was answered, is absolutely inaccurate. And let me -- ask yourself a question: In their proposal, they had forklifts going back and forth across the bay City of Miami Page 42 Printed on 101412016 City Commission Meeting Minutes June 22, 2016 walk as part of their solution to the problem. Maybe -- and a reasonable person thought that was not appropriate. Thank you. Chair Hardemon: You had a -- did you have a thought that you wanted to complete? Vice Chair Russell: I do have a question for him. Mr. Dotson: I have a question I'd like to answer. Chair Hardemon: Okay, you have a question? Vice Chair Russell: I do, which could give you some extra time. One of the points made in Suntex's protest was that within the RFP, it said, 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. "Has RCI done that? Mr. Dotson: Yes. Vice Chair Russell: Which was? Mr. Dotson: I'm going to -- I actually went through that in my original -- Vice - Vce Chair Russell: I thought you did, but I didn't get the full answer, and that's why I'm touching back on it, because if that's one of the primary criteria -- Mr. Dotson: If you look behind tab 16, they're all listed there, and you'll see attachment 5, page 1 that Miami Beach, Key West, Boston, River Cove; more than five marinas, owned and operated; more than zero dry stacks --for sure, we had three; and more than three restaurants -- we had six. That was in our actual proposal, and that's all behind tab 16. Vice Chair Russell: And those projects are of similar size to this one that's being built? Mr. Dotson: Yes, that is correct. Mr. de la Portilla: Yeah, to answer that question that you asked -- Chair Hardemon: Sir, you can't -- but you can't -- Mr. de la Portilla: -- they didn't build any of those marinas. Chair Hardemon: Listen, listen. You can't have his time as well as your time in additional time. Mr. de la Portilla: I was answering the question. Chair Hardemon: It's his question. Any other questions from the dais? Seeing none, City, please, two minutes. Ms. Ramos: Regarding the issue of arbitrary and capriciousness that's been brought up with the scoring, number one, the Chair is correct. The burden of proof is on the protester. And, you know, clearly -- they've been arguing that the outlier is the issue, and the outlier clearly stated reasons, so that certainly addresses the one issue they've brought up. However, the Vice Chair has brought up, Well, how do I know that the others were reasonably"- *ere not arbitrary and capricious, particularly given the fact that one member did not state their reasons ? "Well, because they're reasonably close to the others. City of Miami Page 43 Printed on 101412016 City Commission Meeting Minutes June 22, 2016 Mr. de la Portilla: Three members. Vice Chair Russell: Three members did not state any -- Ms. Ramos: Okay, so -- Vice Chair Russell: -- like a blank page, completely. Ms. Ramos: Understood. Because they were reasonably close to each other, the thought is that they are therefore reasonable. Furthermore, the law does not require that they explain anything. In fact, Florida courts have found that an agency's decision will not be overturned if it was: One, based on an honest exercise of discretion; two, made in good faith; and three, absent a clear finding of fraud, corruption, oppression, collusion, illegality or misconduct. They have not been able to prove any of those things in this instance. Vice Chair Russell: May I? You bring up a few times the outlier. "I'm just not sure I've heard arguments bringing up an outlier here. I'm looking at all five, but if we -- the outlier, I assume, is Pam Weller. Ms. Ramos: And I -- Vice Chair Russell: But that outlier scored Suntex the highest of everybody, so I don't believe that's part of their protest. That's part of number three's protest. Mr. de la Portilla: Correct. Vice Chair Russell: So we shouldn't even be talking about outliers at all right now, right? Ms. Ramos: Understood. But in terms of -- if one were to pick one where there might be a question, presumably, it would be the outlier, because they're an outlier. And so, that person did give the reasons; that's why I bring it up. Commissioner Suarez: By the way, I'm not so sure you should characterize it as an outlier. " Ms. Ramos: For lack of a better term, Ms. Weller. " Chair Hardemon: Okay. Have you -- are you concluding? Ms. Ramos: I've concluded. Chair Hardemon: Okay. So you forfeit your 52 seconds? Ms. Ramos: I do, sir. Chair Hardemon: Thank you. All right. Now, we've heard from all three rebuttals, and now we get into our closing arguments. You will have five minutes --I repeat --five minutes for your closing arguments. You will not -- Unidentified Speaker: (INAUDIBLE). Chair Hardemon: Five minutes. You will not interrupt each other. You will make your five-minute closing argument, absent any conclu -- objections, rather, but then we will move on to our public comment. Suntex, five minutes. Mr. de la Portilla: You know, something isn't right. Something isn't right. It's rife with errors City of Miami Page 44 Printed on 101412016 City Commission Meeting Minutes June 22, 2016 from top to bottom, and it leads to the suspicion of motive. If the authorities knew about these problems and chose to ignore it, then, clearly, something must be rotten in the City of Miami. And the reason why I say that is we can't talk about a lot of things, and we were told -- can't talk about the spill, even though the RFP -- Mr. Dotson: I'm going to have to object. Mr. de la Portilla: -- even though the RFP -- Chair Hardemon: It's sustained. Mr. de la Portilla: -- required -- Chair Hardemon: I'm going to sustain his objection. I'm going to sustain his objection, because your closing argument should have all to do with the facts that were presented in your case in chief. You had a -- hear what I'm saying. You had a time to introduce your opening statement; then you had a time to bring in your case in chief, which is within the four corners of the affidavit; and now is your closing time. It is not the time to bring in additional facts that are used to sway the judgment of this body, and so I just want you to understand that. And every time he objects, Pin going to sustain it, and I will interrupt you again. Mr. de la Portilla: Well, you've been told that the Commission can consider anything that goes to deviation from the essential requirements of law. That door has been opened by the attorney for the Administration, who's twice now mentioned it -- both in her case in chief,' and just recently now in her rebuttal -- that if something deviates from the essential requirements of law, that's something the Commission can consider in a protest. And we are in a protest here. And the attorney for the Administration, Ms. Ramos brought that up; said it several times, at least twice in the last 10 minutes. Among the things that constitute deviating from the essential requirements of law are any evidence of bias; any evidence of bias. But we were told we can't talk about bias. We were told we can't talk about bias, even though they've opened the door and they've talked about deviation from the essential requirements of law. And being biased or having bias on the selection committee is something -- Mr. Dotson: Mr. Chairman, I'm going to object. Mr. de la Portilla: -- that goes right to the heart; right to the heart of what your own attorney has said and the Administration's attorney has said. Chair Hardemon: The objection is sustained, because what you're alleging is not included within the four corners of the affidavit (INAUDIBLE). Mr. de la Portilla: But it's the law, and we have to protect the record, and we have to speak to the law, because your decision has to be a legal decision. And if it's not a legal decision, I guarantee you, not just us, but there are numerous other people --perhaps, you know, the third place finisher, Tifbn, or somebody else who would have bid -- who will, you know, bring that forward as far as challenging the City's deviation from the essential requirements of law. Now -- Ms. Mendez: Chair -- Mr. de la Portilla: -- you've heard about Ms. Weller and how she's an outlier. Ms. Weller is an outlier it's been said, because, you know, the only person with marina experience on that selection committee, the only person who actually has experience operating retail properties in a marina context in the City of *Miami scored Suntex number one. Correct? So the argument has been made by Ms. Ramos and by others here, Well, her score was different than the others, City of Miami Page 45 Printed on 101412016 City Commission Meeting Minutes June 22, 2016 because she scored Suntex number one and the others didn't," as if somehow, if four people act a certain way, then, of course, the majority has to be right and the minority or the one that scored differently has to be wrong. But those four people did not articulate their reasons for scoring RCI higher than Suntex. And we talked about objective criterion, like $200 million in hand versus, Hey, let me ask the bank if they're interested so we can submit an application for 75 percent financing. "How in the world can a selection committee member -- how in the world can they score a proposer who doesn't have any money; who, in fact, is asking to defer rent for five years, higher than a proposer who has $200 million in hand and is paying rent on day one? How is that not arbitrary and capricious? Who determines what is arbitrary and capricious? Well, you use the Peasonable man'ktandard; that's the law. Now, a reasonable man or woman cannot conclude that somebody who has to apply for financing and doesn't have money to pay you on day one; they have to defer for five rent -- rent for five years -- is in a better position than a proposer who has $200 million in hand and is paying rent on day one. By the way, Mr. Dotson talked about all those marinas and this and that. Those are all existing properties. They didn't build any of those, those six that they mentioned. And, of course, they can put Bahia Mar up there and talk about Bahia Mar as being one of them, but we can't talk about the conflict of interest regarding Bahia Mar -- Mr. Dotson: Chairman, I object. Mr. de la Portilla: -- with one of the selection committee members. We can't mention that, right? Chair Hardemon: Your objection is sustained. Mr. de la Portilla: We're going to play blind -- right? -- to things that are obvious and glaring that this is not in the City's best interest. You're the City Commission. You have to make a decision based on what's in the City's best interest, right? This is a 75 year deal; 75 years. This will outlive everyone in this room. It'll outlive you, me and everyone in this room by a lot. Commissioner Suarez: Hey, hey, hey -- Mr. de la Portilla: And you're proposing to go into this deal with a proposer that -- okay, we won't talk about it -- but didn't disclose information that the RFP said they should have; with a selection committee that issues have been raised. And you know what? We don't have to raise them, because they're out in the public domain. Look, everybody in this room knows about that. You're getting ready to award or move forward in negotiations with a proposer that doesn't have a tenth of the experience of Suntex. Of course, those scores are arbitrary and capricious, and you have to go to deviation. It's a requirement of *law -- Mr. Dotson: Mr. Chairman, the time is up. Mr. de la Portilla: -- and that deviation includes bias and (INAUDIBLE) -- Chair Hardemon: Thank you very much. Your time is expired. Mr. de la Portilla: (INAUDIBLE.) Chair Hardemon: Your time is expired; appreciate your comments you laid on the record. Madam City Attorney, I'm sure you have an instruction that you want to give to the body. Ms. Mendez: Yes. Thank you, Chairman. Just for the record, as we've stated before, everything that this Commission is considering for purposes of this bid protest are that which is within the four corners of *the bid protest, and I would ask that -- City of Miami Page 46 Printed on 101412016 City Commission Meeting Minutes June 22, 2016 Chair Hardemon: That includes the comments that were sustained -- or the objections that were sustained, correct? Ms. Mendez: Yes. Thank you, Chairman. Chair Hardemon: And you're asking that they do what now? Ms. Mendez: We're asking that --just as a reminder that the only things that you will be taking into account in your decision today are those things which are brought up in the written proposal, as enhanced by counselors here. However, it's what is before you in the written documents that needs to be front and center for your decisions today. Thank you. Chair Hardemon: Thank you. RCI, you have five minutes. Mr. Dotson: Befbre we start, I just want to have the IT people connect us to your screens. Mr. Chairman, we've put in -- Chair Hardemon: They're not ready yet. Mr. Dotson: Oh. Chair Hardemon: Okay, we're ready now. Mr. Dotson: You're ready? Chair Hardemon: Yes. Mr. Dotson: Mr. Chairman, we've put in front of you a summary of our argument. Let's start with their proposal, Suntex's proposal. They've offered you an elusive percentage rent payment. There's been no clarification of that at all during this bid protest. Three different rentpayments were in their proposal, so they could select whichever one they wanted to actually go with. Unclear, their commercial component and size; deceptive parking count and payment. They had several different payments in their proposal as related to their parking count; the parking garage height, above your 65 foot requirement. The forklift -- Mr. de la Portilla: I'm going to object to that. None of this is in the four corners of 'any of ,the written submissions. Mr. Dotson: Yes; yes, it is. I mean, the chart is not; this is a summary. And these are exactly the same things I said, without objection -- Mr. de la Portilla: That's not (UNINTELLIGIBLE). Mr. Dotson: -- I'm merely summarizing them. Chair Hardemon: Continue on. Overruled. Mr. Dotson: The fbrklift technology, erroneous. There's no technology that exists today that's forklifts that will go as high as they need them to go in order to put their boats in and take them out; it does not exist today. Fictional pro forma financial projections. They're financial projections, because you don't know what the percentage rate is, you don't what the commercial size is. Fictitious. They ignored the RFP requirements; they violated the height restrictions; they violated the 50 foot Charter setback; they violated the FEMA flood requirements; they violated the private parking ban. In their proposal, they had 150 private -- City of Miami Page 47 Printed on 101412016 City Commission Meeting Minutes June 22, 2016 Mr. de la Portilla: Objection again. That is also -- Chair Hardemon: Sustained. Mr. de la Portilla: -- not in the protest. Mr. Dotson: Actually, it is in our response. Mr. de la Portilla: It is not, it is not. You're basically throwing new things out here. It's not in the four corners. Mr. Dotson: It is in our response. If you want me to find the page -- I'll go on, I'll go on, I'll move on. Chair Hardemon: Move on. I heard (INA UDIBLE). Mr. Dotson: It's so much here that is -- that was ignored. I don't have to stick on one in particular violation of theirs. They violated the City's request for sufficient information to evaluate the proposal. None of their documents, none of their schemes, none of their proposal was done to Code; none of it. You can't evaluate how many parking spaces; you can't evaluate how large everything is. And they violated the litigation disclosure requirement. Now, their bid protest is specious. They had -- they were wrong about RCTs experience; they were wrong about the parking requirement contribution; they were wrong about sustainable design; and they were wrong about scoring. So take a look at your screen. It's interesting. He said, Something's rotten here. "And I heard that very clearly. What's rotten here is that Tifon has first approached you. They want another bite at the apple. You said ho. "And then Suntex came. They want another bite at the apple. They know that we presented and we provided the best proposal; we provided the type of development that the City was looking for, and they both want another bite at the apple. And you can't do that. That's what's rotten here. That's what's rotten here: their desire to have two bites at the apple, and you can't let them do that. Also, if you take them at their word that they're the only ones in this room, they're the -- that can evaluate experience; they're the only ones in this room that understand what scoring should be; they're the only ones in this room who you should believe as relates to the scores, then why should you have an evaluation committee score any proposal? Why? Just let the proposers come in and say, 1'think I should get 100; think he should get 23. In fact, I want 45 for this, 'and we just allow horse trading on scoring. That's not the way it's done. You selected professional people to evaluate these proposals, and there is a transcript of that meeting. There's a transcript of that meeting, so anyone that could stand here and tell you that the evaluation committee did not have reasons for their decisions, there's a transcript of that meeting that explains everything they discussed, everything that was on the table. Don't take my word for it. There is a transcript of that meeting. The next thing I want to reiterate one more time: Your staff, in putting together this RFP, required every proposer -- over 12 times -- to look at the Virginia Key Master Plan. They said in that RFP, You make sure you take the Virginia Key Master Plan into compliance. "And again, I'm going to say one more time, we look forward to showing you how we did, no one else did, and how you can move forward with this particular proposal without creating the rotten apple that they are actually trying to create here. And I'll yield my 25 seconds to the City. Chair Hardemon: Thank you very much. City. Ms. Ramos: Yes. I'd like to address the statement made by Suntex about Ms. Weller. At no point did I say that Ms. Weller was wrong in her scoring. I was simply pointing out that to the degree that her reasonableness was questioned because her scores were out of sync with all the others, she gave explanations for her scoring. Essentially, what Mr. Dotson said is exactly right. The protesters want a rescoring; that's what they want. Why? Because -- they want it because they don't like the way that it was scored. There is no evidence that the scores were arbitrary and City of Miami Page 48 Printed on 101412016 City Commission Meeting Minutes June 22, 2016 capricious. If we go back and listen to the transcript that Mr. Dotson has talked about, it will be clear that each of them had their reasons, and that is all that the law requires. In closing, the protest should be denied because there's no evidence of *any of *the things that the law requires for a protest to be granted, number one. There have been no departures from the requirements of law. And by that, I mean, to clarify, from the City Code, from the Procurement Code, from State law. None of those requirements of *law have been violated. There has been no evidence of *a due process violation. What does that mean? There has been no evidence of a sunshine law violation; of a bid -rigging claim; of a cone of silence violation, or of collusion, in general. And lastly, there has been zero evidence of dishonesty, of illegality, of fraud, of oppression, or of misconduct. And absent any of those things, the award should -- or the recommendation should be sustained, and the protest should be denied. I yield the remainder of my time unless someone has questions. Chair Hardemon: Closing arguments have been made. At this time, this is what I will do: I want you all to listen very closely to me. What we're discussing right now is whether or not the City Commission should accept or deny the Manager's -- or the DREAM director's recommendation to the Manager to deny the protest or accept the protest. That is what we're discussing at this time; we're not discussing anything other than that. So I will open the floor for public hearing about that narrow issue. If you do not have comments about that narrow issue, please don't stand up to make comments, because you will extend the time that we have to be here. And if you are making comments outside of that, I will stop you. So I'm going to open the floor for public hearing for one minute on those issues. Vice Chair Russell: Mr. Chair. Chair Hardemon: (UNINTELLIGIBLE.) Vice Chair Russell: I just want to perhaps help a little bit with what we're probably expecting to hear from the public; knowing why many of them are here, and the public commentary that -- I understand what we're trying to do is limit to the four corners, but we're expecting everyone in here to have a legal degree on what they can and cannot make public comment about, and that's a pretty high ask, because there's a lot of emotion involved in this. And I think what I'd like to recommend is that we put the blinders on a little bit, as we're having to up here, right now, to discuss this within the issue of this protest, specifically on what was written in the protest. You could see frustration on Suntex's side throughout, because there were a lot of things they wanted to talk about that they weren't allowed to talk about in here. Now, we can't do their job for them, and put in the protest what, you know, should have been in the protest. If they found out late or if they had other ideas, or for whatever reason, they could only discuss what was written in this protest. And what --the public commentary now is for what's written in this protest. What I'd originally asked for at the very beginning of this meeting is that we discuss first the RFP as a whole; where what all of you are here for -- or many of you are here for by -- I can see by the signs on your chests -- has to do with many other things that have not yet been discussed, and I'm sure you're bursting at the seams to discuss those issues right now. You most likely will get your mike cut if you begin going in that direction. We will discuss those things right after this protest is done; and I, for sure, will, because I recognize the frustration of ,it. This is such an important issue; 75 year contract; hundreds of millions of dollars; a lot of things need to be thought about. But right now, all we're talking about is the protest. Chair Hardemon: So I'll open up the floor for public hearing, as I stated before. Sir, I think you're counsel to one of the parties; is that correct? Mr. Perez: That's correct. I'm also -- if you don't want to give me an opportunity to speak, it's your call. Chair Hardemon: No, I'm just saying -- I want the record to reflect though -- City of Miami Page 49 Printed on 101412016 City Commission Meeting Minutes June 22, 2016 Mr. Perez: Yes. Chair Hardemon: -- that you are counsel to one of the parties. Mr. Perez: Absolutely, yeah. Chair Hardemon: Okay. You have one minute. Mr. Perez: Thank you very much. RCI is playing fast and loose with all of you. Its preferred plan calls for RCI to build a parking garage and not pay for the parking contribution. You don't have to take my word for it. It's in black and white in Section 4.2 of their lease, which says, As an alternative, lessee at lessee election may '=- lei lieu of making the parking trust fund contribution provide all of its required parking on the premises at lessee's sole cost and expense. " There it is, in black and white, in 4.2. Cutting through that legalese, it means if we build our preferred plan, we don't have to pay for the parking trust fund contribution. They scour 400 pages of their proposal and they find one sentence in that. I trust that you'll turn to that tab where they quote that one sentence. That one sentence has nothing to do with their preferred plan. It has to do with their alternative plan. The numbers do not lie. Their pro forma does not include the parking trust fund contribution. Today, as we stand here today, they -- the City Administration does not know whether or not RCI can perform, because their pro formas -- Chair Hardemon: Can you state your name and address for the record? Mr. Perez: -- do not take into consideration parking trust fund contribution. Richard Perez, Holland & Knight, 701 Brickell Avenue. Thank you. Commissioner Suarez: We're only doing one minute -- Chair Hardemon: Seeing no other persons -- Commissioner Suarez: -- is that what's happening? Chair Hardemon: Yeah. Commissioner Suarez: Okay. Chair Hardemon: Seeing no other person that's here for public comment about the item, I'll close public hearing. Moving on now, we are here to -- we have some things to consider. Of course, whether or not -- the two big questions that we have at this point is whether or not we're going to accept and approving or -- whether or not we're going to accept and approve, or reject the Department of Real Estate and Asset Management's recommendation to the City Manager -- I'm sorry, let me read this more correctly. Two things you have to consider. One is a resolution of the City of Miami Commission, with attachments, accepting and approving the Department of Real Estate and Asset Management director's decision to deny the protest by New Rickenbacker Marina, LLC. Is that the right one? Commissioner Gort: Yeah. Chair Hardemon: That's the right one? Okay. Or a resolution of the Miami City Commission, with attachments, rejecting and denying the Department of Real Estate and Asset Management decision to deny the protest by New Rickenbacker Marina, LLC. So we're either accepting or denying the DREAM's decision to -- Mr. Dotson: Mr. Chairman, I believe you read Tifon and not -- City of Miami Page 50 Printed on 101412016 City Commission Meeting Minutes June 22, 2016 Chair Hardemon: Did I read the Tifon ? Mr. Dotson: Yes; yes, sir. Chair Hardemon: Okay. That's what I was wondering. So just the last part would be: For Virginia Key SMI. So there was a recommendation that was put by DREAM to reject the bid protest, and that's what we're considering right now; whether or not we're going to accept or reject that recommendation. There's two things. You can have -- we can have a motion and a second, and then have the discussion about that motion and second; or we can just talk forever about whether or not, you know, what we want to do. So I will accept any motion -- I will accept a motion at this time. Is there a motion? Ms. Mendez: Chairman, I apologize. The attorneys for the bid protester would like a one -minute proffer for the record, because they would like to protect certain --so I would ask if you can allow that. Chair Hardemon: A one -minute proffer for what? Ms. Mendez: For the record, for what they feel that they have not been allowed to present on the record. Chair Hardemon: All right. Go ahead. Mr. Brown: Thank you. Thank you, Mr. Chair. The two things that we were precluded from talking about that we wish to is the conflict of interest of the DREAM director -- Mr. Dotson: Mr. Chairman, I'm going to object to this. Mr. Brown: I'm making a proffer, counsel. Don't interrupt me, please. This is not in evidence; it's a proffer for appellate purposes. Mr. Dotson: Mr. Chairman -- Chair Hardemon: Just let him proffer. Mr. Dotson: Okay. Chair Hardemon: Let him proffer. Mr. Brown: Thank you. -- his conflict of interest in being associated with the Christophs and Tate Capital in the Bahia Mar Project; and yet, he is the chair of ,the selection committee, and the person that decided against Suntex, recommending that you deny our bid protest, and we can establish that with evidence. In fact, as of last week, on their website, he was shown as the team of Tate Capital, business partners with the Christophs; the person standing before you asking to award this proposal. And the second thing is the spill in Biscayne Bay. There are -- obviously, we've gone about that ad nauseum, but clearly, that, in and of itself, that failure to disclose is an absolute -- calls for an absolute disqualification of *RCI; goes to the heart of their character, their candor, and this Commission -- Vice - Vce Chair Russell: Were those listed in their protest? Chair Hardemon: No. And I want to say this: I am -- I want to say this: I am so disappointed; not only in that -- the way we went about doing that proffering, but that our City Attorney didn't recommend another way of doing that proffer, because what could have been done was we could City of Miami Page 51 Printed on 101412016 City Commission Meeting Minutes June 22, 2016 have allowed them to have access to the record, and all of us Commissioners could have walked out of here so we wouldn't have to hear that discussion, because to me -- let me finish -- to me, all that this counselor did was try to taint the minds of the Commissioners that are here. Now -- Mr. Brown: (UNINTELLIGIBLE). Chair Hardemon: Let me finish. This is not your -- listen -- Mr. Brown: (UNINTELLIGIBLE). Chair Hardemon: Let me explain something to you. You do not have the opportunity to speak right now. The reason you're speaking into -- Mr. Brown: (UNINTELLIGIBLE) I do have a right to defend myself. He made a proffer (UNINTELLIGIBLE). Chair Hardemon: Let me explain something to you. Mr. Brown: (UNINTELLIGIBLE). Chair Hardemon: Let me explain something to you. The -- did you give your proffer? Mr. Brown: (INAUDIBLE). Chair Hardemon: Yes. You had your minute? Mr. Brown: (UNINTELLIGIBLE). Chair Hardemon: And so it's now time for you to take a seat. Please have a seat. Mr. Brown: (UNINTELLIGIBLE). Chair Hardemon: Have a seat. As I stated, Madam City Attorney, there was a better way of doing that, and that's not what we did. Now, I know that all of these counselors have an opportunity to see all of us at a time that is not before this body. And they, I'm sure, made those arguments to everyone that is seated here. However, to put it on the record puts everyone in a position that is contrary to what we stated in the beginning, and so that's why I thought it would be better for us to do it in another way. However, he has made his proffer. I anticipate that none of us Commissioners will be using that evidence that he put on the record in the proffer to make our decisions, because we were presented a bid protest, and I think we should make a decision on the bid protests and responses. Mr. City Manager. Ms. Mendez: If I -- Daniel J. Alfonso (City Manager): Mr. Chairman -- Ms. Mendez: No. I need to answer this for a moment. First of all, the proffer was supposed to be on the two matters that they felt that they were not allowed to discuss, which should have been, one, a bias; and two, the environmental. And it could have been said in two words. I did not know to what extent they would take it. With that said, whatever they said -- they could have talked about, you know, actual crimes having been committed or something, and you did not have to take that into account, because, pursuant to our Code and pursuant to this RFP, all you have to take into account is the four corners of this bid protest, which is the only thing you have to take into account. As you know from being a trial attorney, many a time, a bell is rung and then it is quickly shut down, because there is an instruction by the judge saying that you don't City of Miami Page 52 Printed on 101412016 City Commission Meeting Minutes June 22, 2016 need to take that information into account. So this Commission understands, based on the many years that they've been doing this -- and also, just based on clear instruction -- that you only have to take into account an -- the only thing that has to be taken in for you to make your --just whether to reject this bid or -- this bid protest or not would just be whatever has been proposed by the bid protesters in the four corners of that bid protest, and that is it. Unfortunately, there is this thing called due process -- and I'm saying finfortunately'right now because I have never seen such a drawn out --just process for a bid protest. With that said, you know exactly what you need to take into account or not. And I am instructing you as your City Attorney to please not take anything into account that has not been brought before you in this bid protest. Thank you. Chair Hardemon: Mr. City Manager and then Commissioner Gort. Mr. Alfonso: Thank you, Mr. Chairman, for giving me the floor before it was taken. I would like our attorney to respond to that issue specifically. I can go on the web and find a website that says the President of *the United States was not born in the United States, but I think we've -- we know that's not true. So I would like our attorney to clear the issue of Mr. Rotenberg and his involvement with or -- Tate or not. Chair Hardemon: I'm not -- well, I'm inclined not to allow that; however -- Commissioner Gort: Well, the reason, this is going to show up in court, but if ,the -- they created a doubt among our -- the people sitting there that we're a crook and the City doesn't do anything, and we don't do the right thing always. And I had to -- said that. And I'm sorry they can't bring that up, because I read all of their documents that says to the contrary, but I'm sure they'll show up in court, but I just want to make sure people get all the information. Commissioner Suarez: Mr. Chair. Chair Hardemon: You're recognized. Commissioner Suarez: I don't think the proffer is proper, to be completely frank with you, but we allowed them to do the proffer. I think we should allow the attorney for our staff to make a proffer that is a minute long, as well, just to clarify the record that, you know, whatever appellate body can look at the record and decide whether they want to take that into consideration or not. I think it's outside of the corners of the RFP, and our Code and our RFP are very clear on that issue. So make a minute proffer and then we'll go from there. Thank you. Ms. Ramos: Mr. Chair, if you'll allow me, I just want to introduce into the record a letter from Tate Capital, dated June 7, 2016, that says that Daniel Rotenberg worked for Tate Capital Estate Solutions from December 20 -- 15, 2009 to September 28, 2012; at which time, he left, and he currently has no business relationship with that company. Furthermore, I have an affidavit signed by Daniel Rotenberg, stating that he has absolutely no business relationship with Tate Capital. That concluded back in 2012. Chair Hardemon: Thank you very much. The one thing I'm sure of *is that Mr. Rotenberg has caused me much heartburn. Okay. So now at this time, is there a motion by any of the Commissioners in regard to the issue that's before us? Commissioner Suarez: So, Mr. Chair, I think the better way is maybe to go point by point, and make findings, unless the City Attorney feels otherwise. Ms. Mendez: Findings definitely would be appropriate in this case. And would -- when you say ffo one by one, Uould you take the actual bid protest? Commissioner Suarez: Yes; that's what I was referring to. So, for example, Suntex says -- City of Miami Page 53 Printed on 101412016 City Commission Meeting Minutes June 22, 2016 essentially makes four allegations, and then a sort of general one, regarding to -- relating to the selection committee scores. So the first one is that -- and, you know, just understand that they allege -- because their protest responds to both proposers, so they say both. "And I think when they say both, 'they mean RCI and also Tifon. So it said, Failed to make the required parking contribution. "And I think there was evidence that stated that, number one, the City clarified within their alternate versus preferred plan that they would be compliant with the minimum contribution, and that it would be done at the time of the signing of the lease; not at the time of the proposal, I think. Is that --? That was the testimony that I heard. Ms. Mendez: You're correct. Commissioner Suarez: So I would not -- I would move not to sustain on that basis; not to sustain the protest. Then you talk about sustainable design, incorporating sustainable design elements. And I think there was ample evidence in the record that they did, in fact, proffer -- Ms. Mendez: Since -- Commissioner, I think, just for the record, and since all of this later will be placed in a resolution, depending on your -- Commissioner Suarez: Motion. Ms. Mendez: -- right. So just to be clear, can we go one by one? Like you explain this one and we can vote on that item. Commissioner Suarez: Okay. Ms. Mendez: Then go to the next one and -- Commissioner Suarez: Fine. Chair Hardemon: But now -- and I guess that was part of *why I said, Is there a motion ?because Commissioner Suarez: Well -- Chair Hardemon: -- I can see -- say, for instance -- because what's going to happen, we're going to vote on these four issues, and then have to ultimately decide whether or not we should accept or deny. If you have a motion to accept or deny, can't you just list the reasons why, because you can list the reasons why you agree to that motion? Ms. Mendez: You can, as well, but I thought that what Commissioner Suarez had requested was that we go through each one. And I think just for clarity, because we know this is going to be ending up in court no matter what happens. I just think that each -- if there's a finding for each one, we can make several motions, because you can deny three and accept one, and there you go. So can we --? Chair Hardemon: That's fine. Do you have a motion on the first one? Commissioner Suarez: So I move that it not be -- that the protest not be sustained, based on an alleged failure to make the required parking garage contribution. Chair Hardemon: Is there a second? Vice Chair Russell: Is that one item? Chair Hardemon: He wants to do item by item. City of Miami Page 54 Printed on 101412016 City Commission Meeting Minutes June 22, 2016 Commissioner Suarez: I mean, that's what the City Attorney is recommending. Vice Chair Russell: A motion for each item? Chair Hardemon: Yeah. Commissioner Suarez: Isn't that what you're recommending? Commissioner Suarez: So it'll -- to be clear, the motion is not to accept or reject the DREAM recommendation, but the motion is to not -- Commissioner Suarez: Sustain the protest. Chair Hardemon: -- sustain. Whatever opinions you have based off 'of number one, both failed to make the required parking garage contribution; that's the way he put it. Is there a second to that? Vice Chair Russell: I'm not seconding that, no. I don't understand, I guess. Commissioner Suarez: So this is -- and this is part of what I'm saying. It -- when you start to break it down, you may have a little issue compared to there's one question, and that's are we going to accept or reject the proposed -- I'm sorry -- the recommendation of the DREAM director? That's really the question. If there is a -- so if ,we present -- for instance, if it's Peject, " or say, for instance, say it's liccept. "Accept the DREAM recommenda -- the DREAM director's recommendation to reject the bid protest, then during discussion, we can say reasons why we believe that it should be accepted; therefore, rejected. Commissioner Suarez: Fine. Chair Hardemon: And so everyone will be allowed to put their opinion on the matter. And then we have a vote, and it's going to be Yea'or flay. "I think it's up or down. But to get us to agree on each of these four things, I think would be troublesome. Vice Chair Russell: Yeah. I would recommend, Mr. Chair, if we could have a little discussion beforehand. To make the motion right offsets the intention or the momentum before we've had a discussion on which way it should go. And I think we've taken in a lot of information in a court -like setting here that we -- We're not a court, so -- Chair Hardemon: So, typically -- the reason why I'm a proponent of putting the motion first is because it lets the body know where they're going. If you -- if the body -- if I know that -- I move to make a right turn, we know we're talking about making a right turn. And you can be with it or against it, but all of our discussion is now geared towards that. So, therefore, if it's a motion to -- a motion and a second to follow the DREAM director's recommendation, then we know the direction. Now we can have discussion, Yea '=- firo'or ton That. And then we make a decision about where we want to go. But to just talk, you know, just about the subject in general, I think is going to be troublesome, because then in the end, you're going to have to make a motion and you're going to have to discuss that motion, which is going to be to make a right turn. So I think it's best that Ii notion be put on the floor. It can be to accept the DREAM director or it can be to reject the DREAM director's recommendation, but there needs to be a motion on the floor. Commissioner Suarez: Okay. So I move to accept the DREAM director's recommendation that the bid protest not be sustained for the following reasons: The first is -- Chair Hardemon: Is there a second? City of Miami Page 55 Printed on 101412016 City Commission Meeting Minutes June 22, 2016 Commissioner Goat: Second. Chair Hardemon: It's been properly moved and seconded. Commissioner Suarez: Great. Chair Hardemon: Move to discussion. Commissioner Suarez: Okay. Chair Hardemon: Go ahead. Commissioner Suarez: I believe that the protesting party has failed -- actually, I believe that there is testimony that has been put into the record require -- that essentially establishes that the required parking garage contribution was going to be made at the requisite proper time. Number two, I think there was testimony put into the record about the sustainable design elements that were put into the RFP by Suntex -- I'm sorry -- by RCI. Number three, I think there was evidence put into the record that we heard about the proposed lease and that there be no significant changes to the lease that would violate the RFP; that's on the front page. And I think it was very clear that the -- that RCI does not have litigation with the City of Miami. I mean, I think all the evidence points to that. Furthermore, when you look at the actual scores, you know, I think the arguments are based on their sort of rescoring, if you will, where they talk about that they have greater -- this is from their protest -- qualifications, experience and operational history. And to me, that's what the scores are supposed to decide; who has greater qualifications, experience and operational history. I mean, those are -- that's from the scoring criteria itse f * And so you have to, I think, introduce specific evidence of arbitrary and capriciousness. That's something that they have as a burden of proof, based on what the counsel for the Administration was stating. They also say that their financial profile was far superior in light of their ability to complete the project without any financing. Again, that goes to one of the scoring criterias [sic], and that was scored by the committee members. And lastly, they talk about the design being the only one that consistently utilizes required sustainability elements, and I think that's not the case, based on what we heard in testimony that both -- I'm not saying that they didn't use sustainability elements. I'm saying that both parties did, and that was part of what was scored. So I just -- I don't see any compelling evidence that would -- of arbitrariness, of capriciousness, consistent with what that definition means, as articulated by the City Attorney or the attorney for the Administration. So that's my reasons. Vice Chair Russell: Mr. Chair. Chair Hardemon: Vice Chairman. Vice Chair Russell: Thank you. Most of actually what you said, I completely agree with. And my question with regard to arbitrary and capricious scoring, there was one example that was -- that Suntex kept bringing up that they had much superior financing ability, and I didn't quite hear a counterargument to that. But in the scoring, three of the judges voted RCI to have the greater financial ability, and only one voted Suntex to have the greater financial ability. I can't read their minds, being that there are no commentary on three of the judging sheets, but to me, that leaves a bit of a question in there, because I didn't hear from Sun --from RCI in their rebuttals, A76, that is incorrect. We actually have the greater financial capacity. "Yet the scoring shows RCI has the greater financial capacity. Everything we heard today showed that Suntex has the greater financial capacity. So, for me, that's the one place where I'm having trouble with the scoring, but it's again trying to get into the judges' minds. Beyond that, I really think that RCI did a very good job in preparing their case here today. And I think Suntex got really rattled by the fact that they could not bring the threshold items -- what they felt are threshold items that City of Miami Page 56 Printed on 101412016 City Commission Meeting Minutes June 22, 2016 should precursor this whole discussion, so that took them off their game of actually really hammering on the points that they did have. I agree with you; I don't think the case was made well enough to knock out RCI and say that they were nonresponsive and non -responsible, based on the reasons that Suntex brought. Chair Hardemon: Any further discussion from the dais? If there is no further discussion, is there any unreadiness? Seeing no unreadiness, all in favor of the motion that is on the table, indicate so by saying i1ye. " The Commission (Collectively): Aye. Chair Hardemon: All against? The motion passes. SP.2 DISCUSSION ITEM 16-00851 City Commission A DISCUSSION ITEM OF THE MIAMI CITY COMMISSION REGARDING REQUEST FOR PROPOSALS NO. 12-14-0771 FOR THE LEASE AND DEVELOPMENT OF CITY OF MIAMI OWNED WATERFRONT PROPERTY FOR MARINAS/RESTAURANT/SHIP'S STORE USES LOCATED IN VIRGINIA KEY, TO EITHER ACCEPT THE MANAGER'S RECOMMENDATION, REJECT THE MANAGER'S RECOMMENDATION, REJECT ALL PROPOSALS, REJECT ALL PROPOSALS AND INSTRUCT THE CITY MANAGER TO ISSUE A NEW REQUEST FOR PROPOSALS, OR SEEK THE RECOMMENDATION OF THE SELECTION COMMITTEE, WITH CITY COMMISSION ACTION FOLLOWING THE DISCUSSION. 16-00851 Summary Form.pdf 16-00851 RFP Request For Proposal.pdf 16-00851 Sketch And Submerged Land Legal Description.pdf 16-00851 Marine Resource Survey.pdf 16-00851 Master Plan Final Report.pdf 16-00851 Master Plan Presentation. pdf 16-00851 Back -Up from Law Dept. pdf 16 -00851 -Submittal -AI Dotson-Bilzin Sumberg memo -Basin can be excluded from the developmer DISCUSSED Chair Hardemon: Okay, moving on to item number 2. Item number 2 is a discussion item to review Request for Proposals Number 12-14-077 for lease of City -owned waterfront property located in Virginia Key; also known as the Virginia Key Marina. Commissioner Suarez: This is where you guys are going to get a chance to speak on the issue. Chair Hardemon: Did the City want to initiate this discussion, or is this something that someone -- Commissioners want to initiate? Vice Chair Russell: As the Commissioner for the district, I would love to start this discussion. Chair Hardemon: Okay. Vice Chair Russell: Virginia Key is an absolute gem that we are charged with protecting. We have a newly formed Virginia Key Advisory Board, which Commissioner Suarez really pushed for, and to finally have their opinion, perhaps a little bit late on this RFP (Request for Proposals), gives us some insight into the Master Plan which our City put together for Virginia Key. This Master Plan in itself has a lot of questions, because even that advisory board will be bringing to us further resolutions where they feel the Master Plan that we voted on isn't the Master Plan that the community put together; that there were changes, substantial changes within that Master Plan. Phrases like develop and manage the land'Were added after it was already agreed to and voted on amongst the activists that got together and helped with the Master Plan in the community. Whereas the original language stressed on preserving the City of Miami Page 57 Printed on 101412016 City Commission Meeting Minutes June 22, 2016 natural areas and the small-scale recreational activities of Virginia Key, what our Administration did was put out an RFP that obviously doesn't come first to Commission, and we're the Commissioners who have the ear of our constituents. But this was a business plan put together for an RFP for a marina that would basically service the Marine Stadium and the flex park as a very large pre-show/after-show place you can go to dinner, go shopping, and everything. And I don't know if that is what the Master Plan originally intended, or if the marina was meant to be a marina. The scope and scale of this RFP is far beyond, in my opinion, what was intended by the public. Now, eventually, the public will have their voice if this goes to referendum. But for me, the way we bring an RFP as a whole kind of ,undermines that process, because even we -- We're the last step before referendum as a City Commission. We should be involved more at the beginning, and the public should be involved more at the beginning. There's other RFPs that are out right now that, you know, the waterfront committee is not being consulted on. This Virginia Key Advisory Board would be a great asset to be involved with such an RFP like we're looking at right now. I, as the Commissioner for this district, would have loved to have been involved at the beginning of this RFP, so that what we're tasking the bidders with is what we believe and understand that the community truly wants and deserves. (UNINTELLIGIBLE) this is not a small contract. Most small contracts that go out for bid, of course, the Administration has full ability to take it from A 7o Z, 'and then we just rubber-stamp it at the end. This is something so important and so big; 75 years; hundreds of millions of dollars. Basically, the makeup of what Virginia Key will look like is going to be affected by this bid, and some of the major components of 'it, such as boats being put in the basin were basically part of this RFP on which everybody created proposals and that's against what was in the Master Plan. I have a drawing from the Master Plan showing the boats outside of the basin. Sorry, I'm a little messy. Here we go. So you've got a potential marina here, which is where the current footprint is, and the additional slips -- wet slips -- over here. That's from the Master Plan of -- the Virginia Key Master Plan. But this RFP really created the need for all bidders to put boats out here in the historic basin. In order for this RFP, once it's granted, to actually come to fruition, we need to change historical designations that are in place; we need to change a Master Plan, which is in place; we need to change planning and zoning, which is in place. How can we be putting out an RFP for something that we're not allowed to make ourselves do unless we start changing all those things? And those things shouldn't be changed at the end, like a rubber stamp. They should be changed -- If we have the intent to develop Virginia Key differently than we had intended, let's get that out of 'the way beforehand and set that intention with the public, so as we move forward, everybody's onboard. Now what we may hear is that -- and we didn't discuss it at all today, because boats in the basin wasn't part of the bid protest, but boats in the basin is what a lot of the people here are here to protest. I've gotten dozens and dozens and dozens of emails and phone calls, specifically with regard to opposition to having wet slips in the basin, which would basically block half of the waterway of the -- in front of the Marine Stadium. It would affect everything from kayak and paddle -boarders and dragon boats and rowing clubs from -- all for what? So that we can make more profit by just stacking as many possible boats as we possibly can. The first place bidder was smart enough to have an alternate idea; that if these boats in the basin weren't allowed that they're still able to actually perform. But if I'm not mistaken, we do have a -- at least one of our City Attorneys has opined that taking those boats out of the basin would be a material change to the RFP, and change it enough so that who might have bid on this had we not had that as part of the original bid -- RFP? Who might have -- who else that would maybe be a slightly smaller -scale marina developer might have bid on this? Or what would the other two bidders have done differently if they -- if we knew from the start that this is a violation of the historical designation of that basin? And we shouldn't even be asking for them to bid on this. This isn't the bidders' fault. But I think it does beg the question -- and for me, this is an absolute threshold issue -- before we should have gotten to the bid protest. I've been trying to think of the right analogy, because we're trying to put everybody in line and decide, you know, who's first, second and third when our bigger question is: Is this what we want as a community? Is this scope and scale of this RFP what we want as a Commission? And I think we're just doing it backwards. I'm new at this. So I look at this RFP process and it just -- it's not the way I would have invented it if I were to write it from scratch. I would absolutely City of Miami Page 58 Printed on 101412016 City Commission Meeting Minutes June 22, 2016 require the judging panel to do commentary so I know why they judged what they judged. I would absolutely give a longer period for a protest so they're not scrambling to throw together whatever they can in just a couple days; whereas, the points that might have been brought in had -- were there more time -- are very significant; very significant. Now, all of those things that we were not able to discuss as part of the bid protest, we, as a Commission, are now able to discuss. We absolutely can discuss whether we want a company who was part of the largest water contamination and sewage spill in the area to be building a marina for us. There are technicalities that say perhaps they did not have to disclose that, but by the fact that they took advantage of that loophole and never mentioned it and that it carne out days after the protest -- it was 15 years ago; it was buried, but it sure is something I want to know, because I want to make my decision based on all of the facts. Whether Mr. Rotenberg has a conflict or not, I don't know that answer. I trust him to be a man of good standing, absolutely, but whether he had past relationship with one of the bidders, and even if he doesn't have a current relationship, should he be on the judging panel? It's -- within our Code, there is no ]3er word "violation, but you know what? On such a big and important thing, there's just so many questions on here. So I'm going to make a motion that we throw out this RFP. Applause. Vice Chair Russell: I would have made that motion first thing this morning -- Commissioner Carollo: Second. Chair Hardemon: Before we move on, let me explain how this works. For those of you who haven't been here before or it's -- you haven't been here in quite some time -- any time you hear something that you think is eloquent, well spoken, that you think is something that you should support, you cannot out -- make an outburst like you just did. We don't allow that here. Yes, like the young lady is doing, she's waving her hands like this, that shows that you're in agreeance with what the speaker is saying, because if you don't, you make an outburst, I have to stop you, and then I have to make this announcement, and then we're all here much longer than we need to be. Can we agree to that? Thank you so much. It's been properly moved and seconded. Go ahead. Commissioner Suarez: Mr. Chair -- Chair Hardemon: I don't know -- he was still in his comments. Vice Chairman. Commissioner Suarez: Okay. Vice Chair Russell: And the Assistant City Attorney who did opine that they -- I believe it was Pablo Velez who said at the Virginia Key Advisory Board, when they were talking about -- they made a resolution. They sent a resolution to our Commission, basically saying, Please do not allow boats in the basin, 'and they gave their reasoning why. Please honor the Master Plan. "And I believe at their meeting, the City Attorney did advise that if *we were to take the boats out of ,the basin, that could be considered a material change to the RFP; big enough that it should start over. And I'm open to -- if I misinterpreted that or I misquoted that, please correct me. Victoria Mendez (City Attorney): I think the operative words are could'=- it could be argued either way; however, with that -- I just want to clarify your motion was based on everything that you -- all the reasons you gave previously -- correct? -- is your motion? Commissioner Suarez: Yeah. Vice Chair Russell: Yes. Commissioner Carollo: Based on what he just put -- Vice Chair Russell: Yes. Ms. Mendez: Okay. Thank you. Chair Hardemon: Commissioner Suarez. Commissioner Suarez: Thank you, Mr. Chair. I think -- Vice - Vce Chair Russell: I'm sorry; if I could clarify the motion? Commissioner Suarez: Yeah, of course. Vice Chair Russell: So my motion would be that we throw out the RFP; that the -- and that we direct the Administration to work closely with the Virginia Key Advisory Board, the Waterfront Advisory Board, and even the Sea Level Rise Committee to craft a new RFP with community involvement so that we're not waiting to get to the end. I -- you can help me with the wording City of Miami Page 59 Printed on 101412016 City Commission Meeting Minutes June 22, 2016 specifically on the motion, but basically, that we start from scratch in that sense. Chair Hardemon: What about the Trust, the Virginia Key Beach Trust? Vice Chair Russell: Absolutely. They do have a member on the Virginia Key Advisory Board, so they are represented there but -- Commissioner Gort: Yes. Vice Chair Russell: -- why not? Absolutely. They're a stakeholder on the island, and this is going to affect everyone. The scale of this project in its current form -- you know, I just don't want another large project that wasn't the intention of the public on such apiece of land that we're supposed to be taking care of for the environment. Commissioner Carollo: Seconder accepts with a friendly amendment: That we include also the City Commissioners. Vice Chair Russell: That we -- what? Commissioner Gort: What? Commissioner Carollo: Include also the City Commissioners. Chair Hardemon: Who? Vice Chair Russell: The City Commissioners. Commissioner Carollo: City Commissioners. Vice Chair Russell: That we be involved with the crafting of the RFP. Commissioner Suarez: Mr. Chair. Chair Hardemon: You're recognized, sir. Commissioner Suarez: Thanks. So, clearly, I think the City Commission has the ability -- and we've talked about this and debated this in a variety of different contexts -- we clearly have the ability to do exactly what you're moving. I would simply recommend that -- you've essentially identified what I call three macro issues. Macro issue number one is the contamination issue. Macro issue number two is the purported conflict. And macro issue number three is the boats in the basin. Commissioner Gort: The basin, yeah. Commissioner Suarez: Right. So I would just think in an abundance of caution and fairness that we let all sides have their perspective -- including the public, who is here and has been waiting very patiently for along period of time --on those issues. I think that's the right way to proceed. Ms. Mendez: And if I may just -- and all the other reasons that you gave from the beginning when you listed the Virginia Key Advisory Board; when you listed the committee involvement and community involvement. And all the questions I will place as *hereas'clauses -- Vice - Vce Chair Russell: Thank you. Ms. Mendez: -- for this resolution. Vice Chair Russell: Whereas there were 30 addenda to this RFP, which is -- you know, like I said, I'm new at this, but that seems like an awfully huge changing of everything once we've issued the RFP, which, for lack of those -- you know, that basically customizes the RFP for those who are currently bidding, and it just seems too much. It's just -- there's so many changes that we need to start from scratch. Commissioner Carollo: I mean, I think there's more than sufficient reasons for throwing it out; but, I mean, we could continue on, going on. Ms. Mendez: That's fine. Commissioner Carollo: I mean -- Ms. Mendez: I just wanted to clarify -- Commissioner Carollo: -- whereas it's going to public referendum, and with all these discrepancies, does anyone feel comfortable on going before the voters on this RFP, a 75 year deal? I mean, we could just go on and on. I just feel that there's been more than sufficient evidence on why we should throw this out, but we'll continue. Ms. Mendez: Thank you. Al Dotson: Mr. Chairman, will we have an opportunity to respond? Chair Hardemon: I will give them an opportunity to respond. Mr. Dotson: Okay. City of Miami Page 60 Printed on 101412016 City Commission Meeting Minutes June 22, 2016 Chair Hardemon: So what we'll do -- they don't want an opportunity to respond. Mr. Dotson: Sure. Chair Hardemon: What we're going to do is this: I'm going to allow public comment at this time, so I'll allow each person to give two minutes of public comment at this time. And then after the conclusion of the public comment, then we'll hear from the attorneys that represent the parties here. Barbara Lange: My name is Barbara Lange. I live in Coconut Grove, 3901 Braganza Avenue. I was involved in the Virginia Key Master Plan -- Unidentified Speaker: We can't hear you. Ms. Lange: I was involved in the Virginia Key Master Plan, which I'm holding in my hand, and it feels like whoever put this RFP together never knew there was an RFP --a Master Plan. And I want to make one point here: There was -- in March of 2007, there was a public meeting; in June of 2007, there was a public meeting; in August of '08 and '09, there were public meetings. And I was somebody that was always interested in Virginia Key, and I'm wondering why I didn't know about this, and why there weren't public meetings for the public to get involved in this, and how this big monstrosity of a marina in a wildlife area got -- and I want to -- I also want to thank Commissioner Russell. Thank you for bringing up all the things that all of us have wondered how this happened. And that's it; I'll be brief,* and I know you'll be thankful for that. Vice Chair Russell: Thank you. Dolly McIntyre: Good afternoon. I'm Dolly McIntyre, Dade Heritage Trust; offices at 190 Southeast 12th Terrace. Commissioner Russell, you got it. Commissioner Suarez, you wanted to, but you didn't, because you didn't vote Yes 7o switch the agenda earlier on. We could have avoided -- what? -- four hours of circus if that had come first. You must throw out this RFP; it's flawed from A 7o 7 "You know that. I don't need to say any more. The -- obviously, the citizens want you to throw it out and do it right, and that's all we ask. Anthony Graziano: Mr. Chairman, Commissioners, thank you for your time. My name is Anthony Graziano. I'm the senior managing director of Integra Realty Resources in Miami. I'm here today -- and by disclosure, I was the market study consultant for one of the competitive -- for the Tifon competitive proposal, but I'm here today to speak as a citizen. I want you to understand -- and I want to address this issue of material change. If this north basin is deemed to be not developable, I don't think it's credible for anybody to say that "I can rework the north basin, and I can still make the economics work. " The reality of it is, is that all the respondents were given an opportunity to prepare an RFP that addressed the economics to the best interest to the City, to the best interest of *the development proposal of over a 75 year time frame. I will you, as a professional, I valued over 250 marinas in my career. The value of a marina is related to the lineal feet of slips that a marina can operate with; and if you change that materially, it is a material change to the RFP. So notwithstanding what the political concerns are with the environmental issues and the Master Plan and all the rest, I'll leave that to you as the professionals, but what I want to do is to leave you with this: It absolutely is unquestionably a material change to the RFP if *it is deemed that that basin is not developable. And with that in mind, I would ask you to consider that in your deliberations. Thank you very much. Roger Bernstein: Hello. I'm Roger Bernstein. I live at 3608 Royal Palm Avenue in Miami. This has been an excruciating process for those of us in the audience and, clearly, for the Commission, but it's time to put a halt to it. I mean, clearly, we have something here which was arrived at in a disorganized fashion. We've ended up with something which violates the Master Plan. It creates all kinds of problems. This is a real opportunity to do it right. Take all the resources of the Commission, of the City, of the various advisory boards, of the public; let us sit down and come up with something that works. We understand that the City is sitting on valuable waterfront property and needs to realize revenue out of it, and I'm a citizen, I'm a tax payer; I can agree with that. When the proposal for the boat show came up, it personally created difficulties for me, but on balance -- and this is a personal feeling -- I said, "This is a underutilized parking lot where nobody parks, except for tennis tournaments, and let's do City of Miami Page 61 Printed on 101412016 City Commission Meeting Minutes June 22, 2016 something with it. " But even on that, there could have been more input. Here is a historic opportunity to stop, take all the resources, all the brains, and do it right. And on the other hand, if *it doesn't happen that way, the citizens are not going to go away. This issue is going to go on and on and on. Thank you. Arva Parks: My name is Arva Parks, and I'm -- I have standing -- I'm standing here as a citizen of Miami. And I was involved for maybe three years -- and Commission Gort was here when we did the 2010 Virginia Key Master Plan, and was very, very involved, and I don't think anybody has paid much attention to this, unfortunately, in the Administration today. One of 'our biggest objectives was to keep the boat thing out of the marina so that we could continue with saving the Marine Stadium, which we did. One of the things that I've -- people keep forgetting: we did have boat races; we did have the Rowing Club today, but we also had concerts. And I can tell you, some of the happiest summer days of my life were at those concerts; not just sitting in the stadium, which you could do, the Marine Stadium -- Jimmy Buffet, Kenny Rogers, and -- but being in a boat in the basin, anchored. The basin was full of boats -- and Mr. Gort remembers well -- listening to the Florida Philharmonic play music, and the view of the City of Miami skyline from that area is the best. You can't get any better than that. Also -- so I feel a little -- we were shocked when we heard this. There was not public input. There was not even knowledge, particularly, that this -- there was a new plan. Just a couple of more seconds. Also, we supported you when you voted for the Boat Show, even though we were not overjoyed. The Boat Show had removable docks in the Marina, so there was never a question of having any permanent docks in the boat. So my -- strongly, I want to thank Commissioner Russell and Commissioner Caro -- Vice (UNINTELLIGIBLE) for starting --pushing the effort to start over. If *we start over, have citizens' input, we will do a good job for the people of *the City ofMiami that matter the most, and we're the ones that you should be looking out for. Thank you. Chair Hardemon: Thank you. Joyce Landry: Joyce Landry, Wood Avenue in Coconut Grove. I've been a 28 year resident of Coconut Grove. And I heard words like "DREAM (Department of Real Estate & Asset Management) did a superb job putting together the RFP. " I heard something else about rotten apples, and the only thing that I can see that's rotten about this is that the City is trying to force a development on the public taxpayers. I was one of the people that worked on that Master Plan, and it was about three and a half years in the making. And this same group, your predecessors, voted 5-0 for the Master Plan. You already did that. You already voted for it. Why are we changing it now? Here is some of the thoughts that we had about the Master Plan at the time: ` public green space, a place of recreation, heritage, and natural conservation. " From what I understand, the bid that went out, you used the Master Plan as a guiding tool. It wasn't really enforceable. They didn't make the bidders really comply with the Master Plan. It was just a guiding tool. Why did we go through all this work to just have it be that? It also had in the Master Plan a page that said, "What does the community not want? " And here are four bullet points that were very clear: We did not want encroachment into natural areas. We did not want overbuilding. We certainly did not want shopping centers. And we did not want insensitive stewardship of cultural historic sites, and this is a historic basin. And what I consider an insensitive stewardship are the marine -- are the wet slips in that basin, so just moving that is actually a very good thing. But for the natural area to continue, we ask you to please throw out this bid, please start over, and please do it with the public in mind, because we're the ones who use it. We're out there. I'm there three days a week. A lot of 'my compatriots here are out there all the time. We know what beauty it has. We know how many natural elements there are. We know how much wildlife is out there, and we know how it gets disturbed: through a lot of activity. So please work with us and make this a nice living place for all of 'us. Thank you. Chair Hardemon: Thank you. Craig Oneil: Good evening. My name is Craig Oneil. I'm the director of Restore Marine City of Miami Page 62 Printed on 101412016 City Commission Meeting Minutes June 22, 2016 Stadium, with an address at 1390 Ocean Drive, number 207. I came here today primarily to advocate for the stadium. I've been involved in the project for three years. I've invested tens of thousands of dollars in raising awareness of'the stadium inside the street art community, and I am passionate about the restoration of that building. I sat in this gallery for four hours and was abhorred with what I saw. This building -- Virginia Key is the essential park of Miami. This building is the Hollywood Bowl of Miami. You have an opportunity to put your name, to put your role in a key position in giving this to all the people of this community, or in turn, you have a role of giving very wealthy people a place to park their boats. They don't build statues for businessmen. They build statues for philanthropists and people who make a difference in their community. That's your task. I was just here because I didn't want to see boats in the basin, because that violates the Master Plan, and it violates the historic designation, and it effectively takes the air out of restoring that building. But to see the rampant corruption about how this RFP was put together, as a business person, offends me. There is something rotten in Miami. And when an RFP comes together, and the person managing it has said to people that boat racing won't happen in the basin again, it shows that they're motivated by an interest that's not in the public trust or good, and that's not acceptable. Please stand with us and protect this very important place. Sign your name on something that will be valuable to everybody in this community. Chair Hardemon: Thank you very much, sir. Your time has expired. Mr. Oneil: Thank you. Scott Silver: Good evening. Scott Silver, 3753 Matheson Avenue. I'm also a board member of Dade Heritage Trust. I'd like to suggest that we sell City Hall, and then appoint an advisory committee to decide whether we should do it. If I told you that today, you'd say, "That's crazy. " But that's exactly what you did. We said, Let's basically sell or lease. "When you lease something for 75 years, it's almost like selling it. You know, I have a theory that everything involves some sort of rental, whether it's 75 years, 99 years, 100 years. You're giving up this marina to a third party. And when you're giving up the marina in the way it was constructed -- the way the RFP was constructed and amended and amended and modified, in essence, what you did is you're giving up the Marine Stadium as well, right at the same time that you're pushing through an advisory committee to tell you what to do with it. We have the policy backwards. What you did today for the first four hours was you had a quasi-judicial type of proceeding, but this legis -- Ms. Mendez: It was executive. It was not quasi-judicial. Mr. Oneil: But you heard evidence; you sat, in essence, in some manner, as judges in determining, deciding what was going to occur here. But now this is policy, and you're have an opportunity to make good policy, and I think Commissioner Russell had it exactly. And the end result of today, if you throw out the RFP, you won't have lawsuits. Today, I guarantee you, no matter which way that the -- on the other thing, you're going to have lawsuits. Commissioner Gort: There will be. Mr. Oneil: I count like four of them already that will probably occur. If you throw it out, you don't have any lawsuits; you start the process over again. You -- maybe you'll have a simpler RFP. Maybe -- it certainly should not include anything regarding the -- that interferes with the ability to create the Hollywood Bowl of Miami. You know, you wouldn't want to put billboards on the side of the Eiffel Tower. You wouldn't want to fill in the Grand Canyon with something. The Marine Stadium is such an important historical component of our community, and there are so few items -- so few icons that we have such as that, we have to preserve that, and I urge you to do that. Avoid the litigation and make good policy, and I think that's something you could do tonight now. City of Miami Page 63 Printed on 101412016 City Commission Meeting Minutes June 22, 2016 Chair Hardemon: Thank you very much, sir. Sam Van Leer: Good evening. My name is Sam Van Leer. I'm president and founder of Urban Paradise Guild. And I'm very disturbed by what I saw, the process that I saw. What I saw was the result of old style Miami smoking room kind of decision making, and we can do better than this. Miami is at a crossroads, and we can't afford to build castles on the sand. The mega marina is a radical departure from the consensus Master Plan, and that Master Plan is not something that we should just crumple up and throw away. I designed the charrette that led to that consensus. It represents thousands of community hours; people attending meeting after meeting after meeting after meeting. I don't even remember how many. I went to all of them. But we distilled it. We crystalized it into a consensus at the charrette, at the Rusty Pelican. And what we created was something that was actually so amazing that all those hours could be distilled into three words: "Less is more. " That meant that less infrastructure, less cement, less money gave more value to the public, more access to nature, more access to public spaces, and what a beautiful thing. So I think that we really need to step back, because beyond the issue of the Master Plan is the issue of resilience, and the massive facility that's been described on (UNINTELLIGIBLE) line Barrier island shows a complete lack of understanding of sea level rise and climate change. It's so unwise. We really need to do better. A 75 year lease is absolutely absurd. That will probably be underwater in 75 years. Beyond that, Miami was selected as one of the 100 resilient cities by the Rockefeller Foundation. Chair Hardemon: Sir, your two minutes have come to an end. Mr. Van Leer: I'm almost done. May I? Just a few more words. Chair Hardemon: (UNINTELLIGIBLE) conclusion. Mr. Van Leer: They are watching and the world is watching, so please, throw out this RFP. Thank you. Chair Hardemon: Thank you very much. Rafael Montalvo: Mr. Chair. Chair Hardemon: You're recognized. Yes. Mr. Montalvo: I'm Rafael Montalvo, 13071 Mar Street, Coral Gables. I'm the director of Youth Rowing for the Miami Rowing Club, and member of the board and one of the founders; some of you know. Commissioner Gort was one of *our first donors and sponsors here when we started 40 -some years ago, and your brother was involved and your father was involved and Reverend Gibson was involved, your predecessor; and Commissioner Plummer, your predecessor, was the one that invited us to the Marine Stadium when we were by the airport. So we were invited by the City to be at the Marine Stadium, and we've been there since 1978. We have conducted 43 Miami International Regattas. Next year it will be the 44th. It's one of the oldest races -- rowing races in the U.S. (United States), 10 years younger than the head (UNINTELLIGIBLE). And if you do this marina, that -- we'll never do it again. There will be no more boat races in the stadium, because it's absolutely in the way, and there will be no other boat races, because the loop around the stadium will be eliminated. Furthermore, if you do this marina inside the basin, we -- the Youth Rowing program, of which I'm the director -- and you saw some of the kids here. We have, during the school year, 150 high school and middle school kids, and in the summer, we have another hundred. They will not be able to row in there, because they will not be able to train. They need to row in a loop to be able to train. And these docks occupy one quarter of the space and completely block the space. So this proposal actually eliminates competitive rowing and youth rowing in the Marine Stadium, and it eliminates it completely, because we cannot -- there's no other place nearby. Our kids and our students and our members, 90 percent of them City of Miami Page 64 Printed on 101412016 City Commission Meeting Minutes June 22, 2016 either work, study, or live in the City of Miami. And those that work there and don't live there live in Key Biscayne, so it's -- and the people we attract are from that area. If we eliminate the basin, we're done, and we disappeared, and it's a 40 years of work that are gone. So please redo this bid. Take the docks out of the basin, put them somewhere else, and leave the basin free. Thank you very much. Chair Hardemon: Thank you very much, sir. Ma'am, you're recognized. Christine Rupp: Hey, good evening. Christine Rupp, executive director of Dade Heritage Trust, 190 Southeast 12th Terrace. I've had the pleasure of meeting with most of you, since I've come on as the new director at DHT (Dade Heritage Trust), fighting to preserve Miami -Dade County's architectural and environmental resources. And you know, when I first came on, it was really all about the Marine Stadium, and it still is, for the most part. We have to set the Marine Stadium up for success, and when you put a marina in the basin, that takes away a great deal of the activities and the environment that the Marine Stadium is so well known for. As you know, the National Trust has been before this board talking about the viability and the importance of saving this landmark, and they've also been here with a beer company, with Heineken, talking about further efforts to restore the Marine Stadium. So you know there's a lot of community support for that stadium, but that goes hand in hand with this beautiful environmental resource of the basin. That Marine Stadium and the basin represent an opportunity for this to be this Commission's legacy. Saving that beautiful structure and that incredible basin for the Miami public, making it a public park, giving it public access, this could be your legacy, and it's a huge one. And so I do hope you reconsider that RFP and make the Marine Stadium and the basin accessible to everyone. Thank you. Sunny McLean: Good evening. My name is Sunny McLean. I'm a voter, and I'm a resident of Coconut Grove. Vice Chair Russell: Did you say "boater" or "voter? " Ms. McLean: Voter. Chair Hardemon: I thought you said "voter. " Ms. McLean: "V. " I'm a rower too, but I'm a voter. Commissioner Suarez: Oh, I thought you said, "boater." Ms. McLean: Yes. I want you to know that. Many years ago, back in 2007, the Virginia Key Public Planning Coalition got together; 21 participating organizations. They partnered with seven city and Miami -Dade government offices; City Mayor's Office, the Commissioners' office - City Commissioners' office, City Planning Department, DERM (Department of *Environmental Resource Management), Miami -Dade Public Works Department, Miami -Dade Transportation, and Dade Commissioner at the time Gimenez' office. That's a lot of government and official participation: three and a half years of planning, three workshops. Some of those workshops had over 300 participants. I was there. You've heard a lot of the people that were here were there. We have an invest --a vested interest in this. There were at least a dozen working session. There was consultation and collaboration with the Planning staff and government representatives, so why is this important? It created the Virginia Key Master Plan. This has been ignored in the process that we're talking about today -- this evening. I am amazed that the RFP could go through as it is, because it obviously contradicted the Virginia Key Master Plan. Now, I heard people saying, "Yes. Well, our plan, our proposal completely agrees with the Virginia Key Master Plan. " It can't. The basin is a historically -designated area. The Marine Stadium is a historically designated area, and the area behind it. You can't put boats out in the basin. That's not my -- I'm not -- I'm going back to whether the Virginia Key Master Plan was City of Miami Page 65 Printed on 101412016 City Commission Meeting Minutes June 22, 2016 abided by, and it hasn't. I beg you all: Please reject all of these proposals. Let's start over again. Give us confidence in our Commissioners, in our government again. Let's do this right. Thank you. Chair Hardemon: Thank you very much. Leonard Levy: Good evening. My name is Leonard Levy, 1121 Crandon Boulevard, Key Biscayne. I'm very grateful to be here and have the opportunity to voice a few words, especially to Mr. Russell. I thank and commend you for your voice of reason and for your understanding that seem to change the whole pace of where this meeting was going to. I was very disheartened earlier in the course of this session, in which it just seemed like it was a done deal, a political thing that was just established before this was ever really brought to this meeting today, but it's great to see and really gives us faith that there is process, and this can be reconsidered. I'm a life-long resident of Miami. I've been to those events at the Marine Stadium in the '60s. It was terrific. That's what the Marine Stadium was built for: for recreation and entertainment, for the everyday person in Miami to attend; not for just a few of the very wealthy people who can afford to put mega yachts in a new stadium. By building, you know, this new proposed marina, it would take away the possibility of ever having races again; not just the races, but as one of 'the other presenters just stated, the people who do actively paddle and row from the Miami Rowing Club; I'm one of those. I've been therefor the past five years. I love it. I love being able to see all the wildlife and fish and birds in that area. Unfortunately, since the Boat Show was started and the construction for the Boat Show, we do not see dolphin anymore in that basin. We do not see tarpon. We do not see the birds. We do not see -- of course, we do not see the mangroves, because it was cut out for that Boat Show, so shame on you for letting that go through. Chair Hardemon: Thank you very much. Mr. Levy: But we have a chance to do the right thing now, and I thank you. Chair Hardemon: Thank you very much, sir. Vinson Richter: Hello. Vinson Richter, 10800 Southwest 69th Avenue. I'm the VKAB (Virginia Key Advisory Board) -- the DHT appointee to the VKAB. I'm here to talk about the DHT, not the VKAB. First thing I'm going to do is thank the rowers for showing up in force today; especially the young rowers, who didn't take much convincing for them to see what was at stake, so thank you guys for hanging in here. Today you are called upon to make a decision that will affect the future of the historic Marine Stadium basin for the next 75 years and possibly longer. It's a decision, in part, whether or not to allow the construction of 300 permanent wet slips within an existing, and as of today, unspoiled natural basin, the Biscayne Bay. You all know the reasons why this is a lousy idea. It is in conflict with the Virginia Key Master Plan. It smothers the future viability of the Miami Marine Stadium as a creative venue for marine -oriented theater, music, and other cultural activities. It forever ruins this tranquil and pristine setting, and it forecloses the current and future use of the basin for passive and active boating and recreational uses. But more importantly, what is the alternative that will remain as a testament for the loss of those opportunities? It is giving a few the right to build a parking lot, a parking lot for boats; no different than building a parking lot for cars in Central Park. No -- sure, they would both make a lot of money, but would either stand in the memory of anyone as a testament to the best use of those properties? No. And will this Administration be remembered for the money that was generated for the City; for the decision to support a marina at the expense of one of the few publicly owned natural resources in Miami? I think not. No matter how much the financial gain, the cultural importance of this place contributes much more than just dollars. The Miami Marine Stadium and its surrounding park and basin are far more valuable than a giant parking lot for boats. This land was donated to the City of Miami to be perpetually used and maintained for the operation of 'a marine stadium. And consistent with the intent of the donor, the preservation and protection of the Marine Stadium and park should be the principal purpose of City of Miami Page 66 Printed on 101412016 City Commission Meeting Minutes June 22, 2016 any development. A perfect analogy is South Beach. Chair Hardemon: Sir? Mr. Richter: Years ago developers were clamoring -- Chair Hardemon: Can you come to a conclusion? Mr. Richter: I'm coming to a conclusion. Years ago developers were clamoring to level it all, but through vision and preservation, South Beach has become world famous, but those few precious blocks may be the only place left on Miami Beach -- Chair Hardemon: In the County, they cut people off suddenly, and I try not to do that. Mr. Richter: Okay. Chair Hardemon: (UNINTELLIGIBLE) I see it happen all the time. Mr. Richter: I think you get the idea. Chair Hardemon: Yes. And I think, you know, the will of 'the body seems to be moving in your favor, so let's just (UNINTELLIGIBLE). Mr. Richter: Then I'll sit down. Chair Hardemon: Right. Sir. Daniel Holtzclaw: My name is Daniel Holtzclaw, 10265 Southwest 23 rd Court. I row for Miami Beach Rowing Club, one of Miami Rowing Club's local rivals, and I just came here planning not really to speak; just to kind of 'sit here and be support for my fellow rowers, but once I heard everything that everybody's saying, it kind of made me want to get up and say something. Some of my favorite rowing memories are at the basin where Miami Rowing Club holds their races. And MRC (Miami Rowing Club) is such a big, powerful club. It wouldn't just affect the people of Miami; it would affect the people all over the country who can't race against them if they don't have a club. They have so many talented, fast, young, smart athletes that will not be able to train if this RFP goes through. I'm still not even sure what everything is going on. I just know that it's not good for them. And everyone else saying things about the concerts halls and, you know, where they all used to listen to music, and all the wildlife. I know everyone has a position on this, and, you know, I just it will be really terrible if everybody wasn't able to do what they loved, and the rowers can row and people can listen to music and have those memories. I really didn't have anything else to say, but please throw out that RFP. Chair Hardemon: Thank you very much. You're recognized, ma'am. Carol Flynn: Hello. My name is Carol Flynn. I live at 495 Brickell Avenue. I am a Miami native. I've lived here 50 plus years. We won't go into details, but anyway -- Commissioner Gort: You don't look it. It's -- Ms. Flynn: Thank you. Commissioner Gort: -- 30 -some years. Ms. Flynn: Okay, thank you. It's Miami; that's what does it. No, seriously, I love Miami. I have defended Miami all my life. Everywhere when people hear where I'm from, they're like, City of Miami Page 67 Printed on 101412016 City Commission Meeting Minutes June 22, 2016 "You're from Miami, that Banana Republic, the place that's so corrupt? Those Commissioners, they're getting paid on the side. " I defended it. Chair Hardemon: Did they say all of that? Ms. Flynn: I --and the point is --- but today I see how -- Commissioner Gort: (UNINTELLIGIBLE) at? Ms. Flynn: -- people can see that, and I know you're all good people, and I know you'll do the right thing, because I have belief in all of you. My daughter, she rows at MRC, and it has changed her life. And to take that away -- how many other youths will you change their life? So let's do it for our youths. Let's do it for our future. This is very, very serious, and I take it to heart. I'm getting emotional, but I know you'll do the right thing and save our basin. Thank you. Darryl Morrison: My name is Darryl Morrison. My first exposure to the basin was as a hurricane refuge for the boat growing up. That's where we used to hide the boats during the storms. For the past 30 years, I've used the Key as a training grounds for running, exercising. There is nothing more enjoyable than to go out for a run, watch the sun rise, but in the mornings, we all see the cyclists out there. Just imagine what -- the effect this will have on the cyclists. We already have an accident out there once a year at least. More traffic out there, higher risk for them. The rowers in the morning, it is beautiful to go out there and watch them; when they go out running. There's nothing -- we watch -- like watching a horse race, the beautiful athletes that have been -- the Olympics when they were out there running. The synchronization of four to eight rowers going at one time, it is a beautiful thing to watch. Don't take that away from the basin. You know, keep it as natural as possible. Chair Hardemon: Thank you very much. Sir, after your public comment, the public comments will be closed. You're recognized to speak. Ron Schultz: Thank you. My name is Ron Schultz. I'rn from Wellington, Florida. I'm a marine engineer; been doing this for about 38 years. I've designed and built some of the finest marinas throughout the world, including a recently completed 1,100 -slip marina. We won the Fabien Cousteau Blue Award for the greenest marina in the world. It was also LEED (Leadership in Energy and Environmental Design) Gold certified. We understand what it takes to put a quality project together, one that's environmentally sensitive. We also understand what it takes when you have boaters in a marina that want an environmental friendly location. It's very important to them to have a clean project. I just don't understand how you can consider rewarding someone that is -- had the biggest pollution spill incident in Miami, the 25 million gallons that went out. It closed 20 miles of beaches. If you line those trucks up at 10, 000 gallons apiece, the 18 -wheelers, it'll be 31 miles of trucks dumping sewage into the ocean. That polluted -- that closed beaches, impacted the properties, and so forth. How can you reward someone for doing something like that, and you're going to trust them to build a marina that needs to be clean and sensitive? You need to throw out the bids and start over. Thank you. Chair Hardemon: Thank you very much. Gary Milano: One more. Good afternoon, Commissioners. Thank you for listening to all of us, and I'm not going to -- Commissioner Gort: (UNINTELLIGIBLE) the mike. Mr. Milano: Oh, I'm sorry. Chair Hardemon: And can you state your name and address for the record, please? City of Miami Page 68 Printed on 101412016 City Commission Meeting Minutes June 22, 2016 Mr. Milano: Gary Milano, 5974 Southwest 59th Street. I'm here representing the Tropical Audubon Board, as well as its membership today. I'm not going to go through -- you know, everyone said all the things that need to be said. I'm going to try to hone in on some issues that I've identified talking with staff. As you know, this Master Plan took a long time to put together. I used to work for DERM. I worked for DERM for 32 years. I was assigned, actually, to work with the City of Miami and the community on this Master Plan. In this process, I worked with the community, as well as Hilario Candela, Jorge Hernandez, Don Worth, and many, many groups that you've seen today. One thing that was paramount is that we were trying to fulfill the needs of'-- the marina needs for the City of Miami, and that was with the original EDSA (Edward Durell Stone, Jr. and Associates) Plan. We took the numbers from the EDSA plan, as far as the number of wet slips, and we tried to come up with a Master Plan that was not only acceptable to the environmental sensitivity of this area, but also to the needs of the City as far as revenue gain. So what we did was, I worked with DERM, and I was working with DERM and other regulatory agencies at the time, trying to understand a way that we could stay outside of the basin, because at the time, this was one thing that was very strongly put in the -- all these hearings you've heard about -- is that you're going to impact the user groups if you put any marina slips in that basin, as well as the venue for the Marine Stadium. So what we did was we came up with a plan to extend the marina parallel with the Rickenbacker Causeway towards the mainland. That today is still a viable way to go. One thing, talking with staff, is that the reason why they're not going that way is because Miami -Dade County owns the submerged lands. I will volunteer my time to reach out to people I know at the Miami -Dade County to work with the City to try to seal a deal to get that submerged lands to be used for a marina. This was something that we worked on so hard and for us to not go any further because it's owned by Miami -Dade County -- remember, this Master Plan was a Miami -Dade County/City of Miami Master Plan. It was -- people from the County were involved. So do the right thing. There's a lot of young people in the audience. This is one of their first civic meetings they've been to. Please, throw this bid out, start afresh with all these good ideas that we have, and we'll make this thing work right for everyone. Thank you. Chair Hardemon: Thank you very much. Elizabeth Goitia: Hi. Elizabeth Goitia, 8800 Southwest 183 rd Terrace, Palmetto Bay. I'm one of 'the morns at the Rowing Club. I also led the Regatta, the International Miami Regatta, which is going to be held again -- oops; sorry -- April 1, next year, so you all are invited. It's a wonderful event. And I know you'll throw out these proposals, because you're going to do the right thing. And I just remember back when it was Miami Beach trying to break down all those Art Deco buildings -- right? -- and everybody was -- the big builders wanted to start new, and they decided to keep the historical preservation. Look how that's worked out, huh? It's really worked out well. So I know you guys are going to do the right thing and throw out all these proposals. Thank you. Chair Hardemon: Thank you very much. Ma'am, you're recognized. Anastasia Ray: Anastasia Ray, 1990 Brickell Avenue. You're here today because it's your job. We're herein the crowd because it's our passion. Witnessing the program we have built down in the basin is astonishing. The countless practices, tears, medals, student athletes, and college scholarships MRC has been able to obtain in setting up my generation for success. By building this, you're not only harming the surrounding ecosystem, but disturbing the environment for the students and the marine life. This area was originally created as a safe zone for the citizens and recreational use. It could -- it would be a shame for you to take it down. We create not only national champions, but set up our rowers for scholarships. We've been taught in school to stop the applica -- we -- I'm sorry. We're taught in school to stop the -- and appreciate nature around us, and yet, you guys are planning to take it away from us. So we as rowers for Miami Rowing Club are asking for you to let us keep our club and let us keep rowing and succeeding in life. Thank you. City of Miami Page 69 Printed on 101412016 City Commission Meeting Minutes June 22, 2016 Chair Hardemon: Thank you very much. We've concluded the public hearing section of this. However, I'm going to allow -- Unidentified Speaker: Mr. Chair, can I be heard? Chair Hardemon: --the parties in the --from the bid protest to have five minutes to have their say to the City Commission. Sir, you're recognized. Yeah. Mr. Brown: Thank you, Mr. Chair. I'm not going to use the whole five minutes, so I'll give some of my time to my colleague, Gary Brown, on behalf of Suntex. As Commissioner Suarez has said many times -- I just want to remind the Commission -- that Section W'on page 18 of the RFP gives you absolute right to throw out all bids at any time up until the point where a lease is actually voted on, approved by the voters and signed. So you have the lawful authority to throw out all of *the bids for the various reasons, including -- Commissioner Russell, you had some concerns about the spill by RCL You had some concerns about potential conflicts of interest or bias; and so you have the opportunity, and the rest of the Commission, to throw out all bids to eliminate those concerns and to start over again. And I want to leave the Commission with this. And Commissioner Russell, you had mentioned this, too -- and the City Attorney will confirm this -- that you can't simply just move forward with RCI and then take the wet slips out of the basin to address the environmental concerns, because that would be a material change, it would violate the law, and I'm going to give a citation for the City Attorney. And the case is State of Florida, Department Lottery versus GTECH Corporation, 816 So. 2d 648. And essentially, that case said, you can't go about scoring someone the highest; and then once you have the highest -scored proposer, then materially change the RFP to give them the award. That would basically violate the -- your competitive bid laws. Because as you pointed out before, if the wet slips were not in the basin as part of 'the original RFP, obviously, you might have other bidders that would have bid on it, and clearly, you would have had materially different bids from the bidders that you did have in this case. So that would not be a solution to award it to RCI, but simply take the wet slips out of *the basin. I'll cede the rest of 'my time to my colleague Lucia Dougherty: Good evening, Mr. Chairman, members of the Commission. Lucia Dougherty, with offices at 333 Avenue of 'the Americas, and here today on behalf of 'Suntex. And I want to talk to you about your RFP. Your Administration put out an RFP that does not comply with your Comprehensive Plan, Miami 21, or the Virginia Key Master Plan in many ways. And you may think, Oh, well, I can fix that later. I can come in with a special area plan, a variances, special exceptions, maybe even a comp plan change. "But remember, your Comprehensive Plan says that when you change parks and recreation, you have to find it someplace else. And if you're going to do this, why not do it in advance of putting out an RFP so that we all know what the rules of the game are when we comply with the RFP or when we submit a response to your RFP. We don't know what the rules of the game are. We don't know what's going to be approved in the future. You have so many opportunities for people to come in right now and challenge what you're doing before you put it out. You have an opportunity now to work with the community to come up with the correct Comprehensive Plan, the correct zoning categories, the correct method of putting out an RFP, so take this opportunity and reject these proposals and put out an RFP, and at the same time, work with your Administration to come up with the correct Comprehensive Plan and Zoning amendments. Thank you. Chair Hardemon: Thank you very much. Vice Chair Russell: You have 30 more seconds. Commissioner Gort: 27 minutes. Chair Hardemon: They had about 30 --you had like 40 seconds. I gave you 40 seconds. I City of Miami Page 70 Printed on 101412016 City Commission Meeting Minutes June 22, 2016 rounded you up. Mr. De La Portilla: All righty. Thank you for that generosity with the time. I do appreciate it. Just to wrap up, I think -- and we initially asked that you consider throwing out the RFP, and we would have, of course, avoided all the issues with the protest, but I think, you know, the reason you should throw out the RFP is very, very, very simple. You've heard this RFP doesn't comply with your City's Comprehensive Neighborhood Plan. It doesn't comp -- it doesn't -- it isn't consistent with the Virginia Key Master Plan. It's inconsistent with the City Code. You have a threshold issue that we weren't allowed to talk about, which is, your RFP specifically required anybody, any proposer who had a hand in any kind of environmental contamination or liability to disclose it. Failure to disclose it would result in immediate disqualification. Here, you have a proposer that neither were responsible for the largest environmental disaster in Biscayne Bay history 15 years ago. They hid that from you, they hid it from the Commission, they hid it from competing proposers, they hid it from the City, and that should have been an instant grounds for disqualification. There's so much wrong with this RFP that you've heard throughout the three times that we've been here that, really, the only responsible thing to do is to throw it out and start over; do it right. This is a 75 year deal. This will be your legacy. Thank you. Chair Hardemon: Thank you very much. Mr. Dotson: May I get the IT (Information Technology) people to connect us back? Chair Hardemon: IT. Mr. Dotson: I'm going to hold this in my hand, because these are the slips in the basin. There's a few things -- a few misstatements that have been placed on the record that we want to correct. They would have you believe that your RFP did not take into account the Virginia Key Master Plan, and nothing could be further from the truth. Twelve different places -- if you look at your screen, page 3, page 4, page 6, page 7, page 15, page 23, page 24, page 27, page 30 -- my eyes are had -- page 37, all of those pages in your RFP said that every proposer should take into account the Virginia Key Master Plan, and RCI did. They would also have you believe that your RFP says that the basin is a required component of the proposed redevelopment. Nothing could be farther from the truth. Proposers were permitted, but not required to use the basin. They were permitted, not required, to use the basin. Second, all this discussion about, Well, if you'd gone out without the basin, you probably would have gotten so many more proposers. " Remember, you've talked about all of 'the addenda that were issued. The basin was not included as even apart of the RFP until many addenda later, but only -- and three proposers were apart of this process all along. So if there are so many other people that would have come to the table had the basin not be included, where are they and where were they? Next. The Virginia Key Master Plan and the Virginia Key Advisory Board, they passed a resolution after hearing a motion to recommend throwing out all bids, and what was -- what did they decide to do? They rejected that motion, and they said, All we want: Take the slips out of the basin. "You've heard about this material modification, if you take the slips out of the basin. That would be true, except the fact that your RFP permits you to do that. So when you say there's no lawsuit if you throw out all bids, what you're doing is creating an unfair competitive advantage, because the other proposers can look at RCI and say, "You're the ones who took the Master Plan into consideration. You're the ones who came up with a solution that met the requirement of the 50 foot set back. "We're the ones who addressed sea level rise. And guess what? Now that we know how to do it, let's get them to throw out all bids so we'll have an opportunity to copy their proposal. "Now, there's a case that hasn't been cited. This isn't the first time this has happened. Monroe County issued an RFP for the development on Pigeon Key. And at that time, there was a Pigeon Key Advisory Board. First, there was an RFP. The Pigeon -- there was a selected proposer. The Pigeon Key Advisory Board said, We have some additional suggestions that we want to go into the lease. "What happened? Those suggestions were put in the lease, and the court upheld those suggestions, except one, because that one did not comply with the RFP. City of Miami Page 71 Printed on 101412016 City Commission Meeting Minutes June 22, 2016 Every case that's been cited to you that talks about modification -- I mean, every case that talks about modification being not permitted is only when the governing body fails to comply with the RFP itself. We have page after page in your RFP that put everyone on notice: "You are not required to put slips in the basin. " You may, and we were the only ones that came forward with a proposal that had the slips in the basin as part of phase 4, because we never thought we'd even get permitted to do it. Our financial offer to you is precisely the same, whether the slips are in the basin or out of the basin. And don't forget, there's an existing condition there. The existing condition is 648 slips already there. We're talking as though there's not existing activity in that site. So, yes, you can take the slips out of the basin. Yes, the law permits it. Your City Attorney said it's arguable, one side or the other. So we have cases that clearly state that you have that authority; your RFP says it. Your RFP said comply with the Master Plan; we did it. We can show you every part of *the Master Plan where we complied. Vice Chair Russell: Mr. Chair. Chair Hardemon: Mr. City Manager, does, in fact, the RFP state that the slips may or may not be included within the proposal? Mr. Alfonso: I think I'm going to let the Law Department respond to that question, sir. Chair Hardemon: If there is a section there that says it -- before you give me your interpretation of anything -- I just want to know, is there a section within the RFP that states exactly what Mr. Dotson has stated, that it may or may not be included? Mr. Suarez -Rivas: There is a section, and we would like to read it to you. There is a section that addresses the RFP. Ms. Lorenzo, do you know -- do you have that section, or Mr. Rotenberg? Okay. Staff will read it to you. Jacqueline Lorenzo: Good afternoon. Jacqueline Lorenzo from DREAM. The RFP was -- there are a few addenda that specifically identify that the slips in the basin may be removed due to regulatory denials, basically. So that's something that was specifically contemplated. If you look at addendum 11, answers number 3, it says, If certain improvements or facilities required by this RFP cannot be built due to permit denials and there is no manner to which " -- "in which to obtain required permits, the RFP requirement may be waived by the City. " Additionally, the RFP was revised by addendum 21, in the section of "Market Value Appraisal, " where it specifically says, Notwithstanding any language within this RFP to the contrary, in the event that any amount of land, whether upland or submerged, is not approved for use by any applicable or regulatory agency and thereby removed or excluded from the RFP lease area, fair market rental value shall be reassessed. Minimum base rent shall be no less than the greater of the reassessed fair market rental values provided. " However, in other sections of the RFP, we also specify that the base rents shall not be lowered from what the original requirement was, which was 2.15 million. Mr. Dotson: Mr. Chairman, may I just pass this out? This is the required Redevelopment Plan. Section 7 of 'the RFP sets forth what you must do, and you will find nowhere in there a requirement that you must develop in the basin. There's absolutely no requirement in the RFP that you must develop in the basin. Chair Hardemon: Thank you very much. Sir -- Unidentified Speaker: (UNINTELLIGIBLE). Chair Hardemon: -- who are you here to represent? Because I -- this is -- we're about to get into a discussion. City of Miami Page 72 Printed on 101412016 City Commission Meeting Minutes June 22, 2016 Miguel DeGrandy: I'm Mr. Perez' partner, and I just wanted to address that brief issue. Chair Hardemon: Well, let us address this first. Before you start adding facts, let us discuss what's happening right now, because we're trying to get to the bottom of it. Mr. DeGrandy: Okay. I just -- Vice - Vce Chair Russell: Mr. Chair? Mr. DeGrandy: -- think what was said was incorrect, and I wanted to clarify. Chair Hardemon: Okay. Well, we'll find that out. Thank you. You're recognized, Commissioner Russell. Vice Chair Russell: I wanted to see if we could give a little more time to Mr. Dotson, because he didn't have time to address the contamination issue, and I know there's another side to that, but you didn't bring it up and -- Chair Hardemon: Sure. If you desire for him to speak on that issue, that's perfectly fine. Commissioner Carollo: Before we get into that issue, real quick, just as a follow-up. So Mr. Dotson, what you're saying is that there's no requirement; however, it is allowed in the RFP? Mr. Dotson: No. It is permitted. You could include it; you didn't have to. Commissioner Carollo: Right. But if it's cited 12 times, as you mentioned, with regards to the Virginia Key Master Plan, why would the City then put out an RFP that says that you could permit, you know, something that is not within our Virginia Key Master Plan? So if 12 times, according to Mr. Dotson, you mentioned that, why in this did the City overlook the Virginia Key Master Plan? Mr. Alfonso: Commissioners, if we may, it's not an overlook. "The Virginia Key Master Plan that you see a picture, the picture is not what's allowed in the basin. The picture is just a depiction. If you read the Master Plan, it allows for those type of boating uses in the basin with the appropriate permits. Commissioner Suarez: What page is that on? Mr. A fonso: We can get it for you. Hold on a second. Commissioner Carollo: Please. Thank you. Chair Hardemon: And ultimately, I'll tell you where I'm going with my line of thought. So hearing the arguments that were made from the public, we understood that the public does not want these docks in the basin. The comment that I heard fl"om City Attorney was that we could be sued, because then this would -- if we were to take the boats out of the basin, then it would be a material change to --for -- it could be a material change to the RFP. But unbeknownst to me, now hearing the argument that the boats in the basin may, as indicated by our RFP, be taken from the basin, leads me to believe that it wouldn't be a material change, because that was at -- that was something that was -- as one counselor put it, it was in the addendum that was added later, and they include it in phase 4, but it was not initially thought about. And so the argument, even more so, that more people would bid on this project, considering the fact that it was put out without the requirement or without the basins being put there, that it wasn't until much later in the process leads me to believe that there were no other people that were interested in doing this, and that it would seem to be unfair if we rejected all of them, rather than remove the basins from City of Miami Page 73 Printed on 101412016 City Commission Meeting Minutes June 22, 2016 the project. Because if we remove the basins from the project, then fairness would still lead to the side of the winning bidder, and also the fact that the community would have those basins removed from this project so they won't have the interference that they do not wish to have. Ms. Mendez: Right. I think there is a slight difference with voluntarily removing the slips from the basin versus legal impossibilities or actually permitting issues -- Chair Hardemon: Let me ask you a question. Ms. Mendez: -- because everything that was read -- Chair Hardemon: Would it be a permitting impossibility to put basins -- to put these boats in the basin where the City has already said that there's a policy where we will not have these boats in the basin permanently? Ms. Mendez: I think there's a difference. I think when you have the actual §ubject-to permitting" language, if it's a permitting impossibility, that's different from not --from getting a certificate of appropriateness from the HEP (Historic & Environmental Preservation) Board saying that you could put these things -- or could not put these things in the basin. Chair Hardemon: So I want you to -- I want to clarify the language then. Read to me the language that speaks about the permitting, the part that you said that gives this exception. And then, Mr. City Manager, after she's read that language, I want you to answer whether or not you would allow your staff 'to put the boats in that basin, considering the language that you've heard and the Virginia Key Master Plan. Ms. Mendez: One moment. Commissioner Suarez: Mr. Chair, if I may? Mr. Alfonso: While they look, I want to point out that there are boats in the basin now. They're anchored there. Mr. Dotson: Mr. Chairman, would you have them also read addendum 8, question 19, and the answer to question 19, because that resolves this issue altogether? Chair Hardemon: So this is in the information that you passed out, the addendum 8, but I'm listening to you, Madam City Attorney. Ms. Mendez: Okay. "If certain improvements " -- okay, page 3 of addendum -- Commissioner Suarez: Mr. Chair, if I may? Ms. Mendez: -- 11. So page 3 says, If certain improvements or facilities required by this RFP cannot be built due to permit denials and there is no feasible manner in which to obtain the required permit, the RFP requirement may be waived by the City at the City's reasonable discretion. In such a situation, the City and the selected proposer shall negotiate for reasonable alternatives within the scope of the RFP, which may be legally permitted. "So there's a -- it's an lifter -the fact'kype situation. After the denial, then you can negotiate. Chair Hardemon: So then two questions: First -- and then I'll get you -- your answer, Mr. City Manager -- were the slips in the basin a requirement of the RFP? Because I believe the first thing you said was "a requirement within the RFP. " Ms. Mendez: It was added by addendum. City of Miami Page 74 Printed on 101412016 City Commission Meeting Minutes June 22, 2016 Chair Hardemon: Was it a requirement? Was it a requirement that was added by addendum? Ms. Mendez: Yes. To bid --you know, to bid for it --this is before the people were --the addendum -- all the addendum were done before the RFP period was closed out. So it was putting it out there to add revenue for the City to be able to place more slips in the area. Chair Hardemon: Okay. I'm seeing some disagreement. Mr. Dotson: No. Chair Hardemon: I see the City Manager saying that "No, it was not a requirement that was made. " Mr. City Manager, do you have something you want to say on the --? Do you have something you want to say? Because I -- I'm wondering, were the slips in the basin a requirement or not? Mr. Alfonso: Right. The slips in the basin were offered as part of the process, as an additional area that could be developed if 'the proper permits and whatnot were acquired, but it was left that it could be left out because we understood that there were significant hurdles to overcome. Vice Chair Russell: I have a question (UNINTELLIGIBLE) point. Commissioner Suarez: Yeah, and I have one, too, after. Chair Hardemon: I'm going to go to the Vice Chairman, and then the -- Commissioner Suarez: Sure. Chair Hardemon: -- Commissioner Suarez. Vice Chair Russell: The -- Mr. Dotson: Mr. Chairman. Vice Chair Russell: -- but the requirement does specifically say you need to put 300 additional wet slips; and outside of putting them in the basin, that's not physically possible, is it? So really, by default, we were telling them they had to put boats in the basin. Unidentified Speaker: It did not say that. Vice Chair Russell: It doesn't say that we need to put 300 additional wet slips? Unidentified Speaker: No. You amended that to say that you didn't have to put 300 slips. Mr. Dotson: Yes. That's what 1 wanted to read so that at least the record was correct. Addendum -- Vice - Vce Chair Russell: (UNINTELLIGIBLE) highlighted part. Mr. Dotson: Yeah. Addendum 8, question 19 -- I'm going to read the -- I read the question and the answer so it's clear. The question was: "The RFP requires the proposers to provide approximately 300 additional wet slips. Given that the current configuration of the existing 190 wet slips, substantially all of the " -- well, that's a typo -- "occupies substantially all of the submerged lands within the RFP property, how will the City address the fact that there is insufficient submerged land area to accommodate the RFP -required additional wet slips? As the City of Miami Page 75 Printed on 101412016 City Commission Meeting Minutes June 22, 2016 property falls within the Biscayne Bay aquatic preserve, it requires that any use to be in the public interest and only the upland riparian owner can apply for or hold submerged land lease from TIITF (Trustees of Internal Improvement Trust Fund). Will the City applied for" -- "or be the tenant" -- `for the tenant and hold any submerged land lease reasonably necessarily to accommodate the required additional wet slips? " Now, listen to the answer the City made very clear. Chair Hardemon: Wait. Before you move on, I'm trying to follow exactly where you are. Mr. Dotson: You know what? I did not pass -- that wasn't part of the package I pass -- that's why I was going to read. I'm sorry. I apologize. We'll give you copies right now. Answer 19, and this is the key: "It is intended that the selected proposer build approximately 300 additional wet slips, "period. "The additional number of slips is an approximation intended to maximize the number of slips, which will vary and will be subject to the restrictions imposed by the RFP. " So the discussion about post -award, this addresses restrictions of the RFP, which includes the Master Plan. Then it goes further to say, "And will be subject to restrict" -- excuse me -- "and building, zoning, and all other City " -- City of Miami -- "County, State, and Federal limitations " -- so if the City wanted to place a limitation on development in the basin, it could -- "and regulations, as applicable. " So the zoning and permitting is dealt with, with respect to the regulations. The limitations, if you want to impose a limitation, which this RFP permits you to do, then we would not develop in the basin. Ms. Mendez: Can we add the last sentence that you did not mention? Mr. Dotson: Sure. Ms. Mendez: The last sentence (UNINTELLIGIBLE). Mr. Dotson: "That the City will not permit" -- last sentence of what, the answer? The answer? Ms. Mendez: Yes, the last sentence. Mr. Dotson: Yeah. "The City will not permit the selected proposer to include additional submerged lands, because such would be a material change to the land offered by the RFP. " We're not asking to include additional. Ms. Mendez: Well, that's -- Mr. Dotson: We're not asking to include -- Ms. Mendez: -- what could be argued, and this is the problem. What could be argued by someone is that if you could not add additional land with which to place the boat slips, it's in the -- the only place you could put these additional wet slips is in the historic basin, and then that would be -- could be argued as a material change. Mr. Dotson: But the key is you didn't require it. That's the key. You did not require it. Chair Hardemon: Counselor, I'll allow you to speak at this time. I know you had a response (UNINTELLIGIBLE). Mr. DeGrandy: Miguel DeGrandy, 701 Brickell Avenue. You know, the issue is, they chose to put those slips in the basement -- basin, and taking those slips out now is a material change. It's 18 percent of total revenue. Chair Hardemon: Well, you're saying that, but the counselor who represents the organization City of Miami Page 76 Printed on 101412016 City Commission Meeting Minutes June 22, 2016 said there was no change whatsoever to the revenue by removing those basins. So what do you have -- Mr. DeGrandy: This was -- Chair Hardemon: I'm asking you a question. What do you have to substantiate your claim that is a change to the revenue? Because I look at both counselors of law -- Mr. DeGrandy: This is coming out of their pro forma. The base -- the slips in the basing [sic] produced 18 percent of total revenue, according to their pro forma. Now, again, the issue is very simple. The issue is -- let me take a step back. When I talk to my clients about procurement law, Mr. Chairman, and I try to explain to them in very clear terms material deviation, I tell them, "Listen, you cannot put out an RFP for a horse and end up awarding for a camel. " And that's exactly what would happen in this scenario. You are taking a significant piece, a material piece of their proposal that they chose to propose -- and there is no permitting hearing going on here. There's no permitting process that has been determined. You're hereto make a policy decision. So if you make a policy decision, which I think, unanimously, these folks out here want you to make and half*-- and double the folks that couldn't stay here want you to make -- that you are not going to allow that, that provision is inapplicable, because that's not a permitting impossibility. A permitting impossibility is a legal impossibility. Chair Hardemon: But what about the limitation that was read into the record from the answer from the question? Commissioner Suarez: Mr. Chair. Chair Hardemon: So there was a mention of limitations, where you could limit the respondent and what they put forth. Mr. DeGrandy: And again, it goes back -- Chair Hardemon: No, no, because you argue one point. So I'm asking you what about the limitations that can be put on by the City? Because I mean, I agree with you; you can't propose a horse and end up with a camel. However, in this sense, it seems as if they said that you can have a horse or a camel, and that's what I'm trying to figure out. Commissioner Suarez. Mr. DeGrandy: No, no, no. If I may, Mr. Chairman, limitations -- what the case law on procurement law tells you is you can do minor modifications, you can waive minor irregularities, but you cannot make faterial deviations. "So if you, from a policy perspective, decide that you don't want those slips in the historic basin, the correct thing for you to do, and what every other agency does, is say, "We have a better idea: Throw out the bids, and rebid it with those new policy directives. " That's what the law mandates. Chair Hardemon: So Madam -- Commissioner Suarez: Mr. Chair? Chair Hardemon: You're recognized. Commissioner Suarez: Thank you. May I -- Chair Hardemon: Let him -- Commissioner Suarez: -- be recognized? Thank you. So let me just -- I think this comes down to, again, two aspects: One is whether or not there should be any boats in the basin; and then City of Miami Page 77 Printed on 101412016 City Commission Meeting Minutes June 22, 2016 secondly, whether that determination, that policy decision, if you will, is fatal to the RFP. I think it's -- I think we're pretty clear on that. I will tell you that, from my perspective, looking at the Virginia Key Master Plan, there's two things that -- thank you -- instruct my thinking. The first is on page 25, which talks about a --following the historic legal agreements and establish a controlling authority. "And it talks about "A multi jurisdictional Virginia Key Governing Board should be created to guide the future uses of the island, devise an equitable business plan for all elements of the Master Plan. " So, you know, I, along with -- I don't know if Greg is here. Greg, are you here? Bush. Anyhow, members of the community sought -- before you came, Commissioner, we sought to establish this committee, which has membership from different jurisdictions -- the County, from Key Biscayne, et cetera -- and that committee discussed this issue, and I think that committee made a resolution that is in conformity with what all the residents here want and have asked for and what is in the Master Plan, which is for there not to be an insensitive stewardship of cultural or historic sites. Clearly, this is a historic site. That's from page 23 of the Master Plan. So I think it would be insensitive for us to ignore -- or not be proper stewards of the historic basin. I mean, that's simple. I don't think that's complicated. So I think, if we followed the Virginia Key Master Plan, page 23, and if we followed the Virginia Key Master Plan, page 25, which talks about the establishment of this board, which also essentially carne to the same conclusion, then I think the answer to the first question is, "Certainly, we should not have any boats in the basin. " Is that something that we all unanimously agree on ? Chair Hardemon: I -- that is -- Vice - Vce Chair Russell: Yes. Chair Hardemon: -- something I think we are in agreeance upon. Commissioner Suarez: Okay, good. So I think that makes the public happy about the major fear that they have with regards to this project. The second part is, does making that public policy decision render the RFP null and void or is it a material change, as counsel argues? And I think what's important for us is to hear argument from both sides as -- on that issue and make a decision, and I think that really sort of solves this dilemma, if you will, of how we move forward. Chair Hardemon: Right. I mean -- I believe that's what counselor's already started the process of doing, and so that's what we're trying to figure out now, because -- Madam City Attorney, when you state that we could open -- it's one thing -- you more than anyone knows that when things don't go any party's way, someone's going to sue, because they have an interest in an outcome. And so what I'm trying to figure out -- because what I heard in the last few statements that were made on the record is that this RFP contemplates the ability to remove those basins. I'm sorry, the -- Commissioner Gort: The use of the basins. Chair Hardemon: Yeah, the slips from the basin. And if it's contemplated in that fashion, then the way that I see it, removing the basins --from what you read -- would not be a material change that would render this RFP something -- this RFP -- that should make this RFP go back out, because people didn't have an opportunity to respond in that fashion. So -- and I know that that's the part that now we're trying to tackle. Does this removal of the marina from the basin make this something that is void or avoidable or --? Commissioner Carollo: Is it a material change? Ms. Mendez: It -- right. It's -- it could be argued both ways. I mean, unfortunately, it can be. If you look at -- Commissioner Carollo: Where (UNINTELLIGIBLE). City of Miami Page 78 Printed on 101412016 City Commission Meeting Minutes June 22, 2016 Ms. Mendez: -- revenue to the City, it's a major revenue changer to the City. If you look at whether the -- if you look at the language, though, that says about the contemplation -- or the City is basically intending to maximize the number of slips and then, all of a sudden, you remove a big number of slips, that could be contemplated as a material change, because you are basically doing it before a legal impossibility. Then it could be argued that -- Chair Hardemon: What else -- what -- Ms. Mendez: -- because of the -- Chair Hardemon: What about the statement that was read into the record that talked about limitations put on by the City? Ms. Mendez: Now, this -- when you say, "limitations by the City, " where it says, which -- in the answer to 19, where it says, "Which will vary and will be subject to restrictions imposed by the RFP, building, zoning, and any other City, County, State and to " -- "and Federal limitations and regulations, as applicable " --that's the sentence -- "with limitations. " Unidentified Speaker: That's right. Ms. Mendez: Because that's after you go through a permitting process. If --you know, if it goes through the regular zoning processes or HEP processes and what have you, and then those are limited -- those are the limitations, I believe, that's contemplated there; not that it's outright taken out, but it -- Chair Hardemon: I have another question -- Mr. Dotson: But that's not what it says. Chair Hardemon: --for you. If this was a requirement to be built -- if the wet slips were a requirement to be built, would you have answered question -- answer 19: "It is 'required' that the selected proposer build approximately 300 wet slips rather than 'intended'"? And this (UNINTELLIGIBLE) -- this gets to the heart of the question about were these wet slips an actual requirement of this RFP or they were something that was being requested additionally, but that could, after going through -- after being awarded, could be negotiated out of *-- Ms. Mendez: Right. Chair Hardemon: --this deal? Ms. Mendez: I believe -- Commissioner Gort: Yes. Ms. Mendez: -- that it is -- when it says, "It is intended, " it means it's intended, but it depends on all these other permitting issues. I mean, that's how I believe it was meant to be drafted. Mr. Dotson: Mr. Chairman, I just have to put on the record addendum number -- issued October 22, 2015, addendum number 18 -- if I have my Roman numeral's correct -- answer to question number 9. The answer to the question was -- the question was: `7f one proposer fills the available leasehold but proposes only 100 additional wet slips, will the proposal be considered responsive and the same as one who proposes approximately 300 slips? " The answer was, "Proposals must provide for the construction and installation of 'approximately 300 additional wet slips, subject to all compliance with applicable approvals, rules and regulations. However" City of Miami Page 79 Printed on 101412016 City Commission Meeting Minutes June 22, 2016 -- comma -- "the number of slips is an approximation. And in the event a proposer provides for only 100 additional slips when we propose " -- not after we're awarded, not after regulations, not after an impossibility -- "the proposal shall automatically " -- "shall not be automatically deemed unresponsive. " So we had the ability to propose up to 300 and so did they. We chose to propose the minimum amount, the least amount in the basin, because we recognized the Master Plan sensitivity to that basin. We are the only ones. So the propo -- the RFP did not -- there's nowhere they can read that says, "The RFP required construction in the basin. " Nowhere. Vice Chair Russell: Mr. Chair. Chair Hardemon: You're recognized, Vice Chairman. Vice Chair Russell: Thank you. God, these guys are good. You guys are great, by the way. I mean, all of you. I mean, I'm impressed with -- I've met with each of you in my office. I've seen all the plans. I am incredibly impressed. The boats in the basin are not the only thing that I made my motion on for why this RFP should be taken out. That being said, the boats in the basin is a very important part. And for us to move forward just by saying, "Well, we'll just take this piece off" ' it's not a Lego piece that you can just pull off' This is like putting a Band-Aid on a broken arm; it changes the entire mathematics of the entire project. And by us creating the math that looked for this, if you're not going to make the money on the wet slips, you're going to have to make the money inland, upland. You're going to -- Mr. Dotson: Mr. Vice Chairman, that -- Vice Chair Russell: -- in the retail. Now, this is part of why I think we need to start again, because our DREAM Department, Department of Real Estate Asset Management, who put this together and judged this and answer the -- they are tasked with maximizing the assets of the City, the performing assets of the City. And left unchecked -- that is their job, to maximize our profits. Our jobs as the electeds are to keep that in check and make sure that the interests of the people are represented; that the environment is preserved; that what's important to our community on which we are elected and accountable to is also represented, but we're not in this until at this point and then further on, where I think all of that should have been taken into account before, because this is a project of mathematics. This is a project to make money for the City, and it's at a scale that is meant to coincide with the mathematics of the flex park. We need to generate money for the -- to do the renovation on the stadium. Well, since I've been in, I've been working closely with the Manager on changing some of the psychology on Virginia Key with the flex park and with how we're going to generate money, and I think he has a very good plan now of how we're going to pay for Marine Stadium in full, which will be coming to referendum with a bond this fall, and we're going to be talking all about that with public involvement. But when this RFP was put together, this was counted on for profit and for money; and the requirements in the basin, the requirements of the wet slips, this is all part of a formula, and just to pull it out -- I think we should have come forward with an RFP that says, "We're not even going to ask you to put boats in that basin. We have a set number of wet slips we're looking for; work within that parameter, and then come up with all the other upland and everything else to meet this financial goal. " Because the financial goal was tremendous. So I don't see how we can move forward just by pulling the wet slips out without coming back, because I think all three brought really cool plans, really good stuff that can be great, and I think you will very much in the next round. But when we say, Here's an RFP; sky's the limit. Go for it, you know. Think outside the box. Go nuts, 'this is what we come back with: a tremendous Epcot Center of a plan that isn't what was intended, and now we're trying to cut and paste and crop off of it to get it back to something that's acceptable potentially to the public. I can guarantee you, nothing we come up with here today, if we move forward, is going to be acceptable to the public. And not one person came up to speak at the podium to say, This was a great plan. I worked on the Master Plan. This works. " And it's -- there's a bigger picture than just the boats in the basin. City of Miami Page 80 Printed on 101412016 City Commission Meeting Minutes June 22, 2016 Mr. Dotson: Mr. Vice Chairman. Chair Hardemon: Mr. Vice Chairman -- well, I'm going to -- I will allow you to respond, but the one thing I want to say is that as I understand, the initial RFP that went out did not include this request for slips in the basin, and so it wouldn't have been "the pie in the sky " type thing. And I really need you to respond to him, and then also address whether or not this is a significant impact to the bottom line. Mr. Dotson: Okay. Chair Hardemon: And then I'll call on Commissioner Suarez. Mr. Dotson: And, in fact, that's where I wanted to go. The Vice Chair said this is about mathematics. You have a public policy decision to make, while also dealing with the revenues to the City. You could not be more correct, and your RFP contemplated that; that if ,the slips are removed or not permitted, or any other part of the project is not permitted, we cannot, cannot reduce our rent to you. So it is incorrect to suggest that removing the slips changes the mathematics. More importantly, we haven't even begun the lease negotiations. But give your staff some credit. What they have already said in their very first meeting with us is that "You may need to adjust your percentage up of overall revenue so that I can maximize revenue to the City. " So the math says to you that you can actually accomplish your public policy objective and maximize revenue if you let your staff bring back to you a -- an agreement that addresses that. Number two, and that's the modification issue. Chair Hardemon: Commissioner Suarez. Mr. Dotson: Oh, did you want me to wait on that. Commissioner Suarez: No, go ahead. No, no, no, no. Go ahead. Continue. Mr. Dotson: I've mentioned this case now once. I'm going to mention it twice, because we seem to be avoiding what the law actually says on modifications. This is Monroe County versus Pigeon Key Historical Park, Inc. It's a Third DCA (District Court of Appeal) case -- Chair Hardemon: Which means that it's controlling, and we should follow the law just like any -- that means we should follow the law. That's what Third DCA cases (UNINTELLIGIBLE). Mr. Dotson: --from 1994. This is not new law. This is not recent law. This is not made-up law. This is the law from the Third DCA. When a County Commission was grappling with very similar issues, where they had community input after the RFP went out, they had an advisory board input after the RFP went out, and changes were made in the lease agreement -- a copy of which I have here as well -- ftom 1993, and those changes were upheld, except one. And the only one that wasn't upheld was the one that did violate the RFP. So I'm going to say one more time: The removal of the slips does not violate the RFP; it doesn't constitute a material change, because your RFP contemplated all of this. Ms. Mendez: This case doesn't stand for that proposition. Mr. Dotson: No, the case -- Ms. Mendez: It has to do with sunshine -- Mr. Dotson: -- it's sunshine law. Ms. Mendez: -- law violations and curative meetings that happened after, and lease changes City of Miami Page 81 Printed on 101412016 City Commission Meeting Minutes June 22, 2016 that happened after, based on curative meeting. It doesn't stand for that proposition, but that's it. Mr. Dotson: Read the facts in this case. The facts of this case are very clear: That there was an RFP issued; there was a selective proposer; there was a need for more community input; there was an advisory board that met; there were changes that were proposed, and nowhere -- you can't find a single case that says that that was a material change and not permitted, because this case went to court and that issue was never raised. More importantly, the Miami Beach Convention Center. Miami Beach Convention Center went out to bid with several parcels of land, including the City Hall. The City Commission, after the proposal -- after the RFP went out, after the proposals were submitted, decided to remove the City Hall as part of the overall development. Not a single bid protest was filed on that; not a single case was filed on that. Why? Because it was permitted in the RFP. The difference is no one has said that this violates the RFP. You've asked whether it's a material change. It doesn't violate the RFP to permit us to move forward without the basin, because it wasn't part of the requirement. But I will tell you this: If your RFP in Section 7 said that as part of the required development, you must have the slips in the basin, we'd be having a different conversation. It doesn't say that, and the economics will not change. Unidentified Speaker: May I respond? Vice Chair Russell: The City Attorney said that the Pigeon Key case doesn't apply, and I didn't fully understand her explanation. If I could get clarification. Chair Hardemon: He's talking about holding, but go ahead. Ms. Mendez: Basically, historical park filed petition for temporary injunction seeking to invalidate a lease. The Circuit Court in Monroe County invalidated the lease based on sunshine law violations. County appealed. The District Court of Appeal held the sunshine law violation had been cured after public hearings. That's what the case really stands for. Chair Hardemon: That was the holding of the case, but it seems (UNINTELLIGIBLE) -- Ms. Mendez: And there are no -- Chair Hardemon: -- that he's arguing facts. Ms. Mendez: Right. Chair Hardemon: He's arguing facts in the case. This is, I mean, how you go about making an argument, a legal argument. Ms. Mendez: Yeah. Chair Hardemon: Part of the legal argument is taken from either holdings from cases or -- in this sense, he's -- it doesn't appear he's talking about dicta; he's talking about facts directly fi"om the case that -- Ms. Mendez: Correct, but none of *the holdings or the key cites or anything stand for the proposition that he's making. Unidentified Speaker: Sunshine law. Chair Hardemon: Okay. Ms. Mendez: It all has to do with sunshine law. City of Miami Page 82 Printed on 101412016 City Commission Meeting Minutes June 22, 2016 Chair Hardemon: So my question is this then: Do -- does removing the slips from the basin violate the RFP? Ms. Mendez: It could be argued. Chair Hardemon: It could -- don't tell me what it could be argued. Ms. Mendez: I mean, I can't -- Chair Hardemon: I mean, I can argue -- Ms. Mendez: There's -- that's why -- Chair Hardemon: -- that it's raining outside. Ms. Mendez: Right. Chair Hardemon: It may not be raining outside right now, but I can argue that it's raining outside. You know why? Because somewhere outside of City Hall -- Commissioner Gort: It's going to be raining. Chair Hardemon: -- there are raindrops in the air. Ms. Mendez: Yes. Chair Hardemon: Right? Ms. Mendez: It's Happy Hour somewhere. Chair Hardemon: Exactly. Ms. Mendez: Same idea. Chair Hardemon: So -- Ms. Mendez: But, unfortunately, in this case, it can be argued, because there's changes to the bottom line. There's changes to the bottom line to save money -- Chair Hardemon: Let me say this. Ms. Mendez: -- money wise. Chair Hardemon: Say -- and this is the thing about it. Say this is thrown out, right? And all of the proposers now will be different when this goes back out again, right? It's not as if you're saying, "All proposers come back the same without slips " -- Ms. Mendez: Right. Chair Hardemon: -- "in the basin. " So they all come back now different. And no one's going to sue us immediately, because they want -- say, for instance, RCI wouldn't sue immediately because they want to be granted this award. But say RCI does not get it. Say Tifon gets it, who was the third and now, say, becomes the first. Tifbn gets it. I can imagine then we're going to be sued, because all of these things are going to be taken into consideration. So it seems to be that City of Miami Page 83 Printed on 101412016 City Commission Meeting Minutes June 22, 2016 no matter which way we turn, we're going to be sued. So the least thing I can do is do what I think is the right thing, right? And that's what I want to get to. The right thing, I think, in my mind would include not allowing any slips in the basin, but then also allowing us within the City, if there were considerations being made to not have the slips in the basin, then to move forward with an RFP that does not include the slips in the basin. Now, when it comes to a conflict of interest with our DREAM director, I would expect from our City Manager the same type of action that he took with other people within our City departments when he has an issue with their -- either their performance or their perceived allegiance to the City of Miami, because in other situations, they were fired. And so if there is some issue there, then I expect that to be something that's forthcoming; but if not, then I consider this to be just like any allegation that's made against any of the Commissioners that are up here by any blogger in the City of Miami . Unidentified Speaker: May I respond? Ms. Mendez: The only thing that I can be clear on with regard to lawsuits is that in the RFP itself and in the Code, it says in Section S, "The City Commission may reject any or all proposals. " Chair Hardemon: Okay. Thank you. Ms. Mendez: That's the only thing I could be clear on. That's the only thing I could be clear on. And obviously, we're not rejecting; it's in the Code, and it's in -- so I can, you know, argue with anybody till I'm blue in the face in court that you have the right -- there's -- that's one clear thing Chair Hardemon: No, we under (UNINTELLIGIBLE). Ms. Mendez: -- that you have the right to reject all bids. That's the only thing -- Chair Hardemon: That's the one thing -- Ms. Mendez: -- I could tell you for certainty. Chair Hardemon: -- (UNINTELLIGIBLE). Commissioner Carollo: Mr. Chair. Chair Hardemon: Commissioner Gort and then Commissioner Carollo. Commissioner Gort. Commissioner Carollo: Mr. Chairman, just on what the City Attorney said. Without having to have any reasons for that rejection, correct? Ms. Mendez: I mean, it cannot be arbitrary or capricious. And I think that all of you have clearly said on the record your reasons for concerns, and that is all placed on the record; all the different things that you are concerned with. So -- Commissioner Carollo: And that is sufficient? Ms. Mendez: -- that is sufficient in order to do that, if that is what this Commission so chooses. Chair Hardemon: Commissioner Gort. Commissioner Gort: I think my question has been answered, but I want to ask it anyway. My understanding is if *we move on, negotiation have to be taken place with Administration; am I correct? City of Miami Page 84 Printed on 101412016 City Commission Meeting Minutes June 22, 2016 Vice Chair Russell: I'm sorry; I didn't hear the question. Chair Hardemon: Mr. City Manager. Commissioner Gort: The Administration have to negotiate with them. During that negotiation, can they take the input of the worries that people have talked about? Most of the problems that we had in noncompliance and the natural wildlife, the protection for the natural wildlife. The basin is something -- we have talked about it. In those negotiations, can changes be made? Ms. Mendez: Not material changes; only minor changes. Mr. Dotson: Mr. Chairman, I passed out a legal memorandum. Mr. DeGrandy: May I respond, Mr. Chairman? Chair Hardemon: Respond to who? Mr. DeGrandy: To the arguments that have been made by counsel for the last 15 minutes. Chair Hardemon: I -- Mr. Dotson: Let me close them, and then you'll be able to respond this this, too, or do you want --? It's up to you. Chair Hardemon: Oh, I mean, you guys have spoken way past your time on many other things, so I'll -- but I'll allow you to speak at this point, and then you can follow up with whatever your statement is. Mr. DeGrandy: Let's talk about law that applies, Mr. Chairman. Department of Lottery versus GTECH Corporation tells us the Department of Lottery could not use -- Chair Hardemon: What DCA is that? Mr. DeGrandy: That's First DCA, which is the DCA that handles all the agency bid protests in the State of Florida, and is the most experienced in handling bid protests in the State of Florida . And it says, Department of Lottery'= - Chair Hardemon: I've never heard of 'a case being cited quite that way. Go ahead. Mr. DeGrandy: It is the case. Chair Hardemon: I hear you. Mr. DeGrandy: -- could not use request for proposal process for ranking purposes only"- which is what was done in this case -- lind then negotiate a contract '=- to your point, Commissioner Gort -- Mth a successful bidder that materially differed from the original proposal. "And let me read you some of the text to talk about the public policy behind this holding. However, rather than relying on proposers being no longer responsive in its decision to negotiate a new contract with AWI (Automated Wagering International), the Lottery should have rejected both responses under provision 872 of 'the RFP and started anew. To countenance the Lottery's entry into the contract that was materially different than AWI's proposal would encourage responders to RFPs to submit what they bid noncompetitive, unrealistic proposals solely for the purpose of receiving the highest ranking '-'- City of Miami Page 85 Printed on 101412016 City Commission Meeting Minutes June 22, 2016 Chair Hardemon: But that's not what happened. Mr. DeGrandy: --for subsequent negotiations. " Chair Hardemon: The City asked for -- hear me out for a second. What you're saying -- there's going to be two things that I'm hanging on: Is it material? -- which our City Attorney would not give us an opinion on, because she's not telling us whether or not it's material. She's saying it could be argued as material and it could not be argued as material, which, to me, is not an opinion. Second, the next thing that you're -- that you stated was that they submitted something that was basically outlandish -- right? -- some proposal that was outlandish. But they submitted exactly what the City asked for. The City said, Will you please submit up to 300 boat slips? " There was questions that that were asked about it, and they submitted a response with 100 boat slips. That, to me, seems much more conservative. So that's where we get to the point of the question being -- Commissioner Suarez: Mr. Chair. Chair Hardemon: -- Is this a material change?' -'- Commissioner Suarez: Which -- Chair Hardemon: -- and it appears to me that it's not a material change, because we can't get an opinion about it. Commissioner Suarez: So let me -- Mr. DeGrandy: Which would then go to the point -- Chair Hardemon: Well, let me just let Commissioner Suarez chime in. Commissioner Suarez: So I'm just going to -- I'm going to read from the case that he's citing, which is State of Florida Department of Lottery versus GTECH Corporation. Same case, right? So I think where the discrepancy in the arguments lies is in this statement or this sentence. It says here, 1'n its amended complaint below, GTECH alleged that the agreement negotiated between Lottery and AWI is illegal, null and void because it omitted or altered certain material provisions required by the RFP and added other provisions never contemplated by the RFP. " Mr. Dotson: That's the difference. Commissioner Suarez: And they're arguing that these provisions were contemplated by the RFP and are contained in the RFP. That's what the argument -- that's what you're arguing right? So that's sort of *the rub I have with this case that you cite; that it seems to me that in this case, they didn't contemplate some of these things that could happen after the fact. But if you look at --for example, if you read the prebid -- I'm sorry -- the prebid conferences -- I guess that's the right way to put it, right? The prebid -- there's two bid -- prebid conferences, right? If you read the transcripts, you'll see that -- and if you look at the different addenda to the RFP, you'll see that there was a lot of consternation about --from all the parties, really, from all three parties, about how you're going to make this work. And I think some of 'the addenda to the RFP reflect that consternation; reflect that, you know -- and that's why I think there's a little bit more flexibility, if you will, with regard to the way the Administration amended the RFP as it went on. Does that make sense to you? Mr. DeGrandy: No. Commissioner Suarez: No. City of Miami Page 86 Printed on 101412016 City Commission Meeting Minutes June 22, 2016 Mr. DeGrandy: Because again, the case law speaks to material deviation from the original proposal. Chair Hardemon: Okay. Mr. DeGrandy: Okay? The facts in that case -- the facts in every case are frankly different. The holding is what's important. And this is telling you -- Chair Hardemon: Holdings are -- but the facts lead you to your holding. Mr. DeGrandy: But -- Chair Hardemon: No, no, hear me out. Hear me out. Mr. DeGrandy: -- the holding -- Chair Hardemon: The facts -- a holding is a holding. Mr. DeGrandy: I'd like to finish my argument. Chair Hardemon: A holding -- hear me out. Holdings are important. A holding is what the case stood for, right? Mr. DeGrandy: Right. Chair Hardemon: However, what you stated and what Commissioner Suarez stated are two very different things. If I heard the facts that Commissioner Suarez stated from that very same case, I would be led to believe that there could be a change and it would be not -- it would not be material, but from the facts that you stated, the way that you put it, I would be led to believe that it is a change; although you still have the hurdle of material, et cetera. And so, you know, I'm much -- Mr. DeGrandy: There is no question -- because the issue again, as you know, being an attorney, that the holding in the case is what's important, because the facts in every case is different. What this is telling you is that it was materially differ -- Chair Hardemon: But the facts have to (UNINTELLIGIBLE) -- but the facts have to be similar in order for the holding to apply. Mr. DeGrandy: Not necessarily. Chair Hardemon: Okay. Mr. DeGrandy: Here is a holding that tells you if *it materially differed from the original proposal, it is a material deviation. Now, your attorney is telling you, "it could be or it couldn't be. " And basically, in effect, what you're saying is -- you're taking a six -shot revolver, putting three bullets in it, 50/50, and playing Russian roulette on three years of litigation. Vice Chair Russell: Mr. Chair. Mr. DeGrandy: That makes no sense. Chair Hardemon: What does make sense to me is that I had a Commissioner read the same case that you cited that mentioned some things that you chose not to mention, and one of the most City of Miami Page 87 Printed on 101412016 City Commission Meeting Minutes June 22, 2016 important things that he said was that in that case that you just cited, that he also cited, one, that the proposer proposed things that were not contemplated within the RFP. I mean, to me, that is probably the largest -- Mr. DeGrandy: To me, that's not a dispositive fact in the holding, when you're talking about a material change from the original proposal. Is that what they're doing? Yes, they would be making a material change -- Mr. Dotson: The answer is fro. " Vice Chair Russell: Mr. Chair. Mr. DeGrandy: -- to the -- their original proposal. Chair Hardemon: Everyone -- okay, thank you. Mr. Vice Chairman. Vice Chair Russell: Whether or not it's a material change, I believe it's outweighed by the totality of 'the circumstances around whether or not we should throw out the RFP. So rather than getting into the minutia -- we're about to lose one of our Commissioners, and I'd like to see if we could call the question. Mr. Dotson: Mr. Chairman, you gave me an opportunity to respond -- in fact, I think the Vice Chair asked that I respond on the spill, and you also said that I would have an opportunity to respond after Mr. DeGrandy. Chair Hardemon: That's correct. Mr. Dotson: If I -- Chair Gort: I'm sorry. You know, I have to leave. I was supposed to be in another place at 7 o'clock and people waiting for me, so it's -- Mr. Dotson: Mr. Chairman, with respect to the material change, we're missing a particular issue. The rent in our -- the rent in -- that we proposed in our proposal only 1 percent -- less than 1 percent of our overall projected rent was based on the slips in the basin; less than 1 percent. Number two, I passed out a -- so to talk about materiality in the context of 'the overall development and revenue about one -- less than 1 percent seems a bit far fetched. Number two, I passed out a memorandum of law that walks through every case that deals with modifications, and the key here is compliance with the RFP. So long as you're complying with the RFP, it's not an impermissible modification and it's not a material modification. And we wanted to make sure Ms. Mendez: What memorandum -- I'm sorry -- did you pass out? Mr. Dotson: Would you give this to the City Attorney? Ms. Mendez: Okay, thanks. I appreciate it. Mr. Dotson: No problem. Chair Hardemon: Would you give this to counsel? Mr. Dotson: But you asked Vice Chair Russell: I asked to call the question, though. Were we not going to -- City of Miami Page 88 Printed on 101412016 City Commission Meeting Minutes June 22, 2016 Chair Hardemon: No. I mean, there's still some -- Vice Chair Russell: -- act on that? Chair Hardemon: No. There's still some unreadiness and (UNINTELLIGIBLE) -- what is it? Unanimous? What do we need to --for -- to call the question? Todd B. Hannon (City Clerk): Well, according to Mason's parliamentary procedure, if Vice Chair Russell would like to make a motion to force a "calling the question, " he may do so. Chair Hardemon: Right. So it would be considered a motion that we have to vote on without discussion, correct? Mr. Hannon: To call the question, yes, sir Chair Hardemon: Correct. So basically, that -- there's no discussion about whether or not you can call the question. So if there's a "call the question " that's been called, for instance, like you did, and everyone does not agree that we should call the question at the moment, then we can we don't have to. So basically, if you want to call the question -- Vice Chair Russell: So it would be unanimous. Chair Hardemon: Well, or -- Vice - Vce Chair Russell: It needs to be unanimous. Chair Hardemon: No, no, it doesn't have to be. You can move to call the question; it can be seconded, and then we can have a vote on whether or not to call the question. There's no discussion about it, though. So if you're -- is your intent to move to call the question? Vice Chair Russell: That was my intent, and then -- Chair Hardemon: Is there a second? Vice Chair Russell: -- we lost Commissioner Gort. Commissioner Carollo: Yes, I'll second for discussion. Chair Hardemon: Okay. There's no discussion. There's no discussion in the "call the question. " Vice Chair Russell: But I did that when we had five. Commissioner Suarez: (UNINTELLIGIBLE) can discuss. Chair Hardemon: There's still no question in calling the question. Mr. Hannon: Again, it can be the will of the Commission. It's the body that makes that decision. Chair Hardemon: Then why follow Mason's? Mr. Hannon: Well, no. Mason's -- Chair Hardemon: The body -- what I'm saying is that the body says whether or not we want to City of Miami Page 89 Printed on 101412016 City Commission Meeting Minutes June 22, 2016 call the question, right? So if I say, "The motion " -- "It's been properly moved and second to call the question, " let's call the vote. Mr. Hannon: But Mason's does allow for the body to make its own customs and rules, and so therefore, if it is the will of the body to have discussion on this motion to call the question, it's the will of *the body -- Chair Hardemon: Okay. Mr. Hannon: -- to make that decision. Chair Hardemon: So -- Mr. Hannon: There's a motion on the floor by -- Vice Chair Russell: Well -- Mr. Hannon: -- Commissioner Russell; the second by Commissioner Carollo. Vice Chair Russell: -- that was while we had five, and I no longer have five. Chair Hardemon: But it's still about a mall. "This motion is about calling the question. Vice Chair Russell: Right, when we had five. We've kept this -- Ms. Mendez: Technically, it's not debatable. So if there was a "call the question, "just -- Chair Hardemon: No, but -- Vice - Vce Chair Russell: With five -- Chair Hardemon: But what I'm saying -- Vice Chair Russell: -- and now we have four, and that "call the question, " the result may be different. Chair Hardemon: But -- Commissioner Suarez: Guys -- Chair Hardemon: True, true. The ultimate -- not the -- Vice Chair Russell: So we -- Chair Hardemon: The "call the question " on the ultimate question at hand, but what I'm saying to you is that, procedurally, just because you said, "Call the question, " you were not correct. So if you wanted to have the question to be called, then you say, "I move to call the question. " You get a second. Once you get the second, then without debate, we decide at that point whether or not we're going to call the question. That goes to a vote. When that vote is either in the positive or in the negative -- if it's in the positive, then we call the question; we won't have any more discussion. Vice Chair Russell: Understood. So I used the incorrect terminology when I asked about "calling the question " when we had five. Now we've moved this meeting several times, because we wanted all of us to be here on this very, very important issue, and I was really interested in -- City of Miami Page 90 Printed on 101412016 City Commission Meeting Minutes June 22, 2016 Chair Hardemon: If you want to call the -- if you want to move to call the question, you want to have Commissioner Gort's opinion about this, maybe he's still in the building; maybe you can have him come in, and then that'll be a vote that we will take. Commissioner Suarez: Look, guys, can I just interject for a second? Chair Hardemon: You can say whatever you like. Commissioner Suarez: Thank you. Unidentified Speaker: Are you voting on this now? Commissioner Suarez: Look, we've -- Vice Chair Russell: That's what I was trying to -- Chair Hardemon: That's (UNINTELLIGIBLE) attempt to do. Vice Chair Russell: -- get the vote for before he leaves. Commissioner Suarez: This is a very important piece of property. You know, you -- there's a lot of people here and there's a lot of -- with all due respect, there's a lot more people than even the people that are here that are caring about this property, number one. Number two, this is a 75 year commitment, so I don't feel rushed, personally, with all due respect, and I say this respectfully to all the people who are here. I don't feel rushed to make this decision. I understand we have a ballot issue with respect to if 'we decide to put this on a ballot, there's a deadline, but I personally don't feel rushed to make this decision -- that's just me -- because it is a 75 year commitment. So what's -- I just -- I get a little bit like dizzy here, because sometimes we -- seems like we're speeding up and then sometimes we're slowing down and then sometimes (UNINTELLIGIBLE); you know, everyone's -- and we're making a 75 year commitment. I think, number one, we've made a significant amount of progress. We've dealt with issue number one on our agenda today, which was the bid protest, and we got that behind us. Issue number two is, we've dealt with, I think, one of the largest issues, if not the largest issue with respect to this, which is should we have boats in the basin or not? And we all agreed, unanimously, that we should not, in conformity with our Master Plan, and in conformity with the Virginia Key Oversight Board that we created to ensure that we comply with the Master Plan. So I think we've made a significant amount of progress. We're now down to a few issues. Whether we should do it with a five -member Commission or not is really up to us. To be rushed to call the question, I understand; I've been there. I've been to a point where I want to call the question and, certainly, you know, move on, but this is a 75 year commitment, and this is a big piece of property. And I think there are issues for me, personally, related to -- you know, you talked about -- you sort of alluded to some way of restoring the Marine Stadium. That's a big deal for me. You know, restoring the Marine Stadium to me is a huge part of this discussion, and it's part of why we created the Virginia Key Trust -- Oversight Board, because we want to integrate everything holistically as we do things and as we move forward, but we sort of glossed over that as a -- is this going to be part of some bond? Is this going to be part of some bond issuance, which, by the way, is -- I presume there's been talk about a general obligation bond, and I'm not sure if that's what you're referring to, because I haven't heard the plan that you've heard. I haven't heard it. So is there -- you know, versus -- I think what is being argued here is if we do some sort of a modification to this -- if *we were to get this project going, for lack of a better word, we would have a delta in terms of the amount of revenue that it would generate; that, and combined with potentially the Boat Show or whatever, which, you know, again, I've been very hesitant, and I've actually said that we're not going to give -- at least fl"om my perspective -- a long-term lease to the Boat Show without dealing with some of the issues related to Key Biscayne and without City of Miami Page 91 Printed on 101412016 City Commission Meeting Minutes June 22, 2016 dealing with a lot of the issues that are concerns of the members of this community here that have expressed it today. I think -- you know, that's (UNINTELLIGIBLE). The third issue is we have not talked at all about -- if 'we were, let's say, to decide in our infinite wisdom that this is broken beyond repair -- right? -- how do we make it better? We haven't even talked about that, you know, and I think that's important, because we talk about issues related to zoning and whether or not the zoning is the right zoning or whether we should have some other kind of zoning or not, but I thought a lot of those issues -- and I talked to each one of the proposers about that, and specifically asked them, "Don't infer anything from my question, but how would you make it better? " And I'll be honest with you, I didn't get great answers from anyone. So, you know, I think there's more to talk about. I don't know if you feel comfortable talking about it without all five Commissioners. I'm not in a hurry to do this, but, you know -- and I don't -- I'm not even -- I don't think I'm prepared to call the question on this issue right now either, to be completely frank with you. Chair Hardemon: But there is a motion; there is a second to call the question. Would that motion and a second still (UNINTELLIGIBLE) ? Vice Chair Russell: I withdraw it without Commissioner Gort here. Chair Hardemon: Okay. Commissioner Carollo: Mr. Chairman? Chair Hardemon: The motion to call the question has been withdrawn. Commissioner Carollo: Mr. Chairman? Chair Hardemon: You're recognized. Commissioner Carollo: I just don't think that all the questions that Commissioner Suarez raised right now is going to be answered today, and I don't think it's going to be answered tomorrow if we keep going to 2, 3, 4, S in the morning, you know, and I think that is the purpose why -- and I don't want to put words into his mouth, but that's the purpose that Commissioner Russell made that motion to just throw everything out and then be able to speak with the different committees and the City Commission, so then we have more than ample time to actually look at all those questions, because, yes, I'm interested in many of the points that you mentioned. It's true. But I don't think I was -- I didn't think that we were going to answer all those questions today, and that there will be answers for all those questions today and -- I mean, how long are we going to be here with this? And again, I said -- and that's why from the beginning, I said, "Hey, listen, I only have two things: 10-, 15-, 20 -minute window; and then I would think that by 8:30 tonight, we will be done with this, but if not, you know, realistically -- I mean, I'm not saying you didn't bring up good points that I want to discuss, but are -- realistically, are we going to have all the answers today? And I think that's part of why -- listen, I think this really needs to be, you know, taken a step back and looked at the bigger picture and have more participation from the public, from the different committees, and from the City Commission. And I think that's why, realistically, we wanted to call the question with all five, not necessarily -- I mean, I, for one, wanted to know about the environmental issues, you know. I really wanted to know. And not just less than 1 percent. Yeah, I get it. Okay, so less than 1 percent, but still, is it still a violation of the RFP? Because you should have come up and say, "Hey, there " -- you know, "we were involved with something that could be an environmental issue " or "was an environmental issue, " whether you had fault or not. So I just don't know if we're going to get all those answers today, you know. And we haven't even gotten into the numbers -- Commissioner Suarez: Right. City of Miami Page 92 Printed on 101412016 City Commission Meeting Minutes June 22, 2016 Commissioner Carollo: --which that could be a big piece. So again, I see why you wanted to call the question. Commissioner Suarez: I kind of look at it -- I understand what you're saying, and I don't -- I think we're sort of saying the same thing in a little bit of a slightly different way. I don't feel rushed, so I guess we're saying the same thing in that sense, but at the same time, I think to maintain a process within integrity, I think we have to be diligent. And I think these are questions that are legitimate questions, they're answerable questions. I'm not so sure that they're going to be answered today, and I don't disagree that there -- we can take in additional input. By the way, that's one of the things that our RFP and our ordinances allow for. We could have referred this back to the Selection Committee, which I don't agree with, by the way, because I think there's a lot of good reasons not to do that at this point, okay? I think the issues that we have are macro issues mostly; one technical issue, which is whether this is a material change in the RFP or not. The rest are all macro issues, and it's a 75 year lease. This is a big deal. And I don't -- personally, I don't -- if 'I were doing a five year lease, it would be a significant real estate transaction with a piece of property of this magnitude. So I don't really feel rushed to make the decision at this particular juncture, but I do think we do need to make the decision, and we do need to be diligent about it, and I think we've taken a tremendous amount of public input, you know. And I think one of the concerns that I have -- I'm going to be frank, and I'll put it on the record now -- is, you know, it just seems like the continual expression from the public was of a loss of confidence in the process, and it was just constantly said, and there were words used that I -- you know, that -- Chair Hardemon: All of 'us chose not to respond to. Commissioner Suarez: As a young -- I still think of myself as young. As a fairly young elected official in the City that I love, you know, you never want to hear words like the words that were being used today, like "corruption, " and things of that nature. So, you know, that, to me, is a problem, you know, as I've kept an open mind about this process. So, look, I think we have some unanswered questions. I don't think we should do it haphazardly. I don't think we should call -- you know, sort of dive in to do it just to do it, but I think you've articulated some macro concerns very elegantly [sic], by the way, very eloquently, and I think the residents have, too. I mean, I really do. I really, really think that the residents came up here, individual by individual, and articulated passionately, compassionately why they have some credibility issues with this process. Vice Chair Russell: Thank you. Chair Hardemon: All right, so the item was on as a discussion item. There's not a need to actually take an action on the item. The item could be further discussed at another point when the City Manager decides whether or not he will issue a recommendation to accept the proposal, deny the proposal, or whatever he chooses to do, and that'll be another time that we could discuss this issue -- Vice - Vce Chair Russell: We have a -- Chair Hardemon: -- so we don't have to exhaust it. Vice Chair Russell: So I was going to ask the Clerk, actually. Commissioner Suarez: You want to recess it for another day? Vice Chair Russell: Would the motion stay active? Commissioner Suarez: Yeah. City of Miami Page 93 Printed on 101412016 City Commission Meeting Minutes June 22, 2016 Chair Hardemon: Well, the motion -- well, there's a motion that you have on the floor right -- Commissioner Suarez: (UNINTELLIGIBLE) if we recess it, the motion stays on the floor. Chair Hardemon: Well, there's a motion right now on the floor to throw out -- Commissioner Suarez: Right. Chair Hardemon: -- the RFP. I wouldn't -- I couldn't imagine closing a meeting, and then the motion remaining on the table for discussion. I've never heard of that before. Commissioner Suarez: Wait, wait, not closing it. Vice Chair Russell: For example, we're meeting tomorrow, all five of 'us, right? Chair Hardemon: Right, but it would need to be put on the agenda for -- Commissioner Carollo: Mr. Chairman, can we recess the meeting till tomorrow? Commissioner Suarez: Right. Chair Hardemon: This is a different meeting now. This is a special meeting, so this meeting -- Vice Chair Russell: Right. Chair Hardemon: If you -- you could -- Commissioner Suarez: As long as (UNINTELLIGIBLE). Vice Chair Russell: Off agenda, we could schedule it during lunch, for example, or -- Commissioner Carollo: Right. Chair Hardemon: What I'm saying to you, if you recess this meeting until tomorrow, it will be continuation of many meeting and not the -- Vice - Vce Chair Russell: Commission. Chair Hardemon: -- June 23, 2016 agenda meeting. Commissioner Carollo: Right, but we could do both meetings. Ms. Mendez: You could just reconvene as a special meeting -- Commissioner Carollo: Right. Ms. Mendez: -- tomorrow. Chair Hardemon: So -- wait. You do realize that -- I want to be the first one to say this: I hate that we have to -- that we meet so long, and we go to 11 o'clock, 12 o'clock, and I struggle with whether or not it is my fault as Chairman or it is a collective fault of all of us. Ms. Mendez: It is not your fault, Mr. Chairman. City of Miami Page 94 Printed on 101412016 City Commission Meeting Minutes June 22, 2016 Chair Hardemon: Because I (UNINTELLIGIBLE) -- Ms. Mendez: It is not your fault. Chair Hardemon: -- because if -- Ms. Mendez: You run a tight ship. Chair Hardemon: -- the reason that we're going that long is because of ,me, I would resign from chairmanship. I sincerely mean that, because it -- Commissioner Suarez: Don't do that thing, okay? Don't do that. Chair Hardemon: You're right. Commissioner Suarez: Don't do that. Chair Hardemon: And so, as Chairman, I would say that I would not be receptive to placing this on for tomorrow to be discussed. Commissioner Suarez: Yeah, I don't think it's a good idea either. Our Commission agendas are loaded up. I think all the parties and the public need a chance to digest everything that's gone on here. I think we need a chance to digest everything that's gone on here. And I think there are some significant issues that have been expressed. Vice Chair Russell: Do you feel there's enough left to discuss that we need another special dedicated day? Commissioner Suarez: I do. I do. I don't know about "day, " but I think there's Commissioner Carollo: A day. A day. The way we're going (UNINTELLIGIBLE). Commissioner Suarez: The way we're going, a day, so I can't -- Commissioner Carollo: (UNINTELLIGIBLE) or two or three. Commissioner Suarez: No, I don't know about that. Chair Hardemon: Maybe we -- Commissioner Suarez: Well, maybe. Who knows? Chair Hardemon: -- could decide the day at another time. We don't have to decide that now. Commissioner Suarez: How many 75 year leases have you done before? Vice Chair Russell: None, but I'll tell you, I know what I need to know at this point -- Commissioner Suarez: Right. Vice Chair Russell: -- with all of *the issues that are before us, and I recognize that as tough as this is on the -- on our legal obligation to -- Commissioner Suarez: Sure. City of Miami Page 95 Printed on 101412016 City Commission Meeting Minutes June 22, 2016 NA.1 16-00841 b City of'Miami Vice Chair Russell: -- the bidders, our bigger obligation is to the public. Commissioner Suarez: No doubt. No doubt. Vice Chair Russell: And I feel with strong conviction where we are there and what we should do moving forward. Commissioner Suarez: (UNINTELLIGIBLE). Chair Hardemon: I love it when you lift the little paper. Everyone does the hands thing; he lifts the paper. I don't see any further discussion about this. I'll ask that the motion that is on the floor be removed from the table -- from the floor. Vice Chair Russell: I'd just like to understand either from the Clerk or the City Attorney if there is a way to keep the motion alive into the next meeting, or ifit needs to be withdrawn for us to defer or --? Mr. Hannon: I just want to make sure I'm correct. We're going to recess the meeting, correct? Chair Hardemon: No. Mr. Hannon: We're going to adjourn the meeting? Chair Hardemon: We're going to adjourn this meeting. Mr. Hannon: If the meeting is adjourned, then the motion and the second goes away. Vice Chair Russell: It dies? Mr. Hannon: Yes. Vice Chair Russell: Okay. And we just -- Mr. Hannon: So you can just simply just withdraw the motion if (UNINTELLIGIBLE). Chair Hardemon: You can remake the motion, right. You can make another motion at another time. Mr. Hannon: Correct. Yes, sir. Vice Chair Russell: So then I withdraw the motion. Chair Hardemon: Thank you very much. Then this meeting has come to conclusion. Unidentified Speaker: Thank you. Chair Hardemon: I mean, the meeting's over. END OF SPECIAL MEETING ITEMS NON AGENDA ITEMS) DISCUSSION ITEM A MEETING OF THE CITY OF MIAMI COMMISSION HAS BEEN SCHEDULED Page 96 Printed on 101412016 City Commission Meeting Minutes June 22, 2016 FOR THURSDAY, JUNE 23, 2016, AT THE CITY OF MIAMI CITY HALL, 3500 PAN AMERICAN DRIVE, MIAMI, FLORIDA 33133. A PRIVATE ATTORNEY-CLIENT SESSION WILL BE CONDUCTED UNDER THE PARAMETERS OF SECTION 286.011(8), FLORIDA STATUTES, THE PERSON CHAIRING THE CITY OF MIAMI COMMISSION MEETING WILL ANNOUNCE THE COMMENCEMENT OF AN ATTORNEY-CLIENT SESSION, CLOSED TO THE PUBLIC, FOR PURPOSES OF DISCUSSING THE PENDING LITIGATION CASES OF: VICTOR IGWE V. CITY OF MIAMI, CASE NO. 15-21603, BEFORE THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA; VICTOR IGWE V. CITY OF MIAMI, CASE NO. 11-35238 CA 05, BEFORE THE 11TH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA; AND VICTOR IGWE V. CITY OF MIAMI, CASE NO. 3D15-1307, BEFORE THE THIRD DISTRICT COURT OF APPEAL, TO WHICH THE CITY IS PRESENTLY A PARTY. THIS PRIVATE MEETING WILL BEGIN AT APPROXIMATELY 3:00 P.M. (OR AS SOON THEREAFTER AS THE COMMISSIONERS' SCHEDULES PERMIT) AND CONCLUDE APPROXIMATELY ONE HOUR LATER. THE SESSION WILL BE ATTENDED BY THE MEMBERS OF THE CITY COMMISSION: CHAIRMAN KEON HARDEMON, VICE-CHAIRMAN KEN RUSSELL, AND COMMISSIONERS WIFREDO "WILLY" GORT, FRANK CAROLLO, AND FRANCIS SUAREZ; THE CITY MANAGER, DANIEL J. ALFONSO; THE CITY ATTORNEY, VICTORIA MENDEZ; DEPUTY CITY ATTORNEYS JOHN A. GRECO AND BARNABY L. MIN; DIVISION CHIEF FOR LABOR AND EMPLOYMENT KEVIN R. JONES; AND ASSISTANT CITY ATTORNEYS KERRI L. MCNULTY, STEPHANIE K. PANOFF, AND BARBARAA. DIAZ. A CERTIFIED COURT REPORTER WILL BE PRESENT TO ENSURE THAT THE SESSION IS FULLY TRANSCRIBED AND THE TRANSCRIPT WILL BE MADE PUBLIC UPON THE CONCLUSION OF THE ABOVE-CITED, ONGOING LITIGATION. AT THE CONCLUSION OF THE ATTORNEY-CLIENT SESSION, THE REGULAR COMMISSION MEETING WILL BE REOPENED AND THE PERSON CHAIRING THE COMMISSION MEETING WILL ANNOUNCE THE TERMINATION OF THE ATTORNEY-CLIENT SESSION. DISCUSSED Chair Hardemon: I'm going to hold the meeting in recess until we have all of our Commissioners here. Commissioner Carollo: Mr. Chairman. Chair Hardemon: Ms. City Attorney, you can read your statement for the record; yeah, we can do that first. Ms. Mendez: I'm going to read -- I don't have the regular statement that we normally do since we just have two items on the agenda, but if I may, could I read two scripts that I have to read for tomorrow? Thank you. Mr. Chairman and members of the Commission, pursuant to provisions of Section 286.011(8) Florida Statutes, I'm requesting that at the City Commission meeting of June 23, 2016, an attorney-client session, closed to the public, be held for purposes of discussing the pending litigation in the following case: Victor Igwe v. City of Miami, Case Number 15-21603, before the United States District Court of the Southern District of Florida; Victor Igwe versus City of Miami, Case Number 11-35238 CA 05, before the Eleventh Judicial Circuit and for the Miami -Dade County, Florida; and Victor Igwe v. City of Miami, Case Number 3D15-1307, before the Third District Court of Appeal, to which the City is presently a party. The subject of City of Miami Page 97 Printed on 101412016 City Commission Meeting Minutes June 22, 2016 ADJOURNMENT the meeting will be confined to settlement negotiations or strategy sessions related to litigation expenditures. This private meeting will begin at approximately 3 p. m. or as soon thereafter as the Commissioners'schedules permit, and conclude approximately one hour later. The session will be attended by members of the City Commission, which include Chairman Keon Hardemon, Vice Chairman Ken Russell; Commissioners Wilfredo Willy'Gort, Frank Carollo and Francis Suarez; the City Manager, Daniel Alfonso; and myself, the City Attorney, Victoria Mendez; Deputy City Attorneys John A. Greco and John L. Min -- Barnaby L. Min; Division Chief for Labor and Employment Kevin Jones; and Assistant City Attorneys Kerri McNulty, Stephanie Panoff ' and Barbara Diaz. A certified court reporter will be present to ensure that the session is fully transcribed, and the transcript will be made public upon the conclusion of the litigation. At the conclusion of the attorney-client session, the regular Commission meeting will be reopened, and the person chairing the meeting will announce the termination of the attorney-client session. Thank you. Chair Hardemon: Thank you very --you got something you want to say? Commissioner Carollo: Yes, Mr. Chairman. Just for information, between 3:50 and 4:10, I will not be present. I -- daddy duty, so I have to pick up my daughter. Chair Hardemon: (UNINTELLIGIBLE) as well. Commissioner Carollo: But I'll be back by 4:10. So all I need is, you know, from 3:50 to 4:10, more or less; and then, I'm hoping this doesn't go past 8:30, because I do have a later event at 9 p.m., so I'm hoping that by 8:30, we could get this done. Chair Hardemon: Thank you very much. This meeting will be in recess until we receive the presence of not only Commissioner Suarez, who just walked in, but also Commissioner Gort. Okay. END OF NON AGENDA ITEMS) The meeting adjourned at 7:49 p.m. City of Miami Page 98 Printed on 101412016