HomeMy WebLinkAboutSubmittal-Sam Dubbin-Letter to Commissioners for Item RE.6DUBBIN
KRAVETZ
April 8, 2019
VIA EMAIL
Hon. Mayor Francis Suarez
Hon. Chairman Ken Russell
Hon. Willy Gort, District One
Hon. Joe Carollo, District Three
Hon. Manolo Reyes, District Four
Hon. Keon Hardemon, District Five
Hon. Emilio Gonzalez, City Manager
Hon. Victoria Mendez, City Attorney
Hon. Todd B. Hannon, City Clerk
SAMUEL J. DUBBIN, P.A.
DIRECT (305) 357-9004
sdubbin®dubbinkravetz.com
Submitted into the public
record for item(s) DI.3
on _ 04/11/2019 City Clerk
Subject: Friends of Maurice A. Ferre Park LLC Support for Commission
Resolution No. 5733, Agenda Item RE 6, to Prohibit Future Commercial Development in
Maurice A. Ferre Park and the FEC Slip, and Opposition to Bayfront Park Management
Trust Request for Proposals, RFP No. 989387.
Dear Mayor Suarez and Commissioners Russell, Gort, Carollo, Reyes, and Hardemon:
This firm represents the Friends of Maurice A. Ferre Park, LLC ("Friends"). My clients
emphatically support the proposal scheduled for the upcoming City Commission meeting agenda
to limit the use of Maurice A. Ferre Park ("MAF Park") and the Florida East Coast Railway
Deep Water Slip ("FEC Slip") to only park and other green spaces and protecting them from
future commercial development, published as File No. 5733 and Agenda Item RE -6. The
Resolution represents extremely important public policy to protect Downtown Miami's
diminishing public green space and bay view, and we urge the Commission to embrace the long-
term protection of these irreplaceable public resources by enacting RE -6.1
Consistent with RE -6, and the policy of protecting public open green space expressed by
several commissioners at the March 29, 2019 City Commission meeting, my clients are also
asking that the Commission put an immediate stop to the illegal proposal by the Bayfront Park
Management Trust ("BPMT"), purporting to solicit bids for a commercial/industrial project in
the upland portion of MAF Park and the FEC Slip. Although the BPMT recently extended its
original submission deadline of April 18, 2019 to July 3, the profound legal infirnlities and
disastrous polices in the RFP create significant risks for the City today. The Friends of Maurice
A. Ferre Park urges the Commission to'reject, nullify, and void the RFP at its meeting on April
11.
The RFP is an egregious and illegal overreach by the Bayfront Park Management Trust,
by-passing the City Commission's role as the public's elected representatives to set policies and
We request that this letter be made an official part of the Commission's record in
consideration of the Resolution at its April 11, 2019 meeting.
1200 ANASTASIA AVENUE • SUITE 300 • CORAL GABLES, FLORIDA 33134
TELEPHONE (305) 371-4700 0 FAX (305) 371-4701
priorities for the residents of the City. Bayfront Park and Maurice A. Ferre Park are invaluable
public spaces, critical to the health and vitality of Downtown Miami. They are indispensable
refuges for open space and recreation for Downtown residents and visitors. Yet the BPMT has
proposed a marina with wet slips, a dock master's office (1-2 stories), ship store, "one or more"
restaurants and bars, fuel facilities, and parking lot, ostensibly to be constructed on two -plus
upland acres of Maurice A. Ferre Park, with the objective of "maximizing income to the
Trust." However, the Park is owned by the residents of the City, not the Trust, and the RFP
violates the City Charter, which vests authority to sell or lease any City -owned land solely in n the
Citv Commission.
The Friends of Maurice A. Ferre Park urge every Commissioner to exercise his personal
responsibility as a steward of the public's land, to protect the public's rights to open green space
in the City, and reject the Trust's misguided effort to monetize the declining limited public green
space in Downtown Miami. Further, the Commission would be inviting protracted litigation if it
does not stop the RFP from proceeding.
I. Overview. Perhaps the most graphic summary of the illegality of the FEC Slip RFP is
that it deviates so radically from the law that it violates every single one of the conditions
imposed by Charter Section 3 for a lease of public waterfront land to an outside entity. Section
3(f) provides: "The City of Miami shall have power" in connection with the "[a]cquisition and
disposition of property and services:"
(iii) To lease to or contract with entities for the management of any of the
city's waterfront property, but only in compliance with the other requirements of
this charter and on the condition that:
(A) the terms of the contract allow reasonable public access to the water
and reasonable public use of the property, and comply with other charter
waterfront setback and view -corridor requirements; and
(B) the terms of the contract result in a fair return to the city based on two
independent appraisals; and
(C) the use is authorized under the then existing master plan of the city,
(D) the procurement methods prescribed by ordinances are observed;
(E) the contract does not exceed five years and does not contain an
automatic renewal or termination penalty.
(Emphasis supplied).
The RFP violates all of these conditions, starting with the obvious failure to comply with
"other requirements of the charter," i.e. Section 29-A(b). and 29-13, which allow onlythe. Cid
Commission to lease the City's property, and require that any lease of public land return fair
Submitted into the public
record for item(s) 13I.3
2 on 04/11/2019 City Clerk
DUBBIN & KRAVETZ, LLP
1200 ANASTASIA AVENUE • SUITE 300 • CORAL GABLES, FLORIDA 33134 • TELEPHONE (305) 371-4700
market value to the City.2 In addition: (a) the minimum annual rent offered is not based on any
appraisal, much less two independent appraisals, destroying any argument that the proposal
yields a "fair return," or "fair market value" required by Sections 3(f)(iii)(B) and 29-13; (b) it
violates City procurement ordinances, which specifically exclude the BPMT from offering to
lease public land, and require a description of the "the particular property interest to be acquired
and disposed of," yet this RFP does not even include a legal description of the area supposedly to
be leased; (c) the proposed use violates the City's Comprehensive Neighborhood Plan and
Miami 21 Zoning Code because it would exceed the 25% limit on building floor area, and reduce
net public parkland, (d) the proposed use violates Miami -Dade County Department of Resource
Management (DERM) rules limiting the FEC Slip to boats longer than 100 feet; and (e) the
contract proposed exceeds five years and contains an automatic renewal despite the express
prohibition in Section 3(f)(iii).
II. The FEC Slip RFP is Invalid, Illegal, and Void Under the City Charter. There is no
authority in the Charter or the City Code that allows the Trust to issue an RFP for a long-term
lease of City -owned waterfront land, to consider bids, to accept or reject offers, and any of the
other actions the FEC Slip RFP purports to authorize the Trust to do.
A. Charter Sections 3(f) and 29-A(b) authorize the City Commission alone to sell or
lease City -owned waterfront land.
The Charter authorizes only the City, acting through the Commission, to lease City -
owned property and City -owned waterfront property to a private entity. Section 29 of the City
Charter governs the sale or lease of City owned property. Section 29A(b) provides:
(b) Sales and leases of real property; prohibition. Except as otherwise
provided in this section, there shall be no sale, conveyance, or disposition of any
interest, including any leasehold, in real property owned by the city, the
department of off-street parking, or the downtown development authority, unless
there has been prior public notice and a prior opportunity given to the public to
compete for said real property or interest. Any such sale, conveyance, or
disposition shall be conditioned upon compliance with the provisions of this
section, such procurement methods as may be prescribed by ordinance, and any
restrictions that may be imposed by the city, the department of off-street parking,
or the downtown development authority, as appropriate. Further, no right, title, or
interest shall vest in the transferee of such property unless the sale, conveyance,
or disposition is made to the highest responsible bidder, as is determined by the
city commission, or the off-street parking board, or the downtown development
authority board of directors.
(Emphasis supplied).
Submitted into the public
record for item(s) D1.3
on 04/11/2019, City Clerk
Under Charter Section 4(a), the City Commission alone has the authority "to exercise all
powers conferred on the city."
3
DUBBIN & KRAVETZ, LLP
1200 ANASTASIA AVENUE • SUITE 300 • CORAL GABLES, FLORIDA 33134 • TELEPHONE (305) 371-4700
Under Section 29A(b), the only entities within the City government that have the
authority to sell or lease public property are the City Commission, the Department of Off -Street
Parking, and the Downtown Development Authority. The BPMT is not one of the named City
entities that have the authority to sell or lease City -owned property. This fact alone should end
any further consideration of the RFP.
Further, Charter Section 3(0 contains a separate provision for the sale or lease of city -
owned waterfront property, which provides: "The City of Miami shall have power:"
(iii) To lease to or contract with entities for the management of any of the
city's waterfront property, but only in compliance with the other requirements of
this charter ....
Charter Section 4(a) makes it absolutely clear that the Commission alone has the power
to exercise the authority of the "City," including the authority to sell or lease City -owned
waterfront land. It provides:
The city commission shall constitute the governing body with powers
(as hereinafter provided) to pass ordinances, adopt regulations, and
exercise all powers conferred upon the city except as hereinafter
provided.
In Homestead -Miami Speedway, LL(' v. City of Miami, 828 So.2d 411 (Fla. 3d DCA
2002), the Third District Court of Appeal invalidated an agreement between the City and one
racing promoter to allow auto racing in Bayfront Park for three days each year over a 15 year
period because the City failed to follow the requirements of Sections 29-A and 3(f)(111). Clearly,
the BPMT's proposed SO year lease for full-time occupancy of over two upland acres in MAF
Park and the FEC Slip, with two 15 year extensions, is a lease which only the City Commission
has the authority to convey.
B. The Bayfront Park Management Trust Lacks the Authority to Lease, or Publish an
RFP to Lease. City -Owned Land.
1. Section 18-72 precludes the Trust from engaging in the sale or lease of City land.
Not only does the Charter exclusively assign the right to sell or lease City -owned land to
the City Commission, it express1y precludes the BPMT from attempting to do so. The BPMT is a
creature of the City Commission, and its authority is limited to that prescribed in the City's Code
of Ordinances. There is nothing in the City Code that remotely authorizes the BPMT to issue an
RFP for a long-term lease on city -owned land, much less to solicit and accept bids, reject or
accept proposals, waive "irregularities or technicalities." or award the RFP to the "responsible
Proposer meeting all the requirements set forth in the Solicitation." RI P, Page 9. Sec. II E.1.
The only authority of the BPMT under the City Code to engage in procurement activity is
provided in Section 18-71, the City Procurement Ordinance, which governs "every
purchase/procurement by ... "[t]he Bayfront Park Management Trust." Section 18-71(a)(2).
Submitted into the public
4 record for item(s) DI.3
on 04/11/2019 City Clerk
DUBBIN & KRAVETZ, LLP
1200 ANASTASIA AVENUE • SUITE 300 • CORAL GABLES, FLORIDA 33134
Submitted into the public
record for items) DI.3
on 04/11/2019 City Clerk
Section 18-72. Application and exclusions.
(a) Application. Regardless of the source of funds, including state and
federal assistance monies, and except as otherwise specified by law, the
provisions of this article shall apply to every purchase/procurement by:
(1) All city entities or boards, as hereinafter defined, except for the
community redevelopment agencies.
(2) The Downtown Development Authority, the department of off-
street parking, Liberty City Community Revitalization Trust, Civilian
Investigative Panel, Bayfront Park Management Trust, and Virginia Key Beach
Park Trust (each referred to herein as the "board" or "city entity" as applicable;
provided, however, that:
The same Code provision authorizing some procurement activities by the Trust contains
an express exclusion clause, which makes it clear that such authority does not extend to the sale
or lease of city -owned property:
(b) Exclusions. This article shall not apply to:
(2) The sale or lease of city --owned real property, as these are governed by
the provisions of 3f(iii) and Section 29A -D of the City Charter and chapter 18,
article V of the City Code.3
(Emphasis supplied).
2. The BMPT is limited by the Code to direct, operate, manage, and maintain city
property_
The BPMT's authorizing ordinance, codified in Code Section 38-101, defines the BPMT
as a "limited agency and instrumentality of the city." In the same ordinance, Section 38-102
limits the Trust's authority to "direct, operate, manage, and maintain" the city owned property
within Bayfront Park.
Sec. 38-102 — Purpose.
3 Notably, under Sections 3(1)(110 and 29 of the Charter, the DDA and Department of Off -Street
Parking are expressly authorized to sell or lease property they own. BPMT has no such
authorization anywhere in the Charter or Code; indeed it owns no property.
5
DUBBIN & KRAVETZ, LLP
1200 ANASTASIA AVENUE • SUITE 300 • CORAL GABLES, FLORIDA 33134 • TELEPHONE (305) 371-4700
The trust shall direct, operate, manage, and maintain all aspects of the
city -owned property known as Bayfront Park (hereinafter referred to as "park"),
for the purposes of ensuring maximum community utilization and enjoyment.
The trust shall endeavor to attract organized activities and functions to the park
consistent with this purpose.
Whatever authority the Trust has under the City Code to make decisions under its
authorization to "direct, operate, manage, and maintain" property in Bayfront Park, the BPMT
simply has no role to play in the process of conveying City -owned waterfront land in Bayfront
Park or Bicentennial Park,4 or Museum Park, now Maurice A. Ferre Park, including the FEC
Slip, under a long-term lease.
C. The BPMT May Not Act in Any Capacity, Much Less in Its Own Interest, to Lease
Any City -Owned Property, and in Particular, Cannot Lease Land Within Maurice A. Ferre Park
and the FEC Slip.
The Charter and the Code are clear: the BMPT has no authority to substitute for the City
Commission to authorize the solicitation, rejection, consideration, or evaluation of bids for a
long-term lease of Maurice A. Ferre Park and the FEC Slip, or any City -owned land or
waterfront land for that matter.
Nevertheless, the RFP improperly purports to advise the potentially bidding public that
the BPMT is authorized to solicit bids and act "in its own interests" throughout the process, as if
it were a separate legal or unit of government and not a creature of and answerable to the City
Commission itself. It is not.
Section II D., of the RFP provides, for example:
D. Cancellation of Solicitation.
The Trust reserves the right to cancel, in whole or in part, any Solicitation when it is in
the best interest of the Trust. The Trust shall have the sole and absolute discretion to
determine which actions are in the best interest of the Trust.
The RFP expressly presumes to designate the Trust — the BPMT — to exercise
responsibilities for the competitive bidding process that the Charter reserves for the City
Commission itself, such as the "authority" to issue the RFP, cancel any solicitation, reject any
and all proposals, waive irregularities or technicalities, and select among the Proposers who
"meet all requirements" and make an award. The RFP purports to invest the Trust with the
following authorities:
4 Pursuant to City of Miatni Ordinance 94-204, enacted March 24, 1994, "The Bayfront Park
Management Trust is hereby authorized to proceed with the steps necessary to assume control
and take responsibility for the operation and maintenance of Bicentennial Park." This is the only
reference in the City's laws to the BPMT having any operational involvement in the area now
named Maurice A Ferre Park, which includes the PAMM and Frost Museums, and the FEC Slip.
6 Submitted into the public
record for item(s) D13
DUBBIN & KRAVETz, LLP on 04 11 2019 City Clerk
1200 ANASTASIA AVENUE • SUITE 300 • CORAL GABLES, FLORIDA 33134 • TE
Submitted into the public
record for item(s) D1.3
on 04/11/2019 , City Clerk
E. Award of Solicitation.
1. Generally — This RFP may be awarded to the responsible Proposer
meeting all requirements as set forth in the Solicitation. The Trust reserves the
right to reject any and all Proposals, to waive irregularities or technicalities and to
re -advertise for all or any part of this Solicitation as deemed in its best interest.
The Trust shall be the sole judge of its best interest.
2. Unreasonable Offers — The Trust expressly reserves the right to
reject any and all Proposals if it is determined that prices are insufficient, best
offers are determined to be unreasonable, or it is otherwise determined to be in the
Trust's best interest to do so.
3. Negotiations — The Trust reserves the right to negotiate price with
the Proposer providing the best financial return to the Trust, provided that the
Solicitation's scope of work and/or minimum requirements, including rent,
remains the same or revised for the Trust's benefit (such as increased rent).
RFP, at page 9.
Contrary to the RFP's provisions, all of these functions are assigned in the City Charter
to the Commission, or the DDA or the Off -Street Parking Authority in the case of properties
owned by those entities. As noted above, Charter Section 29A(b) provides:
[N]o right, title, or interest shall vest in the transferee of such property unless the
sale, conveyance, or disposition is made to the highest responsible bidder, as is
determined by the city commission, or the off-street parking board, or the
downtown development authority board of directors.
(Emphasis supplied).
3. The RFP's provision for Commission approval after the fact does not cure the
BPMT's lack of authority to issue the RFP.
Finally, there is also no argument that the Trust is somehow standing in for the City
Commission in connection with the solicitation and consideration of bids, and that subsequent
Commission approval of the Trust's decision somehow ratifies the Trust's actions in excess of its
authority. There is no provision in the Charter or the Code for any such transformative authority,
and neither City staff nor the board can magically create such authority where it is denied by the
terms of the Charter and Code. Hechtman v. Nations Title Ins., 840 So.2d 993, 996 (Fla.
2003)(courts must consider the plain language of a statute, give effect to all statutory provisions,
and construe related provisions in harmony with one another), Rinker Materials ('017). v. Cite of
North Miami, 286 So.2d 552. 553 (Fla. 197'))(municipal ordinances are subject to the same rules
of construction as state statutes. and provisions must be given their plain and obvious meaning,
and it must be assumed that the legislative body knew the plain and ordinary meaning of the
7
DUBBIN & KRAVETZ, LLP
1200 ANASTASIA AVENUE • SUITE 300 • CORAL GABLES, FLORIDA 33134 • TELEPHONE (305) 371-4700
words in the law.) The City Commission would be subjecting the residents to enormous legal
risk and potential liability if it allows the illegal process initiated by the BPMT to proceed.
III. The Substantive Provisions of the FEC Slip RFP Violate the City Charter, Code,
Comprehensive Neighborhood Plan, and State Law.
Plainly, the FEC Slip RFP is invalid on its face because the BPMT lacks the authority
under the City Charter and Code of Ordinances to issue and implement an RFP for a long-term
lease of City -owned waterfront property. However, as shown below, the substance of the RFP
itself also violates several provisions of the City Charter, Code of Ordinances, and State law.
A. The RFP Violates Public Open Space Requirements of the City's Miami 21 Zoning
Code and the Comprehensive Plan.
The project contemplated in the BPMT's RFP is contrary to the City's policy of
preserving and maintaining public parks and green space and public view corridors for the
Maurice A. Ferre Park and FEC Slip, including an open view of Biscayne Bay and limiting
impermeable development to 25% of public parkland area, a level already covered in the Park.
Any further upland development in the Park such as that proposed in the RFP would be a clear
violation of the City's Comprehensive Neighborhood Plan and Miami 21 Zoning Law.
1. The Proposed Development Violates the Miami Comprehensive Neighborhood_ Plan
by Proposing to Cover More Than 25% of the Park's Surface Area, and to Eliminate Public Park
Land.
The development proposed in the RFP violates two important provisions of Policy PR -
2.1.1 of the Miami Comprehensive Neighborhood Plan, which prohibits development that would
exceed 25% of the surface area of any park in the Public Parks and Recreation classification, and
that reduces public park land in the City. The RFP would violate both of these important legal
restrictions, because the existing PAMM Museum, Frost Museum, parking garages, outside
parking lots, access roads, Promenade, and restroom buildings currently encompass 25% of the
Park's total area, and commercial development of the two -plus upland acres would cause a
reduction in net parkland prohibited by the law.
The Park and FEC Slip are classified as Public Parks and Recreation in the City's
Comprehensive Neighborhood Plan (MCNP), Future Land Use Map (FLUM). According to the
Comprehensive Neighborhood Plan:
Public Parks and Recreation: The primary intent of this land use classification
is to conserve open space and green spaces of a park while allowing access and
vises which will not interfere with the preservation of any significant
environmental features which may exist within the park.
This land use designation allows only pen space and park uses with recreational
and cultural uses where the total building footprints and impervious parking area
Surfaces in parks of one (1) acre of more may cover no more than 25% of the park
Submitted into the public
g record for item(s) DI.3
on 04/11/2019 , Cityf Clerk
DUBBIN & KRAVETZ, LLP
1200 ANASTASIA AVENUE • SUITE 300 • CORAL GABLES, FLORIDA 33134 • TE
land area (See related Policy PR -2.1.3.). Both passive and active recreational uses
shall be permitted including but not limited to nature trails, interpretive centers,
picnic areas, playgrounds, canoe trails and launches, small concession stands,
restrooms, gyms, swimming pools, athletic fields, cultural facilities, marine and
marina facilities and other facilities supporting passive and active recreational and
cultural uses.
Policy P-2.1.1: The City has a no -net -loss policy for public park land and will
adopt procedures to this effect for park land in the City Zoning Ordinances, as
described in the 2007 Parks and Public Spaces Master Plan. These will allow only
recreation and cultural facilities to be built on park land, will limit building
footprint on any such land, will require that conversion of park land for any other
purposes be subject to public procedures, and replace the converted park land
with land similar in park, recreation or conservation value in terms of usefulness
and location.
(Emphases supplied).
Moreover, under state law, the Comprehensive Plan restrictions control in the event of
any conflicting provision of local law. Section 163.3194(1)(a), Florida Statutes, provides:
After a comprehensive plan, or element or portion thereof, has been
adopted in conformity with this act, all development undertaken by, and all
actions taken in regard to development orders by, governmental agencies in
regard to land covered by such plan or element shall be consistent
with such plan or element as adopted.
(Emphasis supplied).
2. The Proposed Development Violates Miami 21 by Proposing Upland Development
Because 25% of the Park Has Alreadv Been Develoned.
The proposed construction in excess of 25% of the MAF Park area also violates Section
5.7.1.3 of the Miami 21 Zoning Ordinance, which limits development to 25% of the lot area of
CS -zoned land. MAF Park, including the FEC Slip, are zoned CS (Civic Space) under the
Miami 21 Zoning Code. Section 5.7.1.3 of Miami 21 specifies that in the Civic Space ("CS")
zone, which governs in the Park, "[b]uilding floor area shall not exceed twenty-five percent of
the lot area of the Civic Space."
B. The RFP Violates Charter Section 29-B Because It is Not Supported By Fair Market
Value Appraisals.
In addition, even if the BPMT had the authority to issue such an RFP, and the proposal
did not violate the City's Miami 21 Zoning Code and Comprehensive Neighborhood Plan, the
RFP would be invalid because it does not establish the fair market value based on two
independent appraisals as required by Sections 3(f)(1ii) and 29-B of the Charter. Instead, the
BPMT arbitrarily plugged in a "minimum annual rent' and escalator provision, without the
9 Submitted into the public
record for item(s) D1.3
DUBBIN & KRAVETz, LLP on 04/11/2019 , City Clerk
1200 ANASTASIA AVENUE • SUITE 300 • CORAL GABLES, FLORIDA 33134 • TE
benefit of independent appraisals certifying the fair market value of the Property and uses
proposed.
Section 29-B of the City Charter prohibits the City from leasing publicly owned land for
less than fair market value. The seriousness of the fair market value requirement is reflected in
the Charter's express prohibition against the City Commission voting to approve a lease of
public land without guaranteeing FMV:
Sec. 29-B — City owned property sale or lease — Generally
Notwithstanding any provision to the contrary contained in this Charter or
the City Code, and except as provided below, the city commission is prohibited
from favorably considering any sale or lease of property owned by the city unless
there is a return to the city of fair market value under such proposed sale or lease.
Similarly, as noted above, Section 3(f)(1ii) requires that in any lease of City -owned
waterfront land, "the terms of the contract [must] result in a fair return to the city based on two
independent appraisals."
Despite the clear requirement of Charter Sections 3(f)(iii) and 29-13, there is no reference
in the published RFP to any independent appraisals that support the proposed minimum rent, and
without such appraisals, the minimum rent stated is arbitrary and neither the public nor the
Commissioners have any idea whether the proposed minimum rent meets the fair market value
test. Those figures are wholly arbitrary.
The RFPs muddled suggestion that appraisals can occur after bids are received does not
transform the illegal proposal to a legal one. The RFP states, in Section III 5, that "under no
circumstances may the City accept a proposal falling below the fair market value determined by
the two appraisals conducted by independent state -certified appraisers" and "[t]he Successful
Proposer's project shall be subject to a second fair market appraisal by two independent
appraisers to ensure that the return to the City is equal to or greater than fair market value as
required by the City Charter and Code." The pregnant point here is: how can there be a
"second" appraisal when the BPMT never obtained a "first" appraisal?
Without having appraisals in advance and without the FMV from those appraisals being
expressly incorporated into the lease, the RFP is illegal. Not only does this improper sequencing
violate the Charter, it (as will the entire proposal and process) will subject the City to multiple
potential legal challenges by bidders who will, with good reason, allege that the RFP process
lacked the consistency required by Florida law. Glaistein v. City of Aliarni, 399 So.2d 1005 (Fla.
3d DCA 1981), Marriott Corp. v. Metropolitan Dade County, 383 So.2d 662 (Fla. 3d DCA
1980), Robinson's, Inc. v. Short, 146 So.2d 108 (Fla. 1'` DCA 1962).
C. Lack of Survey or Legal Description Nullifies The RFP
The RFP issued on January 18, 2019. is also legally defective because it lacks a legal
description, a proper address, and a survey showing the exact areas, submerged and upland, to be
Submitted into the public
10 record for item(s) DI.3
on 04/1//2019 City Clerk
DUBBIN & KRAVETZ, LLP
1200 ANASTASIA AVENUE • SUITE 300 • CORAL GABLES, FLORIDA 33134 • TELI
conveyed and developed. This omission violates the City Code, Section 18-177(b), which
governs "any sale, conveyance, or disposition of any interest, including any leasehold in real
property, owned by the city." Section 18-176(a), provides:
Sec. 18-177. Competitive sealed bidding.
(b) Invitations for bids. An invitation for bids shall include, but not be
limited to, all relevant items stipulated in section 18-79(b), as well as all
information necessary to describe the particular property interest owned or to be
acquired and disposed of, including any conditions or restrictions upon the use of
such property_
(Emphasis supplied).
The RFP does not, despite the reference to a non-existent "Exhibit A" in the BPMT's
January 19, 2019 transmittal letter, attach a legal description of the Property that is supposedly
going to be leased. Instead, it merely references "801 Biscayne Blvd" and "Folio No. 01-0100-
000-120. According to the Miami -Dade County Property Records, 801 Biscayne Blvd includes
only the FEC Slip. The RFP nowhere provides any legal description of any kind encompassing
any portion of Maurice A. Ferre Park, even though the "property size" is described as:
"Approximately 9.91 acres, including upland and submerged land property." Of that total, "[t]he
submerged land is estimated to be approximately 7.75 acres." RFP, page 4. Yet bidders have
no way of knowing what actual land they would control for development if they are successful.
The RFP thus fails to adhere to the Code requirement in Section 18-177(b) to publish "all
information necessary to describe the particular property interest ... to be disposed o£" The
RFP is therefore void. See Flagship Manor, LLC' v. Florida Housing Finance Corp., 199 So.3d
1090 (Fla. VI DCA 2016)(where RFA — request for applications for public housing financing --
required applicants to demonstrate that they controlled the property site intended to be
developed, the applicant's omission of a legal description in its submission rendered its bid
invalid). See also Wester v. Belote, 103 Fla. 976, 138 So. 721 (1931).
D. The RFP Violates County Law By Inviting Bids for a Commercial Marina In the
FEC Slin which Countv Law Limits to Boats Longer Than 100 Feet.
The RFP also violates Miami Dade County's Protection Guidelines for Essential Manatee
Habitat. Under those guidelines, the FEC Slip is restricted in usage as "Freight Terminals/Large
Vessel (more than 100") Berthing." Despite the 100 foot minimum boat size allowed in the FEC
Slip, the RFP, clearly oblivious to the County requirement, purports to offer an invitation to the
public to propose a commercial marina that would "[m]aximize boating access and transient
dockage participation," "maximize the number of wet slips on site considering market demand.
RFP requirements, and revenue generation, "[h]ave new docks include modern dock design,
with sufficient voltage, metered water, and other utility requirements to provide for the operation
of most modem boats commensurate with the slip size." RFP, at page 19.
Submitted into the public
record for item(s) DI.3
on 04/11/2019 City Clerk
11
DUBBIN & KRAVETZ, LLP
1200 ANASTASIA AVENUE • SUITE 300 • CORAL GABLES, FLORIDA 33134 • TELEPHONE (305) 371-4700
Conclusion. For all of the above reasons, the Friends of Maurice A. Ferre Park, LLC,
urge this Commission to support and enact the scheduled Resolution (File No. 5733, Agenda
Item RE -6) to preclude future commercial development in MAF Park and the FEC Slip. In
addition, in an abundance of caution, and in the spirit of upholding the City Charter, City Code,
and the Commission's responsibility as steward of the public interest, my clients urge the
Commission to take action to reject, nullify, and void the BPMT's "FEC Slip RFP" at the April
11 meeting as well.
Respectfully,
Samuel J. Dubb , P.A.
Submitted into the public
record for item(s) DI.3
12 on 04/11/2019 City Clerk
DUBBIN & KRAVETZ, LLP
1200 ANASTASIA AVENUE - SUITE 300 - CORAL GABLES, FLORIDA 33134 - TELEPHONE (305) 371-4700