2TO:
CITY OF SOUTH MIAMI
INTER-OFFICE MEMORANDUM
Hon. Mayor, Vice Mayor
and Commissioners
Date: March 6, 2012
FROM: Thomas F. Pepe, City Attorney
RE: Agenda Item #
Subject: Charter Amendments approved by voters on February 14,2012
A Resolution verifying the amendments passed by referendum on
February 14, 2012, and incorporated into the City's Charter,
amending Article VI, Section 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.
The Charter amendment presented at the February 14, 2012 General and Special
Elections was approved by the voters.
The purpose of the attached Resolution is to confirm with the City Commission
the exact language of the February 14,2012 amendment incorporated in the Charter. The
new language may be found on the attached pages 28 and 29 of the amended Charter.
Attachments: Proposed Resolution
Revised Pages 28-29 of City Charter
Resolution No. 222-11-13536
w:\my documents\elections 2012\resolution memo charter amend verification. doc
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RESOLUTION NO. _____ _
A Resolution verifying the amendment passed by referendum on
February 14, 2012, and incorporated into the City's Charter,
amending Article VI, Section 5 of the 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.
WHEREAS, the electors of the City of South Miami approved the following
Charter amendment to wit:
Binding Referendum Amending Article VI, Section 5, City of South Miami
Charter
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?
WHEREAS, by Resolution No. 222-11-13536, the City Commission did on
December 16, 2011 authorized language amending Article VI, Section 5 of the City's
Charter; and
WHEREAS, the City Commission hereby verifies that the amendment made to
the City Charter conforms with the language approved by the voters at the General and
Special Elections on February 14,2012.
NOW THEREFORE BE IT RESOLVED BY THE MAYOR AND CITY
COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA; that
Section 1. The above whereas clauses are incorporated by reference into the
body of this resolution.
Section 2. The City Commission hereby verifies that the amendment
presented as ballot question, incorporated into the City's Charter conforms with the
language approved by the voters at the General and Special Elections of February 14,
2012.
Section 3. This resolution shall take effect immediately upon adoption.
PASSED AND ADOPTED this _ day of ____ , 2012.
Page 1 of2
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ATTEST:
CITY CLERK
READ AND APPROVED AS TO FORM
LANGUAGE, LEGALITY AND
EXECUTION THEREOF:
CITY ATTORNEY
w:\my documents\elections 2012\resolution charter amend verification ca.doc
Page 2 of2
APPROVED:
MAYOR
COMMISSION VOTE:
Mayor Stoddard:
Vice Mayor Liebman:
Commissioner Newman:
Commissioner Harris:
Commissioner Welsh:
ARTICLE VI (Cont'd)
SECTION 4. Annexation
In the event that the City of South Miami shall desire to
change its territorial limits by the annexation of any
unincorporated tract of land lying contiguous thereto, and within
Dade County, it shall follow the procedure laid down by the
Metropolitan Home Rule Amendment and/or Florida Statutes.
SECTION 5. Franchise
(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
grants, gives, conveys, mortgages, encumbers or otherwise gives a
person any interest in any real property owned by the City of
South Miami for a limited term of years.
(2) The word "person" shall mean any individual, legal
entity or any other entity, legal or otherwise.
(3) The word "newspaper of general circulation" shall mean
the Daily Business Review, or similar newspaper.
(4) The word "local newspaper" shall mean
distributed in the City of South Miami, whether
readership or otherwise available.
(B) Restrictions:
a newspaper
free to its
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 unless the City enacts an ordinance, in
accordance with the requirements of this Section, approving the
contract or agreement.
(C) Requirements:
All proposed ordinances approving 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, may only be enacted if approved by a vote of
members of the City Commission. The term limit for all franchise
contracts or agreements, as defined in this Section,including any
28 SOUTH MIAMI CITY CHARTER
AMENDED 2-14-12
ARTICLE VI (Coot'd)
renewal or extension to the term of same, shall be (50) years. No
change in ownership or control of an artificial person with whom
the City has entered into a franchise contract or agreement, as
defined by this Section, nor shall any ownership or control be
transferable in any way, including but not limited to assignments
and conveyances of an ownership interest, unless it is approved by
an ordinance enacted by members of the City Commission. The
enactment of all ordinances required by this Section shall be
heard at two public meetings/hearings and the title of the
ordinance shall be published in a newspaper 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 (10) days 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.
(D) Custodian of Documents:
Copies of all transfers, mortgages, encumbrances, changes
in ownership or control, or other documents affecting the title
or use of real property owned by the City 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.
SECTION 6. Powers of the City
The City of South Miami exercising its power under State Law,
may exceed, by ordinance, any limiting feature of the State
Law unless the same is prohibited under the Home Rule Amendment
and Charter of Metropolitan Dade County.
SECTION 7. Autonomy
Neither the Commission nor any of its members shall direct or
request the removal of any person from office by the City Manager
or by any of his or her subordinates, or in any manner take part
in the removal of officers and employees in the administrative
service of the City. Except for the purpose of inquiry and for
the purpose of interviewing any candidate for department director
29 SOUTH MIAMI CITY CHARTER
AMENDED 2-14-12
Resolution No. 222·11 M 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 adveliise all proposed ordinances and all resolutions that require
public hearings at least 10 days before the second reading ofthe 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 nonnally 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.
Ull Definitions:
ill 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 (l) year extensions, or grants, gives, conveys, mortgages, encumbers
or otherwise gives a person any interest in any real property owned by the
City of South Miami for a limited term of years.
ill The word "person" shall mean any individual, legal entity or any other
entity, legal or otherwise.
ill The word "newspaper of general circulation" shall mean the Daily
Business Review, or similar newspaper. .
@ The word "local newspaper" shall mean a newspap'er distributed in the
City of South Miami, whether free to its readership or otherwise available.
Pg. 3 of Res. No. 222-11-13536
ihl 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 01' in any other way make a material change to an existing franchise
contract or agreement ~ordinanoe grrumng or rcnc'lling the right to use real
~rty or an interest in the real property of the City of South Miami to any person
unless the City enacts an ordinance, in accordance with the requirements of this
Section, approving the contract or agreement.
f£l Requirements: All proposed ordinances approving 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, shaHmay only be
enacted effective until if passed approved by a vote of 4/5 of all members of the City
Commission. and no grant or renewal 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 than (50) years. No grant or renewal of the right
of use real property or an interest in the real propelty of the City, of a mortgage or
other encumbranoe on the property, or a change in ownership or control of an
ruiificial person with whomwh-i:eh the City has entered into a franchise contract or
agreement, as defined by this Section, nor shall any ownership or control be
transferable in any way, including but not limited to assignments and conveyances of
an ownership interest, except with theunless it is approvedalJ2.yef an ordinance
enacted by 4# members of the City Commission. The enactment of all ordinance~
required by this Section shall be heard at two public meetings/hearings and the title of
the ordinance shall be published in a newspaper 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 C1 0) 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 C1 0) days 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 City shall be filed with the City Manager and City Clerk
within 10 days after netice is published in a newspaper of general circulation in the
City of Seuth Miami enoe a \veek for at least t\\'e oonsecutive weekson or before the
date of the first publication of the title to the proposed ordinance. as required by this
Section., net less than 14 days prior to the meeting the Commission vAll consider the
matter. (Amended 2/8/00)
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 approval.
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 16t~ay of December ,2011.
ATTEST: APPROVED:
jl#t!~
MAYOR
ORM, COMMISSION VOTE: 3-0
Mayor Stoddard: Yea
Vice Mayor Newman: absent
Commissioner Beasley: absent
Commissioner Palmer: Yea
Commissioner Harris: Yea