2012-28046 Reso RESOLUTION NO i 2012 -28046
l �
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF
MIAMI BEACH, FLORIDA, ACCEPTING THE RECOMMENDATION OF THE
FINANCE AND CITYWIDE PROJECTS COMMITTEE ( FCWPC) MEETING,
PERTAINING TO A CURE OF THE SUNSHINE LAW ISSUE RAISED WITH
RESPECT TO REQUEST FOR PROPOSALS NO. 14 -11/12 (THE LINCOLN
ROAD RFP), AND ALSO RECOMMENDING THAT A CURE BE
UNDERTAKEN, AS A PRE- EMPTIVE MEASURE, WITH RESPECT TO
REQUEST FOR QUALIFICATIONS NO. 22 -11/12 (THE CONVENTION
CENTER RFQ); AUTHORIZING THE CITY ADMINISTRATION. AND CITY
ATTORNEY'S OFFICE TO PROCEED WITH THE FOLLOWING CURE
OPTIONS (AS PRESENTED TO THE FCWPC BY THE CITY ATTORNEY AT
THE COMMITTEE'S OCTOBER 3, 2012 MEETING): 1.) APPROVING CURE
"OPTION 2" FOR THE LINCOLN ROAD RFP, AND AUTHORIZING THE CITY
MANAGER TO CONVENE A NEW EVALUATION COMMITTEE AND HAVE
SUCH NEW COMMITTEE MEET IN A DULY NOTICED PUBLIC MEETING TO
(A) VIEW THE VIDEOTAPE OF THE RFP PROPOSERS' ORIGINAL ORAL
PRESENTATIONS, FOLLOWED BY (B) QUESTION AND ANSWER
SESSIONS WITH THE INDIVIDUAL PROPOSERS, AND ENDING WITH (C)
THE COMMITTEE'S DELIBERATIONS, RANKINGS AND FINAL
RECOMMENDATION(S) TO THE CITY MANAGER (PROVIDED THAT
PORTION (B) OF THE MEETING MAY BE CLOSED TO THE PUBLIC, AS
PERMITTED PURSUANT TO SECTION 286.0113(2), FLORIDA STATUTES,
BUT SHALL BE RECORDED BY THE CITY); AND 2.) APPROVING CURE
"OPTION 1" FOR THE CONVENTION CENTER RFQ AND AUTHORIZING
THE CITY MANAGER TO RE- CONVENE THE CURRENT RFQ EVALUATION
COMMITTEE AND HAVE THE COMMITTEE MEET IN A DULY NOTICED
PUBLIC MEETING TO (A) VIEW THE VIDEOTAPE OF THE RFQ
PROPOSERS' ORIGINAL PRESENTATIONS, FOLLOWED BY (B) QUESTION
AND ANSWER SESSIONS WITH THE INDIVIDUAL PROPOSERS, AND
ENDING WITH (C) THE COMMITTEE'S DELIBERATIONS, RANKINGS AND
FINAL RECOMMENDATION(S) TO THE CITY MANAGER (PROVIDED THAT
PORTION (B) OF THE MEETING MAY BE CLOSED TO THE PUBLIC, AS
PERMITTED PURSUANT TO SECTION 286.0113(2), FLORIDA. STATUTES,
BUT SHALL BE RECORDED BY THE CITY).
WHEREAS, Request for Proposals No. 14 -11/12 for a Public- Private Development in
Miami Beach on North Lincoln Lane, between Alton Road and Meridian Avenue, Including City-
owned Parking Lot #25 on 17 Street and Lenox Avenue, Parking Lot #26 on North Lincoln
Lane, between Lenox Avenue and Michigan Avenue, and Parking Lot #27 on North Lincoln
Lane, between Jefferson Avenue and Meridian Avenue (the "Lincoln Road RFP" or the "RFP "),
was issued on January 17, 2012, with an opening date for proposals on March 23, 2012; and
WHEREAS, Request for Qualifications No. 22 -11/12 for the Development of the Miami
Beach Convention Center District (the "Convention Center RFQ" or the "RFO ") was issued on
February 7, 2012, with an opening date of April 23, 2012; and
WHEREAS, as provided in the Lincoln Road RFP, an ,Evaluation Committee
(Committee) was appointed by the City Manager and met to evaluate the four (4) proposals
(received in response to the RFP) on May 11, 2012, at which time the Committee
heard presentation from the proposers; conducted a question and answer session with each
proposer following their respective presentation; and, following deliberations and
discussion, made its recommendation(s) to the City Manager of the proposers it deemed to be
the best candidates; and
WHEREAS, similarly, a Committee appointed by the City Manager met on June 4 and 5,
2012, to hear presentations from the proposers responding to the Convention Center RFQ, at
which time that Committee heard presentations from each proposer; conducted question and
answer sessions with the proposers; and, following deliberations and discussion, recommended
a "short -list" of proposers to the City Manager; and
WHEREAS, on July 25, 2012, the City Manager received a letter from Lincoln Road
Development, LLC (LRD), one of the proposers to the Lincoln Road RFP, alleging that the RFP
Committee had failed to comply with the requirements of Florida's Government in the Sunshine
Law (the Sunshine Law); inasmuch as the Sunshine Law required that the portion of the
meeting having to do with the Committee's deliberations and discussion, and final rankings and
recommendation, be open to members of the public (and it was not); and
WHEREAS, while a similar challenge has not been raised with respect to the
Convention Center RFQ Committee, the City also adhered to the same format in that case (as
the Lincoln Road RFP Committee); therefore, the portion of the RFQ Committee meeting having
to do with the Committee's final deliberations, resulting in the short- listing of proposals, was
similarly not open to the public; and
WHEREAS, notwithstanding the preceding, the City recorded, and videotaped, the entire
proceedings of both the Lincoln Road RFP Committee meeting and the Convention Center RFQ
Committee meeting; the audio and video recordings of the complete meetings were available to
members of the public for inspection and copying shortly following each Committee meeting
and, additionally, were posted by the City on the City's website, so that any member of the
public could view them at any time, without charge; and
WHEREAS, while the City did not advertise the Lincoln Road RFP or the Convention
Center'RFQ Committee meetings as public meetings, at no time was it the City's intent it keep
either proceeding "secret" and /or out of the public eye, as evidenced by the City's (i) recording
and (ii) videotaping of the entire proceedings, and its (iii) subsequent posting of the proceedings
on the City's website (i.e. In effect, the City actions described in subsections (ii) and (iii), went
beyond what is required under the Sunshine Law.); and
WHEREAS, the City reasonably believed that it was not required to advertise the
Committee meetings as public meetings due to a recently enacted exemption to the Sunshine
Law (the 2011 exemption), which took effect on June 2, 2011 and provided, among other things,
that "Any portion of a public meeting,.. at which a vendor makes an oral presentation as part of
a competitive solicitation, or at which a vendor answers questions as part of a competitive
solicitation... ", is exempt from the public meeting requirements of the Sunshine Law, provided
that a complete recording is made of any portion of an exempt meeting and that no portion of
the meeting is held off the record (See Section 286.0113(2)(b) and (c) Florida Statutes); and
WHEREAS, since the 2011 exemption is still relatively new law, there is no case law
interpreting it and, similarly, the legislative history behind the enactment of the law provides very
little guidance other than to state that the exemption was created to remove a potential
competitive advantage that might be gained by bidders or proposers in a public bidding process,
where (prior to the enactment of the exemption) the Sunshine Law open meeting requirement
gave them the right to sit through their competitor's presentation at an evaluation committee
meeting, thereby potentially allowing them to gain information which they might use to their
advantage (in, for example, their own presentation to the committee); and
WHEREAS, while the City maintains that its interpretation of the 2011 exemption was
proper, and that it did not violate the Sunshine Law, in light of the potential legal challenge by
LRD; in order to avoid protracted and costly litigation in the defense of such challenge; and in
order for the City to be able to proceed with the Lincoln Road RFP and the Convention Center
RFQ (should a similar issue be raised there) without further delay, it would be in the best
interest of the City to "cure" the alleged Sunshine Law issue (both as raised by LRD in the
Lincoln Road RFP, and as a pre - emptive measure in the Convention Center RFQ); and
WHEREAS, at its regular meeting on October 3 2012, the _Finance and Citywide
Projects Committee (FCWPC) held a public discussion for the purpose of updating the public,
as well as the Committee members and the other City Commissioners present at the meeting,
on the status of, and other issues pertaining to, the Lincoln Road RFP and Convention Center
RFQ; the meeting included a presentation by the City Attorney's Office regarding the
aforestated Sunshine Law issue, as well as options to cure same (See City Attorney's 10/3/12
memorandum to the FCWPC, which is attached and incorporated as Exhibit "A" to this
Resolution); and
WHEREAS, following the City Attorney's presentation; a status report from the City
Manager and City Attorney as to the RFP and RFQ and related issues; public comment; and
extensive discussion by the FCWPC and other City Commissioners present at the meeting, the
FCWPC determined that, in order to continue with the Lincoln Road RFP and, in particular, the
Convention Center RFQ solicitation processes in a timely manner, it would be in the best
interest of the City to proceed to cure (and thereby resolve) the alleged Sunshine Law issue;
and
WHEREAS, accordingly, the FCWPC recommended that the City Commission
authorize the City Manager and City Attorney's Office to proceed with the cure options, as
identified in the City Attorney's October 3, 2012 memorandum to the FCWPC, and
as hereinafter set forth in this Resolution; and
WHEREAS, having considered same at its October 24, 2012 meeting, the City
Commission hereby concurs with and adopts the FCWPC's recommendation, and authorizes
the City Manager and City Attorney's Office to proceed with the recommended cure options, as
hereinafter set forth in this Resolution.
NOW THEREFORE, BE IT RESOLVED BY THE MAYOR AND THE CITY
COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA that the Mayor and City
Commission hereby accept the recommendation of the Finance and Citywide Projects
Committee (FCWPC), and authorize the City Administration and City Attorney's Office to
proceed to cure the Sunshine Law issue raised with respect to Request for Proposals No. 14-
11/12 (the Lincoln Road RFP), and to also proceed with a cure, as a pre - emptive measure, for
Request for Qualifications No. 22 -11/12 (the Convention Center RFQ) as follows: 1.) Approving
cure "Option 2" for the Lincoln Road RFP, and authorizing the City Manager to convene a new
Evaluation Committee and have such new Committee meet in a duly noticed public meeting to
(a)' view the videotape of the RFP proposers' original oral presentations, followed by (b)
question and answer sessions with the individual proposers, and ending with (c) the
Committee's deliberations, rankings and final recommendation (s) to the City
Manager (provided that portion (b) of the meeting may be closed to the public, as permitted
pursuant to Section 286.0113(2), Florida Statutes, but shall be recorded by the City); and 2.)
approving cure "Option 1" for the Convention Center RFQ and authorizing the City Manager to
re- convene the current RFQ Evaluation Committee and have the Committee meet in a duly
noticed public meeting to (a) view the videotape of the RFQ proposers' original presentations,
followed by (b) question and answer sessions with the individual proposers, and ending with (c)
the Committee's deliberations, rankings and final recommendation(s) to the City Manager
(provided that portion (b) of the meeting may be closed to the public, as permitted pursuant to
Section 286.0113(2), Florida Statutes, but shall be recorded by the City).
PASSED AND ADOPTED this day of G�Od , 2012.
ATTEST:
i E3
RAF EL GRANADO, CITY C e R. Exposito_
: is Mayor )
INCORP ORATED.''
H 26\
FATTMAGLIMRESOS -ORD \Finance and Citywide Projects Recommendation (Conv. Center RFQ and Lincoln Road RFP).docx
APPROVED AS TO
FORM & LANGUAGE
& 4UTION _ ' EC
f i ate r
m ► MIAM
OFFICE OF THE CITY ATTORNEY
JOSE SMITH, CITY ATTORNEY COMMISSION MEMORANDUM
To: Mayor Matti Herrera Bow Membe s f the City Commission
FROM: Jose Smith, City Att -rne
DATE: October 24, 2012
SUBJECT: A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE
CITY OF MIAMI BEACH, FLORIDA, ACCEPTING THE
RECOMMENDATION OF THE FINANCE AND CITYWIDE PROJECTS
COMMITTEE (FCWPC) MEETING, PERTAINING TO A CURE OF THE
SUNSHINE LAW ISSUE RAISED WITH RESPECT TO REQUEST FOR
PROPOSALS NO. 14 -11/12 (THE LINCOLN ROAD RFP), AND ALSO
RECOMMENDING THAT A CURE BE UNDERTAKEN, AS A PRE-
EMPTIVE MEASURE, WITH RESPECT TO - REQUEST FOR
i QUALIFICATIONS NO. 22 -11/12 (THE CONVENTION CENTER RFQ);
AUTHORIZING THE CITY ADMINISTRATION AND CITY ATTORNEY'S
OFFICE TO PROCEED WITH THE FOLLOWING CURE OPTIONS (AS
PRESENTED TO THE FCWPC BY THE CITY ATTORNEY AT THE
COMMITTEE'S OCTOBER 3, 2012 MEETING): 1.) APPROVING CURE
"OPTION 2" FOR THE LINCOLN ROAD RFP, AND AUTHORIZING
THE CITY MANAGER TO CONVENE A NEW EVALUATION
COMMITTEE AND HAVE SUCH NEW COMMITTEE MEET IN A DULY
NOTICED PUBLIC MEETING TO (A) VIEW THE VIDEOTAPE OF THE
RFP PROPOSERS' ORIGINAL ORAL PRESENTATIONS, FOLLOWED
BY (B) QUESTION AND ANSWER SESSIONS WITH THE INDIVIDUAL
PROPOSERS, AND ENDING WITH (C) THE COMMITTEE'S
DELIBERATIONS, RANKINGS AND FINAL RECOMMENDATION(S)
TO THE CITY MANAGER (PROVIDED THAT PORTION (B) OF THE
MEETING MAY BE CLOSED TO THE PUBLIC, AS PERMITTED
PURSUANT TO SECTION 286.0113(2), FLORIDA STATUTES, BUT
SHALL BE RECORDED BY THE CITY); AND 2.) APPROVING CURE
"OPTION 1" FOR THE CONVENTION CENTER RFQ AND
AUTHORIZING THE CITY MANAGER TO RE- CONVENE THE
CURRENT RFQ EVALUATION COMMITTEE AND HAVE THE
COMMITTEE MEET IN A DULY NOTICED PUBLIC MEETING TO (A)
VIEW THE VIDEOTAPE OF THE RFQ PROPOSERS' ORIGINAL
PRESENTATIONS, FOLLOWED BY (B) QUESTION AND ANSWER
SESSIONS WITH THE INDIVIDUAL PROPOSERS, AND ENDING WITH
(C) THE COMMITTEE'S DELIBERATIONS, RANKINGS AND FINAL
RECOMMENDATION(S) TO THE CITY MANAGER (PROVIDED THAT
PORTION (B) OF THE MEETING MAY BE CLOSED TO THE PUBLIC,
AS PERMITTED PURSUANT TO SECTION 286.0113(2), FLORIDA
Agenda Item
Date 0-a "
Finance and Citywide Projects Committee Recommendation
Page 2
October 24, 2012
STATUTES, BUT SHALL BE RECORDED BY THE CITY).
At the October 3, 2012 Finance and Citywide Projects Committee (FCWPC) Meeting, and as
part of an overall presentation to the Committee members, the other City Commissioners
present, and the general public, regarding the status of the Lincoln Road RFP and the
Convention Center RFQ, the City Attorney's Office advised the Committee of a potential
challenge to the Lincoln Road RFP Evaluation Committee process, resulting from an allegation
made by one of the proposers to the RFP, that the portion of the Evaluation Committee Meeting
having to do with the Committee's deliberations, ranking of proposals, and final
recommendations to the City Manager, should have been open to the public and, as it was not,
the City violated the Sunshine Law. The City Attorney's Office also advised that, although a
similar challenge had not been raised as to the Convention Center RFQ Evaluation Committee,
the City had followed the same process for that Committee (as it did on the Lincoln Road RFP)
and, therefore, the RFQ Evaluation Committee's deliberations and short- listing of proposers was
similarly not open to the public.
The substance of the City Attorney's presentation to the FCWPC is set forth' in the October 3,
2012 memorandum to the FCWPC, which is attached and incorporated as Exhibit "A" hereto. In
the attached memorandum, and in the City Attorney's Office's presentation to the FCWPC, the
Office recommends that, although the City's interpretation of the Sunshine Law (and, in
particular, its interpretation of a newly created 2011 exemption to the Sunshine Law meeting
requirements, as pertaining to public competitive bidding processes, including the instant RFP
and RFQ Evaluation Committees) was reasonable, and therefore not violative of the Sunshine
Law, it might still be in the best interest of the City to "cure" the alleged violation (both as raised
by the proposer to the Lincoln Road RFP, and as a pre - emptive measure in the Convention
Center RFQ), rather than to engage in protracted and costly litigation defending the City's
actions.
Accordingly, and-in addition to the "litigation option" (which the Office does not recommend), the
City Attorney's 10/3/12 memorandum outlines three administrative "cure" options (See
administrative cure Options 1 -3, on pp. 5 -6 of the City Attorney's 10/3/13 memorandum to the
FCWPC), all of which are consistent with the established legal precedent in Florida that a defect
arising from a Sunshine Law violation may be cured if the matter discussed "out of the
sunshine" is reconsidered in an open meeting, and where such remedial action involves more
than a "merely perfunctory ratification" or "ceremonial acceptance" (of the action taken out of the
sunshine), and involves a genuine reconsideration of the matters in a public meeting.
The City Attorney's Office further noted that, in considering administrative cure Options 1,2,or 3,
the FCWPC need not recommend the same option for both the RFP and the RFQ but, rather,
could recommend the option that it deemed appropriate for each of these competitive selection
processes (given the specific expectations and priorities of the respective process). There was,
in fact, extensive discussion (and public comment) at the FCWPC meeting that the Convention
Center RFQ needed to proceed in an expeditious manner; particularly in light of the City
Commission's prior policy discussions affirming the need to maintain the Miami Beach
Convention Center facility competitive with other facilities in Florida (as well as putting it on par
with other world class convention facilitates around the country); and, additionally, in light of the
ongoing efforts to develop convention facilities in Miami (which could compete with and
potentially take away business from the MBCC).
We are committed to providing excellent public service and safety to all who live, work, and play in our vibrant, tropical, historic community,
Finance and Citywide Projects Committee Recommendation
Page 3
October 24, 2012
The attached Resolution has been prepared by the City Attorney's Office and is presented for
the City Commission's consideration. It reflects the recommendations of the FCWPC with
respect to the administrative cure options recommended, respectively, for the Lincoln Road RFP
(Option 2), and the Convention Center RFQ (Option 1), and further authorizes the City Manager
and City Attorney's Office to proceed with implementing the selected options.
F:WTTO\AGUR \RESOS -ORD \MEMOS \Finance and Citywide Committee Recommendation (Conv. Cntr. and Lincoln Road) Memo
(10- 24- 12).doc
We are committed to providing excellent public service and safety to oil who live, work, and play in our vibrant, tropical, historic community.
I Exhibit "A"
MIAMI BEACH
City of Miami Beach, 1700 Convention Center Drive, Miami Beach, Florida 33139, www.miamibeachfl.gov
COMMITTEE MEMORANDUM
TO: Finance and Citywide Projects Committee
FROM: Jose Smith, City Attorney
Raul J. Aguila, Chief Deputy City Attorney
DATE: October 3, 2012
SUBJECT: Public Presentation Regarding Status of, and Other Issues Pertaining to, the Lincoln
Road RFP and the Convention Center RFQ
INTRODUCTION
In conjunction with the above referenced public presentation at the October 3, 2012 Finance and
Citywide Projects Committee ( "FCWP "), regarding the status of, and other issues pertaining to,
pending:
1. Request for Proposals No. 14 -11/12 for a Public- Private
Development in Miami Beach on North Lincoln Lane,
between Alton Road and Meridian Avenue, including City -
owned Parking Lot #25 on 17 Street and Lenox Avenue,
Parking Lot #26 on North Lincoln Lane, between Lenox
Avenue and Michigan Avenue, and Parking Lot # 27 on North
Lincoln Lane, between Jefferson Avenue and Meridian
Avenue (the "Lincoln Road RFP" or the "RFP "); and
2. Request for Qualifications No. 22-11/12 for the Development
of the Miami Beach Convention Center District (the
"Convention Center RFQ" or the "RFQ ");
the City Attorney's Office has prepared this memorandum addressing a Sunshine Law issue raised
by one of the proposers to the Lincoln Road RFP, alleging that the RFP Evaluation Committee's
recommendation to the City Manager should be voided, since the Committee's deliberations were
not open to the public. Because a similar issue may be raised on the Convention Center RFQ, if the
FCWP Committee recommends that the City "cure" the alleged violation raised in the Lincoln Road
RFP, it should also recommend a cure option, as a pre - emptive measure.
BACKGROUND
The Lincoln Road RFP was issued on January 17, 2012, with an opening date for proposals on
March 23, 2012. The City received four (4) proposals in response to the RFP, from the following
entities: 1.) Lanestar Partners, LLC; 2.) Lincoln Road Development, LLC; 3.) Lincoln Square, LLC;
and 4.) Team Nolli.
Finance and Citywide Projects Committee
October 3, 2012
Update on Status of Convention Center and Lincoln Road
Page 2 of 6
Section V of the RFP (entitled, "Evaluation /Selection Process ") provides that following receipt of
proposals, "An Evaluation Committee, appointed by the City Manager, shall meet to evaluate each
Proposal in accordance with the requirements set forth in this RFP. If further information is desired,
Proposers may be requested to make additional written submissions or oral presentations to the
Evaluation Committee." (See RFP, subsection V (4) at p.18, for criteria). The Evaluation Committee
convened on May 11, 2012, to hear presentations from the four (4) RFP proposers; conduct a
question and answer session following each presentation; and evaluate the proposals in
accordance with the RFP evaluation criteria (see RFP, subsection V (5) at p. 18); following which,
the Committee made its recommendation to the City Manager of the proposer or proposers it
deemed to be the best candidate(s).
The Convention Center RFQ was issued on February 7, 2012, with an opening date of April 23,
2012. The City received eight (8) proposals in response to the RFQ, from the following entities: 1.)
Flagstone Property Group; 2.) Portman CMC; 3.) SoBeCa, LLC; 4.) South Beach ACE; 5.) Turnberry
Village, LLC; 6.) CConnectMB; 7.) Rida Development Corporation; and 8.) Matthews Holding
Southwest (NOTE: #8 subsequently withdrew its proposal). Following receipt of proposals, an
Evaluation Committee appointed by the City Manager convened over the course of two days, on
June 4 and 5, 2012, to .hear presentations from the seven (7) remaining proposers; conduct
question and answer sessions; following which, the Committee made its recommendation to the City
Manager of the "shortlisted" proposers, in accordance with the Evaluation Criteria set forth in the
RFQ (see RFQ, subsection II (A) (6) at p. 15.)
The Lincoln Road RFP Committee's deliberations were not open to the public (nor was the meeting
noticed as a public meeting). Likewise (and consistent with what was done for the RFP), the
Convention Center Evaluation Committee deliberations were also not open to the public. In both
cases, however, the City tape recorded and videotaped the entire meeting proceedings, and the
audio and video recordings were available to the public immediately following the meeting(s).
Further, the videotaped meetings were posted on the City's website, so that any member of the
public wishing to view them could do so, free of charge.
THE 2011 EXEMPTION TO THE SUNSHINE LAW
In 2011, the Florida Legislature passed House Bill 7223, which took effect on June 2, 2011, and
amended Section 286.0113(2), Florida Statutes, to provide the following. exemption to the public
meeting requirement under the Sunshine Law (hereinafter referred to as the "2011 exemption "):
Any portion of a public meeting at which a negotiation with a vendor is conducted
pursuant to a competitive solicitation, at which a vendor makes an oral presentation
as part of a competitive solicitation, or at which a vendor answers questions as part
of a competitive solicitation is exempt from s. 286.011 and s. 24(b), Art. I of the State
Constitution. (See F.S. 286.0113(2)(b))
Section 286.0113(2) also requires that:
A complete recording shall be made of any portion of an exempt meeting. No
portion of the meeting may be held off the record. (See F.S. 286.0113(2)(c)).
Finance and Citywide Projects Committee
October 3, 2012
Update on Status of Convention Center and Lincoln Road
Page 3 of 6
Pre – 2011 Exemption
Prior to the enactment of the 2011 exemption, the Sunshine Law required that the entire City
evaluation /selection committee meetings be open to the public and noticed as public meetings
(which the City did, by noticing them along with other City meetings in the Weekly Meeting
Notices). Evaluation /selection committee meetings are typically divided into three (3) components:
1.) introductory remarks by City staff, which provide committee members with a brief overview of the
subject matter and explanation of applicable laws, including the Sunshine Law and the City's Cone
of Silence Ordinance; 2.) oral presentations by the individual proposers, which also include question
and answer sessions; and 3.) committee deliberations and scoring /ranking of proposals in
accordance with the evaluation criteria specified in the solicitation document, culminating with the
committee's final vote(s) and recommendation(s) to the City Manager. The Committee's
recommendation is advisory to the City Manager, who in turn makes his /her independent
recommendation to the City Commission. Both the Committee's recommendation to the Manager
and the Manager's recommendation to the Commission are advisory, and thus not binding on either
party.
Even (pre - 2011 exemption) when the Sunshine Law required that the entirety of
evaluation /selection committee meetings be open to the public, at no time has the City taken the
position, nor does the Sunshine Law require, that members of the public have a right to participate
and /or speak at these meetings. The Sunshine Law does not mandate that boards allow the public
to speak at open meetings. See, Wood v. Marston, 442 So. 2d 934 [Fla. 1983], where the Florida
Supreme Court held that the Sunshine Law does not give the public the right to speak at a meeting
of a committee appointed by a university president to recommend candidates for a university
president). Therefore, even when all portions of evaluation /selection committee meetings were
open to the public, the public could only watch and listen to the proceedings.
The City's Interpretation /Application of the 2011 Exemption
Since its enactment, public bodies throughout the State have taken widely different approaches on
how to interpret the 2011 exemption. Because the exemption is still new - -it took effect on June 2,
2011 —there is no case law interpreting it. Similarly, the legislative history provides little guidance,
other than to state that the exemption was intended to remove the competitive advantage that might
be gained by bidders or proposers, where the Sunshine Law gave them the right to sit through their
competitor's presentation, and potentially gain information that they might use to their advantage.
Therefore, given the absence of any judicial and (very little) legislative history forthe 2011 exemption
and, further, given that:
• existing law does not give the public the absolute right to participate in or
interfere with an evaluation /selection committee's proceedings;
• the City keeps tape recorded minutes of the entire proceedings (and, in the
case of the RFP and RFQ, the proceedings were not only tape recorded, but
videotaped as well); and
• the taped proceedings (and, in case of the RFP and the RFQ, the videotapes
too) are public record, prior to the City Manager making his /her written
recommendation (on the proposal) to the City Commission; and
Finance and Citywide Projects Committee
October 3, 2012
Update on Status of Convention Center and Lincoln Road
Page 4 of 6
• the intent of the exemption is to not give bidders /proposers an opportunity to
use the Sunshine Law to gain an unfair advantage or competitive edge;
it seemed reasonable that the City interpreted the 2011 exemption to allow it the discretion to not
open committee deliberations to the public (thereby, preserving the integrity of the bidding process,
without running afoul of the Sunshine Law).
SUNSHINE LAW CURES /OPTIONS
While the City stands by its interpretation /application of the 2011 exemption, and does not concede
that - -by not having the Evaluation Committee deliberations for the Lincoln Road RFP (and the
Convention Center RFQ) open to the public - -it violated the Sunshine Law, the potential legal
challenge necessitates that the issue be addressed; particularly, if the FCWP Committee wish to
proceed with the RFP (and /or the RFQ) in accordance with the current proposed timelines.
Therefore, an initial determination needs to be made as to whether it makes practical sense for the
City to defend the proposed challenge in court or, in the alternative, whether the City should
voluntarily elect to "cure" the alleged violation, by reconsidering the matter in an open public
meeting.
Litigation
In the event that the proposer to the Lincoln Road RFP were to sue the City (alleging that the City
violated the Sunshine Law), the complaint could be for injunctive and /or declaratory relief. For
example, in the case of a complaint for injunctive relief, the plaintiff could request that the City be
enjoined from making an award and /or entering into a contract pursuant to the RFP "until after such
time as the ranking of the proposals could be accomplished in compliance with the Sunshine Law."
See, Leach -Wells v. City of Bradenton, 734 So. 2d 1168 (Fla. 2d DCA 1999). Attorney's fees can
be assessed against a party who has violated the Sunshine Law. Additionally, pending the outcome
of such litigation, it would not be advisable for the City to proceed to make an award under the RFP,
as'any action held to have been taken in violation of the Sunshine Law is void ab initio. See, Silver
Express Company v. District Board of Lower Tribunal Trustees, 691 So. 2d 1099 (Fla. 3 rd DCA
1997), where a selection committee's rankings resulting from a meeting held in violation of the
Sunshine Law were found to be void ab initio and the agency was enjoined from entering into a
contract based on such rankings.
Finally, as already stated, there is no legal precedent (and very little legislative history) interpreting
the 2011 exemption, so the parties would be litigating in an area of new law. Litigation at the trial
court level would probably take from 6 — 8 months, during which time the City would not be able to
proceed with an award under the RFP (thereby delaying that process and the proposed project).
Were the City to lose the case, one of the remedies likely to be imposed by the court would be to
"cure" the violation, pursuant to one of the administrative "cure options" set forth herein. In addition,
the City would be responsible for plaintiff's attorney's fees. If the City prevailed in the lawsuit, it
would be entitled to its attorney's fees; however, the RFP process and the project would have been
delayed, and any incidental and /or consequential damages attributable to same would not be
recoverable. Therefore, if the FCWP Committee's recommendation is to continue to proceed with
and expedite the current RFP (and /or the RFQ) process in a timely manner, litigation would not be
an appropriate course of action. By the same token, if the FCWP Committee is now of a mind to
reject all proposals received in response to the RFP (and /or the RFQ), and either start over by
issuing a new competitive solicitation or not proceed with the proposed development altogether,
there would be no need to litigate (and /or, for that matter cure) this matter.
Finance and Citywide Projects Committee
October 3, 2012
Update on Status of Convention Center and Lincoln Road
Page 5 of 6
Administrative "Cure" Options
As an alternative to protracted, uncertain, and perhaps costly litigation and, assuming that the
FCWP Committee expresses a desire to continue with the current RFP (and /or RFQ) process, one
of the following administrative options should be considered, as a means of administratively "curing"
the alleged violation (and putting to rest a proposed Sunshine Law challenge). The options
presented below are consistent with the general principle established by the Florida Supreme Court
in Tolar v. School Board of Liberty County, 398 So. 2d 427 (Fla. 1981), that Sunshine Law violations
may be cured if the matter discussed "out of the sunshine" is reconsidered in an open meeting. The
Tolar decision further noted, however, that the subsequent public action (ratifying the action taken
out of the sunshine) must involve more than "merely a perfunctory ratification" or
"ceremonial acceptance" of the action taken out of the sunshine. (ld. at 429). In considering the
options below, the FWCP Committee need not recommend the same option for RFP and the RFQ,
but should instead select the option it deems appropriate, given the specific needs, priorities, and
expectations for each of those solicitations. ,
Option 1. Reconvene the existing Evaluation Committee in the sunshine, keeping only
the proposers' presentations (and subsequent Q & A sessions) closed to the public (i.e. the
deliberations would be open to the public). Since some time has passed since the original
presentations were made, in addition to having the Evaluation Committee review the original
written proposals again, the FWCP Committee should also provide direction as to whether
to: (i) have the original proposers "re- present" to the Committee; or (ii) have the Committee
listen to the videotaped presentations from the prior Committee meeting (in which case,
proposers or a representative of their team should be given the option to be present, to
answer any questions from the Committee after listening to their videotaped presentation (s)).
Option 2. Reconvene a new Evaluation Committee and, as in Option 1 above, have the
proposers either re- present to the Committee, or have the Committee listen to the original
videotaped presentations.
Option 3. Have the Mayor and City Commission cure the action(s) of the Evaluation
Committee by reconsidering the matter at a City Commission Meeting. The City
Commission may elect to hear presentations from the proposers, as well as hear from
members of the public wishing to speak at the meeting. In keeping with the holding in the
Tolar case, the Commission's curative meeting(s) must not be purely ceremonial (i.e. the
City Commission must do more than simply "rubberstamp" the decisions of the Evaluation
Committees). Additionally, since the City Manager's recommendation (on the RFP and /or
RFQ) to the City Commission is independent of the Evaluation Committee's
recommendation to the Manager, the Manager could still proceed to make his /her written
recommendation in accordance with the evaluation /selection process.
It should be noted that if the FCWP Committee recommends having the proposers "re- present"
(either before the same or a new Evaluation Committee, or before the City Commission), the City
Administration and City Attorney will be mindful that such presentations remain consistent with the
respective proposers' written responses to the RFP, and any deviations therefrom will be brought to
the attention of the Committee (to advise that they cannot be considered).
Finance and Citywide Projects Committee
October 3, 2012
Update on Status of Convention Center and Lincoln Road
Page 6 of 6
If the FCWP Committee recommends convening a new Committee -- for either or both the RFP and
RFQ -- the City Manager's Office has compiled a list of potential members (See Exhibit A -1, for
potential members for Lincoln Road RFP Committee, and Exhibit A -2 for potential members to
Convention Center RFQ Committee).
CONCLUSION /RECOMMENDATION
While the aforestated options present a variety of curative measures, whatever option or options the
FCWP Committee recommends any such action(s) must ultimately accomplish two (2) fundamental
goals so that any subsequent City Commission action with respect to continuing with the current
Lincoln Road RFP (and /or Convention Center RFQ) process may proceed without being voided (as
a result of a defect arising from a Sunshine Law violation) and /or potentially challenged under
applicable procurement law: 1.) The remedial action taken must be more than ceremonial, and
must involve a genuine reconsideration of the matters /actions in a public meeting; and 2.) whatever
the cure, the City elects to proceed with, the proposers must be held to, and evaluated in
accordance with, their respective original written submissions in response to the RFP and /or RFQ
(i.e. if proposers are afforded the opportunity to re- present, it cannot result in their being allowed a
"second bite of the apple. ")
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