IN THE CIRCUIT COURT OF THE 11TH JUDICIAL CIRCUIT, IN AND FOR MIAMI-DADE COUNTY, FLORIDA GENERAL JURISDICTION DIVISION

CASE NO. 13-33479 CA 09 GRACIELA SOLARES, Plaintiff vs. CITY OF MIAMI, a Florida municipal corporation, and PENELOPE TOWNSLEY, the Miami-Dade County Supervisor of Elections Defendants _________________________________/ COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF TO ENJOIN THE CITYS NOVEMBER 5, 2013 REFERENDUM SPECIAL ELECTION BALLOT QUESTION, ALTERNATIVELY, TO ENJOIN THE COUNTING OF THE REFERENDUM SPECIAL ELECTION BALLOTS OR TO CERTIFYING THE RESULTS Plaintiff, Graciela Solares, files this Complaint for Declaratory and Injunctive relief against the City of Miami, a municipality of the State of Florida, and Penelope Townsley, the Miami-Dade County Supervisor of Elections, and alleges: INTRODUCTION 1. This is an action for declaratory and injunctive relief for the purpose of enjoining the City of Miamis November 5, 2013 Referendum Special Election, alternatively, to enjoin the counting of the Referendum Special Election ballots or to certifying the results. The Miami City Commission adopted Resolution R-13-0305 which directs a Referendum Special Election for the purpose of seeking approval of a proposed lease pursuant to 1

Section 29-B of the City Charter. This enabling resolution does not refer to Charter Section 3(f)(iii), which specifically governs the leasing of all City-owned waterfront property, including the City-owned waterfront property that is the subject of the proposed lease. However, the ballot title and ballot summary in the November 5, 2013 Referendum Ballot misleads, deceives and deliberately conceals from the Citys voters that the proposed lease violates Charter Section 3(f)(iii). JURISDICTION AND VENUE 2. The Court has jurisdiction pursuant to the Florida Constitution, Art.V, 5(b) and

Art.V, 20( c), as implemented by Florida Statutes, Section 26.012(3) and Chapter 86, and, Florida Rule of Civil Procedure 1.610. 3. This action pertains to the November 5, 2013 Referendum Special Election called

by the Miami City Commission and which will be held in the City of Miami, and therefore, venue properly lies in this Court. PARTIES 4. Plaintiff , Graciela Solares (Solares), is a citizen, resident, property owner, voter and elector of the City of Miami. 5. Defendant, the City of Miami (City), is a municipality of the State of Florida. 6. Defendant, Penelope Townsley, as the Miami-Dade County Supervisor of Elections, is required to carry out all General and Special Elections occurring in Miami-Dade County and is joined for the purpose of allowing the Court to exercise its equitable jurisdiction to enjoin the Citys November 5, 2013 Referendum Special Election.

STATEMENT OF RELEVANT FACTS 7. Solares brings this action in her capacity as a citizen, property owner and voter of

the City who is in doubt of her equitable and legal relations, and who will be adversely affected by the constitutional, statutory and legal infirmities that exist in the Citys November 5, 2013 Referendum Special Election Ballot and who has no adequate remedy at law. 8. Solares possesses an actual, present, adverse and antagonistic interest with the

City based on the misleading and deceptive official Referendum ballot that the City is presenting to the voters. 9. Solares has been a rigorous advocate for the preservation and protection of all

City-owned waterfront property, including the protection afforded by the required conditions included in Section 3(f)(iii) of the Charter. 10. Effective August 9, 2001, the Citys voters approved Revisions and

Amendments to several distinct provisions of the City Charter, each of which limits, restricts and prohibits City officials from leasing City-owned property and City-owned waterfront property unless all conditions applicable to the specific type of property are satisfied. 11. Charter Section 29-B prohibits the City Commission from favorably considering a

proposed lease for any City-owned real property, wherever located, unless there is a return to the City of fair market value under such proposed lease. 12. Section 29-B also prohibits the favorable consideration of any lease unless the City

receives at least three written lease proposals from prospective lessees. 13. In the absence of the Citys receipt of the required number of written proposals,

Section 29-B states:

[I]f there are less than three (3) such proposals received and if the guaranteed return under the proposal whose acceptance is being considered is equal to fair market value [and] the City Commission determines that the contemplated lease will be in the Citys best interest then, subject to the approval of a majority of the votes cast by the electorate at a referendum, the lease may be consummated. 14. Charter Section 3(f)(iii) is unique, and it applies to and governs the leasing of all

City-owned waterfront property. City-owned waterfront property may be leased only if all of the following conditions are satisfied: A) the terms of the lease allows reasonable public access to the water and reasonable public use of the property, and complies with other Charter waterfront setback and view-corridor requirements; and B) the terms of the lease result in a fair return to the City based on two independent appraisals; and C) the use is authorized under the existing comprehensive plan of the City; and D) the procurement methods prescribed by ordinances are observed; and E) the contract does not exceed five years and does not contain an automatic renewal or termination penalty. 15. Charter Section 3(f)(iii) contains the further provision: Any such lease or contract or proposed extension or modification of an existing such lease or contract which does not comply with each of the above conditions shall not be valid unless it has first been approved by a majority of the voters of the City.

16. On or about January 11, 2013 the City issued Request for Proposal # 12-13-001 (the RFP) entitled: Lease of City-Owned Waterfront Property For Marina/Restaurant Uses and it identified the physical location of the property subject to the RFP as: 3385 Pan American Drive, Miami, Florida, 3349 & 3351 Pan American Drive, Miami, Florida, and 51 Charthouse Drive, Miami, Florida. 17. The City received two (2) written lease proposals following issuance of the RFP.

One proposal was later withdrawn for reasons unknown to the Plaintiff. 18. A Selection Committee recommended acceptance of the only lease proposal to the

City Manager following its June 26, 2013 meeting. 19. The City Manager accepted and forwarded the Selection Committees

recommendation to the Miami City Commission, along with his recommendation that the sole lease proposal, received from Grove Bay Investments Group, LLC (Grove Bay), be accepted and that the City enter into a proposed lease with Grove Bay for approximately 7 acres of City-owned waterfront property. 20. On July 25, 2013 the Miami City Commission accepted the City Managers

recommendation, adopted Resolution R-13-0304 and through it agreed to lease approximately 7 acres of City-owned waterfront property to Grove Bay: I) for an initial 50 year term, plus two fifteen year renewal options; (ii) for payment to the City of an amount not less than $1,800,000.00 in annual rent payable in twelve equal installments; and (iii) with Grove Bay being responsible to construct the improvements to the property as specified in the RFP. A copy of Resolution R-13-0304 is attached as Exhibit 1".

21. Resolution R-13-0304 directs the City Manager to execute the lease that was attached to that Resolution, subject to the review and approval by the City Attorney, and it also includes the following condition: The Citys selection of the Proposer does not confer any contractual rights upon the Proposer and the execution of the Lease does not confer any contractual rights upon Proposer unless and until the electorate has cast a favorable vote as required by City Charter Section 29-B. A copy of the signed Lease is attached as Exhibit 2. 22. During the same July 25, 2013 City Commission Meeting, the Commissioners adopted City Resolution R-13-0305, which acknowledges that two written lease proposals regarding the RFP had been received but one had been withdrawn. Thereafter, Section 2 of Resolution R-13-0305, orders a Referendum Special Election to be held on November 5, 2013 [P]ursuant to Section 29-B for the purpose of seeking the approval or disapproval of the proposed lease by the electorate. 23. A copy of Resolution R-13-0305 is attached as Exhibit 3.

During the July 25, 2013 City Commission Meeting there were no discussions or

references to the five required conditions imposed by Charter Section 3(f)(iii) in order for there to be a valid lease of City-owned waterfront property. A copy of the Transcript of the verbatim discussions regarding Resolutions R-13-0304 and R-13-0305 during the July 25, 2013 City Commission Meeting, prepared by and posted on the Citys Website, is attached as Exhibit 4". 24. There were no discussions or references during the July 25, 2013 City Commission

Meeting regarding the requirement of Charter Section 3(f)(iii)(B) that the terms of a lease for City-owned waterfront property result in a fair return to the City based on two independent appraisals.

25.

Neither Resolution R-13-0304 nor Resolution R-13-0305 include a finding that

the City obtained two independent appraisals, or, that the proposed lease of approximately 7 acres of waterfront property for a 50 year term, plus two fifteen year options, will result in a fair return to the City. 26. There were no discussions or references during the July 25, 2013 City Commission

Meeting that the proposed lease includes a contractual provision that allows Grove Bay to use this City-owned waterfront property for Casino Gambling as an other contemplated use if and when gambling becomes legal in the City of Miami solely upon receiving a favorable vote by the City Commission. 27. Neither Resolution R-13-0304 nor Resolution R-13-0305 include any

acknowledgment that the inclusion of Casino Gambling as an other contemplated use violates the existing Comprehensive Plan, and therefore, the proposed lease violates Charter Section 3(f)(iii). 28. There was no acknowledgment during the July 25, 2013 City Commission Meeting

that Section 3(f)(iii)(E) prohibits the leasing of City-owned waterfront property for any term exceeding five years. 29. Neither Resolution R-13-0304 nor Resolution R-13-0305 include any

acknowledgment that the proposed lease of approximately 7 acres or City-owned waterfront property for an initial term of 50 years, followed by two fifteen year options, violates Charter Section 3(f)(iii)(E). 30. During the July 25, 2013 City Commission Meeting, the Commissioners and their

City Attorney advisors did not discuss or acknowledge that the proposed lease for this City-

owned waterfront property violates Charter Section 3(f)(iii) and more particularly Section 3(f)(iii)(B), Section 3(f)(iii) and Section 3(f)(iii)(E). 31. During the July 25, 2013 City Commission Meeting there were no discussions of

the need for a Referendum Special Election pursuant to Charter Section 3(f)(iii) based on the failure of the proposed lease to satisfy all of the required conditions included in the Charter Section 3(f)(iii), which is the specific Charter provision governing the leasing of all City-owned waterfront property. 32. The Miami City Commission has deliberately not requested nor authorized a

Referendum Special Election for the purpose of seeking voter approval or disapproval of the proposed lease pursuant to Charter Section 3(f)(iii) because this Charter provision also expressly states that the needed approval is to be determined by a majority of the voters of the City.

STATUTORY REQUIREMENTS 33. Section 101.161(1), Fla., Stat., requires a municipal referendum ballot summary to

be printed in clear and unambiguous language and to be an explanatory statement, not exceeding 75 words in length, of the chief purpose of the enabling resolution or ordinance. 34. The ballot title and ballot summary in the Official ballot for the Citys November

5, 2013 Referendum Special Election flies under false colors and hides the ball regarding the proposed lease and the Citys charter provisions. A copy of the official election ballot is attached as Exhibit 5" 35. The enabling resolution, Resolution R-13-0305, states that it seeks voter approval

pursuant to Section 29-B of the Charter. The ballot title and ballot summary demonstrate that a

deliberate bait and switch is actually being perpetrated on all City voters. 36. The Citys ballot title and ballot summary do not seek voter approval because three

lease proposals were not received by the City as required by Section 29-B of the Charter. 37. The ballot title refers to non-descript City-owned waterfront and submerged lands

in Coconut Grove. 38. The ballot summary hypes the receipt of $1.4 million in annual rent for the non-

descript waterfront and submerged lands in Coconut Grove as if the subject property on election day had minimal or little value or use. 39. The ballot summary misleads and deceives the voters by describing the $1.4

million as being guaranteed annual rent when in fact the proposed lease does not include any personal guarantee or guarantee of payment. COUNT I 40. 41. Plaintiff re-alleges paragraphs 1 through 39 as if fully restated. Effective August 9, 2001, substantive restrictions and conditions were imposed

upon the leasing of the Citys limited, unique, irreplaceable and valuable waterfront property. 42. The November 5, 2013 Referendum ballot title and ballot summary are misleading,

fraudulent and deliberately deceptive because they do not reflect the chief purpose of the enabling resolution, Resolution R-13-0305, which was adopted only for the stated purpose of seeking voter approval pursuant to Charter Section 29-B. 43. The ballot does not inform or notify the voters that while they are being asked to

approve a proposed lease pursuant to Section 29-B, that proposed lease violates multiple conditions and requirements in Section 3(f)(iii).

44.

The ballot does not inform or notify the voters that Charter Section 3(f)(iii)(E)

prohibits the leasing of City-owned waterfront property for a term exceeding five years, and therefore, while the voters are being asked to approve the proposed lease they are not being informed this proposed lease grossly exceeds the maximum term allowed by the Charter. 45. The ballot does not inform or notify the voters that while they are being asked to

approve a proposed lease that there has been no determination if the proposed lease of its duration, i.e., 50 years or more, will result in a fair return to the City based on two independent appraisals, as required by Charter Section 3(f)(iii)(B). 46. The ballot does not inform or notify the voters that while they are being asked to

approve a proposed lease, that it includes as a contemplated use Casino Gambling which is not authorized by the existing Comprehensive Plan as required by Section 3(f)(iii)( C) of the Charter. 47. The voters of the City are being mislead and deceived by the Referendum Special

Election that is based on an authorizing Resolution that cites only to Section 29-B of the Charter when there is the deliberate concealment that the proposed lease violates Section 3(f)(iii) of the Charter. 48. The voters of the City are being mislead and deceived by the symbolic

orchestration of a Referendum Special Election when in reality, the Referendum is but a scam to give the outward appearance that the voters have approved a proposed lease which does not satisfy all required conditions imposed by Section 3(f)(iii). 49. The voters of the City are being mislead and deceived by the concealment of

needed and necessary information in order for them to intelligently cast his or her vote.

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COUNT II 50. Plaintiff re-alleges and incorporates by reference the allegations in paragraphs 1

through 39 as if fully restated. 51. The ballot summary does not include an explanatory statement of the chief purpose

of the enabling resolution, Resolution R-13-0305, that voter approval is necessary because the City received less than three lease proposals as required by Section 29-B of the Charter. 52. The ballot summary is deceptive and misleading because it hypes the receipt of

$1.4 million in annual guaranteed rent when in fact the proposed lease does not include any guarantee of payment. 53. The ballot summary does not inform or notify the voters that the Referendum is

simply to obtain their uninformed affirmative vote to authorize the City to proceed with the proposed lease and thereafter City officials will be allowed to alter or amend the proposed lease and to otherwise deal with these 7 acres of waterfront property for the next 80 years without any further involvement of the voters. WHEREFORE, Plaintiff respectfully requests: A. A declaration: 1. Florida Statutes; 2. That the subject ballot title and/or summary and the underlying Resolution That the subject ballot title and/or summary violate Section 101.161(1),

R-13-0305 do not request the approval of the voters of the City pursuant to Section 3(f)(iii) of the City Charter;

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B.

An order enjoining the Citys Referendum Special Election from proceeding,

enjoining the Supervisor of Elections from counting the ballots cast during the Citys Referendum Special Election, and enjoining the County Supervisor of Elections from certifying the results of the Citys Referendum Special Election; C. An order enjoining and prohibiting the City from proceeding with the proposed

lease until such time as it obtains approval of the majority of the voters of the City in accordance with the provisions of Section 3(f)(iii) of the Charter; D. E. An award of cost and attorneys fees to the extent permitted by law; and Such other and further relief as the Court deems just and proper. Respectfully submitted, CARROLL LAW FIRM Courthouse Tower Suite 900 44 West Flagler Street Miami, Florida 33130 Telephone (305) 372-2445 Telefax (305) 372-5977 By /s/ Linda L. Carroll LINDA L. CARROLL Fla. Bar No. 150445

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