Res No 222-11-13536Resolution No. 222 -11 -13536
A Resolution adopting a draft amendment to Article VI, Section 5, of the City
Charter concerning franchises and the granting of an interest in City real property,
defining the governed franchises, providing for two public meetings, clarifying
the language of the charter and excluding special events, concessions and other
uses of real property lasting one (1) year or less to be placed on the ballot for the
February 14, 2012 election.
Whereas, the Mayor and City Commission of the City of South Miami have found that
Article VI is ambiguous and needs clarification; and
Whereas, various civic groups use City Hall, such as the South Miami Homeowners
Association, and others, for meetings, election forums and debates; and
Whereas, the current version of Article VI could be interpreted to prevent such use of
City Hall without the enactment of a franchise agreement for each such group; and
Whereas, Article VI does not comply with other City Charter provisions concerning the
custodian of the City contracts which are required to be on file with the City Clerk, as opposed to
the City Manager; and
Whereas, the City leases its property to Miami -Dade County or to non - profit public
service organizations for period not greater than an year and such leases would be subject the
requirements to Article VI; and
Whereas, Article VI requires publication in a newspaper of general circulation which is
ambiguous since some Florida cases define the Daily Business Review as such a newspaper and
other cases provide a definition that may not include the Daily Business Review; and
Whereas, it is more economical for the City to advertise in the Daily Business Review
and the City is required to advertise all proposed ordinances and all resolutions that require
public hearings at least 10 days before the second reading of the City's; and
Whereas, Article VI requires that the advisement be at two consecutive weeks, which, in
light of the newspaper's advertising schedule makes it difficult to advertise an ordinance for two
consecutive weeks, with one advertisement before the first reading and one at least ten (10) days
before the second reading; and
Whereas, Article VI fails to expressly define the term franchise other than obliquely; and
Whereas, Article VI could be construed to affect the traditional and normal operations of
the City's agreements with entities for the operation of the City sponsored baseball league,
football leagues, soccer leagues, general concession agreements normally and traditionally
executed by the City Manager.
Whereas, many contracts and agreements for the use of City property are usually for one
(1) year but no more than five (5) years; and
Pg. 2 of Res. No. 222 -11 -13536
Whereas, all leases of City property for five (5) years or less will continue to require the
enactment of an ordinance, approving the lease, and require two meetings and ten (10)
advertisement of the public meeting for the second reading of the ordinance; and
Whereas, all contracts or agreements involving terms greater than one (1) year will
continue to require an advertised public meeting.
NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND CITY
COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA THAT:
Section 1. The following question shall be submitted to the electors of the City of South
Miami at the next general election:
Title: Binding Referendum Amending Article VI, § 5, City of South Miami Charter.
BALLOT QUESTION: Shall Article VI, Section 5, titled "franchise" be amended
to (1) define a franchise as an agreement to use city property for more than five
years, exempting concessions, and other uses, lasting five years or less, and (2) to
clarify general language, change publication procedures and providing definitions
of words in existing and proposed provisions.
YES
NO
If the question is approved by a majority of the voters in the general election, the Charter for the
City of South Miami shall be amended as follows:
Section 5: Franchises.
(a) Definitions
(1) The word "franchise" shall mean all contracts, including any and all
agreements of whatever nature, that grant a right to use real property
owned by the City of South Miami, including leases, when the contract or
agreement provides for a term greater than three (3) years and with two (2)
one (1) year extensions, or rg ants, gives, conveys, mortgages, encumbers
(2) The word "person" shall mean any individual, legal entity other
entity, legal or otherwise.
(3) The word "newspaper of general circulation" shall mean the Daily
Business Review, or similar newspaper.
W The word "local newspaper" shall mean a newspaper distributed in the
City of South Miami, whether free to its readership or otherwise available.
Pg. 3 Of Res. No. 222 -11 -13536
(b) Restrictions: The City of South Miami shall not enter into any franchise contract or
agreement as defined in this Section to or with any person as defined in this
Section, nor shall the City renew an existing franchise grant an extension to the
franchise term or in any other way make a material change to an existing franchise
contract or agreement,v, ra:r t.
o granting ,. r-enewing the right to use
Section, approving the contract or agreement.
(c) Requirements: All proposed ordinances Wprovinng any franchise contract or
agreement the renewal of an existing franchise the grant of an extension to the
franchise term or any material change to an existing franchise shallmay one be
enacted efF�,aitil if passed -a pip oved by a vote of 4,15 of all members of the City
Commission, and no grant or r- enew°' The term limit for all franchise contracts or
agreements, as defined in this Section, including any renewal or extension to the term
of same shall be for a longer period (50) years. No grant or renewal l
of use real property or an interest in the real property of the City, of a ffieftgage or
other en e br,,nee en the r=epei4 or change in ownership or control of an
artificial person with whomw4rie43 the City has entered into a franchise contract or
agreement, as defined by this Section, no shall any ownership or control be
transferable in any way, including but not limited to assignments and conveyances of
an ownership interest, exeept dvitli theunless it is approvedal bye€ an ordinance
enacted by 4A5 members of the City Commission. The enactment of all ordinances
er auired by this Section shall be heard at two public meetings/hearings and the title of
the ordinance shall be published in a newspa ep r of general circulation as defined in
this Section, and it shall also be published in a local newspaper, as defined in this
Section, at least five (5) days before the first meeting (first reading of the ordinance).
At least ten (10) days before the second and final reading of the franchise ordinance
its title shall be published in a newspaper of general circulation and in addition,it
shall be published in a local newspaper if available so as to provide as much notice
as possible, but, in any event the notice need not exceed ten (1 OLys before the
second reading. The timeliness of the publication in the local newspaper shall not be
grounds for challenging the ordinance unless such a newspaper is available for
publication and then only if it was published less than five (5) days before the second
reading.
Custodian of Documents: Copies of all transfers, mortgages, encumbrances, changes
in ownership or control, or other documents affecting the title or use of realthe
property owned by the CitX shall be filed with the City Manager and City Clerk
on or before the
date of the first publication of the title to the proposed ordinance as required by this
Section.,
ma#er. (Amended-241"
Pg. 4 of Res. No. 222 -11 -13536
(e) Effective Date: This amendment if approved by the electorate shall become
effective ten (10) days following the date of the election held for its gp roval
Section 2: If any section clause, sentence, or phrase of this resolution is for any reason
held invalid or unconstitutional by a court of competent jurisdiction, the holding shall not affect
the validity of the remaining portions of this resolution.
Section 3. This resolution shall become effective immediately upon adoption by vote of
the City Commission.
PASSED AND ADOPTED this 1 6ttday of December 2011.
ATTEST: APPROVED:
4Y UCLE(' ..
I
COMMISSION VOTE: 3 -0
Mayor Stoddard:
Yea
Vice Mayor Newman:
absent
Commissioner Beasley:
absent
Commissioner Palmer:
Yea
Commissioner Harris:
Yea