C6C-Report- Finance And Citywide Projects Committee Meeting Of October 3 2012Ml
of Miami Beach, 1700 Converdor Cede• Drive, Miomi beech, Floridc 33139,
COMMITTEE MEMORANDUM
Mayor Matti Bower
!nterlm City Manager Kathie
3, 2012
1. Public presentation regarding of, and other issues pertaining the
Lincoln Road Request for Proposals (the "Lincoln RFP" or the
"RFP"), and Center Request (the
aconvention Center "RFQ".
City Attorney's Office's presentation regarding the potential
issue, an overview by Interim City Manager as to the lincoln
by Committee,
alleged law
RFP, recommending
to
{i) convening a
new committee, (ii) having committee the proposers' original
videotaped presentations (from the 5111/12 evaluation committee meeting), and
in the
recommended "Option 1 "; which
consists of re-convening original evaluation committee, (ii) have it
listen to the proposers' presentations (from from 06/4112 and 06/5/12
evaluation deliberate in In both L;ct:::~ot:;::~~,
proposers should be given the to present answer any
the respective committee(s), after listening the videotaped presentations.
RFP
Chairperson Deede Weithom stating she'd had a
(the Lincoln RFP and Convention RFQ),
votes. Commissioner a motion, was
by Commissioner Michael Gongora, to accept Commissioner
if permits, they wm take the public within the
will for comments outside
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individual will
Agenda Item_:;;;...._-:::-:---
0 ate ____,_:::::......,;;.__,_'-=
given two minutes to speak. Commissioner Weithorn then turned the discussion over
to Chief Deputy City Attorney Raul Aguila.
City Attorney Aguila began the meeting by advising the public present that the RFP and
RFQ are still ongoing, and therefore still subject to the City's Cone of Silence. This
means that the Mayor and City Commissioners can't have one on one communications
with City staff; or proposers and their teams; or evaluation committee members. He
went on to state that the Cone of Silence exempts public presentations at certain duly
noticed meetings, and that is the reason that the FCWPC meeting has been publicly
noticed today, so that the City Commissioners present can hear the public presentation
by the Interim City Manager, have discussion among themselves, and hear public
comment. Anyone wishing to speak at today's meeting wil an opportunity to do so.
City Attorney Aguila stated he has also been
some "ground rules," in terms of the scope of
Attorney Aguila advised the Commissioners ·•-.v•. ,,u
Committee level, on whether or not to
City Attorney Aguila suggested that
Commission meeting on October 24,
Committee is before them. With respect to
he Chairperson to establish
to be discussed. City
a discussion, at this
the process, etc.
at the
rec:orrlt'Al!ftKlatlon from this
rnittooi'~1161nbers that are
in attendance, it's recommended that these coli'tl'tJ~itte~e .. ~:mil!nbers discussing
the individual findings that led decision.
ni~i!sr<=R·out issue, raised by one of the
coin Road RFP evaluation
be voided, since the
a similar issue may be
mends that the City "cure"
RFP, it also recommend a cure
CG3®enticm Center RFQ.
rms~l::{~~~a~D"lg the Lincoln Road RFP is that the
ta'='t:W1:Wil:h the committee's deliberations, ranking
of · the public. City Attorney Aguila explains
that was not noticed as a public meeting, and
thereto the City's reasonable interpretation of a recent
change in which into effect on June 2, 2011 , and created an
exemption and selection committees in bids for RFP and RFQ
processes. Prio , 1, the City advertised evaluation committee meetings as
public meetings did, by noticing them along with other City meetings in
the Weekly Meeting They were subject to the Sunshine Law like any other
board or committee Following June 2, 2011, when the Sunshine law
exemption took effect, 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 the public meeting
requirements of the Sunshine Law. The new exemption also provided that, regardless of
the exemptions, you still have to maintain a complete recording of any portion of an
exempt meeting. No portion of the meeting may be held off the record.
City Attorney Aguila states that, to date, public bodies throughout the State have taken
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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. The law is being interpreted differently from city to city, and county to
county.
The City therefore took the position that because:
• the Sunshine Law does not give the public the aos>OJUJ[e
interfere with an evaluation/selection committee's pr,a~i~nng
• the City keeps tape recorded minutes of the
the RFP and RFQ, the proceedings were
well); and
• the taped proceedings (and, in
are public record, prior to the City
(on the proposal) to the City Commission; ·
• the intent of the exemption
Sunshine Law to gain an
The 2011 exemptio
deliberations to
without running
Sunshine Law g
Sunshine Law sntl[tH!E
violation
s (and, in the case of
~,.,,.~"~.,•~"~ but videotaped as
1nnc~QrC! an opportunity to use the
I"U:BI:Jn/Q edge;
and/or open committee
.. t .... n .. it1:l':'~"t the bidding process,
the challenge) is where the
m irreparable harm. The
inadvertent omission, a violation is a
intent. Therefore, in order to "cure" the
S ~nsht]al~llif:{~M RFP, the City Attorney's Office
Colmn'flftE~;:.:ore!Selnting the available cure options. The
cna~)ge from r. The plaintiff's complaint could take
foo::Cfec:la lief, where the plaintiff and defendant tell the court
i'AtE!roretatfa1li::flf this law, and request that the court advise as to
nt .... rnrgt.,.rt<,:i~ac t"t"'nf'lllllrrn with litigation is that the City would not be able
to move t ....... ~'16'1,.. further action on the proposals until the conclusion of
the court 1 exemption is also new law, and we cannot be certain
of the outcome. the City would have to pay the plaintiffs attorney fees
and any other legal nd in defending this issue. City Attorney Aguila states that
as an alternative to I , there are (3) three administrative options recommended to
cure the violation. The Sunshine Law also provides that violations of the Sunshine Law
may be cured if the matter discussed "out of the sunshine" is reconsidered in an open
meeting.
Following Attorney Aguila's presentation, Interim City Manager Kathie Brooks gave a
brief overview of the RFQ and RFP. She explained the City has done a number of
studies over the years starting in 2001 and updated in 2008-09 recommending a multi-
purpose space/ballroom, an adjacent hotel as well as additional indoor and outdoor
meeting space for the Convention Center. The concept was to create a new Convention
Center district that had a more walkable environment that benefited both the Convention
Center participants and residents. The City retained Arquitectonica to develop a master
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plan and on January 11, 2012, the City Commission authorized to issue the RFQ. The
primary objectives of the RFQ was to improve the Miami Beach Convention Center
(MBCC), redevelop the surrounding area and facilitate the ability of the MBCC to attract
high impact conventions, meetings and tradeshows in an increasingly completive
environment. The minimum requirements of the RFQ were Convention Center
Enhancements that focused on a Class "A" Renovation, outdoor function space and
additional meeting space. A headquarter hotel and the multi-purpose/ballroom of 60,000
net square feet. The RFQ provided for use of the 52 acre site and up to 6.2 million
square feet of total FAR. The reason the maximum was allowed was due to the first time
the architect masterplanned the site, it constrained the site and resulted in a boxy facility.
Allowing the full site provided maximum flexibility for potential greenspace and potential
financing by the developer. The proposed devel includes MBCC, Surface
Parking Lot, City Offices, 21 81 Street Community Carl Fisher Club House,
The Fillmore Miami Beach at the Jackie Gleason and the 17th Street Parking
Garage. The RFQ process is a 2 phase 1 qualifications include the
relevant experience and financial capability. and Key Letter of
Intent Terms which includes the Master ity Outreach and
Negotiations. The responsibilities of are: Create a
Master Plan that is financially feas maximizes land
value, and provide public benefits), ma of the
MBCC and all other public components ic spaces),
develop and finance any ng the H r Hotel,
work with the City to the M BCC improvements and
expansion and lease the land development. The MBCC
RFQ was issued on February 7, due April 23, 2012.
Eight packages we received ne Property Group,
Matthews Hoi st an CMC, Rida
Development aCa, Turnberry and Village,
LLC. The 5, 2012 and the RFQ
"'........... Brooks and he spoke with State
, Jose Arojo, advising them what
Attorney Jose Smith read an e-mail
.. ·.ij. stated, "I was a party to a telephone conference
::;tc:tl~:::t\t1torn~::i!Pd the City Attorney during which we discussed
an u for theNMiami Beach City Commission. We were made
aware that officials were expected to question staff regarding the
existence of 's office investigation of certain Miami Beach
construction specifically, if anything discovered in the investigation
should cause ad award bid of the redevelopment of the MBCC. We do
not generally com ongoing criminal investigations, but since it has been
publicly reported in the media that we are involved in the investigation, I feel
comfortable with the following comments. We have not come across anything in our
investigation at this time that rises to the level of criminal conduct in any transaction
we have reviewed involving the RFP or bid submission process relating to the MBCC
project. You should know that the Convention Center project is not the focus of our
inquiry." City Attorney Smith states that, in a subsequent conversation with State
Attorney Rundle, he confirmed that this statement is also applicable to the Lincoln
Lane RFP, so neither project should be in any way delayed or impaired in proceeding
with what the City Commission decides to do (with regard to the RFP or RFQ). City
Attorney Smith added that he was not allowed to comment beyond that.
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Commissioner Jorge Exposito asked the State Attorney had indicated when it would
have its final response, and City Attorney Smith stated he cannot comment on that.
Interim City Manager Brooks continued explaining that the objective of the Lincoln Lane
RFP was to transform and activate North Lincoln Lane from a service alley to a vibrant
and pedestrian friendly street and provide an additional connection between Alton Road
and Washington Avenue. There were three lots involved: P25 with 86 spaces, P26 with
1 07 spaces and P27 with 144 spaces. The evaluation criteria for the RFP was to
demonstrate success in completing developments of similar magnitude and complexity,
experience and qualifications of the Proposer's team and financial strength, as
evidenced by audited/reviewed financial statements. Proposals which maximize the
economic return to the City, best fulfill the goals and of the RFP. Also,
proposals which involve privately-owned property (ies) the publicly owned
property (ies) resulting in maximum public benefit quality and compatible with
the scale and character of the area and of project execution. In
terms of status of the Lincoln Lane RFP, the January 17, 2012 and
proposal packages were due March 23, 201 received from
Lanestar Partners, LLC, Lincoln Road Square, LLC and
Team Nelli. The evaluation committee then the RFP
developer selection subsequently was p1acec~~or
d~~~~~~~:~;~re" options alleged 1e the Committee need not
at1~~.;';R~:>ad RFP and the Convention
fi!Qj::Onii:l:·l:lrnnrnrlri!:lt!Q given the specific
The challenge raised
c:hr«trrt have been opened up
ill:i~:~er:e~nced in his research which
full review of the proposals
::o•tnnrn asked how long it had taken to do
~~~~er Brooks stated it had taken 12-16
· cure options. The options presented
ef~~t~Uslhed by the Florida Supreme Court:
evaluation committee in the sunshine,
(and subsequent Q & A sessions)
e. the iberations would be open to the public). Since
the original presentations were made, in addition to
having the original written proposals again, the FCWPC
should rection as to whether to: (i) have the original four (4)
proposers " to the Committee; or (ii) have the Committee listen to the
videotaped p from the original evaluation committee meeting (in
which case, proposers or a representative of their team should be given the
option of being 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.
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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.
City Attorney Aguila stated that what the respective evaluation committees discussed at
their original (respective) committee meetings was a of public record, recorded
both on tape and on video, and had been made avai members of the public, as
well as posted on the City's website. With rega . Convention Center RFQ, it
appears that time is of the essence to improve Center because it needs
to be done, and there are possible plans develop some kind of a
convention center facility in Miami. In Convention Center
RFQ, the most expeditious way to do this existing evaluation
committee, and have them view the (that are public
record), and have the proposers or their additional
questions from the committee (to add what change their
original written proposals), and hold the ld mean
re-scoring and re-ranking uld be to do this in a day, but it's
important to deliberate, rank which is the substance of the
complaint that was made.
With r~gard to the ~~iif~Rad RFP co~m1~ee mer:n.~)~~ prq~:~~r ~I
cunng 1t by lettm·~ C1ty C~1ss1on set~il'y
City Attorne~ Aguil2i~9,ed th~t~: c?ncern
"cure" not g1ve a pro~r a.o::ll~~r. .. PP
Gongo;,;:;:f~:df the'f'i~~;w.•:::::a··;·~MUte. of on bringing a Sunshine Law corgg@~ftB\~~§J~Y Atm~y Agui·l~~s~. City Attorney Aguila stated again that
thl!:]1rocess for the-~:Q9nventfQtf;Center is ··a:::pteventive measure. Commissioner Jerry
Libblfl~1~ked for claY(~tion ·-~~pption 3 again. City Attorney Aguila stated the
Commi~ers would effi1~~~ear·t~~~{esentations or watch them.
·~;;.-:;B. . ·' uest~:~tfor Public Comment and FCWPC's
=<~~~~ •' .,.;.. ~$::~ ·~·.x~:~· ~"";®~:
Chairperson Weith~\i~~'1~d the floor to public comment allowing two minutes for
anyone that wants to~M"eak about the Lincoln Road RFP only. Attorney for the
proposer, Lincoln Road Development, Rafael Andrade, stated they recommend Option
3, and strenuously objected to Option 1 because one of the original evaluation
committee members failed to disclose a potential conflict, and that the original
committee's scoring/rankings were done in an arbitrary and capricious manner. There
were some proposers scored and ranked higher in points that did not supply financials.
If the same committee is re-convened, they could be hostile toward his client.
Commissioner Ed Tobin asked if that one committee member were removed, would that
be satisfactory, and Mr. Andrade stated no it would not be. Commissioner Libbin asked
what the objection to Option 2 would be, and Mr. Andrade stated he has no objection to
that but understands the importance of time.
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Commissioner Tobin asked Legal if the Commission has the right to reject the proposals,
and City Attorney Aguila responded the Commission has the right to reject all proposals
and not move forward. Mayor Bower asked if there is a garage being built on these lots,
and City Attorney Aguila responded that any parking taken away has to be replaced with
a garage component.
Attorney for proposer, Team Nolli, Albert E. Dotson Jr., stated the only issue is that
deliberations be done in the sunshine. The City has made a significant investment in this
process that should not be forgotten. City Attorney Aguila stated that the City deemed
all four proposals received were within the minimum requirements and deemed·
responsive.
Chairperson Weithorn closed public comment and ~"'~ each Committee member
or Commissioner present to state their opinion . Commissioner Tobin
stated he's okay with reconvening the old eval ittee and allowing them to
take a second crack at it, or let the Comm I want to hear from the
public and proposers first before I make a oner Libbin stated he
respects the committee process, and it's is process, and he
would lean toward having a new com 2. A new
committee might reaffirm what the old co end, the final
decision still lies with the Commission. state~~J"lotion 3 would
be ideal if the time permitted, it doesn'f;i~~~~~:~~ tn~ll:iM where he
was leaning. Chairperson she's toward Option 2, lieving very
strongly in the committee stru Wolfson commented that his
preference is Option 3, but Option missioner Jorge Exposito
stated he would go Option 2. Option 1, with the
same committee, · it would be easier if
the same com Chairperson Weithorn
asked for down; if they would be
replaced or just mbers. Legal stated they would move
forward with the now (i.e. the 6 remaining). A motion
the recommendation to the City
n 2 for the Lincoln Road RFP.
mo1>~ea~nn with opening the floor to public comment regarding the
roor'lt<SJ~:.gJr:::r two minutes to anyone that wanted to speak.
Talbert stated the Bureau agrees with whatever option
moves this project forward.
Attorney for the proposer, Turnberry Lincoln Village, Alex Heckler, stated it's important to
move now, since the majority of the voters have decided and are okay with moving
forward with the RFQ.
Mangos Tropical Cafe representative, Josh Wallack, stated he recommends Option 1, as
the initial committee was qualified and it's important to continue the plan under the
current leadership.
Victor Diaz stated it's important to note that there's been no challenge raised thus far in
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regard to the Convention Center RFQ, and the preemptive measures are a good cure. It
is a delicate balance in making sure there are no advantages to any proposer in going
back through the process, but I would counsel the most expeditious option, which is
Option 1.
Bob Goodman, stated he agrees with Option 1, since an excellent committee was
chosen and we should move forward with the process.
Resident Eric Zichella stated he just wants consistency and Option 2 allows that.
Convention Center Advisory Board member Roger Abramson stated the Convention
Center Advisory Board strongly took Option 3. The want the Convention
Center to be renovated to help the tourism, but not i entire City.
Attorney for proposer, CMS Portman, Lucia
new selection committee or a new process,
prior cases have shown throughout the
Proposer, Rida Development,
process was subject to an unfair
none of the options be selected. There
they don't recommend a
wfi~:om1m~mr~ Option 1 , based on what
RFQ selection
request
committee.
Commissioner Gongora Bales sta1tmla::tt
arding this matter.
the procurement process
to connect the Convention Center to the
Pathman, stated Option 2 or 3 would be the
City has done.
Com would go with Option 1. Commissioner Tobin stated he is
leaning missioner Gongora stated he's not committed to any
options, but what everyone has said, he's leaning toward Option 1.
Mayor Bower going to be consistent and urges everyone to move
forward on this, and should go with Option 1. Commissioner Exposito stated
he is comfortable with going with Option 1. Chairperson Weithorn stated she's
comfortable with going with Option 1. A motion was made by Commissioner Exposito to
go with Option 1 to re-convene the original committee to . hear the videotaped
presentations, that there's no new presentations, and that the question and answer
portion, with proposers present, be limited and that Legal closely monitor the scope so
that there's no potential procurement issues. Commissioner Gongora seconds the
motion clarifying that the one committee member that has dropped will just be left off,
and the committee will move forward with the current members. The meeting was
adjourned.
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