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2009-3664 OrdinanceORDINANC AN ORDINANCE OF COMMISSION OF THE FLORIDA, AMENDING EMPLOYEES' RETIREM ORDINANCE 2006-3504; ENTITLED "INVESTM DIVESTMENT OF ALL COMPANIES DOING COUNTRIES OF SUDAN ORDINANCES IN COQ PROVIDING FOR SEVER AN EFFECTIVE DATE. No. 2009-3664 THE MAYOR AND CITY CITY OF MIAMI BEACH, THE MIAMI BEACH :NT PLAN CREATED BY AMENDING ARTICLE 9, :NTS," TO REQUIRE ASSETS INVESTED IN BUSINESS WITH THE AND IRAN; REPEALING ALL FLICT THEREWITH; AND BILITY, CODIFICATION, AND WHEREAS, the Mayor and City Commission established the Miami Beach Employees' Retirement Plan ("Plan") by Ordinance 2006-3504 for the benefit of certain Miami Beach employees and their beneficiaries, and has subsequently amended the Retirement Plan; and WHEREAS, the Mayor and City Con and members of the Employees' Retiremei consistent with the State of Florida requirer plans by requiring divestiture of holdings in ~ contracts with or provision of supplies, milli Sudan or Iran, as well as companies that are Fission find it to be in the best interest of the City Plan to invest Plan assets in a manner that is ants governing the City's police and ire pension ~mpanies having business operations that involve ry equipment or services to the governments of omplicit in the Darfur genocide; and WHEREAS, the City Commission finds that the Board of Trustees for the Plan shall not have breached its fiduciary duty in any action taken to dispose of any such holdings; and WHEREAS, the City Commission finds that the Board of Trustees for the Plan will have satisfactorily discharged its fiduciary duties ofd loyalty, prudence, and sole and exclusive benefit to the participants of the Plan and their beneficiaries by divesting of holdings in such companies. NOW THEREFORE, BE IT ORDAIN MIAMI BEACH, FLORIDA: BY THE CITY COMMISSION OF THE CITY OF SECTION 1. Anew section 9.05 of Article created by Ordinance 2006-3504 is created ARTICLE 9. Investments of the Miami Beach Employees' Retirement Plan read: d 2 Notice of the provisions of this section shall be given to investment managers for the Retirement System. The Board and its named officers or investment advisors may not be deemed to section 215.473. Florida_Statutes and the manner of the disnositinn_ if any ~~ Scrutinized Companies List. SECTION 2. Repealer. All ordinances or parts of ordinan hereby repealed. in conflict herewith shall be and the same are SECTION 3. Severability. If any section, subsection, clause or provision of this ordinance is held to be invalid or unconstitutional by any court of competent jurisdiction, then said holding shall in no way affect the validity of the remaining portions of this ortlinance. SECTION 5. Codification. It is the intention of the Mayor and City hereby ordained that the provisions of this of Code of the City of Miami Beach, Florida. ThE re-lettered to accomplish such intention, and t "article," or other appropriate word. Commission of the City of Miami Beach, and it is finance shall become and be made a part of the sections of this ordinance may be renumbered or ~e word "ordinance" may be changed to "section," SECTION 3. EFFECTIVE DATE This Ordinance shall take effect the PASSED and ADOPTED this 9th d ATTEST: Gt~,(,~iu.~ ROBERT PARCHER, CITY CLERK F:\atto\TURN\ORDINANC\Employees Retirement -Divestiture i Sudan and Iran.doc i i '3 9thday of December 2009. of December , 2009. I ERA BO R MAYOR /4~4?Pi~i~ /~ F~RP~A ,$~ EA$~1~:~Ir~G'~ ~c ~}~ ~~~.~~~~ z/~/o C`~y ata September 30 of any year following identification of Retirement System assets m M!AMIBEAC OFFICE OF THE CITY ATTORNEY JOSE SMITH, CITY ATTORNEY COMMISSION MEMORANDUM TO: MAYOR MATTI HERRERA E MEMBERS OF THE CITY C~ CITY MANAGER JORGE M. FROM: CITY ATTORNEY JOSE SECOND READING/ PUBLIC HEARING DATE: DECEMBER 9, 2009 SUBJECT: An Ordinance Amending Tle Miami Beach Employees' Retirement Plan Created By Ordinance 2006-3604; Amending Article 9, Entitled "Investments," To Require Divestment Of Al1~Assets Invested In Companies Doing Business With The Countries Of Sudari And Iran; Repealing All Ordinances In Conflict Therewith; Providing For Severability; And Providing An Effective Date. On October 14, 2009, the first reading was held on a proposed ordinance that would amend the City's pension plan to require divestment of retirement plan assets that are invested in companies doing business with Sudan or Iran. At the meeting, inquiries were raised by the Commission as to whether the divestiture requirement could be expanded to include companies doing business with North Korea and Cuba. The attached opinion from pension counsel addresses this issue and recommends against such expa ~ sion of the proposed ordinance for various reasons that are set forth therein. i Based upon the attached Opinion from pension counsel, the above-referenced Ordinance is submitted for Second Reading/Public Hearingwithout further amendment. F:\atto\TURN\COMMMEMO\Divestiture Ordinance 12-09.doc Agenda Item ~ SA Date t 2 -~j -o S ~; ~; - ~~~~L LEWIS, LONGMAN & WALT<ER, I?A. n i i u r ~~ i r ~, i i n yr REPLY TO: TALLAHASSEE MEMORANDUM TO: Jose Smith, City Attorney City of Miami Beach FROM: Jim Linn and Glenn E. Thomas DATE: October 29, 2009 RE: Miami Beach Employees' Retirement Plan -Divestiture Ordinance This responds to your request for our comments on a proposed amendment to an ordinance amending the Miami Beach Employees' Retirement Plan. The ordinance, which we understand passed on first reading on October 14, 2009, would require divestment of Retirement Plan assets invested in certain companies doing business in Sudan or Iran, as well as companies complicit in the Darfur genocide. The ordinance, which is modeled on state legislation concerning the Florida Retirement System and local police and firefighter pension plans, would specifically require divestment of Retirement Plan holdings in "scrutinized companies" identified by the State Board of Administration pursuant to section 215.473, Florida Statutes. "Scrutinized companies" are defined in section 215.473 as companies with business operations in Sudan with revenues or assets linked to oil-related or power-production activities, or companies that supply military equipment within Sudan; or companies that are complicit in the Darfur genocide; as well as companies with business operations that involve the Government of Iran or that have revenues or assets linked to Iran and involve oil-related or mineral-extraction activities in Iran. The ordinance incorporates the definition of "scrutinized company" in section 215.473. In addition, the ordinance contains language from 2009 Senate Bill 538 (Ch. 2009-97, laws of Florida), which requires police and firefighter pension plans to divest holdings in scrutinized companies by September 30, 2010. SB 538 also provides that police and firefighter pension boards that divest pension fund assets in accordance with state law "may not be deemed to have breached their fiduciary duty" and "shall have satisfactorily discharged the fiduciary duties of loyalty, prudence, and sole and exclusive benefit to the participants of the pension fund and their beneficiaries," if the actions taken are consistent with the duties imposed by section 215.473, Helping Shape Florida's Future® BRADENTON JACKSONVILLE TALLAHASSEE WEST PALM BEACH 1001 3`" Avenue West 245 Riverside Avenue 2600 Centennial Place 1700 Palm Beach Lakes Blvd. Suite 670 Suite 150 Suite 100 Suite 1000 Bradenton, FL 34205 Jacksonville, FL 32202 Tallahassee, FL 32308-0572 West Palm Beach, FL 33401 (941) 708-4040 (904) 353-6410 (850) 222-5702 (561) 640-0820 Fax: (941)708-4024 Fax: (904)353-7619 Fax: (850)224-9242 Fax: (56])640-8202 www.llw-]aw.cotn October 29,2009 Page 2 Florida Statutes. Similar language concerning the fiduciary duties of Miami Beach Employee Retirement Plan pension board members is included in the ordinance. It is our understanding that on first reading, a question was raised as to whether the ordinance could be amended to also require divestiture of Retirement Plan holdings in companies doing business with North Korea and Cuba. Although the City Commission may have a legitimate basis for such an amendment, in our opinion the amendment would be ill-advised for several important reasons: 1. The amendment requiring divestiture of Retirement Plan holdings in companies doing business with North Korea and Cuba goes beyond the definition of "scrutinized company" in state statute. As a result; the City pension board would be required to identify companies doing business with North Korea or Cuba, which could be an expensive and time-consuming process. ; 2. The Florida State Board of Administration (the agency that is responsible for managing the investment of Florida Retirement System assets) has spent significant time and resources to develop a process for identifying "scrutinized companies" that have prohibited business dealings in Iran, Sudan and Darfur. The SBA's list of "scrutinized companies" is updated quarterly. By relying on the SBA's list of "scrutinized companies," the City pension board (as well as police and firefighter pension boards throughout Florida) have an authoritative source on which to base their divestment decisions. If a company believes it has been wrongly indentified as a "scrutinized company" under state law, there is a procedure for resolving the issue with the SBA that does not require the City's pension board to expend time or money. Under the proposed amendment, the City pension board would be required to make its own determination as to whether particular companies were engaged in business with North Korea or Cuba, and then would be required to defend its decisions, if challenged. 3. Finally, the ordinance contains language similar to that in SB 538 that makes it clear that the pension board, its officers and investment advisors may not be deemed to have breached their fiduciary duty in any action taken to dispose of any investment in a scrutinized company "if the actions it fakes are consistent with the duties imposed by section 215.473, Florida Statutes..." The proposed amendment, by expanding the definition of "scrutinized company" to include countries that are not included in section 215.473, could expose the City pension board and its investment advisors to potential liability for divestment decisions that are not contemplated by state law. For the foregoing reasons, we recommend against adopting an amendment to the ordinance which would require divestiture of Retirement Plan holdings in companies doing business with North Korea and Cuba. Please feel free to contact us if you have any questions. - ";- ~evx`• w_ " '~:.7I~URSDA'.1(,°I~IDN~MBBFt~19,;2009 1 ~".9'f~(B __ _...._ CITY OF MIA~NII BEACH ~ •, .E .~ ~ -. NOTICE OF PUBWC HEARINGS ~;; ~ he Mayor~d NOTICE IS HEREBY given that second readinFlo da Pn the Comm-s9ion~ ambexs; 3rd floor City City=Commission, of the: C'itY of Miami Beach, .peceniber 09, 2009. `Ha11,1700 Con3er>tion Center Drive,'Miami'Beach, Florida, on Weuldesday,- to consider the following y 10'15~m.. -:. ~ '~-~ 'lo ees' ~ietireme~t Pian Created lay Ordinance 2006- Or¢inance Amending The?Miami'Beach.Grrip Y wire D~estment pf~lkll"Assets Invested In 3504'-Amending~Article 9,'Entitled Investments>" TD Aeq ealin " .AII-Ardinances In .. .Companies Doing`Business.~fV'dh The Countries Of Sudan And Iran; Rep. 9 - Conflict Therewith. ' ~ ~~ ~ Inquiriestt!aybe'directedto the.Legal Departrnent~at (305) 673 7470•. '. r '. - er 82, "Public-, 10:35.a m.__:__ Amending Chapt . A,Fj•Ariima~r?ce ~ridmgThe-Code Of T`I~City ~ ~amDv~sion 6~"Prohibltec(S-9ns~'((lver Public Prpp~r".}UticJa IV _: uses In-public Flight~Of aYm And Flagpoles; And `Amending-Chapter jProperty," Section 82=411 To~Add An.ExemptionFor Flags " Artici§=f11, "Prohi6Red Signs," Section 138-72 "Pennants, Banners, Streamers,'FThat ~1~38, "Signs, FI s And. Flagpoles And To Clarify 'Auf~FlagPol~°.To.Create A:Procedure For Temporary a9 bills Of-Cultural The "section ~!RPlies To, Flags Of Nationally. Or Intemattonally Recognized SYm . , n _ _ s3 . ^ f ;Diversity ..: - ,. ,._ ,., •,t ~. -°` 'lnquines'm~y`be direStsd°to the Planning Department at'(305) 673-?550_- 40~Q a m , . ~- .. 4 G `: 1 w-,x ` ~ '+ ,; _ " B~ V,/kri-ending. '+An~Ortlmance Amending C4~aPter 8~=Of The,C!tY Co~1e,;En~~led :Publ~c`RropartY :'. y . Of Public Facilities And T Pbrovide That The Port on Of The City Owned Article VI, Entded "Naming . To:: By Amending Section 82-501, Entitled "Generally, t From The-,Prau~sions.Af Said.; ithin'ARos Del. Mar Fark;,(LOcated On-Collins Avenue Between 76~9nd;77 Streets) P,igperty ,y~I Be.Known As The "Altos. CeI .Mar SculPfune Park;":Shall Be sine ' Awned •Proper`tq Continues To'Be.Operated By-Aftos:Aei.; Artii;le V,, -i=or So "long As `Said Cry-_ oration,' As A Sculpture Park- Which Is Free And iJlar Sculpture Park, Inc., •A Not For Profit'Corp `~OpenToTtie Gen~i`al`P~blic, And~The Co~~~MSP Datedluae.3~?A09 ~n~~That.Certain ~`Managernent-A9~mecrt'Between rtY~ ,..Inquiries may be'diracted to the"Tcs°rism and C~iltural Development Department-8t (305) 6 ~ .7577 ~10;30am}` ~+• -- , ~ Coda~Errtdled-'"Miscellaneous$ 'Art Ordinance Amending `Chapter 70 Of ~tte'Mtarhi;'Be~end Fl9 ~~~s~n~ Entitled"";Generally" QfEenses~°~BY Amending Article•111,-Eritftled~"~raftni° f3Y To Remove Graffiti ~: By~Arnertding Section 70-:1-26;.Entitled "Respon~s'~ing er'?R P n ~)`~ Fropecty:Owciers _;Graffiti.F(ernoval And Notice;:Enforcen-ent ~Y:; ..With. Re9a~ To The Abatement ~ p~ ~partmentnat (305) 673-7555. F ~~ ~Inqumes may be dire6ted to;the _ _ . °~. . ~ •-- ~ Amending,Art~cle 11.00~.m: Code ~ntdled •Human+~elahons;, . Q~~rrce.Amending Chapter 62 Qf:The Cih! ~ utther =ll,:Sectwur62-32 Ti-ersm ~~ RonnaNy~Name ~dM~DHBeacF Human Rights' Qrdmanc~SrF ~~ ;Article;(And Sections TJ~ereto),.As~'The Adw" ° ?o Amenrmg:'[he Swsting `Provisions And', ',~Ameiiding:Article II, Sections F2'31'Through lit-G6,_ `Where`Noted, Creating: New Pro aintaSHe~iringYProcedures, And Pre~nae s And P dvtdri9 Fu~hegr- ~bomi3laints, Mediatiori>t3f Dornp. ._ _ _ . _ .._.- _ - . " _ for Codif'rcationr , - - - _- artment;at.(305).fi7.3~470 :~ _ =t =Mgdmes'i'nay bslcfirected~`to the.Lega4E3ep . - resented by:an.agen~,~~ ~~~TEpE.STED pAR~AI?S= ors-invdeii 'to ~qpe~ ¢ { thesCit~c Camm~ssior~,~c~~e Ciiy' Clerk, :1 ADO.. ' or`tQ-express their mews =in writing add~sssed Glei9c",s ' ="Converitron GQrder Unws, .1st Floor, GitY'~;-Fia11,.;Miami Beach, Florida 3>3`4~.~~CDp~as =of lhese~ '=oidinarices are?~±iaii'abte.for.p~blic inspection :during r~o4iiaa4busmess hovers=~ theTity 170.0 Cuny.~tion !Center Drive 1si:F~iooty City Mail„ Mranai =Beach; +Ftonda 33139 l?ns ;meet~o may be'corrtirar~ed ~ncl finder ~rck~ ~i~stances-add~ior~al Iegat nc~EuCe ~ouid no4'be ;;provider .. ` ` ' . _." i -Robert E: ~Paroher, City Clerk ': • - City of Irn Beach ". . ~ ~ . ' n degides" ' Pursuarrtto Section 286:01.05 .Fla. Slat„ !he•Gity hereby advises the public that: if a perso ;to aRpeal,any dernsion~xrade by-tha L`dy t~,cirnr^tssiaasi with+-~spect to any~-mattler'aorasi~~ ^~~ ~, on must erasure-'that ~'beisbatim,stecOOa: of, the p, n5eeting or` its he~arir~i; such pe-'s vrtijoh 3he•aFtPe~.is fA'be.Esased: -trade, which record aticludes~the-teatinYOrtiy andseyidence'"upon o{ othervuise' fins taotice:does not oonstitOte" consenf'b~! the'C~ity"forthe introCtuofCoc~•or ad~lisStvn _ ~irtadmi§sible o~:irreievart evidence t-~ou,does at authoaa~-chaUeriga~s•~~apFeals ri+ca .othervyisa ~allew~eck_t~y~lawt . :: ,- - _ .,~•ig~~ragdage~irtte-~preEers* n:~~~ °n,a~esslDr To~raqu~tthis~natenal ih ac~sssibte'fom~t, ,~xtmaent<c3r~pa`rtlcipata'IFl•sny- persons,,wdh'd~sabil~ies~'and~D~~-aCDDFnI'rlDdatiOfl'tO~eVi9W "~1y "fi'~8~~'~ ,cry sP,onsored p~eding, °please~orrtact (305) 604-2489.Ma~); ~'05)l`~'"l?1:83f ~ in a~dJanae to initiafe;your request TTY.;users may.also call„711 (Florida Relay. Service). _ `Ad #581