HomeMy WebLinkAboutSubmittal-Al Dotson re VA Key Advisory Board2�,E AUL 15 PM 3: 18
;11 `( O, E ii Ml
July 15, 2016
The Hon. Keon Hardemon, Chairman
The Hon. Ken Russell, Vice Chairman
The Hon. Wilfredo Gort, Commissioner
The Hon. Frank Carollo, Commissioner
The Hon. Francis Suarez, Commissioner
City of Miami City Commission
City of Miami City Hall
3500 Pan American Drive
Miami, FL 33133
`° Bilzin Sumberg
Albert E. Dotson, Jr., Esquire
Tel 305-350-2411
Fax 305-351-2217
adotsona.bilzin.com
Re: Virginia Key Advisory Board's Recent Decision Regarding Virginia Key
RFP Was Not Based on Facts and Review of Proposed Plan
Dear Commissioners:
Virginia Key, LLC ("RCI") is the recommended awardee for RFP No. 12-14-077 (the
"RFP"), and attended the May 24, 2016 and June 29, 2016 Virginia Key Advisory Board
("Advisory Board") meetings. As the only proposer to respect the Virginia Key Master Plan (the
"Master Plan"), we recognize that we have a duty, as a responsible participant in this process, to
keep abreast of the Advisory Board's meetings, decisions, and discussions. We were surprised
by the Advisory Board's ultimate decision at their June 29th meeting to recommend that the City
of Miami City Commission ("City Commission") throw out all bids and re -issue an RFP for the
development of a marina at Virginia Key, because this decision was made WITHOUT:
1. Acknowledging that the RFP already requires that any recommended proposer
prepare a site plan and development program that is consistent with the Master Plan
and requires that the recommended proposer secure all development approvals
demonstrating such consistency BEFORE one shovel hits the ground. Further, the
RFP already expressly contemplates that, during this public process vetting any
proposed development BEFORE one shovel hits the ground, the proposed
development WILL be subject to reduction, adjustment and modification. As a result,
the City Commission, the Advisory Board, and all interested constituents will have
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Bilzin Sumber Baena Price & Axelrod LLP 1 1450 Brickell Avenue, 23rd Floor, Miami, Florida 33131-3456
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their appropriate input and approval rights. If the Advisory Board's true concern is
compliance with the Master Plan, then the RFP and any agreement negotiated are
ironclad proof that their articulated concern is a non -issue. Based on the public
discussions of the Advisory Board, it is clear that this undisputed fact is either not
known or not fully understood.
2. RCI, unlike the other proposers, actually took the Master Plan into account in
preparing RCI's response to the RFP. Instead of engaging in a conversation about
HOW the recommended proposal actually complies with the Master Plan, the
Advisory Board went straight to "throw out all proposals." We surely hope that the
City Commission will permit a thorough presentation about the recommended
proposal, what a negotiated agreement would require of the selected proposer with
respect to the Master Plan, and how the recommended proposer's plan and the
obligations already imposed by the City comply with the Master Plan, Miami 21 and
other regulatory requirements.
In this letter, we have provided the information that the Advisory Board should have,
could have, but did not discuss it reaching its decision on June 29 2016.
Any decision by the City Commission to follow the Advisory Board's June 29th
recommendation would be arbitrary and capricious, because it would not be based on facts or
supported by logic. The City Commission is prohibited by law from acting arbitrarily and
capriciously in the public bidding process.
1. The Virginia Key Advisory Board made an uninformed decision, and this is what
happened.
At the May 24th meeting, the City of Miami Planning and Zoning Department ("Planning
Department") made a presentation to the Advisory Board regarding the creation and adoption of
the Master Plan. The Planning Department walked the Advisory Board through the timeline of
the various stages of the process that was used to prepare and finalize the Master Plan. The
Planning Department explained that the official adopted Master Plan is that which was
distributed with the RFP and is posted on the City's website.
Some Advisory Board members disputed this fact and sought clarification, believing that the
presentation that was given during the adoption of the Master Plan was the final adopted Master
Plan itself. Several Advisory Board members described the presentation as the "original Master
Plan" expressed concern that the "original Master Plan" is the correct Master Plan and is not the
same as the adopted Master Plan that is being used by the City. Several Advisory Board
members stated that there were differences regarding the nuances and principles of the
presentation and the adopted Master Plan, but NONE OF THE ADVISORY BOARD
MEMBERS stated differences with specificity and did not point to any particular section or
language.
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Seeing the Advisory Board's misinformation regarding the Master Plan and its adoption, the
Director of the Planning and Zoning Department recommended that the Advisory Board invite
the Planning Department back to present a detailed analysis regarding any perceived differences
between the presentation and the adopted Master Plan. The Director explained that to his
knowledge, and that of his staff, there were no differences between the presentation and the
Master Plan. He urged the Advisory Board to bring to their attention, any perceived or
identifiable differences. The Advisory Board did not identify any such differences.
When prompted by the Director, the Advisory Board agreed that it would permit the
Department to make a presentation to the Advisory Board regarding the Master Plan as well as
the RFP's compliance with the Master Plan. The Advisory Board also requested that a
comparison chart and analysis be prepared so that the Advisory Board can assess the differences,
if any, between the adopted Master Plan and the Master Plan presentation.
Unable to identify concerns that could not be remedied by removal of the wet slips in the
basin or in negotiations between the City and RCI, at the May 24th meeting the Advisory Board
voted unanimously to recommend that the City remove the wet slips from the basin, rather than
vote to recommend that the City reject all proposals and reissue the RFP.
When faced with the fact that the only major concerns centered on new development in the
basin, the Advisory Board concluded that restricting that development would assuage its
concerns and it voted accordingly.
On June 29th, the Advisory Board, without the very information it requested, reversed
course. Although the Advisory Board made clear that it was lacking pertinent information about
the Master Plan and decided it would seek more information from a future presentation and
analysis by the Planning Department, it made a recommendation regarding the RFP on June 29th
without having received that critical information and analysis. The resolution for the June 29th
recommendation called for the City to "issue a new RFP for the Virginia Key Marina that
complies with the original Master Plan." The "original Master Plan" is a reference to what the
Planning Department explained at the May 24th meeting was merely a presentation document
and not the adopted vetted by the City Commission. It is the City Commission, after input from
all interested parties, that adopts the official Master Plan. On June 29th, the Advisory Board did
not allow or receive the requested detailed comparison of the Master Plan with the presentation
given during Master Plan's adoption by the Advisory Board. The Advisory Board did not
receive a detailed analysis from the Planning Department regarding the RFP and RCI's
compliance with the Master Plan.
This might prompt you to ask, on what then was the Advisory Board's June 29th decision
based? Misinformation and uninformed opinions.
For the June 29th meeting, the Chairman of the Advisory Board, Greg Bush, circulated a
draft resolution to the Advisory Board members laden with falsehoods. In that draft resolution,
the Chairman claimed, among other things:
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1. That the Planning Department redrafted the Master Plan without authorization from the
Commission and that the adopted Master Plan is in fact a "`fake' Master Plan".
2. That the current official version of the Master Plan subtly contradicts the will of the
Commission, without providing any proof of such contradictions.
3. That the Master Plan was not clearly referenced in the RFP and the RFP deviates from
the Master Plan.
4. That the RFP does not incorporate a Maritime Building/Welcome Center.
5. That the RFP calls for slips in the basins that are not depicted in the Master Plan.
Despite the Chairman's claims that the Master Plan contradicts the will of the Commission
and was not properly adopted, the Planning Department has stated otherwise and the Chairman
has not proffered any legitimate proof to substantiate his statements or contradict the Planning
Department's firm assertion.
Despite the Chairman's claims, the Master Plan was mentioned in the RFP more than twelve
times, the RFP's vision is described as being "to help implement major components of the
Master Plan" (RFP, pg. 3), and Master Plan compliance was a factor in the RFP's scoring
criteria.
Despite the Chairman's claims, the RFP site and surveys do not include the Maritime
Building/Welcome Center within the footprint of the RFP site. That parcel remains a part of the
Marine Stadium site, so proposers could not propose such a building in their plans because they
had to stay within the footprint provided by the City.
Despite the Chairman's claims, the RFP did not require that wet slips be developed in the
basin; the RFP states, "There is no anticipated location for the additional boat slips as this will be
determined at the Selected Proposer's discretion, subject to the restrictions set forth in the RFP,
the Master Plan (included as Exhibit E), and all other applicable restrictions, rules, and
regulations" (RFP Addendum II, pg. 2).
The Advisory Board has not specifically stated what the differences are between the
presentation made during the adoption of the Master Plan and the adopted Master Plan. The
Advisory Board has not questioned RCI about its plan's compliance with the Master Plan and
did not identify specific concerns regarding RCI's Master Plan compliance that have not already
been addressed. The Board has not detailed what actual deviations exist between RCI's plan and
the Master Plan other than the development of wet slips in the basin. In accordance with the
Advisory Board's May 24th recommendation that the City Commission remove the wet slips
from the basin, RCI and the City Commission made clear at the June 22, 2016 City Commission
meeting that they are prepared to negotiate an agreement that would eliminate wet slips in the
basin, thus that issue has been rectified.
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At the May 24th meeting, the Advisory Board could not identify any other major concern
that would necessitate issuing a new RFP other than the basin wet slips, which is why even when
faced with a vote to recommend rejecting all proposals, at that meeting the Advisory Board voted
to simply recommend removing the slips from basin because such a change could be made by the
City and RCI and would alleviate the community's concerns regarding use of the basin. What
new information would lead the Advisory Board to logically conclude that it needed to reverse
its position and vote on June 29th to recommend a rejection of all proposals and reissuance of the
RFP? None.
Had the Advisory Board sought the counsel of the Planning Department, it would not have
been misled by misinformation. A presentation from the Planning Department would have
further clarified the adoption of the Master Plan, even though it was clearly explained at the May
24th meeting, and would have provided proof for the Planning Department's assertion that there
are no substantive differences between the Master Plan and the presentation that was given at the
adoption of the Master Plan.
Without a presentation by the Planning Department outlining the RFP's and RCI's
compliance with the Master Plan, the environmental prohibitions against developing new wet
slips to the west of the current marina as proposed in the Master Plan (not merely the fact that the
County owns the submerged land), and the fact that the RFP did not require slips in the basin, the
Advisory Board made a decision based on opinions that were not factual, were not verified, and
should not have been the basis for recommending that all proposals be rejected. Governmental
bodies are not legally permitted to make dispositive decisions that are based on mere conjecture.
2. So, is RCI's plan in compliance with the Master Plan? Yes, it is.
The Master Plan enumerated the following goals and objectives for the creation and
implementation of the Plan:
1. To design and propose policies for the use of a viable waterfront with
complete public access.
2. To efficiently develop and manage the land.
3. To create an accessible place of recreation, heritage, education and
research related to the natural world and historical interpretation.
4. To provide for the protection and enhancement of the natural resources
(i.e. public beaches, parks and conservation areas) with the necessary
infrastructure and traffic flow to serve their future use.
5. To apply sustainable principles such as healthy activity, low carbon
footprint, LEED certified building, alternative transportation and energy.
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6. To integrate and preserve the historic Virginia Key Beach Park and the
Marine Stadium.
7. To provide opportunities for water and land sports and active recreation.
RCI's proposal complies with the Master Plan, its stated goals and objectives, as applicable,
and in certain instances exceeds them. RCI's proposal was prepared in accordance and
conformity with the principles of the Master Plan. RCI's plan facilitates waterfront access,
environmental restoration, active and passive recreation, small scale commercial, and convenient
parking in an environmentally sensitive manner (RCI's Proposal, Section IV). RCI's plan does
not over -emphasize retail or commercial space and all retail will be marine -related (RCI's
Proposal, Section I, pg. 2).
RCI's Plan Will Restore and Preserve Critical Vegetation
RCI's plan calls for preservation and restoration of the existing landscape at the site (RCI's
Proposal, Section IV, pg.17). Many existing trees will be preserved and mangroves would be
restored. There would be native plantings of plants specific to Virginia Key (RCI's Proposal,
Section IV, pg.6; Section IV, pg.17). RCI's plan provides for greening of the marina, and
preservation of greenspace (RCI's Proposal, Section IV, pg.6; Section IV, pg.17). RCI's plan
will supplement and preserve existing landscape buffers (RCI's Proposal, Section IV, pg.4 and
38). There will be xeriscape planting of both drought and wetland tolerant species (RCI's
Proposal, Section IV, pg.18). RCI's Preferred Plan eliminates the need for a parking garage,
which allows for maximum green -space (RCI's Proposal, Section IV, pg.8-9).
RCI's Plan Maximizes Access to and Utilization of the Waterfront
One of RCI's stated goals and objectives is to, "Sustain and revitalize a historic,
underutilized waterfront site and maximize its potential" and another stated goal is to "Provide a
safe, sustainable, and accessible Baywalk and open areas for the public" (RCI's Proposal,
Section II, pg.3). RCI's plan has two levels of continuous path, an elevated flood -proof public
and commercial level, and a purely recreational level (RCI's Proposal, Section IV, pgs.7 and 11).
RCI's plan includes thousands of linear feet of contiguous, uninterrupted Baywalk along the
entire waterfront that directly connects to other parts of Virginia Key (RCI's Proposal, Section I,
pg. 1). The promenade is accessible via ramps that connect it to the raised commercial and dining
spaces with direct access from the garage at grade (RCI's Proposal, Section IV, pg. 11). The
visitor experience from car to boat is completely convenient using either water -front valet or
walking directly from the parking area to the Baywalk. No elevators or stairs are needed. RCI
proposed parking underneath its dry storage facility so that the site could be used efficiently and
economically while providing added convenience for patrons who will not need to walk a long
distances to access the garage (RCI's Proposal, Section IV, pg.8-9).
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RCI's plan will greatly improve the public's access to this prime City asset and the
waterfront by activating currently underutilized areas, facilitating use of the site, and providing
the necessary connectivity between different parts of the Island. One of the goals and objectives
that RCI listed in its proposal is to "Develop a pedestrian -friendly campus with direct access to
extensive bay walk systems and an atmosphere and uses that encourage a vast array of activities
during the day and after working hours" (RCI's Proposal, Section II, pg.3). RCI's proposal
provides that light will shine "on the path and not into the eyes of pedestrians while meeting all
requirements. LED fixtures with low mounting heights will allow pedestrians to feel safe
without ruining views" (RCI's Proposal, Section IV, pg.25).
Additionally, RCI made a commitment to host fishing tournaments, sailing regattas, and
recreational activities, as it has done at the other sites that it has developed and/or operated, thus
facilitating public use of the site (RCI's Proposal, Section VI, pg. 15).
RCI's plan also incorporates benches, seating areas, passive parks, green spaces and
renovation of the public boat ramp that will all be open to the public (RCI's Proposal, Section
III, pg. 4; Section IV, pgs. 7, 14, and Plans). RCI's plan proposes extensive overhangs to shade
pedestrians and diners to enhance the user experience (RCI's Proposal, Section IV., pg. 19).
The state-of-the-art dry storage facility will have a control system that enables
electromechanical systems to automatically place and retrieve loads from defined storage
locations. A data network to distribute and collect information to and from the control system
will complement the electromechanical systems and help to maximize the available storage space
in the building. The system can store 46% more boats in the exact same building and increase the
linear footage available, thereby increasing efficiency and revenue production of the dry storage
facility. The system will be ready to retrieve or launch vessels immediately, unlike traditional
forklift systems, thus offering efficient 20-30 boats per hour launch/retrieval time. It will use a
unique sorting optimization software that, each night, optimizes where boats are stored, allowing
each new boat that is added to be placed with other boats in a row based on a configuration that
uses 90% or more of the available linear footage (RCI's Proposal, Section IV, pg. 8).
RCI's Plan Will Create a Unified and Integrated Campus
RCI will convert the site into a unified and integrated campus where the marinas seamlessly
interact with the restaurants, retail, office, active public uses, and marine -related uses, as called
for by the Master Plan (RCI's Proposal, Section II, pg.3; Section IV, pg.6). RCI's plan has a
contiguous, uninterrupted promenade and safe, dedicated bicycle lanes and shared use paths
(RCI's Proposal, Section IV, pg.21). RCI's state-of-the-art boat storage system will not interrupt
the continuous path and does not create a safety hazard for pedestrians (RCI's Proposal, Section
IV., pg. 13).
The extra -wide and continuous Baywalk will allow integration with activities taking place at
Marine Stadium. As RCI stated in its proposal, "The design of the Project will also complement,
and when necessary, accommodate, the restoration and use of the Marine Stadium and is
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compatible with the height of the Marine Stadium. The design also allows the Project to be
compatible with the Miami International Boat Show" (RCI's Proposal, Section IV, pg.6). RCI's
plan incorporates bus, bicycle, and automobile networks and a service and emergency access
plan (RCI's Proposal, Section IV, pgs.18 and 23). The transit networks maximize connectivity
between active and passive areas and promote integration with other parts of Virginia Key.
RCI's plan incorporates a valet/drop-off area to facilitate easy access to the waterfront (RCI's
Proposal, Section IV, pg.22).
RCI's plans detail well-planned sidewalks and pedestrian passageways (RCI's Proposal,
Section IV, pg.21). RCI also provides four separate north -south pedestrian connections, which is
more than what is provided in the Master Plan (RCI's Proposal, Section IV, pg.21). The canals
proposed in the Master Plan and its need for bridges would restrict direct access to the waterfront
promenade, so these elements were not incorporated into RCI's plan. RCI's pedestrian paths lead
directly to and provide visibility of the water (RCI's Proposal, Section IV, pg.21). RCI's
elevated pedestrian paths and steps provide long views without requiring the public to enter a
building (RCI's Proposal, Section IV, pg. 14).
RCI's Plan Has Extensive Sustainability and Green Features
RCI's plan proposes to seek Florida clean marina designation (RCI's Proposal, Section IV,
pg. 18). The sustainability and green features incorporated into RCI's plan will ensure that this
project will be able to function and generate revenue for the City for many decades to come and
limit the marina's impact on the environment. The commercial spaces are elevated in conformity
with FEMA regulations, effectively separating them from the promenade (RCI's Proposal,
Section IV, pg. 14). This also allows the two -levels of promenade space (RCI's Proposal, Section
IV, pgs.7 and 11).
RCI's plan maximizes conserved greenspace by keeping to the footprint of existing
operations and refurbishing rather than replacing some existing buildings (RCI's Proposal,
Section IV, pg.17). RCI's plan promotes green building because it does not require the
construction of a parking garage, thus reducing the amount of green space that is taken up by
structures. RCI's buildings will be constructed in an environmentally sensitive manner, and will
include bicycle parking (RCI's Proposal, Section IV, pg.21). The buildings' light-colored roofs
will minimize heat island effect and conserve energy (RCI's Proposal, Section IV, pg.19). The
plan's extensive exterior circulation minimizes area under air-conditioning (RCI's Proposal,
Section IV, pg.19). RCI's proposal provides for "LED site lighting with minimal spill" to
minimize light intrusion into the basin (RCI's Proposal, Section IV, pg. 18).
RCI's electric boat storage system is more green and energy efficient than the diesel forklift -
based storage system (RCI's Proposal, Section IV, pg. 13). RCI's boat storage facility will have a
quiet and green electrical operation (RCI's Proposal, Section IV, pg. 13). Further, the boat storage
elevators are extremely efficient compared to alternative systems (RCI's Proposal, Section IV,
pg. 19).
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RCI's plans integrate storm water management and improvements (RCI's Proposal, Section
IV, pg.18). The project will be designed "with perimeter grades and conveyance of runoff with
associated paving and grading" (RCI's Proposal, Section IV, pg.10). "Stormwater will be
retained for the required treatment in accordance with SFWMD guidelines by swales, exfiltration
trenches, or detention boxes as required" (RCI's Proposal, Section IV, pg. 10). RCI's plan, "to
the extent possible, will include bio swales, rain gardens, and green roofs" (RCI's Proposal,
Section IV, pg.6). Cisterns will capture rain -water for re -use in irrigation or boat washing (RCI's
Proposal, Section IV, pg. 19).
RCI's green initiatives will include: installation of solar powered, wireless security cameras;
electric car charging station installation throughout parking lots; in -slip sanitary pump out
systems will be installed at every in water slip; security guards will ride/patrol their respective
properties on foot or bicycle, not golf cart or auto (RCI's Proposal, Section V., pg. 11-12). RCI
will also pursue possibility of mounting PV panels in conjunction with FPL (RCI's Proposal,
Section IV, pg. 19).
RCI's Plan is Reflective of the Characteristics of Virginia Key and the Environment
RCI's dry dock is broken up into three buildings with pedestrian passageways that intersect
and connect with the public waterfront promenade, just as is depicted and called for in the
Master Plan. RCI's design was "inspired by the streamlined style of contemporary yachts and
boats" (Section IV, pg.5). "The design of the Project mirrors that of a boat, allowing it to blend
in with the landscape and the water, appearing as if, like a boat, the building is preparing to
embark into the ocean itself (Section IV, pg.5). RCI's project does not exceed 65 feet in height
(RCI's Proposal, Section IV, pg.6). RCI's plan will fit into the landscape of Virginia Key and
will not be a monolithic building that disturbs the character of the site.
3. It would be arbitrary and capricious for the City Comnnission to accept the
Advisory Board's uninformed recommendation.
The courts support the decision-making authority and business judgment of public bodies.
Florida courts and the Department of Administrative Hearings ("DOAH") have repeatedly found
that "An agency has wide discretion in soliciting and accepting bids, and its decision, if based on
an honest exercise of this discretion, will not be overturned even if reasonable persons may differ
with the outcome." AAA -1 Quality Lawn Care Service, v. School Board of Pam Beach County,
Florida, Case No. 95-3879BID, 1995 WL 1053216, at ¶ 3 (Fla. DOAH Oct. 23, 1995).
Caselaw affords governmental entities broad latitude and courts are hesitant to overturn their use
of the discretion in the public bidding process, but such discretion and latitude cannot be
employed in an arbitrary and capricious manner. Because governmental bodies are afforded
broad discretion in public bidding, "the standard by which that discretion is judged is that it
should not be arbitrary, unreasonable or capricious, but should be based upon facts reasonably
tending to support the conclusions of the public entity." City of Cape Coral v. Water Services of
America, Inc., 567 So.2d 510, 513 (1990). An arbitrary decision is one that is not supported by
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facts or logic, or is despotic. Traveler Elevator, v. Florida School for the Deaf and the Blind,
Case No. 12-2288BID (Fla. DOAH September 14, 2012).
Given the facts presented above and the highlights of RCI's plan, it is clear that the Advisory
Board's June 29th recommendation was based on fairness and facts. The Advisory Board made
its June 29th recommendation without a full presentation of the facts that were needed to reach a
logical conclusion regarding the technical issues of the RFP and RCI's compliance with the
Master Plan. At its June 29th meeting, the Advisory Board did not have the facts necessary to
reasonably support the conclusion that it reached. The Advisory Board had not been fully briefed
on the technical issues, and yet, it reversed its May 24th recommendation which had been made
cautiously, and with the understanding that it had limited information and only one primary
concern. On June 29th, the Advisory Board threw caution to the wind. This constitutes arbitrary
and capricious decision-making. Per se, if the City Commission accepts the Advisory Board's
recommendation, it would be making an arbitrary and capricious decision. Such a decision
would not pass legal muster and would not be permissible by law.
RCI and the City are both willing to agree to remove the wet slips from the basin and such a
change is wholly consistent with the RFP. Community groups such as the Miami Rowing Club
have expressed support for RCI and its plan given the concessions that RCI is willing to
negotiate with the City. There are no other identifiable or legally sufficient concerns that would
warrant a rejection of all proposals and reissuance of the RFP. We urge the City Commission to
reject the Advisory Board's recommendation to throw out the RFP and instead make a decision
that is based on facts.
Sincerely,
f
Albert E. Dotson, Jr.
CNM/AED
cc: The Honorable Tomas Regalado, Mayor
Victoria Mendez, Esquire, City Attorney
Rafael Suarez -Rivas, Esquire/Senior Assistant City Attorney
Todd Hannon, City Clerk
Daniel J. Alfonso, City Manager
Daniel Rotenberg, Director of Real Estate and Asset Management
Francisco Garcia, Director/Planning and Zoning
Jacqueline Lorenzo, Project Manager
Jason Spalding, CBRE
Mr. Robert Christoph, Sr.
Mr. Robert Christoph, Jr. 5068581.2
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