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2013-28297 Reso RESOLUTION NO. 2013-28297 A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA CALLING FOR A SPECIAL ELECTION TO BE HELD ON TUESDAY, NOVEMBER 5, 2013, FOR THE PURPOSE OF SUBMITTING TO THE ELECTORATE OF THE CITY OF MIAMI BEACH A QUESTION ASKING WHETHER CITY CHARTER SECTION 1.03(b) REQUIRING MAJORITY VOTER APPROVAL BEFORE THE CITY'S SALE, LEASE EXCEEDING TEN YEARS, EXCHANGE OR CONVEYANCE OF CONVENTION CENTER PARKING LOTS SHOULD BE CHANGED TO REQUIRE 60% VOTER APPROVAL INSTEAD, AND TO INCLUDE "CONVENTION CENTER CAMPUS" (ALL CITY-OWNED PROPERTY WITHIN CIVIC AND CONVENTION CENTER DISTRICT EXCEPT CONVENTION CENTER AND CARL FISHER CLUBHOUSE) WITHIN THE CATEGORY OF CITY-OWNED PROPERTIES SUBJECT TO 60% VOTER APPROVAL REQUIREMENT, AND CLARIFYING THAT THIS CHARTER CHANGE IS INAPPLICABLE TO THE "CONVENTION CENTER PROJECT" BALLOT QUESTION (TO BE PRESENTED SIMULTANEOUSLY ON THE NOVEMBER 5, 2013 BALLOT). NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH: SECTION 1. In accordance with provisions of the Charter of the City of Miami Beach, Florida and the general laws of the State of Florida, a Special Election is hereby called and directed to be held in the City of Miami Beach, Florida, from 7:00 a.m. to 7:00 p.m. on Tuesday, November 5, 2013, for the purpose of submitting to the electorate the question as set forth hereinbelow. SECTION 2. That the appropriate and proper Miami-Dade County election officials shall conduct the said Special Election hereby called, with acceptance of the certification of the results of said Special Election to be performed by the City Commission. The official returns for each precinct shall be furnished to the City Clerk of the City of Miami Beach as soon as the ballots from all precincts have been tabulated SECTION 3. That the said voting precincts in the City of said Special Election shall be as established by the proper and appropriate Miami-Dade County Election Officials. All electors shall vote at the polling places and the voting precincts in which the official registration books show that the said electors reside. SECTION 4. Registration of persons desiring to vote in the Special Election shall be in accordance with the general law of the State of Florida governing voter registration. Qualified persons may obtain registration forms to vote at the Office of the City Clerk, City Hall, 1700 Convention Center Drive, First Floor, Miami Beach, Florida 33139, during normal business hours, and at such other voter registration centers and during such times as may be provided by the Supervisor of Elections of Miami-Dade County. Each person desiring to become a registered voter shall be responsible for properly filling out the registration form and returning it to the Miami-Dade County Elections Office. All questions concerning voter registration should be directed to the Miami-Dade County Elections Office, 2700 N.W. 87th Avenue, Doral, Florida 33172; Telephone: (305) 499- VOTE (8683). SECTION 5. Not less than thirty days' notice of said Special Election shall be given by publication in a newspaper of general circulation in Miami Beach, Miami-Dade County, Florida. Such publication shall be made in accordance with the provisions of §50.031 and §100.342, Florida Statutes, and Section 38-3 of the Code of the City of Miami Beach. SECTION 6. The notice of election shall be substantially in the following form: THE CITY OF MIAMI BEACH, FLORIDA NOTICE OF SPECIAL ELECTION NOTICE IS HEREBY GIVEN THAT A SPECIAL ELECTION HAS BEEN CALLED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, AND WILL BE HELD IN SAID CITY FROM 7:00 A.M. UNTIL 7:00 P.M. ON THE 5thth DAY OF NOVEMBER 2013, AT WHICH TIME THERE SHALL BE SUBMITTED TO THE DULY REGISTERED AND QUALIFIED VOTERS OF THE CITY OF MIAMI BEACH THE FOLLOWING BALLOT QUESTION: AMENDING CHARTER SECTION 1.03(b) RE: VOTER APPROVAL OF CERTAIN CITY-OWNED PROPERTY SHALL CHARTER SECTION 1.03(b) REQUIRING MAJORITY VOTER APPROVAL BEFORE CITY'S SALE, LEASE EXCEEDING TEN YEARS, EXCHANGE OR CONVEYANCE OF CONVENTION CENTER PARKING LOTS BE CHANGED TO: • REQUIRE 60%VOTER APPROVAL INSTEAD; AND • INCLUDE "CONVENTION CENTER CAMPUS" (ALL CITY-OWNED PROPERTY WITHIN CIVIC AND CONVENTION CENTER DISTRICT EXCEPT CONVENTION CENTER AND CARL FISHER CLUBHOUSE) WITHIN CATEGORY OF CITY-OWNED PROPERTIES SUBJECT TO 60% VOTER APPROVAL REQUIREMENT? (THIS CHARTER CHANGE INAPPLICABLE TO "CONVENTION CENTER PROJECT" QUESTION BELOW.) YES NO SECTION 7. That the official ballot to be used in the Special Election to be held on November 5, 2013, hereby called, shall be in substantially the following form, to-wit: OFFICIAL BALLOT AMENDING CHARTER SECTION 1.03(b) RE: VOTER APPROVAL OF CERTAIN CITY-OWNED PROPERTY SHALL CHARTER SECTION 1.03(b) REQUIRING MAJORITY VOTER APPROVAL BEFORE CITY'S SALE, LEASE EXCEEDING TEN YEARS, EXCHANGE OR CONVEYANCE OF CONVENTION CENTER PARKING LOTS BE CHANGED TO: • REQUIRE 60%VOTER APPROVAL INSTEAD; AND • INCLUDE "CONVENTION CENTER CAMPUS" (ALL CITY-OWNED PROPERTY WITHIN CIVIC AND CONVENTION CENTER DISTRICT EXCEPT CONVENTION CENTER AND CARL FISHER CLUBHOUSE) WITHIN CATEGORY OF CITY-OWNED PROPERTIES SUBJECT TO 60% VOTER APPROVAL REQUIREMENT? (THIS CHARTER CHANGE INAPPLICABLE TO "CONVENTION CENTER PROJECT" QUESTION BELOW.) YES NO SECTION 8. That the absentee voters participating in said Special Election shall be entitled to cast their ballots in accordance with the provisions of the Laws of the State of Florida with respect to absentee voting. SECTION 9. That the City of Miami Beach shall pay all expenses for conducting this Special Election and will pay to Miami-Dade County or directly to all persons or firms, upon receipt of invoice or statement approved by the Supervisor of Elections of Miami-Dade County, Florida. SECTION 10. If any section, sentence, clause or phrase of the proposed ballot measure 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 said ballot measure. SECTION 11. This Resolution shall be effective upon its passage. PASSED and ADOPTED this /?f6 day of J , 2013. ATTEST: YZ .. . ERRE B R, MAYOR RAFAEL E. GRANADO, TY `,REF RATED: CI vlk APPROVED AS TO FORM &LANGUAGE & FOR EXECUTION ney ate PROPOSED BALLOT TITLE AND BALLOT SUMMARY AND CHARTER TEXT: NOVEMBER 5, 2013 SPECIAL ELECTION I. PROPOSED BALLOT TITLE AND BALLOT SUMMARY: AMENDING CHARTER SECTION 1.03(b) RE: VOTER APPROVAL OF CERTAIN CITY-OWNED PROPERTY SHALL CHARTER SECTION 1.03(b) REQUIRING MAJORITY VOTER APPROVAL BEFORE CITY'S SALE, LEASE EXCEEDING TEN YEARS, EXCHANGE OR CONVEYANCE OF CONVENTION CENTER PARKING LOTS BE CHANGED TO: • REQUIRE 60%VOTER APPROVAL INSTEAD; AND • INCLUDE "CONVENTION CENTER CAMPUS" (ALL CITY-OWNED PROPERTY WITHIN CIVIC AND CONVENTION CENTER DISTRICT EXCEPT CONVENTION CENTER AND CARL FISHER CLUBHOUSE) WITHIN CATEGORY OF CITY-OWNED PROPERTIES SUBJECT TO 60% VOTER APPROVAL REQUIREMENT? (THIS CHARTER CHANGE INAPPLICABLE TO "CONVENTION CENTER PROJECT" QUESTION BELOW.) YES NO II. PROPOSED CHARTER TEXT: Sec. 1.03. -Powers of city. (b) Alienability of property. 2. The sale,exchange,conveyance or lease of ten years or longer of the following properties shall also require approval by a majority vote of the voters in a City-wide referendum: (1) Lots West of the North Shore Open Space Park: All City-owned property bounded by 87th Street on the North, Collins Avenue on the East, 79`h Street on the South, and Collins Court on the West; (2) Cultural Campus: All nd City-owned property bounded by 22 Street on the North, Park Avenue on the West, 21" Street on the South, and Miami Beach Drive on the East; (3) 72nd Street Parking Lot: The City-owned surface parking lot bounded by 73 d Street on the North, Collins Avenue on the East, 72nd Street on the South, and Harding Avenue on the West; (4) Cenvenfien Genteir Park4ng-Lots.- All City ev%° rfac°paFld g lots test ed the Givie and Convention Center- Distr-iet, generally betmded by Lineoln Lane on the South, Washingto Avenue on the East, MeFidian Avenue on the West and Dade Boulevard on the ; and (54) Lincoln Road Parking Lots: All City-owned surface parking lots in the vicinity of Lincoln Road located within the area bounded by 17th Street on the North, Euclid Avenue on the East, 16th Street on the South, and West Avenue on the West. 3. The sale, exchange. conveyance or lease of ten years or longer of the following properties shall require approval by vote of at least sixly(60)percent of the City's voters voting thereon in a City-wide referendum: (1) Convention Center Parking Lots:All City-owned surface parking lots located in the Civic and Convention Center District, e�y bounded by Lincoln Lane on the South, Washington Avenue on the East, Meridian Avenue on the West and Dade Boulevard on the North; (2) Convention Center Campus: All City-owned grope , except for the Convention Center and Carl Fisher Club House, located within the Civic and Convention Center District(includes City Hall, 1701 Meridian Street, 555 17t' Street, 21" Street Community Center, The Fillmore Miami Beach/Jackie Gleason Theater, and the 17`h Street Parkins Garage), All local laws, charter provisions and ordinances of the City in conflict with this provision are hereby repealed. This provision shall become effective immediately pon acceptance of the certification of election results by the City Commission. Remaining subsections to be renumbered. F:\ATTO\SMIJ\Resolutions\Election Resolution July 11 2013.docx MIAMI BEACH JOSE SMITH, CITY ATTORNEY OFFICE OF THE CITY ATTORNEY COMMISSION MEMORANDUM TO: Mayor Matti Herrera Bower Members of the City Commission CC: Jimmy Morales, City Mana FROM: Jose Smith, City Attorney -� DATE: July 17, 2013 Ll SUBJECT: Initiative Petition From "Let Miami Beach Decide". Pursuant to Charter Section 7.04, the City Clerk delivered to the City Commission an Initiative Petition from "Let Miami Beach Decide, "a political committee organized on April 4, 2013. The Petition proposes an amendment to Section 1.03(b) of the City Charter. Thereafter, on June 12, 2013, the City Clerk transmitted the Petition to the Miami-Dade County Elections Department to determine whether it was signed by at least ten (10) percent of the qualified electors in Miami Beach. The Elections Department on July 2, 2013, certified that the Petition contained 5,329 valid signatures, exceeding the required number. ' I. Must the City Place the Proposed Charter Amendment on the Ballot? The City must place the proposed Charter Amendment on the ballot unless it is found to be unconstitutional "in its entirety and on its face", Dade County v. Dade County League of Municipalities, 104 So.2d 512 (Fla.1958); City of Ft. Pierce v. McCarty, 422 So.2d 1094 (Fla. 4th DCA 1982); Brooks v. Watchtower Bible & Tract Society of Florida, Inc., 706 So.2d 85, 90 (Fla. 4th DCA 1998). Having reviewed the relevant case law, I can conclude that the proposed Charter Amendment is constitutional and should therefore be placed on the ballot pursuant to the provisions of the County Charter. 2 ' Miami Dade County Charter Section 6.03 2 "...Its [the affected municipality's] governing body shall, within 120 days after ...the certification of a petition of ten percent of the qualified electors of the municipality, draft ...a proposed Charter Amendment." Id. Agenda Item 97 M Date - -1 Memo re:Initiative Petition July 17, 2013 II. Does the Proposed Charter Amendment Apply to the Convention Center R.F.Q? New legislation is not usually retroactive unless there is a clear intent to make it so in the legislative history. State Farm Mutual Insurance v. Laforet, 658 So. 2d 55 (Fla. 1995); Arrow Air, Inc. v. Walsh, 645 So. 2d 422 (Fla. 1994). Considering the opposition to the Convention Center RFQ by Commissioner Jonah Wolfson, and the attendant publicity generated by his Political Committee "Let Miami Beach Decide", it is clear that the petition is intended to apply to the Convention Center RFQ. The critical question, however (the big elephant in the room), is whether it can legally be applied retroactively. The Florida Supreme Court answered the question when it held in State Farm Mutual Automobile Insurance Companv v. La Foret, 658 So. 2d 55 (Fla. 1995) that: "Even when the Legislature does expressly state that a statute is to have retroactive application, this Court has refused to apply a statute retroactively if the statute impairs vested rights, creates new obligations. or imposes new penalties. (emphasis supplied) See also McCord v. Smith, 43 So. 2d 704 (Fla. 1950). In recognition of this well settled law, the City specifically excluded pending "bids" from a 2004 Charter Amendment to the same section at issue here: Section 1.03(b). The approved amendment provided that: "The terms of this Charter section shall not apply to any valid written contractual commitments or bids or bonded indebtedness, which commitments, bids or indebtedness existed prior to January 14, 2004;" See Resolution No. 2004-25464 calling for a March 9, 2004 special election to amend Charter Section 1.03 (b) by requiring voter approval before lease or disposal of Convention Center Parking Lots). Consistent with the existing Charter requirement, the City's RFQ 22-11/12 for the Convention Center project provided for a simple majority vote prior to the long term lease of adjacent properties: • RFQ 22-11/12 (at pg.13): F. Referendum Proposers are hereby advised that any submitted proposals, which contemplate the use of any or all of the City-owned properties referenced in this RFQ will be subject to the requirements of Section 1.03(b)(2) of the Miami Beach City Charter, which requires that any sale, exchange, conveyance or lease of ten (10) years or longer of such properties by the City shall also require approval by a majority vote of residents in a City- wide referendum. 2 Memo re: Initiative Petition July 17, 2013 In contrast, the proposed Charter amendment increases the voter approval threshold from "majority" to "60% and also includes additional property (i.e., "Convention Center Campus" within the category of City owned properties subject to voter consent: • INITIATIVE PETITION: 3. The sale, exchange, conveyance or lease of ten years or longer of the following properties shall require approval by vote of at least sixty(60) percent of the City's voters voting thereon in a City-wide referendum: (1) Convention Center Parking Lots: All City-owned surface parking lots located in the Civic and Convention Center District, generally bounded by Lincoln Lane on the South, Washington Avenue on the East, Meridian Avenue on the West and Dade Boulevard on the North; (2) Convention Center Campus: All City-owned property, except for the Convention Center and Carl Fisher Club House, located within the Civic and Convention Center District (includes City Hall, 1701 Meridian Street, 555 17th Street, 21st Street Community Center, The Fillmore Miami Beach/ Jackie Gleason Theater, and the 17th Street Parking Garage). All local laws, Charter provisions and ordinances of the City in conflict with this provision are hereby repealed. This provision shall become effective immediately upon acceptance of the certification of election results by the City Commission. Having received responsive proposals from bidders in 2012, relying on the existing 50% threshold in Charter Section 1.03 (b), it is unlikely that a court would now endorse a new, 60% threshold, particularly after Letters of Interest (L.O.I.) were received and a Development Agreement will soon be negotiated. It is a basic principle of procurement law that material criteria and specifications in an RFQ may not be changed, City of Sweetwater v. Solo Construction Corp., 823 So. 2d 798 (Fla. 3rd DCA 2002). In City of Miami Beach v. Klinger, 179 So. 2d 864 (Fla. 3rd DCA 1965), the City issued invitations for bids for a five year marine dockage concession in one of its piers. Although the City awarded the contract to the best bidder, it latter added a five year option to the contract, contrary to the bid specifications calling for only a five year term. Declaring the contract null and void, the court noted that the City lacked authority to change the bid terms and that the bid ultimately accepted differed materially and substantially from the invitation. If the City cannot change the RFQ terms, neither can the change be made by an initiative petition because the power of initiative is limited solely to matters that are within the realm of municipal authority. See, Barnes v. City of Miami, 47 So.2d 3, 4 (Fla. 1950); Gaines v. City of Orlando. 450 So.2d 1174,1181 (Fla. 5t DCA 1984): "...it follows that if the City could not by ordinance or Charter Amendment command the OUC not to build the electrical plant under construction, or any other one, the voters acting through the initiative or referendum process cannot do so either." Thus, in my opinion, while there is no case directly on point, it is doubtful that the proposed Charter Amendment can be applied retroactively to the Convention Center RFQ 3 Memo re:Initiative Petition July 17, 2013 because it would impact vested rights and impose new duties and conditions on the proposers as well as upon the City. The concept of "vested rights" is similar to the principle of equitable estoppel often applied in zoning and land use cases As stated in Town of Large v. Imperial Homes Corporation, 309 So 2d 571 (Fla. 2nd DCA 1975): `Stripped of the legal jargon which lawyers and judges have obfuscated it with, the theory of estoppel amounts to nothing more than an application of the rules of fair play. One party will not be permitted to invite another onto a welcome mat and then be permitted to snatch the mat away to the detriment of the party induced or permitted to stand thereon. A citizen is entitled to rely on the assurances and commitments of a zoning authority and if he does, the zoning authority is bound by its representations, whether they be in the form of words or deeds...' (emphasis supplied) See Sakolsky v. City of Coral Gables, 151 So. 2d 433 (Fla. 1963) (applying equitable estoppel even where permit holder was aware that permit status could change due to an upcoming election). City of Gainesville v. Bishop, 174 So. 2d 100 (Fla. 1St DCA 1964) applying equitable estoppel even where permit holder was on notice that the permit could be rescinded due to a recent election). III. Drafting the Ballot Questions. In drafting the ballot language, the City must comply with Florida Statute section 101.161(1), providing that: "...Whenever a constitutional amendment or other public measure is submitted to the vote of the people, a ballot summary of such amendment or other public measure shall be printed in clear and unambiguous language on the ballot..." (emphasis supplied). The Statute requires the City to explain the chief purpose, meaning and ramifications of the proposed Charter Amendment so that voters are not confused or mislead. Where there are two seemingly inconsistent measures on the same ballot, case law requires the city to exercise extreme caution to avoid voter confusion. 3 For example, in Kobrin v. Leahy, 528 So.2d 392 (Fla. 3d DCA 1988), Miami-Dade County was held to be in violation of 101.161 by failing to explain the true meaning of a ballot question which provided that the County Commission would serve as the governing board of the Fire and Rescue Service District, but failed to disclose that upon approval the existing governing body of the Fire and Rescue District would be eliminated. By its failure to explain its effect upon the existing governing body, the ballot measure was found to be misleading and confusing to voters especially since a separate ballot measure provided for election of members to the existing governing board. 3 Indeed, in a June 5, 2013 Miami Herald article by Christina Veiga it was reported that: "It's unclear what would happen if both Wolfson's proposal and the already —required ballot question both end up on the same ballot --- and what would happen if one proposal passes but not another, or if both pass at the same time." 4 Memo re:Initiative Petition July 17, 2013 Other cases finding ballot language defective for failing to provide clear and unambiguous language are equally compelling as to the need to ensure that the electorate knows the meaning and ramifications of the ballot language: See, Wadhams v. Bd. of County Comm'rs, 567 So.2d 414 (Fla.1990) (holding voters were misled when not advised that the chief purpose of the omitted material was to curtail Charter Review Board's presently existing unrestricted right to meet); Askew v. Firestone, 421 So.2d 151 (Fla.1982) (holding voters were misled by a ballot proposal amending the state constitution to permit former elected officials to lobby during first two years after departure upon filing of financial disclosure, but making no mention the amendment would supersede presently existing complete two-year ban); and Armstrong v. Harris, 773 So. 2d,7 (Fla. 2000) (where measure's true effect is not stated, the measures "fly under false colors" and "hides the ball"). As in Kobrin, if the ballot question does not state precisely whether or not it affects the pending RFQ a Court is likely to void it as "fatally defective." The ballot question must be drafted so that it does not hide the true meaning of the Charter Amendment. The way to accomplish this is to state whether it applies to the Convention Center transaction. IV. Resolving Doubt by Seeking Declaratory Relief For the City to comply with its duty to provide clear and unambiguous language when drafting the ballot question it must draft language informing the voters of its impact (if any) on the pending Convention Center transaction 4. This requires an initial determination of whether the proposed Charter amendment unlawfully intrudes upon the bid proposers vested rights or imposes new duties or obligations upon the City and/or the proposers. Although there are valid legal grounds suggesting that the Charter Amendment should not apply to the Convention Center transaction, in the absence of a Court order addressing this issue, the City remains in doubt. In turn, it also casts doubt on the City's ability to ensure compliance with its statutory duty to inform the voters of the measure's impact. Accordingly, I recommend the following: A. The City ommission should authorize me to file an action for Declaratory Relief Y ry 4 Suggested ballot question to read: AMENDING CHARTER SECTION 1.03(b) RE:VOTER APPROVAL OF CERTAIN CITY-OWNED PROPERTY Shall Charter section 1.03(b) requiring majority voter approval before City's sale, lease exceeding ten years, exchange or conveyance of Convention Center parking lots be changed to require 60% voter approval instead, and to include "Convention Center Campus" (all City-owned property within Civic and Convention Center District except Convention Center and Carl Fisher Clubhouse)within category of City-owned properties subject to 60% voter approval requirement? (This Charter change / to "Convention Center" question below.) applicable inapplicable 5 Memo re: Initiative Petition July 17, 2013 pursuant to Florida Statute section 86.02 15, seeking a Court Order determining the City's compliance with Florida Statute section 101.161 concerning the proposed Charter Amendment's doubtful applicability to the Convention Center transaction. Specifically, the ultimate issue for the Court is whether the proposed Charter amendment unlawfully intrudes upon the proposers vested rights or imposes new duties or obligations upon the City and/or the proposers. B. If the City Commission agrees with my recommendation, the Declaratory action should be filed before the November 5, 2013 election. See, West Palm Beach Assn of Firefighters, Local Union 727 v. Board of City Com'rs of City of West Palm Beach, 448 So.2d 1212 (Fla. 4 DCA 1984), in which the Court held that the "preferred procedure" for determining these issues is for the City to file an action for declaratory relief prior to the election. The Court reasoned that doing so would "preclude or forestall the possible expenditure of funds in a useless act" if the election is later set aside. See also Dade County v. Dade County League of Municipalities 104 So 2d 512 (Fla. 1958); City of Ft. Pierce v. McCarty, 422 So 2d 1094 (Fla. 4" DCA 1982). C. All affected parties "...who have or claim any interest which would be affected by the declaration..." shall be designated as parties to the Declaratory action (Fla. Stat. sec. 86.091), with the ability to present and argue their respective positions. D. Included within the Complaint for Declaratory Relief should be a request for expedited Court resolution, in light of the related time deadline for placement of the Charter Amendment on the November 5, 2013 ballot6: "...The court may order a speedy hearing of an action for a declaratory judgment and may advance it on the calendar..."(Fla. Stat. sec. 86.111) V. Conclusion The Convention Center RFQ process leading to the City Commission's vote to award a bid on July 17, 2013 is one of the most significant decisions the City will ever make. Whatever action is taken will affect the City's residents, business owners and visitors for generations to come. In this memorandum, I have attempted, to the best of my ability, to examine all legal issues fairly and objectively, without regard to politics, parties or my own personal views on what is in the best interest of the City. It represents solely my legal opinion. Some may 5 Any person claiming to be interested or who may be in doubt about his or her rights under a deed, will, contract, or other article, memorandum, or instrument in writing or whose rights, status, or other equitable or legal relations are affected by a statute, or any regulation made under statutory authority, or by municipal ordinance, contract, deed, will, franchise, or other article, memorandum, or instrument in writing may have determined any question of construction or validity arising under such statute, regulation, municipal ordinance, contract, deed, will, franchise, or other article, memorandum, or instrument in writing, or any part thereof, and obtain a declaration of rights, status, or other equitable or legal relations thereunder." (Emphasis added.) Fla. Stat. sec. 86.021. 6 The City's Resolution placing said Charter Amendment on the November 5, 2013 ballot must be adopted by September 6, 2013 (date subject to City Clerk's confirmation with County Elections Department). 6 Memo re:Initiative Petition July 17,2013 disagree with it, particularly those who went through the trouble and expense of signing the Initiative Petition. Their voices should be respected. Therefore, I recommend authorization to file a Declaratory Action under Florida Statute 86.021 to resolve and formally adjudicate all legal issues addressed in this Memorandum. In the event the Commission decides not to file suit at this time, and instead place the Charter Amendment on the City's November 5, 2013 ballot, I have placed a Resolution calling for such election on today's agenda, which Resolution may be adopted at today's meeting. JS/JO/mmd F:\ATTO\SMIJ\COMMISSION MEMOS\Let Miami Beach Decide July 10 2013.docx 7 ORIGINAL IM MIAMI BEACH JOSE SMITH, CITY ATTORNEY OFFICE OF THE CITY ATTORNEY COMMISSION MEMORANDUM TO: Mayor Matti Herrera Bower Members of the City Commission CC: Jimmy Morales, City Ma er FROM: Jose Smith, City y Attor v DATE: July 17, 2013 SUBJECT: A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA CALLING FOR A SPECIAL ELECTION TO BE HELD ON TUESDAY, NOVEMBER 5, 2013, FOR THE PURPOSE OF SUBMITTING TO THE ELECTORATE OF THE CITY OF MIAMI BEACH A QUESTION ASKING WHETHER CITY CHARTER SECTION 1.03(b) REQUIRING MAJORITY VOTER APPROVAL BEFORE THE CITY'S SALE, LEASE EXCEEDING TEN YEARS, EXCHANGE OR CONVEYANCE OF CONVENTION CENTER PARKING LOTS SHOULD BE CHANGED TO REQUIRE 60% VOTER APPROVAL INSTEAD, AND TO INCLUDE "CONVENTION CENTER CAMPUS" (ALL CITY-OWNED PROPERTY WITHIN CIVIC AND CONVENTION CENTER DISTRICT EXCEPT CONVENTION CENTER AND CARL FISHER CLUBHOUSE) WITHIN THE CATEGORY OF CITY- OWNED PROPERTIES SUBJECT TO 60% VOTER APPROVAL REQUIREMENT, AND CLARIFYING THAT THIS CHARTER CHANGE IS INAPPLICABLE TO THE "CONVENTION CENTER" BALLOT QUESTION (TO BE PRESENTED SIMULTANEOUSLY ON THE NOVEMBER 5, 20'13 BALLOT). Along with today's agenda items concerning the City Commission's discussion of Miami- Dade County's Certification of the Initiative Petition, sponsored by "Let Miami Beach Decide", and my Commission Memorandum relating to it, the attached Resolution has been prepared if the Commission decides to schedule an election at this time. The Resolution calls for a City of Miami Beach Special Election to be held on November 5, 2013 for purposes of presenting a ballot measure to the electorate regarding the proposed amendment to City Charter section 1.03, whereby: • The requirement to obtain majority voter approval before the City's sale, lease exceeding ten years, exchange or conveyance of Convention Center parking lots shall be changed to require 60% voter approval instead; • The category of City-owned properties subject to this 60% voter approval requirement shall be increased to include the "Convention Center Campus" (defined in the Initiative Petition as: all City-owned property within Civic and Convention Center District except Convention Center and Carl Fisher Clubhouse); and In compliance with Florida Statute 101.161(1), voter confusion shall be avoided by clarifying that this Charter change is inapplicable to the "Convention Center" ballot question (said question to be presented simultaneously on the City's November 5, 2013 ballot). F:\ATTO\SMIJ\COMMISSION MEMOS\Election Memorandum July 2013.docx RESOLUTION NO. A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA CALLING FOR A SPECIAL ELECTION TO BE HELD ON TUESDAY, NOVEMBER 5, 2013, FOR THE PURPOSE OF SUBMITTING TO THE ELECTORATE OF THE CITY OF MIAMI BEACH A QUESTION ASKING WHETHER CITY CHARTER SECTION 1.03(b) REQUIRING MAJORITY VOTER APPROVAL BEFORE THE CITY'S SALE,LEASE EXCEEDING TEN YEARS, EXCHANGE OR CONVEYANCE OF CONVENTION CENTER PARKING LOTS SHOULD BE CHANGED TO REQUIRE 60% VOTER APPROVAL INSTEAD, AND TO INCLUDE "CONVENTION CENTER CAMPUS" (ALL CITY-OWNED PROPERTY WITHIN CIVIC AND CONVENTION CENTER DISTRICT EXCEPT CONVENTION CENTER AND CARL FISHER CLUBHOUSE) WITHIN THE CATEGORY OF CITY-OWNED PROPERTIES SUBJECT TO 60% VOTER APPROVAL REQUIREMENT, AND CLARIFYING THAT THIS CHARTER CHANGE IS INAPPLICABLE TO THE"CONVENTION CENTER" BALLOT QUESTION (TO BE PRESENTED SIMULTANEOUSLY ON THE NOVEMBER 5, 2013 BALLOT). NOW,THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH: SECTION 1. In accordance with provisions of the Charter of the City of Miami Beach, Florida and the general laws of the State of Florida,a Special Election is hereby called and directed to be held in the City of Miami Beach, Florida, from 7:00 a.m. to 7:00 p.m. on Tuesday, November 5, 2013, for the purpose of submitting to the electorate the question as set forth hereinbelow. SECTION 2. That the appropriate and proper Miami-Dade County election officials shall conduct the said Special Election hereby called, with acceptance of the certification of the results of said Special Election to be performed by the City Commission. The official returns for each precinct shall be furnished to the City Clerk of the City of Miami Beach as soon as the ballots from all precincts have been tabulated SECTION 3. That the said voting precincts in the City of said Special Election shall be as established by the proper and appropriate Miami-Dade County Election Officials. All electors shall vote at the polling places and the voting precincts in which the official registration books show that the said electors reside. SECTION 4. Registration of persons desiring to vote in the Special Election shall be in accordance with the general law of the State of Florida governing voter registration. Qualified persons may obtain registration forms to vote at the Office of the City Clerk, City Hall, 1700 Convention Center Drive, First Floor, Miami Beach, Florida 33139, during normal business hours, and at such other voter registration centers and during such times as may be provided by the Supervisor of Elections of desiring t become a registered voter shall be responsible for Miami Dade County. Each person des g o bec g p properly filling out the registration form and returning it to the Miami-Dade County Elections Office. All questions concerning voter registration should be directed to the Miami-Dade County Elections Office, 2700 N.W. 87th Avenue, Doral, Florida 33172; Telephone: (305)499-VOTE (8683). SECTION 5. Not less than thirty days' notice of said Special Election shall be given by publication in a newspaper of general circulation in Miami Beach, Miami-Dade County, Florida. Such publication shall be made in accordance with the provisions of§50.031 and §100.342, Florida Statutes, and Section 38-3 of the Code of the City of Miami Beach. SECTION 6. The notice of election shall be substantially in the following form: THE CITY OF MIAMI BEACH, FLORIDA NOTICE OF SPECIAL ELECTION NOTICE IS HEREBY GIVEN THATA SPECIAL ELECTION HAS BEEN CALLED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA,AND WILL BE HELD IN SAID CITY FROM 7:00 A.M. UNTIL 7:00 P.M. ON THE 5thth DAY OF NOVEMBER 2013,AT WHICH TIME THERE SHALL BE SUBMITTED TO THE DULY REGISTERED AND QUALIFIED VOTERS OF THE CITY OF MIAMI BEACH THE FOLLOWING BALLOT QUESTION: AMENDING CHARTER SECTION 1.03(b) RE: VOTER APPROVAL OF CERTAIN CITY-OWNED PROPERTY SHALL CHARTER SECTION 1.03(b) REQUIRING MAJORITY VOTER APPROVAL BEFORE CITY'S SALE, LEASE EXCEEDING TEN YEARS, EXCHANGE OR CONVEYANCE OF CONVENTION CENTER PARKING LOTS BE CHANGED TO REQUIRE 60%VOTER APPROVAL INSTEAD, AND TO INCLUDE "CONVENTION CENTER CAMPUS" (ALL CITY-OWNED PROPERTY WITHIN CIVIC AND CONVENTION CENTER DISTRICT EXCEPT CONVENTION CENTER AND CARL FISHER CLUBHOUSE) WITHIN CATEGORY OF CITY-OWNED PROPERTIES SUBJECT TO 60% VOTER APPROVAL REQUIREMENT? (THIS CHARTER CHANGE INAPPLICABLE TO"CONVENTION CENTER"QUESTION BELOW.) YES NO 2 SECTION 7. That the official ballot to be used in the Special Election to be held on November 5, 2013, hereby called, shall be in substantially the following form, to-wit: OFFICIAL BALLOT AMENDING CHARTER SECTION 1.03(b) RE: VOTER APPROVAL OF CERTAIN CITY-OWNED PROPERTY SHALL CHARTER SECTION 1.03(b) REQUIRING MAJORITY VOTER APPROVAL BEFORE CITY'S SALE, LEASE EXCEEDING TEN YEARS, EXCHANGE OR CONVEYANCE OF CONVENTION CENTER PARKING LOTS BE CHANGED TO REQUIRE 60%VOTER APPROVAL INSTEAD, AND TO INCLUDE "CONVENTION CENTER CAMPUS" (ALL CITY-OWNED PROPERTY WITHIN CIVIC AND CONVENTION CENTER DISTRICT EXCEPT CONVENTION CENTER AND CARL FISHER CLUBHOUSE) WITHIN CATEGORY OF CITY-OWNED PROPERTIES SUBJECT TO 60%VOTER APPROVAL REQUIREMENT? (THIS CHARTER CHANGE INAPPLICABLE TO"CONVENTION CENTER"QUESTION BELOW.) YES NO SECTION 8. That the absentee voters participating in said Special Election shall be entitled to cast their ballots in accordance with the provisions of the Laws of the State of Florida with respect to absentee voting. SECTION 9. That the City of Miami Beach shall pay all expenses for conducting this Special Election and will pay to Miami-Dade County or directly to all persons or firms, upon receipt of invoice or statement approved by the Supervisor of Elections of Miami-Dade County, Florida. SECTION 10. If any section, sentence, clause or phrase of the proposed ballot measure 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 said ballot measure. SECTION 11. This Resolution shall be effective upon its passage. PASSED and ADOPTED this day of , 2013. ATTEST: MATTI HERRERA BOWER, MAYOR APPROVED AS TO RAFAEL E. GRANADO, CITY CLERK FORM&LANGUAGE dj&F O EXECUTION 3 y Attorney bate PROPOSED BALLOT TITLE AND BALLOT SUMMARY AND CHARTER TEXT: NOVEMBER 5, 2013 SPECIAL ELECTION I. PROPOSED BALLOT TITLE AND BALLOT SUMMARY: AMENDING CHARTER SECTION 1.03(b) RE: VOTER APPROVAL OF CERTAIN CITY-OWNED PROPERTY SHALL CHARTER SECTION 1.03(b) REQUIRING MAJORITY VOTER APPROVAL BEFORE CITY'S SALE, LEASE EXCEEDING TEN YEARS, EXCHANGE OR CONVEYANCE OF CONVENTION CENTER PARKING LOTS BE CHANGED TO REQUIRE 60%VOTER APPROVAL INSTEAD, AND TO INCLUDE "CONVENTION CENTER CAMPUS" (ALL CITY-OWNED PROPERTY WITHIN CIVIC AND CONVENTION CENTER DISTRICT EXCEPT CONVENTION CENTER AND CARL FISHER CLUBHOUSE) WITHIN CATEGORY OF CITY-OWNED PROPERTIES SUBJECT TO 60% VOTER APPROVAL REQUIREMENT? (THIS CHARTER CHANGE INAPPLICABLE TO"CONVENTION CENTER"QUESTION BELOW.) YES NO I. PROPOSED CHARTER TEXT: Sec. 1.03.-Powers of city. (b) Alienability of property. 2. The sale,exchange,conveyance or lease of ten years or longer of the following properties shall also require approval by a majority vote of the voters in a City-wide referendum:(I)Lots West of the North Shore Open Space Park:All City-owned property bounded by 87th Street on the North,Collins Avenue on the East,79h Street on the South,and Collins Court on the West;(2)Cultural Campus:All City-owned property bounded by nd 22 Street on the North,Park Avenue on the West,2151 Street on the South,and Miami Beach Drive on the East;(3)72"d Street Parking Lot:The City- owned surface parking lot bounded by 73`d Street on the North,Collins Avenue on the East,72nd Street on the South,and Harding Avenue on the West; Lineeln Lane en the South,Washington Avenue on the Past,Mer-idian Avenue An the U.'e-st And-D__;we Beuievam an the ;and(34)Lincoln Road Parking Lots:All City-owned surface parking lots in the vicinity of Lincoln Road located within the area bounded by 17"Street on the North,Euclid Avenue on the East, 16'h Street on the South,and West Avenue on the West. 3. The sale,exchange.conveyance or lease of ten years or longer of the following properties shall require approval by vote of at least sixty(60)percent of the City's voters voting thereon in a City-wide referendum:(1)Convention CenterParkinQLots:All City-owned surface parking lots located in the Civic and Convention Center District,generally bounded by Lincoln Lane on the South,Washington Avenue on the East,Meridian Avenue on the West and Dade Boulevard on the North;(2)Convention Center Campus:All City-owned property,except for the Convention Center and Carl Fisher Club House,located within the Civic and Convention Center District(includes City Hall, 1701 Meridian Street,555 17'''Street,2151 Street Community Center,The Fillmore Miami Beach/Jackie Gleason Theater,and the 17"Street Parking Garage),All local laws,charter provisions and ordinances of the City in conflict with this provision are hereby repealed.This provision shall become effective immediately upon acceptance of the certification of election results by the City Commission. Remaining subsections to be renumbered. 4 REVISED IM MIAMI BEACH JOSE SMITH, CITY ATTORNEY OFFICE OF THE CITY ATTORNEY COMMISSION MEMORANDUM TO: Mayor Matti Herrera Bower Members of the City Commission CC: Jimmy Morales, City Man r FROM: Jose Smith, City A or ey ° DATE: July 17, 2013 SUBJECT: A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA CALLING FOR A SPECIAL ELECTION TO BE HELD ON TUESDAY, NOVEMBER 5, 2013, FOR THE PURPOSE OF SUBMITTING TO THE ELECTORATE OF THE CITY OF MIAMI BEACH A QUESTION ASKING WHETHER CITY CHARTER SECTION 1.03(b) REQUIRING MAJORITY VOTER APPROVAL BEFORE THE CITY'S SALE, LEASE EXCEEDING TEN YEARS, EXCHANGE OR CONVEYANCE OF CONVENTION CENTER PARKING LOTS SHOULD BE CHANGED TO REQUIRE 60% VOTER APPROVAL INSTEAD, AND TO INCLUDE "CONVENTION CENTER CAMPUS" (ALL CITY-OWNED PROPERTY WITHIN CIVIC AND CONVENTION CENTER DISTRICT EXCEPT CONVENTION CENTER AND CARL FISHER CLUBHOUSE) WITHIN THE CATEGORY OF CITY- OWNED PROPERTIES SUBJECT TO 60% VOTER APPROVAL REQUIREMENT, AND CLARIFYING THAT THIS CHARTER CHANGE IS INAPPLICABLE TO THE "CONVENTION CENTER PROJECT" BALLOT QUESTION (TO BE PRESENTED SIMULTANEOUSLY ON THE NOVEMBER 5, 2013 BALLOT). Along with today's agenda items concerning the City Commission's discussion of Miami- Dade County's Certification of the Initiative Petition, sponsored by "Let Miami Beach Decide", and my Commission Memorandum relating to it, the attached Resolution has been prepared if the Commission decides to schedule an election at this time. The Resolution calls for a City of Miami Beach Special Election to be held on November 5, 2013 for purposes of presenting a ballot measure to the electorate regarding the proposed amendment to City Charter section 1.03, whereby: • The requirement to obtain majority voter approval before the City's sale, lease exceeding ten years, exchange or conveyance of Convention Center parking lots shall be changed to require 60% voter approval instead; • The category of City-owned properties subject to this 60% voter approval requirement shall be increased to include the "Convention Center Campus" Agenda Item R 7 M Date �-1�-13 (defined in the Initiative Petition as: all City-owned property within Civic and Convention Center District except Convention Center and Carl Fisher Clubhouse); and ® In compliance with Florida Statute 101.161(1), voter confusion shall be avoided by clarifying that this Charter change is inapplicable to the "Convention Center Project" ballot question (said question to be presented simultaneously on the City's November 5, 2013 ballot). 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