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20101027 Regular Reduced detail ocrCity Commission Meeting City Hall, Commission Chambers, 3rd Floor, 1700 Convention Center Drive October 27,2010 Mayor Matti Herrera Bower Vice-Mayor Jorge Exposito Commissioner Michael G6ngora Commissioner Jerry Libbin Commissioner Edward L. Tobin Commissioner Deede Weithorn Commissioner Jonah Wolfson City Manager Jorge M. Gonzalez City Attorney Jose Smith City Clerk Robert E. Parcher Visit us af www.miamibeachfl.gov for agendas and video "streaming" of City Commission Meetings. ATTENTION ALL LOBBYISTS Chapter 2, Article VII, Division 3 of the City Code of Miami Beach entitled "Lobbyists" requires the registration of all lobbyists with the City Clerk prior to engaging in any lobbying activity with the City Commission, any City Board or Committee, or any personnel as defined in the subject Code sections. Copies of the City Code sections on lobbyists laws are available in the City Clerk's office. Questions regarding the provisions of the Ordinance should be directed to the Office of the City Attorney. REGULAR AGENDA R5 - Ordinances R5A An Ordinance Amending Miami Beach City Code, Chapter 90, Entitled "Solid Waste," By Amending Appendix A To Section 90-137(a) Entitled "Fee Schedule" For City Collection And Disposal Of Garbage And Trash, And Decreasing The Current Rates By $1.58; Providing For Repealer, Severability, Codification, And An Effective Date. 10:15 a.m. Second Readinn Public Hearing (Page 205) (Public Works) (First Reading on September 20, 2010) Regular Agenda, October 27,201 0 R5 - Ordinances (Continued) R5B An Ordinance Amending Chapter 82 Of The City Code, Entitled "Public Property", By Amending Article VI, Entitled "Naming Of Public Facilities And Establishments Of Monuments And Memorials", By Amending Section 82-501(C)(1) - (3) Thereof, To Provide That The New World Symphony Leased Premises, As Same Are Described In The Lease Agreement Between The City And New World Symphony (NWS Or Tenant), Dated January 15, 2004, And Including The NWS Building And Other Tenant Improvements (As Defined In The Lease), But Not Including The City Park (Currently Referred To As "Lincoln Park), The City Garage (Currently Referred To As The Pennsylvania Avenue Garage), And/or Any Other City-Owned Buildings, Structures, Furnishings, Fixtures, Improvements, Streets, Sidewalks, And Rights Of Way Associated With The Development Of The NWS Project, Shall Be Exempt From The Provisions Of Said Article VI, Subject To The Terms Contained In This Ordinance; Providing For Repealer, Severability, Codification And Effective Date. 10:20 a.m. Second Readinn Public Hearing (Page 21 1) (Requested by Commissioner Jonah Wolfson) (First Reading on September 15, 201 0) R5C An Ordinance Amending Chapter 82 Of The City Code, Entitled "Public Property", By Amending Article VI, Entitled "Naming Of Public Facilities And Establishments Of Monuments And Memorials", By Amending Section 82-501(C)(1) - (3) Thereof, To Provide That The City-Owned Park, Currently Referred To As "Lincoln Park," Shall Be Exempt From The Provisions Of Said Article VI, Subject To The Terms Contained In This Ordinance; Providing For Repealer, Severability, Codification And Effective Date. 10:20 a.m. Second Reading Public Hearing (Page 221) (Requested by Commissioner Jonah Wolfson) (First Reading on September 15, 2010) R5D1 Amend FLUM - 1600 Lenox Avenue An Ordinance Amending The Future Land Use Map Of The Comprehensive Plan By Changing The Future Land Use Category For The Parcel Known As "1600 Lenox Avenue," More Particularly Described In The Legal Description Attached As Exhibit "A Hereto, From The Current RM-1, "Multi-Family, Low Intensity," To The Future Land Use Category Of CD-1, "Commercial, Low Intensity;" Providing For Inclusion In The Comprehensive Plan, Transmittal, Repealer, Severability And An Effective Date. 10:30 a.m. First And Only Reading Public Hearing (Page 229) (Planning Department) R5D2 Amend Zoning District Map - 1600 Lenox Avenue An Ordinance Amending The Official Zoning District Map, Referenced In Section 142-72 Of The Code Of The City Of Miami Beach, Florida, By Changing The Zoning District Classification For The For The Parcel Known As "1600 Lenox Avenue," More Particularly Described In The Legal Description Attached As Exhibit "A Hereto, From The Current Zoning Classification RM-1, "Residential Multifamily Low Intensity," To The Proposed Zoning Classification CD-1, "Commercial, Low Intensity," With A Restriction Limiting The Property To Commercial Uses And No More Than 10 Residential Units Per Acre As Provided For In The Voluntary Covenant; Providing For Codification, Repealer, Severability And An Effective Date. 10:30 a.m. First And Onlv Reading Public Hearing (Page 241) (Planning Department) Regular Agenda, October 27,201 0 R5 - Ordinances (Continued) R5E An Ordinance Amending Part I, Subpart B, Article IX, Related Special Acts, Of The Miami Beach City Code Entitled "Pension System For Disability And Retirement Of Members Of Police And Fire Departments"; Implementing Provisions Of The 2009-2012 Collective Bargaining Agreements Between The City And Fire Fighters Of Miami Beach, IAFF Local 1510, And Miami Beach Fraternal Order Of Police, William Nichols Lodge No. 8; Amending Section 65 Entitled "Computation Of Creditable Service; Service Record", Providing For The Purchase Of Additional Creditable Service Upon Completion Of Ten Years Of Service With The City; Amending Section 66 Entitled "Service And Disability Benefits Generally," Providing For The Inclusion Of Compensation For Certain Off Duty Services In A Member's Salary For Pension Purposes, And Providing For The Sale Of Unused Sick And/or Vacation Time For lnclusion In A Member's Final Average Monthly Earnings, Subject To Certain Limitations; Revising The Limitation On Overtime Pay Included In Salary For Pension Purposes; Amending Section 67, Entitled "Cost-Of-Living Adjustment", Providing For An Annual Adjustment On The Anniversary Date Of A Member's Retirement Or Separation From Employment; "Amending Section 79 Entitled "Deferred Retirement Option Plan", Providing For A Maximum Drop Period Of Sixty Months And A Modified Cost Of Living Adjustment During The Drop Period; Creating A New Section 87 Entitled "Benefits For Employees Hired On Or After July 14, 2010; Providing For Severability; Repealing All Ordinances In Conflict Therewith; And Providing For An Effective Date. 11:OO a.m. Second Reading Public Hearing (Page 257) (Human Resources) (Continued from September 20, 201 0) R5F 10-Year Water Supply Facilities Work Plan An Ordinance Adopting A 10-Year Water Supply Facilities Work Plan And Amending The City's Comprehensive Plan To Strengthen Coordination Between Water Supply And Local Land Use Planning As Required By Florida Law; Providing For Repealer, Severability, Codification And An Effective Date. 11:30 a.m. Second Reading Public Hearing (Page 283) (Planning Department) (First Reading on July 14, 2010) R5G An Ordinance Amending The Land Development Regulations Of The Miami Beach City Code; Amending Section 1 18-593, "Historic Preservation Designation"; Amending Section 1 18-593(E), "Delineation On Zoning Map"; Amending Section 118-593(E)(1), "Historic Preservation Sites (HPS)" By Designating The Miami Beach Rod & Reel Club At 218 South Hibiscus Drive, As An Historic Site, As More Particularly Described Herein; Providing That The City's Zoning Map Shall Be Amended To Include The Miami Beach Rod & Reel Club Historic Site; Adopting The Designation Report Attached Hereto As Appendix "A; Providing For Inclusion In The Land Development Regulations Of The City Code, Repealer, Severability, And An Effective Date. 5:15 p.m. First And Onlv Reading Public Hearing (Page 329) (Planning Department) (Continued from September 15, 201 0) R5H An Ordinance Amending Chapter 46 Of The Miami Beach City Code, Entitled "Environment," By Amending Article Ill Thereof, Entitled "Litter," By Amending Section 46-92 To Clarify And Provide For Additional Prohibitions And Definitions For Litter With Regard To Leaf Blowers And Yard Maintenance Debris, And Clarifying Penalties For Certain Litter Violations; Providing For Repealer; Severability; Codification; And An Effective Date. First Reading (Page 347) (Public Works) Regular Agenda, October 27,201 0 R5 - Ordinances (Continued) R51 Bed and Breakfast lnns An Ordinance Amending The Code Of The City Of Miami Beach Code, By Amending Chapter 142, Zoning Districts And Regulations, Article V, Specialized Use Regulations, Division 7, Bed And Breakfast Inns, Section 142-1401, Conditions For Bed And Breakfast Inns, By Modifying The Conditions For Bed And Breakfast lnns To Widen The Eligibility For Alterations; Providing For Repealer; Codification; Severability; And An Effective Date. First Reading (Page 357) (Planning Department) R5J Use of Consultants For Development Approval An Ordinance Amending The Code Of The City Of Miami Beach, By Amending Chapter 118, "Administration And Review Procedures," Article 1, "In General," Section 118-6, "Use Of, And Cost Recovery For, Consultants For Applications For Development Approval," By Specifying Requirements For Reports To Be In Writing, To Be Submitted By A Specified Deadline, And For The Author Of Said Reports To Be Present At Public Hearing; Providing For Repealer; Codification; Severability; And An Effective Date. First Reading (Page 365) (Planning Department) R5K 40th Street Religious Overlay District An Ordinance Amending The City Code, By Amending Chapter 114 Of The City Code, "Zoning Districts And Regulations," Section 114-1, "Definitions," Defining "Religious Institution"; Amending Chapter 142, "Zoning Districts And Regulations," Article Ill, "Overlay Districts," Creating Division 8, "40th Street Overlay," And By Adding Sections 142-858 "Location And Purpose," 142-859 "Compliance With Regulations," Requiring Conditional Use Approval For Religious Institutions In The 40th Street Overlay District, And 142-860 "Off-Street Parking Regulations;" And Amending Article II, "District Regulations," Division 2 "RS-1, RS-2, RS-3, RS-4 Single-Family Residential Districts," Section 142-103 "Conditional Uses," To Add Religious Institutions As A Conditional Use For Properties In The 40th Street Overlay District; And Amending Article IV, "Supplementary District Regulations," Division 4 "Supplementary Yard Regulations," Section 142-1 131 (D) "Generally," To Exempt Properties In The 40th Street Overlay District From Additional 50 Feet Minimum Side Yard Requirement For Public And Semi-public Buildings; And Amending Chapter 118 Of The City Code, "Administration And Review Procedures," Article IV, "Conditional Use Procedures," Section 118-192, "Review Guidelines," To Add Review Criteria For Religious Institutions; Providing For Codification; Repealer; Severability; And An Effective Date. First Reading (Page 373) (Planning Department) R5L Alcoholic Beverages And Nudity Regulations - Applicant: Leroy Griffith An Ordinance Amending Chapter 6, "Alcoholic Beverages," Of The Code Of The City Of Miami Beach, Florida, By Amending Sections 6-40 And 6-41 "Total Nudity And Sexual Conduct Prohibited," And "Provisions Pertaining To Establishments Permitting Partial Or Total Nudity," To Allow Establishments Licensed As Alcoholic Beverage Establishments To Offer Partial And Total Nude Adult Entertainment; Providing For Codification, Repealer, Nonseverability, And An Effective Date. First Reading (Page 387) (Planning Department) Regular Agenda, October 27,201 0 I R5 - Ordinances (Continued) R5M An Ordinance Amending The Code Of The City Of Miami Beach, By Amending Chapter 106, "Traffic And Vehicles," Article V, "Police Vehicle Towing," Division 2, "Permit," Section 106-213, "Application," To Reduce The Number Of Police Vehicle Towing Permits From Three To Two, Providing For Codification, Repealer, Severability And An Effective Date. First Reading (Page 493) (Parking Department) R5N An Ordinance Amending The Miami Beach Employees' Retirement Plan; Implementing Provisions Of The 2009-2012 Collective Bargaining Agreement Between The City And The Communications Workers Of America, Local 3178 (CWA), Providing For Severability; Repealing All Ordinances In Conflict Therewith; And Providing An Effective Date. First Reading (Page 499) (Human Resources) R50 An Emergency Ordinance Amending Chapter 14 Of The City Code To Reinsert Section 14-31 And Section 14-33, Pertaining To Violations, Penalty For Delinquency And Payment Of Fees; And Providing For Severability, Repealer, Codification, And An Effective Date. First Reading (Page 525) (Building Department) (Memorandum & Resolution To Be Submitted In Supplemental) R5P An Ordinance Amending Chapter 14 Of The City Code To Reinsert Section 14-32 And Sections 14-34 Through 14-38, Pertaining To Temporary Certificates Of Occupancy, Suspension Or Revocation Of Certificates Of Use, Rule Making Authority, Emergency Action, Administrative Hearings And Enforcement Of Orders; And Providing For Severability, Repealer, Codification, And An Effective Date. First Reading (Page 527) (Building Department) (Memorandum & Resolution To Be Submitted In Supplemental) R7 - Resolutions R7A A Resolution Approving, Following A Duly Noticed Public Hearing, A Lease Agreement Between The City And United Police Federal Credit Union, For Use Of Approximately 196 Square Feet Of City-Owned Property, Located At 1100 Washington Avenue, Rooms 110 And 11 1, Miami Beach, Florida; Said Lease Having An Initial Term Of Three (3) Years, With One Additional Three (3) Year Renewal Term, At The City's Sole Discretion; Further Waiving, By 517th~ Vote, The Competitive Bidding Requirement, As Required By Section 82-39 Of The Miami Beach City Code; Authorizing The Mayor And City Clerk To Executed The Lease Agreement. 10:45 a.m. Public Hearing (Page 531) (Real Estate, Housing & Community Development) Regular Agenda, October 27,2010 R7 - Resolutions (Continued) R7B A Resolution Ratifying A Three (3) Year Labor Agreement Between The City Of Miami Beach And The Communications Workers of America, Local 3178 (CWA), For The Period From October 1, 2009 Through September 30, 2012; Authorizing The Mayor And City Clerk To Execute The Agreement. (Page 575) (Human Resources) R7C A Resolution Accepting The Recommendation Of The City Manager Pertaining To The Ranking Of Proposals Pursuant To Request For Proposals (RFP) No. 24-09/10, For Management And/or Development Of The Byron Carlyle Theater Complex; Authorizing The Administration To Enter Into Negotiations With Broward Stage Door Theatre Co. Inc. (Page 671) (Tourism & Cultural Development) R9 - New Business and Commission Requests R9A Board And Committee Appointments. (Page 687) (City Clerk's Office) R9A1 Board And Committee Appointments - City Commission Appointments. (Page 693) (City Clerk's Office) R9B1 Dr. Stanley Sutnick Citizen's Forum. (12:30 p.m.) (Page 699) R9B2 Dr. Stanley Sutnick Citizen's Forum. (5:30 p.m.) R9C Discussion Regarding The Most Recent Report Of The Fire & Police Pension And General Pension. (Page 701) (Requested by Commissioner Jonah Wolfson) (Report To Be Submitted Via LTC No. 282-2010) R9D Discussion Regarding The Shift To iPad From Printed Agenda. (Page 703) (Requested by Commissioner Jorge R. Exposito) R9E Discussion Regarding The Port Of Miami Tunnel Project. (Page 705) (Requested by Commissioner Jorge R. Exposito) R9F Discussion Regarding Revenue Generating Opportunities / Miami Air Show. (Page 735) (Requested by Commissioner Jorge R. Exposito) Regular Agenda, October 27,201 0 R9 - New Business and Commission Requests (Continued) R9G Discussion On Whether Or Not To Require Re-Certification Of The Original Petition, As Approved By The City Commission On February 20, 2002, Pursuant To Resolution No. 2002-24761, Which Authorized The Administration And City Attorney's Office To Proceed To Work With The Residents Of Sunset Island Nos. 3 And 4 On The Creation Of A Special Assessment District For Underground Utilities. (Page 737) (City Attorney's Off ice) R9H Discussion Regarding Altos Del Mar Sculpture Park. (Page 755) (Requested by Commissioner Jonah Wolfson) R91 Discussion Regarding A Resolution Urging The United States Congress To Reject Any Weight And Length Increases For Commercial Trucks And Trailers On The National Highway System. (Page 759) (Requested by Commissioner Deede Weithorn) Reports and Informational ltems Reports and Informational ltems (see LTC # 279-2010) End of Regular Agenda MIAMIBEACH City of Miami Beach, 1700 Convention Center Drive, Miami Beach, Florida 33 139, www.miamibeachfl.gov HOW A PERSON MAY APPEAR BEFORE THE CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA THE REGULARLY SCHEDULED MEETINGS OF THE ClTY COMMISSION ARE ESTABLISHED BY RESOLUTION. SCHEDULED MEETING DATES ARE AVAILABLE ON THE CITY'S WEBSITE, DISPLAYED ON CABLE CHANNEL 77, AND ARE AVAILABLE IN THE CITY CLERKS OFFICE. COMMISSION MEETINGS COMMENCE NO EARLIER THAN 9:00 A.M. GENERALLY THE ClTY COMMISSION IS IN RECESS DURING THE MONTH OF AUGUST. DR. STANLEY SUTNICK CITIZENS' FORUM will be held during the first Commission meeting each month. The Forum is split into two (2) sessions, 1 :30 p.m. and 5:30 p.m., or as soon as possible thereafter, provided that the Commission Meeting has not already adjourned prior to the time set for either session of the Forum. In the event of adiournment prior to the Stanley Sutnick Citizens' Forum, notice will be posted on Cable Channel 77, and posted at City Hall. Approximately thirty (30) minutes will be allocated for each session, with individuals being limited to no more than three (3) minutes or for a time period established by the Mayor. No appointment or advance notification is needed in order to speak to the Commission during this Forum. 2. Prior to every Commission meeting, an Agenda and backup material are published by the Administration. Copies of the Agenda may be obtained at the City Clerk's Office on the Monday prior to the Commission regular meeting. The complete Agenda, including all backup material, is available for inspection beginning the Monday prior to the Commission meeting at the City Clerk's Office and at the following Miami Beach Branch Libraries: Main, North Shore, and South Shore. The information is also available on the City's website: www.miamibeachfl.~ov the Friday prior to a Commission Meeting. Any person requesting placement of an item on the Agenda must provide a written statement with his/her complete address and telephone number to the Office of the City Manager, 1700 Convention Center Drive, 4th Floor, Miami Beach, FI 33 139, briefly outlining the subject matter of the proposed presentation. In order to determine whether or not the request can be handled administratively, an appointment may be scheduled to discuss the matter with a member of the City Manager's staff. "Requests for Agenda Considerationr' will not be placed on the Agenda until after Administrative staff review. Such review will ensure that the issue is germane to the City's business and has been addressed in sufficient detail so that the City Commission may be fully apprised. Such written requests must be received in the City Manager's Office no later than noon on Tuesday of the week prior to the scheduled Commission meeting to allow time for processing and inclusion in the Agenda package. Presenters will be allowed sufficient time, within the discretion of the Mayor, to make their presentations and will be limited to those subiects included in their written requests. 4. Once an Agenda for a Commission Meeting is published, persons wishing to speak on item(s) listed on the Agenda, other than public hearing items and the Dr. Stanley Sutnick Citizens Forum, should call or come to City Hall, Office of the City Clerk, 1700 Convention Center Drive, telephone 673-741 1, before 5:00 p.m., no later than the day prior to the Commission meeting and give their name, the Agenda item to be discussed, and if known, the Agenda item number. 5. All persons who have been listed by the City Clerk to speak on the Agenda item in which they are specifically interested, and persons granted permission by the Mayor, will be allowed sufficient time, within the discretion of the Mayor, to present their views. When there are scheduled public hearings on an Agenda item, IT IS NOT necessary to register at the City Clerk's Office in advance of the meeting. All persons wishing to speak at a public hearing may do so and will be allowed sufficient time, within the discretion of the Mayor, to present their views. 6. If a person wishes to address the Commission on an emergency matter, which is not listed on the Agenda, there will be a period allocated at the commencement of the Commission Meeting when the Mayor calls for additions to, deletions from, or corrections to the Agenda. The decision as to whether or not the matter will be heard, and when it will be heard, is at the discretion of the Mayor. On the presentation of an emergency matter, the speaker's remarks must be concise and related to a specific item. Each speaker will be limited to three minutes, or for a longer or shorter period, at the discretion of the Mayor. 201 0 Schedule of Civ of Miami Beach Ci(y Commission and Redevelopment Agency (RDA) Meetings Meetings begin at 9:00 a.m., and are held in the City Commission Chambers, Third Floor, City Hall, 1700 Convention Center Drive, Miami Beach, Florida. COMMISSION MEETINGS January 13 (Wednesday) February 3 (Wednesday) ALTERNATE MEETINGS January 20 (Wednesday) February 10 (Wednesday) March 1 0 (Wednesday) March 1 7 (Wednesday) April 14 (Wednesday) April 2 1 (Wednesday) May 12 (Wednesday) May 26 (Wednesday) June 9 (Wednesday) No alternate meeting July 14 (Wednesday) July 28 (Wednesday) September 15 (Wednesday) No alternate meeting October 27 (Wednesday) Revised * November 1 7 (Wednesday) Revissd " November 1 0 (Wednesday) December 8 (Wednesday) December 1 5 (Wednesday) * Pursuasrsf Pe Reselufiem 20 10-27423 approved by fhe Civ Commissien QBP fhe Commissien Meefing of June gP 20 10, F:\CLER\COMMON\2010\2010 Schedule of CMB City Commission & RDA.doc AM1 BEACH CITY CLERK'S OFFICE LOBBYISTS LIST October 27,2010 COMMISSION ITEM SUMMARY Condensed Title: 1 An Ordinance amending Miami Beach City Code, Chapter 90 entitled "Solid Waste," by amending I Appendix A, Section 90--137 entitled "Fee schedule," by decreasing the fee schedule for City collection and disposal of residential garbage and trash and the operation of the Green Waste Facility. Key Intended Outcome Supported: Improve cleanliness of Miami Beach right-of-ways especially in business areas. Supporting Data (Surveys, Environmental Scan, etc.): According to the 2009 Customer Satisfaction Survey, 82.7% of respondents rated garbage and trash collection as excellent or good. issue: I Shall the Commission approve the amendment to the Ordinance on second reading? Item SummarylRecommendation: I On June 9, 2010, the Mavor and the City Commission approved the execution of an agreement with 1 Choice ~nvironmental ~ebices, Inc., (~hbice) for the collection and disposal of residential solid waste, yard trash, bulky waste, and operation of the City's Green Waste Facility. The Agreement was approved for an initial term of five years, commencing on September I, 2010, and ending on August 31, 2015, with three one year renewal options, at the City's sole discretion. After final negotiations, Choice agreed to provide the above services at a cost of $23.99 per month, per unit, which is $1.58 per month, per unit less than the current contract price of $25.57. The Administration recommends amending Appendix A, Section 90-137 entitled "Fee Schedule," by decreasing the monthly fee per unit by $1.58. The fee decrease would represent savings to single family residences and multi-family residences (up to eight units) of $18.96 per year, per residential On September 20, 2010, the Mayor and the City Commission approved the first reading of the ordinance amending the City's Code Chapter 90. THE ADMINISTRATION RECOMMENDS APPROVING THE ORDINANCE AMENDMENT ON THE SECOND READING. Advisory Board Recommendation: 1 NIA City Clerk's Office Legislative Tracking: [ AI Zamora, Sanitation Division Director, ext. 3541 1 Financial Information: I AGENDA ITEM 6A Account Source of Funds: I3 oBpl Financial Impact Summary: I 2 Total Amount MIAMIBEACH City of Miami Beach, 1700 Convention Center Drive, Miami Beach, Florida 33 139, www.miamibeachfl.gov COMMISSION MEMORANDUM TO: Mayor Matti Herrera Bower and Members of the City Commission / FROM: Jorge M. Gonzalez, City Manager SECOND READING DATE: October 27, 201 0 PUBLIC HEARING SUBJECT: AN ORDINANCE OF THE MAY @ ND CITY COMMISSION OF THE ClTY OF MIAMI BEACH, FLORIDA, AMENDING MIAMI BEACH ClTY CODE, CHAPTER 90, ENTITLED "SOLID WASTE," BY AMENDING APPENDIX A TO SECTION 90-1 37(a), ENTITLED "FEE SCHEDULE" FOR ClTY COLLECTION AND DISPOSAL OF GARBAGE AND TRASH, BY DECREASING THE CURRENT RATES THEREIN BY $1.58; PROVIDING FOR REPEALER, SEVERABILITY, CODIFICATION, AND AN EFFECTIVE DATE. ADMINISTRATION RECOMMENDATION Approve the Ordinance on Second Reading. BACKGROUND On June 9, 2010 the Mayor and City Commission authorized the Administration to execute a Service Agreement with the firm Choice Environmental Services, Inc., for the collection and disposal of residential solid waste, yard waste, bulk waste and operation of the City's Green Waste Facility. After final negotiations, Choice Environmental Services, Inc. agreed to provide these services at a cost of $23.99 per month, per unit: which represents a decrease $1.58 per month, per unit from the current contract price of $25.57. On September 20, 2010 the Mayor and the City's Commission approved the first reading of the ordinance amending the City's Code Chapter 90. ANALYSIS Decreasing fees to reflect the service costs decrease obtained through the contract with Choice Environmental Services, Inc., results in an annual savings to a single family residence or a multi-family residence (up to eight units) of $1 8.96, per residential unit. The following chart illustrates the difference in current and proposed fees charged to residents for solid waste services and the associated savings of the proposed decrease in residential solid waste fees. Commission Memorandum - Solid Waste Fee Decrease October 27,201 0 Page 2 of 2 Monthly Fees per Annual Fees per Monthly Annual Total TA Current - CONCLUSION The Administration recommends approving the ordinance amendment on Second Reading. JMGIJGGIFHB T:\AGENDA\201 O\October ZARegular\Trash Coll Fee Decrease-Memo201 O.docx ORDINANCE NO. AN ORDINANCE OF THE MAYOR AND ClTY COMMISSION OF THE ClTY OF MlAMl BEACH, FLORIDA, AMENDING MlAMl BEACH CITY CODE, CHAPTER 90, ENTITTLED "SOLID WASTE," BY AMENDING APPENDIX A TO SECTION 90-137(a), ENTITLED "FEE SCHEDULE" FOR ClTY COLLECTION AND DISPOSAL OF GARBAGE AND TRASH, BY DECREASING THE CURRENT RATES BY $1 58; PROVIDING FOR REPEALER, SEVERABILITY, CODIFICATION, AND AN EFFECTIVE DATE. WHEREAS, on June 9, 2010, the Mayor and the City Commission approved the execution of an agreement with Choice Environmental Services, Inc. (Choice) for the collection and disposal of residential solid waste, yard trash, bulky waste, and operation of the City's Green Waste Facility. The Agreement was approved for an initial term of five years, commencing on September 1, 2010, and ending on August 31, 2015, with three one year renewal options, at the City's sole discretion; and WHEREAS, after final negotiations, Choice agreed to provide the above services at a cost of $23.99 per month, per unit, which is $1.58 per month, per unit less than the current contract price of $25.57; and WHEREAS, the City will accordingly decrease the monthly rate for single-family residences by $1.58 per residential unit, per month over previous year's monthly rate; and WHEREAS, the City will accordingly decrease the monthly rate for multi-family residences (up to eight units) by $1.58 per residential unit over the previous year's monthly rate; and WHEREAS, the appropriate adjustments to the fee schedule in the City Code should be I made; and WHEREAS, the City Commission finds that by decreasing the schedule of fees for collections and disposal of residential solid waste, yard trash and bulk wastes, concomitant with the monthly rates paid by the City is in the best interest of the City. NOW, THEREFORE, BE IT DULY ORDAINED BY THE MAYOR AND ClTY COMMISSION OF THE ClTY OF MlAMl BEACH, FLORIDA, AS FOLLOWS: SECTION I. AMENDMENT OF APPENDIX A TO SECTION 90-1371a) OF THE ClTY CODE That Appendix A to Section 90-137(a), entitled "Fee Schedule" for Chapter 90, Article Ill, Division 3 of the Code of the City of Miami Beach is hereby amended to read as follows: Appendix A Fee Schedule *** Chapter 90. Solid Waste Article Ill. Collection and Disposal Division 3. Rates, Charges, Billing Procedures. .............. 90-1 37(a) Single Family residences, townhouses, per month .3&4% 29.92 Duplex, per month per unit .......................................... ...&50 29.92 Apartments, condominiums with less than 9 dwelling Units, per month per dwelling unit ................................. ...2M2 25.94 T:\AGENDA\201 O\September 20\Regular\Trash Coll Fee Decrease-0rdinance.doc The rates will be adjusted annually to reflect the increases or decreases in the consumer price index for consumers in the southeast United States for all items, and in the Miami-Dade County tipping fees, unless otherwise directed by the city commission. SECTION 2. REPEALER All ordinances or parts in conflict herewith be and the same are hereby repealed. SECTION 3. SEVERABILITY If any section, sentence, clause or phrase of this Ordinance is held to be invalid or unconstitutional by any court of competent jurisdiction then said holding should in no way affect the validity of the remaining portion of this Ordinance. SECTION 4. CODIFICATION It is the intention of the Mayor and City Commission of the City of Miami Beach, and it is hereby ordained that the provisions of this ordinance shall become and be made part of the Code of the City of Miami Beach, Florida. The sections of this ordinance may be renumbered or relettered to accomplish such intention, and the word "ordinance" may be changed to "sectionJJ, "article," or other appropriate word. SECTION 5. EFFECTIVE DATE This Ordinance shall take effect ten (10) days after its adoption on the - day of I 2010. PASSED and ADOPTED this day of 201 0. ATTEST: CITY CLERK MAYOR T:WGENDA\201O\September 20\Regular\Trash Coll Fee Decrease-0rdinance.doc 209 38"&-%l SUNDAY, OCTOB~R~IO,:~OIO~ , ! COMMISSION ITEM SUMMARY Condensed Title: An Ordinance Amending Chapter 82 Of The City Code To Provide That The New World Symphony Leased Premises, As Same Are Described In The Lease Agreement Between The City And New World Symphony, Dated January 15,2004, And lncluding The NWS Building And Other Tenant Improvements (As Defined In The Lease), But Not lncluding The City Park (Currently Referred To As "Lincoln Park"), The City Garage (Currently Referred To As The Pennsylvania Avenue Garage), AndlOr Any Other City-Owned Buildings, Structures, Furnishings, Fixtures, Improvements, Streets, Sidewalks, And Rights Of Way Associated With The Development Of The NWS Project, Shall Be Exempt From The Provisions Of Said Article Vi, Subject To The Terms Contained In This Key Intended Outcome Supported: 1 Maximize Miami Beach as a Brand Destination and Diversifv Business Base in Miami Beach I I Supporting Data (Surveys, Environmental Scan, etc.): 1 Issue: - Shall the Mayor and Commission approve an exemption to Chapter 82 Article VI relating to naming rights for the interior and exterior of NWS buildings and tenant improvements located on their leasehold premises? tm SummarylRecommendation: Non-profit oraanizations use namina riahts as a mechanism to raise funds for their operations. The NWS is desirous of naming the 5aza located adjacent to tYheir building on their leasehold premises aft& donors Howard and Mary Frank. They have indicated that additional naming opportunities for interior and exterior locations may also be pursued. The City's Chapter 82 Article VI provides the mechanism for the naming of public facilities, which includes public buildings, plazas or parks owned by the City. An exemption of the City's naming ordinance would be necessary in order for NWS to proceed with this and any other future naming of buildings or tenant improvements within their leasehold premises, without triggering certain requirements of the City Code, such as a City Committee approval and voter referendum. The City has provided exemptions in the past to other non-profit organizations. The proposed amendment to the naming ordinance to grant the NWS an exemption does not include an exemption from the naming ordinance for the City park, parking garage or any other city-owned building, structure improvement, street and sidewalks (among others). The potential popularity of the park may result in a City-negotiated naming opportunity for the City. The Commission may wish to consider whether any naming opportunities for the video wall (which would be exempt from naming requirements if the amendment is approved), in particular naming opportunities involving potential corporate partners (instead of individuals), should be presented to and/or approved by the City to avoid any conflict with any potential sponsorship for the City park. Advisory Board Recommendation: 1 No Committee review. Financial Information: I I City Clerk's Office Legislative Tracking: Source of Funds: OBPI Financial Impact Summary: The implementation of this ordinance has no associated cost. As previously noted, and because of its adjacency to the park, any exterior naming of buildings or tenant improvements in the leasehold interest by NWS may impact the ability to secure certain potential corporate sponsorship opportunities in the park where they may be in conflict with the NWS's naming partnership. The lost opportunity cost cannot be determined. I Total Amount Account Approved MIAMIBEACH City of Miami Beach, 1700 Convention Center Drive, Miami Beach, Florida 331 39, www.miamibeachfl.gov COMMISSION MEMORANDUM TO : embers of the City Commission FROM: SECOND READING DATE: October 27, 201 0 PUBLIC HEARING SUBJECT: AN ORDINANCE AMENDING CHAPTER 82 OF THE ClTY CODE, ENTITLED "PUBLIC PROPERTY", BY AMENDING ARTICLE VI, ENTITLED "NAMING OF PUBLIC FACILITIES AND ESTABLISHMENTS OF MONUMENTS AND MEMORIALS", BY AMENDING SECTION 82-501(C)(1) - (3) THEREOF, TO PROVIDE THAT THE NEW WORLD SYMPHONY LEASED PREMISES, AS SAME ARE DESCRIBED IN THE LEASE AGREEMENT BETWEEN THE ClTY AND NEW WORLD SYMPHONY (NWS OR TENANT), DATED JANUARY 15, 2004, AND INCLUDING THE NWS BUILDING AND OTHER TENANT IMPROVEMENTS (AS DEFINED IN THE LEASE), BUT NOT INCLUDING THE ClTY PARK (CURRENTLY REFERRED TO AS "LINCOLN PARK"), THE ClTY GARAGE (CURRENTLY REFERRED TO AS THE PENNSYLVANIA AVENUE GARAGE), AND/OR ANY OTHER CITY-OWNED BUILDINGS, STRUCTURES, FURNISHINGS, FIXTURES, IMPROVEMENTS, STREETS, SIDEWALKS, AND RIGHTS OF WAY ASSOCIATED WITH THE DEVELOPMENT OF THE NWS PROJECT, SHALL BE EXEMPT FROM THE PROVISIONS OF SAID ARTICLE VI, SUBJECT TO THE TERMS CONTAINED IN THIS ORDINANCE; PROVIDING FOR REPEALER, SEVERABILITY, CODIFICATION AND EFFECTIVE DATE. ADMINISTRATION RECOMMENDATION The Administration recommends that the City Commission approve the ordinance on second reading. BACKGROUND A discussion on two proposed amendments to the City's existing "Naming Ordinance" was placed on the September 15,201 0 Commission Agenda by Commissioner Jonah Wolfson. Following discussion, the ordinances as submitted for discussion were approved on First Reading. One proposed ordinance amendment involves the provision of an exemption for the New World Symphony (NWS) leased premises from the provisions of the City's Naming Ordinance. Chapter 82 Article VI of the City Code, "Naming of Public Facilities and Establishment of Monuments and Memorials," sets forth the manner in which public facilities may be named, monuments/memorials established and streets co-designated. More specifically, Section 82-503 sets forth the process by which new public facilities are named, or existing public facilities are renamed. Currently, there is a six-step process to consider a potential name for a public facility or park, with an additional three-step process to address the naming of the exterior of a public facility or park. The former process addresses, among other things, the naming of public facilities or parks for living persons, and provides a process to address the naming if associated with a monetary donation. The latter process includes a review and approval of the proposed name by a majority of the designated City Committee (the Neighborhoods/Community Affairs Committee); a five-sevenths approval by the City Commission; and the submission of the proposed name to the electorate via referendum. In addition, Section 82-505 addresses the process for naming or renaming of public facilities in exchange for monetary donations. NWS Naming Ordinance Amendmenf Page 2 of 3 However, on several occasions the City has provided for an exemption from the requirements of the provisions of Chapter 82 Article VI; these exemptions were granted for the Bass Museum of Art, the Miami City Ballet; and for the Altos del Mar Sculpture Park. Both the Miami City Ballet and the Altos del Mar Sculpture Park exemptions were conditioned and those conditions were included as part of the approval process and ordinance amendment. Additionally, the Miami Beach Garden Center and Conservancy (a.k.a. the Botanical Garden) is exempt from the referendum requirements. ANALYSIS The proposed ordinance amendment would add an additional exemption to Section 82-501 (c) relating to the leased premises of the NWS, as identified in the lease with the City dated January 15, 2004. This amendment, if approved, would provide that the naming of the interior or exterior of the NWS building, as well as certain other Tenant improvements that are specified in the lease, would be exempt from the process set forth in Article VI. However, the exemption would specifically exclude the city-owned park, the city-owned garage and any other city-owned buildings, structures, furnishings, fixtures, improvements, streets, sidewalks andlor rights of way in any way associated with the NWS project. If approved on second reading, the naming of any interior or exterior portion of the leased premises of NWS would not require Committee review and approval, it could be named for someone living or dead, would not require a referendum, and would not require a noticed public hearing to be held. The NWS requested the exemption in order to be able to address certain fundraising needs. Specifically, the NWS wishes to recognize two donors (Howard and Mary Frank) by naming a plaza area adjacent to the building, but outside of the facility, in their honor. This plaza area is within the leasehold interest of the NWS (although the construction of the plaza is being funded by the City of Miami Beach), just east of the building but immediately adjacent to the park. The NWS has indicated that there may be other potential naming opportunities for the exterior of the building, or on tenant improvements located outside but reflected as part of the leased premises, such as on the box office and the video screen. The opportunity to generate revenues through naming rights is common in the non-profit arena, with naming rights granted to individual donors, as well as corporations. Naming rights are also becoming more frequent in the public sector, as public facilities enter into naming rights agreements for everything from sports arenas to performing arts centers and convention facilities. As part of the City's municipal marketing efforts, the completed Asset Inventory identified naming opportunities for certain public parks as something that could and should be pursued further. The location and unique features of this park provide a good brand presence for a corporate sponsorship partner. However, naming opportunities generally require a commitment of exclusivity of some nature or, at a minimum, no direct conflict with a competitor's brand. For example, if a corporate sponsorship opportunity arose for the park adjacent to the NWS for a particular product brand, but NWS pursues a naming opportunity for their exterior of the building, or for a building or tenant improvement located on the leased premises (such as the video wall), and that naming opportunity would conflict with the City's partner (they are a direct competitor, etc.), this could result in a reluctance to participate in that type of partnership with the City, especially in light of the proximity of the park to the NWS building. While there are currently no active negotiations for naming rights for the City's park, the City Commission may wish to consider a mechanism by which NWS must, at a minimum, advise (andlor require the approval of) the City of any potential naming opportunities for the Video Wall, or at a minimum for potential corporate partners for the video wall. Additionally, the proposed ordinance amendment incorporates language similar to language included for Altos del Mar Sculpture Park and for the Miami City Ballet, conditioning the exemption to be provided only as long as: All of the NWS leased premises (buildings and tenant improvements) are occupied, operated and maintained by NWS; The NWS building is continuously used as the principal headquarters, administrative offices and performance facilities of the NWS (andlor any other tenant improvement or facility on NWS Naming Ordinance Amendment Page 3 of 3 the leasehold premises are used for their original purpose); NWS is in good standing and free from defaults from the lease and/or development agreement. FISCAL IMPACT The implementation of this ordinance has no associated cost. As previously noted, and because of its adjacency to the park, any exterior naming of buildings or tenant improvements in the leasehold interest by NWS may impact the ability to secure certain potential corporate sponsorship opportunities in the park where they may be in conflict with the NWS's naming partnership. The lost opportunity cost cannot be determined. CONCLUSION Non-profit organizations use naming rights as a mechanism to raise funds for their operations. The NWS is desirous of naming the plaza located adjacent to their building on their leasehold premises after donors Howard and Mary Frank. They have indicated that additional naming opportunities for interior and exterior locations may also be pursued. The City's Chapter 82 Article VI provides the mechanism for the naming of public facilities, which includes public buildings, plazas or parks owned by the City. An exemption of the City's naming ordinance would be necessary in order for NWS to proceed with this and any other future naming of buildings or tenant improvements within their leasehold premises, without triggering certain requirements of the City Code, such as a referendum. The City has provided exemptions in the past to other non-profit organizations. As reflected in the proposed amendment to the naming ordinance, the NWS exemption does not include an exemption from the naming ordinance for the City park, parking garage or any other city-owned building, structure improvement, street and sidewalks (among others). As previously noted, the potential popularity of the park may result in a City-negotiated naming opportunity for the City. The Commission may wish to consider whether any naming opportunities for the video wall (which would be exempt from naming requirements if the amendment is approved), in particular naming opportunities involving potential corporate partners, should be presented andlor approved by the City to avoid any conflict with any potential sponsorship for the City park. The approval of the ordinance on second reading permits the NWS to proceed with the Plaza naming prior to the grand opening of the facility. JMGIHMF T:\AGENDA\2010\0ctober 27\Regular\Naming Ordinance Exemption NWS 2nd Rdg MEMO.doc ORDINANCE #I (EXEMPTION FOR NWS LEASED PREMISES) ORDINANCE NO. AN ORDINANCE OF THE MAYOR AND ClTY COMMISSION OF THE ClTY OF MIAMI BEACH, FLORIDA, AMENDING CHAPTER 82 OF THE ClTY CODE, ENTITLED "PUBLIC PROPERTY", BY AMENDING ARTICLE VI, ENTITLED "NAMING OF PUBLIC FACILITIES AND ESTABLISHMENTS OF MONUMENTS AND MEMORIALS", BY AMENDING SECTION 82-501(~)(1) - (3) THEREOF, TO PROVIDE THAT THE NEW WORLD SYMPHONY LEASED PREMISES, AS SAME ARE DESCRIBED IN THE LEASE AGREEMENT BETWEEN THE ClTY AND NEW WORLD SYMPHONY (NWS OR TENANT), DATED JANUARY 15, 2004, AND INCLUDING THE NWS BUILDING AND OTHER TENANT IMPROVEMENTS (AS DEFINED IN THE LEASE), BUT NOT INCLUDING THE ClTY PARK (CURRENTLY REFERRED TO AS "LINCOLN PARK"), THE ClTY GARAGE (CURRENTLY REFERRED TO AS THE PENNSYLVANIA AVENUE GARAGE), AND/OR ANY OTHER CITY-OWNED BUILDINGS, STRUCTURES, FURNISHINGS, FIXTURES, IMPROVEMENTS, STREETS, SIDEWALKS, AND RIGHTS OF WAY ASSOCIATED WITH THE DEVELOPMENT OF THE NWS PROJECT, SHALL BE EXEMPT FROM THE PROVISIONS OF SAID ARTICLE VI, SUBJECT TO THE TERMS CONTAINED IN THIS ORDINANCE; PROVIDING FOR REPEALER, SEVERABILITY, CODlFlCTlON AND EFFECTIVE DATE. WHEREAS, on January 5, 2004, the City of Miami Beach (City) and the New World Symphony (NWS or Tenant), entered into a Development Agreement and Ground Lease Agreement (the Agreements), providing for design, development and construction of an educational performance and internet broadcast facility and exterior screen (formally known as "Soundspace" and now known as the "NWS Campus Expansion Project"), and a public parking garage, to be located on the westernmost portion of the 17'~ Street surface parking lots, bounded by 17'~ Street to the north; North Lincoln Lane to the south; Drexel Avenue to the east; and Pennsylvania Avenue to the west; and WHEREAS, the NWS Development Agreement also provides for the design, development, and construction of a proposed City-owned park, which is currently referred to as "Lincoln Park;" and WHEREAS, Chapter 82, Article VI, Sections 82-501 through 82-505, of the City Code, establishes certain procedures for the naming of public facilities and establishment of monuments and memorials on City property (the City's Naming Ordinance); and WHEREAS, pursuant to a request by NWS, the City Commission hereby finds that it would be in the best interest of the City to exempt the NWS leased premises, as same are described in the Lease Agreement between the City and NWS, dated January 15, 2004, and which premises would include the NWS building and other Tenant Improvements (as said term is also defined in the Lease), from the provisions of the City's Naming Ordinance, as hereinafter set forth in this amendment. NOW, THEREFORE, BE IT DULY ORDAINED BY THE MAYOR AND ClTY COMMISSION OF THE ClTY OF MIAMI BEACH, FLORIDA, AS FOLLOWS: SECTION I. AMENDMENT TO ARTICLE VI OF CHAPTER 82 OF THE CITY CODE. A. That Chapter 82, Article VI, Section 82-501(c)(l) - (3) of the Miami Beach City Code is hereby amended as follows: CHAPTER 82 PUBLIC PROPERTY ARTICLE VI. Naming of Public Facilities and Establishment of Monuments and Memorials. * * * Set. 82-501. Generally. (a) No public facility located in or owned by the city shall be named except in accordance with the procedures set forth in this article. (b) No monument or memorial shall be established within the city except in accordance with the procedures set forth in this article. (c) Effective upon adoption of this article, no street located in the city shall be hereafter named, renamed, or co-named after any person or persons, living or deceased. The Bass Museum of Art2 the city-owned building, located at 2200 Liberty Avenue, Miami I Beach, Florida (the Miami City Ballet Building); &all or any portion(s) of city-owned property comprising the public cultural facility known as the "Altos Del Mar Sculpture Park," located within a portion of Altos Del Mar Park, on Collins Avenue between 76th and 77th Street, Miami Beach, Florida (the ADMSP Sculpture Park),; and those certain leased premises as described and identified in the lease aareement between the citv and the New World Svmphonv (NWS), dated January 15. 2004 (the NWS Lease). and includinn the interior and exterior portions of the NWS building and other Tenant Improvements (as said term is also defined in the NWS Lease), but specificallv excludinq the citv-owned park (currentlv referred to as "Lincoln Park), the citv-owned narane lcurrentlv referred to as the Pennsvlvania Avenue Garane), and anv and all other citv- owned buildings, structures, furnishinns, fixtures, improvements, streets, sidewalks, I and/or rights of way in connection with the NWS proiect, shall be exempt from the provisions of this article. The Miami City Ballet Building shall only be exempt for so long as: (1) Said building is occupied, operated and maintained by Miami City Ballet, Inc., a not-for-profit corporation; (2) The building is used as the principal headquarters, administrative offices, and studio and teaching facilities of the Miami City Ballet; and (3) Miami City Ballet, Inc., remains in good standing and free from defaults under that certain lease agreement for the Miami City Ballet Building between the city, as I landlord, and Miami City Ballet, Inc., as tenant (the Miami City Ballet lease). The ADMSP Sculpture Park shall only be exempt from the provisions of this article for so long as: (1) The Sculpture Park is occupied, operated and maintained by Altos Del Mar Sculpture Park, Inc., a not-for-profit corporation; (2) The Sculpture Park remains free and open to the general public; and (3) Altos Del Mar Sculpture Park, Inc., remains in good standing and free from defaults under that certain management agreement between the city and Altos Del Mar Sculpture Park, Inc., dated June 3, 2009. I The NWS lease premises shall onlv be exempt from the provisions of this article for so long as: 11) all of the NWS leased premises (including the NWS building and all of the Tenant Improvements) are occupied, operated, and maintained bv New World Svmphonv Inc., a not-for-profit corporation; /2) the NWS building is continuousl~ used as the princi~al headquarters, administrative offices, and performance facilities oflfor NWS, and the other Tenant improvements are continuouslv used for their original purpose(s) under the NWS Lease; and 13) NWS remains in good standing and free from defaults under the NWS Lease, the Development Agreement between the citv and NWS, dated Januarv 5. 2004 (the NWS Development Agreement), and anv other agreements between the citv and NWS, whether in existence as of the effective date of this article, or as mav be subsequentlv entered into. The exemption for the Miami City Ballet Building and for the NWS leased premises shall automatically terminate upon the earlier of the expiration or other termination of, respectivelv, the vsMiami Citv Ballet lease and the NWS lease. The exemption for the ADMSP Sculpture Park shall automatically terminate upon the earlier of the expiration or other termination of the aforestated management agreement. 3 SECTION 2. REPEALER All ordinances or parts in conflict herewith be and the same are hereby repealed. SECTION 3 If any section, sentence, clause or phrase of this Ordinance is held to be invalid or unconstitutional by any court or competent jurisdiction, then said holding shall in no way affect the validity of the remaining portion of this Ordinance. SECTION 4. CODIFICATION It is the intention of the Mayor and City Commission of the City of Miami Beach, and it is hereby ordained that the provisions of this Ordinance shall become and be made part of the Code of the City of Miami Beach, Florida. The sections of this Ordinance may be renumbered or relettered to accomplish such intention, and the word "ordinance" may be changed to "section", "article", or other appropriate word. SECTION 5. EFFECTIVE DATE This Ordinance shall take effect on the day of , 2010. PASSED and ADOPTED this day of ,2010 ATTEST: MAYOR CITY CLERK F:\atto\AGUR\RESOS-ORD\NWS - Naming of Public Facilities Ordinance (8-30-1 O).doc APPROVED AS TO FORM & LANGUAGE & FOH EXECUTION 38eE~l SUNDAY, OCTOB'~~R~O,'~OIO THIS PAGE INTENTIONALLY LEFT BLANK COMMISSION ITEM SUMMARY Condensed Title: ( An Ordinance Amending Chapter 82 Of The City Code, Entitled "Public Property", By Amending I Article Vi, Entitled '"Naming Of Public Facilities And Establishments of ~onumen& ~nd~emorials'< By Amending Section 82-501(C)(l) - (3) Thereof, To Provide That The City-Owned Park, Currently Referred To As "Lincoln Park," Shall Be Exempt From The Provisions Of Said Article Vi, Subject To The Terms Contained In This Ordinance; Providing For Repealer, Severability, Codification And Effective Date. Key Intended Outcome Supported: Maximize Miami Beach as a Brand Destination and Diversify Business Base in Miami Beach Supporting Data (Surveys, Environmental Scan, etc.): Issue: Shall the Mayor and Commission approve on second reading a proposed amendment to Chapter 82, Article VI, exempting the City park located east of the New World Symphony Building to allow for the naming of the park in a timey manner? tem SummarylRecommendation: Chapter 82 Article VI of the City Code, "Naming of Public Facilities and Establishment of Monuments and ] Memorials," sets forth the manner in which public facilities may be named, monuments/memorials established and streets co-designated. More specifically, Section 82-503 sets forth the process by which new public facilities are named, or existing public facilities are renamed. At the September 15, 201 0 Commission meeting, several discussion items were placed on the agenda relating to the potential naming of the park. Additionally, a discussion on two proposed amendments to the City's existing "Naming Ordinance" was placed on the September 15,201 0 agenda, including an amendment to Article VI. to allow the City to exempt this park from the city naming ordinance requirements in order to expedite the process of naming the park. Concurrently, I recommended, and it was agreed, that we should use a professional marketing company to assist the City in selecting names for consideration for the City Park. This company is researching the location, and obtaining comments from a cross section of interested stakeholders to develop recommendations for possible names for the park. Advisory Board Recommendation: I This was not discussed at committee. Financial Information: I 1 OBPl Total I Financial Impact SumrnJry: There islno fiscal impact. Prdfessional Marketing services whre obtained Pro Bono. I Source of Funds: City Clerk's Office Legislative Tracking: I Amount Account Approved MIAMIBEACH City of Miami Beach, 1700 Convention Center Drive, Miami Beach, Florida 33 139, www.miamibeachfl.gov COMMISSION MEMORANDUM TO : mbers of the City Commission FROM: SECOND READING DATE: October 27, 201 0 PUBLIC HEARING SUBJECT: AN ORDINANCE AMENDING CHAPTER 82 OF THE CITY CODE, ENTITLED "PUBLIC PROPERTY", BY AMENDING ARTICLE VI, ENTITLED "NAMING OF PUBLIC FACILITIES AND ESTABLISHMENTS OF MONUMENTS AND MEMORIALS", BY AMENDING SECTION 82-501(C)(I) - (3) THEREOF, TO PROVIDE THAT THE CITY-OWNED PARK, CURRENTLY REFERRED TO AS "LINCOLN PARK," SHALL BE EXEMPT FROM THE PROVISIONS OF SAID ARTICLE VI, SUBJECT TO THE TERMS CONTAINED IN THIS ORDINANCE; PROVIDING FOR REPEALER, SEVERABILITY, CODIFICATION AND EFFECTIVE DATE. ADMINISTRATION RECOMMENDATION The Administration recommends that the City Commission approve the ordinance on second reading. BACKGROUND The City has not recently created new parks but, rather, has renovated existing parks. The new park being built on the former surface parking lots adjacent to the New World Symphony (NWS) building has had a working title of "Lincoln Park due to its close proximity to Lincoln Road. At the September 15, 201 0 Commission meeting, several discussion items were placed on the agenda relating to the potential naming of the park. Options presented via referral for discussion included actual suggested names, as well as a process for the selection of a name, which could include a contest. Additionally, a discussion on two proposed amendments to the City's existing "Naming Ordinance" was placed on the September 15, 201 0 Commission Agenda by Commissioner Jonah Wolfson. Following discussion, the ordinances as submitted for discussion were approved on First Reading. One proposed ordinance amendment involves the provision of an exemption from the naming ordinance requirements for the city-owned park located adjacent to the new NWS concert hall, commonly referred to as Lincoln Park. Chapter 82 Article VI of the City Code, "Naming of Public Facilities and Establishment of Monuments and Memorials," sets forth the manner in which public facilities may be named, monuments/memorials established and streets co-designated. More specifically, Section 82-503 sets forth the process by which new public facilities are named, or existing public facilities are renamed. Currently, there is a six-step process to consider a potential name for a public facility or park, with an additional three-step process to address the naming of the exterior of a public facility or park. The former process addresses, among other things, the naming of public facilities or parks for living persons, and provides a process to address the naming if associated with a monetary donation. The latter process includes a review and approval of the proposed name by a majority of the designated City Committee (the Neighborhoods/Community Affairs Committee); a five-sevenths approval by the City Commission; and the submission of the proposed name to the electorate via referendum. In addition, Section 82-505 addresses the process for naming or renaming of public facilities in exchange for monetary donations. However, on several occasions the City has provided for an exemption from the requirements of the provisions of Chapter 82 Article VI; these exemptions were granted for the Bass Museum of Art, the NWS Naming Ordinance Amendment Page 2 of 3 Miami City Ballet; and for the Altos del Mar Sculpture Park. Both the Miami City Ballet and the Altos del Mar Sculpture Park exemptions were conditioned and those conditions were included as part of the approval process and ordinance amendment. Additionally, the Miami Beach Garden Center and Conservancy (a.k.a. the Botanical Garden) is exempt from the referendum requirements. A separate ordinance amendment on this commission agenda on second reading would provide for an exemption from the naming ordinance requirements for the NWS as it relates to the interior and exterior of their buildings and other tenant improvements located on their leased premises. An exemption for Lincoln Park would permit the City to pursue naming for the park in an expeditious manner. This is being requested in an effort to have the park named prior to the grand opening of the neighboring NWS project. ANALYSIS The NWS project is expected to be completed shortly, with a grand opening scheduled for early next year. The NWS has expressed a desire to have the City's park open and operational for the grand opening of their facility. In an effort to market and promote their grand opening events, the NWS requested a conclusion on the naming of the park, so that it may be included in promotional materials for their events. During the September 15, 2010 Commission meeting, several items were placed for discussion, including discussion on proposed names for the City park. There was no consensus on any one name. Alternatively, I recommended that staff be permitted to obtain assistance from a professional marketing company in developing a name for this park, with that proposed name(s) brought back to the City Commission for consideration. However, in order to be able to name the park, and especially to do so in a quick enough manner to be able to include the name in any promotional materials relating to the grand opening of the NWS facility, it is necessary to amend the naming ordinance to provide for an exemption from the naming process for this city park. In that manner, and if an exemption is approved, the City Commission can approve a name for the park. Specifically, the proposed ordinance amendment would add an additional exemption to Section 82- 501(c) relating to the proposed name of the city park now commonly referred to as Lincoln Park. As provided for, it would specifically grant an exemption to allow for the naming of the park through a process other than required pursuant to city code. If approved on second reading, the naming of the park would not require Committee review and approval, it would not require a referendum, and would not require a noticed public hearing to be held to select the name. Instead, the Commission can approve the amendment to the ordinance to provide the exemption to name the park the actual name that is selected. Following the September 15, 201 0 City Commission meeting, I met with Bruce Turkel, who as you may know, runs a well-known marketing and branding firm. Mr. Turkel has engages in similar efforts to develop names for products and brands, with the added benefit that he is familiar with our City. His methodology involves speaking with a variety of stakeholders to assess their opinion of the product. In the case of the City's park, Mr. Turkel surveys stakeholders to assess what the "takeaway" experience for the park is supposed to be, what role it plays with the NWS project, what folks expect to experience there, etc. These responses are then analyzed to determine if there is a recurring theme or concepts that prompt one or more names as potential names for the project. Mr. Turkel is concluding his assessment process. FISCAL IMPACT The implementation of this ordinance has no associated cost. The professional services were provided pro bono. NWS Naming Ordinance Amendment Page 3 of 3 CONCLUSION The City's Chapter 82 Article VI provides the mechanism for the naming of public facilities, which includes public buildings, plazas or parks owned by the City. An exemption of the City's naming ordinance would be necessary in order to approve a name for the city park adjacent to for NWS with sufficient time to allow the name of the park to be used in promotional materials relating to the NWS facility's grant opening early next year, without triggering certain requirements of the City Code, such as a referendum. The City has provided exemptions in the past to other non-profit organizations. The approval of the ordinance on second reading permits the City to proceed with naming the park prior to the opening of the NWS facility. T:\AGENDA\201O\October 27\Regular\Naming Ordinance Exemption Lincoln Park MEMO.doc ORDINANCE #2 (EXEMPTION FOR LINCOLN PARK) ORDINANCE NO. AN ORDINANCE OF THE MAYOR AND ClTY COMMISSION OF THE ClTY OF MIAMI BEACH, FLORIDA, AMENDING CHAPTER 82 OF THE ClTY CODE, ENTITLED "PUBLIC PROPERTY", BY AMENDING ARTICLE VI, ENTITLED "NAMING OF PUBLIC FACILITIES AND ESTABLISHMENTS OF MONUMENTS AND MEMORIALS", BY AMENDING SECTION 82-501(~)(1) - (3) THEREOF, TO PROVIDE THAT THE CITY-OWNED PARK, CURRENTLY REFERRED TO AS "LINCOLN PARK", SHALL BE EXEMPT FROM THE PROVISIONS OF SAID ARTICLE VI, SUBJECT TO THE TERMS CONTAINED IN THIS ORDINANCE; PROVIDING FOR REPEALER, SEVERABILITY, CODlFlCTlON AND EFFECTIVE DATE. WHEREAS, on January 5, 2004, the City of Miami Beach (City) and the New World Symphony (NWS or Tenant), entered into a Development Agreement and Ground Lease Agreement (the Agreements), providing for design, development and construction of an educational performance and internet broadcast facility and exterior screen (formally known as "Soundspace" and now known as the "NWS Campus Expansion Project"), and a public parking garage, to be located on the westernmost portion of the 17'~ Street surface parking lots, bounded by 17'~ Street to the north; North Lincoln Lane to the south; Drexel Avenue to the east; and Pennsylvania Avenue to the west; and WHEREAS, the NWS Development Agreement also provides for the design, development, and construction of a proposed City-owned park, which is currently referred to as "Lincoln Park;" and WHEREAS, Chapter 82, Article Vl, Sections 82-501 through 82-505, of the City Code, establishes certain procedures for the naming of public facilities and establishment of monuments and memorials on City property (the City's Naming Ordinance); and WHEREAS, pursuant to a request by NWS, the City Commission hereby finds that it would be in the best interest of the City to exempt the City-owned park, currently referred to as "Lincoln Park," from the provisions of the City's Naming Ordinance, as hereinafter set forth in this amendment. NOW, THEREFORE, BE IT DULY ORDAINED BY THE MAYOR AND ClTY COMMISSION OF THE ClTY OF MIAMI BEACH, FLORIDA, AS FOLLOWS: SECTION 1. AMENDMENT TO ARTICLE VI OF CHAPTER 82 OF THE CITY CODE. A. That Chapter 82, Article VI, Section 82-501(c)(l) - (3) of the Miami Beach City Code is hereby amended as follows: CHAPTER 82 PUBLIC PROPERTY ARTICLE VI. Naming of Public Facilities and Establishment of Monuments and Memorials. Set. 82-501. Generally. (a) No public facility located in or owned by the city shall be named except in accordance with the procedures set forth in this article. (b) No monument or memorial shall be established within the city except in accordance with the procedures set forth in this article. (c) Effective upon adoption of this article, no street located in the city shall be hereafter named, renamed, or co-named after any person or persons, living or deceased. The Bass Museum of Art;, the city-owned building, located at 2200 Liberty Avenue, Miami I Beach, Florida (the Miami City Ballet Building); &all or any portion(s) of city-owned property comprising the public cultural facility known as the "Altos Del Mar Sculpture Park," located within a portion of Altos Del Mar Park, on Collins Avenue between 76th and 77th Street, Miami Beach, Florida (the ADMSP Sculpture Park),; and the city-owned park currentlv referred to as "Lincoln Park, shall be exempt from the provisions of this article. The Miami City Ballet Building shall only be exempt for so long as: (1) Said building is occupied, operated and maintained by Miami City Ballet, Inc., a not-for-profit corporation; (2) The building is used as the principal headquarters, administrative offices, and studio and teaching facilities of the Miami City Ballet; and (3) Miami City Ballet, Inc., remains in good standing and free from defaults under that certain lease agreement for the Miami City Ballet Building between the city, as I landlord, and Miami City Ballet, Inc., as tenant lthe Miami Citv Ballet lease). The ADMSP Sculpture Park shall only be exempt from the provisions of this article for so long as: (1) The Sculpture Park is occupied, operated and maintained by Altos Del Mar Sculpture Park, Inc., a not-for-profit corporation; (2) The Sculpture Park remains free and open to the general public; and (3) Altos Del Mar Sculpture Park, Inc., remains in good standing and free from defaults under that certain management agreement between the city and Altos Del Mar Sculpture Park, Inc., dated June 3, 2009. The exemption for the Miami City Ballet Building shall automatically terminate upon the earlier of the expiration or other termination of the CMiami City Ballet lease. The exemption for the ADMSP Sculpture Park shall automatically terminate upon the earlier of the expiration or other termination of the aforestated management agreement. SECTION 2. REPEALER All ordinances or parts in conflict herewith be and the same are hereby repealed. SECTION 3 SEVERABILITY If any section, sentence, clause or phrase of this Ordinance is held to be invalid or unconstitutional by any court or competent jurisdiction, then said holding shall in no way affect the validity of the remaining portion of this Ordinance. SECTION 4. CODIFICATION It is the intention of the Mayor and City Commission of the City of Miami Beach, and it is hereby ordained that the provisions of this Ordinance shall become and be made part of the Code of the City of Miami Beach, Florida. The sections of this Ordinance may be renumbered or relettered to accomplish such intention, and the word "ordinance" may be changed to "section", "article", or other appropriate word. SECTION 5. EFFECTIVE DATE This Ordinance shall take effect on the day of , 2010. PASSED and ADOPTED this day of ,2010 ATTEST: MAYOR CITY CLERK APPROVED AS TO F:\atto\AGUR\RESOS-ORD\Naming of Public Facilities Ordinance #2 - Lincoln Park (9-7-10).doc FORM & LANGUAGE & FOR EXECUTION 3 Date a - MIAMIBEACH CITY OF MlAMl BEACH NOTICE OF PUBLIC HEARING NOTICE IS HEREBY given that a second reading and public hearing wil! be held by the Mayor and City Commission of the City of Miami Beach, Florida, in the Commission Chambers, 3rd f~&or,.~ity Hall, 1700 Convention Center Drive, Miami Beach, Florida, on Wednesday, October 27,2010, to consider theToIlowing: 10:20 a.m. An Ordinance Amending Chapter 82 Of The City Code, Entitled "Public pr6pertyV, By Amending Article VI, Entitled "Naming Of Public Facilities And Establishments Of Monuments And Memorials," By Amending Section 82-501 (C)(l) - (3) Thereof, To Provide That The City-Owned Park, Currently Referred To As "Lincoln Park," Shall Be Exempt From The Provisions Said Article VI, Subject To The Terms Contained In This Ordinance; Providing For Repealer, Severability, Codification And Effective Date. INTERESTED PARTIES are invited to appear at this meeting, or be represented by an agent, or to express their views in writing addressed to the City Commission, c/o the City Clerk,~.1.700 ConventJan Center Drive, 1st Floor, City Hall, Miami Beach, Florida 33139. Copies of these ordinances are available for public inspection during normal business hours in the City Clerk's Office, 1700 Convention Center Drive, 1st Floor, City Hall, and Miami Beach, ~l&ida 33139. This meeting may be continued and under such circumstances additional legal notice would not be provided. Robert E. Parcher, City Clerk City of Miami Beach Pursuant to section 286.0105, Fla. Stat., the City hereby advises the public that: if a person decides to appeal any decision made by the City Commission with respect Lo any matter considered at its meeting or its hearing, such person must ensure that a verbatim record of the proceedings is made, which record includes the testimony and evidence upon which the appeal is to be based. This noticedoes not constitute consent by the City for the introduction or admission of otherwise inadmissible or irrelevant evidence, nor does it authorize challenges or appeals not otherwise allowed by law. To request this material in accessible format, sign language interpreters,' information on access for persons with disabilities, and/or any accommodation to review any document or participate rn any city-sponsored proceeding, please contact (305) 604-2489 (voice), (305)673-7218 0 five days in advance to initiate your request. lTY users may also call 71 1 (Florida Relay Service). SUNDAY, OCTOBER 17,2010 1 SINE Ad #631 ---"-% - COMMISSION ITEM SUMMARY Condensed Title: An Ordinance Of The Mayor And City Commission Of The City Of Miami Beach, Florida, Amending The Future Land Use Map Of The Comprehensive Plan By Changing The Future Land Use Category For The Parcel Known As "1600 Lenox Avenue," From RM-1, "Multi-Family, Low Intensity," To CD-1, "Commercial, Low Intensity;" Key Intended Outcome Supported: Regulatory and Neighborhood satisfaction Supporting Data (Surveys, Environmental Scan, etc Regulatory - required by Florida Statutes Issue: I Should the City Commission amend the Future Land Use Map for 1600 Lenox Avenue from RM-1 to CD-I . I Item SummarylRecommendation: FIRST AND ONLY READING PUBLIC HEARING The City, at the request of the property owner, is proposing to change the land use category on the Future Land Use Map of this purposely built commercial property in order to continue using the site for commercial, retail, office. The change of land use designation does not increase the floor area ratio of the subject site. The current land use designation is RM-1 Multi Family Residential Low lntensity Category which has a maximum floor area ratio (FAR) of 1.25 and a maximum density of 60 units per acre. Similarly, the proposed land use designation of CD-1 Commercial Low lntensity category has a maximum FAR of I .O and 1.25 when more than 25 percent of the total area of a building is used for residential or hotel units. Therefore, the request is consistent with the City Charter provisions of Section 1.03 (c) and the provisions of Section 163-3187 F.S. for "small scale" amendments. The purpose of the RM-1 land use category is described in the Comprehensive Plan as to "provide development opportunities for and to enhance the desirability and quality of existing andlor new low density multi family residential areas." and only permits residential uses. As well, the zoning district regulations do not permit commercial uses. The existing commercial uses are functioning as legal, non-conforming; however, a nonconforming use of a building cannot be permitted to extend throughout other parts of that building. I The Administration recommends that the City Commission adopt the ordinance I Advisory Board Recommendation: At the July 27, 2010 meeting, the Planning Board recommended that the approval both proposed changes to the Future Land Use and the Zoning Maps by a vote of 4-0 (three members absent). Financial Information: I the resources bf the City at this time. 'when the site is redeveloped, revenues to the City may increase. I City Clerk's Office Legislative Tracking: I Richard Lorber or Mercy Lamazares I Financial Imoact Summarv: The DroDosed ordinance is not expected to have any fiscal impact u~on I AMIBEACH Account I I Source of Funds: OBPl AGENDA ~TEM RsD I DATE 10-27-19 I 1 2 Total Amount MIAMIBEACH City of Miami Beach, 1700 Convention Center Drive, Miami Beach, Florida 331 39, www.miamibeachfl.gov COMMISSION MEMORANDUM TO: Mayor Matti Herrera Bower and Members of the City Commission FROM: Jorge M. Gonzalez, City Manager DATE: October 27, 201 0 SUBJECT: 1600 Lenox Avenue - change Map - First and only Reading Public Hearing. AN ORDINANCE OF THE MAYOR AND ClTY COMMISSION OF THE ClTY OF MIAMI BEACH, FLORIDA, AMENDING THE FUTURE LAND USE MAP OF THE COMPREHENSIVE PLAN BY CHANGING THE FUTURE LAND USE CATEGORY FOR THE PARCEL KNOWN AS "1600 LENOX AVENUE," MORE PARTICULARLY DESCRIBED IN THE LEGAL DESCRIPTION ATTACHED AS EXHIBIT "A" HERETO, FROM THE CURRENT RM-1, "MULTI-FAMILY, LOW INTENSITY," TO THE FUTURE LAND USE CATEGORY OF CD-I, "COMMERCIAL, LOW INTENSITY;" PROVIDING FOR INCLUSION IN THE COMPREHENSIVE PLAN, TRANSMITTAL, REPEALER, SEVERABILITY AND AN EFFECTIVE DATE. ADMINISTRATION RECOMMENDATION The Administration recommends that the City Commission adopt the proposed ordinance for this proposed "small scale amendment" on first and only reading public hearing and direct the Administration to transmit all applicable documents to the Department of Community Affairs (DCA) and other required reviewing agencies. BACKGROUND At its May 27, 2010 meeting the Land Use and Development Committee (LUDC) referred the FLUM change and rezoning of the subject commercial property to the Planning Board. ZONING 1 SITE DATA Legal Description: Lot 1, Block 46 of COMMERCIAL SUBDIVISION according to the Plat thereof, as recorded in Plat Book 6, at Page 5 of the Public Records of Miami- Dade County, Florida City Commission Memorandum File 1969 - FLUM change for 1600 Lenox Avenue October 27, 2010 Page 2 Site Area: Size: 50 X 150 feet (approximately 7,500 sq. ft. (or +I- 0.172 acre) Existing FLUM Category: RM-1 Residential Multifamily Low Intensity Proposed FLUM Category: CD-1 Commercial, Low Intensity Existing Density Limits: RM-1 - 60 dwellings units per acre Proposed Density Limits: CD-1 - 60 dwelling units per acre Existing Intensity Limits: RM-1 - shall not exceed 1.25 FAR Proposed Intensity Limits: CD-1 - shall not exceed 1.0 FAR for commercial; exceetion: when more than 25 percent of the total area of a building is used for residential units, the maximum FAR shall be as set forth in the RM-1 district -1.25 FAR for residential or mixed use Existing Land Uses: There is a 69-unit condominium building directly adjacent to the north (1610 Lenox Avenue) of the subject property; there is a 20-unit condominium building directly across to the east (1601 Lenox Avenue); there is a 30-unit residential building diagonally across (1038 16' Street); and a 18-unit condominium building across the street to the south with commercial space on the ground floor (1560 Lenox Avenue), which is located in a CD-1, commercial low intensity zoning district. City Commission Memorandum File 1969 - FLUM change for 1600 Lenox Avenue October 27, 2010 Page 3 ANALYSIS History of the Site The Property is located in the first commercial subdivision created by Carl Fisher in Miami Beach in February 1920. The creation of this commercial subdivision has had a major impact in the development of the City as reflected along Alton Road, which remains one of Miami Beach's major commercial corridors today. The subject site remained vacant until the existing building was constructed in 1937. It was built as a single-story commercial building with nine store spaces. Among other tenants, the building housed a Food Market for over 50 years and a bar that began in 1941 as the Knotty Pine Bar and is today known as the Abbey Brewing Company. These and other unique commercial uses have provided an invaluable service to the local residents for over 70 years. Planning and Zoning Issues The land use category for the subject site in the Future Land use Map is RM-1 Residential Multifamily Low Intensity. This category is described in the City's Comprehensive Plan as follows: Low Density Multi Family Residential Category (RM-1) Purpose: To provide development opportunities for and to enhance the desirability and quality of existing and/or new low density multi family residential areas. Uses which may be permitted: Single family detached dwellings; single family attached dwellings, townhouse dwellings and multiple family dwellings, and hotels for properties fronting Harding Avenue or Collins Avenue from the City Line on the north to 73rd Street on the south. Bed and breakfast inns are permitted in RM-I only in the Flamingo Park Historic District and the West Avenue Bay Front Overlay District, both of which are described in the Land Development Regulations. Residential office and suite hotel uses are permitted in the West Avenue Bay Front Overlay District only. Other uses which may be permitted are accessory uses specifically authorized in this land use category, as described in the Land Development Regulations, which are required to be subordinate to the main use. The property contains a one-story commercial structure that covers the entire lot. For years the building had been neglected, but the current owner decided to preserve and renovate the building rather than demolish and build new. Because of its commercial nature and use, it is now deemed a legal, non-conforming use in a residential district. The current zoning designation for the subject site allows only residential use as a main permitted use, and accessory uses specifically authorized in the land use category as subordinate uses such as a laundry room for the use of tenants or a management office. This land use category and zoning district regulations do not permit commercial uses. City Commission Memorandum File 1969 - FLUM change for 1600 Lenox Avenue October 27,2010 Page 4 The City Commission designated the existing building a historic site on October 14, 2009. City Charter Issues The request for changing the Future Land Use Map of the City's Comprehensive Plan as well as the Zoning Map of the City, is affected by the City Charter provisions of Section 1.03 (c), which partially states: The floor area ratio of any property or street end within the City of Miami Beach shall not be increased by zoning, transfer, or any other means from its current zoned floor area ratio as it exists on the date of adoption of this Charter Amendment (November 7, 2001), including any limitations on floor area ratios which are in effect by virtue of development agreements through the full term of such agreements, unless such increase in zoned floor area ratio for any such property shall first be approved by a vote of the electors of the City of Miami Beach. The change of land use designation and zoning district does not increase the floor area ratio of the subject site. The current land use designation as RM-1 Multi Family Residential Low Density Category has a maximum floor area ratio (FAR) of 1.25 and a maximum density of 60 units per acre. Similarly, the proposed land use designation of CD-1 Commercial Low Intensity category has a maximum FAR of 1.0 and 1.25 when more than 25 percent of the total area of a building is used for residential units. Therefore, the request is consistent with the City Charter provisions of Section I .03 (c). Comprehensive Plan Issues Prior to 1989, the area north of 16th Street had a zoning classification of C-2, which was a commercial classification; attached is a partial copy of a zoning map dating back to September 1, 1983. The change of land use and zoning took effect in 1989, when the Zoning Ordinance of the City was extensively amended to carry out the 1989 Comprehensive Plan resulting in a new set of land development regulations (LDR). However, it should be noted that the block to the south (Block 65) is currently designated CD-1 in the Future Land Use Map, and zoned the same, therefore compatibility exists. The total land area involved in this application is 0.17 acres. Under Section 163.3187 (1) (c) f. of the Florida Statutes, f., "if the proposed amendment involves a residential land use, the residential land use has a density of 10 units or less per acre or the proposed future land use category allows a maximum residential density of the same or less than the maximum residential density allowable under the existing future land use category," land use map amendments may be considered "small-scale" amendments. Small scale development amendments adopted pursuant to this Section require only one public hearing before the governing board (City Commission), which shall be an adoption hearing Interlocal Agreement for Public School Facility Planning The 2005 Florida Legislature adopted laws which are incorporated in the Florida Statutes, requiring each local government to adopt an intergovernmental coordination element as part of their comprehensive plan, as well as a statutory mandate to implement public school concurrency. In compliance with this requirement, the application by the City was submitted to the Miami-Dade County Public Schools for its review and concurrency determination. The Preliminary Concurrency Analysis would yield a maximum residential density of 2 multifamily dwelling units, which generates less than one student in any level or type of school, therefore it is exempt from the City Commission Memorandum File 1969 - FLUM change for 1600 Lenox Avenue October 27, 2010 Page 5 requirements of public school concurrency and no further action is required at this time. However, a final determination of Public School Concurrency and capacity reservation will only be made at the time of approval of final plat, site plan or functional equivalent. As such, this analysis does not constitute a Public School Concurrency approval. However, any final determination of Public School Concurrency and capacity reservation will only be made at the time of approval of a final project should residential uses be desired. Summary The City is proposing to change the land use category on the Future Land Use Map of this purposely built commercial property in order to use the site for commercial, retail, office and perhaps limited residential uses. This proposal requires a Future Land Use Map change and zoning map change. It should also be noted that the property is a designated local historic site and lies adjacent to the National Register Architectural District and Flamingo Park local Historic District. All future projects shall be subject to review by the Historic Preservation Board pursuant to Section 11 8-563 of the City Code. PLANNING BOARD ACTION At the July 27, 2010 meeting the Planning Board recommended that the City Commission approve the proposed change to the Future Land Use Map of the City's Comprehensive Plan by a vote of 4-0 (three members absent). CONCLUSION The Administration recommends that the City Commission adopt the proposed ordinance on first and only reading public hearing and direct the Administration to transmit all applicable documents to the Department of Community Affairs (DCA) and other required reviewing agencies. Pursuant to Florida Statutes, small scale development amendments require only one public hearing before the governing board (City Commission), which shall be an adoption hearing. The procedure for transmittal of a complete proposed plan amendment shall be by affirmative vote of not less than a majority of the members of the governing body present which shall constitute a quorum. In the case of a small scale amendment, notification by mail each to real property owner whose address is known by reference to the latest ad valorem tax records will be required, as well as to the owners of record of land lying within 375 feet of the land proposed to be changed. Such notice shall be given at least 30 days prior to the date set for the public hearing. The subject noticed was mailed on September 24, 2010. The notice shall also be published in a standard size newspaper; the required advertisements shall be no less than 2 columns wide by 10 inches long and the headline in the advertisement shall be in a type no smaller than 18 point and shall be placed in a newspaper of general paid circulation in the municipality and of general interest and readership in the municipality. The advertisement shall be in substantially the following form: City Commission Memorandum File 1969 - FLUM change for 1600 Lenox Avenue October 27, 2010 Page 6 NOTICE OF (TYPE OF) CHANGE The lname of local governmental unit) proposes to adopt the following ordinance: (title of the ordinance). A public hearing on the ordinance will be held on {date and time) at [meeting place). The advertisement shall contain the ordinance title and a geographic location map which clearly indicates the area covered by the proposed ordinance. PCL JMGIJGGIRGUML T:WGENDA\2010\0ctober 27\Regular\l969-FLUM 1600 Lenox Ave rpt.docx ATLANTR OCEAN ORDINANCE NO. AN ORDINANCE OF THE MAYOR AND ClTY COMMISSION OF THE ClTY OF MIAMI BEACH, FLORIDA, AMENDING THE FUTURE LAND USE MAP OF THE COMPREHENSIVE PLAN BY CHANGING THE FUTURE LAND USE CATEGORY FOR THE PARCEL KNOWN AS "1600 LENOX AVENUE," MORE PARTICULARLY DESCRIBED IN THE LEGAL DESCRIPTION ATTACHED AS EXHIBIT "A" HERETO, FROM THE CURRENT RM-1, "MULTI-FAMILY, LOW INTENSITY," TO THE FUTURE LAND USE CATEGORY OF CD-1, "COMMERCIAL, LOW INTENSITY;" PROVIDING FOR INCLUSION IN THE COMPREHENSIVE PLAN, TRANSMITTAL, REPEALER, SEVERABILITY AND AN EFFECTIVE DATE. WHEREAS, the City of Miami Beach has made an application to change the Future Land Use Map category for the parcel referred to herein as "1600 Lenox Avenue," located at 1600 Lenox Avenue, from the current RM-1, Multi-Family, Low Intensity to the Future Land Use category CD-I, Commercial, Low Intensity; and WHEREAS, the property owner, 1600 Lenox Investors, LLC, intends to continue use of the property for commercial uses in accordance with the existing regulations in the Land Development Regulations of the City Code; and WHEREAS, amending the Future Land Use category of the subject 1600 Lenox Avenue parcel as provided herein is necessary to ensure the development of that property will be compatible with development in adjacent and surrounding areas, and will contribute to the general health and welfare of the City; and WHEREAS, the City of Miami Beach has determined that changing the Future Land Use category of the subject 1600 Lenox Avenue parcel as provided herein will ensure that new development is compatible and in scale with the built environment, and is in the best interest of the City; NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND ClTY COMMISSION OF THE ClTY OF MIAMI BEACH, FLORIDA: SECTION 1. The following amendment to the City's Future Land Use Map designations for the property described herein is hereby approved and adopted and the staff is hereby directed to make the appropriate changes to the Future Land Use Map of the City: A parcel of land commonly known as the "1600 Lenox Avenue," approximately 7,457 square feet (0.171 acres), deemed to be a small-scale amendment, from the current RM-1, "Multi-Family Residential Low Intensity," to the Future Land Use category of CD-1, "Commercial, Low Intensity." SECTION 2. REPEALER. All Ordinances or parts of Ordinances in conflict herewith be and the same are hereby repealed. SECTION 3. SEVERABILITY. If any section, subsection, clause or provision of this Ordinance is held invalid, the remainder shall not be affected by such invalidity. SECTION 4. CODIFICATION. It is the intention of the City Commission that the Future Land Use Map of the City's Comprehensive Plan be amended in accordance with the provisions of this Ordinance. SECTION 5. TRANSMITTAL. The Planning Director is hereby directed to transmit this ordinance to the appropriate state, regional and county agencies as required by applicable law. SECTION 6. EFFECTIVE DATE. This ordinance shall take effect 31 days after adoption pursuant to Chapter 163.31 87(c) F.S. PASSED and ADOPTED this day of , 2010. MAYOR ATTEST: CITY CLERK APPROVED AS TO n FORM & LANGUAGE First Reading: Second Reading: Verified by: Planning Director F:\PLAN\$PLB\draR ordinances\l969&1970 - 1600 Lenox Ave\FLUM change ord rev 9-29-201 0.doc EXHIBIT A Legal Description: 1600 Lenox Avenue, Miami Beach, Florida Lot 1, Block 46 of COMMERCIAL SUBDIVISION according to the Plat thereof, as recorded in Plat Book 6, at Page 5 of the Public Records of Miami-Dade County, Florida COMMISSION ITEM SUMMARY Condensed Title: An Ordinance Of The Mayor And City Commission Of The City Of Miami Beach, Florida, Amending The Official Zoning District Map, Referenced In Section 142-72 Of The Code Of The City Of Miami Beach, Florida By Changing The Zoning District Classification For The Parcel Known As "1600 Lenox Avenue," From RM-I, "Multi-Family, Low Intensity," To CD-1, "Commercial, Low Intensity;" Key Intended Outcome Supported: I Regulatory and Neighborhood satisfaction Supporting Data (Surveys, Environmental Scan, etc Regulatory - required by Florida Statutes Issue: Should the City Commission amend the Official Zoning Map for 1600 Lenox Avenue from RM-1 to CD-I. Item SummarylRecommendation: FIRST AND ONLY READING PUBLIC HEARING The City, at the request of the property owner, is proposing to change the zoning district classification on the Official Zoning District Map of this purposely built commercial property in order to continue using the site for commercial, retail, office. The change of zoning district does not increase the floor area ratio of the subject site. The current district designation is RM-1 Multi Family Residential Low Intensity Category which has a maximum floor area ratio (FAR) of 1.25 and a maximum density of 60 units per acre. Similarly, the proposed district category of CD-1 Commercial Low Intensity category has a maximum FAR of 1.0 and 1.25 when more than 25 percent of the total area of a building is used for residential use. Therefore, the request is consistent with the City Charter provisions of Section 1.03 (c). The zoning district regulations for the RM-1 zoning district only permit residential uses; commercial uses are not permitted. The existing commercial use is functioning as legal, non-conforming; however, the nonconforming use of a building cannot be permitted to extend throughout other parts of that building. I The Administration recommends that the City Commission adopt the ordinance Advisory Board Recommendation: I At the Julv 27. 2010 meeting, the Planning Board recommended that the approval both proposed I . . I changes to the Future Land Lke and the zoiing Maps by a vote of 4-0 (three members absent). OBPl Financial Information: 2 3 Total I I I Financial Impact Summanr: The proposed ordinance is not expected to have any fiscal impact upon Account I the resources bf the City at this time. 'when the site is redeveloped, revenues to the-city may increase. I City Clerk's Office Legislative Tracking: I Richard Lorber or Mercy Lamazares Amount Source of Funds: 1 MIAMIBEACH City of Miami Beach, 1700 Convention Center Drive, Miami Beach, Florida 33 139, www.rniamibeachfl.gov COMMISSION MEMORANDUM TO: Mayor Matti Herrera Bower and Members of the City Commission FROM: Jorge M. Gonzalez, City Manager DATE: October 27, 2010 SUBJECT: 1600 Lenox Avenue - change of oning Map - First and only Reading Public Hearing. AN ORDINANCE OF THE MAYOR AND ClTY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, AMENDING THE OFFICIAL ZONING DISTRICT MAP, REFERENCED IN SECTION 142-72 OF THE CODE OF THE ClTY OF MIAMI BEACH, FLORIDA, BY CHANGING THE ZONING DISTRICT CLASSIFICATION FOR THE FOR THE PARCEL KNOWN AS "1600 LENOX AVENUE," MORE PARTICULARLY DESCRIBED IN THE LEGAL DESCRIPTION ATTACHED AS EXHIBIT "A" HERETO, FROM THE CURRENT ZONING CLASSIFICATION RM-1, "RESIDENTIAL MULTIFAMILY LOW INTENSITY," TO THE PROPOSED ZONING CLASSIFICATION CD-1, "COMMERCIAL, LOW INTENSITY," WITH A RESTRICTION LIMITING THE PROPERTY TO COMMERCIAL USES AND NO MORE THAN 10 RESIDENTIAL UNITS PER ACRE AS PROVIDED FOR IN THE VOLUNTARY COVENANT; PROVIDING FOR CODIFICATION, REPEALER, SEVERABILITY AND AN EFFECTIVE DATE. ADMINISTRATION RECOMMENDATION The Administration recommends that the City Commission adopt the proposed ordinance for this proposed zoning map change on first and only reading public hearing. BACKGROUND At its May 27, 2010 meeting the Land Use and Development Committee (LUDC) referred the rezoning of the subject commercial property to the Planning Board. ZONING I SITE DATA Legal Description: Lot 1, Block 46 of COMMERCIAL SUBDIVISION according to the Plat thereof, as recorded in Plat Book 6, at Page 5 of the Public Records of Miami- Dade County, Florida City Commission Memorandum File 1970 - Zoning change for 1600 Lenox Avenue October 27, 2010 Page 2 Site Area: Size: 50 X 150 feet (approximately 7,500 sq. ft. (or +I- 0.172 acre) Existing Zoning district: RM-1 Residential Multifamily Low Intensity Proposed Zoning district: CD-1 Commercial, Low Intensity Existing Density Limits: RM-1 - 60 dwellings units per acre Proposed Density Limits: CD-1 - 60 dwelling units per acre (subject to a voluntary restrictive covenant that limits density to 10 units per acre). Existing Intensity Limits: RM-1 - shall not exceed 1.25 FAR Proposed Intensity Limits: CD-1 - shall not exceed 1.0 FAR for commercial; exce~tion: when more than 25 percent of the total area of a building is used for residential units, the maximum FAR shall be as set forth in the RM-I district -1.25 FAR for residential or mixed use Existing Land Uses: There is a 69-unit condominium building directly adjacent to the north (1610 Lenox Avenue) of the subject property; there is a 20-unit condominium building directly across to the east (1601 Lenox Avenue); there is a 30-unit residential building diagonally across (1 038 16' Street); and a 18-unit condominium building across the street to the south with commercial space on the ground floor (1560 Lenox Avenue), which is located in a CD-1, commercial low intensity zoning district. City Commission Memorandum File 1970 - Zoning change for 1600 Lenox Avenue October 27, 2010 Page 3 ANALYSIS History of the Site The Property is located in the first commercial subdivision created by Carl Fisher in Miami Beach in February 1920. The creation of this commercial subdivision has had a major impact in the development of the City as reflected along Alton Road, which remains one of Miami Beach's major commercial corridors today. The subject site remained vacant until the existing building was constructed in 1937. It was built as a single-story commercial building with nine store spaces. Among other tenants, the building housed a Food Market for over 50 years and a bar that began in 1941 as the Knotty Pine Bar and is today known as the Abbey Brewing Company. These and other unique commercial uses have provided an invaluable service to the local residents for over 70 years. Planning and Zoning Issues The zoning designation for the subject site is RM-1 Residential Multifamily Low Intensity district. This district purpose as stated in the Code of the City of Miami Beach: "is designed for low intensity, low rise, single-family and multiple-family residences. " The main permitted uses in the RM-1 residential multifamily, low density district are single- family detached dwelling; townhomes; apartments. Hotels are permitted in this district, but only in a limited area of Harding AvenueICollins Avenue corridor. Commercial uses, i.e., retail, office, etc., are not permitted in this district. The property contains a one-story commercial structure that covers the entire lot. For years the building had been neglected, but the current owner decided to preserve and renovate the building rather than demolish and build new. Because of its commercial nature and use, it is now deemed a legal, non-conforming use in a residential district. The City Commission designated the existing building a historic site on October 14, 2009. City Charter Issues The request for changing the Future Land Use Map of the City's Comprehensive Plan as well as the Zoning Map of the City, is affected by the City Charter provisions of Section I .03 (c), which partially states: The floor area ratio of any property or street end within the City of Miami Beach shall not be increased by zoning, transfer, or any other means from its current zoned floor area ratio as it exists on the date of adoption of this Charter Amendment (November 7, 2001). Including any limitations on floor area ratios which are in effect by virtue of development agreements through the full term of such agreements, unless such increase in zoned floor area ratio for any such property shall first be approved by a vote of the electors of the City of Miami Beach. The change of land use designation and zoning district does not increase the floor area ratio of the subject site. The current land use designation as RM-1 Multi Family Residential Low Density Category has a maximum floor area ratio (FAR) of 1.25 and a maximum density of 60 units per acre. Similarly, the proposed land use designation of CD-1 Commercial Low lntensity category has a maximum FAR of 1.0 and 1.25 when more than 25 percent of the total area of a building is used for residential or hotel units. Therefore, the request is consistent with the City Charter provisions of Section 1.03 (c). It should be noted that the property owner has voluntarily proffered a covenant to include City Commission Memorandum File 1970 - Zoning change for 1600 Lenox Avenue Ocfober 27, 2010 Page 4 a maximum of 10 units per acre in any residential development that may be proposed in the future. Comprehensive Plan Issues Prior to 1989, the area north of 16'~ Street had a zoning classification of C-2, which was a commercial classification; attached is a partial copy of a zoning map dating back to September 1, 1983. The change of land use and zoning took effect in 1989, when the Zoning Ordinance of the City was extensively amended to carry out the 1989 Comprehensive Plan resulting in a new set of land development regulations (LDR). However, it should be noted that the block to the south (Block 65) is currently designated CD-1 in the Future Land Use Map, and zoned the same, therefore compatibility exists. The total land area involved in this application is 0.17 acres. Interlocal Agreement for Public School Facility Planning The 2005 Florida Legislature adopted laws which are incorporated in the Florida Statutes, requiring each local government to adopt an intergovernmental coordination element as part of their comprehensive plan, as well as a statutory mandate to implement public school concurrency. In compliance with this requirement, the application by the City was submitted to the Miami-Dade County Public Schools for its review and concurrency determination. The Preliminary Concurrency Analysis would yield a maximum residential density of 2 multifamily dwelling units, which generates less than one student in any level or type of school, therefore it is exempt from the requirements of public school concurrency and no further action is required at this time. However, a final determination of Public School Concurrency and capacity reservation will only be made at the time of approval of final plat, site plan or functional equivalent. As such, this analysis does not constitute a Public School Concurrency approval. However, any final determination of Public School Concurrency and capacity reservation will only be made at the time of approval of a final project should residential uses be desired. Summary The City is proposing to amend the Official Zoning Map for this commercial property in order to use the site for commercial, retail, office and perhaps limited residential uses. This proposal requires a Future Land Use Map change and zoning map change. It should also be noted that the property is a designated local historic site and lies adjacent to the National Register Architectural District and Flamingo Park local Historic District. All future projects shall be subject to review by the Historic Preservation Board pursuant to Section 11 8-563 of the City Code. PLANNING BOARD ACTION At the July 27, 2010 meeting the Planning Board recommended that the City Commission approve the proposed change to the Future Land Use Map of the City's Comprehensive Plan by a vote of 4-0 (three members absent). CONCLUSION The Administration recommends that the City Commission adopt the proposed ordinance on first and only reading public hearing and direct the Administration to City Commission Memorandum File 1970 - Zoning change for 1600 Lenox Avenue October 27, 2010 Page 5 transmit all applicable documents to the Department of Community Affairs (DCA) and other required reviewing agencies. Pursuant to Section 118-164 (1) when the proposed amendment changes the actual zoning map designation for a parcel or parcels of land and, notice shall be given by mail at least 30 days prior to the date set for the public hearing, to the owners of record of land lying within 375 feet of the land, subject to the proposed zoning map change. The city commission shall hold a public hearing on the proposed ordinance and may, upon the conclusion of the hearing, immediately adopt the ordinance. The subject noticed was mailed on September 24, 2010. The notice shall also be published in the newspaper substantially in the following form: NOTICE OF (TYPE OF) CHANGE The (name of local novernmental unit) proposes to adopt the following ordinance: (title of the ordinance). A public hearing on the ordinance will be held on [date and time) at (meeting place). The advertisement shall contain the ordinance title and a geographic location map which clearly indicates the area covered by the proposed ordinance. A b.L JMGIJGGIRGUML T:\AGENDA\201 O\October 27\Regular\l969-FLUM 1600 Lenox Ave rpt.docx OCEAN This instrument was prepared by: Name: Matthew Amster, Esq. Address: Bercow Radell & Fernandez, PA 200 South Biscayne Boulevard Suite 850 Miami, Florida 33131 (Space reserved for Clerk) DECLARATION OF RESTRICTIONS ?THEREAS, 1600 Lenox Investors, LLC ("Owner"), holds the fee simple title to the land described in Exhibit "A," attached hereto and with address of 1600 Lenox Avenue, Miami Beach, Florida, which is supported by the attorney's opinion attached hereto as Exhibit b6B," and WHEREAS, the land located at 1600 Lenox Avenue is hereinafter referred to as the "Propertv," and WHEREAS, the Property is located in the first comiiercial subdivision in the City of Miami Beach ("City"), was originally zoned for commercial uses, and is presently designated as RM-1, 'cMulti-Family Residential, Low Intensity," on the Future Land Use Map of the Comprehensive Plan of the City, and zoned RM-1, "Residential Multifamily Low Intenisty," on the Official Zoning District Map and WHEREAS, the Property contains a one-story commercial building built %a it in g 1937 that has continuously contained commercial uses to this day, and WHEREAS, the commercial building is a contributing structure in the database of historic structures in the City, and WHEREAS, Owner applied for and obtained historic designation of the Property fi-om the City to preserve the historic structure, and WEREAS, Owner is nearing completion of a restoration of the commercial building in accordance with the original construction plans, and WHEREAS, Owner seeks to redesignate the Property fkom RM-1 to CD-1, "Commercial, Low Intensity," on the Future Land Use Map and rezone the Property fi-om RM-1 to CD-1, "Commercial, Low Intensity," on the Official Zoning District Map and Section-Township-Range: 34-53-42 Folio number: 02-3234-018-0190 Declaration of Restrictions Page 2 (Space reserved for Clerk) IN ORDER TO ASSURE the City that the representations made by the Owner concerning the redesignation and rezoning of the Property will be abided by, the Owner fieely, voluntarily and without duress makes the following Declaration of Restrictions covering and running with the Property: (1) The foregoing whereas clauses are true and correct and incorpor"ated herein by reference. (2) Owner shall limit residential uses to no more than lodunits per acre. (3) Owner shall not apply for a dance hall license. .* (4) Owner shall not apply for an entertainment licen'se. . (5) Owner shall not apply for a neighborhood impact establishment. (6) Owner shall not iqstall outdoor speakers. (7) Owner shall not have any live or amplified music outdoors. -.,, (8) In the event a restaurant occupies the easternmost portion of the building, Owner shall make the doorway facing Lenox Avenue an emergency exit only. (9) For any restaurant use, Owner shall ensure that the service door(s) on the north elevation remain closed at all times, except when in active use. (1 0) Owner shall close any sidewalk caf&(s) at 12:OO AM and any indoor restaurants at 2:OO AM. (1 1) Owner shall prohibit trash collection fiom any dumpster(s) before 7:00 AM and after 8:00 PM. (12) Owner shall prohibit delivery trucks before 7:00 AM and after 8:00 PM. Section-Township-Range: 34-53-42 Folio number: 02-3234-018-0190 ,Declaration of Restrictions Page 3 (Space reserved for Clerk) (13) Owner shall prohibit the following uses on the Property: pawnshops, check cashing stores, secondhand stores, warehouses, and any use selling gasoline. (14) Covenant Running with the Land. This Declaration on the part of the Owner shall constitute a covenant running with the land and shall be recorded, at Owner's expense, in the public records of Miami-Dade County, Florida and shall remain in full force and effect and be binding upon the undersigned Owner, andits heirs, successors and assigns until such time as the same is modified or released. ~hese restrictions during their lifetime shall be for the benefit of, and limitation upon, all present and future owners of the real property. - (15) Term. This Declaration is to run with the land and shall be binding on all parties and all persons claiming under it for a period of thirty (30) years from the date this Declaration is recorded, after which time it shall be extended. autom@cally for successive periods of ten - (10) years each, unless an instrument signed by the then owner(s) of the Property has been recorded agreeing to change the covenant in whole, or in part. (1 6) Modification, Amendment, Release. This Declaration of Restrictions may be modified, amended or released as to the land herein deqkbed, or any portion thereof, by a written instrument executed by the then owner(s) of all of the Property, including joinders of all mortgagees, if any. "'I # (17) Enforcement. Enforcement shall be by action against any parties or person violating, or attempting to violate, any covenants. The prevailing party in any action or suit pertaining - to or arising out of this declaration shall be entitled to recover, in addition to costs and disbursements allowed by law, such sum the Court may adjudge to be reasonable for the services of his attorney. This enforcement provision shall be in addition to any other remedies available at law, in equity or both. (1 8) Severabilitv. Invalidation of any one of these covenants, by judgment of Court, shall not affect any of the other provisions which shall remain in full force and effect. I IX (19) Recording. This Declaration shall be filed in the public records of Miami-Dade County, Florida at the cost of the Owner. This Declaration shall become effective immediately upon recordation. Section-Township-Range: 34-53-42 Folio number: 02-3234-018-0190 Declaration of Restrictions Page 4 (Space reserved for Clerk) Approved Planning Director Date Approved as to form and language and for execution City Attorney Dated: [Execution Pages F,ollow] F:\DataU)ocs\1600 Lenox Investors, LLC\Conditions of Approval\Declaration of Restrictions re rezoning 0623 l0.doc Section-Township-Range: 34-53-42 Folio number: 02-3234-018-0190 Declaration of Restrictions Page 5 (Space reserved for Clerk) ACKNOWLEDGMENT CORPORATION Signed, witnessed, executed and acknowledged on this - day of ,2010. KTiVESS MEREOF, (Corporate name) has caused these presents to be signed in its name by its proper officials. Witnesses: Signature Print Name Name of Corporation Address: Signature Print Name Title: Prht Name: STATE OF COUNTY OF The foregoing instrument was acknowledged before me by . the of corporation, on behalf of the corporation. HeIShe is personally known to me or has produced as identification. Witness my signature and official seal this day of , 2010, in the County and State aforesaid. Notary Public Print Name My Commission Expires: Section-Township-Range: 34-53-42 Folio number: 02-3234-018-0190 ORDINANCE NO. AN ORDINANCE OF THE MAYOR AND ClTY COMMISSION OF THE CITY OF MlAMl BEACH, FLORIDA, AMENDING THE OFFICIAL ZONING DISTRICT MAP, REFERENCED IN SECTION 142-72 OF THE CODE OF THE ClTY OF MlAMl BEACH, FLORIDA, BY CHANGING THE ZONING DISTRICT CLASSIFICATION FOR THE FOR THE PARCEL KNOWN AS "1600 LENOX AVENUE," MORE PARTICULARLY DESCRIBED IN THE LEGAL DESCRIPTION ATTACHED AS EXHIBIT "A" HERETO, FROM THE CURRENT ZONING CLASSIFICATION RM-1, "RESIDENTIAL MULTIFAMILY LOW INTENSITY," TO THE PROPOSED ZONING CLASSIFICATION CD-1, "COMMERCIAL, LOW INTENSITY," WITH A RESTRICTION LIMITING THE PROPERTY TO COMMERCIAL USES AND NO MORE THAN 10 RESIDENTIAL UNITS PER ACRE AS PROVIDED FOR IN THE VOLUNTARY COVENANT; PROVIDING FOR CODIFICATION, REPEALER, SEVERABILITY AND AN EFFECTIVE DATE. WHEREAS, the City of Miami Beach has made an application to change the zoning classification of the parcel referred to herein as "1600 Lenox Avenue," located at 1600 Lenox Avenue, from RM-1, Residential Multifamily Low Intensity, to CD-I, Commercial, Low Intensity; and WHEREAS, the property owner, 1600 Lenox Investors, LLC, intends to continue use of the property for commercial uses in accordance with the existing regulations in the Land Development Regulations of the City Code, as it may be amended in the future, with the exception of a limitation of no more than 10 residential units per acre as provided for in the voluntary covenant attached hereto; and WHEREAS, amending the zoning of the subject 1600 Lenox Avenue parcel as provided herein is necessary to ensure the development of that property will be compatible with development in adjacent and surrounding areas, and will contribute to the general health and welfare of the City; WHEREAS, the City of Miami Beach has determined that the rezoning of the subject 1600 Lenox Avenue parcel as provided herein will ensure that new development is compatible and in scale with the built environment, and is in the best interest of the City; WHEREAS, full legal description of the Affected Property is contained in Exhibit "A attached to this Ordinance, and shortened descriptions of such properties will be codified in the amendments below. NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND ClTY COMMISSION OF THE ClTY OF MlAMl BEACH, FLORIDA: SECTION 1. The following amendments to the City's zoning map designations for the properties described herein are hereby approved and adopted and the Planning Director is hereby directed to make the appropriate changes to the zoning map of the City: A parcel of land commonly known as "1600 Lenox Avenue," approximately 7,457 square feet (0.171 acres), from the current RM-1, "Residential Multifamily Low Intensity," to the proposed zoning classification CD-1, "Commercial, Low Intensity," with a restriction limiting the property to commercial uses and no more than 10 residential units per acre as provided for in the voluntary covenant attached hereto. SECTION 2. REPEALER. All Ordinances or parts of Ordinances in conflict herewith be and the same are hereby repealed. SECTION 3. SEVERABILITY. If any section, subsection, clause or provision of this Ordinance is held invalid, the remainder shall not be affected by such invalidity. SECTION 4. CODIFICATION. It is the intention of the City Commission that the Official Zoning District Map, referenced in Section 142-72 of the Code of the City Of Miami Beach, Florida be amended in accordance with the provisions of this Ordinance. SECTION 5. EFFECTIVE DATE. This ordinance shall take effect 31 days after adoption to correspond to the adoption date of the Future Land Use Map of the City's Comprehensive Plan. PASSED and ADOPTED this day of ,2010 MAYOR ATTEST: CITY CLERK APPROVED AS TO FOW & LANGUAGE First Reading: Second Reading: Verified by: Planning Director F:\PLAN\$PLB\draft ordinances\l969&1970 - 1600 Lenox Avejzoning map change ord rev 9-29-201 0.doc EXHIBIT A Legal Description: 1600 Lenox Avenue, Miami Beach, Florida Lot 1, Block 46 of COMMERCIAL SUBDIVISION according to the Plat thereof, as recorded in Plat Book 6, at Page 5 of the Public Records of Miami- Dade County, Florida c~,nsfie-k$@~@$)y-the City for %he imW!wordrclim of c3ttmwise :isdmissi'tritrle or irretevad%&&, hmr Jew authof& challenges or appials not ot& d -. <F *-, :- a L #?-: 3 f$--E.b COMMISSION ITEM SUMMARY ,ondensed Title: An Ordinance Of The Mayor And City Commission Of The City amending Part I, Subpart B, Article IX, Related Special Acts, of the City Code entitled, "Pension System for disability and retirement of members of Police and Fire Departments"; amending Section 65 entitled "Computation of creditable service; service record', Providing for the purchase of additional creditable service upon completion of ten years of service with the City; amending Section 66 entitled, "Service and Disability Benefits Generally", providing for the inclusion of Unused Sick andlor Vacation time in a member's Final Average Monthly Earnings, Subject to certain limitations; amending Section 79 entitled "Deferred Retirement Option Plan", providing for a maximum DROP period of sixty months and a modified Cost of Living Adjustment during the DROP period; creating a new Section 87 entitled "Pension Benefits for Firefighters and Police Officers hired on or after ratification of the Agreement"; providing for severability; repealing all Ordinances in conflict therewith; and providing for an effective date. Key Intended Outcome Supported: I Control costs of payroll including salary and fringes1 minimize taxes1 ensure expenditure trends are sustainable over the long term. Supporting Data (Surveys, Environmental Scan, etc NIA Issue: - - Should the City Commission adopt the ordinance to amend Part I, Subpart B, Article IX, Related Special Acts, of the Miami Beach City Code? Item Summary1Recommendation: I Second Reading The City has been negotiating with the IAFF and FOP to amend and change the City Pension Fund for Firefighters an; Police Officers in the City of Miami Beach (Fire and Police Pension Plan) in order to effectuate recurring savings in the overall reduction to the City's Annual Required Contribution (ARC), as well as a reduction in the Unfunded Accrued Actuarial Liability (UAAL). The IAFF and FOP agreed for current employees to increase the DROP period from 3 to 5 years with a "Guaranteed" zero COLA for 2 years; making Off-Duty assignments pensionable; and using sick and vacation leave in exchange of reaching the fixed cap. For new employees, the retiree COLA will be 1.5%; Rule of 70 with a minimum age of 48; three (3) year FAME; "Guaranteed" 0% retiree COLAfor 2 years; and a multiplier of 3% for the first 20 years and 4% thereafter. The Administration recommends that the City Commission approve the ordinance on second reading. I I Advisory Board Recommendation: 1 NIA Financial Information: Account Reduction of City's ARC payable on October I, 2010 due to Actuarial Impact Statement revising the methodology for pensionable pay. Impact of Zero Salary COLA; Guaranteed Zero DROP COLA realized as experience gains; Impact of Off-Duty Pensionable and Overtime Cap - Subject to the State recognizing these savings Impact of Zero Salary COLA; Guaranteed Zero DROP COLA Off-Duty Pensionable and Overtime Cap Source of Funds: i OBPl Financial lmpact Summary: Savings for three (3) years based on FOP and IAFF Agreements combined total $2,507,207. In addition, these concessions will yield additional, long-term, recurring savings in future fiscal years. City Clerk's Office Legislative Tracking: Ramiro Inguanzo, Human Resources Director 1 2 3 Total Amount Year 1 ($827,207) Year 2 ($840,000) Year 3 ($840,000) Plus the impact of changes for future employees ($2,507,207) MIAMIBEACH City of Miami Beach, 1700 Convention Center Drive, Miami Beach, Florida 33 139, www.rniamibeachfl.gov COMMISSION MEMORANDUM TO: of the City Commission FROM: DATE: October 27, 201 0 Second Reading SUBJECT: AN ORDINANCE OF THE MAYOR AND ClTY COMMISSION OF THE ClTY OF MlAMl BEACH, FLORIDA, AMENDING PART I, SUBPART B, ARTICLE IX, RELATED SPECIAL ACTS, OF THE MIAMI BEACH ClTY CODE ENTITLED "PENSION SYSTEM FOR DISABILITY AND RETIREMENT OF MEMBERS OF POLICE AND FlRE DEPARTMENTS"; IMPLEMENTING PROVISIONS OF THE 2009-2012 COLLECTIVE BARGAINING AGREEMENTS BETWEEN THE ClW AND FlRE FIGHTERS OF MlAMl BEACH, IAFF LOCAL 1510 AND THE MlAMl BEACH FRATERNAL ORDER OF POLICE, FOP WILLIAM NICHOLS LODGE NO. 8; AMENDING SECTION 65 ENTITLED "COMPUTATION OF CREDITABLE SERVICE; SERVICE RECORD", PROVIDING FOR THE PURCHASE OF ADDITIONAL CREDITABLE SERVICE UPON COMPLETION OF TEN YEARS OF SERVICE WITH THE CITY; AMENDING SECTION 66 ENTITLED "SERVICE AND DISABILITY BENEFITS GENERALLY", PROVIDING FOR THE INCLUSION OF UNUSED SICK AND/OR VACATION TIME IN A MEMBER'S FINAL AVERAGE MONTHLY EARNINGS, SUBJECT TO CERTAIN LIMITATIONS; AMENDING SECTION 79 ENTITLED "DEFERRED RETIREMENT OPTION PLAN", PROVIDING FOR A MAXIMUM DROP PERIOD OF SIXTY MONTHS AND A MODIFIED COST OF LIVING ADJUSTMENT DURING THE DROP PERIOD; CREATING A NEW SECTION 87 ENTITLED "PENSION BENEFITS FOR FIREFIGHTERS HIRED ON OR AFTER RATIFICATION OF THE 2009-2012 COLLECTIVE BARGAINING AGREEMENT";PROVIDING FOR SEVERABILITY; REPEALING ALL ORDINANCES IN CONFLICT THEREWITH; AND PROVIDING FOR AN EFFECTIVE DATE. ADMINISTRATION RECOMMENDATION Adopt the Ordinance. BACKGROUND During the July2009 Finance and Citywide Projects Committee (Committee) budget preparation meetings for the FY2009/2010 Budget, the Committee requested that all City of Miami Beach employees make certain financial concessions to help address the challenges being faced during the FY2009/2010 budget cycle and beyond. The Committee requested the Administration to budget for specific employee givebacks for FY2009/2010, which would in turn effectuate a cost savings of approximately $4.3 million (approximately $3.5 million savings attributed to the General Fund and $800,000 from various enterprise funds). Furthermore, in 201 0 the City Commission directed the Administration to secure and budget for an additional $1 1 million in savings attributed to employee givebacks for FY2010/2011. Therefore, the total amount of employee givebacks for both the FY2009/2010 and FY2010/2011 was $15.3 million. City Commission Memorandum October 27,201 0 Fire and Police Pension Ordinance 2nd Reading Page 2 of 5 The City currently has a total of seven (7) salary groups who represent employees: (1) the American Federation of State, County and Municipal Employees, Local 1554 (AFSCME); (2) the Communications Workers of America, Local 31 78 (CWA); (3) the Government Supervisors Association of FloridaIOPEIU, Local 100 (GSA); (4) the Fraternal Order of Police, William Nichols Lodge No. 8 (FOP); (5) the International Association of Fire Fighters, Local 151 0 (IAFF) (6) Unclassified and (7) OTHERS (Classified employees not represented by a bargaining unit). Based upon the direction received from the City Commission, the $1 5.3 million savings in employee concessions for FY200912010 and FY201012011 combined was to be divided up proportionately amongst each of the seven (7) salary groups based on total budgeted payroll and a proportionate share of the preliminary FY201012011 City's Annual Required Contributions to both of the City's pension plans. In addition, the City Commission also directed the Administration to negotiate with the respective unions for pension changes to both of the City's pension plans (the Miami Beach Fire Fighters and Police Officers (Fire and Police) Pension Plan and the Miami Beach Employees' Retirement Plan (MBERP)), in order to obtain recurring savings for future years in each of the pension plans. The IAFF three (3) year Collective Bargaining Agreement (Agreement) (covering the period of October 1, 2006 through September 30, 2009) expired on September 30, 2009. In anticipation of the Agreement expiring, negotiators for the City and IAFF began negotiating for a successor three (3) year Agreement in August 2009. After eleven (1 1) formal negotiation sessions and several discussions away from the negotiation table, the City and IAFF successfully concluded negotiations and on July 14, 2010 the City Commission ratified a three (3) year labor agreement covering the time period of October 1,2009 through September 30, 2012. The significant concessions agreed to by the IAFF include: a zero Cost of Living Adjustment (COLA) for 30 months; an employee contribution of five percent (5%) of gross compensation from all employees covered under the IAFF bargaining unit for a time period of 18 months to offset the City's contributions to the Florida Firefighters insurance Trust Fund (their health insurance trust); a reduction in holiday pay hours from twelve (12) hours to nine (9) hours; and a number of changes to the Fire and Police Pension Plan for both current and future employees (as outlined in this memo). The FOP three (3) year Collective Bargaining Agreement (Agreement) (covering the period of October 1, 2006 through September 30,2009) also expired on September 30,2009. In anticipation of the Agreement expiring, negotiators for the City and FOP began negotiating for a successor three (3) year Agreement in August 2009. After fifteen (15) formal negotiation sessions and several discussions away from the negotiation table, the City and FOP successfully concluded negotiations and on July 14, 2010 the City Commission ratified a three (3) year labor agreement covering the time period of October I, 2009 through September 30, 2012. The significant concessions agreed to by the FOP include: a zero Cost of Living Adjustment (COLA) for 30 months; an employee contribution of five percent (5%) of gross compensation from all members covered under the FOP bargaining unit for a time period of 18 months to offset the City's contributions to the Miami Beach Fraternal Order of Police Insurance Trust Fund (their health insurance trust); an additional $7.00 increase the police vehicle take-home user fee for an eighteen (18) month period; and a number of changes to the Fire and Police Pension Plan for both current and future employees (as outlined in this memo). ANALYSIS The new Agreements with the iAFF and FOP provide for several pension adjustments and changes for current and future employees including the following: Deferred Retirement Option Plan (DROP1 - The current DROP period is three (3) years. However, with the new Agreement, employees who enter the DROP on or after September 1, 2012, will be eligible to participate in the DROP for a period not to exceed five (5) years. City Commission Memorandum October 27,201 0 Fire and Police Pension Ordinance 2nd Reading Page 3 of 5 For those employees who enter the DROP after September 1,2012, they will receive a zero percent (0%) cost of living adjustment for the third and fourth annual adjustment dates while in the DROP. If the employee leaves the DROP at any point after six (6) months they will still be subject to a zero percent (0%) COLA for the third and fourth annual adjustment dates. By not having a DROP COLA in the third and fourth years, the initial estimates provided by the City's actuary for the purpose of negotiations estimated that there will be a substantial recurring savings in the City's Annual Required Contribution (ARC) towards the Fire Fighters and Police Pension Plan of approximately $700,000 per year. The Fire and Police Pension Plan actuary has subsequently provided an estimated savings of $651,000. At the time of this writing, the City is still awaiting a response from the State of Florida Division of Retirement confirming whether or not these savings could retroactively be applied to the City's ARC due on October 1, 201 0. In addition, the DROP COLA will be granted on the anniversary of the employee entering the DROP, as opposed to the current method of pro-rating it to occur on October 1 of each year. The retiree COLA will be earnedlgranted on that same anniversary date. Additional Creditable Service - Currently, employees can purchase additional creditable service of up to two (2) years of full-time public safety service as a firefighter or a law enforcement office prior to City employment, and up to an additional six percent (6%) multiplier on the additional creditable service years being purchased, upon completion of 20 years of creditable service with the City. Most employees in IAFF and FOP take advantage of these two (2) provisions. With the new Agreements, any current or future employee that retires on or after September 30,2010 can make these purchases upon completion of ten (10) years of creditable service (when they vest). Since most employees take advantage of these provisions, there is a benefit to the pension plan to change the eligibility for these buy-backs, as the pension plan will receive the funds earlier and thus be able to invest the funds sooner. It is anticipated that the investment earnings on the funds will be larger since the collection of the funds will be earlier. The City's actuary and the Fire and Police pension actuary estimated this change to have a small impact towards savings to the ARC next year, with a recurring savings year after year. Overtime Cap -The Fire and Police Pension Plan currently has provisions in place regarding how overtime is to be used in the calculation of a member's retirement benefits. The existing calculation is that overtime earned is added to the retirement benefit with a cap of "70% of the next highest rank. Based on the ratified lAFF Agreement, the City and the IAFF have agreed to replace the "70% of the next highest rank calculation with an alternative formula. For those employees covered under the IAFF bargaining unit, overtime for the purposes of calculating a member's retirement benefit shall not exceed eleven percent (1 1 %) of their salary at the time of retirement. Based on the terms and conditions of the ratified FOP Agreement, the overtime calculation for the purposes of calculating a member's retirement benefit remains unchanged (capped at 70% of the next highest rank). In addition to the change in the overtime calculation for those members covered under the IAFF bargaining unit, employees will be able to reach the caps mentioned above (eleven (I 1 %) for IAFF and 70% of the next highest rank for FOP) by using the following two (2) alternatives: Employees will be able to apply unused sick andlor vacation time for inclusion in the member's salary for pension purposes as follows: for each one hundred dollars ($1 00) of unused sick andlor vacation time (at the member's hourly rate), ninety dollars ($90) shall be applied toward the members final average monthly salary and ten ($10) shall be contributed to the pension fund. However, in no event will the value of unused sick andlor vacation time applied to a member's salary for pension purposes, when added to any overtime pay andlor off-duty pay, exceed the cap of eleven percent (1 1 %)for members covered under the lAFF bargaining unit and 70% of the next City Commission Memorandum October 27,201 0 Fire and Police Pension Ordinance 2" Reading Page 4 of 5 highest rank for members covered under the FOP bargaining unit. This should encourage members to not use sick andlor vacation time, which drives overtime costs for the City. As such, savings in overtime expenses are expected. Off-duty services will also be pensionable as another means to reach the cap of eleven percent (1 1%) for members covered under the IAFF bargaining unit and 70% of the next highest rank for members covered under the FOP bargaining unit. Currently, the City receives no employee contribution for off-duty, as it is not pensionable. Once it becomes pensionable, the employee will be required to make a ten percent (10%) pension contribution on all off-duty worked. This will provide additional revenue into the pension system for investment. However, in no event will the value of off-duty pay applied to a member's salary for pension purposes, when added to any overtime pay and/or unused sick andlor vacation, exceed the cap of eleven percent (1 I %) for members covered under the IAFF bargaining unit and 70% of the next highest rank for members covered under the FOP bargaining unit. Based on current off-duty amounts paid it is estimated that the City will collect approximately $330,000 per year from the FOP and IAFF towards the pension. The Fire and Police Pension Plan actuary has estimated an impact of a $369,000 increase to the Annual Required Contribution in future years. However, the City's pension actuary disagrees with this figure and is currently working with the State of Florida Division of Retirement to address the methodology utilized by the Pension Plan's actuary. Future Emplovees - For future employees, in addition to the changes referenced above, there are additional pension changes, including: Retiree COLA (including while in the DROP) will change from 2.5% to 1.5%; Rule of 70 retirement eligibilitywill change from having no minimum age to having a minimum age of 48; Final Average Monthly Earnings (FAME) changing from two (2) to three (3) years; and Benefit Multiplier will change from three percent (3%) for each year of creditable service for the first 15 years of service and four percent (4%) thereafter to three percent (3%) for each year of creditable service for the first 20 years of service and four percent (4%) thereafter. Buck Consultants, the actuary for the Fire and Police Pension Plan, has stated that the implementation of the pension changes for any employee hired after the amendment to the City's pension ordinance will not generate any immediate savings. However, future savings will be realized in future fiscal years resulting in savings towards the City's ARC and the Unfunded Accrued Actuarial Liability (UAAL). Waqes - Effective October 1,2009 through September 30,201 0; October 1,201 0 through September 30, 201 1; and October 1, 201 1 through March 31, 2012, there will be no across-the-board wage increases (COLA) for this period for any FOP or IAFF bargaining unit members. It was initially estimated that the impact to the City's Annual Required Contribution (ARC) for the Fire and Police Pension Plan due on October 1, 2010 would be a reduction of approximately $1.4 million if no Cost of Living increases were provided to any active plan participants for FY 20091201 0 and FY 201 01201 1 (both Fire and Police). The savings from no COLA in year one (I) have already been reflected in the calculation provided to the City for the City's ARC due on October 1,2010. Due to subsequent assumption revisions, it is estimated that the savings from COLA in year two (2) will be approximately $557,000. During contract negotiations the IAFF and the FOP proposed that any changes to the Fire and Police Pension Plan would require a referendum vote by the residents of Miami Beach. The City Attorney's position has consistently been that no referendum vote is required to make changes to the Fire and Police Pension Plan and therefore rejected the Union's proposal. Ultimately, the City and Unions reached agreement on the pension changes proposed in this ordinance with no stipulation in the union contracts for a referendum vote to effectuate these changes. City Commission Memorandum October 27,201 0 Fire and Police Pension Ordinance 2nd Reading Page 5 of 5 Even though the City and the Unions have reached agreement on these pension changes, the Fire and Police Pension Board attorney has recommended to the Pension Board that these changes not become effective unless the City agrees to a referendum vote to effectuate these changes. The City's position remains that no referendum vote is required and that these matters are subject to the collective bargaining process. CONCLUSION The IAFF and FOP Unions have agreed to the pension changes described above. Based on the original estimates provided by the Fire and Police Pension Plan actuaryand the City's actuary, the initial estimated pension savings was estimated to be approximately $2.48M. Since a portion of these savings derived from the zero salary COLA had already been applied towards FY2009/2010 and a portion of the $2.48M savings would be realized as experience gains rather than a reduction towards the City's ARC, the Administration budgeted a savings of approximately $1 .I M from the total estimated savings of $2.48M towards the FY2010/2011 budget. However, subsequent to this item being presented to the City Commission on First Reading at the July 14,2010 City Commission meeting, the Administration received a Actuarial lmpact Statement from the Fire and Police Pension Board's actuary which applied the new assumptions consistent with the pension changes agreed to by both the IAFF and FOP. The Actuarial lmpact Statement was reviewed by the City's pension actuary, who raised concerns regarding some of the methodologies being utilized by the Fire and Police Pension Plan actuary. Subsequently, a number of discussions have been held between the City's pension actuary, the Fire and Police Pension Plan actuary and the State of Florida Division of Retirement to address some of these concerns. Based on these discussion, the Fire and Police Pension Plan actuary has since submitted a revised lmpact Statement which amended the methodology utilized for the calculation of pensionable pay and thus, realizing a reduction to the City's ARC due on October I, 2010 by $827,207, subject to the Fire and Police Pension Plan Board's approval to adopt the revised Actuarial lmpact Statement (currently on the Fire and Police Pension Board October 21, 2010 meeting agenda). Once approved, this revised methodology will provide a recurring savings going forward. At the time of this writing, the City is still awaiting a response from the State of Florida Division of Retirement regarding the methodologies utilized by the Fire and Police Pension Plan actuary for calculating the impacts of the zero salary COLA and the impacts derived from the changes in the overtime cap calculation and Off-Duty Pay being pensionable. If both actuaries and the State are all in agreement, approximately $1.2M would be recognized as experience gains applicable towards the ARC payable on October I, 201 0. Of this $1.2M, an experience gain of approximately $557,320 would be recognized from the freeze on the salary COLA, and an additional experience gain of approximately $651,322 would be recognized from the two (2) zero retiree COLA's while the member is in the DROP. At a minimum, the City anticipates the remaining savings of approximately $1.2M will be recognized as experience gains applicable towards the FY2010/2011 Plan year, thus reducing the City's ARC due on October 1,201 1. Based on the proposed pension changes agreed to by the lAFF and the FOP, as well as the methodology change agreed to above, the City estimates these changes for both current and future members of the Fire Fighters and Police Officers Pension Plan to yield a total savings of approximately $2.5M applicable through the three (3) year term of the Agreements for both the IAFF and the FOP. In addition, these proposed changes to the City's pension ordinance will result in additional long-term, recurring savings in future fiscal years. The Administration recommends that the City Commission adopt the ordinance on Second Reading. T:\AGENDAVOIO\October ZARegular\lAFF FOP Pension Ordinance 2ndRdg Memo.doc ORDINANCE IMPLEMENTING PENSION PROVISIONS OF 2009-2012 IAFF AND FOP COLLECTIVE BARGAINING AGREEMENTS ORDINANCE NO. AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, AMENDING PART I, SUBPART B, ARTICLE IX, RELATED SPECIAL ACTS, OF THE MIAMI BEACH CITY CODE ENTITLED "PENSION SYSTEM FOR DISABILITY AND RETIREMENT OF MEMBERS OF POLICE AND FIRE DEPARTMENTS''; IMPLEMENTING PROVISIONS OF THE 2009-2012 COLLECTIVE BARGAINING AGREEMENTS BETWEEN THE CITY AND FIRE FIGHTERS OF MIAMI BEACH, IAFF LOCAL 1510, AND MIAMI BEACH FRATERNAL ORDER OF POLICE, WILLIAM NICHOLS LODGE NO. 8; AMENDING SECTION 65 ENTITLED "COMPUTATION OF CREDITABLE SERVICE; SERVICE RECORD", PROVIDING FOR THE PURCHASE OF ADDITIONAL CREDITABLE SERVICE UPON COMPLETION OF TEN YEARS OF SERVICE WITH THE CITY; AMENDING SECTION 66 ENTITLED "SERVICE AND DISABILITY BENEFITS GENERALLY", PROVIDING FOR THE INCLUSION OF COMPENSATION FOR CERTAIN OFF DUTY SERVICES IN A MEMBER'S SALARY FOR PENSION PURPOSES, AND PROVIDING FOR THE SALE OF UNUSED SICK AND/OR VACATION TIME FOR INCLUSION IN A MEMBER'S FINAL AVERAGE MONTHLY EARNINGS. SUBJECT TO CERTAIN LIMITATIONS; BYIS- 'ERE E&LOW&F; "AMENDING SECTION 79 ENTITLED "DEFERRED RETIREMENT OPTION PLAN", PROVIDING FOR A MAXIMUM DROP PERIOD OF SIXTY MONTHS AND A MODIFIED COST OF LIVING ADJUSTMENT DURING THE DROP PERIOD; CREATING A NEW SECTION 87 ENTITLED "BENEFITS FOR EMPLOYEES HIRED ON OR AFTER JULY 14, 2010"; PROVIDING FOR SEVERABILITY; REPEALING ALL ORDINANCES IN CONFLICT THEREWITH; AND PROVIDING FOR AN EFFECTIVE DATE. Section 1. Effective September 30, 2010 for members who retire on or after that date, Section 65 of Part 1, Subpart By Article IX, Related Special Acts of the Miami Beach City Code, is amended to read: Sec. 65. - Computation of creditable service; service record. (a) A member's Creditable Service shall include all periods of time of actual work for which wages or salaries were received by the member in the service of the fire or police department and, notwithstanding anything to the contrary in this article, all time served in the unclassified service of the City as provided in section 70, whether it be provisional, probationary or regular work or employment, and whether or not such periods are interrupted, together with all service in the uniformed services of the United States required to be included under section 82; provided, however, that only periods of service in the uniformed services of the United States for which the member makes the member contributions as provided for in section 82 shall be Creditable Service for purposes of computing the amount of the member's benefit from the System. Notwithstanding any provision to the contrary, in no event shall the same period of service be counted more than once as Creditable Service under this System. (b) Members who become members of this System in order to receive credit for service rendered prior to their becoming a member shall make contributions to the Fund in the amount such member would have contributed had he been a member during the period of service for which credit is being purchased. In order to receive such credit, members shall make payment within six months after becoming a member or within such other period as may be provided in a bargaining agreement covering the member. Notwithstanding the foregoing, any member who transfers to this System whereby the accumulated total credit in any other pension system of the City is transferred to this System, then and in that event, all of the creditable service time in such other system shall be considered Creditable Service time under this System, and such member need make no additional contribution for time credited. (c) The Board shall establish the service record of all members who may be entitled to participate in the benefits of this System, and shall keep a record thereof. (d) Members with ten (lo)% or more years of creditable service whe+xe n,- + "I C may purchase additional creditable service under the System for up to two (2) years of full-time public safety service as a law enforcement officer or firefighter prior to City employment, provided the member is not entitled to receive a benefit for such service under another pension plan, and further provided that the member may not purchase a combined total of more than four (4) years of creditable service for prior public safety service and prior military service, and further subject to limitations contained in sec. 66 (j). The cost for each year of creditable service for prior public safety service purchased shall be the same rate as provided in sec. 82(b) for the purchase of prior military service, with the cost prorated for fractional years of service. For purposes of this purchase, a member may use the value of accrued sick and/or annual leave, valued at the member's hourly rate at the time of purchase. The purchase of additional creditable service provided in this subsection (d), must be completed withn il&tpsi2{33 months following September 30, v \ ?# *- < 2010, or within (weftRLZettrW4) &dy-six-. 06) months following a member's completion of ten (10) years of creditable service under the pension plan, whichever occurs later for the member. If a member does not complete the purchase of additional creditable service provided in this subsection (d) within the bve&H%w (2.44 k&rtv-s&. (36) month period, helshe shall not be eligible for sb$h& purchase in the future. (e) Notwithstanding the provisions of section 65/d) and section 82(b). the purchase of additional creditable service for prior public safetv service pursuant to section 65Cd), and the purchase of additional creditable service for years of active military service prior to City employment ~ursuant to section 82(b), must be completed within thirtv-six (36) months following September 30. 2010, or within thirty-six (36) months following a member's completion of ten (10) years of creditable service under the pension plan, whichever occurs later for the member. If a member does not complete the purchase of additional creditable service as provided in section 65(d) or section 82(b) within the thirty-six (36) month period, he/she shall not be eli~ble for such purchase in the future. Section 2. Effective September 30, 2010 for members who retire after that date, except as otherwise specifically provided below, Section 66 of Part 1, Subpart B, Article IX, Related Special Acts of the Miami Beach City Code, is amended to read: Sec. 66. - Service and disability benefits generally. (a) The Board shall, upon application retire members meeting any one of the following requirements: (1) The attainment of age 50. (2) Permanent and total disability incurred in line of duty in the police or fire department, or in the unclassified service as provided in section 70, irrespective of the number of years of Creditable Service. (3) Permanent and total disability incurred other than in the line of duty, after five years of Creditable Service. (4) The sum of the member's age and Creditable Service equals at least 70 and the member retires on or after October 1, 1998. (5) Only for periods prior to October 1, 2000 and only in the case of a May 1993 Member, the attainment of age 55 with at least 10 years of Creditable Service. (b) A member, other than a May 1993 Member who retires prior to October 1, 2000, shall be entitled to receive upon retirement under subsection (a), a monthly pension payable for life equal to: (1) Three percent of the member's average monthly Salary for each year of the member's first 15 years of Creditable Service, being computed as to a part of a year on a pro rata basis to the nearest month; plus (2) Four percent of the member's average monthly Salary for each year of the member's Creditable Service in excess of 15 years, being computed as to a part of a year on a pro rata basis to the nearest month. (c) A May 1993 Member who retires prior to October 1,2000, shall be entitled to receive upon retirement under subsection (a) a monthly pension payable for life equal to three percent of the member's average monthly Salary for each year of the member's Creditable Service, being computed as to part of a year on a pro rata basis to the nearest month. (d) For purposes of determining a member's benefit, the average monthly Salary of the member shall be based on the average of the two highest-paid years of the member prior to the date of retirement or termination, or the average of the last two paid years of the member prior to the date of retirement or termination, whichever produces the greater benefit for members employed by the City before May 19, 1993, and shall be based on the average of the three highest paid years of the member prior to the date or retirement or termination for May 1993 Members. For purposes of such calculation, Salary shall be the Salary upon which the member's contribution to the System was computed, as provided in param-aphs - (1) and (2) below: ith respect to a fire8lt;hter member employed before May 19, 1993, and retiring on or after October 1, 1994, the inclusion of overtime in the member's Salary for the two highest-paid years or last two years, as the case may be, shall be limited in each year to an amount which@&& combined with compensation for off duty services and the value of any accrued sick and/or vacation leave that is included in a member's Salary for pension contribution and benefit pwoses, is equal to 11% of the hihest annualized pay rate for the same salary rank that the member is in at time of retiremen'm mllnrlnr Effective July 14, 2010, all compensation received bv a kirtifihter member ;u'hoA eligible for overtime pay and who receives pay for off duty services performed afier that date for which compensation is received through the City shall be included in e so& member's Salary for pension contribution duty services, in combination with any overtime pay and the value of any accrued sick and/or vacation leave included in a member's Salary for pension contribution and benefit purposes, exceed 11% of the highest annualized pay rate for the same salary rank that the member . . .. . is in at time of retirement n ant UVCL M. For firefighter members who are eligible for elect to apply unused sick and /or vacation leave for inclusion in the member's Salary for pension contribution, and benefit purposes. at a cost of 10% of the value of the tdblkwe: Tvi each $?C&W-ed unused sick and/or vacation leave [at the member's current hourly rate);$4C.(>S 4 ,f C.90 &. Provided, in no event shall the value of such unused sick and/or vacation time, when combined with any overtime pay and compensation for off duty services included in a member's Salary for pension contribution and benefit purposes, exceed 1 1% of the highest annualized pay rate for the same salary rank that the member is in at time of retirement n! (2) With respect to a police officer member emvloyed before May 19. 1993, and retiring on or after October 1, 1994, the inclusion of overtime in the member's Salarv for the two highest-paid years or last two years, as the case may be. shall be limited in each year to an amount which. when combined with compensation for off duty services and the value of any accrued sick andlor vacation leave that is included in a member's Salarv for pension contribution and benefit purposes, is equal to 70% of the difference between the member's annualized pay rate at retirement and the hidest annualized pay rate for the next higher salary rank; but in no event shall such member's accrued benefit on his date of retirement be less than the benefit he had accrued as of September 30, 1994, determined under the terms of the System in effect on that date. Effective July 14, 2010, all compensation received by a police officer member who is eliaible for overtime pay and who receives pay for off duty services performed after that date for which compensation is received through the City, shall be included in such member's Salary for pension contribution and benefit purposes; provided. in no event shall such compensation for off duty services, in combination withany overtime pay and the value of any accrued sick andlor vacation leave included in a member's Salarv for pension contribution ,and benefit purposes, a-medxr'z M exceed 70% of the difference between the member's annualized pay rate at retirement and the highest annualized pay rate for the next hipher salary rank, but in no event shall such member's accrued benefit on his date of retirement be less than the benefit he had accrued as of September 30, 1994, determined under the terms of the System in effect on that date. For police officer members who are eligible for overtime pay and who retire on or after September 30, 2010, upon reaching eligibility for normal retirement, a member may elect to apply unused sick and /or vacation leave for inclusion in the member's Salary for pension contribution and benefit purposes, at a cost of 10% of the value of the unused sick and/or vacation leave (at the member's current hourly rate). Provided, in no event shall the value of such unused sick and/or vacation time, when combined with any overtime pay and compensation for off duty services included in a member's Salary for pension contribution and benefit purposes, exceed 70% of the difference between the member's annualized pay rate at retirement and the highest annualized pay rate for the next higher salary rank: but in no event shall such member's accrued benefit on his date of retirement be less than the benefit he had accrued as of September 30, 1994, determined under the terms of the System in effect on that date. (e) Notwithstanding anything in this section to the contrary, the benefits provided in this section shall not exceed 90% of the member's average monthly Salary as defined in subsection (d) of this section; provided, however, that the benefits for May 1993 Members shall not exceed 80% of such Salary. (f) The minimum pension for a member retiring for permanent and total disability under subsection (a)(2) of this section shall be 85% of the member's Salary at the time of disability retirement; provided, however, that the minimum pension for a May 1993 Member shall be 75% of such Salary. The minimum pension for a May 1993 Member retiring for permanent and total disability under subsection (a)(3) of this section shall be 50% of the member's Salary at the time of the disability retirement. (g) If any member eligible for benefits under this article shall terminate his employment after having completed at least 10 years of Creditable Service but prior to attaining age 50 years (or after having completed one year of Creditable Service but before attaining age 55 and completing 10 years of Creditable Service for a May 1993 Member), and does not withdraw his accumulated contributions in the System, such member shall be entitled to receive upon attaining age 50 (age 55 or his termination of employment, if later, for a May 1993 Member) a monthly pension payable for life in accordance with the provisions of subsection (b) (or subsection (c) for a May 1993 Member) of this section; provided, however, the benefit so determined shall be reduced for a May 1993 Member by 10% multiplied by the difference between the member's years of Creditable Service at his date of termination and 10. If the member dies prior to attaining age 50 (age 55 or his termination of employment, if later, for a May 1993 Member), no benefit shall be payable under subsection (b) (or subsection (c) for a May 1993 Member); instead, the member's estate shall be entitled to all moneys contributed by the member to this System together with accumulated interest on that sum at the rate of three percent per annum computed until the date of payment to the member's estate. (h) (1) Notwithstanding anything in this section to the contrary, the minimum monthly pension payable for the life of any member who was employed prior to July 1, 1976 and who retires after attaining age 50 and completing at least 15 years of Creditable Service or after meeting the requirements of subsection (a)(3) or (a)(4) of this section 66 shall be equal to: (A) Three percent of the member's average monthly Salary for each of the first 20 years of his Creditable Service, being computed as to a part of a year on a pro rata basis to the nearest month; plus (B) Two and three-quarters percent of the member's average monthly Salary for each of his years of Creditable Service in excess of 20, being computed as to a part of a year on a pro rata basis to the nearest month. (2) For purposes of this subsection (h) the member's average monthly Salary shall be the Salary upon which the member's contribution to the System was computed for the two highest paid years of the member prior to his date of retirement. (3) Notwithstanding anything to the contrary, benefits provided under this subsection (h) shall not be more than 85% of the average monthly Salary used to compute the benefit under this subsection. (4) The minimum pension for a member retiring under this subsection (h) for permanent and total disability shall be 75% of the member's Salary at the time of his disability retirement. (i) Nothing in this section shall be construed to prevent the City manager or the Board from initiating action for the compulsory retirement of a member eligible for retirement, prior to such age, where such member is considered to be unfit for the proper performance of his duties because of physical or mental incapacity. Upon certification by the medical board designated by the Board pursuant to section 760') that such member is mentally or physically incapable of proper performance of duties, the member shall be automatically retired. Any member who is compulsorily retired by an act of the Board shall have the right to appeal such retirement to a court of proper jurisdiction. The member shall defray his own expense in his appeal of such compulsory retirement. (j) Members with ten (lo)% or more years of creditable service wh-iwe tn ,-.-.- may also purchase up to an additional six percent (6%) benefit multiplier in accordance with this subsection. A member may purchase up to an additional six percent (6%) benefit multiplier if the additional creditable service for prior public safety purchased pursuant to sec. 65(d) or prior military service pursuant to sec. 82(b) does not exceed a combined total of two (2) years; and a member may purchase an additional three percent (3%) benefit multiplier if the additional creditable service for prior public safety service purchased pursuant to sec. 65(d) or prior military service pursuant to sec. 82(b) does not exceed a combined total of three (3) years. The cost for each additional three percent (3%) benefit multiplier purchased shall be the same as the cost for each year of prior military service purchased in accordance with sec. 82 (b). For the purpose of this purchase, a member may use the value of accrued sick andlor annual leave, valued at the member's hourly rate at the time of purchase. The purchase of an additional benefit multiplier provided in this subsection (i), must be completed within thirty-six (36)hw&ybw (24): months following September 30, 2010, or within thirty-six (36- months following a member's completion of ten (10) years of creditable service under the System, whichever occurs later for the member. If a member does not complete the purchase of an additional benefit multiplier as provided in this subsection (d) within the thirty-six (36- month period. helshe shall not be eligible for such purchase in the future. Section 3. Section 67 of Part 1, Subpart B, Article IX, Related Special Acts of the Miami Beach City Code, is amended to read: Sec. 67. Cost-of-living adjustment. Effective September 30, 201 0 for members who retire on or after that date, the cost of livinq adjustment provided in this Section 67 shall be applied annually on the anniversary date of the member's retirement. Section Effective September 30, 2010, Section 79 of Part 1, Subpart B, Article IX, Related Special Acts of the Miami Beach City Code, is amended to read: Sec. 79. - Deferred Retirement Option Plan (DROP). (a) Eligibility - Any active member member of the System may enter into the DROP on the first day of any month following the date upon which the member first becomes eligible for a normal service retirement, subiect to the provisions of this section 79. (b) Conditions of Eligibility - Upon becoming eligible to participate in the DROP, a member may elect to enter that program for a period not to exceed 36 months. Notwithstanding, DROP participation may not continue beyond the date when the member's combined years of creditable service and time in the DROP equals 352 months (387 months for members who were members prior to July 1, 1976). Members who enter the DROP on or after September 1, 2012 shall be eligible to participate for a period not to exceed sixty (601 months. Notwithstanding, for those members who enter the DROP on or after September 1, 2012, participation may not continue beyond the date when the member's combined years of creditable service and time in the DROP equals 376 months (390 months for members hired after July 14, 201 0). Provided also that participation in DROP shall require the member to complete and submit the following prior to start of DROP payments. 1. Such forms as may be required by the Board or Plan Administrator. Election of the DROP is irrevocable once DROP payments begin. 2. A waiver and an irrevocable resignation from employment with the actual date of termination beina the date designated by the member as the end of his/her DROP participation. The administration and timing of execution and delivery of the waiver and resignation forms shall meet the requirements of the Age Discrimination in Employment Act and the Older Worker's Benefits Protection Act, as same may be amended from time to time. c) Conditions of Employment for DROP Participants - Members shall be subiect to termination of employment while in DROP to the same extent as they were in their pre-DROP status. A member who has elected the DROP remains an employee during the DROP period and receives all the benefits of being an employee durina the DROP period, except any form of pension contribution. Id) Effect of DROP Participation. 1. A member's creditable service and his/her accrued benefit under the System shall be determined on the date of his/her election to participate in the DROP first becomes effective. 2. The member shall not accrue any additional creditable service while he/she is a participant in the DROP, or after termination of participation in the DROP. 3. A DROP participant is not eligible for disability benefits from the Plan. 4. A member may participate in the DROP only once. 5. Effective with the start date of a member's DROP participation, contributions to the Pension Plan by the member and the normal cost contribution to the Pension Plan by the City, on behalf of the member, shall cease. le) Payments to DROP Account - A DROP account shall be created for each member who elects to participate in the DROP. A DROP account shall consist of amounts transferred to the DROP from the Plan, which include the monthly retirement benefits, including any future cost of living increases, that would have been payable had the member elected to cease employment and receive a normal retirement benefit upon commencing participation in the DROP, and earnings on those amounts. Provided, members who enter the DROP on or after September 1, 201 2, shall receive a zero percent (0%) cost of living adiustment for the third (3rd) and fourth (4th) annual adjustment dates, regardless of whether the member remains in the DROP for the maximum five (5) year period. Provided further, any member who exits the DROP within six (6) months following the date of DROP entry, shall be eligible for the cost of living adiustment as otherwise provided in sec. 67. If) DROP Account Earnings 1. Members may direct their DROP account balance to any of the investment options offered and approved by the Board. Any losses incurred by the participant shall not be made up by the City or the Pension Plan. The selection of these programs shall be made by the participant on forms provided by the Board. Any and all interest and or earnings shall be credited to the participant's DROP account. 2. A member's DROP account shall only be credited or debited with earnings while the member is a participant in the DROP and, depending on the DROP Account Payment Options selected, after the member dies, retires, or terminates employment with the City of Miami Beach. b) Payment of DROP Account Funds - Upon termination of a member's employment (for any reason, whether by retirement, resignation, discharge, disability, or death), the retirement benefits payable to the member or to the member's beneficiary shall be paid to the member or beneficiary and shall no longer be paid to the member's DROP account. No payments will be made from the DROP account until the member terminates employment. Ih) DROP Account Payment Options - Following the termination of a member's employment, the member shall select one of the following options to begin to receive payment from his/her DROP account. Said selection shall occur no later than 30 days prior to the end of the DROP participation period or within 30 days following the termination of a member's employment if said termination of employment occurs prior to the end of the DROP participation period: 1. Lum.p Sum - All accrued DROP benefits, plus interest, shall be paid from the DROP in a single lump sum payment. 2. Partial Lump Sum - A member designated portion of accrued DROP benefits, plus interest, shall be paid from the DROP in a partial lump sum payment with the remainder being directly rolled over into an eligible retirement plan. 3. Direct Rollover - All accrued DROP benefits, plus interest, shall be paid from the DROP directly to the custodian of an eligible retirement plan. 4. Other method(s) of payment that are in compliance with the Internal Revenue Code and adopted by the Board. (i) Death of DROP Participant - If a DROP participant dies before his/her account balances are paid out in full, the participant member's designated beneficiary shall have the same rights as the member to elect and receive the pay-out options set forth in Paragraph (h), above. DROP payments to a beneficiary shall be in addition to any other retirement benefits payable to the beneficiary. ) Administration of DROP Accounts. 1. The Board shall make such administrative rules as are necessary for the efficient operation of DROP, but shall neither create any rule that is inconsistent with the this section 79, nor any rule that would be a mandatory subiect of collective bargaining. 2. At all times, the DROP will be administered so that the System remains qualified under the Internal Revenue Code and is in compliance with the Internal Revenue Code and applicable laws and regulations. Effective July 14, 2010, a new section 87 of Part 1, Subpart B, Article IX, Related Special Acts of the Miami Beach City Code, is created to read: Sec. 87. Benefits for employees hired on or after July 14.201 0. The pension benefits for employees hired on or after July 14, 201 0 shall be as provided in the sections 61 through 86, except as follows: la) The benefit multiplier shall be three percent (3%) for each year of creditable service for the first 20 years of service, and four percent (4%) for each year of creditable service after 20 years of creditable service. Ib) The normal retirement date shall be as provided in sec. 66, except that a member must attain age 48 to be eligible for "Rule of 70" retirement. Ic) Final average monthly salary shall be based on the three (3) highest paid years or last three (3) years as the case may be, prior to retirement or separation from employment. Id) The cost of living adiustment shall be one and one-half percent (1.5%1 annually. e ) Members who enter the DROP shall receive a zero percent (0%) cost of living adiustment for the third (3rd) and fourth (4th) annual adiustment dates, regardless of whether the employee remains in the DROP for the maximum five (5) year period. Provided, any member who exits the DROP within six (6) months following the date of DROP entry, shall be eligible for the cost of living adiustment as otherwise provided in paragraph (d) above. Conflicts and Severability. (a) All Ordinances, and parts of ordinances, in conflict herewith shall be and the same, are hereby repealed. (b) In the event any article, section, paragraph, sentence, clause, or phrase of this Ordinance shall be adjudicated invalid or unconstitutional, such adjudication shall in no manner affect the other articles, sections, paragraphs, sentences, clauses or phrases of this Ordinance, which shall be and remain in full force and effect as fully as if the item so adjudged invalid or unconstitutional was not originally a part hereof. Effective Date. This Ordinance shall take effect ten days following adoption, except as otherwise specified herein. PASSED and ADOPTED by the City Commission of the City of Miami Beach this dayof , 2010. Mayor Attest: (Seal) 1st Reading - 2nd Reading - T:WGENDA\ZOlO\September 15\Regular\lAFF FOP Pension Ordinance 2nd Rdg.doc THIS PAGE INTENTIONALLY LEFT BLANK COMMISSION ITEM SUMMARY Condensed Title: An Ordinance Of The Mayor And City Commission Of The City Of Miami Beach, Florida, To Consider An Ordinance Of The City Of Miami Beach, Florida, Adopting A 10-Year Water Supply Facilities Work Plan And Amending The City's Comprehensive Plan To Strengthen Coordination Between Water Supply And Local Land Use Planning As Required By Florida Law. Key Intended Outcome Supported: I Regulatory - required by Florida Statutes I Supporting Data (Surveys, Environmental Scan, etc Regulatory - required by Florida Statutes Issue: Should the City Commission adopt the proposed ordinance that would adopt a 10-year Water Supply Facilities Work Plan as required by Florida Law. Item SummarylRecommendation: SECOND READING PUBLIC HEARING At the May 12, 2010 meeting, the City Commission referred to the Planning Board for its review and recommendation, the proposed 10-year Water Supply Facilities Work Plan as well as the ordinance that amends several elements of the City's Comprehensive Plan to strengthen coordination between water supply and local land use planning as required by Florida Statutes. On June 24,2005, Senate Bill 360, which later became known as the Growth Management Act of 2005, was signed by then Governor Bush to ensure that the roads, schools and water supply are available to meet the needs of communities throughout the State. This bill amended Section 163.3177(6) (c) which requires that each municipality identifies and plans for the water supply sources and facilities needed to serve existing and new development within the local government's jurisdiction. The Administration received the Objection, Recommendations and Comments Report from the Department of Community Affairs (DCA) September 30,2010. The report had one objection and some comments, all of which have been addressed in the Plan and adopting ordinance. The Administration recommends that the City Commission adopt the proposed ordinance and direct the Administration to submit the adopted Plan to the Department of Community Affairs (DCA) and other required reviewing agencies. Advisory Board Recommendation: I At the May 25, 2010 meeting, by a vote of 5-0 (2 members absent) the Planning Board recommended I El OBPl I approval of the proposed ordinance. Financial Information: 2 3 Total I I I Financial Impact Summary: The proposed ordinance is not expected to have any fiscal impact upon Account I the resources of the City. I City Clerk's Office Legislative Tracking: I Richard Lorber or Mercy Lamazares Amount Source of Funds: AGENDA lTEM DATE I MIAMIBEACH City of Miami Beach, 1700 Convention Center Drive, Miami Beach, Florida 331 39, www.miamibeachfl.gov COMMISSION MEMORANDUM TO: Mayor Matti Herrera Bower and Members of the City Commission FROM: Jorge M. Gonzalez, City Manager M DATE: October 27, 2010 PUBLIC HEARING SUBJECT: 10-Year Water Supply Facilities Work Plan AN ORDINANCE OF THE MAYOR AND ClTY COMMISSION OF THE ClTY OF MIAMI BEACH, FLORIDA, ADOPTING A 10-YEAR WATER SUPPLY FACILITIES WORK PLAN AND AMENDING THE CITY'S COMPREHENSIVE PLAN TO STRENGTHEN COORDINATION BETWEEN WATER SUPPLY AND LOCAL LAND USE PLANNING AS REQUIRED BY FLORIDA LAW; PROVIDING FOR REPEALER, SEVERABILITY, CODIFICATION AND AN EFFECTIVE DATE. ADMINISTRATION RECOMMENDATION The Administration recommends that the City Commission adopt the proposed ordinance and direct the Administration to submit the adopted Plan to the Department of Community Affairs (DCA) and other required reviewing agencies. BACKGROUND At the May 12, 2010 meeting, the City Commission referred to the Planning Board for its review and recommendation, the proposed 10-year Water Supply Facilities Work Plan as well as the ordinance that amends several elements of the City's Comprehensive Plan to strengthen coordination between water supply and local land use planning as required by Florida Statutes. ANALYSIS On June 24, 2005, Senate Bill 360, which later became known as the Growth Management Act of 2005, was signed by then Governor Bush to ensure that the roads, schools and water supply are available to meet the needs of communities throughout the State. This bill amended Section 163.3177(6) (c) which requires that each municipality identifies and plans for the water supply sources and facilities needed to serve existing and new development within the local government's jurisdiction. The City's 10-Year Water Supply Facilities Work Plan (Work Plan).will reference the initiatives already identified in Miami-Dade County's 20-year Work Plan since the City is a wholesale buyer. According to state guidelines, the Work Plan and the comprehensive plan amendment must address the development of traditional and alternative water Cifv Commission Memorandum 10Iyear Wafer Supply Plan - lSt reading public hearing October 27, 2010 Page 2 supplies, bulk sales agreements and conservation and reuse programs that are necessary to serve existing and new development for at least a 10-year planning period. At the July 14, 2010 meeting, the City Commission authorized the Administration to transmit the proposed Plan to the Department of Community Affairs (DCA) and other reviewing agencies, including Miami-Dade County Planning and Zoning (MDC) and the South Florida Water Management District (SFWMD). Both of these agencies submitted comments (see attachments) and DCA issued its Objections, Recommendations and Comments Report (ORC), also attached. Below is a summary and how they have been addressed: DCA: - Objection: No policy to address the Plan once the SFWMD updates the regional water plan. Answer: Policy 8.3 of the Infrastructure Element was revised to state that the City will update the City's Work Plan within I8 months after the South Florida Water Management District updates the Lower East Coast Water Supply Plan Update. In addition, DCA recommended that the City consider adopting potable water level of service standards for non-residential uses. The City's consultant discussed this issue with the SFWMD which suggested the following: The following City-wide Level of Service Standards shall be used as the basis for determining the availability of facility capacity for non-residential uses; the systems shall be able to provide/accommodate at least the minimums specified: Hotel: 75 gallons per day per room Off ice: 0.084 gallons per day per square foot Retail: 0.18 gallons per day per square foot Industrial: 0.084 gallons per day per square foot Restaurant: 65 gallons per day per seat School: 12 gallons per day per student Staff recommends that the Level of Service Standards be adopted as recommended by DCA; as such, this revision has been incorporated in Policy 5.1 of the lnfrastructure Element. The Administration is please with the minimal number of objections and recommendations made by DCA and recommends that the City Commission adopt the "Miami Beach 10-Year Water supply Facilities Work Plan" inclusive of the proposed revisions which have been incorporated in the adopting ordinance. PLANNING BOARD ACTION At the May 25, 2010 meeting the Planning Board recommended that the City Commission adopt the proposed Plan and amending ordinance by a vote of 5-0 (two members absent). City Commission Memorandum 10Iyear Water Supply Plan - 1'' reading public hearing October 27, 2010 Page 3 CONCLUSION The Administration recommends that the City Commission adopt the proposed ordinance and direct the Administration to submit the adopted Plan to the Department of Community Affairs (DCA) and other required reviewing agencies. Pursuant to Chapter 163.3184 (15) (a), the second public hearing shall be held at the adoption stage. It shall be held on a weekday at least 5 days after the day that the second advertisement is published. The required ad shall be no less than 2 columns wide by 10 inches long in a standard size newspaper, and the headline in the advertisement shall be in a type no smaller than 18 point, published in a newspaper of general circulation in the municipality. At this adoption hearing, a sign-in form shall be provided for persons to provide their names and mailing addresses. The sign-in form must advise that any person providing the requested information will receive a courtesy informational statement concerning publications of the state land planning agency's notice of intent. JMGIJGGIR tgL UML T:\AGENDAL!010\0ctober 27\Regular\I 962 - water supply plan - adoption.docx ORDINANCE NO. AN ORDINANCE OF THE MAYOR AND ClTY COMMISSION OF THE ClTY OF MIAMI BEACH, FLORIDA, ADOPTING A 10-YEAR WATER SUPPLY FACILITIES WORK PLAN AND AMENDING THE CITY'S COMPREHENSIVE PLAN TO STRENGTHEN COORDINATION BETWEEN WATER SUPPLY AND LOCAL LAND USE PLANNING AS REQUIRED BY FLORIDA LAW; PROVIDING FOR REPEALER, SEVERABILITY, CODIFICATION AND AN EFFECTIVE DATE. WHEREAS, Section 163.3167(13) Florida Statutes, requires each local government to address in its comprehensive plan, the water supply sources necessary to meet and achieve the existing and projected water use demand for an established planning period; and WHEREAS, Section 163.3177(4)(a), Florida Statutes, requires coordination of the local comprehensive plan with the water management district's regional water supply plan; and WHEREAS, the City of Miami Beach recognizes the need for better integration between land use planning and water supply planning; and WHEREAS, Section 164.31 77(6)(c), Florida Statutes, requires that local governments prepare and adopt a 10-Year Water Supply Facilities Work Plan and amend their comprehensive plans within 18 months after the water management district approves a regional water supply plan or its update; and WHEREAS, the City of Miami Beach has proposed amendments to the policies of the comprehensive plan; and WHEREAS, the City Commission hereby finds that the adoption of this Ordinance is in the best interest and welfare of the residents of the City; and WHEREAS, the City Commission adopts the 10-Year Water Supply Facilities Work Plan as supporting data and analysis for the comprehensive plan amendments; and WHEREAS, the City Commission finds the proposed 10-Year Water Supply Facilities Work Plan and the amendments to its comprehensive plan to be in compliance with and consistent with Florida law and its adopted comprehensive plan; and WHEREAS, the City Commission, upon first reading of this Ordinance, authorized transmittal of the 10-Year Water Supply Facilities Work Plan and amendments to the comprehensive plan to the Department of Community Affairs and review agencies for the purpose of a review in accordance with Sections 163.3184, 163.3187, 163.3189 and 163.3191, Florida Statutes; and WHEREAS, required review agencies have reviewed the 10-Year Water supply Facilities Work Plan and proposed Comprehensive Plan Amendments and issued their comments; and WHEREAS, the Department of Community Affairs has reviewed the Plan and issued its Objections, Recommendations and Comments ("ORC") Report and these proposed amendments to the Comprehensive Plan have been modified as indicated to be in compliance with the ORC Report. NOW THEREFORE, BE IT ORDAINED BY THE ClTY COMMISSION OF THE ClTY OF MIAMI BEACH, FLORIDA, THAT: Section 1. That the City of Miami Beach Comprehensive Plan is hereby amended to incorporate the 10-Year Water Supply Facilities Work Plan and amendments, attached as Exhibit "A, and as follows: Future Land Use Element Policv 1.7 The Citv, through the land development regulations will coordinate the land uses and future land use changes with the availabilitv of water su~plies and water supplv facilities. Infrastructure Element Policv 1.4 The potable water network is an interconnected, countwide system, therefore, the City will cooperate with Miami Dade Water and Sewer Department (WASD) to iointly develop methodologies and procedures for biannuallv updating estimates of svstem demand and capacitv, and ensure that sufficient capacitv to serve development exists. The Citv will prepare and submit a Water Conservation Plan to the Countv at the same time as the City submits the updated 5-Year Water Supplv Facilities Work Plan. Policy 5.1 : The following City-wide Level of Service Standards shall be used as the basis for determining the availability of facility capacity for residential uses; the systems shall be able to provide/accommodate at least the minimums specified: Potable Water Facilities Water Consumption Standard: 140 Average gallons per capita per day 168 Peak gallons per capita per day The average gallons per capita rate applies to the year-round standard, while the peak gallons per capita rate applies to the City during peak tourist period due to the significant seasonal influx of temporary residents. The City uses a multiplier of 1.2, which gives a 20% increase in population to estimate required services and facilities. w rds shall d va'labilitv of facilitv capacity for non-residential uses: the svstems shall be able to ~rovide/accommodate at least the minimums specified: Hotel: 75 aallons per dav per room Office: 0.084 gallons Der dav Der square foot Retail: 0.1 8 aallons Der dav per square foot Industrial: 0.084 aallons eer dav per square foot Restaurant: 65 aallons per dav per seat School: 12 aallons per dav per student Policy 6.6 The City, through the Building Department, will continue to enforce the requirement to use ul&a-kw hiah efficiencv volume water saving devices for substantial rehabilitation and new construction projects as specified in the standard plumbing code. All future development within the Citv will be required to complv with water use efficiencv techniques for indoor water use in accordance with Section 8-31, 32-84 and 8A-381 of the Code of Miami-Dade Countv. In addition, all future development will be required to complv with the landscape standards in Section 18-A and 18-B of the Miami-Dade Countv Code. Policv 7.5 If in the future there are issues associated with water supplv, conservation or reuse the Citv will immediatelv contact WASD to address the corresponding issue(s). In addition, the Citv will follow adopted communication protocols with WASD to communicate and/or prepare an appropriate action plan to address anv relevant issue associated with water SUPPIV, conservation or reuse. Obiective 8: Water Supplv Planning The Citv of Miami Beach shall complv with its 10-vear Water Supplv Facilities Work Plan, as required bv section 163.3177(6)(c), Florida Statutes. The Work Plan will be updated, at a minimum, every 5 vears. The Citv of Miami Beach Water Supply Facilities Work Plan is designed to: assess current and proiected potable water demands; evaluate the sources and capacities of available water supplies; and, identify those water supplv proiects, using all available technologies, necessary to meet the Citv's water demands for a 1 0-vear ~eriod. Policv 8.1 : The Citv will complv with the 10-vear Water Supplv Facilities Work Plan and incorporate such work plan into the Miami Beach Comprehensive Plan. Policv 8.2: Coordinate appropriate aspects of its comprehensive plan with the South Florida Water Management District's regional water supplv plan adopted Februaw 15, 2007 and with the Miami-Dade Countv 20-Year Water Supplv Facilities Work Plan adopted April 24, 2008, and as updated. The Citv shall amend its Comprehensive Plan and Work Plan as required to provide consistencv with the District and Countv plans. Policv 8.3: The Citv shall coordinate the planning of potable water and sanitarv sewer facilities and services and level-of-service standards within the Miami-Dade Countv Water and Sewer Department. DERM, the South Florida Water Management District- 7.- months of anv future u~dates to the Lower East Coast Reaional Water SUDDIV Plan. Policv 8.4: The Citv shall coordinate with Miami-Dade Countv WASD bv requiring applications to be reviewed bv WASD during the site plan review Process prior to approving a Building Permit, in order to determine whether adequate water supplies will be available to serve the development bv the anticipated issuance date of the certificate of occupancv for properties located within the Citv of Miami Beach. Additional coordination efforts will occur between WASD and the Citv through the water allocation svstem. Monthly Buildinq Permit data will be provided to WASD to track development activitv within the Citv. The Citv will monitor proposed amendments to the Miami-Dade County Comprehensive Development Master Plan as thev relate to water supplv planning in the adjacent beach communities and provide in~ut as necessarv. Policv 8.5: The City Planning Director or a representative will attend the Miami-Dade Planners Technical Committee meeting to share information regarding water supply needs and coordinate water use issues as needed. The Planners Technical Committee is a council of professional planners representing local governments and public regulatorv/review agencies in Miami-Dade County that addresses common concerns and shares resources toward solving planning problems. ConservationlCoastal Zone Management Element Objective 2: Natural Resource Protection In coordination with local, state, and federal agencies, post and maintain signs relative to manatee protection and otherwise protect the conservation of, and provide for the appropriate use of the natural functions of existing soils, fisheries, wildlife and their habitats, bays and waterways which flow into estuarine waters, floodplains, beaches and shores, marine habitats, air quality, water resources, and scenic beauty by adopting the following measurable policies. Objective 13 lrnplementation of the 10-vear Water Supplv Facilities Work Plan will ensure that adequate water supplies and ~ublic facilities are available to serve the water supplv demands of the Citv's population. Policv 13.1 : If in the future there are issues associated with water supplv, conservation or reuse the Citv will immediatelv contact WASD to address the corresponding issuek). In addition, the Citv will follow adopted communication ~rotocols with WASD to communicate andlor prepare an appropriate action plan to address anv relevant issue associated with water SUPDIV, conservation or reuse. Policv 13.2: The Citv will require the use of High Efficiencv Toilets; High Efficiency Showerheads; High Efficiencv Faucets: High Efficiencv Clothes Washers; and Dishwashers that are Energy Star rated and Watersense certified in all new and redeveloped residential proiects. Policv 13.3: The Citv should educate the development communitv on the benefits of sub-meterinn for multi-familv residential retrofit proiects which will include: separate water meters and monthlv records kept of all maior water-using functions such as cooling towers and individual units. The Citv will explore starting a pilot incentive program as a means of encouraging developers that retrofit units to install separate meters and lew-#kw hiah efficiencv appliances. The Citv will require new multi-familv residential developments to install separate water meters for each unit. Policv 13.4: The Citv should educate the development communitv on the water saving benefits of the use of Florida Friendlv Landscapes guidelines and principles; gutter downspouts, roof runoff, and rain harvesting through the use of rain barrels and directing runoff to landscaped areas: drip irrigation or micro-sprinklers; and the use of porous surface materials (bricks, gravel, turf block, mulch, pervious concrete, etc) on walkwavs, drivewavs and patios. Policv 13.5 The Citv will participate, when warranted, in the SFWMD1s Water Savings Incentive Program WaterSIP) for large-scale retrofits as recommended bv the Lower East Coast Water Supplv Plan. Policv 13.6: The Citv should continue to enforce the landscape watering restrictions mandated by the South Florida Water Management District. The Citv will continue to use code enforcement measures such as issuing warnings and fines to enforce the water restrictions. Policv 13.7: The Citv will continue to coordinate with Miami-Dade Water and Sewer Department related to leak detection and repair of water lines throughout the Citv. Intergovernmental Coordination Element Policv 1.8: The Citv will coordinate with Miami-Dade County WASD in the review of site plans prior to the issuance of a building permit to determine whether adequate water supplies will be available to serve new development no later than the date of the certificate of occupancv. Policv 1.9: The Citv shall coordinate the planning of potable water and sanitarv sewer facilities and services and level of service standards within the Miami-Dade Countv WASD, DERM, Plan Update. Capital lmprovements Element Policv 2.4: Appropriate mechanisms will be developed and adopted consistent with the requirements of the South Florida Water Management District and Miami-Dade Countv in order to assure that adequate water sup~lies are available to all water users prior to approval of a buildinn permit. Furthermore, Citv of Miami Beach will be responsible for providing monthlv building permit data to WASD to be used for monitoring the availabilitv of water supplies for all water users of the Miami-Dade Countv Water and Sewer Department, and for implementing a system that links water supplies to the permitting of new development. Policv 2.5: The Citv shall incorporate capital improvements affecting Citv levels of service for water supplv, bv including Citv funded proiects and bv referencina the Capital lmprovements Schedules of Miami-Dade Countv, state agencies, reaional water supplv authorities and other units of government providina services but not having regulatorv authoritv over the use of land, into its Capital Improvements Element via reference during periodic updates of the Comprehensive Plan. SECTION 2. CODIFICATION. It is the intention of the Mayor and City Commission of the City of Miami Beach, and it is hereby ordained that the provisions of this ordinance shall become and be made part of the Comprehensive Plan of the City of Miami Beach, Florida. The sections of this ordinance may be renumbered or relettered to accomplish such intention, and the word "ordinance" may be changed to "section", "article", or other appropriate word. SECTION 3. REPEALER. All ordinances or parts of ordinances in conflict herewith be and the same are hereby repealed. SECTION 4. SEVERABILITY. This Ordinance is not severable, and if any provision hereof is declared invalid, the Ordinance shall be returned to the City Commission for reconsideration. SECTION 5. EFFECTIVE DATE. This ordinance shall be effective immediately after the adoption hereof. PASSED AND ADOPTED this day of ,2010. ATTEST: CITY CLERK MAYOR APPROVED AS TO FORM AND LANGUAGE First Reading: Second Reading: Verified by: FOR EXECUTION Richard G. Lorber, AlCP Acting Planning Director Underscore denotes new language Double-underscore denotes new language conforming to ORC report. F:\PLAN\$PLB\Comp Plan Amendments\2008-2009 comp plan update\Water supply plan\adoption phase\Water Amendment Ordinance-rev 10-8-201 0 per 0RC.doc STATE OF FLORIDA DEPARTMENT OF COMMUNITY AFFAIRS "Dedicated to making Florida a better place to call home" CHARLIE GRIST Governor The Honorable Herrera Bower Mayor, City of Miami Beach 1 700 Convention Center Drive Miami Beach, Florida 33 139 September 27,201 0 THOMAS G. PELHAM Secretary Dear Mayor Bower: : g &--: -+ - - ra - I. -= The Department of Community Affairs has completed its review of the City of Miami @eacf@ a proposed Comprehensive Plan Amendment (DCA Number I 0-RWSPI), which was received oii'~u1y 19,2010. Copies of the proposed amendment have been distributed to appropriate state, regional, and local agencies for their review and their comments are enclosed. The Department has reviewed the comprehensive plan amendment for consistency with Rule 9J-5, Florida Administrative Code, and Chapter 163, Part 11, Florida Statutes, and has prepared the attached Objections, Recommendations, and Comments Report, which outlines our findings concerning the comprehensive plan amendment. The Department has identified one objection to the proposed amendment regarding the lack of a policy requiring the City to update its Water Supply Work Plan within 18 months of any future updates to the South Florida Water Management District's Lower East Coast Water Supply Plan. My staff and I are available to assist the City in addressing the issues identified in our report. If you have any questions, please contact Laura Regalado, Planning Analyst, at (850) 921-3762. Mike McDaniel, Chief Office of Comprehensive Planning Enclosures: Objections, Recommendations and Comments Report Review Agency Comments cc: Ms. Mercy Lamazares, AICP, Principal Planner, City of Miami Beach Mr. Joseph M. Corradino, AICP, Planning Consultant, City of Miami Beach Mr. Jorge M. Gonzalez, City Manager, City of Miami Beach Ms. Carolyn A. Dekle, Executive Director, South Florida Regional Planning Council 2555 SHUMARD OAK BOULEVARD t TALLAHASSEE, FL 32399-2100 850-488-8466 (p) t 850-921-0781 (f) + Website: www.dca.state.fl.us + COMMUNITY PLANNING 850-488-2356 (p) 850-486-3309 (9 + FLORIDA COMMUNITIES TRUST 850-922-2207 (p) 850-921-1747 (9 * HOUSING AND COMMUNIN DEVELOPMENT 850-488-7956 (p) 850-922-5623 (f) + DEPA.RTMENT OF COMMUNITY AFFAIRS OBJECTIONS, RECOMMENDATIONS AND COMMENTS FOR THE CITY OF MIAMI BEACH PROPOSED AMENDMENT 10RWSPl September 27,2010 Division of Community Planning This report is prepared pursuant to Rule 9J-11 .010, F.A.C. INTRODUCTION The following objections, recommendations and comments are based upon the Department's review of the City of Miami Beach 10RWSP1 proposed amendment to its Comprehensive Plan . pursuant to s. 163.3 184, Florida Statutes (F.S.). The objections relate to specific requirements of relevant portions of Chapter 9J-5, Florida Administrative Code (F.A.C.), and Chapter 163, Part 11,. F..S. Each objection includes a recommendation of one approach that might be taken to address the cited objection. Other approaches may be more suitable in specific situations. Some of these objections may have initially been raised by one or more of the other external review agencies. If there is a difference between the Department's objection and the external agency advisory objection or comment, the Department's objection would take precedence. Each of these objections must be addressed by the City and corrected when the amendment is resubmitted for our compliance review. Objections that are not addressed may result in a determination that the amendment is not in compliance. The Department may have raised an objection regarding missing data and analysis items, which the local government considers not applicable to its amendment. If that is the case, a statement justifying its non-applicability pursuant to Rule 9J-5.002(2), F.A.C., must be submitted. The Department will make a determination on the non-applicability of the requirement, and if the justification is sufficient, the objection~will be considered addressed. The comments that follow the objections and recommendations section are advisory in nature. Comments will not form the basis of a determination of non-compliance. They are included to call attention to items raised by our reviewers. The comments can be substantive, concerning planning principles, methodology or logic, as well as editorial in nature dealing with grammar, organization, mapping, and reader comprehension. Appended at the end of the Department's ORC Report are the comment letters fkom the other state review agencies and other agencies, organizations and individuals. These comments are advisory to the Department and may not form the basis of Departmental objections unless they appear under the "Objections" heading in this report. TRANSMITTAL PROCEDURES Upon receipt of this letter, the City of Miami Beach has 60 days in which to adopt, adopt with changes, or determine that the City will not adopt the proposed amendment. The process for adoption of local government comprehensive plan amendments is outlined in s. 163.3 184, F. S., and Rule 9J-11 .011, F.A.C. The City must ensure that all ordinances adopting comprehensive plan amendments are consistent with the provisions of Chapter 163.31 89(2)(a), F.S. Within ten working days of the date of adoption, the City must submit the following to the Department: Three copies of the adopted comprehensive plan amendments; A listing of additional changes not previously reviewed; A listing of findings by the local governing body, if any, which were not included in the ordinance; and A statement indicating the relationship of the additional changes to the Department's Objections, Recommendations and Comments Report. The above amendment and documentation are required for the Department to conduct a compliance review, make a compliance determination and issue the appropriate notice of intent. In order to expedite the regional planning council's review of the amendments, and pursuant to Rule 95-1 1.011(5), F.A.C., please provide a copy of the adopted amendment directly to the Executive Director of the South Florida Regional Planning Council. Please be advised that Section 163.3184(8)(~), F.S., requires the Department to provide a courtesy information statement regarding the Department's Notice of Intent to citizens who furnish their names and addresses at the local government's plan amendment transmittal (proposed) or adoption hearings. In order to provide this courtesy information statement, local governments are required by law to furnish the names and addresses of the citizens requesting this information to the Department. Please provide these required names and addresses to the Department when you transmit your adopted amendment package for compliance review. In the event there are no citizens requesting this information, please inform us of this as well. For efficiency, we encourage that the information sheet be provided in electronic format. OBJECTIONS, RECOMMENDATIONS AND COMMENTS REPORT CITY OF MIAMI BEACH PROPOSED COMPREHENSIVE PLAN AMENDMENT 09RWSP1 I. Consistency with Chapter 163, F.S., and Rule 9J-5, F.A.C. The City of Miami Beach proposed comprehensive plan amendment consists of the Ten-Year Water Supply Facilities Work Plan. The Department has identified the following objection and comments to the proposed comprehensive plan amendment: Objection: The City has not included a policy to update its Water Supply Work Plan within 18 months of any We updates to the South Florida Water Management District's Lower East Coast Water Supply Plan. Authoritv: Sections 163.3 167(13); 163.3 177(6)(a), (c), (d), and (h)(l); and 163.3 177(9)(h), F.S.; and Rule 95-5.005(6), F.A.C. Recommendation: Revise the amendment to include a new policy, or revise Policy 8.3 of the Infkastructure Element, to state that the City will update the City's Work Plan within 18 months after the South Florida Water Management District updates the Lower East Coast Regional Water Supply Plan Update. Comment 1: The City of Miami Beach Water Supply Plan includes inconsistent population projections fkom the Miami-Dade Water and Sewer Department. The County adopted its Water Supply Plan and was found in compliance by the Department. The adopted County Work Plan includes population projections that are consistent with those in Table 1 on Page 5 of the City of Miami Beach Water Supply Plan. The City should delete paragraph 6 in Section 2.1 to eliminate the incorrect population projections. J Comment 2: The City should consider adopting potable water level of service standards for non- residential land uses such office, industrial, and commercial. 11. Consistency with Chapter 187, F.S. The proposed amendment is inconsistent with the following provisions of Chapter 187, F.S., the State Comprehensive Plan: Section 187.201(7), Water Resources, Policies (b)3, 5, 9, 10, and 11: Ensure the protection of aquifers, promote water conservation, and ensure new development is compatible with existing local and regional water supplies. Section 1 87.20 1 (20), Governmental Efficiency, Policies (b) 1 : Encourage greater cooperation between, among, and within all levels of Florida government. Section 187.201(25), Plan Implementation, Policies (b) 1, 3, 5, and 7: Ensure that local plans implement and accurately reflect State goals and policies. By addressing the concerns noted in Section I., these inconsistencies with Chapter 187, Florida Statutes, can be addressed. FLORIDA DEPARTMENT OF STATE Dawn K. Roberts Interim Secretary of State DIVISION OF HISTORICAL RESOURCES August 25,2010 Mr. Ray Eubanks Department of Community Affairs Bureau of State Planning 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Re: Historic Preservation Review of the Miami Beach lORWSPl Comprehensive Plan Amendment (Miami-Dade County) Dear Mr. Eubanks: According to this agency's responsibilities under Section 163, FZorida Statutes, and Chapter 9J-5, Florida Administrative Code, we reviewed the above document to determine if data regarding historic resources were given sufficient consideration in the request to amend the Miami Beach Comprehensive Plan. We reviewed the proposed 10-Year Water Supply Facilities Work Plan with associated text changes to consider the potential effects of these actions on historic resources. While our cursory review suggests that the proposed changes may have no adverse effects on historic resources, it is the city's responsibility to ensure that the proposed revisions will not have an adverse effect on sigruficant archaeological or historic resources. I£ you have any questions regarding our comments, please feel free to contact Susan M. Harp of the Division's Compliance Review staff at 850.245.6333. Sincerely, Laura A. Kammerer, Historic Preservationist Supervisor Compliance Review Section Bureau of Historic Preservation pc: Mr. Bob Dennis 500 S. Bronough Street Tallahassee, FL 32399-0250 http://www.flheritage.com I3 Director's Office 0 Archaeological Research J Historic Preservation 850.245.6300 * FAX. 245.6436 850.245.6444 FAX: 245.6452 850.245.6333 - FAX: 245.6437 August 20,2010 Mr. Ray Eubanks, Administrator Plan Review and Processing Department of Community Affairs 2555 Shumard Oak Boulevard . Tallahassee, FL 32399-21 00 Dear Mr. Eubanks: Subject: City of Miami Beach, DCA #10RWSP1 ." Comments on Proposed Comprehensive Plan Amendment Package The South Florida Water Management District (District) has completed its review of the proposed amendment package submitted by the City of Miami Beach (City). The proposed amendment adopts a Water Supply Facilities Work Plan (Work Plan) and related amendments into the Future Land Use, Infrastructure, ConservationlCoastal Zone Management, Intergovernmental Coordination, and Capital Improvements elements. The City is a wholesale customer of the Miami-Dade County Water and Sewer Department. The District offers the following recommendations, which we request be incorporated into your response to the City: Water Supply Revise the comprehensive plan to adopt Miami-Dade County's Adopted Work Plan by reference. Update Table 1 on page 12 using data from the County's Adopted Work Plan and clarify the discussion on population projections to indicate specifically which Miami-Dade County projections are being used in the City's Work Plan. Revise the comprehensive plan to reflect that the Work Plan shall be revised within 18 months after the District approves updates or amendments to the Lower East Coast Water Supply Plan. Consider adopting a potable water level of service standard for non-residential uses such as commercial and mixed-use, This will be helpful in assessing water supply needs for future site-specific non-residential land use amendments. 3301 Glm Club Road, West Palm Beach, Floridn 33406 (561) 686-8800 FL WAS 1-800-432-2045 Mailing Address: P.O. Box 24680, West Pa11n Beach, FL 354164680 www.sfwrnd.gov . Mr. Ray Eubanks, Administrator August 20,2010 Page 2 The District offers its technical assistance to the City, its water supplier, and the Department of Community Affairs in developing sound, sustainable solutions to meet the City's. future water supply needs and protect the region's water resources. For assistance or additional information, please contact Jim Golden at (561) 682-6862 or iqolden@sfwmd .nov. Sincerely, Director Intergovernmental Policy and Planning Division South Florida Water Management District c: Bob Dennis, DCA Jim Golden, SFWMD Rachel Kalin, SFRPC Marc LaFerrier, Miami-Dade County Richard Lorber, City of Miami Beach Maria Valdes, MDWASD Planning and Zoning 11 1 NW 1st Street Suite 121 0 Miami, Florida 331 28-1 902 T 305-375-2800 Carlos Alvarez, Mayor September 3,2010 Mr. Ray Eubanks, Administrator Plan Review and Processing . Florida Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-21 00 Re: City of Miami Beach Comprehensive Plan Amendment, DCA #IORWSPI . Dear Mr. Eubanks: The Department of Planning & Zoning has reviewed the proposed City of Miami Beach 10-Year Water Supply Facilities Work Plan and Comprehensive Plan Amendments. Our review is conducted to identify points of consistency or inconsistency with provisions of the Miami-Dade County Comprehensive Development Master Plan (CDMP). The City proposes to adopt a 10-year water supply plan and amend its comprehensive plan to strengthen coordination between the water supply and land use planning. The Department finds that the proposed amendments are generally consistent with the CDMP but offers the following comments: 1. Section 2.1: Overview (Page 4): It shall be noted in the fourth paragraph that the County's Water Supply Plan has been adopted and the population projections have been revised as noted in Table 1 on Page 5. 2. Section 3.3: Potable Water Level of Service Standard (Page 6): The City's system wide potable water for 2008 and 2009 was 204 and 195 gallons per capita day (gpcd), respectively, which exceeds the potable water level of service noted in the Infrastructure Element, Objective 5, Policy 5.1, of the Comprehensive Plan. 3. Section 3.3: Potable Water Level of Service Standard (Page 6): The Historic Water Usage Rates in Table 2 are incorrect. The City should revise Table 2 to reflect the correct historical water usage. 4. Section 3.7: Conservation (Page 9): The City should delete the word "xeriscape" and replace with "Florida friendly landscape techniques." 5. Section 3.7.1: Water Conservation Plans and Development Codes (Page 0): The City should update the Conserve Florida Utility Profile as required to reflect current utility information. The last paragraph on Page 9 should be revised to include current status of the water use efficiency requirements in the Code of Miami-Dade County. This paragraph should make reference to Sections 8-31, 32-84, 8A-381 and 32-83.1 of the Code of Miami-Dade County. Also, reference to compliance with landscape standards in Sections 18-A and 18-B, and permanent landscape irrigation restrictions in Section 32-8.2 of the Code of Miami-Dade County should be included. Ray Eubanks, Administrator Florida Department of Community Affairs September 3,2010 Page 2 of 2 6. Section 3.7.2: City Specific Actions, Programs, Regulations, or Opportunities (Page 10): The City should continue working with MDWASD Water Use Efficiency staff to identify and implement Best Management Practices to reduce the City's water use per capita. The City should consider removing references to "low flow" fixtures and replace with "high efficiency." 7. Section 4.1: Work Plan Projects (Page 11): The City should state that the City is a wholesale customer of MDWASD. 8. Section 5.0: infrastructure Element - Policy 6.6 (Page 14): The City should delete the reference to "ultra-lown volume water saving devices and replace with "high efficiency." 9. Section 5.0: ConservationlCoastal Zone Management Element - Policy 13.3 (Page 17): The City should delete the reference to "ultra-lown appliances and replace with "high efficiency." If you have any questions, please do not hesitate to contact me or Mark R. Woerner, AICP, Chief, Metropolitan Planning at 305-375-2835. Director MCLF:SB:MRW:smd City of Miami Beach Proposed Water Supply Facilities Work Plan City of Miami Beach, FLORIDA 10 YEAR WATER SUPPLY FACILITIES WORK PLAN Prepared For: The City of Miami Beach Prepared By: THE CORRADINO GROUP 4055 NW 97'h Avenue Doral, FL 33178 305-594-0735 phone 305-594-0755 fax 4' 9#0 October 6.2010 i 305 City of Miami Beach Proposed Water Supply Facilities Work Plan TABLE OF CONTENTS PAGE 1.0 INTRODUCTION 1 1.1 Statutory History 1.2 Statutory Requirements 2.0 BACKGROUND INFORMATION 3 2.1 Overview 2.2 Relevant Regional lssues 3.0 DATAANDANALYSIS 5 3.1 Population Information 3.2 Maps of Current and Future Areas Served 3.3 Potable Water Level of Service Standard 3.4 Population and Potable Water Demand Projections by Each Local Government Utility 3.5 Water Supply Provided by Local Government 3.6 Water Supply Provided by Miami-Dade County 3.7 Conservation 3.7.1 Countywide lssues 3.7.2 City Specific Actions, Programs, Regulations, or Opportunities 3.7.3 Identify any Local Financial Responsibilities as Detailed in the CIE or CIS 3.8 Reuse 3.8.1 Regional and Countywide lssues 3.8.2 City Specific Actions, Programs, Regulations, or Opportunities 4.0 CAPITAL IMPROVEMENTS 13 4.1 Work Plan Projects 4.2 Capital Improvements ElementISchedule 5.0 GOALS, OBJECTIVES AND POLICIES 14 FIGURES Figure 1 General Location Map Figure 2 Miami-Dade County Water Wholesale Customers Figure 3 City of Miami Beach Water Service Area Figure 4 Water Treatment Plants Figure 5 Wellfield Cones of Influence October 6.2010 i i 306 City of Miami Beach Proposed Water Supply Facilities Work Plan 1.0 INTRODUCTION The purpose of the City of Miami Beach 10 Year Water Supply Facilities Work Plan (Work Plan) is to identify and plan for the water supply sources and facilities needed to serve existing and new development within the local government's jurisdiction. Chapter 163, Part II, F.S., requires local governments to prepare and adopt Work Plans into their comprehensive plans within 18 months after the water management district approves a regional water supply plan or its update. The Lower East Coast Water Supply Plan Update was approved by the South Florida Water Management District (SFWMD) on February 15, 2007. Therefore, the deadline for local governments within the Lower East Coast jurisdiction to amend their comprehensive plans to adopt a Work Plan was August 15, 2008. Residents of the City of Miami Beach obtain their water directly from the Miami-Dade County Water and Sewer Department (WASD), which is responsible for ensuring that enough capacity is available for existing and future customers. The City is a wholesale customer of Miami-Dade County WASD through an executed inter-local water agreement. The City of Miami Beach 10 Year Water Supply Facilities Work Plan (Work Plan) will reference the initiatives already identified in Miami-Dade County's 20-year Work Plan since the City is a wholesale buyer. According to state guidelines, the Work Plan and the comprehensive plan amendment must address the development of traditional and alternative water supplies, bulk sales agreements and conservation and reuse programs that are necessary to serve existing and new development for at least a 10-year planning period. The City of Miami Beach Work Plan will have the same planning time schedule as the first 10-years of the Miami-Dade County's 20-year Work Plan. The City's Work Plan is divided into five sections: Section I - Introduction Section 2 - Background Information Section 3 - Data and Analysis Section 4 -Work Plan ProjectsICapital Improvement ElementISchedule Section 5 - Goals, Objectives, Policies 1 .I Statutory History The Florida Legislature has enacted bills in the 2002, 2004, and 2005 sessions to address the state's water supply needs. These bills, especially Senate Bills 360 and 444 (2005 legislative session), significantly changed Chapter 163 and 373 Florida Statutes (F.S.) by strengthening the statutory links between the regional water supply plans prepared by the water management districts and the comprehensive plans prepared by local governments. In addition, these bills established the basis for improving coordination between the local land use planning and water supply planning. 1.2 Statutory Requirements Each local government must comply with the following requirements: October 6,2010 3 City of Miami Beach Proposed Water Supply Facilities Work Plan 1. Coordinate appropriate aspects of its comprehensive plan with the appropriate water management district's regional water supply plan, [163.3177(4)(a), F.S.] Ensure that its future land use plan is based upon availability of adequate water supplies and public facilities and services [s.163.3177(6)(a), F.S., effective July 1, 20051. Data and analysis demonstrating that adequate water supplies and associated public facilities will be available to meet projected growth demands must accompany all proposed Future Land Use Map amendments submitted to the Department for review. The submitted package must also include an amendment to the Capital lmprovements Element, if necessary, to demonstrate that adequate public facilities will be available to serve the proposed Future Land Use Map modification. Ensure that adequate water supplies and facilities area available to serve new development no later than the date on which the local government anticipates issuing a certificate of occupancy and consult with the applicable water supplier prior to approving building permit, to determine whether adequate water supplies will be available to serve the development by the anticipated issuance date of the certificate of occupancy [s.163.3180 (2)(a), F.S., effective July 1, 20051. This "water supply concurrency" is now in effect, and local governments should be complying with the requirement for all new development proposals. In addition, local governments should update their comprehensive plans and land development regulations as soon as possible to address these statutory requirements. The latest point at which the comprehensive plan must be revised to reflect the concurrency requirements is at the time the local government adopts plan amendments to implement the recommendations of the Evaluation and Appraisal Report (EAR). 4. For local governments subject to a regional water supply plan, revise the General Sanitary Sewer, Solid Waste, Drainage, Potable Water, and Natural Groundwater Aquifer Recharge Element (the "Infrastructure Element"), within 18 months after the water management district approves an updated regional water supply plan, to: a. ldentify and incorporate the alternative water supply project(s) selected by the local government from projects identified in the updated regional water supply plan, ir the alternative project proposed by the local government under s. 373.0361(7), F.S. [s. 163.3177(6)(~), F.S.]; b. ldentify the traditional and alternative water supply projects, bulk sales agreements, and the conservation and reuse programs necessary to meet current and future water use demands within the local government's jurisdiction [s. 163.3177(6)(~), F.S.]; and c. Include a water supply facilities work plan for at least a 10-year planning period for constructing the public, private, and regional water supply facilities identified in the element as necessary to serve existing and new development. [s. 163.3177(6)(~), F.S.] Amendments to incorporate the water . supply facilities work plan into the comprehensive plan are exempt from the twice-a-year amendment limitation. [s. 163.3177(6)(~), F.S.] 5. Revise the Five-Year Schedule of Capital lmprovements to include any water supply, reuse, and conservation projects and programs to be implemented during the five- year period. October 6,2010 4 City of Miami Beach Proposed Water Supply Facilities Work Plan 6. To the extent necessary to maintain internal consistency after making changes described in Paragraph 1 through 5 above, revise the Conservation Element to assess projected water needs and sources for at least a 10-year planning period, considering the appropriate regional water supply plan, the applicable District Water Management Plan, as well as applicable consumptive use permit(s). [s.163.3177 (6)(d), F.S.1 If the established planning period of a comprehensive plan is greater than ten years, the plan must address the water supply sources necessary to meet and achieve the existing and projected water use demand for established planning period, considering the appropriate regional water supply plan. is.163.3167 (1 3), F.S.] 7. To the extent necessary to maintain internal consistency after making changes described in Paragraphs 1 through 5 above, revise the Intergovernmental Coordination Element to ensure coordination of the comprehensive plan with applicable regional water supply plans and regional water supply authorities' plans. [~.163.3177(6)(h)I., F.S.] 8. Address in the EAR, the extent to which the local government has implemented the 10-year water supply facilities work plan, including the development of alternative water supplies, and determine whether the identified alternative water supply projects, traditional water supply projects, bulk sales agreements, and conservation and reuse programs are meeting local water use demands. [s.163.3191 (2)(1), F.S.] 2.0 BACKGROUND INFORMATION 2.1 Overview The City of Miami Beach is a dense urban community located on a barrier island on the southeast coast of Florida. Incorporated in 1915, the City has grown from a resort island into a vibrant, tropical, historic city, though tourism is still the largest industry in the City. The southern portion of Miami Beach, commonly known as South Beach, is the primary dining and entertainment destination in Southeast Florida for tourists and residents of the greater Miami metropolitan area. The predominant character of the City of Miami Beach is that of an urban community of approximately 93,000 persons (Miami Beach EAR, 2007) residing in a dense, fully developed city within the urbanized area of Miami-Dade County. The City consists of high and low-rise multi-family residential, limited single family residential, entertainment districts and very limited industrial uses. The boundaries of the City encompass an area approximately 7.1 square miles bounded by three other municipalities (Miami, North Bay Village and Surfside), Biscayne Bay and the Atlantic Ocean. It consists of a number of islands interconnected with bridges and a portion of Fisher Island, which is separated by Government Cut and connected to the City via a ferry service from Terminal Island in the City proper. The City has not expanded in land and area in recent years, and does not expect to expand in the future. October 6,2010 5 City of Miami Beach Proposed Water Supply Facilities Work Plan It must be noted that there are discrepancies between the BEBR population projections (above) for the City and those found in the Miami-Dade WASD 20-Year Water Supply Facilities Work Plan for the planning period. For the purpose of water supply planning the Miami-Dade WASD projections will be utilized and at the time of the 2010 Census all population projections will be revisited. As stated in the Miami-Dade WASD 20-Year Water Supply Facilities Work Plan the City of Miami Beach population projections are as follows: 106,286 in 2007; 1 10,677 by 201 0; 1 17,997 by 201 5; 124,489 by 2020; 130,980 by 2025; and 137,472 by 2030. As shown in Figure 3, the water distribution service area for the City includes only those areas within its municipal boundaries. The development of existing vacant land within the City will potentially result in population increase during the planning period. The City is substantially developed with only approximately 167 acres on 566 vacant parcels scattered throughout the city. The City- owned vacant land covers approximately 86 acres, which are currently affected by a City Charter amendment that requires a City-wide referendum to sell or change the use. Privately-owned, vacant land is approximately 82 acres scattered throughout 318 parcels. These vacant parcels are subject to the existing Future Land Use Map categories and Land Development Regulations of the City Code and will be reviewed on an individual basis as development proposals are submitted. The development and re-development that has occurred in the City has been consistent with the City's adopted Future Land Use Map and the Land Development Regulations that govern each zoning district. 2.2 Relevant Regional Issues As the state agency responsible for water supply in the Lower East Coast planning area, the SFWMD plays a pivotal role in resource protection, through criteria used for Consumptive Use Permitting. As pressure increased on the Everglades ecosystem resource, the Governing Board initiated rule making to limit increased allocations dependent on the Everglades system. As a result, the Regional Water Availability Rule was adopted by the Governing Board on February 15, 2007 as part of the SFWMD's water use permit program. This reduced reliance on the regional system for future water supply needs, mandates the development of alternative water supplies, and increasing conservation and reuse. 3. DATA AND ANALYSIS The intent of the data and analysis section of the Work Plan is to describe the information that local governments need to provide to state planning and regulatory agencies as part of their proposed comprehensive plan amendments, particularly those that would change the Future Land Use Map (FLUM) to increase density and intensity. Additionally, population projections should be reviewed for consistency between the County and the South Florida Water Management District's Water Supply Plan. October 6,2010 6 City of Miami Beach Proposed Water Supply Facilities Work Plan 3.1 Population Information The City's future population figures are derived from Miami-Dade County Planning and Zoning Department and University of Florida BEBR and the 2000 US Census. Between the 1990 and 2000 U.S. Census, the permanent population of the City of Miami Beach decreased from 92,639 to 87,933 (5.3%). Estimates and projections show growth will occur slowly in the City; however these projections are based on prevailing trends. Available vacant land in the City, as well as Growth Management initiatives currently undergoing studies, may have an impact on future population projections. Current population projections from Miami Beach staff estimate that the population will grow to approximately 97,700 by 2025, or about a 6.5% increase, while current Shimberg Center for Affordable Housing projections show the 2025 Miami Beach population to be 107,177. Below is a comparison of the various population projections in tabular format. As can be seen in the table below, there is general inconsistency between the three separate agencies tracking population data. The BEBR population projections are consistently within the highest population projection, while MDWASD is closer to that of the County's projection for the City throughout. For the purpose of water supply planning, the MDWASD projections will be utilized and at the time of the 2010 Census all population projections will be revisited. Population growth between now and the 2010 Census is not expected to be significant. Table 1 City of Miami Beach Population Projection Comparison 3.2 Maps of Current and Future Areas Served The map depicting current and future City boundaries served by the WASD are provided in Figure 3. The City does not plan to expand its service area. 3.3 Potable Water Level of Service Standard MDWASD 93,053 96,193 99,334 102,474 The current Potable Water Level of Service for the City of Miami Beach can be found in the Infrastructure Element of the Comprehensive Plan, Objective 5, Policy 5.1 as follows: MD-County for Miami Beach 92,833 95,790 96,006 97,705 Year 200911 0 201 5 2020 2025 Policy 5.1 : The following City-wide Level of Service Standards shall be used as the basis for determining the availability of facility capacity; the systems shall be able to provide/accommodate at least the minimums specified: BEBR 99,003 102,057 104,700 107,177 City of Miami Beach Proposed Water Supply Facilities Work Plan Potable Water Facilities Water Consumption Standard: 140 Average gallons per capita per day 168 Peak gallons per capita per day The average gallons per capita rate applies to the year-round standard, while the peak gallons per capita rate applies to the City during peak tourist period due to the significant seasonal influx of temporary residents. The City uses a multiplier of 1.2, which gives a 20% increase in population to estimate required services and facilities. The City's recent consumptive use rates are showing a downward trend based on per capita water usage. Table 2 City of Miami Beach Historic Water Usage Rates 3.4 Population and Potable Water Demand Projections by Each Local Government or Utility TABLE 3 - POPULATION & DEMANDS Population Served Demand per Capita (gallons per day) Avg. Daily Demand (million gallons per day) Current City LOS standard (million gallons per day) MDWASD AADF (million gallons per day) *Source: MDWASD Water Supply Facilities Work Plan **Source: MDWASD Water Supply Facilities Work Plan (extrapolated for years not shown) 2007 106,286* 1 94 20.6 14.8 16.47 2006 1 04,823** 21 6 22.6 14.7 16.24 *Based on systemwide average per capita of 155 gpcd 2008 107,749** 1 74 18.7 15.1 16.7 AREA 3.5 Water Supply Distribution Provided by Local Government WATER SUPPLY DEMAND (MGD)* As a wholesale customer, Miami Beach is provided with potable water by Miami-Dade County WASD on an annual volume basis. The Water Division of the Public Works Department provides reliable and high quality water that protects public health and safety. The Division installs, maintains and repairs the City's water distribution system and its appurtenances that include 4 water storage tanks with total storage capacity of 12 million October 6,2010 8 2025 15.88 2020 15.39 2015 14.90 2007 16.47 2025 102,474 2010 14.42 2020 99,334 YEAR. 2010 TOTAL Population 93,053 2015 96,193 City of Miami Beach Proposed Water Supply Facilities Work Plan gallons and 5 water pumping stations. The Division is responsible for safe and efficient distribution of 7.6 billion gallons of water annually and to minimize the distribution system water loss. 3.6 Water Supply Provided by Miami-Dade County The following text is applicable for local governments served by WASD, and is summarized from the Miami-Dade County Work Plan. The intent of the Miami-Dade County 20-Year Water Supply Facilities Work Plan is to meet the statutory requirements mentioned in subsection 1.2 of this plan and to coordinate the WASD1s water supply initiatives with the SFWMD1s Lower East Coast Water Supply Plan Update. The WASD1s service area is all portions of Miami-Dade County within the Urban Development Boundary (UDB), excluding all or portions of North Miami, North Miami Beach, Aventura, Sunny Isles, Biscayne Park, Miami Gardens, Homestead and Florida City. The areas within the Urban Expansion are included in the planning horizon after 2015. The following summarizes Miami-Dade County's Work Plan: Description of population and water demand projections (Exhibit C-1 and C-2, Water Supply Service Area, Retail and Wholesale Customers, respectively, by Municipality provides municipal population projections and projected AADF "Annual Average Daily Flow" finished water based on 155 gallons per capita per day (gpcd). The population information was derived from Miami-Dade County Department of Planning and Zoning Transportation Analysis Zone (TAZ) 2004 population data. This subsection also provides a brief discussion of WASD1s conservation and reuse programs.); The Water Supply Facilities Work Plan details the facilities and proposed alternative water supply (AWS) projects that are planned in order to meet the water demands through 2027. These projects are expected to be completed in increments consistent with the projected growth set forth in the Plan. The AWS projects and annual average daily demand (AADD) assumes that all current wholesalers will remain in the WASD system through 2027, except for the City of North Miami Beach. The AWS projects are included in the County's Capital Improvement Element. In the 20-Year Work Plan, the WASD is committed to meet the water demand for the municipalities within the service area. The City of Miami Beach is served by the Hialeah- Preston sub-area water treatment plants. These plants are interconnected and act as a single system. The plants operate under a Title V Florida Department of Environmental Protection permit number 0250281-0005-AV. Both of these treatment facilities obtain raw water from the Biscayne Aquifer under consumptive use permit number 13-00017-W and utilize the same basic process for water treatment. The treatment process includes lime softening, chlorination, ammonization, fluoride, filtration and air striping. In addition to these plants, Miami-Dade WASD also operates the Alexander Orr, Jr. Water Treatment Plant and other minor water treatment plants servicing the southern portion of the County. The Alexander Orr, Jr. plant utilizes the same water treatment process as the Hialeah-Preston plants with the exception of the air striping. Figure 2 depicts the location of the three main treatment plants and their corresponding service areas. October 6.2010 9 City of Miami Beach Proposed Water Supply Facilities Work Plan 3.7 Conservation The City is required to adopt the Miami-Dade County Water Efficiency Use Plan. The requirements set forth in an Ordinance became effective January 1, 2009. Miami-Dade WASD implements all Best Management Practices included in the Water Efficiency Use Plan in addition to various irrigation, xe&wpe and plumbing fixture efficiency ordinances and some wastewater reuse. 3.7.1 County-wide Issues The Miami-Dade Water Use Efficiencv Plan Currently, the WASD is implementing all Best Management Practices (BMPs) included in the 20-year Water Use Efficiency Plan, which was approved by the South Florida Water Management District in May 2007. Water Conservation Plans and Development Codes In addition, all of the WASD's wholesale customers are required to submit a Water Conservation Plan to its Water Use Efficiency Section as mandated by County Ordinance 06-177, Section 32-83.1 of the Miami-Dade County Code. The Plan will identify BMPs based on population characteristics and type of service for each municipal service area. In addition, Miami-Dade County has developed recommendations for new development that would achieve higher water use savings than currently required by code. The recommendations were developed by an Advisory Committee and were presented to the Board of County Commissioners (BCC) on June 5, 2007. These water conservation recommendations were adopted by ordinance on February 5, 2008. The Ordinance requires that a manual for implementation of the recommendations be developed by July 2008. These water efficiency recommendations represent an additional 30 percent to the water savings identified in the 20-year Water Use Efficiency Plan. All applicants will be required to comply with these future code requirements. The list of recommendations submitted to the BCC and the ordinance relating to water use efficiency standard are presented in Appendix D and are also posted in the Miami-Dade Water Conservation Portal website. Per Capita Consumption Furthermore. the WASD will establish per capita consumption for all municipalities including those in its ietail customer service area. ~ased on this data, the WASD will work with the municipalities to address those with higher than average per capita and will target programs for those areas. The County anticipates that the implementation of the BMPs identified in the 20-year Water Use Efficiency Plan will result in an adjusted system wide per capita of 147.82 gpcd by 2027. 3.7.2 City Specific Actions, Programs, Regulations, or Opportunities The City will coordinate future water conservation efforts with the WASD and the SFWMD to ensure that proper techniques are applied. In addition, the City will continue to support and expand existing goals, objectives and policies in the comprehensive plan that promote water conservation in a cost-effective and environmentally sensitive manner. The City will continue to actively support the SFWMD and Miami-Dade County in the implementation of new October 6,2010 10 City of Miami Beach Proposed Water Supply Facilities Work Plan regulations, implementation of the BMPs or programs that are design to conserve water during the dry season. As a result of a recent energy audit, several specific projects were identified to retrofit City facilities to conserve water. The City plans to replace standard flow toilet fixtures with kfuv valves and modify lavatory ter savings will be realized through showerhead replacements, ice machine retrofits, and laundry washer replacements at City owned facilities. The City also will install salt chlorine generators for water savings at three pools (Flamingo Park, Normandy Isle Activity Center and Scott Rakow Youth Center). Additionally, the City is currently mixing brackish water into the irrigation of Miami Beach and Normandy Shores golf courses to save water and is also currently performing extensive waterline restoration projects throughout the entire City. 3.7.3 Identify any Local Financial Responsibilities as Detailed in the CIS The City currently has committed financing for in the capital water projects budget; see Table 2 below for details. 3.8 Reuse The County is planning to install a utility tunnel from Miami Beach to a County Wastewater Treatment Plant. The County plans to include a water reuse pipe as part of this utility tunnel project. The City will work with the County to identify potential users of this reuse water. Through an Ameresco Guaranteed Energy Savings Contract, the City is exploring development of a water reclamation facility that would provide reuse water for use by the Miami Beach Golf Course and potentially for other water customers. The City may also explore the possibility of a desalination plant. 3.8.1 Regional and County-wide Issues State law supports reuse efforts. For the past years, Florida's utilities, local governments, and water management districts have led the nation in implementing water reuse programs that increase the quantity of reclaimed water used and public acceptance of reuse programs. Section 373.250(1) F.S. provides that "water reuse programs designed and operated in compliance with Florida's rules governing reuse are deemed protective of public health and environmental quality." In addition, Section 403.064(1), F.S., provides that "reuse is a critical component of meeting the state's existing and future water supply needs while sustaining natural systems." The City of Miami Beach supports water reuse initiatives under consideration by both the SFWMD and Miami-Dade County. The County has committed to implement a total of 170 MGD of water reuse as noted in the County's 20-year water use permit. In the 20-year Work Plan, the County identified a number of water reuse projects and their respective schedule. According to the Plan, "reuse projects to recharge the aquifer with highly treated reclaimed water will be in place before additional withdrawals over the base condition water use are made from the Alexander Orr and South Dade subarea wellfields. In addition, reuse irrigation projects are anticipated for the North and Central District Wastewater Treatment Plants. These projects will be implemented in the Cities of North Miami and North Miami Beach, and are currently under construction for Key Biscayne." October 6,2010 11 City of Miami Beach Proposed Water Supply Facilities Work Plan 3.8.2 City Specific Actions, Programs, Regulations, or Opportunities The City will support the SFWMD and Miami-Dade County water reuse projects, and implementation of new regulations or programs designed to increase the volume of reclaimed water used and public acceptance of reclaimed water. 4.0 CAPITAL IMPROVEMENTS 4.1 Work Plan Projects de County WASD service are which provides potable water discussed the potable water and sanitary sewer systems have adequate capacity to meet the needs of current and future residents. The projects listed below are from the Miami- Dade County Work Plan, the Miami-Dade Capital Improvement ElementISchedule and Alternate Water Supply and Wastewater Reuse Projects Table. Table 1 Alternative Water Supply and Wastewater Reuse Projects 2007-2030 Proiect No1 I Proiect Name ' Project Description I Construction I Estimated I WTP I ~lant is to be constructed in the northern part of the County (i.e. I I CIE-T~~I~. ' Alternative Water 17, Table 12 200, Table 12 October 6,2010 12 Supply Projects South Miami Heights WTP and Wellfield (20 MGD) Hialeah Floridan Aquifer R.O. 20D, Table 12 22, Table 12 23, Table 12 20A, Table 12 20C, Table 12 Wastewater 28, Table 8 29, Table 8 30, Table 8 31, Table 8 Reverse osmosis and ultra-filtration membranes provide treatment of 20 MGD of Biscayne aquifer water from 10 wells A new upper Floridan aquifer reverse osmosis water treatment . . Phase 1 (1 0 MGD) Phase 2 (5 MGD) Phase 3 (2.5 MGD) Floridan Aquifer Blending (and ASR) at Alexander Orr, Jr. Water Treatment Plant (7.4 MGD) Floridan Aquifer Blending at Hialeah-Preston WTP (4.7 MGD) Reclamation Projects North District WWTP Reuse Projects (I .O MGD) Central District WWTP Reuse Project (I .O MGD) South District WRP Groundwater Recharge Phase 1 (18.6 MGD) West District W.R.P. Canal Recharge Phase 2 (21 MGD) Timeframe 2007-201 2 ~ialeah). The WTP will directly utilize the Floridan ~~uifeias the alternative water supply using the RO treatment to remove salt. This project uses the brackish Floridan Aquifer water to blend with the fresh Biscayne Aquifer raw water. Also these wells will be used for storage of fresh Biscayne Aquifer water in the Floridan Aquifer during the wet season for extraction and use in the dry season. Construction of two Floridan Aquifer blending wells to supply raw water to the Hialeah-Preston WTP complex. This project will blend Floridan Aquifer water with the raw water supply. Five MGD of this reclaimed water (e.g. purple pipe) irrigation project will be pumped to the City of North Miami Beach and 2 MGD will be used to replace current potable water irrigation in the service area. This reclaimed water (e.g. purple pipe) irrigation project will replace potable water irrigation at Crandon Park and certain areas of Key Biscayne. This Groundwater Replenishment project provides advanced treatment to secondary effluent. Technologies include micro- filtration, reverse osmosis and UV light for disinfection. The highly treated reclaimed water would be piped to areas upgradient of the South Miami Heights wellfield and discharged into the groundwater through underground trenches. This water reclamation plant project includes the construction of a new wastewater plant incorporating technologies capable of Cost ($million) 158.7 2007-201 2 2015-2018 2025-2028 2007-2007 2006-2010 2007-2012 2007-201 2 2007-2013 2015-2020 93 25 9.7 6.4 10.3 26.8 15.3 357.5 298 City of Miami Beach Proposed Water Supply Facilities Work Plan Table 1 fn 6/5/07 Project Names are per Miami-Dade County Water Use Permit approved 11/15/07 Source: Miami-Dade County CDMP Water and Sewer Subelement, Table 1 Alternative Water Supply and Wastewater Reuse Projects 2007-2030 - October 6.2010 Estimated Cost ($million) 217.5 19.2 1.02 621 4.2.1 Capital lmprovements ElementlSchedule The following table contains projects within the City. The City of Miami Beach is upgrading the water lines throughout many neighborhoods which include pipe replacement with larger transmission lines. More general or regional projects may be found in the 200912010 Miami- Dade County Schedule of Capital lmprovements and in the 20-Year Water Supply Facilities Work Plan. Table 2 City of Miami Beach and Miami-Dade County Capital Water Projects Water lmprovements ' CIE Table References are per Miami-Dade County CIE adopted 3/28/07 and revised by Ordinance No 07-73 adopted Construction Timeframe 2021 2006-201 1 2006-2010 2010-2021 Project Description achieving those treatment levels required for canal recharge or any other alternative discharge that may be approved. This plant will be expanded for Phase 3. The Biscayne Bay Coastal Wetland Rehydration program and Aquifer Recharge Pilot studies are projects that will help the County reach its effluent reuse goals. The wetland rehydration process requires thorough removal of nutrients from the reuse water. Results of the pilot project, which will test different treatment technologies and to gain insights in the biological and ecological response of typical wetlands to highly treated effluent, will help to optimize the treatment system and the preferred areas for rehydration to maximize the benefits to the wetlands and to the Bay. The pilot project will lay the foundation for the full scale rehydration project. Project No: CIE Table. 26, Table 8 27, Table 8 33, Table 8 Total (Estimated costs in Thousands) $90,000 $83,190 Project Name Biscayne Bay Coastal Wetlands Rehydration (1 MGD) Aquifer Recharge Pilot Study (20,000 GPD) Biscayne Bay Coastal Wetlands Rehydration Demonstration Project (75.7 MGD) 201 4 $1 5,000 NIA 201 2 $1 5,000 $9,780 City MD- WASD 201 3 $1 5,000 $15,590 201 0 $9,000 $21,330 201 1 $1 9,000 $19,230 Project Name City-wide Waterline Restoration lmprovements Water Treatment PlantIHialeah- Preston lmprovements 2009 $9,000 $5,960 City of Miami Beach Proposed Water Supply Facilities Work Plan 5.0 GOALS, OBJECTIVES AND POLICIES The following objectives and policies are proposed amendments to the Miami Beach Comprehensive Plan: Future Land Use Element Policv 1.7 The Citv, through the land development rerrulations will coordinate the land uses and future land use changes with the availabilitv of water sup~lies and water supplv facilities. Infrastructure Element Policv 1.4: The potable water network is an interconnected, countvwide svstem, therefore, the Citv will cooperate with MDWASD to iointlv develop methodologies and procedures for biannuallv updating estimates of svstem demand and capacitv, and ensure that sufficient ca~acitv to serve development exists. The Citv will prepare and submit a Water Conservation Plan to the Countv at the same time as the Citv submits the updated 5-Year Water Supplv Facilities Work Plan. Policy 5.1 : The following City-wide Level of Service Standards shall be used as the basis for determining the availability of facility capacity ; the systems shall be able to provide/accommodate at least the minimums specified: Potable Water Facilities Water Consumption Standard: 140 Average gallons per capita per day 168 Peak gallons per capita per day The average gallons per capita rate applies to the year-round standard, while the peak gallons per capita rate applies to the City during peak tourist period due to the significant seasonal influx of temporary residents. The City uses a multiplier of 1.2, which gives a 20% increase in population to estimate required services and facilities. The following Citv-wide I eve1 of Service Standards shdLk . . . .. . . s the basts for determlntna the aval&&uhtv of factlily for non-restdentral the svsternssh;all be ahle_tn . . provlde/accommod-ast the m- wecrfied: 75 a& per wer rootq ~ce: 0.084 gallons per d.ayser square foot 11: 0.18 gallons per clay per square foot 0.084 gakm per day per ware foot ant: 65 gallons per day lper sea 12 gal-,per student October 6.2010 14 City of Miami Beach Proposed Water Supply Facilities Work Plan Policy 6.6 The City, through the Building Department, will continue to enforce the requirement to use t&a&w volume water saving devices for substantial rehabilitation and new construction projects as specified in the standard plumbing code. All future development within the Citv will be required to complv with water use efficiency techniques for indoor water use in accordance with Section 8-31, , 32- 83.1. 32-84 and 8A-381 of the Code of Miami-Dade Countv. In addition, all future development will be required to complv with the landscape standards in Section 18-A and 18-B of the Miami-Dade Countv Code. Policv 7.5 If in the future there are issues associated with water supplv, conservation or reuse the Citv will immediatelv contact WASD to address the corresponding issue(s). In addition. the Citv will follow adopted communication protocols with WASD to communicate and/or prepare an appropriate action plan to address anv relevant issue associated with water supplv, conservation or reuse. Obiective 8: Water SUPP~V Planning The Citv of Miami Beach shall complv with its 10-vear Water Supply Facilities Work Plan, as required bv section 163.3177(6)(~), F.S.. The Work Plan will be updated, at a minimum, everv 5 vears. The Citv of Miami Beach Water Supplv Facilities Work Plan is designed to: assess current and proiected potable water demands; evaluate the sources and capacities of available water supplies: and, identifv those water supplv proiects, using all available technologies, necessarv to meet the Citv's water demands for a 10-vear period. Policv 8.1 : Policv 8.2: The Citv will complv with the 10-vear Water Supplv Facilities Work Plan and incorporate such work plan into the Miami Beach Comprehensive Plan. Coordinate appropriate aspects of its comprehensive plan with the South Florida Water Management District's renional water supplv plan adopted Februarv 15, 2007 and with the Miami-Dade Countv 20-Year Water SUPP~V Facilities Work Plan adopted April 24. 2008. and as updated. The Citv shall amend its Comprehensive Plan and Work Plan as required to provide consistencv with the District and Countv plans. Policv 8.3: The Citv shall coordinate the planning of potable water and sanitarv sewer facilities and services and level-of-service standards within the Miami-Dade Countv Water and Sewer Department. DERM, the South Florida Water Management District, and wilie the Cltys Work , I . . strict ,&x&&s the Lower East Coast Water Supplv Plan Update. October 6.2010 15 City of Miami Beach Proposed Water Supply Facilities Work Plan Policv 8.4: The Citv shall coordinate with Miami-Dade Countv WASD bv reauirinq applications to be reviewed bv WASD during the site plan review process prior to approving a Building Permit, in order to determine whether adequate water supplies will be available to serve the development bv the anticipated issuance date of the certificate of occupancv for properties located within the Citv of Miami Beach. Additional coordination efforts will occur between WASD and the Citv through the water allocation svstem. Monthlv Building Permit data will be provided to WASD to track development activitv within the Citv. The Citv will monitor proposed amendments to the Miami-Dade Countv Comprehensive Development Master Plan as thev relate to water supply planning in the adiacent beach communities and provide input as necessarv. Policv 8.5: The Citv Planning Director or a representative will attend the Miami- Dade Planners Technical Committee meeting to share information regarding water supplv needs and coordinate water use issues as needed. The Planners Technical Committee is a council of professional planners representing local governments and public regulaton//review agencies in Miami-Dade Countv that addresses common concerns and shares resources toward solving planning problems. ConservationlCoastal Zone Management Element Objective 2: Natural Resource Protection By 1998, complete sign posting relative to manatee protection and otherwise protect the conservation of, and provide for the appropriate use of the natural functions of existing soils, fisheries, wildlife and their habitats, bays and waterways which flow into estuarine waters, floodplains, beaches and shores, marine habitats, air quality, water resources and scenic beauty by adopting the following measurable policies. Obiective 13: Policv 13.1 : Implementation of the 10-year Water Supplv Facilities Work Plan will ensure that adequate water supplies and public facilities are available to serve the water supplv demands of the Citvls population. If in the future there are issues associated with water sueplv, conservation or reuse the Citv will immediatelv contact WASD to address the corresponding issuek). In addition, the Citv will follow adopted communication protocols with WASD to communicate andlor October 6,2010 16 City of Miami Beach Proposed Water Supply Facilities Work Plan prepare an appropriate action plan to address anv relevant issue associated with water supplv, conservation or reuse. Policv 13.2: The Citv will require the use of High Efficiencv Toilets; High Efficiencv Showerheads; High Efficiencv Faucets; High Efficiencv Clothes Washers; and Dishwashers that are Energv Star rated and Watersense certified in all new and redeveloped residential proiects. Policv 13.3: Policv 13.4: Policv 13.5: Policv 13.6: Policv 13.7: The Citv should educate the development communitv on the benefits of sub-metering for multi-familv residential retrofit proiects which will include: separate water meters and monthlv records kept of all maior water-using functions such as cooling towers and individual units. The Citv will explore starting a pilot incentive program as a means of encouragina developers that retrofit units to install separate meters and lew-4~ high efficiency appliances. The Citv will require new multi-familv residential developments to install separate water meters for each unit. The Citv should educate the development communitv on the water saving benefits of the use of Florida Friendlv Landscapes guidelines and principles: gutter downspouts, roof runoff, and rain harvesting through the use of rain barrels and directing runoff to landscaped areas; drip irrigation or micro-sprinklers; and the use of porous surface materials (bricks, gravel, turf block, mulch, pervious concrete, etc) on walkwavs, drivewavs and patios. The Citv will participate, when warranted, in the SFWMD's Water Savings Incentive Program (WaterSIP) for large-scale retrofits as recommended bv the Lower East Coast Water Supplv Plan. The Citv should continue to enforce the landscape waterinq restrictions mandated bv the South Florida Water Manaaement District. The City will continue to use code enforcement measures such as issuing warning and fines to enforce the water restrictions. The Citv will continue to coordinate with Miami-Dade Water and Sewer Department related to leak detection and repair of water lines throughout the Citv. October 6.2010 17 City of Miami Beach Proposed Water Supply Facilities Work Plan Intergovernmental Coordination Element Policv 1.8 The Citv will coordinate with Miami-Dade Countv WASD in the review of site plans prior to the issuance of a building permit to determine whether adequate water supplies will be available to serve new development no later than the date of the certificate of occupancv. Policv 1.9 The Citv shall coordinate the ~lannina of Dotable water and sanitarv sewer facilities and services and level of service standards within the Miami-Dade Countv WASD, DERM, the South Florida Water Management District, and the Lower East Coast Water Supplv Plan Update. Capital lmprovements Element Policv 2.4: Appropriate mechanisms will be develo~ed and adopted consistent with the South Florida Water Management District and Miami-Dade Countv in order to assure that adeauate water supplies are available to all water users prior to approval of a building permit. Furthermore, Citv of Miami Beach will be responsible for providing monthlv buildinq permit data to WASD to be used for monitoring the availabilitv of water supplies for all water users of the Miami-Dade Countv Water and Sewer Department, and for implementing a svstem that links water supplies to the permitting of new development. Policv 2.5: The Citv shall incorporate capital improvements affecting Citv levels of service for water supplv bv including Citv funded proiects and bv referencing the Capital lm~rovements Schedules of Miami-Dade Countv, state agencies, regional water supplv authorities and other units of government providing services but not having regulatory authoritv over the use of land into its Capital lmprovements Element via reference during periodic updates of the Comprehensive Plan. October 6.2010 18 Water Service Area Legend Mami Beach Water-Sewice-Area Major Roadways I=mid Major Roadways Water Treatment Facilities 8 Wellfield Cones of Influence Source: Mami-Dade Count)! . . . 3- , .%I. .- ,.-< r ., r - *- . 7. . .\ ..t 4 . e >, .NOTICE. IS HEREBY GIVEN that a second mading gind adcdtidn p~blig~hearing~will be held hy*lhe' CiS( Cqmmlssiogi crftheCitjyf Miami Beach O~WEDNESDAY '0~t(rb'ky",2:,~2~40 @ttdj:a.in: br as- soyie~hd~~~~er' +j$Zp'ri"ss~b~g in, 4 he~~~&~~ommlssion J3hambers, Third FIG; a~k~11; ~dcatbd. .at gob Cgnventfbln Center ~?i$e'~!fiihi~sach,, Florida 3313Q1 This Item may be ~"tf$ud:m$~n$e[~~6~e c@%iins$*aii&es; ddditionql t lil6al La .... notiadwould no1 be provided. 119~ $.+& ;,: f f3* -&-,;v:$,g9 . ; , t .. j' ?' 3> 1. . i~~'a~~~~Zg~ QF THE ,MAYOR 7-1 1, for assistanc~. ; b < ; :x,! P 2f2ftqfiv*,- COMMISSION ITEM SUMMARY Condensed Title: I First and Only Reading Public Hearing - Proposed Designation of the Miami Beach Rod & Reel Club I Key Intended Outcome Supported: I Designation and retention of historically significant properties. Supporting Data (Surveys, Environmental Scan, etc.): In the 2009 Survey, all respondents were asked to indicate if they felt the effort put forth by the City of Miami Beach on historic preservation was too little, too much or about the right amount. 77.1% of respondents reported that the effort put forth by the City of Miami Beach on historic preservation is "about the right amount." Issue: - - - -- - - Should the Miami Beach Rod & Reel Club property be designated as a local Historic Site? Item SummarylRecommendation: I FIRST AND ONLY READING PUBLIC HEARING The proposed ordinance would designate the Miami Beach Rod & Reel Club as a local Historic Site according to the City's Historic Preservation regulations. The Administration recommends weighing the conflicting findings of the Planning Board and the Historic Preservation Board, and if the City Commission finds that the historic value of the property as determined by the Historic Preservation Board outweighs the equally valid concerns of the Planning Board relative to requiring the retention and adaptive reuse of the existing structure as a single family home, then approve the ordinance. Advisory Board Recommendation: On May 11, 201 0, the Historic Preservation Board reviewed a Designation Report relative to the historic designation of the Miami Beach Rod & Reel Club as a local historic site and unanimously approved a motion (7 to 0) to recommend approval of the designation of the proposed Miami Beach Rod & Reel Club Historic Site to the City Commission. On August 24,2010, the Planning Board reviewed a Designation Report relative to the historic designation of the Miami Beach Rod & Reel Club as a local historic site and approved a motion (5 to 2) to recommend against the designation to the City Commission. I I Total I Financial Information: I I I Financial Impact Summary: 1 City Clerk's Office Legislative Tracking: William H. Cary, Assistant Planning Director; Debbie Tackett, Senior Planner. Account AGENDA ITEM RsG 10-27- 13 Amount Source of Funds: 1 MIAMIBEACH City of Miami Beach, 1700 Convention Center Drive, Miami Beach, Florida 33 139, www.rniamibeachfl.gov COMMISSION MEMORANDUM TO : Mayor Matti Herrera Bower and Members of the City Commission FROM: Jorge M. Gonzalez, City Manager &J* DATE: October 27, 2010 SUBJECT: FIRST AND ONLY READING PUBLIC HEARING - HISTORIC DESIGNATION AN ORDINANCE OF THE MAYOR AND ClTY COMMISSION OF THE ClTY OF MlAMl BEACH, FLORIDA, AMENDING THE LAND DEVELOPMENT REGULATIONS OF THE MlAMl BEACH ClTY CODE; AMENDING SECTION 118-593, "HISTORIC PRESERVATION DESIGNATION"; AMENDING SECTION 118-593(E), "DELINEATION ON ZONING MAP"; AMENDING SECTION 118-593(E)(1), "HISTORIC PRESERVATION SITES (HPS)" BY DESIGNATING THE MlAMl BEACH ROD & REEL CLUB AT 218 SOUTH HIBISCUS DRIVE, AS AN HISTORIC SITE, AS MORE PARTICULARLY DESCRIBED HEREIN; PROVIDING THAT THE CITY'S ZONING MAP SHALL BE AMENDED TO INCLUDE THE MlAMl BEACH ROD & REEL CLUB HISTORIC SITE; ADOPTING THE DESIGNATION REPORT ATTACHED HERETO AS APPENDIX "A"; PROVIDING FOR INCLUSION IN THE LAND DEVELOPMENT REGULATIONS OF THE ClTY CODE, REPEALER, SEVERABILITY, AND AN EFFECTIVE DATE. ADMINISTRATION RECOMMENDATION The proposed designation of the Miami Beach Rod & Reel Club as a local historic site is a difficult issue. Although the site clearly possesses a special historic character and is worthy of designation, the abandoned clubhouse use has lost its legal non-conforming status; since it is located within a Single-Family Residential zoning district, the adaptive reuse of the former clubhouse to a single family home is the only use now permitted on the site. While the Historic Preservation Board unanimously recommended designation of the property due to its historic value, the Planning Board recommended that the proposed designation be denied, finding that requiring the retention and adaptive reuse of the existing structure was unrealistic and would be an undue burden for a single- family property. The Administration recommends that the Mayor and City Commission weigh these two opposing viewpoints, and approve the designation of the Miami Beach Rod & Reel Club, if it believes that the historic value of the property as determined by the Historic Preservation Board outweighs the equally valid concerns of the Planning Board relative to requiring the retention and adaptive reuse of the existing structure as a single family home. Commission Memorandum of October 27,2010 First and Only Reading Public Hearing - Historic Designation Miami Beach Rod & Reel Club Page 2 of 12 REVIEW BOARD RECOMMENDATIONS On May 11, 2010, the Historic Preservation Board reviewed the designation report and unanimously approved a motion (7 to 0) to recommend approval of the designation of the proposed Miami Beach Rod & Reel Club Historic Site. On August 24, 2010, the Planning Board reviewed a Designation Report relative to the historic designation of the Miami Beach Rod & Reel Club as a local historic site and approved a motion (5 to 2) to recommend against the designation to the City Commission. The Planning Board expressed concern that the historic designation of the structure would result in too much of a financial burden to the owner with regards to a successful historic adaptive reuse of a clubhouse to a single family home. BACKGROUND On June 16, 2009, the Chairman of the Historic Preservation Board directed the Planning Department to schedule a special meeting of the board for the purpose of hearing and acting upon the possible designation of the Miami Beach Rod and Reel Club as a local historic site. Accordingly, the Planning Department contacted all board members and scheduled a special meeting for June 29, 2009. Further, Planning Department staff prepared a Preliminary Evaluation and Recommendation Report for submission to the board relative to this possible designation. Pursuant to Section 11 8-591 (e) of the City Code, the Historic Preservation Board, may, by motion of the Board, instruct the planning department to prepare a designation report and implement interim procedures for demolition permits. The planning director, or designee, may prepare and submit to the historic preservation board an evaluation and recommendation for designation at a meeting noticed in a newspaper of general circulation at least five business days in advance of the hearing. The property owner shall be notified in writing, by regular mail sent to the address of the owner on the Miami- Dade County Property Appraiser's tax records, and postmarked at least five business days in advance of the hearing. The city commission shall also then be notified. On Sunday, June 21, 2009, the public advertisement for this special meeting appeared in the Neighbors Section of the Miami Herald. On June 22, 2009, an LTC was sent to the Mayor and Commissioners notifying them that the Chairman of the Historic Preservation Board called a Special Meeting of the Board to be held on Monday, June 29, 2009, at 6:00 PM for the Board to consider directing staff to prepare a Designation Report for the Miami Beach Rod and Reel Club, located at 218 South Hibiscus Drive, on Hibiscus Island. On June 29, 2009, the Historic Preservation Board held a special meeting to review the preliminary evaluation and recommendation report with recommendations prepared by the Planning Department relative to the proposed designation of 218 (aka 208) S. Hibiscus Drive as the Miami Beach Rod & Reel Club Historic Site. The Board approved a motion (3-1-3 absent) to direct staff to prepare a designation report and schedule a public hearing to consider the proposed historic designation. Commission Memorandum of October 27,2010 First and Only Reading Public Hearing - Historic Designation Miami Beach Rod & Reel Club Page 3 of 12 Pursuant to Section 118-591 of the City Code, when the Historic Preservation Board directs staff to prepare a designation report for a proposed new historic district or site, the Mayor and City Commission shall be notified of the board's decision and the initial boundaries proposed for designation. Within 60 days of the vote of the Historic Preservation Board to direct the Planning Department to prepare a designation report, the City Commission may, by a five-sevenths vote, deny or modify the proposed request for designation, as well as establish specific timeframes for the completion of the evaluation and recommendation andlor designation report. Within this 60 day period the City Commission may also, by a five-sevenths vote, deny or modify the proposed designation boundaries. An LTC was issued on June 30, 2009, and no requests were made to modify the proposed designation within the ensuing 60 day period or thereafter. On February 3, 201 0, an LTC was sent to the Mayor and Commissioners updating them on the zoning issues associated with the non-conforming use of the Rod & Reel Club. On May 11, 2010, the Historic Preservation Board reviewed the designation report and unanimously approved a motion (7 to 0) to recommend approval of the designation of the proposed Miami Beach Rod & Reel Club Historic Site. On August 24, 2010, the Planning Board reviewed a Designation Report relative to the historic designation of the Miami Beach Rod & Reel Club as a local historic site and approved a motion (5 to 2) to recommend against the designation to the City Commission. The Planning Board expressed concern that the historic designation of the structure would result in too much of a financial burden to the owner with regards to a successful historic adaptive reuse of a clubhouse to a single family home. DESIGNATION PROCESS The designation report for a proposed historic district is required to be presented to the Historic Preservation Board and the Planning Board at separate public hearings. Following public input, the Historic Preservation Board votes on whether or not the proposed historic district meets the criteria listed in the Land Development Regulations of the City Code and transmits a recommendation on historic designation to the Planning Board and City Commission. If the Historic Preservation Board votes against the designation, no further action is required. If the Historic Preservation Board votes in favor of designation, the Planning Board reviews the designation report and formulates its own recommendation. The recommendations of both Boards, along with the designation report, are presented to the City Commission. Because in this instance the proposed ordinance involves an area less than ten (10) contiguous acres, the City Commission must hold one public hearing on the designation. Upon conclusion of the hearing, the City Commission can immediately adopt the ordinance with a 517 majority vote. 1. In accordance with Section 118-592 in the Land Development Regulations of the City Code, eligibility for designation is determined on the basis of compliance with the listed criteria set forth below. (a) The Historic Preservation Board shall have the authority to recommend that properties be designated as historic buildings, historic structures, Commission Memorandum of October 27,2010 First and Only Reading Public Hearing - Historic Designation Miami Beach Rod & Reel Club Page 4 of 12 historic improvements, historic landscape features, historic interiors (architecturally significant public portions only), historic sites or historic districts if they are significant in the historical, architectural, cultural, aesthetic or archeological heritage of the city, the county, state or nation. Such properties shall possess integrity of location, design, setting, materials, workmanship, feeling or association and meet at least one of the following criteria: (1) Association with events that have made a significant contribution to the history of the city, the county, state or nation; (2) Association with the lives of persons significant in the city's past history; (3) Embody the distinctive characteristics of an historical period, architectural or design style or method of construction; (4) Possesses high artistic values; (5) Represent the work of a master, serve as an outstanding or representative work of a master designer, architect or builder who contributed to our historical, aesthetic or architectural heritage; (6) Have yielded, or are likely to yield information important in pre- history or history; (7) Be listed in the National Register of Historic Places; (8) Consist of a geographically definable area that possesses a significant concentration of sites, buildings or structures united by historically significant past events or aesthetically by plan or physical development, whose components may lack individual distinction. (b) A building, structure (including the public portions of the interior), improvement or landscape feature may be designated historic even if it has been altered if the alteration is reversible and the most significant architectural elements are intact and repairable. 2. Staff finds that the pro~osed Miami Beach Rod & Reel Historic Site possesses intenritv of location, design, setting. materials. workmanship, feeling. or association for the following reasons: Satisfied; The construction of Club Lido on Hibiscus Island in 1925, only one year following the 1924 completion of Hibiscus Island by the Biscayne Bay Islands Company, was clearly significant in the successful development history of both Hibiscus and Palm Islands, as well as in the history of the City of Miami Beach. Not only was the Club Lido one of the very first buildings to be constructed on the Hibiscus Island, it was also the first social club ever to be established there, where it provided an almost immediate social and visual focal Commission Memorandum of October 27,2010 First and Only Reading Public Hearing - Historic Designation Miami Beach Rod & Reel Club Page 5 of 12 point in the center of Biscayne Bay. Furthermore, the design and construction of the Club Lido brought an architectural style of high aesthetic appeal and stature to the islands, as well as prominent local architects who were qualified to execute it. The proposed historic site, known since 1935 as the Miami Beach Rod & Reel Club, still possess the integrity of its original location on Hibiscus Island, despite more than eighty years of hurricanes, storms, and economic crises. Further, the original building still retains many of its historic materials, details, and workmanship as well as the feeling of its 1920s period of construction in Miami Beach. (a) Staff finds the proposed historic district to be eligible for historic designation and in conformance with the designation criteria for the following reasons: (1) Association with events that have made a significant contribution to the history of the citv, the county, state or nation; Satisfied; The Club Lido was directly associated with the first major land development "boomJJ period in Miami Beach, following World War One. It was further associated with the early successful creation of "man-made" islands in Biscayne Bay by dredging up the Bay bottom which yielded land fill for new islands as well as created deep channels for navigation in between. (2) Association with the lives of persons significant in the citv's past history; Satisfied; The proposed historic site is associated with the life of Mr. L. T. Highleyman, the President of the Biscayne lslands Company that created and developed Palm and Hibiscus lslands by purchasing the submerged (bay bottom) lands from the Trustees of the (State) Internal Improvement Fund, on January 18. 1918. (3) Embody the distinctive characteristics of an historical period, architectural or design style or method of construction; Satisfied; The original 1925 structure on the proposed historic site embodies the distinctive characteristics of the Mediterranean Revival Style of architecture, the style of choice used by successful developers in the mid-1920s period in Miami Beach as well as other areas of South Florida. The structure, incorporates wood frame construction with a smooth stucco finish, typical of the historical period, as well as robust corner towers (originally with three copper domes), multi-lite windows with original decorative moldings, a largely intact (but now concealed within the interior of the building) main entrance portico with four Tuscan style columns supporting a frieze panel, and a south porch overlooking the waterway, as well as several original interior decorative features in Commission Memorandum of October 27,2010 First and Only Reading Public Hearing - Historic Designation Miami Beach Rod & Reel Club Page 6 of 12 the main social hall, including columns with ornamental brackets and beams, raised center ceiling (originally a large retractable sky light for viewing the stars at night), a projecting balcony, and original stairs leading to a mezzanine level above. (4) Possess high artistic values; Satisfied; The remaining original 1925 building, with its robust corner towers transitioning from a square pedestals to the octagonal bases needed to support the former domes, together with the original Mediterranean Revival style decorative window moldings and the pleasing architectural proportions of the south elevation of the building, with its expansive porch and terrace overlooking the waterway, possess high artistic value. This value could be even more greatly enhanced by sensitive restoration of the missing domes as well as re-opening the original front entrance portico, with its Classical columns, and the removal of later inappropriate additions on the north side. (5) Represent the work of a master. serve as an outstandinrr or representative work of a master designer, architect or builder who contributed to our historical, aesthetic or architectural heritage; Satisfied; The original Club Lido, constructed in 1925, was designed by E.L. Robertson and L.R. Patterson, two very prominent local architects who also designed the Washington Storage Company (now known as the Wolfsonian) on Washington Avenue as well as the Netherlands Hotel on Ocean Drive. (6) Have vielded, or are likelv to yield information important in pre-history or history; Satisfied; The proposed Miami Beach Rod and Reel Club historic site yields important information in the history of development in Miami Beach and Hibiscus Island by presetving one of the earliest structures to be built on the newly created manmade island. The unique wood frame structure is informative of how a relatively low cost building, through the use of skillful design, could enhance the visual image of a neighborhood and attract adjacent development. Further, the existing original 1925 building informs us of the history of a "social club" operating during the time of Prohibition, as well as of the history of one of the oldest and most important sport fishing clubs in the United States; The Rod & Reel Club, which relocated from its temporary original site on Purdy Avenue in 1935, only six years after it was founded. (7) Be listed in the National Register of Historic Places; Commission Memorandum of October 27,2010 First and Only Reading Public Hearing - Historic Designation Miami Beach Rod & Reel Club Page 7 of 12 Partially satisfied; If its domes and original front entrance portico were to be restored, staff believes the original 1925 structure would be eligible for listing on the National Register of Historic Places. (8) Consist of a geonraphicallv definable area that possesses a significant concentration of sites, buildings or structures united bv historicallv significant past events or aestheticallv bv plan or phvsical development, whose components may lack individual distinction; Not Applicable (b) A building, structure (including the public portions of the interiorL improvement or landscape feature may be designated historic even if it has been altered if the alteration is reversible and the most significant architectural elements are intact and repairable. Satisfied; Many of the original significant architectural features of the 1925 club house structure remain substantially intact today, albeit some are concealed behind later layers of construction. Others could be accurately reconstructed based on historical documentation. PLANNING BOARD ANALYSIS OF THE PROPOSED DESIGNATION ORDINANCE In reviewing a request for an amendment to the Land Development Regulations of the City Code or a change in land use, the Planning Board shall consider the following: 1 Whether the proposed change is consistent and compatible with the comprehensive plan and any applicable neighborhood or redevelopment plans. Partiallv Consistent - The proposed historic designation is consistent with the Comprehensive Plan, specifically with the Historic Preservation Element of the Comprehensive Plan's Objective No. 1, which states: ". . . increase the total number of structures designated as historically significant from that number of structures designated in 1988, either individually or as a contributing structure within a National Register Historic Preservation District or a local Historic Preservation District." The building which is located within the RS-3, residential single family zoning district was constructed in 1925 as a social club and retained its non-conforming use until 2010. Adaptive rehabilitation of the existing clubhouse to a single family residence is required to be consistent with the surrounding neighborhood. 2. Whether the proposed change would create an isolated district unrelated to adjacent or nearby districts. Not Applicable Commission Memorandum of October 27,2010 First and Only Reading Public Hearing - Historic Designation Miami Beach Rod & Reel Club Page 8 of 12 3. Whether the change suggested is out of scale with the needs of the neighborhood or the city. Partiallv Consistent - The designation of this structure as a local historic site may encourage further rehabilitation that is compatible with the scale, characteristics, and needs of the surrounding neighborhood. 4. Whether the proposed change would tax the existing load on public facilities and infrastructure. Consistent - The LOS for the area public facilities and infrastructure should not be negatively affected, if at all, by the proposed amending ordinance. The building was built in 1925 as a social club. The non-conforming clubhouse use has since expired and the only permitted use for the property is single family residential. 5. Whether existing district boundaries are illogically drawn in relation to existing conditions on the property proposed for change. Not Applicable 6. Whether changed or changing conditions make the passage of the proposed change necessary. Partiallv Consistent - The nonconforming, 'social club' use of the property located at 218 South Hibiscus Drive has been idle since July of 2009, when the club membership vacated the structure. Changing economic and social priorities have created an environment in which this type of low intensity, non for profit club use at this location may no longer be viable. Planning Board finding: Although the Rod and Reel Club building possesses a special historic character, and its retention is important with respect to Historic Preservation goals, the Planning Board expressed the sentiment that requiring the retention and adaptive reuse of the historic portions of the existing structure would be an unrealistic requirement for a single-family property. 7. Whether the proposed change will adversely influence living conditions in the neighborhood. Partiallv Consistent - The proposed amendment should not adversely influence living conditions or the quality of life for the surrounding properties. An independent architectural analysis of the structure and site has determined that a wide variety of development schemes exist. According to the study conducted by Shulman + Associates, there are several viable options for converting the existing clubhouse into a single family home, including a single residence on the entire lot, or two separate residences if a Lot Split should be granted. Although the later north and east additions to the 1925 building have a serious adverse aesthetic as well as functional impact upon the immediate residential neighborhood as well as a highly negative impact on the original club building, the additions would not be considered historic features and could be removed Commission Memorandum of October 27,2010 First and Only Reading Public Hearing - Historic Designation Miami Beach Rod & Reel Club Page 9 of 12 and replaced by appropriately designed and sited new additions in association with the renovation and restoration of the original 1925 structure. The adaptive reuse of the structure with new additions as a single family home would likely positively influence living conditions in the neighborhood. 8. Whether the proposed change will create or excessively increase traffic congestion beyond the levels of service as set forth in the comprehensive plan or otherwise affect public safety. Consistent - As historic designation does not change the permitted land uses, the levels of service set forth in the Comprehensive Plan will not be affected. Likewise, public safety will not be affected by historic designation. The existing structure can no longer be used as a nonconforming social club and any rehabilitation of the building would result in a single family use. 9. Whether the proposed change will seriously reduce light and air to adjacent areas. Consistent - Historic designation normally results in the retention, rather than the reduction of light and air to adjacent properties. 10. Whether the proposed change will adversely affect property values in the adjacent area. Partiallv Consistent - As property values and value of construction have historically increased in the existing historic sites and districts, there is no evidence to suggest that designation would adversely affect property values in the area surrounding the proposed historic site. The adaptive reuse of the structure with new additions as a single family home would likely enhance property values in the immediately adjacent areas. 11. Whether the proposed change will be a deterrent to the improvement or development of adjacent property in accordance with existing regulations. Consistent - The proposed amendment will not change the development regulations for adjacent properties, which must comply with their own site specific development regulations. Furthermore, the proposed ordinance should not affect the ability for an adjacent property to be developed in accordance with said regulations. 12. Whether there are substantial reasons why the property cannot be used in accordance with existing zoning. Partially Consistent - The permitted land uses are not affected since the proposed amendment does not change the underlying zoning district for this property. It should be noted that the existing structure was built as a social club in 1925 and its use as a legal, nonconforming clubhouse has expired. Currently the only permitted use for the structure is single family residential. Commission Memorandum of October 27,2010 First and Only Reading Public Hearing - Historic Designation Miami Beach Rod & Reel Club Page 10 of 12 Planning Board findinq: Notwithstanding the findings contained in the City consultant's report indicating that the retention and adaptive reuse of the historic portions of the existing structure would be feasible, the Planning Board found that since the property could only be used in future as a single family home, such a requirement would amount to an undue burden. 13. Whether it is impossible to find other adequate sites in the city for the proposed use in a district already permitting such use. Not Applicable- ZONINGISITE DATA: Section 11 8-394 of the City Code states: No building, structure, equipment, fixtures or land, or portion thereof, used in whole or in part for a nonconforming use which remains idle or unused for a continuous period of six months, or for 18 months during any three- year period whether or not the equipment or fixtures are removed, shall again be used, except in conformity with the regulations of the district in which such building or land is located. Since its construction in 1925, the structure located at 218 South Hibiscus Drive had operated as a social club, a legally non-conforming use. In early July 2009, the Rod &Reel Club closed its operations and completely vacated the building, hence, discontinuing its legally non-conforming 'club' use in the RS-3 single family residential zoning district. After the non-conforming use is vacated for more than six months it cannot be resumed. Therefore, since the Rod & Reel Club property has not been used as a club since July of 2009, the permitted zoning use has reverted back to 'single family residential' for this site as of January 201 0. Legal Description: Lots 29 and 30, Block 3, Hibiscus Island, According to the Plat Thereof, as Recorded in Plat Book 8, Page 75, of the Public Records of Miami-Dade County, Florida. Zoning: RS-3 Single Family Residential Land Uses: Single family homes ANALYSIS The parcel located at 208 (aka 218) S. Hibiscus Dr. is currently zoned RS-3, Residential Single Family. The only permitted main use within the RS-3 zoning district is single- family detached dwelling. Since its construction in 1925, the structure located at 208 (aka 218) S. Hibiscus Dr. has been operated as a private club, a legally non-conforming use. Pursuant to Sec. 118-394, No building, structure, equipment, fixtures or land, or portion thereof, used in whole or in part for a nonconforming use which remains idle or unused for a continuous period of six months, or for 18 months during any three-year period whether or not the equipment or fixtures are removed, shall again be used, except in conformity with the regulations of the district in which such building or land is. located. Commission Memorandum of October 27,2010 First and Only Reading Public Hearing - Historic Designation Miami Beach Rod & Reel Club Page I1 of 12 The Rod & Reel Club closed its operations and completely vacated the building in early July 2009, when the membership held an auction and sold the contents of the building, hence, discontinuing its legally non-conforming private club use in the RS-3 single family residential zoning district. After the non-conforming use is vacated for more than six months it cannot be resumed. Therefore, since the Rod & Reel Club property has not been used as a club since July of 2009, the only permitted zoning use for this property is 'single family residential' as of January 2010. An independent architectural analysis of the structure, prepared by Allan Shulman and Associates, Architects, has determined that a wide variety of development schemes are available for the successful adaptive reuse of the original 1925 historic structure as a high end waterfront single family residence with appropriate additions, comparable in quality, amenity and cost to other new high end waterfront home recently constructed on the Beach. Further, an independent structural analysis prepared by Douglas Wood & Associates has concluded that it is feasible to restore the structure in a manner consistent with the current Florida Building Code. Based upon the historic design significance of the original surviving 1925 structure as well as its extraordinary history in the early development years of Miami Beach, the building is worthy of designation as an historic site. The adaptive reuse of the original 1925 portion of the Rod & Reel Club as an upscale single family residence would be consistent with the surrounding island neighborhoods on Hibiscus, Palm and Star Islands, thereby preserving a part of these islands most significant history while lending new value. FISCAL IMPACT In accordance with Charter Section 5.02, which requires that the "City of Miami Beach shall consider the long term economic impact (at least 5 years) of proposed legislative actions," this shall confirm that the City Administration evaluated the long term economic impact (at least 5 years) of this proposed legislative action. The proposed ordinance, if enacted, would not diminish the economic value of this property. According to the Miami-Dade County Property Appraiser, 218 S. Hibiscus Drive has a lot area of 31,500 square feet and an adjusted square footage of 11,443. The total City of Miami Beach property tax due for the Miami Beach Rod & Reel Club at 218 S. Hibiscus Drive is $32,743.79. The Property Appraiser has classified this property as land use category '001 5 Entertainment.' If converted to a single family residence the property would be allowed a maximum of 22,050 square feet with Design Review Board approval. An evaluation of a comparable size lot on Hibiscus Island suggests that if the property is adaptively reused, including the restoration of the original 1925 building, along with substantial additions, the taxable value would increase. For example according to Miami-Dade County property records the single family home located at 55 N. Hibiscus Drive has a lot area of 31,500 square feet and an adjusted square footage of 12,036. This total City of Miami Beach property tax for this property for 2009 is $38,959.15. Commission Memorandum of October 27,2010 First and Only Reading Public Hearing - Historic Designation Miami Beach Rod & Reel Club Page 12 of 12 The Administration notes that the property has lost its legal nonconforming use as institutional (clubhouse) and the only current permitted use for the site is single family residential. This is the case whether the structure is historically designated or not. Therefore, the Administration believes the fiscal impact is neutral. CONCLUSION As stated above, this proposed designation of the Miami Beach Rod & Reel Club as a local historic site is a somewhat difficult issue, as there are valid arguments both for designation and for denial. The Historic Preservation Board recommended designation of the property due to its historic value, and the Planning Board recommended that the proposed designation be denied, finding the requirement foi- retention and adaptive reuse of the existing structure to be unrealistic and an undue burden for a single-family property. The two opposing viewpoints must be weighed; does the historic value of the property as determined by the Historic Preservation Board outweigh the concern with respect to requirement for retention and adaptive reuse of the existing structure as a single family home as expressed by the Planning Board. JMG: JGG:RGL:WHC:DJT T:\AGENDA\201O\October 27\Regular\Rod & Reel Club-Historic Designation.Merno rev RGL2.docx ORDINANCE NO. AN ORDINANCE OF THE MAYOR AND ClN COMMISSION OF THE ClN OF MlAMl BEACH, FLORIDA, AMENDING THE LAND DEVELOPMENT REGULATIONS OF THE MlAMl BEACH ClN CODE; AMENDING SECTION 11 8-593, "HISTORIC PRESERVATION DESIGNATION"; AMENDING SECTION 118-593(E), "DELINEATION ON ZONING MAP"; AMENDING SECTION 118-593(E)(l), "HISTORIC PRESERVATION SITES (HPS)" BY DESIGNATING THE MIAMI BEACH ROD & REEL CLUB AT 218 SOUTH HIBISCUS DRIVE, AS AN HISTORIC SITE, AS MORE PARTICULARLY DESCRIBED HEREIN; PROVIDING THAT THE CITY'S ZONING MAP SHALL BE AMENDED TO INCLUDE THE MlAMl BEACH ROD & REEL CLUB HISTORIC SITE; ADOPTING THE DESIGNATION REPORT ATTACHED HERETO AS APPENDIX "A"; PROVIDING FOR INCLUSION IN THE LAND DEVELOPMENT REGULATIONS OF THE CITY CODE, REPEALER, SEVERABILIN, AND AN EFFECTIVE DATE. WHEREAS, on May 11, 2010, the City's Historic Preservation Board held a public hearing and voted unanimously (7-0) in favor of recommending that the City Commission designate the Miami Beach Rod & Reel Club as an Historic Site; and WHEREAS, on August 24,2010, the City's Planning Board held a public hearing and voted (5-2) against recommending the proposed designation; and WHEREAS, the City of Miami Beach Planning Department has recommended this amendment to the Land Development Regulations of the City Code; and WHEREAS, these recommendations of approval for the designation of the Miami Beach Rod & Reel Club as an Historic Site were based upon the information documented in the Designation Report prepared by the City of Miami Beach Planning Department attached hereto as AppendixUA." NOW, THEREFORE BE IT ORDAINED BY THE MAYOR AND ClN COMMISSION OF THE CITY OF MlAMl BEACH, FLORIDA: SECTION 1. DESIGNATION OF THE MIAMI BEACH ROD & REEL CLUB AS AN HISTORIC SITE. - That the certain area located on Lots 29 and 30, in Block 3, HIBISCUS ISLAND, as recorded in Plat Book 3, at Page 75, Public Records of Miami-Dade County, Florida; and having the legal description as described herein, is hereby designated as an Historic Site of the City of Miami Beach and shall be known as "Miami Beach Rod & Reel Club." That the Designation Report attached hereto as Appendix "A is hereby adopted. SECTION 2. AMENDMENT OF SUBSECTION 118-593(E). That Subsection (e), entitled "Delineation on Zoning Map," of Section 118-593, entitled "Historic Preservation Designation," of Division 4, entitled "Designation," of Article X, entitled "Historic Preservation," of Chapter 118, entitled "Administration and Review Procedures," of Subpart B of the Land Development Regulations of the City Code is hereby amended to read as follows: Subpart B. Land Development Regulations * * * Chapter 11 8. Administration and Review Procedures * * * Article X. Historic Preservation * * * Division 4. Designation * * * Section 1 18-593. Historic Preservation Designation. * * * (e) Delineation on zoning map. All sites and districts designated as historic sites and districts shall be delineated on the city's zoning map, pursuant to section 142-71, as an overlay district. Such sites and districts include: * * * a RS-3lHPS-14: The Miami Beach Rod & Reel Club Site, 218 South Hibiscus Drive, more particularly described as Lots 29 and 30, in Block 3, HIBISCUS ISLAND, according to the Plat thereof, recorded in Plat Book 8, at Page 75, of the Public Records of Miami-Dade Countv, Florida. SECTION 3. INCLUSION IN THE LAND DEVELOPMENT REGULATIONS OF THE CITY CODE. It is the intention of the City Commission, and it is hereby ordained that the provisions of this ordinance shall become and be made part of the Land Development Regulations of the Code of the City of Miami Beach as amended; and that the sections of this Ordinance may be renumbered or relettered to accomplish such intention. SECTION 4. AMENDMENT OF ZONING MAP. That the Mayor and City Commission hereby amend the Zoning Map of the City of Miami Beach as contained in the Land Development Regulations of the City Code by identifying the area described herein as HPS-I 4, Historic Preservation Site 14. SECTION 5. REPEALER. All ordinances or parts of ordinances in conflict herewith be and the same are hereby repealed. SECTION 6. SEVERABILIN. If any section, subsection, clause or provision of this Ordinance is held invalid, the remainder shall not be affected by such invalidity. SECTION 7. EFFECTIVE DATE. This Ordinance shall take effect on the day of 2010. PASSED and ADOPTED this day of ,2010. ATTEST: MAYOR CITY CLERK APPROVED AS TO FORM & LANGUAGE & FOR EXECUTION: - T:WGENDAEOlO\SEPTEMBER lS\REGULAR\ROD & REEL CLUB-HISTORIC DESIGNATION.ORD REV.DOC -.".------ ------ THURSDAY, AUGUST 12,2010 1 13NE *- a MIAMIBEACH ClTY OF MIAMI BEACH NOTICE OF PUBLIC HEARING HISTORIC DESIGNATION The City of Miami Beach proposes to adopt the following Ordinance: AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE ClTY OF MIAMI BEACH, FLORIDA, AMENDING THE LAND DEVELOPMENT REGULATIONS OF THE MIAMI BEACH CITY CODE; WENDING SECTION 118-593, 'WWISTORIC PRESERVATION DE~IGNATION"; AMENDING SECTION 118-593(E), "DELINEATION ON ZONING MAP"; AMENDING' SECTION 1182593IE) (I), u~~~~~~~ PRESERVAVION SITES (HPS)" BY DESlGNkTING ME MIAMI BEACH ROD &REEL CLUB AT 218 SOUTH HIBISCUS DRIVE, AS AN HISTORIC SITE, AS MORE PARTICVMLY DESCRIBED HEREIN; PROVIDING TWT THE CITY'S ZONrNG MAP SHALL BE AMENDED TO INCLUDE THE MIAMI BEACH ROD & .REEL CLUB HISTORIC SITE; AD~PTING THE DESIGNATION REPORT ATTACHED HERETO AS APPENDIX "A*;. PROVIDING FOR INCLUSlON IN THE LAND DEVELOPMENT REGULATIONS OF THE CITY CODE, REPEALER, SNERABILITY, AND AN EFFECTIVE DATE.. I PUBLIC NOTICE IS HEREBY GIVEN that a first and only reading public hearing on the Ordinancewill be held by the City Commission on Chambers, Third Floor, City Hall, 1700 Convention Center Drive, ~ihi Beach, Florida. All persons are invited to appear at this meeting or be repmnted by an agent, or to express their views in writing addressed to the Miami Beach Ci Commission c/o the Cii Clerk, 1700 Convention Center Drive, First Floor, City Hall, Miami Beach, Florida 33139. The ~rbinance and other related materials regarding the proposed historic district are available for public inspection during normal business hours in the City Clerk's Mnce. Inquiries may be directed to the Planning Department at (305) 673-7550. The hearing on this Ordinance may be continued at this mMng and, under su& ciroumstanoes, additional legal notice would rat be provided. Any personmay contact the City Clerk's Office at (305) 673-741 1 for information as to the status of the Ordinance as a result af the meeting. Putsuant to Section 286.0405, Fla. Stet., the City hereby advises the public that: If a person decides to appeal any decision made bv this Boaid with resDect to any r?iatter wnsideied at it9 meeting or its hearina. such person mu& insure that a verbatim record oi the pmceedings is made, which record includes the testimony &d evidence Gpon which the appeal is to be based. This notice does not cpnstitutt) consent by the Ci of the introduction or admlssion of otherwise ifladmlssible or inelelrant evidence, nor does it authorize challenges or appeals no3 otherwise allowed by law. To request this material in ac~esslble fd, sign language interpreters, Information oSr' access for persons with disabilities; andlor any acoommodat~on to reflew any document or partic~pate m any city-sponsored proceeding, pleasf, contact 305-60422489 (voice) or 305-673-721 8 0 five days in adknceto initiate your request. Tf users may also call 71 1 (Florida Relay Service) V\D 618) . THIS PAGE INTENTIONALLY LEFT BLANK COMMISSION ITEM SUMMARY Condensed Title: I An Ordinance amending Article Ill, Chapter 46 of the City Code entitled "Litter". Key Intended Outcome Supported: I Improve cleanliness of Miami Beach waterways and right-of-ways, especially in business areas. Supporting Data (Surveys, Environmental Scan, etc.): According to the 2009 Customer Satisfaction Survey, 83% of cleanliness assessments Citywide rated the City as clean or very clean. Issue: Shall the Mayor and City Commission amend the Ordinance? Item Summary/Recommendation: I It is in the interest of the wublic health, safetv, and welfare to reduce ~ollutants on the land and those that I have the potential to enter into the air and waters of the City. Leaf bldwers, when used to move debris into the City right-of-ways (ROW), streets, and stormwater system, can contribute to the spread of dust, fecal matter, pesticides, chemicals, fertilizers, and dirt onto adjoining properties and public ROW, contributing to unsightly litter and damage to City infrastructure and resources. The stormwater system drains rainwater from the City streets into adjacent water bodies via a system of drains and interconnected piping. Yard maintenance debris can clog the stormwater system and diminish its effectiveness during rain events. Debris that is blown into the public ROW by leaf blowers or other means can enter the City's municipal stormwater system and can contribute to water pollution and damage the delicate Biscayne Bay ecosystem. These amendments include: expanding the prohibitions on litter to include sweeping or throwing litter on private properties; clarifing the language of the Ordinance so it is clear that it shall be unlawful for any person to use leaf blowers, or any other means, to sweep, cast or throw, or cause to be cast or thrown, into any of the gutters, drains or sewers, or public ROW within the city or upon any adjacent property, any garbage, litter, paper, handbill trash, tree, plant, or grass cuttings, leaves, yard maintenance debris, or other objects or substances; and revising the definition of litter to include tree, plant, and grass cuttings, leaves or other yard maintenance debris in a gutter, drain, or sewer, or on any other public property, ROW. I THE ADMINISTRATION RECOMMENDS ADOPTING THE ORDINANCE AMENDMENT. Advisory Board Recommendation: Sustainability Committee July 20,201 0 and Neighborhoods1 Community Affairs Committee October 5,201 0, both endorsed the proposed amendments. City Clerk's Office Legislative Tracking: L Fernando Vazquez ext. 6399 :inancia1 Information: Sian-Offs: Source of Funds: I13 OBPl AGENDA ITEM RS H Financial Impact Summary: Account I 2 Total Amount MIAMIBEACH City of Miami Beach, 1700 Convention Center Drive, Miami Beach, Florida 33 139, www.miamibeachfl.gav COMMISSION MEMORANDUM TO: Mayor Matti Herrera Bower and Members of the City Com sion FROM: Jorge M. Gonzalez, City Manager DATE: October 27, 201 0 6 FIRST READING SUBJECT: AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MlAMl BEACH, FLORIDA, AMENDING CHAPTER 46 OF THE MIAMI BEACH CITY CODE, ENTITLED "ENVIRONMENT," BY AMENDING ARTICLE Ill THEREOF, ENTITLED "LITTER," BY AMENDING SECTION 46-92 TO CLARIFY AND PROVIDE FOR ADDITIONAL PROHIBITIONS AND DEFINITIONS FOR LITTER WITH REGARD TO LEAF BLOWERS AND YARD MAINTENANCE DEBRIS, AND CLARIFYING PENALTIES FOR CERTAIN LITTERVIOLATIONS; PROVIDING FOR REPEALER; SEVERABILITY; CODIFICATION; AND AN EFFECTIVE DATE. ADMINISTRATION RECOMMENDATION The Administration recommends that the City Commission approve the Ordinance amendment on first reading. BACKGROUND It is in the interest of the public health, safety, and welfare to reduce pollutants on the land and those that have the potential to enter into the air and waters of the City. Leaf blowers, when used to move debris into the City right-of-ways (ROW), streets, and stormwater system, can contribute to the spread of dust, fecal matter, pesticides, chemicals, fertilizers, and dirt onto adjoining properties and public rights-of-way, contributing to unsightly litter and damage to City infrastructure and resources. The stormwater system drains rainwater from the City streets into adjacent water bodies via a network of swales, gutters, drains and piping. When rain events occur, rainwater is intended to move through the stormwater system and drain the City to prevent flooding. Any debris that is blown into the public ROW by leaf blowers or other means has the potential to enter the stormwater system. Plant clippings, grass cuttings, leaves and other yard maintenance debris can be carried by rainwater into the stormwater system, potentially clogging the drains and diminishing the system's effectiveness during rain events. In addition, the stormwater system drains into Biscayne Bay and any debris in the system could contribute to water pollution and potentially damage the delicate ecosystem of the Biscayne Bay Aquatic Preserve. In addition, leaf blowers can temporarily suspend particulate matter such as dust, pollen, and chemical pollutants that may contribute to the health hazards such as asthma, respiratory diseases, and eye injuries due to the propulsion of debris. ANALYSIS The leaf blower ordinance amendment was sponsored by Commissioner Michael Gongora and referred by the City Commission to the Sustainability Committee. At the ~uly 20", 201 0 Sustainability Committee meeting, a motion was passed in support of the proposed amendments to Chapter46 of the City Code to address pollution caused by leaf blower use and recommend that the City Commission pass these amendments. City Commission Memo- Litter Amendments, First Reading October 27, 2010 Page 2 of 3 The following amendments are proposed to Chapter 46, Article Ill entitled "Litter": Expand the prohibitions on litter to include sweeping or throwing litter on private properties. Refine the language of the ordinance so it is clear that it shall be unlawful for any person to use leaf blowers, or any other means, to sweep, cast or throw, or cause to be cast or thrown, into any of the gutters, drains or sewers, or public rights-of-way within the city or upon any adjacent property, any garbage, litter, paper, handbill trash, tree, plant, or grass cuttings, leaves, yard maintenance debris, or other objects or substances. Clarify that the civil fine of a third or subsequent offense is $500. Revise the definition of litter to include tree, plant, and grass cuttings, leaves or other yard maintenance debris in a gutter, drain, or sewer, or on any other public property, ROW. The proposed amendments allow leaf blowers to be used in a legal manner to collect debris and trash; however, it makes it unlawful to use leaf blowers to discard debris into public or private property. Other sections of the Chapter 46, Article Ill entitled "Litter" remain unchanged. FISCAL IMPACT AND ENFORCEABILITY The Administration developed a preliminary fiscal impact analysis for the implementation of the proposed amendement to Chapter 46 of the City Code. The components associated with implementation and enforcement of this Ordinance are identified in three functional areas: (1) Code Compliance Officer Training (CCO); (2) Public Education and Community Outreach; and (3) Case Issuance and Processing. CCO Training will require the development of procedures, and three training modules to ascertain that all CCOs are effectively cross-trained regardless of shift assignments. Comprehensive training of CCOs and related staff is projected at approximately $2,000, to include recurring training as needed. Education and community outreach is proposed to include; direct mailing to residents ($445 per 1,000 postcards including postage), inclusion in Miami Beach Magazine and website (no cost), and direct CCO community outreach education with residents and landscape companies. In addition, Landscape CompaniesIGardeners will be provided with the new requirements while obtaining the annual licenselpermit requirements from the Licensing Division - Finance Department. Case process is forecasted at three violations per month, with an annual recurring cost of approximately $4,500 per year. Thus, the collective forecasted fiscal impact for the Code Compliance Division - Building Department will be of approximately $7,000 per year in the initial year, and of $4,000 in subsequent years. The proposed amendments allow for the continued use of leaf blowers in a legal manner to collect debris and trash; however, the amendments make it unlawful to use leaf blowers to discard debris into public or private property. Other sections of Chapter 46, Article Ill entitled "Litter" remain unchanged. The enforcement of this amendement shall require that the CCO witness the act. Therefore, the notices of violaton will be issued while an officer is on patrol, or engaged in other duties, and require witnessesing the violation in progress. City Commission Memo- Litter Amendments, First Reading October 27, 2010 Page 3 of 3 On October 5th, 2010, the NeighborhoodslCommunity Affairs Committee (NCAC) reviewed the proposed amendments to the Chapter 46 and commented that a significant internal educational component should accompany the implementation of the amendment, specifically to the City's Parks and Recreation Department employees. The NCAC approved the proposed amendments and recommended the item move to Commission for approval. CONCLUSION The Administration recommends that the Mayor and City Commission amend Chapter 46, entitled "Environment" by amending Article Ill, entitled "Litter" by amending Section 46-92 to clarify and provide for additional prohibitions on litter with regard to leaf blowers and yard maintenance debris. T:\AGENDA\201 O\October 27\Regular\Leaf Blower Ordinance Memo.doc ORDINANCE AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE ClTY OF MlAMl BEACH, FLORIDA, AMENDING CHAPTER 46 OF THE MlAMl BEACH CITY CODE, ENTITLED "ENVIRONMENT," BY AMENDING ARTICLE Ill THEREOF, ENTITLED "LITTER," BY AMENDING SECTION 46-92 TO CLARIFY AND PROVIDE FOR ADDITIONAL PROHIBITIONS AND DEFINITIONS FOR LITTER WITH REGARD TO LEAF BLOWERS AND YARD MAINTENANCE DEBRIS, AND CLARIFYING PENALTIES FOR CERTAIN LITTER VIOLATIONS; PROVIDING FOR REPEALER; SEVERABILITY; CODIFICATION; AND AN EFFECTIVE DATE. WHEREAS, the City declares that it is in the interest of the public health, safety, and welfare to reduce pollutants on the land and those that enter into the air and waters of the City; and WHEREAS, the discharge of yard maintenance debris into the City's storm drains and sewers by leaf blowing equipment and other similar devices diminishes the effective functioning of the City's sewer system and pollutes and damages the City's waterways and ecosystems; and WHEREAS, the spreading of debris, dust, fecal matter, pesticides, fungi, chemicals, fertilizers, and dirt onto adjoining properties and public rights-of-way by leaf blowing equipment and other similar devices, causes litter, erodes and degrades soils, and is a health hazard; and WHEREAS, the spreading of various airborne particles and potential pollutants from leaf blowing equipment and other similar devices also contributes to health hazards such as asthma and other respiratory diseases, and eye injuries due to the propulsion of debris and other matter from the high velocity air stream emitted from the equipment and other similar devices. NOW, THEREFORE, BE IT DULY ORDAINED BY THE MAYOR AND ClTY COMMISSION OF THE ClTY OF MlAMl BEACH, FLORIDA, AS FOLLOWS: SECTION 1. That Article Ill, entitled "Litter," of Chapter 46 of the Miami Beach City Code, entitled "Environment," is hereby amended as follows: CHAPTER 46 ENVIRONMENT * * * ARTICLE Ill. LITTER Sec. 46-92. Prohibitions on Litter; possession of glass or metal containers on beaches unlawful; sweeping or throwing litter on public and private properties unlawful; garbage containers required for take-out restaurants; rebuttable presumptions; civil fines for violations; seizure; removal; definitions; enforcement; appeals; liens. (a) It shall be unlawful for any person or benefactor to throw, discard, place or deposit, or cause to be thrown, discarded, placed, or deposited, litter in any manner or amount whatsoever in or on any public highway, sidewalk, road, street, alley, thoroughfare, beach, park, baywalk, beachwalk, cutwalk, or any other public place, except in containers or areas lawfully provided therefor. It shall be unlawful for any person to throw, discard, place or deposit any garbage, cans, bottles or containers in or on any freshwater lakes, rivers, streams, canals, or tidal or coastal waters within the city. In addition, it shall be unlawful for any person to throw, discard, place or deposit litter in any manner or amount whatsoever on any private real or personal property, unless prior consent of the owner has been given and unless such litter will not cause a public nuisance or be in violation of any other state or local laws, rules or regulations. (b) It shall be unlawful for any person to carry onto any beach within the city a glass or metal bottle or other glass or metal container. (c) It shall be unlawful for any person to use leaf blowers, or anv other means, to sweep, cast or throw, or cause to be cast or thrown, or discarded into any of the gutters, drains, w sewers, or public riclhts-of-wav within the city, or upon anv adiacent public or private real or personal propertv, any garbage, litter, paper, handbill, trash, tree, plant, or grass cuttings, leaves, vard maintenance debris, or other objects or substances. (d) All restaurants with take-out service shall have up to four garbage containers, as need requires, based on the determination of the city manager or his designee. The containers shall be located in front of and within 50 feet in each direction of the premises at locations approved by the city manager or his designee. These containers shall be kept in clean and sanitary condition at all times and shall be emptied daily or more frequently if necessary to prevent overflowing. The garbage containers required by this section are in addition to those required by chapter 90 of this Code. (e) The following civil fines shall be imposed for violations of this section except as provided in subsections (f) below. (1) First offense, $50.00 fine. (2) Second offense, $1 00.00 fine. (3) Third &fww or subsequent offense, $500.00 fine. In lieu of a fine, the special master may accept voluntary community service removing litter in the city equivalent to one hour of community service for each $5.00 of an imposed fine. If the community service is not completed within six months of an adjudication of guilt, the fine shall be reinstated. (f) If a violation of this section resulted from the throwing, discarding, placing, or depositing, or causing to be thrown, discarded, placed, or deposited, of commercial handbills as litter, then the following civil fines shall be imposed. The special master shall not have discretion to alter these prescribed penalties except as to the per handbill fine of $50.00 provided in (f)(l). (1) If the offense is the first offense, $1 00.00 fine plus $50.00 per handbill; (2) If the offense is the second offense within the preceding 12 months, $500.00 fine plus $50.00 per handbill; (3) If the offense is the third or subsequent offense within the preceding 12 months, $1,500.00 fine plus $50.00 per handbill. (4) Notwithstanding subsections (f)(l)-(3), no person or benefactor shall receive more than one offense within any one-day period, however, the $50.00 per handbill fine shall apply to all littered handbills found during that one-day period. (g) At any prosecution for violation of this section when the litter involved is a commercial handbill, if ten or more commercial handbills advertising the same business are found in plain view as litter under circumstances that make it more likely than not that the commercial handbills were placed there, or caused to be placed there, by an agent, employee, contractor, promoter, or other representative of the business advertised on the face of the commercial handbills, the special master shall apply a rebuttable presumption that the business advertised on the face of the handbills threw, discarded, placed or deposited the commercial handbills as litter. (h) If a person is found littering with commercial handbills, the code compliance officer is authorized to seize, for use as evidence in the prosecution of the violator before the special master, all commercial handbills in the possession of the violator. (i) The city may cause the removal, at the violator's expense, of all litter distributed or placed in violation of this section. Cj) Definitions: (1) Benefactor means the owner of the business advertised in the commercial handbill whose agent, employee, contractor, promoter, or other representative did or caused the throwing, discarding, placing or depositing. (2) Business means any commercial or industrial activity, entity, or event in or for which any goods or services are made, sold or offered for sale or other consideration, pecuniary or otherwise. (3) Handbill means any handbill, flyer, paper, document, dodger, circular, folder, booklet, letter, card, pamphlet, sheet, poster, sticker, banner, notice or other written, printed or painted matter or object that conveys any information, except that "handbill" shall not include a newspaper or its contents. (4) Commercial handbill means any handbill that conveys any information about any good or service provided by a business. Litter means any paper, handbill, commercial handbill, garbage, bottle caps, chewing gum, tobacco products, including, but not limited to, used and unused cigarettes, cigars, pipe or chewing tobacco, or other waste, including but not limited to tree, plant, and grass cuttings, leaves, or other yard maintenance debris, that has been placed or deposited on a public sidewalk, street, road, avenue, beach, swale, median, building, fence, wall, boardwalk, beachwalk, baywalk, cutwalk, park, or in a gutter, drain, or sewer, or on any other public propertv, right-of-wav, or place, or on any object located on public property, or on the kneewall, window ledge or sill of any public or private building, or on a motor vehicle, or on any other type of private real or personal property. Handbills and commercial handbills attached to a trash receptacle, but not within the trash receptacle in the usual manner, shall also be considered litter. (6) One day means a 24-hour period from noon to noon. (7) Person, benefactor, or owner include, within their respective meanings, either an individual or an entity. (k) Enforcement by code compliance officers; notice of violation. If a code compliance officer finds a violation of this article, such code compliance officer shall issue a notice of violation to the violator as provided in chapter 30. The notice shall inform the violator of the nature of the violation, amount of fine for which the violator may be liable, instructions and due date for paying the fine, notice that the violation may be appealed by requesting an administrative hearing within 20 days after service of the notice of violation, and that failure to do so shall constitute an admission of the violations and waiver of the right to a hearing. (I) Rights of violators; payment of fine; right to appeal; failure to pay civil fine or to appeal. (1) A violator who has been served with a notice of violation shall elect either to: a. Pay the civil fine in the manner indicated on the notice; or b. Request an administrative hearing before a special master appointed by the city commission upon recommendation of the city manager to appeal the decision of the code compliance officer which resulted in the issuance of the notice of violation. (2) The procedures for appeal by administrative hearing of the notice of violation shall be as set forth in sections 102-384 and 102-385 of the City Code. (3) If the named violator after notice fails to pay the civil fine or fails to timely request an administrative hearing before a special master, the special master shall be informed of such failure by report from the code compliance officer. Failure of the named violator to appeal the decision of the code compliance officer within the prescribed time period shall constitute a waiver of the violators right to administrative hearing before the special master. A waiver of the right to an administrative hearing shall be treated as an admission of the violation and penalties may be assessed accordingly. (4) Any party aggrieved by the decision of the special master may appeal the decision in accordance with law. (m) Recovery of unpaid fines; unpaid fines to constitute a lien; foreclosure. (1) The city may institute proceedings in a court of competent jurisdiction to compel payment of civil fines. (2) A certified copy of an order imposing a civil fine may be recorded in the public records and thereafter shall constitute a lien upon any other real or personal property owned by the violator and it may be enforced in the same manner as a court judgment by the sheriffs of this state, including levy against the personal property, but shall not be deemed to be a court judgment except for enforcement purposes. After two months from the filing of any such lien which remains unpaid, the city may foreclose or otherwise execute upon the lien. (n) Nothing in this article shall limit or restrict any condition or limitation imposed by the planning board. (0) Injunctive relief. As an additional means of enforcement, the city may seek injunctive relief and/or follow procedures to revoke a business tax receipt and/or certificate of use as set forth in chapters 14, I8 and 102 of the City Code when there are more than three offenses by the same violator within a calendar year. SECTION 2. Codification. It is the intention of the Mayor and City Commission of the City of Miami Beach, and it is hereby ordained that the provisions of this ordinance shall become and be made a part of the Code of the City of Miami Beach, Florida. The sections of this ordinance may be renumbered or re-lettered to accomplish such intention, and the word "ordinance" may be changed to "section," "article," or other appropriate word. SECTION 3. Severability. If any section, sentence, clause or phrase 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 ordinance. SECTION 4. Repealer. All ordinances or parts of ordinances in conflict herewith be and the same are hereby repealed. SECTION 5. Effective Date. This Ordinance shall take effect the day of September, 201 0. PASSED and ADOPTED this day of September, 201 0. ATTEST: Matti Herrera Bower, Mayor Robert Parcher, City Clerk Underline denotes additions denotes deletions F:\atto\TURN\ORDINANC\Prohibitions on Litter - Leaf Blowers (revised).docx COMMISSION ITEM SUMMARY Cohdensed Title: I A proposed ordinance amending the regulations for bed and breakfast inns by widening the eligibility I ( for alterations to buildings. I Key Intended Outcome Supported: Maintain strong growth management policies. Supporting Data (Surveys, Environmental Scan, etc Nearly half of all residential respondents, 47.6%, suggested the effort put forth by the City to regulate development is "about the right amount." Issue: - -- Should the City Commission adopt the proposed ordinance amendment modifying the bed and breakfast inns reaulations to permit non-residential structures within historic districts to be converted to I bed and breakfagt inns unde; specified conditions? Item Summary1Recommendation: I FIRST READING The proposed ordinance would permit a wider eligibility for bed and breakfast inns. Bed and Breakfast Inns are currently limited to structures originally constructed as a single-familyresidences. This ordinance would permit non-residential structures within historic districts, such as former temples or churches, to be converted to bed and breakfast inns. The original proposal included a provision to permit limited accessory uses such as private parties and catering hall events, but the provision was recommended for denial by the Planning Board, and has been removed from the ordinance. The Administration recommends that the City Commission approve the ordinance as presented, upon first reading, and set a second reading and public hearing for November 17, 201 0. Advisory Board Recommendation: I At the August 24, 2010 meeting the Planning Board reviewed the proposed ordinance, and 1 I recommended its approval with the elimination of the accessory party use provisions. Financial Impact Summary: Financial Information: I Not Applicable I City Clerk's Office Legislative Tracking: Richard Lorber Source of Funds: A.OEhlDA ITEM I?=- Amount 1 DATE ioo27-~a Account MIAMIBEACH City of Miami Beach, 1700 Convention Center Drive, Miami Beach, Florida 331 39, www.rniarnibeachfl.gov COMMISSION MEMORANDUM TO: Mayor Matti Herrera Bower and Members of the City Commission / FROM: Jorge M. Gonzalez, City Manager DATE: October 27, 201 0 SUBJECT: Ordinance Amendment - Bed & Breakfast Inns AN ORDINANCE OF THE MAYOR AND ClTY COMMISSION OF THE ClTY OF MIAMI BEACH, FLORIDA, AMENDING THE CODE OF THE ClTY OF MIAMI BEACH CODE, BY AMENDING CHAPTER 142, ZONING DISTRICTS AND REGULATIONS, ARTICLE V, SPECIALIZED USE REGULATIONS, DIVISION 7, BED AND BREAKFAST INNS, SECTION 142-1401. CONDITIONS FOR BED AND BREAKFAST INNS, BY MODIFYING THE CONDITIONS FOR BED AND BREAKFAST INNS TO WIDEN THE ELIGIBILITY FOR ALTERATIONS; PROVIDING FOR REPEALER, SEVERABILITY, CODIFICATION AND AN EFFECTIVE DATE. ADMINISTRATION RECOMMENDATION The Administration recommends that the City Commission approve the ordinance upon first reading, and set a second reading and public hearing for November 17, 2010. BACKGROUND A discussion of possible expansion of the Bed and Breakfast Inn regulations, was referred to the Land Use and Development Committee by Commissioner Jerry Libbin at the October 14, 2009 Commission meeting. The item was wrapped together with consideration of short term rentals of apartment units in zoning districts which did not currently permit transient occupancy. The short term rental issue was finally decided by the City in June, and the Bed and Breakfast issue was taken up by the Planning Board in August (see below). PLANNING BOARD ACTION At the August 24, 2010 meeting the Planning Board reviewed the proposed ordinance, and recommended its approval with the elimination of the provision which proposed to permit assembly uses (vote: 6-1, Stolar against). That is the version of the ordinance before the City Commission today. ANALYSIS Bed and breakfast inn is defined as a historic structure originally built as a single-family residence which is owner occupied and operated to provide guest rooms with breakfast and/or dinner included as part of the room rate. Section 142-1401 of the Land City Commission Memorandum Ordinance Amendment - Bed & Breakfast lnns October 27, 2010 Page 2 Development Regulations of the City Code details the conditions for permitting Bed and Breakfast Inns. The original rationale for the adoption of these Bed and Breakfast Inn regulations was to encourage the adaptive reuse of single family structures in newly created local historic districts, such as the Flamingo Park neighborhood. Since demolition of structures would be unlikely to be permitted, Bed and Breakfast lnns were seen as an alternative which could provide an economically viable use of these structures. To date, a small number of Bed and Breakfast lnns have been created under this provision. The referral of this proposed ordinance stems from a long-term discussion with Mr. Dan Davidson, the owner of "The Temple House", a former synagogue building that was converted several years ago to a single-family home, located at 1415 Euclid Avenue. Mr. Davidson has explored several alternative uses for this building, but the options are limited because this area is zoned RM-1 Residential Multi-Family Low Intensity, which only permits single-family homes, apartment buildings and Bed and Breakfast Inns. The current regulations would not permit the conversion the Temple House single family home into a Bed and Breakfast Inn, since subsection (3) specifies that the structure shall have originally been constructed as a single-family residence, and subsection (5) then refers to the original configuration of bedrooms and other features of the home. Since Mr. Davidson's existing single family home was created by converting a non-residential synagogue building, it does not exactly fit these requirements (although the property's building card shows that a single family home was originally built on the site, that building was demolished or reconfigured beyond any recognition as a home when the synagogue was constructed.) In order to modify the existing regulations to permit this type of structure to be converted to a bed and breakfast inn, the proposed ordinance adds a second option to the language of subsection (3) of the ordinance. This would permit conversion if "the existing structure is not classified by the City as an apartment building as defined in Section 114-1 of the City Code." In this way, other non-residential structures within historic districts could potentially be converted to bed and breakfast inns (an apartment building is defined a building with or without resident supervision occupied or intended to be occupied by more than two families living separately with separate cooking facilities in each unit.) Subsection (1) of the Bed and Breakfast lnns is also proposed for amendment by Planning Department staff, in order to bring the language of the ordinance into line with current nomenclature related to historic districts, contributing and non-contributing buildings. The old language referred to designated as "historic," but the correct terms have changed, and the amendment would clarify that. Finally, the ordinance as originally proposed by Mr. Davidson contained new language referring to accessory uses permitted in Bed and Breakfast Inns, and permitting assembly type uses in these structures under certain conditions. The Temple House has been used previously as a "party house," hosting private special events for a variety of corporate and entertainment purposes. This type of commercial usage is not permitted within single family homes, nor in any other permitted structure within the RM- I zoning district. In order for The Temple House to be able to be used for such activities, the Land Development Regulations would have to be amended in some fashion. City Commission Memorandum Ordinance Amendment - Bed & Breakfast Inns October 27, 2010 Page 3 The proposal to amend the Bed and Breakfast Inn regulations to permit limited assembly uses within them as conditional uses, consisting of private functions not open to the public, up until 12:OO midnight, was reviewed by the Planning Board at its August meeting. Planning Department staff had recommended that the proposed ordinance be approved without the provision to permit accessory party uses, and the Planning Board concurred. At the hearing, Mr. Davidson and his attorney both signaled their willingness to go forward to the Commission with the ordinance as recommended by the Planning Board, without the accessory party uses. CONCLUSION The Administration recommends that the City Commission approve the ordinance as presented, upon first reading, and set a second reading and public hearing for November 17,2010. T:\AGENDA\2010\0ctober 27\Regular\Bed & Breakfast Ord MEMO.docx ORDINANCE NO. AN ORDINANCE OF THE MAYOR AND CITY COMMlSlON OF THE CITY OF MIAMI BEACH, FLORIDA, AMENDING THE CODE OF THE CITY OF MIAMI BEACH CODE, BY AMENDING CHAPTER 142, ZONING DISTRICTS AND REGULATIONS, ARTICLE V, SPECIALIZED USE REGULATIONS, DIVISION 7, BED AND BREAKFAST INNS, SECTION 142-1401. CONDITIONS FOR BED AND BREAKFAST INNS, BY MODIFYING THE CONDITIONS FOR BED AND BREAKFAST INNS TO WIDEN THE ELIGIBILITY FOR ALTERATIONS; PROVIDING FOR REPEALER, SEVERABILIN, CODIFICATION AND AN EFFECTIVE DATE. WHEREAS, the Land Development Regulations allow for Bed and Breakfast lnns in certain zoning districts under certain conditions; and WHEREAS, a broadening of the conditions for Bed and Breakfast lnns may be desired in order to permit other buildings not built as single family homes but currently existing as non-apartment uses within historic districts; and WHEREAS, it would be necessary to amend this portion of the City Code to permit expanded eligibility for these buildings; NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA SECTION 1. That Miami Beach City Code, Chapter 142, Zoning Districts and Regulations, Article V, Specialized Use Regulations, Division 7, Bed and Breakfast Inns, Section 142-1401, Conditions for bed and breakfast inns, is hereby amended as follows: Sec. 142-1401. Conditions for bed and breakfast inns. Bed and breakfast inns are permitted with the following conditions: (1) The use shall be situated in a contributing building II . - I1 - historic preservation district. The use may also be situated in a noncontributing building I if it is restored to its original historic appearance and re-categorized as "contributina hk#ek." (2) The owner of the bed and breakfast inn shall permanently reside in the structure. (3) a, The structure shall have originally been constructed as a single- family residence; or b. The existins structure is not classified bv the City as an a~artment build in^ as defined in Section 114-1 of the Citv Code. c. The structure may have original auxiliary structures such as a detached - garage or servant's residence, but shall not have noncontributing multifamily or commercial auxiliary structures. (4) The structure shall maintain public rooms (living roomldining room) for use of the guests. (5) The size and number of guestrooms in a bed and breakfast inn shall conform to the following: a. The structure shall be allowed to maintain (or restore) the original number and size of bedrooms which, with the exception of rooms occupied by the owner, may be rented to guests. b. Historic auxiliary structures, such as detached garages and servants' residences, may be converted to guestrooms. New bedrooms constructed shall have a minimum size of 200 square feet and shall have a private bathroom. c. Architecturally compatible additions not exceeding 25 percent of the floor area of the historic building shall be permitted to accommodate emergency stairs, other fire safety requirements, and new bathrooms. Additions shall be consistent with required setbacks and shall not be located on primary or highly visible elevations. d. If there is evidence of interior alterations and original building plans are not available, the guestrooms shall be restored to the probable size and configuration as proposed by a preservation architect and subject to approval by the historic preservationldesign review board. (6) There shall be no cooking facilitieslequipment in guestrooms. One small refrigerator with maximum capacity of five cubic feet shall be permitted in each guestroom. All cooking equipment which may exist shall be removed from the structure with the exception of the single main kitchen of the house. (7) The bed and breakfast inn may serve breakfast andlor dinner to registered guests only. No other meals shall be provided. The room rate shall be inclusive of meal(s) if they are to be made available; there shall be no additional charge for any meal. Permitted meals may be served in common rooms, guestrooms or on outside terraces (see subsection 142- 1401 (9)). The meal service is not considered an accessory use and is not entitled to an outside sign. (8) Permitted meals may be served in areas outside of the building under the following conditions: a. Existing paved patios shall be restored but not enlarged. If no paved surface exists, one consistent with neighboring properties may be installed. b. The area shall be landscaped and reviewed under the design review process. Landscape design shall effectively buffer the outdoor area used for meals from adjacent properties. c. Any meal served outdoors shall be carried out from inside facilities. Outdoor cooking, food preparation, and/or servinglbuffet tables are prohibited. (9) The entire building shall be substantially rehabilitated and conform to the South Florida Building Code, property maintenance standards, the fire prevention and life safety code and the U.S. Secretary of the Interior's Standards for Rehabilitation of Historic Buildings, as amended. In addition, the entire main structure shall have central air conditioning and any habitable portion of auxiliary structures shall have air conditioning units. (10) Building identification sign for a bed and breakfast inn shall be the same as allowed for an apartment building in the zoning district in which it is located. (1 1) The maximum amount of time that any person other than the owner may stay in a bed and breakfast inn during a one-year period shall not exceed three months. (12) The required off-street parking for a licensed bed and breakfast inn shall be the same as for a single-family residence. There shall be no designated loading zones on any public right-of-way and required parking spaces shall not be constructed on swales, public easements or rights-of- way. SECTION 2. REPEALER. All ordinances or parts of ordinances and all sections and parts of sections in conflict herewith are hereby repealed. SECTION 3. CODIFICATION. It is the intention of the City Commission, and it is hereby ordained that the provisions of this ordinance shall become and be made part of the Code of the City of Miami Beach as amended; that the sections of this ordinance may be renumbered or relettered to accomplish such intention; and that the word "ordinance" may be changed to "section1' or other appropriate word. SECTION 4. SEVERABILITY. If any section, subsection, clause or provision of this Ordinance is held invalid, the remainder shall not be affected by such invalidity. SECTION 5. EFFECTIVE DATE. This Ordinance shall take effect ten days following adoption. PASSED AND ADOPTED this day of 201 0. MAYOR ATTEST: CITY CLERK First Reading: Second Reading: Verified by: Richard Lorber, AlCP Acting Planning Director APPROVED AS TO FORM AND LANGUAGE> FOR EXECUTION T:MGENDA\2010\0ctober 27Regular\Bed and Breakfast Ordinance ORD rev.doc COMMISSION ITEM SUMMARY Condensed Title: A Proposed Ordinance Amendment specifying requirements for consultant reports to be in writing, to be submitted by a specified deadline, and for the author of said reports to be present at public hearing <ey Intended Outcome Supported: Maintain strong growth management policies. Supporting Data (Surveys, Environmental Scan, etc Nearly half of all residential respondents, 47.6%, suggested the effort put forth by the City to regulate development is "about the right amount." Issue: Should the City Commission adopt the proposed ordinance amendment setting additional requirements for consultant reports submitted with development approval applications. Item SummarylRecommendation: I FIRST READING The proposed ordinance requires all studies and reports to be provided in written format, sets a deadline of no later than 10 days prior to the public hearing to submit such reports, sets a deadline of no less than 5 days before the public hearing for rebuttal reports submitted by opponents' consultants to be submitted to the City and renders reportslstudies inadmissible for that public hearing if not submitted by the deadline, or waived of this inadmissibility by a 517 vote of the land use board, and requires consultants or experts submitting reportslstudies for consideration at public hearings to appear at the public hearing in order to allow for questions from the Board andlor cross-examination, unless waived by a 517 vote of the applicable board. The Administration recommends that the City Commission approve the ordinance upon first reading, and set a second reading and public hearing for November 17,2010. Advisory Board Recommendation: I At the August 24, 2010 meeting the Planning Board reviewed the proposed ordinance, and 1 I recommended its approval. I Financial Impact Summary: I Financial Information: I Not ~~~licable- I City Clerk's Office Legislative Tracking: I Richard Lorber Account AMIBEACH Amount Source of Funds: m73 OBPl AGENDA BTEM Rss DATE I 0 27- la 1 2 Total MIAMIBEACH City of Miami Beach, 1700 Convention Center Drive, Miami Beach, Florida 331 39, www.miarnibeachfl.gov COMMISSION MEMORANDUM TO : Mayor Matti Herrera Bower and Members of the City Commission , FROM: Jorge M. Gonzalez, City Manager rn DATE: October 27, 201 0 / i L,' w SUBJECT: Ordinance Amendment - Use of Consultants for Development Approval AN ORDINANCE OF THE MAYOR AND ClTY COMMISSION OF THE ClTY OF MIAMI BEACH, FLORIDA, AMENDING THE CODE OF THE CITY OF MIAMI BEACH, BY AMENDING CHAPTER 118, "ADMINISTRATION AND REVIEW PROCEDURES," ARTICLE 1, "IN GENERAL," SECTION 118-6, "USE OF, AND COST RECOVERY FOR, CONSULTANTS FOR APPLICATIONS FOR DEVELOPMENT APPROVAL," BY SPECIFYING REQUIREMENTS FOR REPORTS TO BE IN WRITING, TO BE SUBMITTED BY A SPECIFIED DEADLINE, AND FOR THE AUTHOR OF SAID REPORTS TO BE PRESENT AT PUBLIC HEARING; PROVIDING FOR REPEALER; CODIFICATION; SEVERABILITY; AND AN EFFECTIVE DATE. ADMINISTRATION RECOMMENDATION The Administration recommends that the City Commission approve the ordinance upon first reading, and set a second reading and public hearing for November 17, 201 0. BACKGROUND During the City Commission adoption of the Consultant Review Fee Ordinance on March 10, 2010, a memo was submitted by Dr. Morris Sunshine, recommending several additional policies. The Commission, as a separate motion, referred to the Land Use and Development Committee and then to Planning Board three of the proposals. At the April 28, 2010 meeting of the Land Use and Development Committee, the Committee directed staff to begin preparation of a second ordinance, to be brought back to the Committee. The Committee then reviewed the draft at the June 21, 2010 LUDC meeting, and referred it to the Planning Board for review. Attached is the draft ordinance incorporating those points. PLANNING BOARD ACTION At the August 24, 2010 meeting the Planning Board reviewed the proposed ordinance, and recommended its approval. City Commission Memorandum Ordinance Amendment - Use of Consultants for Development Approval Ocfober 27, 2010 Page 2 ANALYSIS The Consultant Review Fee Ordinance now requires applicants to either have the required technical studies commissioned by the City, or, alternatively, require the applicant to pay for the cost of the City's independent expert review of the applicant's expert study. The additional points raised to the LUDC are: 1. All expert reports, including those submitted as part of a progress report hearing, shall be in writing; 2. Expert reports shall be submitted to the planning department at least 10-days before the land use board meets to consider that case; and, 3. Authors of technical reports shall appear at hearings at which their technical reports are considered in order to answer questions from the members of the land use board, the city staff, or the public. Although the Planning Department has found that generally all required expert reports submitted by applicants are in writing, staff has no objection to codifying this requirement. The ordinance is proposed to be amended as follows: All required studies and/or reports, including those required by a Board, shall be provided to the City in. written format, supplemented with digital format when available. Likewise, codifying a deadline for required reports to be submitted to the City is also simply formalizing the existing policies of the Planning Department and the Land Use Boards. Note that the proposed ordinance contains requirements for both applicant's reports and rebuttal reports. The text is proposed to read as follows: Reports and/or studies shall be submitted to the City no later than 10 days prior to the public hearing at which they may be considered. Rebuttal reports submitted by opponents' consultants shall be submitted to the City no less than 5 days before the public hearing. Failure to meet these deadlines shall result in the subject reportlstudy being deemed inadmissible for that public hearing, subject to a waiver of this inadmissibility by a 517 vote of the land use board. Finally, the suggestion that was made to codify a requirement that all experts submitting written reports must personally appear before the Board articulates the goal of the Board and Planning Department staff to have professional staff and allied consultants available for testimony during Planning Board public hearings. However, as explained at the previous LUDC meeting, in practical terms this may be difficult to implement at all times, given the possibility of illness, vacation, travel difficulties, etc. In the past, the Boards have used their judgment and common sense to decide whether the proceedings should be postponed based on these circumstances, or, conversely, if the matter is able to be decided despite the physical absence of a staff member or consultant. Therefore the text of the proposed ordinance includes a waiver provision, as follows: Consultants or experts submitting reportslstudies for consideration at public Cify Commission Memorandum Ordinance Amendment - Use of Consultants for Development Approval Ocfober 27, 2010 Page 3 hearings must appear at the public hearing in order to allow for questions from the Board andlor cross-examination. This provision may be waived by a 517 vote of the applicable board, authorizing the reporVstudy to be sufficient for the purposes of the subject public hearing. Planning Department staff also notes that the Consultant Fee Ordinance has only just been in effect for three months, and that implementation of the ordinance has been somewhat challenging. In discussions at the Land Use and Development Committee, this with topic was explored, and the recommendation was that extending the notice period for the Land Use Board's public hearings from 15 days to 30 days will make it easier for staff to get the required studies and reviews performed in time for the scheduled public hearings. The LUDC agreed and requested that staff bring forward that ordinance extending the notice period as soon as possible. An ordinance is being prepared to implement that and will be reviewed by the Planning Board at an upcoming meeting. Staff welcomes any other suggestions from the Board on how we might further refine and streamline this process. CONCLUSION The Administration recommends that the City Commission approve the ordinance upon first reading, and set a second reading and public hearing for November 17, 2010. T:\AGENDA\201O\October 27\Regular\Consultant Fee addl Ord MEMO.docx ORDINANCE NO. AN ORDINANCE OF THE MAYOR AND ClTY COMMISSION OF THE ClTY OF MlAMl BEACH, FLORIDA, AMENDING THE CODE OF THE ClTY OF MlAMl BEACH, BY AMENDING CHAPTER 118, "ADMINISTRATION AND REVIEW PROCEDURES," ARTICLE 1, "IN GENERAL," SECTION 118-6, "USE OF, AND COST RECOVERY FOR, CONSULTANTS FOR APPLICATIONS FOR DEVELOPMENT APPROVAL," BY SPECIFYING REQUIREMENTS FOR REPORTS TO BE IN WRITING, TO BE SUBMllTED BY A SPECIFIED DEADLINE, AND FOR THE AUTHOR OF SAID REPORTS TO BE PRESENT AT PUBLIC HEARING; PROVIDING FOR REPEALER; CODIFICATION; SEVERABILITY; AND AN EFFECTIVE DATE. WHEREAS, the City Commission adopted the Consultant Fee Ordinance at its meeting of March 10, 201 0; and, WHEREAS, additional points have been raised regarding requirements for expert reports to be in writing, to be submitted by specified deadlines, and for the authors of such reports to be present at public hearings; and WHEREAS, the Land Use and Development Committee considered this matter at its meeting of April 28,2010, and requested that an ordinance be drafted to address these points; NOW, THEREFORE, BE IT HEREBY ORDAINED BY THE MAYOR AND MEMBERS OF THE COMMISSION OF THE ClTY OF MlAMl BEACH, FLORIDA, AS FOLLOWS: SECTION ONE. Chapter 118 of the Land Development Regulations, Part II, of the Code of the City of Miami Beach, Section 118-6 is hereby amended as follows: Sec. 118-6. USE OF, AND COST RECOVERY FOR, CONSULTANTS FOR APPLICATIONS FOR DEVELOPMENT APPROVAL. (a) Purpose and Summary. The City Commission declares that new procedures are required to provide for preparation and review of traffic and other technical studies and/or reports to restore and instill confidence in the development approval process. Further, such new procedures are necessary to confirm that adverse effects of development are adequately evaluated for property owners, citizens, residents and taxpayers in the City of Miami Beach. The new procedures will provide for the creation and maintenance of an approved list of qualified consultants to provide impartial expertise for preparation and/or review of studies and reports required for assessment of impacts of applications for development approval, upon which applicants for development approval, affected citizens, and the City can rely. (b) Consultant list. The City's Procurement Division shall maintain a list of approved consultants of various specialties available to prepare andlor review studies and reports required for applications for development approval. (c) For purposes of this Section, "Application for development approval' shall mean any application for approval by a City land use board (Planning Board, Board of Adjustment, Historic Preservation Board, Design Review Board). (d) Requirements for selection of a City consultant and procedures for payment. Prior to the applicant submitting an application for development approval, the applicant shall meet with City staff to determine the types of studies andlor reports required for the proposed project, as well as the methodology to be followed as part of the production of the study. (i) When an applicant is required to submit, as part of an application for development approval, a traffic or any other technical study andlor report, the applicant may elect either: A. to authorize the City to commission the studylreport, to be prepared by a City-approved consultant, selected by City staff from the approved list maintained by the Procurement Division; or, B. to prepare a required studylreport using its own consultant. (ii) If an applicant elects to prepare a required studylreport using its own consultant, then the City shall review the studylreport, and shall retain a consultant from the City's approved list having the necessary expertise to perform such review. The applicant shall be responsible for all costs associated with the City's consultant review, and shall pay for the costs associated with the City's consultant review prior to proceeding to approval of the application by the applicable land use board. However, if the applicant elects to authorize the City to commission the studylreport, to be prepared by a City-approved consultant, selected by City staff from the approved list maintained by the Procurement Division, then the applicant shall only be responsible for the costs associated with the consultant's preparation of the studylreport; no additional consultant review fees shall be required. (iii) If an applicant elects to authorize the City to retain a consultant from the City's approved list for the preparation of a required study andlor report, then the procedure shall be as follows: A. City staff shall select a qualified consultant from the City's approved list (i.e. with the required knowledge, skill andlor expertise required for the particular studylreport). B. City staff shall obtain a quote from the selected consultant for the particular studylreport and shall transmit same to applicant. C. The quote shall be based on fair market value and include a "not to exceed" amount that is inclusive of all charges and fees, as required to prepare and complete the work. D. If applicant accepts the quote and elects to proceed with the work using the City's consultant then, prior to commencement of any work by the selected consultant, City staff shall require the applicant to deposit with the City an amount equal to the "not to exceed" amount of the quoted cost. E. The City shall earn no additional fee as a result of applicant's use of the approved consultant. F. Notwithstanding anything in this Section, the applicant shall be solely responsible for all costs and fees associated with the consultant's preparation of the required studylreport (including, without limitation, the consultant's fee). (iv) If an applicant elects to prepare a required studylreport using its own consultant, then the City shall retain a consultant from the City's approved list having the necessary expertise and time to review the studylreport. (v) The procedures for selection of, and payment for, a City consultant retained under subsection (iv) above shall be the same as those for selectionlpayment of a City consultant by an applicant, as set forth in subsection (d)(iii)(A)-(F), with the applicant being solely responsible for payment of any and all costs and fees associated with the City consultant's review (of applicant's studylreport). e. In no event shall the City be held liable, whether to applicants andlor third - parties, for any work andlor services rendered by any consultant on the City's approved list, andlor otherwise in connection with a consultant's preparation or review of any study andlor report contemplated herein. fi Expert Reports and Appearances i. All required consultant or expert studies andlor reports, includinq those - requested by a Board, shall be provided to the Citv in written form, supplemented with digital format when available. ii. Applicant's reports andlor studies shall be submitted to the City no later than - 10 davs prior to the public hearinq at which they are to be considered. Rebuttal reports submitted by opponents' consultants shall be submitted to the Citv no less than 5 davs before the public hearinq. Failure to meet these deadlines shall result in the subiect reportlstudy being deemed inadmissible for that public hearina, subiect to a waiver of this inadmissibility by a 517 vote of the applicable board. iii. Consultants or experts submittins reportslstudies for consideration at public - hearinqs must appear at the public hearinq in order to allow for questions from the Board andlor cross-examination. This provision may be waived by a 517 vote of the applicable board, authorizinq the reportlstudy to be sufficient for the purposes of the subiect public hearinq. SECTION TWO. REPEALER. All ordinances or parts of ordinances and all section and parts of sections in conflict herewith be and the same are hereby repealed. SECTION THREE. CODIFICATION. It is the intention of the City Commission, and it is hereby ordained that the provisions of this ordinance shall become and be made part of the Code of the City of Miami Beach as amended; that the sections of this ordinance may be renumbered or relettered to accomplish such intention; and that the word "ordinance" may be changed to "section" or other appropriate word. SECTION FOUR. SEVERABILITY. If any section, subsection, clause or provision of this Ordinance is held invalid, the remainder shall not be affected by such invalidity. SECTION FIVE. EFFECTIVE DATE. This Ordinance shall take effect ten days following adoption. PASSED and ADOPTED this day of ,2010. ATTEST: MAYOR CITY CLERK First Reading: Second Reading: APPROVED AS TO FORM AND LANGUAGE & FOR EXECUTION Verified by: Acting Planning Director T:\AGENDA\2010\0ctober 27\consultant fee add1 Ordinance 0RD.docx COMMISSION ITEM SUMMARY Condensed Title: 1 A proposed ordinance amendment defining "religious institution," creating a 40th street religious I institution overlay district, requiring conditional use approval for religious institutions in the 40th street overlay district, specifying parking and development regulations for the above, and adding review criteria for religious institutions. Key Intended Outcome Supported: I Maintain strong growth management policies. Supporting Data (Surveys, Environmental Scan, etc Nearly half of all residential respondents, 47.6%, suggested the effort put forth by the City to regulate development is "about the right amount." Issue: Should the Commission address the specific issue of existing religious institutions on the 40th Street by the creation of a religious institution overlay district? Item SummarylRecommendation: I FIRST READING The proposed ordinance defines a religious institution overlay district, specifying the district as those properties with a lot line on the south side of 40th Street, between Chase Avenue to the west and Pine Tree Drive to the east (see attached graphic map). The ordinance amends the Single Family Residential zoning district regulations, by permitting religious institutions within the overlay district, in existing rehabilitated structures or new construction, as conditional uses, and specifies development regulations to be compatible with surrounding single family homes. The Administration recommends that the City Commission approve the ordinance upon first reading, and set a second reading and public hearing for November 17,2010. Advisory Board Recommendation: 1 At the September 28, 2010 meeting the Planning Board recommended approval of the proposed 1 ordinance. The Board also recommended that the property known as the "Kollel" located at 3767 Chase Avenue, adjacent to the proposed overlay district to the south of Temple Beth Israel, be included in the overlay district at some time in the future. Financial Information: I I I Financial Impact Summary: Source of Funds: - OBPl I Not Applicable I 1 Amount I I Total I I City Clerk's Office Legislative Tracking: I Richard Lorber Account ~TaAent Director 1 Asgistant City AGENDA ITEM R% MIAMIBEACH City of Miami Beach, 1700 Convention Center Drive, Miami Beach, Florida 33 139, www.miamibeachfl.gov COMMISSION MEMORANDUM TO: Mayor Matti Herrera Bower and Members of the City Commission FROM: Jorge M. Gonzalez, City Manager cX-77 DATE: October 27, 201 0 SUBJECT: Ordinance Amendment - 4oth Street Religious Overlay District AN ORDINANCE OF THE MAYOR AND ClTY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, AMENDING THE ClTY CODE, BY AMENDING CHAPTER 114 OF THE CITY CODE, "ZONING DISTRICTS AND REGULATIONS," SECTION 114-1, "DEFINITIONS," DEFINING "RELIGIOUS INSTITUTION"; AMENDING CHAPTER 142, "ZONING DISTRICTS AND REGULATIONS," ARTICLE Ill, 'OVERLAY DISTRICTS," CREATING DIVISION 8, "40TH STREET OVERLAY," AND BY ADDING SECTIONS 142-858 "LOCATION AND PURPOSE," 142-859 "COMPLIANCE WITH REGULATIONS," REQUIRING CONDITIONAL USE APPROVAL FOR RELIGIOUS INSTITUTIONS IN THE 4oTH STREET OVERLAY DISTRICT, AND 142-860 "OFF-STREET PARKING REGULATIONS;" AND AMENDING ARTICLE II, "DISTRICT REGULATIONS," DIVISION 2 "RS-1, RS-2, RS-3, RSQ SINGLE- FAMILY RESIDENTIAL DISTRICTS," SECTION 142-103 "CONDITIONAL USES," TO ADD RELIGIOUS INSTITUTIONS AS A CONDITIONAL USE FOR PROPERTIES IN THE 4oTH STREET OVERLAY DISTRICT; AND AMENDING ARTICLE IV, "SUPPLEMENTARY DISTRICT REGULATIONS," DIVISION 4 "SUPPLEMENTARY YARD REGULATIONS," SECTION 142-1 131 (d) "GENERALLY," TO EXEMPT PROPERTIES IN THE 4oTH STREET OVERLAY DISTRICT FROM ADDITIONAL 50 FEET MINIMUM SIDE YARD REQUIREMENT FOR PUBLIC AND SEMI-PUBLIC BUILDINGS; AND AMENDING CHAPTER 118 OF THE ClTY CODE, "ADMINISTRATION AND REVIEW PROCEDURES," ARTICLE IV, "CONDITIONAL USE PROCEDURES," SECTION 118-192, "REVIEW GUIDELINES," TO ADD REVIEW CRITERIA FOR RELIGIOUS INSTITUTIONS; PROVIDING FOR CODIFICATION; REPEALER; SEVERABILIN; AND AN EFFECTIVE DATE. ADMINISTRATION RECOMMENDATION The Administration recommends that the City Commission approve the ordinance upon first reading, and set a second reading and public hearing for November 17, 2010. BACKGROUND On July 14, 2010, the City Commission referred a discussion of a possible overlay district for religious institutions on 40th Street to the Land Use And Development Cify Commission Memorandum Ordinance Amendmenf - 4dh Sfreef Religious Overlay District October 27, 2010 Page 2 Committee and the Planning Board, at the request of both Commissioner Edward L. Tobin and Commissioner Jonah Wolfson. LAND USE AND DEVELOPMENT COMMITTEE On July 26, 2010, the Land Use Committee discussed the proposal. Attorney Michael Larkin introduced the item, and discussed the need for the creation of an overlay district on 40th Street to accommodate the existing religious institutions on that street. There are at least two major religious institutions on that street, as well as a number of unlicensed but longstanding religious institutions located there. The Committee discussed the need for these types of institutions in the 40" Street area. First Assistant City Attorney Gary Held discussed the latest Federal legislation in the area of freedom of worship (RLUIPA) and advised that the City should try to accommodate this request so permits can be issued for improvements to such properties. At the conclusion of the discussion, the Committee voted 3-0 to refer the matter to the Planning Board. PLANNING BOARD ACTION At the September 28, 2010 meeting the Planning Board reviewed the proposed ordinance, and recommended its approval. The Board also recommended that the property known as the "Kollel" located at 3767 Chase Avenue, adjacent to the proposed overlay district to the south of Temple Beth Israel, be included in the overlay district at some time in the future. ANALYSIS The proposed ordinance is designed to do several things. It will address the specific issue of existing religious institutions on 4oth Street by defining a religious institution overlay district, within which existing religious institutions in that area that do not currently have the required building and zoning approvals from the City can be approved through a Conditional Use process, allowing their continuation and possible construction of additions with proper permits. It amends the Single Family Residential zoning district regulations list of uses, by adding as a Conditional Use religious institutions located in the 40th Street Overlay. The overlay district is defined as those properties with a lot line on the south side of 40th Street, between Chase Avenue to the west and Pine Tree Drive to the east (see attached graphic map). Within this district, religious institutions, in existing rehabilitated structures or new construction, will be permitted as conditional uses. The ordinance also specifies that all new construction or additions to existing structures associated with these institutions be compatible with the scale of the surrounding residential neighborhood and must be designed to maintain a residential, single family, character. This would be ensured by requiring that permits for new construction, alterations or additions to existing structures associated with these institutional uses be subject to design review by the planning director or designee. All of the development regulations governing setbacks, building heights and other physical factors would continue to be the same as for all single family residential districts. It sets limited parking requirements for these uses, provided that there is one or more public parking lot(s) andlor garage(s) within 500 feet of the subject property, which applies to the entire strip along 4oth Street. For adaptive reuse and limited expansion (less than 50%) of existing buildings, there will be no additional parking requirement. However, existing required City Commission Memorandum Ordinance Amendment - 4dh Street Religious Overlay District October 27. 201 0 Paae 3 than 50%) the parking requirement will be two spaces, the same as for a single-family detached dwelling. Finally, it eliminates the 50 feet side yard setback that is otherwise required for schools, libraries, religious institutions, and other public buildings and private structures which are publicly used for meetings in residential districts, since these uses will already abut each other on the side yards. The ordinance also proposes to bring the Land Development Regulations more in conformity with RLUIPA by specifically defining religious institution for purposes of zoning regulation, and by creating objective criteria for the conditional use reviews by the City's Planning Board. Definition of Religious lnstitution The proposed ordinance includes a specific definition for Religious Institution. A Religious Institution will be defined as a use where an establishment, organization or association conducts religious prayer or activity that is open to members and/or the general public, and may be accompanied by accessory uses customarily associated with religious institutions such as but not limited to education classes, youth centers, day care, offices, and rooms for licensed catering of life cycle or other gatherings or celebrations (e.g., weddings, confirmations, and coming-of-age events). It specifically notes that a group privately assembling for worship, prayer or religious service in a private home or dwelling in which at least one member of the group resides, is not a religious institution, even if life cycle rituals are included in the service, including weddings, confirmations, and coming-of-age (such as bar or bat-mitzvah) observances and meals accompany the service. This language is in conformity with our understanding of the Federal RLUIPA legislation. Objective Review Criteria Since the Courts are requiring local governments to use objective criteria when reviewing applications for entities such as religious institutions, the proposed ordinance includes a new set of review criteria drafted by the City Attorney's Office to be in accord with such requirement. These include the following: 1. Whether a proposed operations plan has been provided, including hours of operation, number of employees, and other operational characteristics pertinent to the application, and that such plan will mitigate any adverse impacts to adjoining and nearby properties, and neighborhood 2. Whether a plan for the delivery of supplies has been provided, including the hours of operation for delivery trucks to come into and exit from the neighborhood and how such plan will mitigate any adverse impacts to adjoining and nearby properties, and neighborhood. 3. Whether the design of the proposed structure is permitted by the regulations in the zoning district in which the property is located, and complies with the regulations of an overlay district, if applicable. 4. Whether a proposed parking plan has been provided, including where and how the parking is located, utilized, and managed, that meets the required parking for the use in the zoning district in which the property is located. 5. Whether an indoor and outdoor congregantlparishioner circulation plan has been provided that facilitates ingress and egress to the site and structure. 6. Whether a security plan for the establishment and supporting parking facility, if any, has been provided that addresses the safety of the institution and its users and minimizes impacts on the neighborhood. City Commission Memorandum Ordinance Amendment - 4dh Street Religious Overlay District October 27, 2010 Page 4 7. Whether a traffic circulation analysis and plan has been provided that details means of ingress and egress into and out of the neighborhood, addresses the impact of projected traffic on the immediate neighborhood, traffic circulation pattern for the neighborhood, traffic flow through immediate intersections and arterials, and how these impacts are to be mitigated. 8. Whether a noise attenuation plan has been provided that addresses how noise will be controlled in and around the institution, parking structures or areas, and delivery and sanitation areas, to minimize adverse impacts to adjoining and nearby properties. 9. Whether a sanitation plan has been provided that addresses on-site facilities as well as off-premises issues resulting from the operation of the structure. 10. Whether the proximity of the proposed structure to adjacent and nearby residential uses creates adverse impacts and how such impacts are to be mitigated. 11. Whether a cumulative effect from the proposed structure with adjacent and nearby structures arises, and how such cumulative effect will be addressed. CONCLUSION The Administration recommends that the City Commission approve the ordinance upon first reading, and set a second reading and public hearing for November 17, 2010. T:\AGENDA\201O\October 27\Regular\40th St Religious Overlay Ord MEMO.docx PROPOSED 4oTH STREET RELIGIOUS OVERLAY ORDINANCE NO. AN ORDINANCE OF THE MAYOR AND ClTY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, AMENDING THE ClTY CODE, BY AMENDING CHAPTER 114 OF THE ClTY CODE, "ZONING DISTRICTS AND REGULATIONS," SECTION 114-1, "DEFINITIONS," DEFINING "RELIGIOUS INSTITUTION"; AMENDING CHAPTER 142, "ZONING DISTRICTS AND REGULATIONS," ARTICLE Ill, ."OVERLAY DISTRICTS," CREATING DIVISION 8, "40TH STREET OVERLAY," AND BY ADDING SECTIONS 142-858 "LOCATION AND PURPOSE," 142-859 "COMPLIANCE WITH REGULATIONS," REQUIRING CONDITIONAL USE APPROVAL FOR RELIGIOUS INSTITUTIONS IN THE 4oTH STREET OVERLAY DISTRICT, AND 142-860 "OFF-STREET PARKING REGULATIONS;" AND AMENDING ARTICLE 11, "DISTRICT REGULATIONS," DIVISION 2 "RS-I, RS-2, RS-3, RS-4 SINGLE- FAMILY RESIDENTIAL DISTRICTS," SECTION 142-103 "CONDITIONAL USES," TO ADD RELIGIOUS INSTITUTIONS AS A CONDITIONAL USE FOR PROPERTIES IN THE 40" STREET OVERLAY DISTRICT; AND AMENDING ARTICLE IV, "SUPPLEMENTARY DISTRICT REGULATIONS," DIVISION 4 "SUPPLEMENTARY YARD REGULATIONS," SECTION 142-1 131 (d) "GENERALLY," TO EXEMPT PROPERTIES IN THE 4oTH STREET OVERLAY DISTRICT FROM ADDITIONAL 50 FEET MINIMUM SIDE YARD REQUIREMENT FOR PUBLIC AND SEMI-PUBLIC BUILDINGS; AND AMENDING CHAPTER 118 OF THE ClTY CODE, "ADMINISTRATION AND REVIEW PROCEDURES," ARTICLE IV, "CONDITIONAL USE PROCEDURES," SECTION I1 8-192, "REVIEW GUIDELINES," TO ADD REVIEW CRITERIA FOR RELIGIOUS INSTITUTIONS; PROVIDING FOR CODIFICATION; REPEALER; SEVERABILITY; AND AN EFFECTIVE DATE. WHEREAS, the City of Miami Beach ("City") acknowledges the desire of neighborhood residents to allow religious institutions, in addition to the presently permitted single-family residential uses, at the parcels located on the south side of 40th Street between Chase Avenue and Pine Tree Drive, more particularly described in the sketch attached as Exhibit "A hereto, and referred to herein as "40th Street Overlay"; and WHEREAS, the City, while acknowledging such desire for religious institutions, desires to protect the single-family residential character of the neighborhood south of 4oth Street; and WHEREAS, the City, while respecting persons' First Amendment rights under the Constitution of the United States, to pray in their homes, along with others, desires to maintain reasonable limitations its restrictions against assembly uses generally throughout single-family residential neighborhoods, and thus legally maintain limitations against formal religious institutions and other assembly uses in such single-family neighborhoods; and WHEREAS, the City recognizes that the commercial character of the properties on the north side of 4oth Street between the Biscayne Waterway west of Chase Avenue and Pine Tree Drive has changed the character of the single family homes on the corresponding south side of 4oth Street; and WHEREAS, the City recognizes that some homes on the south side of 4oth Street have been used for 25 years or more for religious purposes and are unlikely to be used exclusively for single-family purposes, and therefore finds it reasonable to improve and expand these homes on the south side of 4oth Street for religious purposes, in a manner consistent with the development pattern of the abutting single family neighborhood; and WHEREAS, the City recognizes that religious institutions may adversely impact the surrounding residential uses, and as a result, the proposed ordinance will allow homes located in this specified area to apply for conditional use approval from the Planning Board for the continued use and expansion as religious institutions, in a manner designed to mitigate adverse impacts on the abutting single family neighborhood; and WHEREAS, the City recognizes the pedestrian character of the residential neighborhood in the vicinity of 40th Street and between the Biscayne Waterway west of Chase Avenue and Pine Tree Drive; and WHEREAS, the City recognizes that such pedestrian character allows the use of homes as religious institutions to have reduced parking requirements to accommodate the needs of residents in the area for religious prayer and activity in improved and expanded structures; WHEREAS, the City desires to afford its citizens and visitors their full rights of religious freedom afforded under applicable law, including the First Amendment to the Constitution of the United States, the federal Religious Land Use and Institutionalized Persons Act (RLUIPA), and the Florida Religious Freedom Restoration Act (RFRA), and adopts this ordinance to ensure those rights, while protecting its residents in single- family residential areas from the adverse impacts the exercise of such rights might cause; and WHEREAS, case law applicable to the governmental permitting of religious institutions allows review by public hearing processes, but requires that such review be in accordance with objective criteria, and thus the conditional use review criteria are amended to ensure compliance with such requirement; and WHEREAS, the amendments set forth below are necessary to accomplish all of the above objectives. NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA: SECTION I. Chapter 114 of the City Code, "Zoning Districts and Regulations," Section 1 14-1, "Definitions," is hereby amended as follows: 114-1, "Definitions," is hereby amended as follows: Religious institution means a use where an establishment, organization or association conducts religious praver or activitv that is open to members and/or the general public, and mav be accompanied bv accessorv uses customarilv associated with religious institutions such as but not limited to education classes, vouth centers, dav care, offices, and rooms for licensed catering of life cvcle or other gatherings or celebrations (e.g., weddings, confirmations, and coming-of-ane events). A group privatelv assembling for worship, praver or religious service in a private home or dwelling in which at least one member of the group resides, is not a religious institution, even if life cvcle rituals are included in the service, including weddings, confirmations, and coming-of-age (such as bar or bat-mitzvah) observances and meals accompanv the service. SECTION 2. Chapter 142 of the City Code, "Zoning Districts and Regulations," Article Ill, "Overlay Districts," Division 8 "40th Street Overlay" is hereby created as follows: DIVISION 8. 40TH STREET OVERLAY Section 142-858. Location and purpose. The overlav regulations of this division shall applv to the properties, as thev are confiqured as of Januarv 1, 2010, with lot lines adiacent to the south right-of-wav line of 40th Street between Chase Avenue to the west and Pine Tree Drive to the east. The purpose of this overlav district is to provide pedestrian-friendlv religious institutional uses through the conditional use permit process at the properties to serve the surrounding residential uses. Expansion of the district shall onlv be permitted by amendment to these regulations. Section 142-859. Compliance with regulations. The following overlav regulations shall applv within the 40th Street Overlav District. All development regulations in the underlving zoning district shall apply, except as follows: Religious institutions, in existing rehabilitated structures or new construction, shall be conditional uses, subiect to the regulations in Chapter 118, "Administration and Review Procedures," Article IV, "Conditional Use Procedure." All new construction or additions to existing structures shall be compatible with the scale of the surrounding residential neighborhood and shall be designed to maintain a residential character. Permits for new construction, alterations or additions to existing structures shall be subiect to design review bv the planning director or designee. Section 142-860. Off-Street Parking Regulations. For religious institutions in the 40th Street Overlav District, the following off-street parking regulations shall applv: (1) For adaptive reuse of existing buildings. including expansions or additions thereto less than fifty per cent of the size of the existing structure, there shall be no parking requirement provided that there is one or more public parking lot(s) and/or narage(s) within 500 feet of the subiect propertv. Existing required parking spaces on site shall remain or be replaced on site. - (2) For new construction, and expansions or additions of more than fiftv per cent of the size of an existing structure, the parking requirement shall be the same as for a single-family detached dwelling pursuant to Chapter 130 of the Citv Code, entitled "Off-Street Parking," Article II. "Districts; Requirements," provided that there is one or more public parking lot(s) and/or aarage(s) within 500 feet of the subiect propertv. SECTION 3. Chapter 142 of the City Code, "Zoning Districts and Regulations," Article II, "District Regulations," Division 2 "RS-1, RS-2, RS-3, RS-4 Single-Family Residential Districts," is hereby modified as follows: Section 142-1 03. Conditional Uses. @ Conditional uses in the RS-1, RS-2, RS-3, RS-4 single-family residential districts include the following: a an at-grade parking lot in the RS-4 district when located immediately adjacent, without a gap due to alley, road, waterway or any other cause, to a CD-3 district. See subsection 142-105(c). (2) Religious institutions for those properties located in the 40th Street Overlav. See Chapter 142, "Zoninq Districts and Requlations," Article Ill, "Overlav Districts,'' Division 8 "40th Street Overlav." SECTION 4. Chapter 142 of the City Code, entitled "Zoning Districts and Regulations," Article IV, "Supplementary District Regulations," Division 4 "Supplementary Yard Regulations," is hereby modified as follows: Section 142-1 131. Generallv. (d) Minimum side yards, public and semi-public buildings. The minimum depth of interior side yards for schools, libraries, religious institutions, and other public buildings and private structures which are publicly used for meetings in residential districts shall be 50 feet, except where a side yard is adjacent to a business district, a public street, bay, erosion control line or golf course, and except for properties that have received conditional use approval as a reliqious institution located in the 40th Street Overlav, in which cases the depth of that yard shall be as required for the district in which the building is located. In all other cases, the side yard facing a street shall be the same as that which is required for the district in which the lot is located. SECTION 5. Chapter 118 of the City Code, "Administration and Review Procedures," Article IV, "Conditional Use Procedures," Section 118-192, "Review Guidelines," is hereby modified as follows: Sec. 1 18-1 92. Review guidelines. Conditional uses may be approved in accordance with the procedures and standards of this article provided that: The use is consistent with the comprehensive plan or neighborhood plan if one exists for the area in which the property is located. The intended use or construction will not result in an impact that will exceed the thresholds for the levels of service as set forth in the comprehensive plan. Structures and uses associated with the request are consistent with these land development regulations. The public health, safety, morals, and general welfare will not be adversely affected. Adequate off-street parking facilities will be provided. Necessary safeguards will be provided for the protection of surrounding property, persons, and neighborhood values. The concentration of similar types of uses will not create a negative impact on the surrounding neighborhood. Geographic concentration of similar types of conditional uses should be discouraged. In reviewing an application for conditional use for new structures 50,000 square feet and over, the planning board shall apply the following supplemental review guidelines criteria in addition to the standard review guidelines listed in subsection a. above: Whether the proposed business operations plan has been provided, including hours of operation, number of employees, goals of business, and other operational characteristics pertinent to the application, and that such plan is compatible with the neighborhood in which it is located. Whether a plan for the mass delivery of merchandise has been provided, including the hours of operation for delivery trucks to come into and exit from the neighborhood and how such plan will mitigate any adverse impacts to adjoining and nearby properties, and neighborhood. Whether the scale of the proposed use is compatible with the urban character of the surrounding area and creates adverse impacts on the surrounding area, and how the adverse impacts are proposed to be addressed. Whether the proposed parking plan has been provided, including where and how the parking is located, utilized, and managed, that meets the required parking and operational needs of the structure and proposed uses. Whether an indoor and outdoor customer circulation plan has been provided that facilitates ingress and egress to the site and structure. Whether a security plan for the establishment and supporting parking facility has been provided that addresses the safety of the business and its users and minimizes impacts on the neighborhood. Whether a traffic circulation analysis and plan has been provided that details means of ingress and egress into and out of the neighborhood, addresses the impact of projected traffic on the immediate neighborhood, traffic circulation pattern for the neighborhood, traffic flow through immediate intersections and arterials, and how these impacts are to be mitigated. Whether a noise attenuation plan has been provided that addresses how noise will be controlled in the loading zone, parking structures and delivery and sanitation areas, to minimize adverse impacts to adjoining and nearby properties. Whether a sanitation plan has been provided that addresses on-site facilities as well as off-premises issues resulting from the operation of the structure. (10) Whether the proximity of the proposed structure to similar size structures and to residential uses creates adverse impacts and how such impacts are mitigated. (11) Whether a cumulative effect from the proposed structure with adjacent and nearby structures arises, and how such cumulative effect will be addressed. Jc) In reviewing an application for a religious institution, the planning board shall applv the following review criteria instead of the standard review guidelines listed in subsection a. above: 11) Whether a proposed operations plan has been provided, including hours of operation, number of em~lovees, and other operational characteristics pertinent to the application, and that such plan will mitiaate anv adverse impacts to adioining and nearbv properties, and neighborhood (2) Whether a plan for the deliverv of supplies has been provided, includina the hours of operation for deliverv trucks to come into and exit from the neighborhood and how such plan will mitigate anv adverse impacts to adioining and nearbv properties, and neighborhood. 13) Whether the design of the D~ODOS~~ structure is permitted bv the regulations in the zoning district in which the propertv is located, and complies with the regulations of an overlav district, if applicable. (4) Whether a proposed parking plan has been provided, including where and how the parking is located, utilized, and managed, that meets the reauired parking for the use in the zoning district in which the propertv is located. (5) Whether an indoor and outdoor conaregant/parishioner circulation plan has been provided that facilitates ingress and egress to the site and structure. (6) Whether a securitv plan for the establishment and supporting parking facility, if anv, has been provided that addresses the safety of the institution and its users and minimizes impacts on the neiahborhood. (7) Whether a traffic circulation analvsis and plan has been provided that details means of ingress and egress into and out of the neighborhood, addresses the impact of proiected traffic on the immediate neighborhood, traffic circulation pattern for the neighborhood, traffic flow through immediate intersections and arterials, and how these impacts are to be mitigated. 18) Whether a noise attenuation plan has been provided that addresses how noise will be controlled in and around the institution. parking structures or areas, and deliverv and sanitation areas, to minimize adverse impacts to adioinina and nearbv properties. 19) Whether a sanitation plan has been provided that addresses on-site facilities as well as off-premises issues resulting from the operation of the structure. (10) Whether the proximitv of the proposed structure to adiacent and nearbv residential uses creates adverse impacts and how such impacts are to be mitigated. 111) Whether a cumulative effect from the proposed structure with adiacent and nearbv structures arises, and how such cumulative effect will be addressed. SECTION 6. REPEALER. All ordinances or parts of ordinances and all section and parts of sections in conflict herewith be and the same are hereby repealed. SECTION 7. SEVERABILITY. If any section, subsection, clause or provision of this Ordinance is held invalid, the remainder shall not be affected by such invalidity. SECTION 8. CODIFICATION. It is the intention of the City Commission that this Ordinance be entered into the Code, and it is hereby ordained that the sections of this Ordinance may be renumbered or relettered to accomplish such intention; and that the word "ordinance" may be changed to "section" or other appropriate word. The Exhibits to this Ordinance shall not be codified, but shall be kept on file with this Ordinance in the City Clerk's Office. SECTION 9. EFFECTIVE DATE. This Ordinance shall take effect 10 days following adoption. PASSED and ADOPTED this day of , 2010 MAYOR ATTEST: CITY CLERK APPROVED AS TO FORM & LANGUAGE First Reading: Second Reading: Verified by: Richard G. Lorber Acting Planning Director Underscore denotes new language T:\AGENDA\2010\0ctober 27\ReguIar\40th Street Overlay District- 0RD.docx THIS PAGE INTENTIONALLY LEFT BLANK COMMISSION ITEM SUMMARY Condensed Title: I A proposed ordinance amending Chapter 6 of the City Code, to allow establishments licensed as I I alcoholic beverage establishments to offer partial and total nude adult entertainment. Key Intended Outcome Supported: I Maintain strong growth management policies. 1 I Supporting Data (Surveys, Environmental Scan, etc Nearly half of all residential respondents, 47.6%, suggested the effort put forth by the City to regulate I development is "about the right amount." I Issue: Should the Commission amend the existing alcoholic beverage regulations to permit alcoholic beverages in adult entertainment establishments permitting full nudity? Item Summary/Recommendation: 1 FIRST READING The proposed ordinance would permit the sale of alcoholic beverage in totally nude entertainment establishments. The Administration recommends that the City Commission deny the proposed ordinance amendment, as there are too many concerns relative to the negative secondary effects amending the existing ordinance may have on the City and on neighborhoods surrounding such establishments. Advisory Board Recommendation: 1 At the September 28, 2010 meeting the Planning Board reviewed the proposed ordinance ( amendment, and recommended that the Commission beny the amendment. The Board's concerns focused on the potential for negative secondary effects that might be expected to impact neighborhoods surrounding such establishments should the proposal be approved. The Board also voted 7-0 to recommend that the Commission consider a citywide adult entertainment study. I Funds: 11 I I Financial Information: OBPl Total I I I Financial Impact Summary: Account I 1 Source of I Not Applicable I Amount City Clerk's Office Legislative Tracking: I Richard Lorber MIAMIBEACH City of Miami Beach, 1700 Convention Center Drive, Miami Beach, Florida 33 139, www.rniarnibeachfl.gov COMMISSION MEMORANDUM TO: Mayor Matti Herrera Bower and Members of the City Commission FROM: Jorge M. Gonzalez, City Manager DATE: October 27, 201 0 SUBJECT: Ordinance Amendment - ~lcoholbevera~es And Nudity Regulations Applicant: Leroy Griffith AN ORDINANCE OF THE MAYOR AND ClTY COMMISSION OF THE ClTY OF MIAMI BEACH, FLORIDA, AMENDING CHAPTER 6, "ALCOHOLIC BEVERAGES," OF THE CODE OF THE ClTY OF MIAMI BEACH, FLORIDA, BY AMENDING SECTIONS 6-40 AND 6-41 "TOTAL NUDITY AND SEXUAL CONDUCT PROHIBITED," AND "PROVISIONS PERTAINING TO ESTABLISHMENTS PERMITTING PARTIAL OR TOTAL NUDITY," TO ALLOW ESTABLISHMENTS LICENSED AS ALCOHOLIC BEVERAGE ESTABLISHMENTS TO OFFER PARTIAL AND TOTAL NUDE ADULT ENTERTAINMENT; PROVIDING FOR CODIFICATION, REPEALER, NONSEVERABILITY, AND AN EFFECTIVE DATE. ADMINISTRATION RECOMMENDATION The Administration recommends that the City Commission deny the proposed ordinance amendment, as there are too many concerns relative to the negative secondary effects amending the existing ordinance may have on the City and on neighborhoods surrounding such establishments. BACKGROUND This application has been submitted to the City by Mr. Leroy Griffith, who is the owner of the Club Madonna adult entertainment establishment. The application has been made under the provisions of the City Code, permitting applications to amend the land development regulations to be submitted by any person who owns property that is affected by the zoning regulations he wishes to amend. (Chapter 6 of the city code was historically part of the land development regulations until its removal by the codifier; applications to amend Chapter 6 have been deemed subject to the same regulations as the remaining land development code sections.) This subject and this proposed ordinance were also the subject of discussion about seven years ago, at which time the City Commission referred a similar item to the Planning Board for its review and comment, and then took up the discussion at the Commission level, ultimately denying the amendment on March 17, 2004. This proposed amendment is essentially the same proposal as was discussed at that time and denied, but this time is a completely applicant driven request, not having been referred by the Commission. City Commission Memorandum Alcoholic Beverages And Nudity Regulations - Applicant: Leroy Griffth October 27, 2010 Page 2 PLANNING BOARD ACTION At the September 28, 2010 meeting the Planning Board reviewed the proposed ordinance amendment, and recommended that the Commission deny the amendment (vote: 5-2, Fryd and Beloff for). The Board's concerns focused on the potential for negative secondary effects that might be expected to impact neighborhoods surrounding such establishments should the proposal be approved. The Board also voted 7-0 to recommend that the Commission consider a citywide adult entertainment study. ANALYSIS The ordinance under review proposes the following: 1. The sale of alcoholic beverage in totally nude entertainment establishments. 2. The minimum building size of the alcoholic beverage establishment permitting partial or total nudity shall be 7,000 square feet. 3. The minimum number of seats in alcoholic beverage establishment with total or partial nudity entertainment shall be no less than 250. 4. Patron age restriction as specified in Section 6-5 of the City Code. 5. Signs subject to the review and approval of the Design Review or Historic Preservation Boards, whichever has jurisdiction. 6. Hours of operation shall be from 12:OO p.m.' to 5:00 a.m. 7. Lap dancing would be permitted. 8. Total nudity would be permitted only while performing on stage. It should be noted that distance separation is addressed both in the City Code and the State Statutes. During the previous discussions relative to the serving of alcohol in totally nude adult establishments, concerns were cited such as controlling proliferation, hours of operation, security, and a kitchen component. The Commission had expressed concerns regarding unintended consequences that could not be foreseen at that time and requested that the Planning Board discuss the issues of contact with performers, lap dancing, signage, hours of operation, distance separation, kitchen, size of the club, and gratuity, among others. The Commission also had a lengthy discussion relative to the quality of these venues and that if the sale of alcoholic beverages is going to be permitted in totally nude clubs, they should be elegant, not sleazy; and that one of the criteria should include security. The Commission believed that there has to be sufficient security provided to insure that the laws are observed. They also requested to include in the ordinance a provision which states that if the law is violated, willfully or wantonly, the privilege of having this type of establishment would be revoked. City Commission Memorandum Alcoholic Beverages And Nudity Regulations - Applicant: Leroy Grifith October 27, 201 0 Page 3 REVIEW CRITERIA Pursuant to Section 118-163 of the City Code, in reviewing a request for an amendment to these land development regulations, the board shall consider the following when applicable: 1. Whether the proposed change is consistent and compatible with the comprehensive plan and any applicable neighborhood or redevelopment plans. Partially Consistent - Although the proposed change is consistent with the City's Comprehensive Plan as it relates to commercial zoning districts, over the past years there have been numerous attempts at focused neighborhood plans or redevelopment plans for commercial corridors such as Washington Avenue. These have sought to upgrade such areas and encourage retail, hotel and restaurant use while preventing excessive concentrations of nightlife and entertainment uses in any one area. Particular focus has been on the exterior of such buildings, and the negative effects the typical nightclub signage and opaque storefront treatment have on the aesthetics of the corridor. A combined adult entertainment /alcoholic beverage establishment may share these tendencies and cause further deterioration of neighborhood image and aesthetics if not carefully controlled through the City's design review procedures. 2. Whether the proposed change would create an isolated district unrelated to adjacent or nearby districts. Not Applicable 3. Whether the change suggested is out of scale with the needs of the neighborhood or the city. Consistent - The proposed does not change the size and scale of buildings. 4. Whether the proposed change would tax the existing load on public facilities and infrastructure. Inconsistent - The proposed should not greatly strain public infrastructure, but the increased demands upon the City's Police, FireIRescue, and Code Compliance officers required to monitor and address impacts from such establishments could be very large. 5. Whether existing district boundaries are illogically drawn in relation to existing conditions on the property proposed for change. Not applicable 6. Whether changed or changing conditions make the passage of the proposed change necessary. Partially Consistent - Certainly the landscape of the Miami Beach City Commission Memorandum Alcoholic Beverages And Nudity Regulations - Applicant: Leroy Grjfith October 27, 2010 Page 4 entertainment industry has changed over time. However, there does not appear to be a need to introduce additional intensity to this landscape by permitting full nudity in alcoholic beverage establishments. 7. Whether the proposed change will adversely influence living conditions in the neighborhood. lnconsistent - The proposed ordinance could adversely affect living conditions in immediately adjacent neighborhoods if such establishments create additional noise and disruption. Secondary effects studies show the potential for disturbances and crime to increase in areas adjacent to alcoholic beverage establishments and adult entertainment establishments. 8. Whether the proposed change will create or excessively increase traffic congestion beyond the levels of service as set forth in the comprehensive plan or otherwise affect public safety. Partially Consistent - The ordinance should not greatly increase traffic much greater than would be expected from the introduction of a new nightclub or entertainment establishment. 9. Whether the proposed change will seriously reduce light and air to adjacent areas. Consistent - The proposed change does not affect light and air to adjacent neighborhoods. 10. Whether the proposed change will adversely affect property values in the adjacent area. lnconsistent - The proposed change has the potential to negatively affect property values in the adjacent areas, according to the secondary effects studies submitted. 11. Whether the proposed change will be a deterrent to the improvement or development of adjacent property in accordance with existing regulations. lnconsistent - Secondary Use studies have indicated that adult entertainment establishments, with or without alcohol, may pose a deterrent to the improvement or development of adjacent properties. The City has experienced numerous problems with alcoholic beverage establishments in the past; increasing their number and permitting adult entertainment may increase those impacts to surrounding properties and areas. 12. Whether there are substantial reasons why the property cannot be used in accordance with existing zoning. lnconsistent - The existing ordinance has not prevented businesses from operating. 13. Whether it is impossible to find other adequate sites in the city for the City Commission Memorandum Alcoholic Beverages And Nudity Regulations - Applicant: Leroy Griffith October 27, 2010 Page 5 proposed use in a district already permitting such use. Not applicable The following questions have been researched by the City Attorney's office: 1. What standards apply to determine the validity of regulations on the location of adult entertainment uses in the City? Courts have held that adult businesses should be given a reasonable opportunity to operate and that the number of sites available for adult businesses under a new zoning regime must be greater than or equal to the number of businesses in existence at the time the new zoning regime takes effect. Whether a zoning ordinance leaves open ample alternatives for communication is resolved on a case by case basis, considering factors such as a community's population and size, the acreage available to adult businesses as a percentage of the overall size, the location of available sites, the number of adult businesses already in existence, and the number of adult businesses wanting to operate in the community in the future. The courts have not adopted "a bright line rule" to determine the validity of an ordinance, but consider the above in their evaluation of ordinances presented for review. Fly Fish, Inc. v. City of Cocoa Beach, 337 F.3d 1301 (I lth Cir. 2003). 2. What standards apply to determine whether an adult entertainment establishment should be allowed to serve alcohol? This is a subject of much litigation over the past few years. The most significant and recent case is Daytona Grand, Inc., v. City of Daytona Beach, 490 F.3d 860 (I lth Cir. 2007), which involved ordinances regulating alcohol and nudity, first through a prohibition on them both being in the same establishment, then establishing a 500 feet distance separation between alcohol establishments and adult entertainment establishments displaying nudity (specifically requiring "clothing somewhat more modest than G-strings and pasties."). 490 F.3d at 868. This type of ordinance is subject to review under the 4-part test in United States v. O'Brien, 391 U.S. 367 (1968), which provides: According to this test, public nudity ordinances that incidentally impact protected expression should be upheld if they (1) are within the constitutional power of the government to enact; (2) further a substantial governmental interest; (3) are unrelated to the suppression of free expression; and (4) restrict First Amendment freedoms no greater than necessary to further the government's interest. The parties in Daytona Grand did not dispute that the nudity ordinance under review satisfied parts 1 and 3 of the test. As to part 2: Under O'Brien's second prong, a city must establish that the challenged ordinance furthers a substantial government interest. It has been by now clearly established that reducing the secondary effects associated with adult businesses is a substantial government interest "that must be accorded high respect." City Commission Memorandum Alcoholic Beverages And Nudity Regulations - Applicant: Leroy Griffith Ocfober 27. 2010 Page 6 Id. at 873-875 (bold added; citations omitted). In the Dayfona Grand case, the Court expanded on the required showing a city must make in adopting such an ordinance: As for whether an ordinance "furthers" this interest, a city bears the initial burden of producing evidence that it relied upon to reach the conclusion that the ordinance furthers the city's interest in reducing secondary effects. To that end, a city need not "conduct new studies or produce evidence independent of that already generated by other cities, so long as whatever evidence the city relies upon is reasonably believed to be relevant to the problem that the city addresses." ... "[A] municipality may rely on any evidence that is reasonably believed to be relevant for demonstrating a connection between speech and a substantial, independent government interest." Although a municipality "must rely on at least some pre-enactment evidence," such evidence can consist of "a municipality's own findings, evidence gathered by other localities, or evidence described in a judicial opinion." Id. at 875 (citations omitted). The Daytona Grand court explained how the burden shifts to a person seeking to oppose the ordinance: Once a city has provided evidence that it reasonably believed to be relevant to its rationale for enacting the ordinance, plaintiffs must be given the opportunity to "cast direct doubt on this rationale," either by demonstrating that the city's evidence does not support its rationale or by furnishing evidence that disputes the city's factual findings. . . . If plaintiffs succeed in casting doubt on a municipality's rationale in either manner, the burden shifts back to the municipality to supplement the record with evidence renewing support for a theory that justifies its ordinance." Although the burden lies with the municipality, a court "should be careful not to substitute its own judgment for that of the [municipality,]" and the municipality's "legislative judgment should be upheld provided that [it] can show that its judgment is still supported by credible evidence, upon which [it] reasonably relies." Id. at 875-876 (citations omitted). The Court specifically described the evidence relied upon by the City of Daytona Beach. This information is provided in this memorandum because Miami Beach can rely upon it in reviewing this proposed amendment to its alcohol and nudity ordinances. Here, the City of Daytona Beach plainly carried its initial burden to show that the three challenged nudity ordinances furthered its interest in reducing the negative secondary effects associated with adult theaters. The City has produced a substantial body of evidence that it reasonably believed to be relevant to combating those problems. Ordinance 81-334 City Commission Memorandum Alcoholic Beverages And Nudity Regulations - Applicant: Leroy Grifith October 27, 2010 Page 7 prohibits nudity and sexual conduct in establishments that serve alcohol. As the Ordinance itself says, the City's rationale was to reduce the negative secondary effects associated with adult theaters: It is hereby found that the acts prohibited in [this ordinance] encourage the conduct of prostitution, attempted rape, rape, murder, and assaults on police officers in and around establishments dealing in alcoholic beverages, that actual and simulated nudity and sexual conduct and the depiction thereof coupled with alcohol in public places begets undesirable behavior, that sexual, lewd, lascivious, and salacious conduct among patrons and employees within establishments dealing in alcoholic beverages results in violation of law and dangers to the health, safety and welfare of the public .... Ordinance 81-334 5 2. To support this rationale, Ordinance 81-334 cites two Supreme Court decisions, New York State Liquor Authority v. Bellanca, and California v. LaRue, both of which upheld prohibitions on nude dancing in establishments that serve alcohol. See Bellanca, (upholding statute where the legislature had found that "[c]ommon sense indicates that any form of nudity coupled with alcohol in a public place begets undesirable behavior"); LaRue, ("The ... conclusion ... that certain sexual performances and the dispensation of liquor by the drink ought not to occur at premises that have licenses was not an irrational one."). Although the City's reliance on these cases may be sufficient to carry the City's initial burden, see Pap's A.M., (suggesting that a city can carry its initial burden by relying solely on relevant Supreme Court cases), the legislative history of Ordinance 81-334 shows that the City also relied on its own experiences to support its rationale. That legislative history includes: a document describing the difficulties faced by law enforcement in arresting and successfully prosecuting crimes relating to prostitution and pornography and listing arrests for prostitution and other crimes that . occurred in or near many Daytona Beach adult businesses; a short memorandum written by the City's police chief that provides "a partial list of situations, offenses and incidents which have occurred within the areas of topless bar establishments .... [that] can be substantiated by police reports and testimony of various police officers"; police dispatch records of calls for service ("CAD data") from areas around adult businesses from November 1980 to July 1981, which were attached to the police chief's memorandum; police reports of eighty-three prostitution arrests; police reports of seven arrests for assault and battery of a police officer in or near an adult theater; and the minutes of a public hearing summarizing local business owners' firsthand accounts of criminal activity in and around adult businesses. This legislative history supporting the enactment of Ordinance 81-334 is more than sufficient to carry the City's initial burden under OfBrien's second prong. See, e.g., Alameda Books, (concluding that the city carried City Commission Memorandum Alcoholic Beverages And Nudity Regulations - Applicant: Leroy Griffith October 27, 2010 Page 8 its initial burden with "a single study and common experience"); Pap's A.M., (holding that the city's legislative findings were sufficient because "city council members, familiar with [the city's] commercial downtown ..., are the individuals who would likely have had firsthand knowledge of what took place at and around nude dancing establishments"). Id. at 876-878 (citations omitted). The City also had before it studies specifically concerning the combination of alcohol and nudity. As the Court explained: Ordinance 03-375 amended Ordinance 02-496 to allow erotic dancers to wear G-strings and pasties within an adult theater located more than 500 feet from an establishment that serves alcohol, but Ordinance 02-496's somewhat more restrictive clothing requirements remain applicable within 500 feet of such an establishment. Daytona Beach, Fla., Code 3 62- 184(b), enacted by Ordinance 03-375 § 9. In support of Ordinance 03- 375, the City relied on Mr. Langston's and Mr. Smith's testimony from Function Junction, Inc., 705 F.Supp. 544mAs we have noted, Langston testified that live nude and seminude entertainment businesses "promote and perpetuate urban decay" and that "adult businesses have impacted on crime in the area surrounding Daytona Beach." Id. at 547. Smith, who as an assistant state attorney had prosecuted drug and prostitution offenses in Daytona Beach, concurred that "there were more drug and prostitution offenses in topless bars than in other bars." Id. at 548. FN26. Although Function Junction was a challenge to the City's zoning ordinances, the City relied on testimony from that case in support of Ordinance 03-375. The City also relied on several controlled studies conducted by Dr. William George about the relationship between drinking alcohol and sexual conduct. Thus, for example, one study found that exposure to erotica led male subjects to drink more alcohol than did exposure to non- erotic material~.~ Another study found that young men who believed they had consumed alcohol-regardless of whether they had in fact done so-displayed greater interest in viewing violent and/or erotic images and reported increased sexual arousal than young men who believed they had not consumed alcoho~.~ Still another study found that study participants perceived a woman they believed had consumed alcohol as being "significantly more aggressive, impaired, sexually available, and as significantly more likely to engage in foreplay and intercourse" than a woman whom study participants believed had not consumed a~cohol.~ Finally, Ordinance 03-375 expressly incorporates all of the evidence that the City previously had relied on to support Ordinances 81-334 and 02- 496. The City's pre-enactment evidence for Ordinance 03-375 is sufficient to carry the City's initial burden under O'Brien's second prong. FN27. William H. George et al., The Effects of Erotica Exposure on Drinking, 1 Annals Sex Res. 79 (1988). City Commission Memorandum Alcoholic Beverages And Nudity Regulations - Applicant: Leroy Griffith October 27, 2010 Page 9 FN28. William H. George & G. Alan Marlatt, The Effects of Alcohol and Anger on Interest in Violence, Erotica, and Deviance, 95 J. Abnormal Psych. 150 (I 986). FN29. William H. George et al., Perceptions of Postdrinking Female Sexuality: Effects of Gender, Beverage Choice, and Drink Payment, 1988 J. Applied Soc. Psych. 1295,1295. Id. at 878. The Court summarized the City's evidence as follows: The City of Daytona Beach relied on, among other things, the Supreme Court's decisions in Bellanca, LaRue, Barnes, and Pap's A.M.; numerous police reports of criminal activity-including prostitution and assaults on police officers-in and around adult theaters; undercover police investigations that revealed numerous violations of City ordinances by adult theaters; the City's police chiefs documentation of criminal activity in and around adult theaters; CAD data showing calls-for-service to police dispatchers from areas near adult theaters; extensive testimony taken in Function Junction, studies conducted by Boston and Detroit showing that adult businesses tend to increase urban blight; studies of urban blight and decay in Daytona Beach; controlled laboratory studies showing a correlation between alcohol and sexual conduct; anecdotal accounts from local business owners about increased crime in and around adult theaters; and newspaper articles describing increases in problems related to nudity and alcohol surrounding events such as Spring Break and Black College Reunion. Because Lollipop's has failed to cast direct doubt on the aggregation of evidence that the City reasonably relied upon when enacting the challenged ordinances, we hold that the ordinances further a substantial government interest under O'Brien. In response to the City's studies and evidence, the adult entertainment establishment in Daytona Beach conducted its own studies and analysis of the City's evidence. The Court's analysis of the establishment's proffer was as follows: Moreover, a close examination of Lollipop's experts' studies calls into question their stated conclusion that they "cast grave doubt" on the City's evidence that adult theaters increase crime, and, equally important, the studies do not even purport to address the City's evidence that adult theaters tend more generally to perpetuate urban blight and decay. First, one underlying methodological problem with both studies suggests that they cast little or no doubt on the City's evidence that nudity in establishments that serve alcohol encourages "prostitution, ... undesirable behavior . . . , [and] sexual, lewd, lascivious, and salacious conduct among patrons and employees ... in violation of law and [enldangers ... the health, safety and welfare of the public." See Ordinance 81-334 5 2. The experts' studies are based solely on CAD data, which, in lay terms, is City Commission Memorandum Alcoholic Beverages And Nudity Regulations - Applicant: Leroy Griff7th October 27, 201 0 Page 10 essentially 91 1 emergency call data. Relying on such data to study crime rates is problematic, however, because many crimes do not result in calls to 91 1, and, therefore, do not have corresponding records in the City's CAD data.M This is especially true for crimes, such as lewdness and prostitution, that the City sought to reduce by enacting the challenged ordinances. FN31.See Richard McCleary & James W. Meeker, Do Peep Shows Zause" Crime? A Response to Linz, Paul, and Yao, 43 J. Sex Res. 194, 196 ("Modern criminologists do not use CFSs [i.e., calls for service or CAD data,] to measure crime or crime risk. In 2000-2004, the official journals of the two national criminology professional associations, Criminology and Justice Quarterly, published 245 articles. Of the 100 that analyzed a crime-related statistic, ... [only] two analyzed CFSs, but even in these two cases, CFSs were not used to measure crime or crime risk."). Such crimes are often "victimless," in the sense that all of those involved are willing participants, and, therefore, they rarely result in calls to 91 1. College students on Spring Break are unlikely to call 91 1 after a wild night out on the town despite having participated in exactly the sort of activity that the City's nudity ordinances were enacted to reduce. Likewise, an encounter between a prostitute and a "john" rarely leads to a 91 1 call. By contrast, the City's "anecdotal" evidence may be a more accurate assessment of such crimes because it is not based on a data set that undercounts the incidents of such "victimless" crimes. Cf. World Wide Video of Wash., Inc. v. Citv of Spokane, ("Anecdotal evidence and reported experience can be as telling as statistical data and can serve as a legitimate basis for finding negative secondary effects." (citation and alteration omitted)).= FN33. We also note that at least three other circuits have rejected, for similar reasons, attempts by plaintiffs to use studies based on CAD data to cast direct doubt on an ordinance that the municipality supported with evidence of the sort relied upon by the City of Daytona Beach here. In short, the CAD data relied on by both studies may substantially undercount incidents of many of the types of crime that the City sought to reduce; the data that the studies did analyze show some statistically significant correlations between adult theaters and increased criminal activity; and the studies completely fail to address evidence of increased urban blight and decay that the City reasonably relied on when enacting Ordinance 03-375. ... Thus, Lollipop's has failed to cast direct doubt on all of the evidence that the City reasonably relied on when enacting the challenged ordinances. Accordingly, we hold that Ordinances 81-334, 02- 496, and 03-375 further a substantial government interest under OfBrien. City Commission Memorandum Alcoholic Beverages And Nudity Regulations - Applicant: Leroy Griffith Ocfober 27, 2010 Paae 7 I Id. at 882 - 885 (citations omitted). As to the fourth prong of the OIBrien test, the City's ordinances are already narrowly tailored. They permit alcohol sales with adult entertainment establishments displaying partial nudity, but prohibit such sales at adult entertainment establishments displaying total nudity. When the section this application seeks to amend was adopted in 1989, the City Commission had before it a report from the Administration that set forth the various studies and reports that justified the ordinance. Staff enters for the record the documentation of that adopting ordinance and reports containing the results of secondary effects studies. These studies tend to show a correlation between alcohol, adult entertainment, and negative effects on the surrounding neighborhoods. The applicant neither presented nor suggested evidence to suggest departing from the rationale relied upon at that time. Conditional Use It is important to note that any alcoholic beverage establishment or restaurant, with an occupancy load of 200 persons will be required to obtain a Conditional Use Permit pursuant to Section 142- 1361 of the City Code, which states: For the purpose of this division, the following terms, phrases and words shall have the meaning given in this section: Entertainment means any live show or live performance or music amplified or non- amplified. Exceptions: Indoor movie theater; big screen television and/or background music, amplified or non-amplified, played at a volume that does not interfere with normal conversation. Neighborhood impact establishment means: (1) An alcoholic beverage establishment or restaurant, not also operating as an entertainment establishment or dance hall (as defined in section 114-I), with an occupant content of 300 or more persons as determined by the chief fire marshal; or (2) An alcoholic beverage establishment or restaurant, which is also operating as an entertainment establishment or dance hall (as defined in section 114-I), with an occupant content of 200 or more persons as determined by the chief fire marshal. The Conditional Use process requires an application to appear before the Planning Board at a public hearing, at which parties in interest and citizens have an opportunity to be heard. Approximately 15 days prior to the public hearing date, a description of the request, and the time and place of such hearing is posted on the property and advertised in a paper of general paid circulation in the community. Notice is also given by mail to the owners of record of land lying within 375 feet of the property. In reviewing an application for a neighborhood impact establishment, the Planning Board is required to apply supplemental review guidelines criteria as listed in Section 142-1362 of the City Code in addition to the standard review guidelines for conditional uses. Cify Commission Memorandum Alcoholic Beverages And Nudity Regulations - Applicant: Leroy Griffith Ocfober 27, 2010 Page 12 Should an applicant not agree with the determination or believes that an error has been made by an administrative official in the enforcement of the Land Development Regulations of the City Code with regard to the determination of the use of a property as an outdoor entertainment establishment, open air entertainment, neighborhood impact establishment, or after-hours dance hall, Section 142-1363 of the City Code specifies that such appeal shall be to the Zoning Board of Adjustment. CONCLUSION Based upon the above analysis, the Administration recommendation to deny the proposed ordinance amendment is justified, as there are too many concerns relative to the negative secondary effects amending the existing ordinance may have on the City and on neighborhoods surrounding such establishments. T:MGENDA\201 O\October 27\RegularMlwhol& Nudity Ordinance MEMO.docx ORDlPiANCE NO. AN ORDINANCE OF THE MAYOR AND CRY CTOMMI535IQN OF THE CITY OF MIAMI BEACH, FLQfUD&.ANIEPfDING CHAPTER 6, '"ALCOHOLIC BEWRAOES," OF THE CODE OF THE CITY OF MIAMI BEACH, FFLORIDA, BY AMENDING SECi'lONS 43-40 AND 644 "TOTAL NUDITY AND SEXUAL CONDUCT PROHlBffEb," AND "PROVISIONS PERTAINING TO ESTASLlSHMENTS PERMITTING PARTW. OR TOTAL NUDIXY," TO ALLOW WTABLlSWMEN75 LIGEM!ED AS AeCQHOLlC BEVERAGE ESTABLISHMEMTS TO OFFER PARTIALAND TOTAL'NUDE ADULT ENTERTAINMENT; PRUViDlNO FOR CODIFICATION, REPEALER, NONSEVERABILITYs ANDM EFFECTIVE DATE= WHEREAS, 'the Code of th& Cii af la mi Beach, as; permitted by state Im, contafns Wotls restrictions on the sale of alcohofic beverages within the Cii and IhMERIEAS, Sectfons 640 and 8-41 of the Code rcistrfcd the sale cf alcoholic bevemgfes by persons mahbining, ownfng, managing or operating an as;fvlbIishmenf: permitting partfa1 or total nudw end WHEREAS,. the City ~ommi8sioA wgnizes the need to prmM8 tdtblent apprtunity for pai@ns of businesses In ih0 City fo compete with ofher venues that afford aicofiolfc beverageiestablfshments Merlng partla1 or total nude adutt entertainment; and WHEREAS,;ln Be interest of improving the eflclency of dIowing certain alcohol beverage esbbl9sfjrnants fu offer partfat and t&al nude adult enterternrnent, it is recommended thatran ordinance amendments be adopted; and WHEREAS,;%is ordinance accomplishes the purposes set forth &ow. .NOWTHENZFORE, BE IT OWNED BY THE ~YOR~ CiTYCOMMfSSfON OF THE GirY OF ~I~AWII .BEACH, FLORIDA SEGI'IUN 4. Thaf Chapter 6, antiffed ccAl~~hofic B~verages? ofae Code of the Cl(y of Mlam t Beach, SecfiDns 6-40 and %4l, entitled 'Tatal nudlty and sexual conduct prohIbltecI" and wP~~isbns peftaining to mtabltshmnts permitting partial or btaf nude," are hareby amended to mad cis ib1lows: - - Sec. 640. Tdaf nudity and sexual cmduct prohibjted. (a) It shall be unlawful for any person maintaining, owning, managing or operating an alcoholic beverage establishment to kwwingly, or wifh reason lo haw, suffer or prmH total nudity. or sexual conduct to tooccur on the prerhises of ,fat afcoholic beverage establlshrnent, exc8~t.a~ ~mqded hemin, (b) It shall be unlaWUl far any pemn, whBe on the premises of an atcoholfc beverage @tablfshment, to expose to pubItcvftHNfftDse pdlans of anatomy ddned as total nudity, or engage In any mat conduct, wM as ~rovided heieh, - - wrth all 8faSs. maand munidPal reuuiremsn& (a] tooatton genemiiy. No alcoholic beverage eshbBhmenI pamittlng parttat nudity is permkked on a parcet of land tacaied: (1) ~ithiri 308 ieet d any district designated RS, RM, or RPS on the city's Mchl mdng dfstrld map; (2) Within 300 feet of any parcel of hnd upon which a house of warship, sohoof, puiblio park or playgrand fs bated; or (3) ~ithtri 1,000 feet of any pertxi! af land upon which anofher adult srrfertjdnrnent establishment is Iamted. A hotel witb a mfnlmum of 300 unfb shaff be exemptfrom subsections @)(I), (2) and (3) of this section. (I) The minimum Bugding size of the alcoholic beverage estabfishmsnt permitting parkla1 ~r totat nudw shalt be &@# 7.000 square feet. (2) An dwholtc bevsrage establishment permIfflng p&ai or tafal nudity sftall have no kiss than 260 seats. (4) Parklng requlred fur an aIcohufIc beverage esbbIiisfiment pemMng parflal g && nudity shall be a minlmurn of one space per three seats, a8 af which shall be iocqted an-site, pxm~t as ~roWed In wr ?3Q. (6) An alcoholic beverage esbbkRment peimithg partiar or.fatel nudltgr shatl have no exterior signage de~icblna anv nudihr, ai@ shns shklt! t38 &ul&&b fbe revlew amvaf of the Mlstortr; on bard or 13asbn F&&w Board. whichever bv taw hsq hJruh%a. (6) FartZal or We1 nudity kt aIcDholic beverage estabfIsIshments shall ~xur only betwmn fhs bars of nuon and 5:00 a.m. The mlnfmurh dietame sepaFatloa shall be measured by fdawing s straight fine from the ma/n entrance or exft In which partial gr Waf nudity assodated with an altoholb bm~rage sstabfbhment occurs to the near& point of the property designated 4s RS, RN1, or RPS on the city's c@ciaI zoning dMct map or us& for house of wo@hlp, s&ooi, ar publfc park or ptayground. tn.cwes where a minimum distance Is required bemen an alcohdic beverage establishment pamittlng partiat or totqnudliy, and another adult entertainment estabIkhrnent, the distance esparatlon shall be determined by measuring a atralght lke befween the principat means of entrance of each use. (el ~mhIb1y~d ait~es. NO person Mag own, operate, msnags, work or pe~. at any alcoholti; beverage establishment permitting partla1 or tutaf nudity on the premises unless the followhg mandatory requirem~nts are observed therefn: d fn dlsplayfng parthl or tataf nudity are proRibM from sexual activity with any patron, spectatom, empiayee on the premkeq tau dandna shall not bs comidered vialatfbn of Wis ordmancg, . . (3) No p&on melntelnlng, awning, or operating such an establiistrment shall sufferpr permit the construcflon, maintenance or usesf ereas partIfSoned or screemad from publfcvlewand ~ublic areas that are destgned 86 be ompied or are; cammanly occupted alone or together by any person or persons on the prbm&es of such eskblishment fw private performances lnwMng the dispfa$t or exhmiaon of part& or tofa1 nudity. (4) No person on the pmbes d such establishment shall be permittad b use arb be present in areas paftitioned orsc~med from pubIfcvfew and rz* arm that are dsslgned to be occupied together or alone by any person or persons on the premises d such establishment fix the display or euchblflon of partfat or total nudlty. (5) w ass or totanv nude, (8) Prostifutidn or adid~taflon for pr08ttM0n as defined in the F.S, 788.01 ahail not occur on the pmmhss. (7) There sblI be nc~ sale or we d wntroled substances as .defined In F.S. 893.02(4) an the premises. (d) C~mleurce wifh codes, sfandarbs. The e&tM~shrnent shall ha in complfance with aft appIicab1e fire, property maMtemnce and bullding codes at afithes. If a bulkling is an historic strucfure as Mned in sedan 114-1, k shdl cr>nform w& the secretary of the interiofi standards for hfstorfc places. (e) Demnf mpfa -A wtiflcats of use or occupatio~ai license $ha& mt be Issued until me city manager, or his designee receives reports from the cltyfls police, fire, building servtces and code compliance department8 that the above regulations have been cornpled with. (f) ~admces. &fiances tothe pm~ons of subsecMans (a) and @)of this section may be granted pursuant fo the procedure in section 11 8-351 et seq. SECTtON 2, REPEALER Ali ordinancbs ar*prts of ordinances and all secfions and parts af sections In conflict herewith be'and the same are hereby repealed. SECTION 3. .CODIFICATK)N. It is tha i&ntl~)n of the C& Comrnkslon, and it la hereby ol.daned that the prwkions of thls ukiinance shag become and be made part of the Code of the City af Miami Beach as a@ended; that the sectfons of this ordinance may be renumbered or reletfiered to accomplish such Intention; and that the word or din an cell may be Changed b EIseotionU or ather @prapn'ate ward. * It fs the Intention of tM City Comm[ssian that an provkiuns of this Ordfnance are Integral 40 and dependent upon aII other prwkions thereof, and thus Sf any swn, ' suben, clause or provision of this Ordinance k held Invalid, the remafndershal( not be sem$le from the porffon decW invalid. In the went any pMtion of this ordinance shafl be finally d.ebrmined Invalfd by a court of eompetaht furisdfcti~n~ the Code provisions In effect prior to the efkctlve data hereof sha1l automaticaUy be relnsta&6. SECTION 5, EFFECTIVE DATE. Thls Ordinance shall take effect tsn days fobwing adoptkin. PASSED anid ADOPTED this day of . 2OW. ATTEST: MAYOR CW CLERK APPROVED AS 70 FORM & LANGUAGE & FOR EXECUTION Club Madonna 1527 Washington Ave. Miami Beach, Florida 33139 I Richard Lorber Planning & Zoning Manager City of Miami Beach 1700 Convention Center Dr. Miami Beach, FL 33139 July 28,2010 Dear Mr. Lorber I would like to officially apply for an amendment to the City Code, specifically Chapter 6 "Alcoholic Beverages," by amending Sections 6-40 and 6-41 "Total Nudity and Sexual Conduct Prohibited" and "Provisions Pertaining to Establishments Permitting Partial or Total Nudity," to allow establishments licensed as alcoholic beverage establishments to offer partial and total nude adult entertainment. As the owner of Club Madonna, the only legally permitted establishment for totally nude entertainment on Miami Beach, I feel that this amendment is needed to allow my club equal competition in South Florida since totally nude entertainment is allowed in establishments that also serve alcohol throughout Miami Dade, Broward, and Palm Beach counties, just to name a few. It is very much a hardship for me to conduct or improve my business since tourists and residents are constantly asking us why we don't serve alcoholic beverages in our Club and leave to drive across the causeway to Miami. This is also an economic issue for the City of Miami Beach since my marketing and legal advisors have indicated that there would be a net gain of more than $600,000 just in the first year to the City of Miami Beach in increased taxes, increased employment, and increased tourism if the changes to the ordinance are enacted. We are talking about the creation of approximately 10 new jobs as a result of the projected, increase in business at Club Madonna. South Beach has always been the economic engine that drives the entire South Florida region because of a vibrant tourist economy that includes outstanding nightlife and entertainment options, world- class, affordable dining, an extensive array of hotels, incredible shopping choices, the finest beaches, and a number of renown tourist attractions such as Art Deco architecture. Offering one more option such as total nude entertainment in alcoholic beverage establishments would be a benefit to the local economy and add to the reputation of South Beach as one of the most tolerant cities in the country for its variety of entertainment options. The new ordinance would allow the city to better regulate the industry equally for everyone, and not in a discriminatory manner toward Club Madonna. It has already been proved that the presence of Club Madonna has in no way had a detrimental effect on its Washington Avenue neighborhood. Rather, property values have increased year after year in this neighborhood as a number of high-rent tenants have moved here. And it has also been proved that Club Madonna has had the fewest number of calls for police service over the years, not becoming a nuisance, but a better and better neighbor with each passing year. The end effect of adding one more venue for the sale of alcohol on Washington Avenue is negligible. We believe that it is preferable to keep patrons inside Club Madonna for their alcoholic beverages rather than having them exit and re- enter the club after purchasing and drinking alcoholic beverages at other neighborhood establishments. b Even Feinberg-Fisher School has told us that we have been a good neighbor throughout the past and present. They are not going to support the sale of alcohol at Club Madonna - or elsewhere - but they made it perfectly clear that Washington Avenue has developed into an adult neighborhood with a vast variety of bars and clubs and that as far as they were concerned, Club Madonna has not been a problem for them. I am attaching a proposed ordinance that would meet Club Madonna's needs and bring the city in continuity with other cities in South Florida thus remedying the hardship condition and selective enforcement concerns under which we are presently operating. If there are any other questions that need to be answered in order to place this ordinance proposal before the Planning Board, please let us know. Sincerelv. ~&oy Griffith ' Owner, Club Madonna I File No: Date: MCR No: c?$~os- Amount I I Zoning Classification for Staff Use Only) \I PLANNING DEPARTMENT STANDARD APPLICATION FORM DEVELOPMENT REVIEW BOARD HEARING 'I. The below listed applicant wishes to appear before the following City Development Review Board for a scheduled public hearing: NOTE: This application form must be completed separately for each applicable Board hearing a matter. ( ) BOARD OF ADJUSTMENT, ( ) HISTORIC PRESERVATION BOARD ( ) DESIGN REVIEW BOARD NPLANNING BOARD ( ) FLOOD PLAIN MANAGEMENT BOARD NOTE: Applications to the Board of Adjustment will not be heard until such time as the Design Review Board, Historic Preservation Board andlor the Planning Board have rendered decisions on the subject project. 2. THIS REQUEST IS FOR: a, ( ) A VARIANCE TO A PROVISION(S) OF THE LAND DEVELOPMENT REGULATIONS (ZONING) OF THE CODE b. ( ) AN APPEAL FROM AN ADMINISTRATIVE DECISION c. ( ) DESIGN REVIEW APPROVAL d. ( ) A CERTIFICATE OF APPROPRIATENESS FOR DESIGN e. ( ) A CERTIFICATE OF APPROPRIATENESS TO DEMOLISH A STRUCTURE f. ( ) A CONDITIONAL USE PERMIT 9. ( ) A LOT SPLIT APPROVAL h. ( ) AN HISTORIC.DISTRICT/SITE DESIGNATION I. fl AN AMENDMENT TO THE LAND DEVELOPMENT REGULATIONS OR ZONING MAP j. ( ) AN AMENDMENT TO THE COMPREHENSIVE PLAN OR FUTURE LAND USE MAP k. ( f TO REHAB, TO ADD TO AND I OR EXPAND A SINGLE FAMILY HOME I, ( ) OTHER: mNr# 1533- 3. NAME g ADDRESS OF PROPERTY< L u B :m LEGAL DESCRIPTION: 4. NAME OF APPLICANT LG \I Gel FFW* I 1 Note: If applicant is a corporation, partnership, limited partnership or trustee, a separate Disclosure of Interest Form (Pages 6-7) rnust be completed as par! of this application. 153% m&J-i\r\ll-ild . klfim~ TL 33/37 ADDRESS OF APPLICANT CITY STATE ZIP BUSINESS PHONE # 53 Q~FAX # CELL PHONE # 5. NAME OF PROPERTY OWNER (IF DIFFERENT FROM #4, OTHERWISE, WRITE "SAME") If fhe owner of the property is not the applicant and willnot be present at the hearing, the Owner/,owerofAtfomayAffidavil (Page 4) must be filled out and signed by the property owner. In addition, if the property owner is a corporafion, partnership, iimited partnership or trustee, a separate Disclosure of Interest Form (Pages 6 - 7) must be complefed. ADDRESS OF PROPERTY OWNER CITY STATE ZIP I BUSINESS PHONE # FAX# CELL PHONE # 1 E-mail address: 6. NAME OF ARCHITECT, LANDSCAPE ARCHITECT, ENGINEER, CONTVTOR OR OTHER PERSON RESPONSIBLE FOR PROJECT DESIGN I NAME (please circle one of the above) CITY STATE ZIP BUSINESS PHONE # CELL PHONE # E-mail address: 7, NAME OF AUTHORIZED REPRESENTATIVE(S), ATTORNEY(S), OR AGENT(S) ANDIOR CONTACT PERSON: a. PI .&r+AA/JSnnl 6 NC ~~~W~jfft PNA.~)L 15 F&U&RO~LC NAME ADDRESS CtTY STATE BUSINESS PHONE# ??q \%?FAX# CELL PHONE # E-mail address: I b. NAME ADDRESS CITY STATE ZIP I BUSINESS PHONE # FAX # CELL PHONE # I E-mail address: I C. NAME ADDRESS CITY STATE ZIP I BUSINESS PHONE# FAX # CELL PHONE # I E-mail address: I NOTE: ALL ARCHlTECTS, LANDSWPE ARCHITECTS, ENGINEERS, CONTRACTORS OR OTHER PERSONS RESPONSIBLE FOR PROJECT DESIGN, AS WELL AS AUTHORIZED REPRESENTATlVE(SJ, ATTORNEY(S), OR A GENTfS} AND/OR CONTACT PERSONS, WHO ARE REPRESENTING OR APPEARING ON BEHALF OFA THIRD PARTY, UNLESS SOLELY APPEARING AS AN EXPERT WITNESS, ARE REQUIRED TO REGISTER AS A LOBBYIST WITH THE CLERK, PRIOR TO THE SUBMISSION OF AN APPLlCATION. fdd 9. IS THERE-& THE SITE? YES ( ) NO ( ) 1 10. WlLL ALL OR ANY P~~601~G~RPTERIOR AND/OR EXTERIOR, BE DEMOLISHED? [ ] YES [ ] NO 11. TOTAL FLO (if applicable): SQ. FT. 12. TOTAL GR~cludNEWng required parking and all usable floor space) SQ. FT. 13. TOTAL FEE: (to be completed by staff) $ PLEASE NOTE THE FOLLOWING: Applications for an Board hearing@) will not be accepted without payment of the required fee. All checks are fo be made payable d' to: "City of Mramr each. Public records notice: all documentation application. forms, maps, drawings, hotographs, letters and exhibits will becon?e a part of the public record marnfarned by fhe drf of Miam1 Beach Plannfng Depa ment and shall under Florida Stafufe, be drsclosed Y upon proper request to any person or en dy. R - In accordance wifh the requirements of Secfion 2-482 of the Code of the,Cit of Miami Beach, any individual or group (Lobb isf) Y 2 that has been, or w11l be, compensated to either speak in favor or agarns a project being presented before any of the $Y'S Development RevrewBoards, shall be fully disclosed prior to the public hearing, All such individuals and/or groups must regrster wrfh the Crfy Clerk prror to the hearlng. In accordance with Section 118r31 of the Code of the City of Miami Beach, all applicants shall, prior to the pubiic heaeng, fully disclose any cons~deratipn prov~ded or committed, direct1 or on its behalf for an agreement to sup orf or w~?hhold objection to the t' R requested approval, rellef or action (exclus~ve of all lega orprofess~ona/desrgn se~rces). Suc disclosure shall: I. Be in writing. 2. Indicate to whom the consideration has been provided or committed. 3. Generally describe the nature of the considerafion. 4. Be read lnto the record by the requesting person or entify prior fo submission to the secretary/clerk of the respective board. In the event the applicable development review board determines that fhe foregoing disclosure requ(rement was not fimely satisfied b fhe person or enfrty request~ng approval, re!ief or other actron as provlded above, then the application or order, as a, s b all rmmedrately be deemed nu11 and vord wrfhout further force or effect, and no appl,caf~on from sa~d person or en&IF?h"i sub ect rope shall be reviewed or considered b the applicable board@) until expiration of a period of one earaffer the If t Y Y nu1 ifica ion off e application or order. If shall be un awful fo employ any devlce, scheme or arfrfice to crrcumvent he drsclosure requrrements of this secfion and such circumvention shall be deemed a violation of the d~sclosure requrremenfs of fhls sedron. When the app!icable Boards reach a decision, a Final Order will be issued statin the Board's decision and any condifions imposed therern. The Final Order must be recorded in the Ofice of the Recorder of d rami-Dade Coun ; fhe orrg!nal shall [emam copy of the recorded Frnal Order belng tendered along with the construcfron plans. I on file wrfh the board cl~rkLsecretary,, Under no c~rcumstances wrll a building permd be issued by the C y of M!amr Beach wrthouf a To request this material in accessible format, sign language interpreters, information on access for persons wifh disabilities, andlor any accommodation to review any document or participate in any city-sponsored proceeding, please contact 305-604-2489 (voice) or 305-673-721 8 0 five days in advance to initiate your request. TTY users may also call 71 1 (Florida Relay Service). PLEASE COMPLETE ONE OR MORE OF THE FOLLOWING THREE AFFIDAVITS, AS APPLICABLE. NOTE: THE PROPERTY OWNER MUST FILL OUT AND SIGN THE "POWER OF ATTORNEY" PORTION IF THEY WlLL NOT BE PRESENT AT THE HEARING, OR IS HAVING OTHER PERSONS SPEAK ON THEIR BEHALF. OWNER AFFIDAVIT FOR INDlVlDUAL P~/;C f STATEOF ' COUNTY OF IA-l)? f ,+P P I,-CG r I, I F,Q bV T: L\e\7?-S ' , being first duly sworn, depose and say that I am the described and which is the subject matter of the pr&osed hearing; that all the answers to the questions in this application and all sketches data and other supplementary matter attached to and made a part of the application are true and correct to the best of my knowledge and belief. I understand this application must be completed and accurate before a hearing can be advertised. I also hereby authorize the City of Miami Beach to enter my properly for the sole purpose of posting a NOTICE OF PUBLIC HEARING on my property as required by law and I take the responsibility of removing this notice aRer the date of heaing, Sworn to and subscribed before me this3m day of TuL.\/ . . , 20m The foregoing instrument was acknowledged before me by khl &-I %% , who has produced as identification andlor is personally known to me and whowdid not take an oath. I NOTARY~PUBLIC NOTARY SEAL OR STAMP PRINT NAME My Commission Expires: * ALTERNATE OWNER AFFIDAVIT FOR CORPORATION or PARTNERSHIP (Circle one) STATE OF COUNTY OF /- I, of application that all answers to the questions in the application and all sketches, data and other are true and correct to the best of our knowledge and belief; thaf the corporation matter of the proposed hearing. We understand this application must be the City of Miami Beach to enter the subject property for We sole and I take Re responsibility of removing this notice after the date of hearin fly PRINT NAME SIGNATURE day of , 20-. The foregoing instrument was acknowledged before me by of , on behatf of such entity, who has produced as identification and1 and who didldid not take an oath. My Commission Expires: POWER OF ATTORNEY AFFlDAVlf STATE OF COUNTY OF 1, , being duly sworn and deposed say that I am the owner or representative of the owner of the described real property and that I am aware of the nature and effbct of the request for relative to the subject property, which request is hereby made by me OR I am hereby authorizing to be my representative before the Board. I also hereby authorize the City of Mia e subject property for the sole purpose of posting a NOTICE OF PUBLIC HEARING on the Property as required by law and I take the r ving this notice after the date of hearing. PRINT NAME (and Title, if applicable) // SIGNATURE Sworn to and subscribed before me this , 20-. The foregoing instrument was acknowledged before me by who has produced as identification andlor is personally know NOTARY SEAL OR STAMP / My Commission Expires: NOTARY PUBLIC PRINT NAME CONTRACT FOR PURCHASE If there is a CONTRACT FOR PURCYASE, whether contingent on this application or not, and whether the purchaser is a corporation, trustee or partnership, list the names of the contract purchasers below, including the principal officers, stockholders, beneficiaries or partners. Where the principal officers, stockholders, beneficiaries or partners consist of another corporation, trust, partnership or other similar entity, further disclosure shall be required which discloses the identity of the individual(s) (natural persons) having the ultimate ownership interest in the entity. If any contingency clause or contract terms involve additional individuals, corporations, partnerships or trusts, list all individuals andlor complete the appropriate disclosure clause above." DATE OF CONTRACT NAME, ADDRESS, AND OFFICE % OF STOCK For any changes of ownership or changes in contracts for purchase subsequent to the date of the application, but prior to the dates of final public hearing, a supplemental disclosure of interest shall be filed. CITY OF MIAMI BEACH DEVELOPMENT REVIEW BOARD APPLICATION DISCLOSURE OF INTEREST I. CORPORATION the property which is the subject of the application is owned or leased by a CORPORATION, list ALL of the stockholders, and the oercentaae of stock owned by each. Where the stockholders consist of another corporation(s), trustee(s), partnership(s) or othir sirnilarentity, further disclosure shall be required which discloses the identity of the individ;al(s) (natural persons) having the ultimate ownership interest in the entity.* E LL-GCE TN. CORPORATION NAME NAME AND ADDRESS UR m'~aod\11\)R :TN( CORPORATION NAME NAME AND ADDRESS % OF STOCK % OF STOCK IF THERE ARE ADDlTlONAL CORPORATIONS, LIST OTHERS, INCLUDlNG CORP. NAME(S) AND EACH INDIVIDUAL STOCKHOLDER'S NAME, ADDRESS, OFFICE AND PERCENTAGE OF STOCK, ON A SEPARATE PAGE. NOTE: Notarized signature required on page 8 h CITY OF MIAMI BEACH DEVELOPMENT RWIEW BOARD APPLICATION DISCLOSURE OF INTEREST 2. TRUSTEE If the property which is the subject of the application is owned or leased by a TRUSTEE, list the beneficiaries of the trust and the percentage of interest held by each. Where the beneficiarylbeneficiaries consist of corporations(s), another trust(s), paitnership(s) or other similar entity, further disclosure shall be required which discloses the identity of the individual(s) (natural persons) having the ultimate ownership interest in the entity,* TRUST NAME / NAME AND ADDRESS / % OF STOCK 3. PARTNERSHIPILIMITED PARTNERSHIP If the property which is the subject of the application is owned or leased by a PARTNERSHIP or LIMITED PARTNERSHIP, list the principals of the partnership, including general and limited partners. Where the partner(s) consist of another partnership(s), corporation(s), trust(s) or other similar entity, further ich discloses the identity of the individual(s) (natural persons) having the ultimate ownership interest in the entity.* PARTNERSHIP or LIMITED PARTNERSHIP NAME / NAME AND ADDRESS I u v % OF STOCK NOTE: Notarized signature required on page 8 4. COMPENSATED LOBBYIST: The City of Miami Beach Code sub-section 11 8-31 requires the disclosure of any individual or group which has been, or will be, compensated to either speak in favor of or against a proiect being presented before any of the City's Development Review Boards, or not to speak at all. Please list below all persons or entities encompassed by this section: , NAME ADDRESS PHONE # b. C, Additional names can be placed on a separate page attached to this form, * Disclosure shall not be required of any entity, the equity interest in which are regularly traded on an established securities market in the United States or other country, or of any entity, the ownership interests of which are held in a limited partnership or other entity consisting of more than 5,000 separate interests and where no one person or entity holds more than a total of 5% of the ownership interests in the limited partnership or other entity. APPLICANT HEREBY ACKNOWLEDGES THAT ANY APPROVAL GRANTED BY THE BOARD SO APPLIED TO, SHALL BE SUBJECT TO ANY AND ALL CONDITIONS IMPOSED BY SUCH BOARD AND BY ANY OTHER BOARD HAVING JURISDICTION, AND THATTHE PROJECT MUST ALSO COMPLY WITH THE ACH AND ALL OTHER APPLICABLE LAW. 6 ( APPLICANT AFFIDAVIT ) 1. lg.on\l cfi)%.r* , (list name of corporafion and office designation as applicable) being first duly sworn, depose and say that 1 am the applicant, d the representative of the applicant, for the subject matter of the proposed hearing; that all the answers to the questions in this application and all sketches, data and other supplementary matter attached to and made a part of the application and the disclosure information listed on this application is a full disclosure of all parties of interest in this application are true and correct to the best of my knowledge and belief. Sworn to and subscribed before me this 3o*hday of ~VL , 20~ The foregoing instrument was acknowledged before me by \ CCOU Gri %% , who has produced F)UL Gk.13-523 Tas identification andlor is personally known to me and who&fldid not take an oath. 32- \OL-o \l~\~~~~~~~~~l~~tt,,, *\ \p.N B"o~~* ,#* ..***.. NOTARY SEAL OR STAMP *' :.-$, M\SSIO;- '&% 3 t$@ *0,+=. +-*A+ 5 6 g*: ~3; = - - 1 PRINT NAME My Commission Expires: F:\PLAN\$ALL\FORMS\DEVELOPMENT REVIEW BOARD APPLICATION JAN January 8.2010 I;. i ' - Miscellaneous Cash Receipt P\ CITY OF MIAMI BEACH $- 1 PLANNING DEPARTMENT (305) 673-7550 Date: Received of: Address: For: 11 01 1.8000.369. --- CHECK No. . "7 Office of Finance Director II Lreparer : Ext: By: J PLANNING DEPARTMENT Staff Report & Recommendation TO: Chairperson and Members Planning Board FROM: Richard G. Lorber, AICP, LEED AP Acting Planning Director Planning Board DATE: September 28,201 0 SUBJECT: File No. 1973 - Ordinance: Alcohol and Nudity BACKGROUND This a~rslication has been submitted to the City by Mr. Leroy Griffith, who is the owner of the Club ~adonna adult entertainment establishment: The application has been made under the provisions of the City Code, permitting applications to amend the land development regulations to be submitted by any person who owns property that is affected by the zoning regulations he wishes to amend. (Chapter 6 of the city code was historically part of the land development regulations until its removal by the codifier; applications to amend Chapter 6 have been deemed subject to the same regulations as the remaining land development code sections.) This subject and this proposed ordinance were also the subject of discussion about seven years ago, at which time the City Commission referred a similar item to the Planning Board for its review and comment, and then took up the discussion at the Commission level, ultimately denying the amendment on March 17, 2004. This proposed amendment is essentially the same proposal as was discussed at that time and denied, but this time is a completely applicant driven request, not having been referred to the Planning Board by the Commission. ANALYSIS The ordinance under review proposes the following: 1. The sale of alcoholic beverage in totally nude entertainment establishments. 2. The minimum building size of the alcoholic beverage establishment permitting partial or total nudity shall be 7,000 square feet. 3. The minimum number of seats in alcoholic beverage establishment with total or partial nudity entertainment shall be no less than 250. 4. Patron age restriction as specified in Section 6-5 of the City Code. 5. Signs subject to the review and approval of the Design Review or Historic Preservation Boards, whichever has jurisdiction. 6. Hours of operation shall be from noon to 5:00 a.m. Planning Board File No. 1973 - Ordinance - Alcohol & Nudity September 28, 2010 Page 2 7. Lap dancing would be permitted. 8. Total nudity would be permitted only while performing on stage. It should be noted that distance separation is addressed both in the City Code and the State Statutes. During the previous discussions relative to the serving of alcohol in totally nude adult establishments, concerns were cited such as controlling proliferation, hours of operation, security, and a kitchen component. The Commission had expressed concerns regarding unintended consequences that could not be foreseen at that time and requested that the Planning Board discuss the issues of touching performers, lap dancing, signage, hours of operation, distance separation, kitchen, size of the club, and gratuity, among others. The Commission also had a lengthy discussion relative to the quality of these venues and that if the sale of alcoholic beverages is going to be permitted in totally nude clubs, they should be elegant, not sleazy; and that one of the criteria should be the issue of security. The Commission believed that there has to be sufficient security provided to insure that the laws are observed. They also requested to include in the ordinance a provision which states that if the law is violated, willfully or wantonly, the privilege of having this type of establishment would be revoked. REVIEW CRITERIA Pursuant to Section 118-163 of the City Code, in reviewing a request for an amendment to these land development regulations, the board shall consider the following when applicable: 1. Whether the proposed change is consistent and compatible with the comprehensive plan and any applicable neighborhood or redevelopment plans. Partially Consistent - Although the proposed change is consistent with the City's Comprehensive Plan as it relates to commercial zoning districts, over the past years there have been numerous attempts at focused neighborhood plans or redevelopment plans for commercial corridors such as Washington Avenue. These have sought to upgrade such areas and encourage retail, hotel and restaurant use while preventing excessive concentrations of nightlife and entertainment uses in any one area. Particular focus has been on the exterior of such buildings, and the negative effects the typical nightclub signage and opaque storefront treatment have on the aesthetics of the corridor. A combined adult entertainment /alcoholic beverage establishment may share these tendencies and cause further deterioration of neighborhood image and aesthetics if not carefully controlled through the City's design review procedures. 2. Whether the proposed change would create an isolated district unrelated to adjacent or nearby districts. Not Applicable 3. Whether the change suggested is out of scale with the needs of the neighborhood or the city. Consistent - The proposed does not change the size and scale of buildings. Planning Board File No. 1973 - Ordinance - Alcohol & Nudify September 28, 2010 Page 3 4. Whether the proposed change would tax the existing load on public facilities and infrastructure. lnconsistent - The proposed should not greatly strain public infrastructure, but the increased demands upon the City's Police, FireIRescue, and Code Compliance officers required to monitor and address impacts from such establishments could be very large. 5. Whether existing district boundaries are illogically drawn in relation to existing conditions on the property proposed for change. Not applicable 6. Whether changed or changing conditions make the passage of the proposed change necessary. Partially Consistent - Certainly the landscape of the Miami Beach entertainment industry has changed over time. However, there does not appear to be a need to introduce additional intensity to this landscape by permitting full nudity in alcoholic beverage establishments. 7. Whether the proposed change will adversely influence living conditions in the neighborhood. lnconsistent - The proposed ordinance could adversely affect living conditions in immediately adjacent neighborhoods if such establishments create additional noise and disruption. Secondary effects studies show the potential for disturbances and crime to increase in areas adjacent to alcoholic beverage establishments and adult entertainment establishments. 8. Whether the proposed change will create or excessively increase traffic congestion beyond the levels of service as set forth in the comprehensive plan or otherwise affect public safety. Partially Consistent - The ordinance should not greatly increase traffic much greater than would be expected from the introduction of a new nightclub or entertainment establishment. 9. Whether the proposed change will seriously reduce light and air to adjacent areas. Consistent - The proposed change does not affect light and air to adjacent neighborhoods. 10. Whether the proposed change will adversely affect property values in the adjacent area. lnconsistent - The proposed change has the potential to negatively affect property values in the adjacent areas, according to the secondary effects studies submitted. 11. Whether the proposed change will be a deterrent to the improvement or development of adjacent property in accordance with existing regulations. lnconsistent - Secondary Use studies have indicated that adult entertainment Planning Board File No. 1973 - Ordinance - Alcohol & Nudify September 28, 2010 Page 4 establishments, with or without alcohol, may pose a deterrent to the improvement or development of adjacent properties. The City has experienced numerous problems with alcoholic beverage establishments in the past; increasing their number and permitting adult entertainment may increase those impacts to surrounding properties and areas. 12. Whether there are substantial reasons why the property cannot be used in accordance with existing zoning. Inconsistent - The existing ordinance has not prevented businesses from operating. 13. Whether it is impossible to find other adequate sites in the city for the proposed use in a district already permitting such use. Not applicable The following questions have been researched by the City Attorney's office: 1. What standards apply to determine the validity of regulations on the location of adult entertainment uses in the City? The U.S. Eleventh Circuit Court of Appeals has opined that adult businesses must be given a reasonable opportunity to locate, and that the number of sites available for adult businesses under a new zoning regime must be greater than or equal to the number of businesses in existence at the time the new zoning regime takes effect. Whether a zoning ordinance leaves open ample alternatives for communication is resolved on a case by case basis, considering factors such as a community's population and size, the acreage available to adult businesses as a percentage of the overall size, the location of available sites, the number of adult businesses already in existence, and the number of adult businesses wanting to operate in the community in the future. That Court has not adopted "a bright line rule" to determine the validity of an ordinance, but considers the above in its evaluation of ordinances presented to it for review. Fly Fish, Inc. v. City of Cocoa Beach, 337 F.3d 1301 (1 1" Cir. 2003). 2. What standards apply to determine whether an adult entertainment establishment should be allowed to serve alcohol? This is a subject of much litigation over the past few years. The most significant and recent case was also decided by the U.S. Eleventh Circuit Court of Appeals: Daytona Grand, Inc., v. City of Daytona Beach, 490 F.3d 860 (I lth Cir. 2007). Daytona Grand involved both zoning (location) and nudity ordinances, the latter of which is primarily relevant for this analysis. The Daytona Grand nudity ordinances regulated alcohol and nudity, first through a prohibition on them both being in the same establishment, then establishing a 500 feet distance separation between alcohol establishments and adult entertainment establishments displaying nudity (specifically requiring "clothing somewhat more modest than G-strings and pasties." 490 F.3d at 868. The nudity ordinance is subject to review under the 4-part test in United States v. OJBrien, 391 U.S. 367 (1968). 490 F.3d at 873. The test provides: According to this test, public nudity ordinances that incidentally impact protected expression should be upheld if they (1) are within the constitutional power of the government to enact; (2) further a substantial governmental interest; (3) are unrelated to the suppression of free expression; and (4) restrict First Amendment Planning Board File No. 1973 - Ordinance - Alcohol & Nudity September 28, 2010 Page 5 freedoms no greater than necessary to further the government's interest. The parties in Daytona Grand did not dispute that the nudity ordinance under review satisfied parts 1 and 3 of the test. Id. As to part 2: Under O'Brien's second prong, a city must establish that the challenged ordinance furthers a substantial government interest. Pa&s A.M., 529 U.S. at 296. 120 S.Ct. 1382 (plurality opinion). It has been by now clearly established that reducing the secondary effects associated with adult businesses is a substantial government interest "that must be accorded high respect." C& of L.A. v. Alameda Books, Inc., 535 U.S. 425, 444, 122 S.Ct. 1728, 152 L.Ed.2d 670 (2002) (Kennedy, J., concurring in the judgment) (quotation marks ~mitted);~see also Pao's A.M., 529 U.S. at 296, 120 S.Ct. 1382 (plurality opinion) ("[Clombating the harmful secondary effects associated with nude dancing [is] undeniably important."); Ctr. for Fair Pub. Policv v. Marico~a Countv, 336 F.3d 11 53, 1166 (9th Cir.2003) ("It is beyond peradventure at this point in the development of the doctrine that a state's interest in curbing the secondary effects associated with adult entertainment establishments is substantial."). Id. at 873-875 (bold added). Therefore, the viability of an ordinance implicating an adult entertainment establishment's rights under the first amendment, even if slight, is governed by the relationship of the activity regulated to associated secondary effects. In the Daytona Grand case, the Court expanded on the required showing a city must make in adopting such an ordinance: As for whether an ordinance "furthers" this interest, a city bears the initial burden of producing evidence that it relied upon to reach the conclusion that the ordinance furthers the city's interest in reducing secondary effects. Peek-A-Boo Lounge, 337 F.3d at 1269. To that end, a city need not "conduct new studies or produce evidence independent of that already generated by other cities, so long as whatever evidence the city relies upon is reasonably believed to be relevant to the problem that the city addresses." Alameda Books, 535 U.S. at 451, 122 S.Ct. 1728 (Kennedy, J., concurring in the judgment) (quoting Renton, 475 U.S. at 51-52, 106 S.Ct. 925); see also id. at 438, 122 S.Ct. 1728 (plurality opinion) ("[A] municipality may rely on any evidence that is reasonably believed to be relevant for demonstrating a connection between speech and a substantial, independent government interest." (quotation marks omitted)); Pap's A.M., 529 U.S. at 296, 120 S.Ct. 1382 (plurality opinion) (quoting Renton 's "reasonably believed to be relevant" language). Although a municipality "must rely on at least some pre-enactment evidence," such evidence can consist of "a municipality's own findings, evidence gathered by other localities, or evidence described in a judicial opinion." Peek-A- Boo Lounae. 337 F.3d at I 268;seel e.g., Pap's A.M., 529 U.S. at 300. 120 S.Ct. 1382 (plurality opinion) (finding sufficient that "the city council relied on this Court's opinions detailing the harmful secondary effects caused by [adult] establishments ..., as well as on its own experiences"); Barnes v, Glen Theatre, Inc., 501 U.S. 560, 584, 11 1 S.Ct. 2456, 115 L.Ed.2d 504 (1991) (Souter, J., concurring in the j~dgment)~ (permitting a municipality to rely on prior judicial opinions); Renton. 475 U.S. at 51-52, 106 S.Ct. 925 (holding that the city was entitled to rely on the experiences of other cities and on a judicial opinion). Id. at 875. Planning Board File No. 1973 - Ordinance - Alcohol & Nudity Sepfember 28, 2010 Page 6 The Daytona Grand court then explained how the burden shifts to a person seeking to oppose the ordinance: Once a city has provided evidence that it reasonably believed to be relevant to its rationale for enacting the ordinance, plaintiffs must be given the opportunity to "cast direct doubt on this rationale," either by demonstrating that the city's evidence does not support its rationale or by furnishing evidence that disputes the city's factual findings. Peek-A-Boo Lounae, 337 F.3d at 1265 (quoting Alameda Books, 535 U.S. at 438-39, 122 S.Ct. 1728 (pluralitv opinion)); see, e.g., Pap's A.M., 529 U.S. at 298, 120 S.Ct. 1382 (plurality opinion) (rejecting claim when plaintiff "never challenged the city council's findings or cast any specific doubt on the validity of those findings"). "If plaintiffs succeed in casting doubt on a municipality's rationale in either manner, the burden shifts back to the municipality to supplement the record with evidence renewing support for a theory that justifies its ordinance." Alameda Books, 535 U.S. at 439, 122 S.Ct. 1728 (plurality opinion) (citing Pap's A.M., 529 U.S. at 298, 120 S.Ct. 1382 (plurality opinion)); see also Peek-A-Boo Lounae, 337 F.3d at 1269. Although the burden lies with the municipality, a court "should be careful not to substitute its own judgment for that of the [municipality,]" and the municipality's "legislative judgment should be upheld provided that [it] can show that its judgment is still supported by credible evidence, upon which [it] reasonably relies." Peek-A-Boo Lounae, 337 F.3d at 1273. Id. at 875-876. The Court then specifically described the evidence relied upon by the City of Daytona Beach: Here, the City of Daytona Beach plainly carried its initial burden to show that the three challenged nudity ordinances furthered its interest in reducing the negative secondary effects associated with adult theaters. The City has produced a substantial body of evidence that it reasonably believed to be relevant to combating those problems. Ordinance 81-334 prohibits nudity and sexual conduct in establishments that serve alcohol. As the Ordinance itself says, the City's rationale was to reduce the negative secondary effects associated with adult theaters: It is hereby found that the acts prohibited in [this ordinance] encourage the conduct of prostitution, attempted rape, rape, murder, and assaults on police officers in and around establishments dealing in alcoholic beverages, that actual and simulated nudity and sexual conduct and the depiction thereof coupled with alcohol in public places begets undesirable behavior, that sexual, lewd, lascivious, and salacious conduct among patrons and employees within establishments dealing in alcoholic beverages results in violation of law and dangers to the health, safety and welfare of the public .... Ordinance 81-334 § 2. To support this rationale, Ordinance 81-334 cites two Supreme Court decisions, New York State Liauor Authoritv v. Bellanca, 452 U.S. Planning Board File No. 1973 - Ordinance - Alcohol & ~udit~ September 28,2010 Page 7 714, 101 S.Ct. 2599. 69 L.Ed.2d 357 (1981) (per curiam), and California v. LaRue, 409 U.S. 109, 93 S.Ct. 390, 34 L.Ed.2d 342 (1 9721, both of which upheld prohibitions on nude dancing in establishments that serve alcohol. See Bellanca, 452 U.S. at 718. 101 S.Ct. 2599 (upholding statute where the legislature had found that "[c]ommon sense indicates that any form of nudity coupled with alcohol in a public place begets undesirable behavior"); LaRue, 409 U.S. at 118- 19, 93 S.Ct. 390 ("The ... conclusion ... that certain sexual performances and the dispensation of liquor by the drink ought not to occur at premises that have licenses was not an irrational one."). Although the City's reliance on these cases may be sufficient to carry the City's initial burden, see Pap's A.M., 529 U.S. at 296-97, 120 S.Ct. 1382 (plurality opinion) (suggesting that a city can carry its initial burden by relying solely on relevant Supreme Court cases), the legislative history of Ordinance 81-334 shows that the City also relied on its own experiences to support its rationale. That legislative history includes: a document describing the difficulties faced by law enforcement in arresting and successfully prosecuting crimes relating to prostitution and pornography and listing arrests for prostitution and other crimes that occurred in or near many Daytona Beach adult businesses; a short memorandum written by the City's police chief that provides "a partial list of situations, offenses and incidents which have occurred within the areas of topless bar establishments .... [that] can be substantiated by police reports and testimony of various police officers"; police dispatch records of calls for service ~rFN22 ("CAD data -) from areas around adult businesses from November 1980 to July 1981, which were attached to the police chiefs memorandum; police reports of eighty-three prostitution arrests; police reports of seven arrests for assault and battery of a police officer in or near an adult theater; and the minutes of a public hearing summarizing local business owners' firsthand accounts of criminal activity in and around adult businesses. This legislative history supporting the enactment of Ordinance 81-334 is more than sufficient to carry the City's initial burden under O'Brienls second prong. See, e.g., Alameda Books, 535 U.S. at 452, 122 S.Ct. 1728 (Kennedy, J., concurring in the judgment) (concluding that the city carried its initial burden with "a single study and common experience"); Pap's A.M.. 529 U.S. at 297-98, 120 S.Ct. 1382 (plurality opinion) (holding that the city's legislative findings were sufficient because "city council members, familiar with [the city's] commercial downtown ..., are the individuals who would likely have had firsthand knowledge of what took place at and around nude dancing establishments"); see also Peek- A-Boo Lounae, 337 F.3d at 1269-70. Id. at 876-878. The City also had before it studies specifically concerning the combination of alcqhol and nudity. As the Court explained: \ Ordinance 03-375 amended Ordinance 02-496 to allow erotic dancers to wear G- strings and pasties within an adult theater located more than 500 feet from an establishment that serves alcohol, but Ordinance 02-496's somewhat more restrictive clothing requirements remain applicable within 500 feet of such an establishment. Daytona Beach, Fla., Code § 62-184(b), enacted by Ordinance 03-375 § 9. In support of Ordinance 03-375, the City relied on Mr. Langston's and Planning Board File No. 1973 - Ordinance - Alcohol & Nudify September 28, 2010 Page 8 Mr. Smith's testimony from Function Junction, Inc.. 705 F.Supp. 544.w AS we have noted, Langston testified that live nude and seminude entertainment businesses "promote and perpetuate urban decay" and that "adult businesses have impacted on crime in the area surrounding Daytona Beach." Id. at 547. Smith, who as an assistant state attorney had prosecuted drug and prostitution offenses in Daytona Beach, concurred that "there were more drug and prostitution offenses in topless bars than in other bars." Id. at 548. FN26. Although Function Junction was a challenge to the City's zoning ordinances, 705 F.Supp. at 545, the City relied on testimony from that case in support of Ordinance 03-375. The City also relied on several controlled studies conducted by Dr. William George about the relationship between drinking alcohol and sexual conduct. Thus, for example, one study found that exposure to erotica led male subjects to drink more alcohol than did exposure to non-erotic materialsfN2'. Another study found that young men who believed they had consumed alcohol-regardless of whether they had in fact done so-displayed greater interest in viewing violent and/or erotic images and reported increased sexual arousal than young men who believed they had not consumed alcoho~.~ Still another study found that study participants perceived a woman they believed had consumed alcohol as being "significantly more aggressive, impaired, sexually available, and as significantly more likely to engage in foreplay and intercourse" than a woman whom study participants believed had not consumed al~ohol.~ Finally, Ordinance 03-375 expressly incorporates all of the evidence that the City previously had relied on to support Ordinances 81-334 and 02-496. The City's pre-enactment evidence for Ordinance 03-375 is sufficient to carry the City's initial burden under O'Brienls second prong. FN27. William H. George et al., The Effects of Erotica Exposure on Drinking, 1 Annals Sex Res. 79 (I 988). FN28. William H. George & G. Alan Marlatt, The Effects of Alcohol and Anger on Interest in Violence, Erotica, and Deviance, 95 J. Abnormal Psych. 150 (1 986). FN29. William H. George et al., Perceptions of Postdrinking Female Sexuality: Effects of Gender, Beverage Choice, and Drink Payment, 1988 J. Applied Soc. Psych. 1295, 1295. Id. at 878. The Court summarized the City's evidence as follows: The City of Daytona Beach relied on, among other things, the Supreme Court's decisions in Bellanca, LaRue, Barnes, and Pap's A.M.; numerous police reports of criminal activity-including prostitution and assaults on police officers-in and around adult theaters; undercover police investigations that revealed numerous violations of City ordinances by adult theaters; the City's police chiefs documentation of criminal activity in and around adult theaters; CAD data showing calls-for-service to police dispatchers from areas near adult theaters; extensive testimony taken in Planning Board File No. 1973 - Ordinance - Alcohol & Nudity September 28, 2010 Page 9 Function Junction, 705 F.Supp. at 547-48; studies conducted by Boston and Detroit showing that adult businesses tend to increase urban blight; studies of urban blight and decay in Daytona Beach; controlled laboratory studies showing a correlation between alcohol and sexual conduct; anecdotal accounts from local business owners about increased crime in and around adult theaters; and newspaper articles describing increases in problems related to nudity and alcohol surrounding events such as Spring Break and Black College Reunion. Because Lollipop's has failed to cast direct doubt on the aggregation of evidence that the City reasonably relied upon when enacting the challenged ordinances, we hold that the ordinances further a substantial government interest under OrBrien. In response to the City's studies and evidence, the adult entertainment establishment in Daytona Beach conducted its own studies and analysis of the City's evidence. The Court's analysis of the establishment's proffer was as follows: Moreover, a close examination of Lollipop's experts' studies calls into question their stated conclusion that they "cast grave doubt" on the City's evidence that adult theaters increase crime, and, equally important, the studies do not even purport to address the City's evidence that adult theaters tend more generally to perpetuate urban blight and decay. First, one underlying methodological problem with both studies suggests that they cast little or no doubt on the City's evidence that nudity in establishments that serve alcohol encourages "prostitution, ... undesirable behavior ..., [and] sexual, lewd, lascivious, and salacious conduct among patrons and employees ... in violation of law and [enldangers ... the health, safety and welfare of the public." See Ordinance 81-334 § 2. The experts' studies are based solely on CAD data, which, in lay terms, is essentially 91 1 emergency call data. Relying on such data to study crime rates is problematic, however, because many crimes do not result in calls to 91 1, and, therefore, do not have corresponding records in the City's CAD data.FN3' This is especially true for crimes, such as lewdness and prostitution, that the City sought to reduce by enacting the challenged ordinances. See Ordinance 02-496 5 (seeking to reduce "lewd and lascivious behavior, prostitution, sexual assaults and batteries, ... other criminal activity, [and the] degradation of women"); Ordinance 81-334 § 2 (seeking to reduce "prostitution, ... undesirable behavior, ... [and illegal] sexual, lewd, lascivious, and salacious conduct among patrons and employees" of adult theaters); see also Ordinance 03-375 4 (relying on legislative record for Ordinances 81-334 and 02-496). FN31.See Richard McCleary & James W. Meeker, Do Peep Shows "Cause" Crime? A Response to Linz, Paul, and Yao, 43 J. Sex Res. 194, 196 ("Modern criminologists do not use CFSs [i.e., calls for service or CAD data,] to measure crime or crime risk. In 2000-2004, the official journals of the two national criminology professional associations, Criminology and Justice Quarterly, published 245 articles. Of the 100 that analyzed a crime-related statistic, ... [only] two analyzed CFSs, but even in these two cases, CFSs were not used to measure crime or crime risk."). Such crimes are often "victimless," in the sense that all of those involved are willing participants, and, therefore, they rarely result in calls to 911. College Planning Board File No. 1973 - Ordinance -Alcohol & Nudity September 28, 2010 Page 10 students on Spring Break are unlikely to call 91 1 after a wild night out on the town despite having participated in exactly the sort of activity that the City's nudity ordinances were enacted to reduce. Likewise, an encounter between a prostitute and a "john" rarely leads to a 911 call. By contrast, the City's "anecdotal" evidence may be a more accurate assessment of such crimes because it is not based on a data set that undercounts the incidents of such "victimless~l crimes. Cf. World Wide Video of Wash., Inc. v. Citv of S~okane. 368 F.3d 1 186. 1 195-96 (9th Cir.2004) ("Anecdotal evidence and reported experience can be as telling as statistical data and can serve as a legitimate basis for finding negative secondary effects." (citation and alteration ~mitted)).~ FN33. We also note that at least three other circuits have rejected, for similar reasons, attempts by plaintiffs to use studies based on CAD data to cast direct doubt on an ordinance that the municipality supported with evidence of the sort relied upon by the City of Daytona Beach here. See Gammoh v. Citv of La Habra, 395 F.3d 11 14, 1126-27 (9th Cir.2005); G. M. Enters., Inc., 350 F.3d at 639;SOB, Inc., 317 F.3d at 863 & n. 2. Interestingly, Daniel Linz, one of the experts hired by Lollipop's, also co- authored the studies found to be insufficient in two of these cases. See G.M. Enters., Inc., 350 F.3d at 635-36, 639;SOB, Inc., 317 F.3d at 863. A second problem with Lollipop's experts' studies is that, even if the underlying CAD data fully reflected all of the conduct that Daytona Beach sought to reduce, the experts appear to draw conclusions that overstate the underlying data. For example, the study that focuses on Ordinance 81-334 concludes that "crimes against persons, crimes against property, and sex crimes, including both rape and prostitution[,] are not more common in areas with adult businesses than they are in similar control areas." (Experts' Report 2.) But the experts' own underlying data suggests otherwise-for three of the six pairs of study and control areas that the experts examined, "the study areas [i.e., areas with adult theaters,] do show significantly higher rates of crime than the control areas." (Id. at 29-30 (emphasis added).) The experts attempt to explain away this result by pointing to the other three pairs-two show no "significant" difference between study and control areas, and one shows a significantly higher crime rate in the control area than the study area. The experts assert, without much discussion, that "[tlhis mixed patternJ' shows that "factors other than the presence of a nude cabaret are affecting rates of crime." (Id. at 30.) The experts are no doubt correct that factors other than the presence of adult theaters affect crime rates in Daytona Beach; crime is plainly caused by many factors. But that does little to undermine the City's conclusion that adult theaters also affect crime rates, especially when the experts' own analysis shows a statistically significant correlation between adult theaters and increased crime in half of the areas in the study. Finally, both studies focus only on criminal activity and do not even purport to address the connection between adult theaters and urban blight. Ordinance 03- 375, which amended Ordinance 02-496, was supported by testimony from Function Junction that adult theaters promote and perpetuate urban blight, which in Daytona Beach was characterized by "a significant percentage of deteriorating structures; a large number of small ... lots, which did not allow cars; a notable parking problem; a high incidence of crime, particularly, on the beachside; and a Planning Board File No. 1973 - Ordinance - Alcohol & Nudity September 28, 2010 Page 1 I large percentage of antiquated, underground utility systems, such as drainage, water and sewer systems." 705 F.SUDD. at 547. Lollipop's experts' studies examine only one of these conditions-high crime rates-and, notably, do not address at all the City's evidence that adult theaters tend to perpetuate these other features of urban blight. Although Lollipop's experts argue that the testimony provided in Function Junction was based on unreliable data and methodologically unsound analysis, we repeat that the City's reliance on such evidence need only have been reasonable, and it was. In short, the CAD data relied on by both studies may substantially undercount incidents of many of the types of crime that the City sought to reduce; the data that the studies did analyze show some statistically significant correlations between adult theaters and increased criminal activity; and the studies completely fail to address evidence of increased urban blight and decay that the City reasonably relied on when enacting Ordinance 03-375. Thus, Lollipop's has failed to cast direct doubt on all of the evidence that the City reasonably relied on when enacting the challenged ordinances. See Peek-A-Boo Lounge. 337 F.3d at 1268 (noting that "the government must rely on at least some pre-enactment evidence" (emphasis in original)); Wise Enters.. Inc. v. Unified GovY of Athens- Clarke Countv, 217 F.3d 1360, 1364 (I I th Cir.2000) (noting that a municipality "must have some factual basis" for its rationale (emphasis in original) (quotation marks omitted)); see also World Wide Video, 368 F.3d at 1195 (explaining that a city needs only "some" evidence to support its ordinances); Babv Dolls To~less Saloons, Inc. v. City of Dallas, 295 F.3d 471, 481 (5th Cir.2002) ("Renton teaches us that the government must produce some evidence of adverse secondary effects ....'I (emphasis in original) (citation omitted)). Accordingly, we hold that Ordinances 81-334, 02-496, and 03-375 further a substantial government interest under O'Brien. Id. at 882 - 885 (some citations omitted). As to the fourth prong of the O'Brien test, the City's ordinances are already narrowly tailored. They permit alcohol sales with adult entertainment establishments displaying partial nudity, but prohibit such sales at adult entertainment establishments displaying total nudity. When the section this application seeks to amend was adopted in 1989, the City Commission had before it a report from the Administration that set forth the various studies and reports that justified the ordinance. Staff enters for the record the attached documentation of that adopting ordinance and reports containing the results of secondary effects studies. These studies tend to show a correlation between alcohol, adult entertainment, and negative effects on the surrounding neighborhoods. The applicant neither presented nor suggested evidence to suggest departing from the rationale relied upon at that time. Conditional Use It is important to note that any alcoholic beverage establishment or restaurant, with an occupancy load of 200 persons will be required to obtain a Conditional Use Permit pursuant to Section 142- 1361 of the City Code, which states: For the purpose of this division, the following terms, phrases and words shall have the meaning given in this section: Entertainment means any live show or live performance or music amplified or non-amplified. Planning Board File No. 1973 - Ordinance - Alcohol & Nudity Sepfember 28, 2010 Page 12 Exceptions: Indoor movie theater; big screen television and/or background music, amplified or non-amplified, played at a volume that does not interfere with normal conversation. Neighborhood impact establishment means: (1) An alcoholic beverage establishment or restaurant, not also operating as an entertainment establishment or dance hall (as defined in section 114-I), with an occupant content of 300 or more persons as determined by the chief fire marshal; or (2) An alcoholic beverage establishment or restaurant, which is also operating as an entertainment establishment or dance hall (as defined in section 114-I), with an occupant content of 200 or more persons as determined by the chief fire marshal. The Conditional Use process requires an application to appear before the Planning Board at a public hearing, at which parties in interest and citizens have an opportunity to be heard. Approximately 15 days prior to the public hearing date, a description of the request, and the time and place of such hearing is posted on the property and advertised in a paper of general paid circulation in the community. Notice is also given by mail to the owners of record of land lying within 375 feet of the property. In reviewing an application for a neighborhood impact establishment, the Planning Board is required to apply supplemental review guidelines criteria as listed in Section 142-1362 of the City Code in addition to the standard review guidelines for conditional uses. Should an applicant not agree with the determination or believes that an error has been made by an administrative official in the enforcement of the Land Development Regulations of the City Code with regard to the determination of the use of a property as an outdoor entertainment establishment, open air entertainment, neighborhood impact establishment, or after-hours dance hall, Section 142-1363 of the City Code specifies that such appeal shall be to the Zoning Board of Adjustment. RECOMMENDATION Staff recommends that the Planning Board recommend denial of the proposed ordinance to the City Commission, as there appear to be too many concerns relative to the negative secondary effects amending the existing ordinance may have on the City and on neighborhoods surrounding such establishments. RGL c: Gary Held, First Assistant City Attorney Jorge G. Gomez, Assistant City Manager F:\PLAN\$PLB\2010\9-28-2010\1973 - 1527 Washington Ave. Club Madonna Amend Code\alcohol nudity report.docx BACKUP MATERIAL SUBMITTED FOR THE RECORD BY THE CITY ATTORNEY'S OFFICE A. COmrSSIGN MEMORANDUM NO. 17-90 , AN C&.D;-ANCE,OF THE CITY COMMISSION OF THE cIm OF MIAMI BEACH, FLORIDA, MAKING FINDINGS OF FACT; AMENDING MIAMI BEACH CITY CODE CHAPTER 18, ENTITLED "INTOXICATING LIQUORS" BY ADDITION OF ARTICLE 11, ENTITLED "TOTAL AND PARTIAL NUDITY AND SEXUAL CONDUCT IN ALCOHOLIC BEVERAGE ESTABLISHMENTS", PROHIBITING TOTAL NUDITY OR SEXUAL CONDUCT IN ESTABLISHMENTS WHERE ALCOHOLIC BEVERAGES, BEER OR WINE ARE SOLD OR OFFERED FOR SALE FOR CONSUMPTION ON THE PREMISES, AND PROHIBITING ANY PERSON MAINTAINING, OWNING OR OPERATING SAID ESTABLISHMENTS FROM PERMITTING OR SUFFERING TOTAL NUDIzTY OR SEXTJAL CONDUCT THEREIN; ESTABLISHING MANDATORY REQUIREMENTS FOR ALCOHOLIC BEVERAGE ESTABLISHMENTS PERMITTING PARTIAL NUDITY; PROVIDING PENALTIES; PROVIDING FOR SEVERABILITY; REPEALING ALL ORDINANCES IN CONFLICT THEREWITH; PROVIDING FOR AN EFFECTIVE DATE. (PLANNING & ZONING DEPARTMENT AND CITY ATTORNEY'S OFFICE) ACTION: The City Manager advised that this ordinance was drafted to address concerns/issues raised 12/20/89 by the Commissioners with reference to the then proposed ordinance prohibiting selling alcoholic beverages in establishments including nudity/sexual conduct in its entertainment. Interested persons heard. Mayor Daoud expressed concern about the proliferation of other business enterprises with topless female employees. The City Attorney advised that this would be addressed in the forthcoming ~onikg amendment. Commissioner Shapiro's motion for adoption of the ordinance presented on 12/20/89, prohibiting nudity and sexual conduct in alcoholic beverage establishment (no grandf athering provision), failed of passage 3-4 (Mayor Daoud, Vice-May'br Resnick, and Commissioner Shapiro favoring; Commissioners Arkin, Hirschfeld, Shockett, and Singer %pposed). Commissioner Hirschfeld's motion to defer, failed of passage 2-5 (Vice-Mayor Resnick and Commissioner Hirschfeld favoring; Mayor Daoud and Commissioners Arkin, Shapiro , Shockett , and Singer opposed). Proposed ordinance amended to redefine partial nudity. Ordinance, as amended, passed on First Reading. City Attorney's office directed to draft stronger grandfather provisions. Hearing and Second Reading scheduled for 1/17/90, commencing at 11:30 a.m. During the discussion, the City Manager advised that the Planning Board would conduct a public hearing 1/15/90 at 7:00 p.m. in the Commission Chambers, to hear additional testimony regarding the proposed Zoning amendment to address this matter; with the anticipation that their report/recommendation would be submitted for the 1/17/90 Commission agenda -,.?AN. '' 3 19961 . 3. CO~MIS&XW HEFiORANDUM NO. 708-89 / AN :3RDIWCE OF THE CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, MAKING F1NDI:qGS OF FACT; AMENDING MIAMI BEACH CITY CODE CHAPTER 18,'ENTITLED "INTOXICATING LIQUORSn BY AEDITION OF ARTICLE 11, ENTITLED "PROHIBITED NUDITY liND SEXUAL CONDUCT IN ALCOHOLIC BEVERAGE ESTABLISHMENTS " , PROHIBITING NUDITY OR SEXUAL ? ONDUCT IN ESTABLISHMENTS WHERE ALCOHOLIC BEVERAGES, BEER, OR WINE ARE SOLD OR OFFERED FOR SALE FOR CONSUMPTION ON THE PREMISES AND PROHIBITING ANY PERSON MAINTAINING, OWNING, OR OPERATING SAID ESTABLISHMENTS FROM PERMITTING OR SUFFERING NUDITY QR SEXUAL CONDUCT THEREIN; PROVIDING PENALTIES; PROVIDING FOR SEVERABILITY; REPEALING ALL ORDINANCES IN CONFLICT THEREWITH; PROVIDING FOR AN EFFECTIVE DATE. 1. THE REGULATION OF ADULT ENTERTAINMENT ESTABLISHMENTS IN THE CITY OF MIAMI BEACH: ANALYSIS, FINDINGS, AND RECOMMENDATIONS PERTAINING TO NUDITY AND SEXUAL CONDUCT IN ALCOHOLIC BEVERAGE ESTABLISHMENTS, PREPARED DECEMBER, 1989 BY THE CMB PLANNING 7 ZONING DEPARTMENT. 2. SUPPLEMENTAL INFORMATION PROVIDED BY THE ADMINISTRATION: a) PHOENIX PLANNING DEPARTMENT'S MAY, 1979 REPORT ON THE RELATION OF CRIMINAL ACTIVITY AND ADULT BUSINESSES b) SAINT PAUL PLANNING DIVISION'S JUNE, 1978 REPORT ON EFFECTS ON SURROUNDING AREA OF ADULT ENTERTAINMENT BUSINESSES c) MINNESOTA ATTORNEY GENERAL'S WORKING GROUP JUNE 6, 1989, REPORT ON THE REGULATION OF SEXUALLY-ORIENTED BUSINESSES (PLANNING 6; ZONING DEPARTMENT) ACTION : Interested heard. Miami Beach Chamber of Commerce Governmental Affairs Committee Chairman Andrew H. Moriber presented the Committee's resolution supporting the concept of such an ordinance. % The City Attorney presented alternate language to grandfather in ;xisting establishments (proposed ordinance would pertain to all establishments including those currently operating), recommended that they be grandfathered under some conditions, and that a Zoning Ordinance amendment be passed at the same time as this Code amendment. Discussion held; City Attorney to review comments and submit report/recommendation 1/3/90. Commissioner Shockett suggested the City Attorney meet with the Police Chief and representatives of existing establishments, to draft mutually-agreeable standards. Later in the meeting (during discussion of item R-7E), the Administration was directed not to issue any permits that would allow operation of such facilities until an appropriate ordinance was adopted. Note: Following documents filed with the meeting records: 12/18/89 letter from Sandra Brooks - The South Bay Club, to Jud Kurlancheek, opposing such establishments Petition opposing nude entertainment, submitted by Philip Grossman b~a~l;v*'j C. REOUEST OF ATTORNEY DAVID H. NEVEL, REPRESENTING COBB PARTLYERS DBVEMPMENT, INC. . TO DISCUSS "....PROPOSED PORNOGRAPHIC THEATER. AND EIVE NUDE ENTERTAINMENT ORDINANCES...". ADMINISTRATION RECOMMENDATION: THAT THE CITY COMMISSION HEAR MR. NEVEL. ACTION: Mr. Nevel asked the Commission (and M.B. Redevelopment Agency) to take some emergency action which would prohibit issuance/cause revocation of occupational licenses for operation of establishments which serve alcoholic beverages and have live nude entertainment, as described in the proposed Zoning Ordinance amendment submitted 10/31/89, while it was in the required review process. Cobb Partners principal Gary Engle urged that quick, forceful action be taken to prevent a nude bar from being opened in their development area. Attorney Harold Rosen, representing U. S. Partners, questioned the need for emergency action, since their 1045 5th Street building had not been constructed. He reiterated his 10/31/89 advice that the operators would adhere to all laws. City Attorney Lucia Allen Dougherty advised that the Commission could not adopt an emergency ordinance, since no such document was before it for consideration and such action' would b& a violation of State law. Commissioner Hirschfeld's motion to defer action to 12/20/89 for administrative report/recommendation, died for lack of a s.econd. The Commission directed the Administration to delay issuance of any licenses, permits, etc. relative to this issue until the proposed ordinances were presented on First Reading. A. COMMISSION MEMORANDUM NO. 700-89 1 SUBJECTS BEFORE THE PLANNING BOARD MEETING SCHEDULED FOR DECEMBER 27, 1989. ACTION: Reported for information only, no action required or taken: 1) City Manager request for approval of the 1989/90 - 1993/94 Capital Improvements Program. 2) Roberto P. Toboas request for Conditional Use approval for the conversion of a structure located at 920-926 Alton Road into a Middle School. 3) Oscar Giraldo request for Conditional Use approval for construction of a boat dock that projects 80' into the waterway at 1707 Cleveland Road. 4) Miami Beach Jewish Community Center request for Conditional Use approval to construct a two-story boat house and a floating dock for a rowing program on the west side of Indian Creek Drive at 65th St. 5) City Manager request for consideration of amending the Comprehensive Plan to incorporate the Safe Neighborhood plans for Safe Neighborhood Improvement Districts No. 1 & 2. (See R- 3A-D) 6) City Manager request for consideration of a Zoning Ordinance amendment restricting the location of establishments serving alcoholic beverages, beer, or vine which permit nudge or sexual conduct. (See R-5B) 7) City Manager request for consideration of a Zoning Ordinance amendment that restricts the location of adult motion picture theaters. DE~~~~~~&~~&~~~~N~ES OF RELIGIOUS FACILITIES, SCHOOLS, AND KCSlUBNl' " 4 6xh>+y*;% - * *:* - " *i.;, .r c (REQUESTED BY MAYOR ALEX DAOUD) PIC IAL TURE THEATERS DISTRICTS. . WITHIN - .- -; &if. pic -2.5 * AC~~~~?:-:~~= -Colmnission voted to add this item to the agenda. ickstein (Temple *Beth Sholom), Rev. James P. Murphy (Pastor - St. Patrick Dr. Michael N. Kesselman (Principal - North Beach Elementary School and lead principal - Miami Beach feeder pattern) appeared in support of the proposed ordinance. Referred to the Planning Board and Community Affairs Committee (CAC) for rev&ew/recommendation. Commissioner Arkin asked that the CAC investigate other cities' recently-adopted ordinances to ensure the completeness of the proposed ordinance. Also see related item R-9B. (; 1 -2 1 ;r;F'4J B. (ADD-ON) 4 AN ORDINANCE AMENDING THE ZONING ORDINANCE REGARDING THE DISTANCE SEPARATION REQUIRED FOR * ALCOHOLIC BEVERAGE ESTABLISHMENTS PERMITTING NUDITY/SEXUAL CONDUCT; PROHIBITING OPERATION OF AN ESTABLISHMENT WHERE ALCOHOLIC BEVERAGES ARE SOLD FOR CONSUMPTION ON THE PREMISES WITHIN SUCH REQUIRED DISTANCE, FROM PERMITTING NUDITY/SEXUAL CONDUCT. ACTION: The Commission voted to add this item to the agenda. . Attorney Harold Rosen, representing U.S. Partners, (owners of 1045,5th Street) advised that his clients would be constructing a restaurant/theater at that location and would abide by the City's laws. He expressed his objections to a delay in the issuance of a Building Permit, and warned of possible legal action. Attorney David H. Nevel, representing Cobb Partners Development, Inc., requested that the proposed ordinance be referred to the Planning Board if necessary, to expedite the process. Proposed ordinance referred to the Planning Board and Community Affairs Committee (CAC) for review/recommendation. Commissioner Arkin asked that the CAC investigate other cities' recently-adopted ordinances to ensure the completeness of the proposed ordinance. OCT 3i,'14e Also see related item R-9A. A. COMMISSION MEMORANDUM NO. 610-89 ( SUBJECTS BEFORE THE PLANNING BOARD MEETING SCHEDULED FOR DECEMBER 5, 1989. P ACTION: Reported for information only, no action required or taken: 1) Roberto P. Tobas request for Conditional Use approval for the conversion of a structure located at 920-926 Alton Road into a Middle School. 2) Oscar Giraldo request for Conditional Use approval for construction of a boat dock that projects 80' into waterway at 1707 Cleveland Road. 3) City Manager request for approval of the 1989/90 - 1993/94 Capital Improvements Program. 4) City Manager request for consideration of amending the Comprehensive Plan to incorporate the Safe Neighborhood plans for Safe Neighborhood Improvement Districts No. 1 & 2. 4 5) City Manager request for consideration of a Zoning Ordinance amendment regarding a distance separation for alcoholic beverage establishments which permit nudity, and \ - prohibiting the serving of alcohol in establishments which permit nudity. City Manager request for consideration of a Zoning Ordinance amendment that restricts the r" b, location of adult motion picture theaters. I. '"- Note: Because the Planninv Board members were not appointed until 12/6/89. its 12/5/89 - - DD! 0 see related item R-8C and SNID Action Summary (attached). Nov. 1 5 1969 FLORIDA 33139 "VA CA TIO,h1LA~\'D U. S A. " OFFICE OF THE ClTY MANAGER ROB W. PARKINS ClTY MANAGER ClTY HALL 1700 CONVENTION CENTER DRIVE TELEPHONE: 673-7010 COMMISSION MEMORANDUM NO. 13;fill TO: FROM: SUBJECT: AMENDMENT TO THE CITY CODE REGULATING NUDITY IN ALCOHOLIC BEVERAGE ESTABLISHMENTS SDMMARY OF THE PROPOSED ORDIXBNCE 1. Prohibits Total Nudity and Sexual Conduct in alcoholic beverage establishments anywhere in the City. 2. Permits Partial Nudity (topless dancing with performers wearing a G-string that covers the cleft of the buttocks and the pubic area) in alcoholic beverage establishments provided that certain mandatory standards are maintained. These are: Partially nude performers shall not dance or simulate sex with any person. Partially nude performers shall perform at least 3 feet away from any other person. Partial Nudity in screened or partitioned areas is prohibited. Performers may not converse with patrons before, during or after a performance. Prostitution is prohibited. Illegal drugs are prohibited. The building shall comply with all applicable building, fire and property maintenance standards and codes. A Certificate of Use/Occupational License shall not be issued until all codes are complied with. 3. Grandfathers in existing establishments for Partial Nudity only. They shall also meet mandatory standards. 4. Does not provide for distance separations, locational restrictions (schools, places of worship, parks, playgrounds, Redevelopment area, residential uses) variance exemptions or minimum number of rooms in hotel buildings. These types of controls may only be included in the Zoning Ordinance rather than the City Code. The Planning Board will consider a Zoning Ordinance amendment that addresses these regulations on January 15, 1990 at 7:00 p.m. in the City Commission Chambers. 5. Provides for penalties of fines and imprisonment as per Section 1-8 of the City Code. AGENDA ITEM - 1- ?-(??I BACKGROUND On December 20, 1989, the City Commission held a public hearing to cpnsider an amendment to the City Code prohibiting nudity in alcoholic beverage establishments. The first proposed ordinance applied to all establishments, whether currently operating or proposed in the future. 7 Several Commissioners expressed concerns over the previously proposed ordinance including the desire to allow hotels to show Parisian-style revues which generally include Partial Nudity. Also a matter of some concern was the immediate effect of the ordinance upon existing establishments. At the conclusion of the discussion, City Commissioners directed the' City Attorney's Office and Administration to meet with attorneys for current and proposed nude establishments (The meeting could not be scheduled until January 2, 1990, due to vacation schedules of the attorneys representing nude bar owners). The City Commission voted to refer the Ordinance back to the City Attorney for revisions which would reflect the comments made during the hearing. ANALYSIS OF PROPOSED REVISED ORDINANCE The revised ordinance proposed by the City Administration is less restrictive than the ordinance banning all nudity (including toplessness) and sexual conduct. This new ordinance prohibits Total Nudity and Sexual Conduct in alcoholic beverage establishments anywhere in the City; but, permits Partial Nudity in such establishments provided that certain mandatory requirements are met. Partial Nudity refers to completely topless performers who are wearing a minimum of a G-string which covers the cleft of the buttocks and the pubic area. The mandatory requirements affecting partial nudity in alcoholic beverage establishments are as indicated in the summary of this memorandum. The proposed Ordinance does not grandfather in the existing establishments (Thrillers - 1716 Alton Rd. and Showgirls .- 215 - 22nd St.) for total nudity and sexual conduct. It does, however, permit them to have topless dancing if the mandatory criteria are met. This proposed City Code amendment does not include any distance separation requirements or locationalrestrictions (schools, places of worship, parks, playgrounds, Redevelopment area, residential uses) on alcoholic beverage establishments permitting Partial Nudity. These further restrictions can only be contained within a Zoning Ordinance amendment as they relate to land use issues. A Zoning Ordinance amendment further restricting Partial Nudity in alcoholic beverage establishments was presented to the Planning Board on December 27, 1989. At that time, the Board deferred action on the Ordinance until January 15, 1990. On January 17, 1990, the City Commission will be asked to set a public hearing on first reading of a proposed Zoning Ordinance amendment further restricting nude bars, but permitting Partial Nudity in hotels with at least 300 rooms. Administration Recommendation The Administration recommends that the City Commission adopt the attached Ordinance. RWP: JK: SRP: jm .CITY OF MIAMI BEACH . . - ' CITY OF MIAMI BEACH CITY HALL 1700CClNVENTiON CENTER DRIVE MIAkqI BEACH FLORIDA 33739 OFFICE OF THE CITY MANAGER TELEPHONE: (305) 673-7010 FU(: (305) 673-T1K NOTICE December 29, 1989 Mr. David H. Nevel Attorney 407 Lincoln Road, Suite 12 D Miami Beach, FL 33139 SUBJECT: ORDINANCE REGARDING "TOTAL AND PARTIU NUDITY ?ND SEXUAL CONDUCT IN ALCOHOLIC BEVERAGE ESTABLISHMENTS8' The above-referenced subject matter has been placed on the agenda of the.City Commission to be held on January 3, 1990. This item is listed on the agenda under the category of R-5, Ordinances -- First Reading. The City Commission meeting begins at 9:30 a.m. and is held in the Commission Chambers, 3rd Floor, City Hall, 1700 Convention Center Drive. RWP: jh Enclosure JAN 3 1990 CDN OF MlAhll BEACH ORDINANCE NO. AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF' MIAMI BEACH, FLORIDA MAKING FINDINGS OF FACT, AMENDING MIAMI BEACH CITY CODE CHAPTER 18, ENTITLED "INTOXICATING LIQUORS" BY ADDITION OF ARTICLE 11, ENTITLED "TOTAL AND PARTIAL NUDITY AND SEXUAL CONDUCT IN ALCOHOLIC BEVERAGE ESTABLISHMENTS," PROHIBITING TOTAL NUDITY OR SEXUAL CONDUCT INEBTABLISBMENTS WHERE ALCOHOLIC BEVERAGES, BEER OR WINE ARE SOLD OR OFFERED FOR SALE FOR CONSUMPTION ON THE PREMISES AND PROHIBITING ANY PERSON MAINTAINING, OWNING OR OPERATING SAID ESTABLISHMENTS FROM PERMITTING OR SUFFERING TOTAL NUDITY OR SEXUAL CONDUCT THEREIN; ESTABLISHING MANDATORY REQUIREMENTS FOR ALCOHOLIC BEVERAGE ESTABLISHMENTS PERMITTING PARTIAL NUDITY; PROVIDING FOR PENALTIES; PROVIDING FOR SEVERABILITY; REPEALING ALL ORDINANCES IN CONFLICT THEREUITH; PROVIDING FOR AN EFFECTIVE DATE. BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA: Section 1. Findinqs That the City Commission of the City of Miami Beach, Florida makes the following findings: a) A number of alcoholic beverage establishments in the City of Miami Beach, Florida, permit or suffer Total or Partial Nudity or Sexual Conduct as defined herein within their establishments. b) A number of alcoholic beverage permittees have indicated an intention to create new establishments in Miami Beach, Florida, which will permit or suffer Total or Partial Nudity or Sexual Conduct within such establishments. c) Some other local municipalities have recently prohibited Total or Partial Nudity and Sexual Conduct, as defined herein, in establishments where alcoholic beverages, beer or wine are sold or offered for sale for consumption on the premises; the potential exists for some establishments which have been prohibited in those municipalities to relocate in Miami Beach. d) Studies conducted by other local governments and reports from police departments have indicated that there is a direct relationship between adult entertainment establishments, (especially those which sell alcoholic beverages for on-premises consumption, ) and such adverse secondary impacts upon the community as neighborhood deterioration, reduction in property values and increased crime, especially prostitution, rape, indecent exposure AGENDA I TEN 3-5-A DATE and child molestation; some of the most notable studies are the Minneapolis ~equlation of Sexuallv Oriented Businesses conducted in 1989, the Saint Paul Minnesota Planning and Economic Development and the Minnesota Crime Control planning 'Board's study, Effects on Surroundinq Area of Adult Entertainment Businesses in Saint Paul, conducted in June of 1978, and the study conducted by the Phoenix Arizona Planning Department in 1979 entitled Relation of criminal Activity and Adult Businesses. e) Reports from the City of Miami Beach Police Department indicate occurrences of the above-stated adverse secondary effects in connection with nude bars currently in operation in Miami Beach. f) Due to the above-stated adverse secondary effects associated with alcoholic beverage establishments which permit Total Nudity or Sexual Conduct as defined herein on their premises, such establishments constitute a nuisance in this community. Partial Nudity constitutes a nuisance unless such establishments comply with the mandatory requirements set forthe herein. g) In citv of Renton v. Playtime Theaters, Inc., 106 5.Ct. 925 (1986), the United States Supreme Court held that cities have the authority to enact preventative legislation regarding adult entertainment to protect the quality of life within their communities. h) In International Food & Beverases Systems v. Citv of Fort Lauderdale, 664 F.Supp. 482 (S.D. Fla. 1987), aff'd, 838 F.2d 1220 (1988), and Fillinqim v. Boone. 835 F.2d 1389 (11th Cir. 1988), federal courts have recently held that municipalities in Florida may exercise the State's authority under the Twenty-first Amendment to the United States constitution to prohibit nude and semi-nude entertainment in establishments which sell alcoholic beverages for consumption on the premises. i) In order to preserve the public peace and good order and to safeguard the health, safety and welfare of the community and citizens of Miami Beach, Florida, it is necessary and advisable to prohibit Total Nudity or Sexual Conduct in alcoholic beverage establishments and to establish mandatory requirements for alcoholic beverage establishments permitting or suffering Partial Nudity. Section 2. Addition of Article II to City Code Chapter 18 That Miami Beach City Code Chapter 18, entitled "Intoxicating Liquorsw be amended by the addition of an Article 11, entitled "Total and Partial Nudity and Sexual Conduct in Alcoholic Beverage Establishmentsn to read as follows: CEAPTER 18 INTOXICATING LIQUORS Article 11. Total and Partial Nudity and Sexual Conduct In Alcoholic Beverase Establishments. 3 18-8. Definitions. 5 18-9. Total Nudity and Sexual Conduct prohibited. 2 18-10. Mandatory reuuirements established for Alcoholic Beveraqe Establishments ~ermittinq Partial Nudity. 3 18-11. Enforcement and Penalties. Article 11. Prohibited Nuditv and Sexual Conduct In Alcoholic Beverase Establishments. Sec. 18-8 Definitions. The followins words and ~hrases. when used in this Article, shall have the meaninus respectivelv ascribed to them as follows: 111 EIAlcoholic Beveraqe EstablishmentE1 means any establishment located in the Citv of Miami Beach. Florida at which alcoholic beverases, beer or wine are offered for sale for consum~tion on the ~remises. 121 EqA1~~holi~ Beverase" , "BeerE1 and EEWinelq shall have the meaninus set forth in Florida Statutes Sections 561.01 f4), 563.01, and 564.01 res~ectivelv. (3) "Nudity, Partial" means the exhibition bv anv female person to anv other person of anv portion of the areola. /4) n8Nuditv, Totalnn means the showina of all or anv portion of the cleft of the human male or female buttocks with less than a full ouame coverinq; the depiction of covered male qenitals in a discerniblv turqid state; the exhibition bv anv person to anv other person. of his or her qenitals, ~ubic area, vulva. anus, anal cleft or cleavaqe, or anv uortion of the f oreaoinq s~ecif ied anatomical areas, or anv simulation thereof. (5) "Personn1 means an individual. corvoration, f inn. partnershiv. limited partnership, association, joint stock association, estate. trust or business entity. "Sexual Conductm means anv sexual intercourse, masturbation. sodomv , bestialitv, oral co~ulation, flaaellation, anv sexual act which is ~rohibited bv law, touchinq. caressinq or fondlinq of the breasts, buttocks or anv portion thereof, anus or aenitals or the simulation thereof. Section 18-9. Total Nudity and Sexual Conduct Prohibited. (1) It shall be unlawful for anv Person maintainina, owninq, manaqinq or operatins an Alcoholic Beveraqe Establishment to knowinalv, or with reason to know, suffer or vermit Total Nuditv or Sexual Conduct to occur on the premises of that Alcoholic Beverase Establishment. /2) It shall be unlawful for anv person, while on the uremises of an Alcoholic Beveraae Establishment to expose to public view those portions of his or her anatomv, defined herein as Total Nuditv, or enqaqe in anv Sexual Conduct. Section 18-10.Handatory reauirements established for Alcoholic Beveraae Establishments permittins Partial Nuditv. No Person shall own, operate, manaqe, work or perform at anv Alcoholic Beveraqe Establishment which permits Partial Nuditv on the premises unless the followins mandatorv reauirements are observed therein: 1. Persons enqaqed in displavins Partial Nudity are - prohibited from dancinq or simulatina sexual activity with any ~atron, spectator, employee or other person on the premises. 2. No verson shall enqaqe in the disnlav or exposition - of Partial Nuditv except while the person is positioned at least three 13) feet from another person. 3. No Person maintainins, ownins or operatina such an - Establishment shall suffer or permit the construction. maintenance, or use of areas partitioned or screened from vublic view that are desisned to be occupied or are commonlv occuvied alone or tosether bv anv person or Dersons on the premises of such Establishment for private performances involvinq the displav or exhibition of Partial Nuditv. 4. No person on the premises of such Establishment - shall be permitted to use or to be present in areas partitioned or screened from public view that are desisned to be occupied tosether or alone by any person or persons on the premises of such Establishment for the display or exhibition of Partial Nuditv. 5. No person who performs in the Establishment shall - be permitted to converse with patrons while on the premises ~rior to , durinq, or after a ~erformance. 6. Prostitution or solicitation for prostitution as - defined in the Florida Statute Section 768.01 shall not occur on the premises; 7. There shall be no sale or use of controlled - substances as defined in Florida Statute Section 893-0214) on the premises: 8. The Establishment shall be in compliance with all - applicable fire, property maintenance and buildinq codes at all times. If a ~uildinq is a Historic structure as defined in Section 3-2.80 of City of Miami Beach Zoninq Ordinance No. 89-2665, it shall conform with the U.S. Secretarv of Interior's Standards for Historic Places; and. 9. A Certificate of Use or Occupational License shall - not be issued until the City Manaser or his desisnee receives reports from the City's Police, Fire, Buildins and Code Enforcement De~artments that the above resulations have been complied with. Section 18-11. Enforcement and Penalties. Section 18-9 of this Article shall be enforced as provided in Section 25 of the Citv Charter and violations of Section 18-9 shall be punished as provided in Miami Beach Citv Code Section 1-8. Section 3. Severability. If any section, subsection, clause or provision of this Ordinance is held invalid, the remainder shall not be affected by such invalidity. Section 4. Re~ealer. All Ordinances or parts of Ordinances in conflict herewith be and the same are hereby repealed. Section 5. Effective Date. This Ordinance shall take effect on the day of , 1989. PASSED and ADOPTED this day of I 19. MAY OR ATTEST : CITY CLERK commisn\cordnude ORDINANCE NO. AN ORDINANCE OF THE CITY COMHISSION OF THE CITY OF MIAMI BEACH, FLORIDA MAKING FINDINGS OF FACT, AMENDING MIAMI BEACH CITY CODE CHAPTER 18, ENTITLED "INTOXICATING LIQUORS" BY ADDITION OF ARTICLE 11, ENTITLED "TOTAL AND PARTIAL NUDITY AND SEXUAL CONDUCT IN ALCOHOLIC BEVERAGE ESTABLISHMENTS," PROHIBITING TOTAL NUDITY OR SEXUAL CONDUCT IN ESTABLISHMENTS WHERE ALCOHOLIC BEVERAGES, BEER OR WINE ARE SOLD OR OFFERED FOR SALE FOR CONSUMPTION ON THE PREMISES AND PROHIBITING ANY PERSON MAINTAINING, OWNING OR OPERATING SAID ESTABLISHMENTS FROM PERMITTING OR SUFFERING TOTAL NUDITY OR SEXUAL CONDUCT THEREIN; ESTABLISHING MANDATORY REQUIREMENTS FOR ALCOHOLIC BEVERAGE ESTABLISHMENTS PERMITTING PARTIAL NUDITY: PROVIDING FOR PENALTIES; PROVIDING FOR SEVERABILITY; REPEALING ALL ORDINANCES IN CONFLICT THEREWITH; PROVIDING FOR AN EFFECTIVE DATE. BE IT ORDAINED BY THE CITY COMPlISSION OF THE CITY OF MIAKI BEACH, FLORIDA : Section 1. Findings That the City Commission of the City of ~iami Beach, ~lorida makes the following findings: a) A number of alcoholic beverage establishments in the City of Miami Beach, Florida, permit or suffer Total or Partial Nudity or Sexual Conduct as defined herein within their establishments. b) A number of alcoholic beverage permittees have indicated an intention to create new establishments in Miami Beach, Florida, which will permit or suffer Total or partial Nudity or Sexual Conduct within such establishments. c) Some other local municipalities have recently prohibited Total or Partial Nudity and Sexual Conduct, as defined herein, in establishments where alcoholic beverages, beer or wine are sold or offered for sale for consumption on the premises; the potential exists for some establishments which have been prohibited in those municipalities to relocate in Miami Beach. d) Studies conducted by other local governments and reports from police departments have indicated that there is a direct relationship between adult entertainment establishments, (especially those which sell alcoholic beverages for on-premises consumption,) and such adverse secondary impacts upon the community as neighborhood deterioration, reduction in property values and increased crime, especially prostitution, rape, indecent exposure and child molestation; some of the most notable studies are the Minneapolis Report of the Attorney General's Workinq Group on the Resulation of Sexuallv Oriented Businesses conducted in 1989, the Saint Paul Minnesota Planning and Economic Development and the Minnesota Crime Control Planning Board's study, Effects on Surroundinu Area of Adult Entertainment Businesses in Saint Paul, conducted in June of 1978, and the study conducted by the Phoenix Arizona Planning Department in 1979 entitled Relation of Criminal Activitv and Adult Businesses. e) Reports from the city of Miami Beach Police Department indicate occurrences of the above-stated adverse secondary effects in connection with nude bars currently in operation in Miami Beach. f) Due to the above-stated adverse secondary effects associated with alcoholic beverage establishments which permit Total Nudity or Sexual Conduct as defined herein on their premises, such establishments constitute a nuisance in this community. Partial Nudity constitutes a nuisance unless such establishments comply with the mandatory requirements set forthe herein. g) In Citv of Renton v. Plavtime Theaters, Inc., 106 5.Ct. 925 (1986), the United States Supreme Court held that cities have the authority to enact preventative legislation regarding adult entertainment to protect the quality of life within their communities. h) In International Food & Beveraqes Svstems v. Citv of Fort Lauderdale, 664 F-Supp. 482 (S.D. Fla. 1987), affld, 838 F.2d 1220 (1988), and Fillinsim v. Boone, 835 F.2d 1389 (11th Cir. 1988), federal courts have recently held that municipalities in Florida may exercise the State's authority under the Twenty-first Amendment to the United States Constitution to prohibit nude and semi-nude entertainment in establishments which sell alcoholic beverages for consumption on the premises. i) In order to preserve the public peace and good order and to safeguard the health, safety and welfare of the community and citizens of Miami Beach, Florida, it is necessary and advisable to prohibit Total Nudity or Sexual Conduct in alcoholic beverage establishments and to establish mandatory requirements for alcoholic beverage establishments permitting or suffering Partial Nudity. Section 2. Addition of Article I1 to City Code Chapter 18 That Miami Beach City Code Chapter 18, entitled rtIntoxicating Liquors" be amended by the addition of an Article 11, entitled "Total and Partial Nudity and Sexual Conduct in Alcoholic Beverage Establishmentsn to read as follows: CHAPTER 18 INTOXICATING LIQUORS Article 11. Total and Partial Nuditv and Sexual Conduct In Alcoholic Beverage Establishments. g 18-8. Definitions. 6 18-9. Total Nudity and Sexual Conduct prohibited. 2 18-10. Mandatorv requirements established for Alcoholic Beverage Establishments ~ermittinq Partial Nudity. g 18-11. Enforcement and penalties. Article 11. Total and Partial Nudity and Sexual Conduct In Alcoholic Beveraqe Establishments. Sec. 18-8 Definitions. The followinq words and whrases, when used in this Article, shall have the meaninqs respectivel~ ascribed to them as follows: (1) "Alcoholic Beveraqe Establishmentu means anv establishment located in the Citv of Miami Beach. Florida at which alcoholic beveraaes. beer or wine are offered for sale for consumption on the premises. /2) "Alcoholic Beveraqem. "Beerr1 and "WineN shall have the meaninqs set forth in Florida Statutes Sections 561.01 (4) . 563.01, and 564.01 reswectivelv. f ~~~E.;~n~e5s= - . - -- , ... ,.;; :-, Za+ 7 - -: .-.,-, ", - , i.. i". . .J ; %I;<,? !!:.::iv<&:: ;ig<T "Nudity. Partial" means the exhibition bv any female person to any other person of anv portion of her breasts fallins below the areola, or anv simulation thereof (which definition shall include the entire lower portion of the human female breast. but shall not include any portion of the cleavase of the human female breast exhibited bv a dress. blouse, shirt, leotard, bathins suit, or other wearins apparel, provided the areola is not so exposed). "Nuditv. Total" means the showina of all or anv portion of the cleft of the human male or female buttocks with less than a full opauue coverins; the showins of all or any portion of the female areola; the depiction of covered male senitals in a discerniblv turaid state: the exhibition bv anv person to anv other person, of his or her qenitals, pubic area. vulva, anus, anal cleft or cleavase, or anv portion of the foresoins s~ecified anatomical areas. or anv simulation thereof. (5) l'Personw means an individual, cor~oration, firm, partnership, limited partnership. association, ioint stock association, estate. trust or business entitv. (6) "Sexual Conductf1 means anv sexual intercourse, masturbation, sodomy, bestialitv. oral co~ulation. flaqellation, anv sexual act which is prohibited bv law. touchins. caressins or fondlins of the breasts, buttocks or anv portion thereof, anus or qenitals or the simulation thereof. Section 18-9. Total Nudity and Sexual Conduct Prohibited. II) It shall be unlawful for anv Person maintaininq, ownins, manaqins or operatins an Alcoholic Beveraue Establishment to knowinslv, or with reason to know, suffer or permit Total Nuditv or Sexual Conduct to occur on the premises of that Alcoholic Beverase Establishment. 12) It shall be unlawful for any person, while on the premises of an Alcoholic Beveraue Establishment to expose to public view those portions of his or her anatomy, defined herein as Total Nuditv, or ensase in anv Sexual Conduct. Section 18-10.Mandatory requirements established for Alcoholic Beverase Establishments ~ermittins Partial Nudity. No Person shall own, operate, manaqe, work or perform at any Alcoholic Beveraqe Establishment which permits Partial Nuditv on the premises unless the followins mandatory remirements are observed therein: 1. Persons ensaued in displavins Partial Nuditv are - prohibited from dancinu or simulatinq sexual activitv with any patron. spectator. emplovee or other person on the premises. 2. No person shall enaaqe in the diswlav or exposition - of Partial Nuditv except while the person is positioned at least three (3) feet from another person. 3. No Person maintaininq, owninu or operatinu such an - Establishment shall suffer or permit the construction, maintenance, or use of areas partitioned or screened from wublic view that are desiqned to be occupied or are commonlv occupied alone or tosether bv anv person or persons on the JAN :3 1039 CiTY nc 0nzn-". premises of such Establishment for private performances involvins the displav or exhibition of Partial Nuditv. 4. No person on the premises of such Establishment - shall be permitted to use or to be present in areas partitioned or screened from ~ublic view that are desisned to be occupied tosether or alone bv anv person or persons on the premises of such Establishment for the displav or exhibition of Partial Nuditv. 5. No Derson who performs in the Establishment shall - be permitted to converse with patrons while on the premises prior to , durins, or after a performance. 6. Prostitution or solicitation for prostitution as - defined in the Florida Statute Section 768.01 shall not occur on the premises: 7. There shall be no sale or use of controlled - substances as defined in Florida Statute Section 893-02I41 on the premises: 8. The Establishment shall be in comvliance with all - applicable fire, propertv maintenance and buildinq codes at all times. If a Buildins is a ~istoric structure as defined in Section 3-2.80 of Citv of Miami Beach Zoninq Ordinance No. 89-2665, it shall conform with the U.S. ~ecretarv of Interior's Standards for Historic Places; and, 9. A Certificate of Use or Occupational License shall - not be issued until the Citv Manaser or his desisnee receives reports from the Citvls Police. Fire. Buildina and Code Enforcement Departments that the above requlations have been complied with. Section 18-11. Enforcement and Penalties. Section 18-9 of this Article shall be enforced as provided in Section 25 of the City Charter and violations of Section 18-9 shall be -2em,7;F*Q...... c;:zcG* t=+. .. % d> 7. ,: .>,%;..?&:**> ..?. , s::<g'p$;i; 6 i?Li.* * J* - -4 punished as ~rovided in Miami Beach Citv Code Section 1-8. Section 3. Severabilitv. If any section, subsection, clause or provision of this Ordinance is held invalid, the remainder shall not be affected by such invalidity. Section 4. Repealer. All Ordinances or parts of Ordinances in conflict herewith be and the same are hereby repealed. Section 5. Effective Date. This Ordinance shall take 'effect on the day of , 1989. PASSED and ADOPTED this day of I 19. MAY OR ATTEST : CITY CLERK 1st Reading 1/3/90 FORM APPROVED LEGAL DEPARTMENT ayp2 31.& DA~E: //,./p.- --- "" 5:z."m, &xg@fg JAN 3 8% W&&J~ Bfip~ THE REGULATION OF ADULT ENTERTAINMENT ESTABLISHMENTS IN THE CITY OF MIAMI BEACH: ANALYSIS, FINDINGS AND RECOMMENDATIONS PERTAINING TO NUDITY AND SEXUAL CONDUCT IN ALCOHOLIC BEVERAGE ESTABLISHMENTS Prepared by the City of Miami Beach Department of Planning and Zoning December, 1989 C0t1F3$SS~~ '?&E$Tjpjc fC J?.N 3 1990 CITY OF ~AiAMI BEACH MIAMI BEACH CITY COMMTSSION Alex Daoud, Mayor Stanley H. Arkin Abe Hirschfeld Abe Resnick Martin Shapiro William E. Shockett Bruce M. Singer Rob W. Parkins, City Manager Carla Talarico, Assistant City Manager Ron Rumbaugh, Assistant City Manager Lucia A. Dougherty, City Attorney Pat Brown, First Assistant City Attorney Sandra Schneider, Assistant City Attorney MIAMI BEACH PLANNING BOARD Joy Alschuler Keith Kovens Norman Frank Ralph S. Mizrahi Steve Hertz James Silvers Neisen 0. Kasdin Jud Kurlancheek, Planning and Zoning Director Shaye Prather, Principal Planner Barbara Carroll, Planning Technician Denny Gibbs, Management Intern Charles Buckles, Landscape Architect CITY OF F41Alb7!11 BEACH Table of Contents I. Introduction A. Background B. Purpose of the Study C. Scope of the Study 11. National, State and Local Trends in the Regulation of Adult Entertainment Establishments A. What is Adult Entertainment? B. History of Adult Entertainment Regulation C. Legal Considerations in Regulating Adult Entertainment D. Secondary Impacts of Adult Entertainment Uses E. Adult Entertainment Ordinances in Other Communities 111. Adult Entertainment in Miami Beach A. Current, Previous, and Proposed Establishments in the City B. Past Concerns Over Adult Entertainment in Miami Beach C. Consistency with Adopted City of Miami Beach Plans IV. Analysis of Proposed Ordinance V. Administration Findings and Recommendations VI. Sources A. Footnotes B. Bibliography Page 1 JAN 3 1990 GIN OF kfi~r?~~ 2~~c1-1 I. INTRODUCTION A. Background On'October 31, 1989, the Miami Beach City Commission received two proposed ordinances pertaining to the regulation of cer.tain types of adult entertainment establishments in the City of Miami Beach. A draft ordinance was prepared by David H. Nevel, attorney for Cobb Partners Development, Inc., an organization which is developing a $35 million residential project in the South Pointe Redevelopment Area. Cobb Partners is concerned about the potential negative impact of a proposed nude dancing club in the immediate vicinity of the Cobb project. Thus, the ordinance proposed by Cobb partners is a zoning ordinance amendment which restricts live nude entertainment and sexual conduct when combined with the on-premises sale of alcoholic beverages. The ordinance proposed by the City Administration is ma zoning ordinance amendment, but rather, an amendment to the City Code which prohibits nudity and sexual conduct in alcoholic beverage establishments in Miami Beach. As such, this prohibition will extend to all establishments, whether currently operating or proposed in the future. A third ordinance, drafted by the City Attorney's Office at the request of the Mayor, restricts the location of adult motion picture theaters and other adult entertainment uses which do not involve the on-premises sale of alcoholic beverages. This will be addressed in a separate staff report on the date listed below. The City Commission referred'the draft Zoning Ordinance amendments to the Miami Beach Planning Board for review and recommendations. Public hearings on these ordinances have been scheduled for 5:00 p.m. and 215 p.m.on December 27, 1989. The public hearing on first reading of the City Code amendment prohibiting nudity and sexual conduct in alcoholic beverage establishments has been set for the City Commission meeting of December 20, 1989 at 1 1:05 a.m. Many of the studies and regulations adopted by other municipalities are combined into more generalized "adult entertainment" classifications, rather than limited to adult movies, dancing, etc. As such, the Planning and Zoning Department has chosen to analyze and document national trends on this combined basis, although the analysis and recommendation in this report pertains only to nudity and sexual conduct in alcoholic beverage establishments. B. Purpose of the Study The purpose of this staff report is to provide the City Commisssion with sufficient data and analysis regarding the operation, impacts, and regulation of adult entertainment establishments to enable the Commission to make informed, intelligent findings as they relate to nude dancing establishments in the City of Miami Beach. These findings can form the basis by which the City Commission may choose to recommend an ordinance prohibiting such uses. It is most important to note, from the outset, that the intent of this document is not to pass moral judgement on the content of adult entertainment activities. To do so might be construed , to be an abridgement of First Amendment rights1, and the Planning and Zoning Department is not motivated by any desire to suppress freedom of speech or expression. The City Commission is being asked to consider the ~econdarv im~acts upon our community of the operation of adult entertainment uses. These secondary impacts can include but are not necessarily limited to: increased crime, decreased property values, neighborhood deterioration, and a decline in the quality of life. C. Scope of the Study This analysis of adult entertainment establishments relies heavily upon a detailed review of adult entertainment planning studies and ordinances from other locations throughout the United States. Section 11 - National, State, and Local Trends ... is particularly important for the City Commission to consider in light of two U.S. Supreme Court decisions which upheld similar adult entertainment regulations. In Renton v. Playtime Theatres. Inc. (1986), the Court ruled that a municipality is entitled to rely on the experience and studies of other cities in adopting its zoning restrictions. This case involved an adult motion picture theater ordinance in Renton, Washington. Also, in Newport v. Iacobucci (1986), the Supr'eme Court upheld Newport, Kentucky's ordinance banning live nude entertainment when combined with the sale of alcoholic beverages, supporting the municipality's use of planning studies from other local governments in the United States. Section I1 also contains a description of adult entertainment uses, a brief history of the regulation of these uses, discussion of the legal considerations in adopting adult entertainment restrictions, and a detailed analysis of secondary impacts proven to be created by such businesses in other locations in the United States. e,q ,> ,>E53zE,.r4-C.-= , ...,, :': .+.> '-y=.-' had&2; cc4z:> :.!;?&a Section I11 of this document provides an overview of the situation in Miami Beach, including a discussion of previous, existing, and proposed adult entertainment establishments, concerns and testimony provided in past years regarding these uses, and reports from the Miami Beach Police Department and Metro-Dade Vice Squad regarding some of the establishments and the surrounding crime. We have also considered the secondary impacts created by the potential increase in numbers of such businesses on Miami Beach, as well as the goals, objectives, and policies of the City as set forth in the Year 2000 Comprehensive Plan and the South Shore Revitalization Strategy. Section IV contains an analysis of the proposed ordinance, Section V contains findings and recommendations, and Section VI consists of footnotes and an extensive bibliography of source documentation which is available to the City Commission and interested parties for additional information on this subject. 11. NATIONAL, STATE AND LOCAL TRENDS IN THE REGULATION OF ADULT ENTERTAINMENT ESTABLISHMENTS A. What is Adult Entertainment? In the majority of planning studies, local ordinances, and other research, the term "adult entertainment" specifically refers to those businesses which are sexually oriented. Typically, these establishments include adult bookstores and movie theaters, massage parlors, adult booths (peep shows), nude modeling studios, and clubs, bars, and theaters which feature live nude performances or sexual conduct on the part of the employees. A new related business in the adult entertainment industry is the rapidly expanding number of video stores which specialize in rentals and sales of X-rated films on video cassette. According to Lester Baker, President of the Adult Film Association of America, 65 million people rented or purchased X-rated videos in 1984.~ Other new trendy adult businesses include: 1) stores which sell erotic paraphernalia (these are often included in the definitions of adult bookstores), 2) escort services, 3) body painting businesses, 4) nude wrestling and boxing, and 5) lingerie studios. Although, arguably - bars, nightclubs, pool halls, and similar uses also constitute adult entertainment - (Detroit includes bars and pinball parlors in its ordinance), for the purpose of this study, only those business types which feature nudity, sexual conduct, or sexually oriented products shall be the primary subject matter of the report. B. History of Adult Entertainment Regulation Over the past twenty-five years, the growth of the adult entertainment industry throughout the United States has led to concern in many communities over the effects of such businesses upon children, neighborhood deterioration and. decreased property values, increased crime, decline in the quality of life, and the moral implications for society at large. Public pressure has often resulted in wide-ranging legislative efforts designed to control and in many cases, eliminate, adult movie theaters and bookstores, topless bars, massage parlors, and other forms of X-rated entertainment. Some of the restrictions have been upheld in court ..... many have not. The issues relating to constitutionally protected freedom of expression and freedom of speech have frequently resulted in overturned ordinances relating to regulation of adult entertainment enterprises. Too many of the earlier restrictions attempted to control or prohibit the content of the activity itself, i.e., prohibitions against showing pornographic movies. Since many of the adult entertainment uses, particularly bookstores and motion picture theaters, are protected by the First Amendment of the U.S. Constitution, their regulation is subject to the strict scrutiny test which was originally set forth in United States v. O'Brien (1968). Under that test, "the governmental regulation is sufficiently justified, despite its incidental impact upon a First Amendment interest, (1) if it is within the constitutional Power of the government; (2) if it furthers an important or substantial governmental interest; (3) if the government interest is unrelated to a suppression of free expression; and (4) if the incidental restriction on First Amendment freedom is no greater than is essential to the furtherance of an interest"? Courts have and will continue to look closely at regulations involving sex businesses to ensure that the above-mentioned test is met, and that local governments have not infringed upon those rights of the businesses themselves. In the early 19601s, planners in some communities began to distinguish between adult theal;ers and bookstores and conventional theaters and bookstores as they affected the community. BY focusing on the effects of sex businesses and not on the content of their products, it was possible to treat the adult theaters and adult bookstores like any other uses in the zoning code, thus taking the effective step in controlling them."' i=-77L:.ie ".C. L;:z;:;-,;.i;:;; According to Zoning and Land Use Controls: A combination of circumstances - including an apparent increase in public tolerance of pornography, the difficulties that law enforcement officials face in successfully prosecuting such cases, and growing official recognition of the near impossibility of eliminating pornography - led to innovative land use regulation to prevent the deterioration of commercial neighborhoods and deleterious effects upon adjacent areas. Most municipalities still continue to employ some of the more traditional approaches such as police raids, to enforce anti-obscenity laws.s Two of the earliest models for zoning regulation of adult entertainment uses came from Detroit and Boston. The approaches used in each city were quite different from one another. Detroit relied upon a "dispersal" method of controlling such uses by focusing on the relationship between adult entertainment uses and the "skid-row" effect created by such uses. As such, Detroit concluded that the most appropriate method of regulation was to require distance separations from churches, schools, parks, and residential zoning districts, as well as from other adult uses. Boston, on the other hand, chose to concentrate the effects of adult entertainment uses in one specific area by limiting them to an area in which a large number of pornographic uses, including bookstores, peep shows, adult theaters, and strip joints were already located. Thus, the "Combat Zone" approach was born. Although Boston undertook a number of other measures to fight the deterioration of the Combat Zone, the approach has not been extremely successful. Crime is rampant in the Combat Zone areas, and urban renewal efforts have done little to improve conditions. Although a few cities have followed Boston's approach, the majority of local land use regulations have relied upon the dispersal method of controlling such uses by requiring distance separations between similar uses. As is noted in Reeulatine Sex Businesses, another reason the majority of communities followed the Detroit model because its legality had been upheld by the U.S. Supreme C~urt.~ It is therefore more helpful to examine the precedents initially set by Detroit and later refined and modified by similar ordinances in other communities in order to create adult entertainment ordinances which are both legally defensible and which also meet the specific requirements of the City of Miami Beach. C. Legal Considerations in Regulating Adult Entertainment In Young v. American Mini-Theaters (I976), the U.S. Supreme Court upheld Detroit's ordinance which prohibited sexually oriented theaters, bookstoresand cabarets from locating within 1000 feet of two other such uses or within 500 feet of any residential area. The Court reasoned that the purpose for the ordinance was not to eliminate, suppress, or censor the speech itself, but to "preserve the quality of urban life" by avoiding the "secondary effects" on the community associated with such busine~ses.~ Five years later, the Court held an ordinance unconstitutional which excluded forms of live entertainment in a community, including adult entertainment. (Schad v. Borough of Ml. Ephraim, 1981). Perhaps the most significant case affecting the ability of municipalities to use zoning to regulate adult motion picture theaters is the 1986 U.S. Supreme Court decision in Renton v. Playtime Theatres, Inc. In a 7-2 decision, the Court upheld Renton, Washington's ordinance which restricted the location of adult motion picture theaters by prohibiting them within 1000 feet of any residential zone, single or multiple family dwelling, church, park, or school. The Court rejected Playtime Theatres' arguments that the 520 acres open to use as adult theater sites were not commercially viable because they were substantially developed and not currently available for sale or lease. The Court found that the Constitution does not compel local governments to ensure that adult theaters or other types of adult-oriented businesses will be able to obtain sites at bargain price^".^ Although the Court has not decreed that a specific amount of land or minimum number of locations is constitutionally required to be set aside for adult uses, access may be regarded as unduly restrictive if adult entertainment zones are unreasonably small in area or if the number of locations is unreasonably few. In Renton, the amount of land where adult motion picture theaters were permitted constituted more than five percent of the entire land area in the City. The Rentoil decision also set an important precedent in that the Supreme Court stated: "The First Amendment does not require a City, before enacting such an ordinance, to conduct new studies or produce evidence independent of that already generated by other cities, so long as whatever evidence the city relies upon is reasonably believed to be relevant to the problem that the city addresses". Earlier, in Young v. American Mini-Theaters (1976), the Court had stressed the importance of conducting detailed studies on the impacts of these uses. Similarly, in November, 1986, the Court, in City of Newport v. Zacobucci, decided that cities have a constitutional right to ban nude dancing and other adult entertainment in bars and other places that serve alcohol. The decision extended prior rulings that the Twenty-first Amendment, which repealed Prohibition and gave states the authority to regulate importation of alcohol, could override whatever protection the First Amendment's freedom of expression might otherwise offer nudity and nude dancing in bars. According to a 1987 article in the Zonine and Plannin~ Law Handbook. the City of Ne,vporl conclusively resolved three issues. First, nudity, whether or not obscene, may be banned completely in establishments licensed to sell liquor. Second, it is unnecessary to prove, or to offer evidence that nudity in liquor establishments is conducive to criminal behavior. A simple recital is sufficient, as the Court noted in Renton. Third, issues of state preempdion of local liquor control are irrelevant to the resolution of federal free speech questions. The case of Fort Lauderdale's recent ordinance banning the sale of alcohol in nude dancing establishments is currently under appeal, however, it appears that the Newporl ruling will support Fort Lauderdale's ordinance. D. Secondary Impacts of Adult Entertainment Uses There is considerable evidence nationally that a concentration of adult entertainment uses often results in an increase in crime, particularly prostitution, drugs, assault, and sex crimes. Also, such a concentration can lead to neighborhood deterioration and a decline in property values. Below are the results of several studies which correlated the effects of adult uses upon their respective communities. In 1983, the Indianapolis Planning Department conducted a national random survey of 20% of the American Institute of Real Estate Appraisers on the impact of adult entertainment uses on surrounding property values in a hypothetical neighborhood. The overwhelming majority responding to the survey (80%) felt that an adult bookstore would have a negative effect on residential property values within one block of the site. Furthermore, 72% felt that commercial property values within one block would also be affected. The negative impact dissipates markedly with distance. At three blocks, less than 40% of the appraisers predicted a negative impact. In addition, in 1984, Indianapolis studied the relationship between crime rates and sexually oriented bookstores, cabarets, theaters, arcades, and massage parlors. They discovered that major crimes, such as criminal homicide, rape, robbery, assault, burglary, and larceny, occurred at a rate that was.2396 higher in those areas which had sexually oriented businesses. They also found that the sex-related crime rate, including rape, indecent exposure and child molestation, was 77% higher in those areas with sexually oriented businesses. In defense of their ordinance prohibiting adult uses within 500 feet of a residential area or within 1000 feet of any two other adult uses, Detroit introduced extensive documentation that demonstrated the adverse socioeconomic and blighting impacts that adult entertainment ses have on surrounding development. That evidence consisted of reports and affidavits from sociologists, urban planners, and real estate experts, as well as some laymen, on the cycle of decay expected in Detroit from the influx and concentration of such establishments. The expert testimony indicated that the location of adult theaters attracted transients, adversely affected property values, caused an increase in crime, and encouraged residents and businesses to move elsewhere. Los ~nselesl~ In 1984, the Los Angeles,Police Department's Vice Division identified the adverse effects of concentrating adult entertainment businesses in a study entitled "The Current Status of Pornography and Its Effects on Society. As stated in the report, "the proliferation and clustering of sex-oriented businesses adversely impacts the crime rate in those adjacent areas .... The overwhelming increase in prostitution, robberies, assaults, thefts, and the proportionate growth in police personnel deployed throughout Hollywood are all representative of the blighting .... that the clustering of adult entertainment establishments has on the entire community. Amarillo. ~exasl" In "A Report on Zoning and Other Methods of Regulating Adult Entertainment Uses in Amarillo", the city's Planning Department concluded that adult entertainment businesses have adverse impacts on surrounding land uses and that these impacts can be distinguished from those of other businesses. The study found that street crime rates are considerably above the city's ave~@Ji@f~~~&~~edi3ely surrounding the adult-only businesses and that late at F.2 g>:y?$,g.@' rs;...Z=s sa2i: 4 16 , " .. .> o 1990 night, during their primary operating hours, these businesses created unique problems of noise, glare, and traffic. In June, 1988, the State of Minnesota, under Attorney General Hubert H. Humphrey 111, formed the Working Group on the Regulation of Sexually Oriented Businesses. The group heard testimony and conducted extensive research into the impacts of sexually oriented businesses . Testimony resulted in a conclusion that a concentration of sexually oriented businesses has serious impacts on a community. In St. Paul, for example, neighbors living near several adult establishments found used condoms in their lawns and sidewalks and discovered sex acts with prostitutes occurring on streets and alleys in plain view. Young girls and women were harassed by men on their way to school or work, and in the vicinity of a homosexual establishment, young boys were harassed, as well. Information presented to the Working Group indicated that the community impacts of sexually oriented businesses are primarily a function of two variables, proximity to residential areas and concentration. Property values are directly affected within a small radius of the location of a sexually oriented business. Concentration may compound depression of property values and may lead to an increase in crime sufficient to change the quality of life and perceived desirability of property in a neighborhood. According to the report: The evidence suggests that the impacts of sexually oriented businesses are exacerbated when they are located near each other. Police officers testified to the Working Group, that "vice breeds vice". When sexually oriented businesses have multiple uses (i.e. theater, bookstore, nude dancing, peep booths), one building can have the impact of several separate businesses. The Working Group heard testimony that concentration of sexually oriented businesses creates a "war zone" which serves as a magnet for people from other areas who "know" where to find prostitutes and sexual entertainment. The presence of bars in the immediate vicinity of sexually oriented businesses also compounds impacts upon the neighborhood. The Working Group also conducted research to assess the relationship between sexually oriented business and organized crime. Prosecutors of obscenity testified that there were many ways in which organized crime entities could derive a benefit from sexually oriented businesses. There is a large profit margin in pornography. The presence of coin-operated peep booths provides an opportunity to launder money. Cash obtained from illegal activities, such as prostitution or narcotics, can be explained as the income of peep booths. The Group also heard testimony that an organized crime entity may operate somewhat like a franchisor. In order to stay in business, the local manager of a sexually oriented business may have to pay fees to organized crime. The makers and wholesalers of pornographic material are also likely to be involved with organized crime. According to a 1978 Federal Bureau of Investigation Report Regarding the Extent of Organized Crime Development in Pornography, as quoted in the Working Group report: Information obtained ....p oints out the vast control of the multi-million pornography business in the United States by a few individuals with direct connections with what is commonly known as the organized crime establishment in the United States, specifically, La Cosa Nostra ... Information received from sources of this bureau indicates that pornography is (a major) income maker for La Cosa Nostra in the United States behind gambling and narcotics. Although La Cosa Nostra does not oversee the day-to-day workings of the majority of pornography business in the United States, it is apparent that they have "agreements" with those involved in the pornography business in allowing these people to operate independently by paying off members of organized crime for the privilege of being allowed to operate in certain geographical areas. Phoenix. Arizona1= In 1979, the Phoenix Planning Department conducted a study of the secondary impacts of adult businesses. They compared three study areas containing adult businesses to three matched control areas with similar population, income, age, race, and land use characteristics but which contained adult businesses. The Phoenix study resulted in the following conclusions: There is a relationship between arrests for sexual crimes and locations of adult businesses. This relation correlated with concerns which were expressed by residents of nearby residential neighborhoods of the nature of crimes associated with adult businesses. Sex crimes appeared to generate substantial fears for the safety of children. women. and neicrhborhoods in general. Their association with adult businesses ginerated negative images (as Gel1 as real orpotential hazards) and resulted in a lowering of the desirability and livability of an impacted neighborhood. [~>,$,~.%.$ $;lq$=;,$:? *i$.st'?.i:E*:1wU5 St. Paul ~innesotal~ In 1987, the St. Paul Department of Planning and Economic Development, Division of Planning prepared an analysis of one neighborhood which has an especially heavy concentration of sexually oriented businesses (4 out of 19 in the city). The neighborhood shows signs of significant distress, including the highest unemployment rates in the city, the highest percentage of families below the poverty line, the lowest median family income, and the lowest percentage of high school and college graduates. Although the Department was unable to attribute these problems in any simple way to sexually oriented businesses, they were able to define a relationship between the concentration of these businesses and neighborhood crime rates. The St. Paul Police Department determined that St. Paul's street prostitution is located in an area immediately adjacent to the intersection where the sexually oriented businesses are located. Police statistics for 1986 show that, of 279 prostitution arrests for which specific locations could be determined, 70% were within this area. Moreover, all of the . locations with 10 or more prostitution arrests were in this area. In 1980, the Minneapolis Crime Prevention Center examined the effects of sex oriented and alcohol oriented adult entertainment upon property values and crime rates. The study used both simple regression and multiple regression statistical analysis to evaluate whether there was a causal relationship between these businesses and neighborhood blight. The study concluded that there was a close association between sexually oriented business, high crime rates, and low housing values in a neighborhood. The study could not confirm , however, whether sexually oriented businesses actually caused the property values to decline. The study concluded that sexually oriented businesses concentrate in areas which are relatively deteriorated and, at most, they may weakly contribute to the continued depression of property values. The study found a much stronger relationship between these businesses and crime rates. A crime index was constructed including robbery, burglary, rape, and assault. The study concluded that the addition of one sexually oriented business to a census tract area will cause an increase in the overall crime index in that area by 9.15 crimes per thousand people per year even if all other social factors remain unchanged. Davtona Beach. ~loridal~ In a 1981 memorandum from the Daytona Beach Chief of Police to the City Attorney, the Department identified a list of situations, offenses, and incidents which occurred within the areas of topless bar establishments in Daytona. Below is an excerpt from the memo: Topless dancing encourages customers to solicit dancers for prostitution. A large number of prostitution arrests have involved girls who are employed or who have been employed as topless dancers. Topless dancing has a tendency to incite customers to participate in immoral conduct especially after they have had a few drinks. Arrests in some cases have been made where customers participated in lewdness with dancers. There have been incidents where topless dancers have been accosted and/or raped after getting off work. In past years we have had seven homicides directly related to prostitution within the areas surrounding these establishments. Some of the cases involved victims and suspects who were known to frequent topless establishments. There have been a number of robberies and assaults of clientele who frequent these establishments. They are usually committed by the prostitute or their associates who frequent the area. We presently have three reports on missing topless dancers who were last seen in the area of their place of employment. E. Adult Entertainment Ordinances in Other Communities Generally, local ordinances regulating adult entertainment have followed a prescribed format, following those ordinances which have been previously determined to be constitutional. They usually contain the following components:. 1) findings; 2) a list of regulated uses; 3) definitions of each regulated use; 4) definitions of "specified sexual activities"\"sexuaI conduct" and "specified anatomical areasW\"nudity" ; 5) distance separations; 6) other miscellaneous restrictions; and 7) special ordinances relating to alcoholic beverages and nudity. 1. Findings: The elected officials present a list of findings and determinations that adult entertainment uses are harmful to the community and that they create adverse secondary impacts. Studies from other communities are often cited, which describe the specific impacts such as increased crime, neighborhood deterioration, etc. caused by such uses. 2. A list of regulated uses The ordinances include those specific uses which are to be regulated; i.e., adult bookstores, adult motion picture theaters, etc. These categories can be added to if the local government decides that additional new adult entertainment uses should be regulated. 3. Definitions of each regulated use: Each separate use category is defined and generally modified by the phrase, "depicting, describing, or relating to Specified Sexual Acts or Specified Anatomical Areas". Sometimes, these uses are described as Sexual Conduct or Nudity. Typical definitions used by other local governments include the following: Orlando Adult Bookstores means a place which sells or offers for sale, for any form of consideration, any one or more of the following: (1) Books, magazines, periodicals or other printed matter, or photographs, films, motion pictures, video cassettes, slides or other visual representations or recordings, novelties and devices, which have as their primary or dominant theme matter depicting, illustrating, describing or relating to specific sexual activities or specified anatomical areas; or (2) Instruments, devices or paraphernalia which are designed for use in connection with specified sexual activities. Davtona Beach Daytona Beach takes a simpler approach and defines adult bookstore as: an establishment which has a substantial portion of its stock in trade, books, magazines, or other periodicals and which excludes minors by virtue of age as regulated in Florida Statutes. Marion Countv. Indiana Adult Live Entertainment Arcade means any building or structure which contains or is used for commercial entertainment where the patron directly or indirectly is charged a fee to view from an enclosed or screened area or booth a series of live dance routines, strip performances or other gyrational choreography which performances are distinguished or characterized by an emphasis on specified sexual activities or by exposure of specified anatomical areas. Palm Beach County Adult Booth means a small enclosed or partitioned area inside an Adult Entertainment Establishment which is: (I) designed or used for the viewing of adult material by one or more persons and (2) is accessible to any person, regardless of whether a fee is charged for access. The term "adult booth" includes, but is not limited to, a "peep show" booth, or other booth used to view adult material. The term "adult booth" does not include a foyer through which any person can enter or exit the establishment, or a restroom. San Bernardino. California Adult Arcade means an establishment where, for any form of consideration, one or more motion picture projectors, slide projectors or similar machines, for viewing by five or fewer persons each, are used to show films, motion pictures, video cassettes, slides or other photographic reproductions which are characterized by an emphasis upon the depiction of description of "specified sexual activities" or "specified anatomical areas". Peoria. Illinois Body Shop or Model Studio means any.public or private establishment which describes itself as a body shop or model studio, or where for any form of consideration or gratuity, figure models who display "Specified Anatomical Areas" are provided to be observed, sketched, drawn, painted, sculptured, photographed, or similarly depicted by persons paying such consideration or gratuity, or where for any form of consideration or gratuity, nude and semi- nude dancing, readings, counseling sessions, body-painting and other activities that present materials distinguished or characterized by an emphasis on matter depicting, describing or relating to "Specified Sexual Activities" or "Specified Anatomical Areas" are provided for observation by or communication to persons paying such consideration or gratuity. Palm Beach County Adult Dancing Establishment means an establishment where employees display or expose specified anatomical areas to others regardless of whether the employees actually engage in dancing. 4. Definitions of "Specified Sexual Activities" and "Specified Anatomical Areas": These two phrases are always specifically defined, since a precise definition is absolutely necessary because this is what separates "adult entertainment uses" from general uses. AS is noted in the previous section, each of the individual adult uses contain these phrases within the definitions of the uses themselves. These definitions are essential to the ordinance and are generally defined as follows: Specified Sexual Activities or Sexual Conduct means: 1. Human genitals in a state of sexual stimulation or arousal; 2. Acts of human masturbation, sexual intercourse or sodomy; and 3. Fondling or other erotic touching of human genitals, pubic region, buttock or female breast. Specified Anatomical Areas or Nudity means: 1. Less than completely and opaquely covered human genitals, pubic region, buttock and female breast below a point immediately above the top of the areola; and 2. Human male genitals in a discernible turgid state, even if completely and opaquely covered. Recent ordinances have attempted to be far more specific in defining specified sexual activities and specified anatomical areas as a result of legal challenges. For example, the phrase, "cleavage of the human buttocks" has been often used, rather than simply the term, "buttocks" since one may be partially clothed, as in a high cut costume or even a bathing suit and a portion of the buttocks would be revealed. Similarly, descriptions of the portions of the female breast have been expanded, as in the Palm Beach County Adult Entertainment Ordinance, adopted in 1988, where the specified anatomical area has been further defined to include: that portion of the human female breast encompassed within an area falling below the horizontal line one would have to draw to intersect a point immediately above the top of the areola (the colored ring around the nipple). This definition shall include the entire lower portion of the female breast, but shall not include any portion of the cleavage of the human female breast exhibited by a dress, blouse, shirt, leotard, bathing suit, or other wearing apparel, provided the areola is not so exposed. In the same spirit of thoroughness in definitions, the City of Orlando's ordinance has defined "specified sexual activities" to include nearly every sexual activity known to man, woman, child, or animal, whether living or dead. The adopted definition is as follows: 1. human genitals in a state of sexual stimulation, arousal or tumescence; 2. acts of human analingus, bestiality, buggery, cunnilingus, coprophagy, coprophilia, fellatio, flagellation, masoch~sm, masturbation, necrophilia, pederasty, pedophilia, sadism, sadomasochism, sapphism, sexual intercourse, sodomy, urolangnia or zoorasty; or 3. fondling or other erotic touching of human genitals, pubic region, buttock, anus, or female breast; or 4. excretory functions as part of or in connection with any of the activities set forth in subsections (I) through (3) above. 5. Distance Separations Since many local governments rely upon a dispersal- method of controlling the proliferation fg$.:W<ijzf !f e;q--: .."S* =t-Jss,aGit 8 g:Tgq;.?; . 20 dka.L,el! of adult entertainment businesses, they often set minimum distance separation requirements from the adult use to schools, places of worship, parks, residential zoning districts, and other similar adult uses. Generally, ordinances use a 1000 feet distance from any similar adult use, which is likely based upon Detroit's original formula of a 1000 foot separation from any two such uses. Often, the distance separation requirements are shorter between adult uses and places where minors congregate than the required separations between like adult uses. In Daytona, the required distance is 400 feet from any church, school, or park and 1000 feet from a similar use. Daytona does not provide any minimum distances from other residential zoning districts. Palm Beach County provides one of the most restrictive ordinances, with a 2000 foot separation from similar uses, 1500 foot separation from churches and schools, and a 500 foot from residential zoning districts or parks. They also require a distance separation from daycare centers. The City of Homestead, which modelled its 1989 ordinance after Dallas, requires a 1000 foot separation from places of worship, schools, residential zoning districts, parks, and similar uses. They also require a 500 foot separation from any residential use in a commercial district. 6. Other Miscellaneous Restrictions Several ordinances provide additional restrictions beyond the distance separation requirements. One common restriction is limiting the adult uses to heavy commercial or industrial zoning districts. In Daytona, Palm Beach County, and Coral Gables, adult uses are only permitted in industrial areas. In Homestead, they are permitted in the B-3, liberal commercial category; however, they are required to be considered as a special exception as an "unusual use". Additional restrictions often relate to the facility itself, including screening from public view, stringent landscape buffering requirements, and blocking off all windows and doors. Frequently, signage limitations are imposed as well. Occasionally, an ordinance contains an amortization period, after which non-conforming adult businesses must close. In Daytona Beach, a 10 year amortization period was established. 7. Ordinances Regulating Sale of Alcoholic Bcvcrages/Nude Dancing As we have seen in previous sections, recent court action has upheld the rights of municipalities to adopt more stringent regulations pertaining to the combination of alcohol and nudity in adult entertainment establishments. Many cities, most notably Fort Lauderdale, have adopted ordinances prohibiting the sale of alcohol in nude dancing establishments. The ordinances are not generally contained within the zoning ordinance, which would often necessitate grandfathering existing establishments. Rather, they are adopted as a chapter or section of the municipal code. As such, they apply to existing as well as proposed or future establishments. CITY OF 18iAhll BEACH In. ADULT ENTERTAINMENT IN MAM BEACH A. . Current, Previous, and Proposed Adult Entertainment Establishments in the City 1. Current Establishments The City of Miami Beach is a resort community comprised of seven square miles of land area and a permanent population of approximately 100,000 residents. Over 30 percent of the land area in the City (1,369 acres) is currently zoned for residential uses. There are 380 acres or 11% of the City which are designated for commercial land uses, in which adult entertainment establishments may be located under the present ordinance. Within the City of Miami Beach, there are four adult entertainment establishments currently operating. There is one adult motion picture theater, one theater with live performances and motion pictures, and two nude bars. Thefe are no adult bookstores, although the Gayety contains a section which offers retail sales of adult video cassettes and erotic paraphernalia. Data regarding each establishment is provided below: Name of Establishment: Gayety Burlesque Theater Address: 2004 Collins Avenue Owner: ELL-GEE, Inc., Linda Rivera, Pres., Leroy Griffith, Sec. Occu~ational License: Burlesque theater, club Tvoe of Establishment: Combination Adult motion picture theater\live performance theater; retail sales of adult paraphernalia. No alcohol served. Police Data: The Gayety was the subject of a Metro-Dade County Vice Squad undercover investigation last year. Several arrests were made for lewd and lascivious conduct by the dancers and prostitution in and around the premises. The Miami Beach Police Department has not conducted regular ongoing investigations of the activities at the Gayety since the early 19803, according to one supervisor in the Department's Strategic Investigations Unit. There were 16 police calls to the Gayety from July, 1988 to present. Most calls were reported by a manager/employee of the Gayety. They include the following: Lewd Conduct: Customer went backstage and seized employee's breast. Suspicious person - panhandlers accosting customers. Suspicious person selling crack on street. Robbery attempt. Suspicious person impersonating a police officer. Disturbance - individual harassing ticket seller. Disturbance - Cab driver attacked by passenger. Death - involving former employee who slept in rear of building. Battery/Assault - Employee assaulted by boyfriend. Disturbance - Customer dispute. Disturbance - Employee letting customers in through side door. Disturbance - street brawl outside. Battery/Assault with injury - fight between employees. Disturbance - 2 males arguing outside. Burglary in progress - to truck in front of building. Observations: On December 7, 1989, a member of the Planning and Zoning staff and a Code Enforcement Officer entered the Gayety for the purpose of observing the uses and activities in the establishment. The lobby area of the Gayety contains the "Adult Video Toy Store", consisting of wall to wall display areas of retail products, primarily adult video cassettes. Also sold are tee-shirts and condoms and erotic paraphernalia including vibrators, female dolls, and other objects. The ground level theater contains a stage where live strip shows take place. In between the strip shows, a movie screen is dropped down, and adult movies are shown. On the second floor is a small theater with a television and video cassette recorder, which shows homosexual adult films. Also located upstairs is a vacant area formerly used for adult booths (peep shows). According to the manager, the peep shows have not been in operation at the Gayety for the past two years. There were approximately 4 or 5 customers at the Gayety. Name of Establishment: 21st Street Cinema Address: 2039 Collins Avenue Owner: Edward Ross/Piped Corp., Inc. (George Luther) Occu~ational License: Theater/Movie .Tv~e of Establishment: . Adult Motion Picture Thezter. Twin theaters. One side shows heterosexual films, one side shows homosexual films. CQgfJppjBB 10 2-2 jFaz; jrjg 3, ,= , - , , , Police Data: In February, 1988, the Miami Beach Police Department entered the 21st Street Cinema to look for juveniles and arrested two men for committing an "unnatural and lascivious act". They were caught performing fellatio in the restroom. Additionally, there was one written complaint to the MBPD about the Cinema, which stated, "The people in that place make sex among everybody on the seats; even 3, 4, and 5 people making sex all together in front [of] everybody." There have'been relatively few other police calls to the 21st Street Cinema, only five since July, 1988. They include: 8/88 Breaking into car. 8/88 Unwanted guests refused to leave theater. 9/88 Loitering. 10388 Unwanted person refusing to leave, bothering manager. 9/89 People fighting in front of theater. Observations: On December 7, 1989, a member of the Planning and Zoning Department and a Code Enforcement Officer entered the 21st Street Cinema for the purpose of observing the uses and activities in the establishment. The Cinema contains two sidelby-side movie theaters. One side was showing adult homosexual films and the other side was showing adult heterosexual films. There are no other adult entertainment uses in the 21st Street Cinema. The facility was extremely unsanitary, with open cat litter boxes in the lobby area (on top of a condom dispensing machine) and in the restroom. There was an overwhelming stench of urine throughout the building. Both theaters were very crowded. JAN 3 1990 DULT ENTERTAINMENT ESTABLISHMENTS IN RjllAMl BEACH NUDE BAR-215 22ND STREET , . .. . 4-' - . -- NUDE BAR - 17 16 ALTON ROAD LDULT ENTERTAINMENT ESTABLISHMENTS IN MIAM! BEACH Con't.. LIVE NUDE PERFORMANCES/ ADULT MOTION PICTURE THEATER THE GAYETY - 2004 COLLINS AVENUE POSTERS IN FRON _- - _ Miami Beach Adult Entertainment Establishments continued Name of Establishment: Showgirl RevueSouth (formerly Million Dollar Baby, Place Pigalle) Address: 215 22nd Street Owner: Stephen Lesnick Occu~ational License: Beer/Wine/Liquor/5 am Tv~e of Establishment: Nude bar Police Data: There have been no investigations of this establishment by either Metro or the MBPD under its present ownership. There have been '26 police calls to the Showgirl Revue since July, 1988. Several of the calls have related to problems at the nearby Delta House, a halfway house for the mentally ill and Club Nu, a nightclub next door to Showgirls. The calls include the following: 7/88 Battery/Assault. 8/88 Juvenile painting side of building with spray paint. 9/88 Burglary 9/88 Domestic disturbance in parking lot. 10/88 Disturbance in progress - female refused to leave. 10/88 Disturbance - customer doing drugs on premises. 10/88 Disturbance - fight, Fire Rescue called. 10/88 Fight 11/88 Disturbance - 4 men fighting in front. Occurred at Club Nu. 11/88 Burglary to car. 11/88 Robbery - Hit waitress and took her money. 12/88 Theft - Cash taken from dancer. Suspects co-worker. 12/88 Phone complaint about police harassment. 12/88 Battery/Assault. 1/89 Suspicious person - selling "hot" jewelry. 2/89 Theft. 3/89 Disturbance. 3/89 Disturbance/intoxicated person/Baker Act. 3/89 Disturbance - Cab driver/customer dispute. 4/89 Suspicious person on roof. 4/89 Hit and Run. 5/89 Theft. 7/89 Alcohol overdose. 7/89 Battery/Assault with injury - with weapon. 7/89 Suspicious person waiting for girls to leave. 9/89 Investigation - punched and dented hood of car. 9/89 Disturbance - showgirl out of control and breaking things. Observations: On December 7, 1989, a member of the Planning and Zoning Department and a Code Enforcement Officer entered Showgirls for the purpose of observing the uses and activities in the establishment. There were no performances going on during the time they were present. The establishment consists of a bar area and tables. Nude dancers perform on a stage set up in the club. Name of Establishment: Thrillers Lounge (formerly Code One, Mayflower Lounge) Address: 1716 Alton Road Owner: Samuel Berlin (property); Alan Solomon (business) Occuoational License: Beer\Wine\Liquor\5 am (1989 - unpaid) Tv~e of Establishment: Nude Bar. Police Data: In April, 1988, the Miami Beach Police Department conducted a one-night undercover surveillance of this facility (then called "Code One"). The officers' report stated the following: The "CODE ONE LOUNGE" was busy with numerous girls on duty. These UC Officers were approached by several working girls. The girls hustled these officers for drinks and tips, offering to have sexual intercourse and "to party" for breakfast. Yet, there was no demand for money "up front". The girls did keep up conversation and teasing, promising sexual favors as long as tips were paid and drinks were purchased. No drug usage was observed. This investigation to continue .....20 There have been 11 police calls to this location since July, 1988. They include: 7/88 Disturbance - between 2 customers. 7/88 Disturbance - 2 women fighting, one bleeding. 10/88 Disturbance. 10/88 Auto theft. 10/88 Disturbance - customer doing drugs on premises. 11/88 Battery/Assault to juveniles. 11/88 Fraud - bad check 11/88 Disturbance - domestic with injury. 11/88 Battery/Assault. 4/89 Burglary to a car. 8/89 Suspicious person harassing customers behind building. Observations: On December 9, 1989, a member of the Planning and Zoning Department entered the Thrillers Lounge for the purpose of observing the uses and activities in the establishment. Thrillers consists of a series of long bars with runways down the center, where nude female dancers perform. The dancers perform totally nude, and one dancer was observed simulating sex acts and fondling herself, as well as allowing customers to touch her. Upon completing their performances, the dancers return to the bar to be with customers. Thrillers also contains a private area upstairs and two additional ground level rooms with pool tables. There were approximately 6 customers and 3 dancers at the bar and 10 customers were playing pool. 2. Previous and Proposed Adult Establishments One adult bookstore/erotic paraphernalia store was in operation for a short time during the last few years at the Seagull Hotel, 120 21st Street. The Miami Beach Police Department raided the shop and confiscated whips, chains, and other sexual and sado-masochistic paraphernal~a. The shop later closed. Three other movie theaters previously operated as adult theaters featuring a combination of live and motion picture entertainment for adults only. The Roosevelt at 770 41st Street showed X-rated films from the early 1960's until it was closed approximately 18 months ago by owner Anna Konover, who purchased the lease for the operation of the theater and closed the building. The Roosevelt was previously the subject of considerable controversy due to the fact that it is located across the street from North Beach Elementary School. The Paris Theater (550 Washington Avenue) closed several years ago and was purchased in 1986 by Variety Entertainment, Inc. In March, 1988, the owners submitted renovation plans to convert the building into a nightclub. At the present time, the building remains closed and in poor condition. It is currently for sale. The Roxy Theater at 1527 Washington Avenue functioned sporadically as an adult theater over the last 20 years, but has been operated as a general theater recently. As of this writing, "The Abyss" was running at the Roxy. On September 21, 1989, .an Occupational License application was filed with the City for a change of ownership by Leroy Griffith, owner of the Gayety Burlesque and the Pussycat adult theaters in Miami and Hollywood. A license for the "Roxy Adult Theater" (owner - Linda Rivera) was issued on September 28, 1989. As such, it it is probable that the Roxy will revert to showing adult movies. The Roxy is situated 650 feet from the Fienberg Elementary School on Washington Avenue. Much of the controversy and concern over the expansion of adult entertainment uses in Miami Beach stems from a proposed nude dancing establishment called "The Gold Club", proposed to be located at 5th Street and Lenox Avenue in the South Pointe Redevelopment Area. The Gold Club is a chain of nude dancing establishments based in Dallas, Texas. On a recent edition of "A Current Affair", Gold Club owner David Manley described his club in Atlanta, stating that it complements the convention trade and "features complete nudity". Atlanta has adopted an ordinance prohibiting the sale of alcohol in nude dancing clubs, which has been declared by the lower state courts to be unconstitutional. The Gold Club in Atlanta remains in operation as a nude dancing establishment as the case is being appealed. In addition to the concern over the proposed Gold Club, there is speculation regarding the impacts of other restrictive ordinances adopted in nearby communities, particularly Fort Lauderdale. There is the potential that owners of adult entertainment establishments in these areas may begin to relocate their businesses to cities with less stringent requirements. As is noted in a memorandum from Michael Roberto, City Manager of North Miami Beach, to the Mayor and City Council, this is the situation in their municipality. In June and July of this year, the "Solid Gold" chain of nude bars purchased and submitted renovation plans to convert an existing lounge into an adult dancing establishment in North Miami Beach. (Solid Gold is one of the primary litigators in the Fort Lauderdale ordinance controversy.) According to North Miami Beach City Planner, Christopher Heid, the Solid Gold owner, Michael J. Peter, indicated to them that he is looking to expand his operation next to the City of Miami Beach. This fact was confirmed in a December 10 Miarnikkrald~Nei~hbors article, &$.!:;...-'. : - - *, in which Leroy Griffith, owner of the Gayety, indicated that he and Michael Peter plan to renovate the Gayety into a nude dancing club similar to Solid Gold in Fort Lauderdale. B. Past Concerns Over Adult Entertainment in Miami Beach Concern by the City's elected officials over the impacts of pornogr'aphy and adult entertainment goes back as far as 1941, when the Miami Beach City Council enacted its first ordinance prohibiting the "importation, printing, publishing, exhibition, display, sale, or distribution of obscene literature, pictures or other matter" (Ord. 600). In the mid-1950's, the Council held conferences with theater managers relative to "exhibiting immoral motion picturesn, although no other action appeared to have been taken. Worry over the impacts of theaters and live performances reached its peak in the 1960's and 1970's. In 1963, the Council denied a permit to hold live burlesque shows in conjunction with motion pictures at the New Paris Follies at 550 Washington Avenue. They also requested that investigations be made of the theater's operations. In the late 1960's, the Mayor's Committee on Pornography was established. The Committee proposed the adoption of an obscenity ordinance which was based on one adopted by New York City. The proposed ordinance made it illegal for anyone to promote/possess any obscene material and prohibited obscene performances, whether live or motion picture. Ordinance 1798 was adopted in 1969. Mayor Jay Dermer said at that time that "the young people of this community should not be subject to the dissemination of filthn. Councilman Norman Ciment added that, "it is very important to get rid of the garbage that seems to be permeating the community". In 1970, the Council considered amending the Zoning Ordinance to create a specific use classification to be designated, "Burlesque Shows, Theaters or Performances". The amendment prohibited burlesque shows within 2500 feet of any school, library, place of public worship, or any place intended to be used by minors. The proposed ordinance also prohibited any exterior sign, poster, etc. displaying human nudity or any pornographic language. Councilman Greene said in defending the ordinance that "it was not his purpose to eliminate burlesque theaters from the City but that he felt burlesque theaters have no place near schools, libraries, etc. where minors congregaten. This ordinance was objected to by Leonard Rivkind, Chairman of the Mayor's ~o~mittee on Pornography, on the grounds that it was vague and indefinite and attempted to strike only at burlesque theaters. After considerable discussion on censorship, the ordinance was defeated on third and final reading. Just two weeks after the burlesque ordinance was defeated, the Gay 21st Street Theater Corporation applied for an occupational license for a burlesque theater at 2039 Collins Avenue, to be operated under a lease to Leroy Griffith, owner of the Gayety. After a controversial discussion regarding the legality of controlling such uses, the City Council voted to approve the license. The issue of regulating adult entertainment came up again in the late 19703, when the City Commission became concerned about the Roosevelt Theatre's application for an occupational license for live entertainment. The Commission asked the Administration and the City Attorney to research all legal avenues open to the City to prohibit the operation of Such facilities. For the next three years, the Commission considered an ordinance amending the City Code by adding a section prohibiting the location of adult motion picture theaters within 300 feet of a church, school or synagogue and establishing a 6 month amortization period within which existing establishments must conform to the provisions of the ordinance. The ordinance passed on first reading on December 16, 1981, and second reading was deferred pending an opinion from the City Attorney as to the constitutionality of the amortization clause. When the item was brought back to the Commission in 1982, the City Attorney advised the City Commission that it should be considered as a zoning ordinance amendment and referred to the Planning Board. This never occurred because the Roosevelt agreed to stop showing adult films (although they did not stop at the time). Until now, no other City Commission action has been taken since 1982 regarding any form of adult entertainment in the City of Miami Beach. C. Consistency with Adoptcd City of Miami Beach Plans 1. Comprehensive Plan The City of Miami Beach Year 2000 Comprehensive Plan was adopted by the City Commission on September 21, 1989, and in November, 1989, the Florida Department of Community Affairs published its Notice of Intent to find the plan in compliance with State.13-y.-. - :, '&-, - - ' J2 16 Cb"? : - -.* 5. - - -I - 28 , =: 2 333 468 3. The First Amendment to the Constitution, as interpreted by the courts, requires that the City provide some locations for such uses as adult bookstores and adult motion picture theaters. Conversely, the 14th Amendment gives greater latitude to the local government in regulating alcoholic beverage establishments, and the City is not required to provide locations where nude dancers perform in alcoholic beverage establishments. Consequently, it is recommended that the City exercise its legally permitted rights in this area by prohibiting nudity and sexual conduct in alcoholic beverage establishments in the City. 4. Although the City of Miami Beach has not experienced maior problems with adult entertainment establishments, there is some indication that crime problems have resulted from them, including prostitution. 5. The strong potential exists for new adult entertainment establishments to be located in Miami Beach, as other surrounding communities adopt stringent regulations governing such uses. 6. The adoption of ordinances regulating adult entertainment is within the constitutional power of the City Commission of the City ,of Miami Beach. 7. The adoption of ordinances regulating adult entertainment furthers an important governmental interest by attempting to mitigate the adverse secondary impacts created by such uses. 8. The adoption of ordinances regulating adult entertainment is in no way related to a suppression of freedom of expression in the City of Miami Beach. 9. The incidental restrictions on First Amendment freedom are no greater than the furtherance of the City's interest in maintaining a high quality of life for our residents and visitors. 10. The issue of regulating adult entertainment in the City of Miami Beach needs to be addressed before it becomes a major problem. As is noted in the Renton case, "Preventative, versus after-the-fact zoning is an appropriate means for cities to use in protecting and preserving possibly their most valuable resource, 'quality of life'." 11. Adult entertainment uses are not consistent with the goals of the City of Miami Beach Year 2000 Comprehensive Plan and the South Shore Revitalization Strategy. B. Administration Recommendation The Administration recommends that the City Commission adopt an ordinance prohibiting nudity and sexual conduct in alcoholic beverage establishments in the City of Miami Beach. JAN 3 1930 CITY.&F'MIA&I! BEACH VI. SOURCES A. FOOTNOTES The First Amendment to the U.S. Constitution states: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances". Susan Squire, "Ordinary People", Plavboy, November 1986, p. 113. '"Adult Entertainment Zoning", Zoning and Land Use Controls, October 3, 1984, p. 11-48. 4Wi~liam Toner, Regulating Sex Businesses, PAS Report No. 327, May !977, pp. 1-2. '"~dult Entertainment Zoning", Zoning and Land Use Controls, October 3, 1984, p. 11-6. 6William Toner, Regulating Sex Businesses, PAS Report No. 327, May 1977, pp. 1-2. '~ruce McClendon, "Zoning for Adults Only", Zoning News, August 1985, p. 2. '"High Court Backs Limits on Adult Theaters", Zoning News, March 1986, p. 2. Edward Ziegler, "City of Renton v. Playtime Theatres: Strengthening Zoning Control of Adult Entertainment", 1987, p. 163. ''~ules B. Gerard, "City of Newport v. Iacobucci: A Right Result But Wrong Analysis of Adult Entertainment Under the First Amendment", Zoning and Planning Law, 1987, pp. 174-175. ''Hubert H. Humphrey 111, Reoort of the Attornev General's Working Grouu on the Reeulation of Sexuallv Oriented Businesses, June 6, 1989. l2I3ruce McClendon, "Zoning for Adults Only", Zoning News, August 1985, p. 2. 131bid. "~ubert H. Humphrey 111, Re~ort of the Attornev General's work in^ Grouo on the Reeulation of Sexuallv Oriented Businesses, June 6, 1989, p. 12-1 7. 16planning Department, City of Phoenix, "Relation of Criminal Activity and Adult Businesses, May 1979. "~ivision of Planning, "Effects on Surrounding Area of Adult Entertainment Businesses in St. Paul", June 1978. "Hubert H. Humphrey 111, Re~ort of the Attornev General's Working Grou~ on the Regulation of Sexuallv Oriented Businesses, June 6, 1989, p. 12-17. lQ~emorandum from C.W. Willets, Jr., Chief of Police - Daytona Beach, FL to Frank Gummey, City Attorney re: "Topless Dancing Bars", September 24, 1981. 20~emorandum from Detective R. Davis, Miami Beach Police Department to SIU, April 30, 1988. JAY 3 1990 B. BIBLIOGRAPHY Baker, Ross K. "Smut Glut." American Demoara~hics, (April 1987), 64. Begley, Sharon with ~liz'abeth Jones. "The Squeeze on Sleaze." Newsweek, (February 1, 1988), 44-45. Byrne, Josepha. Mrs. Bvrne's Dictionarv of Unusual. Obscure. and Preoosterous Words. Seacaucus: University Books, Inc., (1974). Department of Planning and Economic Development and the Minnesota Crime Control Planning Board, Saint Paul, Minnesota. Effects on Surrounding Area of Adult Entertainment Businesses in Saint Paul, July, 1978. Donnerstein, Edward I. and Daniel G. Linz. "The Question of Pornography." PSVC~O~OQ! Today, (December 1986), 56-59. Gerard, Jules B. "Supreme Court Restricts Adult Entertainment: A Critique of City of Newport v. Iacobucci." Zoning and Planning Law Report, (March, 1987), 105-1 10. Gerard, Jules B. "City of Newport v. Iacobucci: A Right Result But Wrong Analysis of Adult Entertainment Under the First Amendment." Zoning and Planning Law. (1987), 169-182. Humphrey 111, Hubert H. Report of the Attorney General's Working Grouo on the Reeulation of Sexuallv Oriented Businesses, June 6, 1989. Keating, Dan. "Nude Men Dancers Agree to Button Up." Miami Herald Beach Neighbors, (November 2, 1989), 20. Los Angeles Police Department, Administrative Vice Division Research Unit. The Current Status of Pornoeraohv and Its Effects on Societv, November, 1984. Luedke, Gerald. "Spaced-Out Zoning.", Planning and Zoning News, (February, 1989), 10-1 1. Miami Beach Planning and Zoning Department. Cit of Miami Beach Year 2000 ~bm~rehensive Plan, adopted by MB. City Commission Sesernber 21, 1989. Miami Herald Beach Neighbors, "New Planning ~oard to Get X-Rated Issue.", (November 2, 1989), 2. Miami Herald Beach Neiehbors, "Liquor Licenses Divide Schools, Beach Eateries.", (November 2, 1989), 16. Nevel, David H. Letter to Rob W. Parkins, City Manager, (October 26,1989), Miami Beach City Commission Agenda Item R-9-A-2 (October 31, 1989). Pitts, Robert. "City: Sampler: Five Cities Use Zoning to Limit Porno Business." Nation's Cities Weeklv, (April 21, 1980). Planning Department, Phoenix, Arizona. Relation of Criminal Activitv and Adult Businesses, May, 1979. Planning Department, New Hanover County, North Carolina. Regulation of Adult Entertainment Establishments in New Hanover Countv, July, 1989. Pratter, Jerome and Connie Hager. "Zoning Laws, Nat Obscenity Laws, Offer the Way to Control Adult Entertainment." Nation's Cities Weekly, (April 21, 1980). . Roberto, Michael J. ~emorandum to North Miami Beach Mayor and City Council re: Adult Entertainment Establishment, (October 12, 1989). Rowe, Sean. "Election Eve Agenda: Anti-Porn Proposal." Miami Herald Perrine/Homestead Neighbors, (November 5, 1989). Rubin, Aaron S. "Beach Will Consider Ban on Alcohol at Nude Clubs." Miami Herald Nei~hbors, (October 29, 1989), 3. Schultz 111, Arthur J. "Franklin squard: Porn Free and Booming." Urban Land, (August, 19861, 14-19. Smith, Dwight. "Urban Design Offers Control, Not Cosmetics, for Sex Businesses." Nation's Cities Weeklv. (April 21, 1980). Squire, Susan. "Ordinary People." Plavbov Magazine, (Novembe;, s;.~~s.?,..r.: ;? .. .. 159-161- &x>;\;*-:...:.;?::5 .:z: Taylor, Bruce (interview). "Should Citizens Punish Porn Sellers?" U.S. News & World Reoort, (July 14, 1986), 64. Toner, William. Regulating Sex Businesses. American Society of Planning Officials PAS Report No. 327, May, 1977. Weiner, Arnold M. City Attorney Commission Memorandum #583-89, (October 31, 1989). Weinstein, Alan. "Regulating Pornography: Recent Legal Trends." Land Use Law, (February, 1982), 4-9. Wolf, Marsha and Lewis Goldshore. "Municipal Regulation of X-Rated Films and Sexually Oriented Businesses." New Jersey Munici~alities, (February, 1985). 7. Yow, Robert B. "Adult Entertainment Zoning: A Case Study." Carolina Planning, V01.7, NO. 1, (1981). Ziegler, Edward H. "City of Renton v. Playtime Theatres: Strengthening Zoning Control of Adult Entertainment." Zoning and Planning Law Handbook, (1987), 151-167. Zonine News. "High Court Backs Limits on Adult Theaters.", (March, 1986), 2. Zoning and Planning Law Handbook. "Ordinance Snuffing Out Erotic Bakery is Unconstitutional.", (1987), 40-41. Zoning and Planning Law Handbook. "Are Adult Businesses a Nuisance?", (1987), 39. Zoning and Planning Law Handbook. "Supreme Court Decision Permits Broad Regulation of Adult Businesses.", (1987), 5-7. Zoning and Planning Law Handbook. "Adult Business Ordinances: Mixed Judicial Review.", (1987), 40. JAN 3 1990 DADE COUNTY PUBLIC SCHOOLS SITE PLANNING & GOVERNMENT LIAISON GEPARTMENT 1444 BISCAYNE BLVD., SUITE 302 MIAMI, FL 33132 r (305) 995-7280 DR. JOSEPH A. FERNANDE2 DAD€ COUNTY SCHOOL BOARD SUPERR.CIENDENl OF SCHOOLS DR. WCHAEL KROP. CrUURMAN December 14, 1989 HA. (3 HOLMES BRADDOCK. VlCECHAlRMAN DR. ROSA CASTRO FflNBERG US. mm KAPLAN -.. . MS. MPT R McAULC( ,. . . . -.: ---, +R. RWIRT RENEK baQ :\YILLmU H. TURNER . . . . . , .. . .- e- . . : .. - ..-.: Mr. Jud Kurlancheek, Director i.. .. .- . . Planning and Zoning Department ! . City of Miami Beach I __ .. . . - . ., . . P. 0- Bin 190000 . . .. _ ! Miami Beach, Florida 33119 L. .'( .., . ., d-. ,.:, , "'1': . Re: -4mending Comprehensive Zoning Ordinance 89-2665 Dear Mr. Kurlancheek: In reference to the above, please be advised that the School Administration supports the proposed ordinance amendment and addition of proscriptive distances for adult entertainment establishments. Notwithst~ding the fact that Miami Beach is an urban area, it has been the School Board's consistent position that these uses should be subject to a distance separation from schools. As I previously advised your office, no representative from the School Administration will be able to attend the December 27th hearing because of the holidays. However, I wish to note that we strongly urge that the City move forward with the ordinance amendment and be assured that there will be school representation fox the public hearings scheduled be£ ore the City Cmlssion for this ordinance amendment. Once again thank you and warmest wishes for the holidays. Sincerely, Laila N- Kala Director LNK/ jo/Kl3O cc: Mr. Thomas A. Cerra Mr. Octavio J. Visiedo coIp,".,pg$sS;$p~ %' 34 F#EgqqF k, a bLi??*l JAN 3 1390 VrrrYAWI IWWINULUI Zwlu-1 +?.< fi January \& 192 \314 2 (date filed) 5 " 1. LDBBYI.ST'S NAME: Joseph P. Averill 2. IDBBYIST'S BUSINESS ADDRESS: 710 City National Bank Bldg, 25 West Flagler Street, Miami, Florida 33130 A. U.S. Partners Financial Corp. 3102 Oak Lawn. Suite 730 Dallas, TX 75219 4. lE3BIE TE sEClZTC ISSUE mWHICHYOU HAVE BPIBED lD XDBBY: Performance standards around 'alcoholic establishments ; zoning requirements around alcoholic establishments mt enter me one issue m this tom. File a separate EiorDoea& specific is= which ycu are being qloyed as a lobbyist.) 5. DESCRIBETHE~mWECmYOUHAVEANYBUSINESs0RPRDFESSIONA;L ~ONSHTP WIm ANY CmRENr PERsms DES(=RIBED mDER S.2-lI.l(b)(l) OF THE CODE OF DALE COUh3-Y. (Mayor and Camrissicmers of Miami ~each) I, undersigned regis hfmtW &clra& Pieh V mm m and subscribed before me this 5 day of January , 198 90 , - .--, ,7 / I .;f" 4 >,(- I..&*,,(,(.,-. J3, L(.&&... ./: CITY CLERK 7. O'DiEX FIISJG INFUMUION: aWEX2N JULY 1, 1986, AM> ON JULY 1, OF EACH YE4R m, IllBBYIST SHAU, SUEPlLl' TD THE QSIK OF THE CITY OF MIAMI BEACH, FLORIllA A SIm mw mER LM?NG LOBBYING ~~FORTHE~ING~YEAR. AmWBEFlLED mIFTHEfiEHAVEBEFNND~rIuREsDURINGTHE~PERIOP). JAN 3 1990 CF bI!AfqII BEACH JAN 3 1990 CITY OF M!A:VII BEACH r. . .. _r I. . . 1 .- !.i'.' .5*- -..:. ... ' . . L \ 1 TO THE COMMISSIONERS OF THE CITY OF MIAMI BEACH I ' We, the citizens of Miami Beach, do not want nude entertainment . in Miami Beach. Mayor Daoud says "these facilities are not the type of entertainment we want in Miami Beach." i Commissioner Martin Shapiro says "Miami Beach is a residential , community and I wouldn't want it to turn into a honlcy-tonk place." Commissioner Abe Resnick says "we should look to the future of Miami Beach for families with children coming to our city and see that their children live in a decent environment." &gfi= q? C- A n ei/--si TO THE COMMISSIONERS OF THE CITY OF MIAMI BEACH We, the citizens of Miami Beach, do not want nude entertainment in Miami Beach. Mayor Daoud says "these facilities are not the type of entertainment we want in Miami Beach." Commissioner Martin Shapiro says "Miami Beach is a residential community and I wouldn't want it to turn into a honky-tonk place." Commissioner Abe Resnick says "we should look to the future of Miami Beach for families with children coming to our city and see that their children live in a decent environment.^ f TO THE COMMISSIONERS OF THE CITY OF MIAMI BEACH ! We, the citizens of Miami Beach, do not want nude entertainment : in Miami Beach. Mayor Daoud says "these facilities are not the type of entertainment we want in Miami Beach." : Commissioner Martin Shapiro says "Miami Beach is a residential community and I wouldn't want it to turn into a honky-tonk place." Commissioner Abe Resnick says "we should look to the , future of Miami Beach for families with children coming to our i city and see that their children live in a decent environment." 1 TO THE CCMMISSIONERS OF THE CITY OF MIAMI BEACH i ; We, the citizens of Miami Beach, do not want nude entertainment I in Miami Beach. Mayor Daoud says "these facilities are not i the type of entertainment we want in Miami Beach." t I Commissioner Martin Shapiro says "Miami Beach is a residential I communit~ and I wouldn't want it to turn into a honky-tonk ; place." Commissioner Abe Resnick says "we should look to the : future of Miami Beach for families with children coming to our their children live in a decent environment." ! ., . @ - ij . . .- . . 7 .. %. :;<.. .- - .- -.--a,.--.-, .... .* 1' jl I ii -.,,*\ 1 JAN 3 1990 \ f TO THE COMMISSIONERS OF THE CITY OF MIAMI BEACH I ; We, the citizens of Miami Beach, do not want nude entertainment ; in Miami Beach. Mayor Daoud says "these facilities are not : the type of entertainment we want in Miami Beach." : ) Commissioner Martin Shapiro says "Miami Beach is a residential f cornmunitx and I wouldn't want it to turn into a honky-tonk place." Commissioner Abe Resnick says "we should look to the . future of Miami Beach for families with children coming to our i city and see that their children live in a decent environment." JAN 3 1990 I : TO THE COMMISSIONERS OF THE CITY OF MIAMI BEACH ! We, the citizens of Miami Beach, do not want nude entertainment , in Miami Beach. Mayor Daoud says "these facilities are not the type of entertainment we want in Miami Beach." Commissioner Martin Shapiro says "Miami Beach is a residential community and I wouldn't want it to turn into a honky-tonk place." Commissioner Abe Resnick says "we should look to the . , future of Miami Beach for families with children coming to our ' city and see that their children live in a decent environment." , ..-: - - I .-,, .- - +$ ,:& ,:,? i ,.; < I - , , , 7 5 ,, i 3 < (: ! L ..J< 5 i ,G i,.,::; , ' , . . i c :, ,. // . / . , . b~,>)::(Yt~~ < c.7 / r &:,. ;, . p j~ig pPc: --.-......- 14 ~7 .- - %a I ..... : r, !'. L h,. .::-,: , ,4.2- ,; ' ,?.. :.;;;: .. ' " .- , '..- 2- ,-. 38 . . 4?7-4.p,, + .! . , ,. _i_ >:- I 2-45 Ci..? Cp6<SS ., 4? .: -. , I.. <-) ( .< .3i .3 (.i- ' ; itLC"<-*. ,< it it"^ -- . --... ! !- ('- {J 5 +LA- -' --....- .-..---- 5313 (Dfillim k~ !&-- I.-&!?&-. 35- /> &.&<-- @-> of B. . . .- '- ,.. hC.j ! '5 CALL. <,., g .>j? -.---. -.- : > --?-,I .3 , $; *:,;; L( { !.+( ! i ! , /' -- .- // - .q3,q - A cq. %& -4 <? j's f?>. { lCfl~. +$<,;-&, L. 4 *L.., . -.- - .a- ,,,- ' ,. . ;, - A (., i A . < .-; ; ! . ;Jj ,I ;,;> e, -. [.,,,&. v,,. ,fT .: :: i', A -: . .. I < yp. L.4-L": ,<,,A' 3> i. 6' 3: I. -3 /MY ,LT,? ,b%-'/ /i ' 6:G-Y. . , -. i,i - . , ;.- - L' ' /it,: ~~k~k -;!'I. /-A\.jijLtii $ijh-v1p3*6 k,+T%') j& w, .- - - JAN 3 1990 '* i .C , ! ' TO THE COMMISSIONERS OF THE CITY OF MIAMI BEACH I We, the citizens of Miami Beach, do not want nude entertainment . in Miami Beach. Mayor Daoud says "these facilities are not the type of entertainment we want in Miami Beach.It Commissioner Martin Shapiro says "Miami Beach is a residential community; and I wouldn't want it to turn into a honky-tonk place." Commissioner Abe Resnick says "we should look to the , future of Miami Beach for families with children coming to our city and see that their children live in a decent environment." k, JAN 3 1990 5 / i TO THE COMMISSIONERS OF THE CITY OF MIAMI BEACH ' We, the citizens of Miami Beach, do not want nude entertainment in Miami Beach. Mayor Daoud says "these facilities are not the type of entertainment we want in Miami Beach." Commissioner Martin Shapiro says "Miami Beach is a residential community and I wouldn't want it to turn into a honky-tonk place." Commissioner Abe Resnick says "we should look to the future of Miami Beach for families with children coming to our city and see that their children live in a decent environment." , Ii;. ,.L. 1 ii.$.-. 7 b -1-f -,-: --, : , .; ,* 3 <j - [I, p[~s ,, ,: <-. /J < , -< x I. a;. - ', s k CITY OF MlAfdI BEACH 1 1 I TO THE COMMISSIONERS OF THE CITY OF MIAMI BEACH I j We, the citizens of Miami Beach, do not want nude entertainment in Miami Beach. Mayor Daoud says "these facilities are not ; the type of entertainment we want in Miami Beach." i. ' Commissioner Martin Shapiro says "Miami Beach is a residential : community; and I wouldn't want it to turn into a honky-tonk place." Commissioner Abe Resnick says Iswe shohld look to the 1 future of Miami Beach for families with children coming to our I city and see that their children live in a decent environment." ;j i !y . - I . JAN 3 1990 OFFICE OF THE MAYOR CITY OF MIAMI BEACH 1700 CONVENTION CENTER DRIVE MIAMI BEACH, FLORIDA 33139 ALEX DAOUD MAYOR December 27, 1989 Dear : As Mayor of the City of Miami Beach, I thank you for taking the time to share your concerns for our City with me. The greatest satisfaction I have as your Mayor, is that it gives me the opportunity to communicate with individuals such as yourself, people who can make a valuable contribution to our community. I am forwarding a memo and your petition to ban nude entertainment on Miami Beach, to our City Manager, Mr. Rob W. Parkins, requesting his immediate attention to this very serious problem facing us. I know that you will be hearing from Mr. Parkins or a member of his office staff soon. It is very important to me that you live in a neighborhood in which you enjoy your home and your surroundings. Please let me know if I can be of further assistance to you in any way. Be assured that the City Commission and I are totally dedicated to making Miami Beach a better place in which to live. Sincerely, Alex Daoud Mayor cc: Rob W. Parkins, City Manager Elaine Baker, City Clerk P.S. Due to the difficulty of deciphering some of the signatures on the petition, your name may be misspelled. If so, please call Barbara Bargeman (673-7030) so that our records can be corrected. Thank you. JAN 3 1990 CITY OF M!AMI BEACH NUDE ENTERTAINMENT ON BEACH. PETITION RECEIVED 12-22-89 frorn Philip Grossman Ms. Mary Perdue 907 Northwest 104th Street Miami, Florida 33150Mary Mr. & Mrs. Leon Leventhal 5601 Collins Avenue Miami Beach, Florida 33140Anne and Leon Ms. Helen Wolsch 5601 Collins Avenue Miami Beach, Florida 331 4OHelen Ms. Ada Kopelman 5601 Collins Avenue Miami Beach, Florida 33140Ada Mr. Nat Tepper 560 1 Collins Avenue Miami Beach, Florida 33140Nat Mr. Meyer Bender 5601 Collins Avenue Miami Beach, Florida 3314OMeyer Ms. Sue Roberts 5601 Collins Avenue Miami Beach, Florida 33140Sue Mr. Casdan Roberts 5601 Collins Avenue Miami Beach, Florida 33140Casdan Ms. Eileen Cohen 5601 Collins Avenue Miami Beach, Florida 3314OEileen Ms. Sylvia Cohen 5601 Collins Avenue Miami Beach, Florida 33140Sylvia Ms. Sylvia Freund 5601 Collins Avenue Miami Beach, Florida 3314OSylvia Mr. & Mrs. Emil Lax 5601 Collins Avenue Miami Beach, Florida 33140Paulette and Emil Mr. & Mrs. Nat Goldberg 5601 Collins Avenue Miami Beach, Florida 33140Ral and Nat Ms. Sylvia Saunders 5601 Collins Avenue Miami Beach, Florida 3314OSylvia JAN 3 1990 Ms. Gertrude Bender 5601 Collins Avenue Miami Beach, Florida 33140Gertrude Ms. Beatrice Cohen 5601 Collins Avenue Miami Beach, Florida 33140Beatrice Ms. Rachel Cohen 560 1 Collins Avenue Miarni Beach, Florida 33140Rachel Mr. David Cohen 5601 Collins Avenue Miami Beach, Florida 33140David Ms. Betty Tepper 5601 Collins Avenue Miami Beach, Florida 33140Betty Mr. & Mrs. Ben Slott 560 1 Collins Avenue Miami Beach, Florida 3314ORita and Ben Mr. Julius Schwartz 5601 Collins Avenue Miami Beach, Florida 3314OJulius 51s. Martha Pasternack 5601 Collins Avenue Miami Beach, Florida 33140Martha Ms. Sylvia Madower 5601 Collins Avenue Miami Beach, Florida 33140Sylvia Mr. Joe Fisher 560 1 Collins Avenue Miami Beach, Florida 33140Joe Mr. David Halpern 5601 Collins Avenue Miami Beach, Florida 3314ODavid Mr. Milton Rosenthal 560 1 Collins Avenue Miami Beach, Florida 33140Milton Ms. Ethel Karr 5601 Collins Avenue Miami Beach, Florida 33140Ethel Mr. Jorge L. Diaz 11431 S.W. 7th Terrace Miami, Florida 33140Jorge Ms. Rose Korler 5601 Collins Avenue Miami Beach, Florida 33140Rose JAN 3 1990 '4s. Gertrude Ruben 5601 Collins Avenue Miami Beach, Florida 3314OGertrude Ms. Mildred Spitzer 5601 Collins Avenue Miami Beach, Florida 33140Mildred his. Helen Adams 5601 Collins Avenue Miami Beach, Florida 33140Helen Mr. & Mrs. Murray Kaplan 5601 Collins Avenue Miami Beach, Florida 33140Anne and Murray Ms. Bernice Horch 560 1 Collins Avenue Miami Beach, Florida 33140Bernice Ms. Pearl Salmon 5601 Collins Avenue Miami Beach, Florida 33140Pearl Ms. Francis Greenberg 5601 Collins Avenue Miami Beach, Florida 33140Francis Ms. Paula Landau 560 1 Collins Avenue Miami Beach, Florida 33140Paula Ms. Dorothy Grossman 5313 Collins Avenue Miami Beach, Florida 33140Dorothy Mr. Sal Hazan 5161 Collins Aven;ue Miami Beach, Florida 33140Sal Mr. Lee Serence 5601 Collins Avenue, 11620 Miami Beach, Florida 3314OLee Mr. Jack Serene 5601 Collins Avenue, a1620 Miami Beach, Florida 33140Jack Ms. Sheila Kemp 5601 Collins Avenue Miami Beach, Florida 33140Sheila Ms. Nettie Glazer 5601 Collins Avenue Miami Beach, Florida 33140Nettie Mr. & Mrs. Jack Glazer 5601 Collins Avenue Miami Beach, Florida 33140Netta and Jack JAN 3 1990 CjN OF MIAMI BUIClf Ms. Tessie Rotnoff 401 69th Street Miami, FloridaTessie Ms. Edna Green 5055 Collins Avenue Miami Beach, Florida 33140Edna hlr. Harry Glazer 110 South Shore Drive Miami, FloridaHarry Ms. Jane Peller 5837 Collins Avenue Miami Beach, Florida 331403ane Ms. Alicia R. Casamon 53 13 Collins Avenue Miami Beach, Florida 33140Alicia Ms. Eva Lippman 5313 Collins Avenue Miami Beach, Florida 33140Eva Mr. & Mrs. Irving T. Schwartz 53 13 Collins Avenue Miami Beach, Florida 33140Lillian and Irving Mr. & Mrs. Harvey Levine 531 3 Collins Avenue Miami Beach, Florida 33140Julia and Harvey Mr. & Mrs, Max Elkins 5313 Collins Avenue Miami Beach, Florida 33140Mimi and Max Ms. Florence Landau 5313 Collins Avenue Miami Beach, Florida 33140Florence Mr. & Mrs. Harry Lachman 6494 Collins Avenue Miami Beach, Florida 33140 33141Sylvia and Harry Ms. Bernice Beeson 5135 Lakeview Drive Miami Beach, Florida 33140Bernice Mr. Ilse Nelkan 7950 Abbott Avenue Miami Beach, Florida 33141Ilse Ms. Julia Dobosh 7935 Carlyle Avenue Miami Beach, Florida 33141Julia Mrs. M. Samson 5601 Collins Avenue Miami Beach, Florida 33140Mrs. Samson JAW 3 1990 ClTY GF hTIA&I BaCH Mr. Louis Redler 8955 Coilins Avenue Miami Beach, Florida 33141Louis Ms. Frieda Metzer 5838 Collins Avenue Miami Beach, Florida 33140Frieda Ms. Mitzi Bernstein 5838 Collins Avenue Miami Beach, Florida 33140Mitzi Mr. Americo DiPrieto 2301 Normandy Drive hiliami Beach, Florida 33141Americo Ms. Min Schrelstein 5313 Collins Avenue Miami Beach, Florida 33140Min Mr. David Frohwirth 510 1 Collins Avenue Miami Beach, Florida 33140David Mr. J. Pullman 3800 Collins Avenue, 81004 Miami Beach, Florida 33140Mr. Pullman Ms. Mary Selwaitzmen 5313 Collins Avenue Miami Beach, Florida 33140Mary CITY OF MIAMI BEACH Elaine Baker December 27, 1989 TO: City Clerk DATE: FROM: Vayor Alex lla0& - SUBJECT: PETITION TO BAN NUDE ENTERTAINMENT ON MIAMI BEACH. The enclosed information is being forwarded to you for further handling. Thank you. Enclosures: Copy of letter mailed Copy of typed names & addresses Original Petition I, FG8EP;P PARCHER, City Clerk of City of t6iami Baath, Florida, do hsreby ce%.e that the abva 2nd Fciegoing is a true snd correct copy of the original thereof on file in this ~Bice. WiTNEE- n! h rrd an6 the sesl of said Cilf ihis 34ai G?)-~A.D. 25 ROBERT PARCHER City Clah of 1i1s City of Miml Ba2.~.sti, Aodda *Em> Ei: Deputy 6 JAN 3 1930 COMMISSION ITEM SUMMARY Condensed Title: An ordinance amending the City Code reducing the number of police vehicle towing permits from three (3) to two (2) permits. Key intended Outcome Supported: I Maintain or Improve Traffic Flow. I Supporting Data (Surveys, Environmental Scan, etc.): 1 74% of residents and 72% of businesses rate the availabilitv of ~arkina across the Citv as too little or much too little. 1 I Availability of parking was one of the changes residents identified to Gake Miami each better to live, work or play. I Issue: Should the City Commission approve an ordinance amending the City Code to reduce the number of police vehicle towing permits from three (3) to two (2) permits? Item SummarylRecommendation: I I On September 27,2010, the Land Use and Development Committee (LUDC) held a discussion regarding the Police Department Towing Permits. The City Code currently allows for the issuance of three (3) towing permits, two of which are currently active. One permit is assigned to Beach Towing Services, Inc. and a second permit is assigned to Tremont Towing Services, Inc. The third towing permit is vacant and has been vacant for several decades. Any amendments to the number of towing permits must be approved by the Mayor and City Commission. The LUDC directed the City Attorney to draft an ordinance amendment to reduce the number of towing permits from three (3) to two (2). This resulted from extended discussion which took place at the LUDC Meeting. The Committee expressed concerns relative to the negative impact that three (3) towing operations would have on the neighborhood. As you may recall, towing operations are only permitted in the 1-1 District, which are the Sunset Harbor area and Terminal Island. Fiscal Impact: The City has had two (2) active towing permits for decades. During this time, the towing needs of the City as well as private property owners have been sufficiently addressed under two (2) active towing permits. There is no foreseeable need for a third towing permit; therefore, there is no fiscal impact identified at this time. Approve the ordinance on first reading and schedule a second and final public hearing. Advisory Board Recommendation: I I Financial Information: 1 I J City Clerk's Office Legislative Tracking: I Saul Frances, ext. 6483 1 Source of Funds: I - Approved Amount 1 I 1 I OBPl I , I Account Total I I Financial lm~act Summarv: MIAMIBEACH City of Miami Beach, 1700 Convention Center Drive, Miami bach, Florida 33 1 39, www.rniamibeachfl.gov COMMISSION MEMORANDUM TO: Mayor Matti Herrera Bower and Members of the City Commission FROM: City Manager Jorge M. Gonzalez WwJ~ DATE: October 27, 201 0 FIRST READING SUBJECT: AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA AMENDING THE CODE OF THE CITY OF MIAMI BEACH, BY AMENDING CHAPTER 106, "TRAFFIC AND VEHICLES," ARTICLE V, 'TOLICE VEHICLE TOWING," DIVISION 2, "PERMIT," SECTION 106-213, "APPLICATION," TO REDUCE THE NUMBER OF POLICE VEHICLE TOWING PERMITS FROM THREE TO TWO, PROVIDING FOR CODIFICATION, REPEALER, SEVERABILITY AND AN EFFECTIVE DATE. ADMINISTRATION RECOMMENDATION The Administration recommends that the Mayor and Commission approve the amendment of the ordinance on first reading and set a second and final public hearing. ANALYSIS On September 27, 2010, the Land Use and Development Committee (LUDC) held a discussion regarding the Police Department Towing Permits. The City Code currently allows for the issuance of three (3) towing permits, two of which are currently active. One permit is assigned to Beach Towing Services, Inc. and a second permit is assigned to Tremont Towing Services, Inc. The third towing permit is vacant and has been vacant for several decades. Any amendments to the number of towing permits must be approved by the Mayor and City Commission. The LUDC directed the City Attorney to draft an ordinance amendment to reduce the number of towing permits from three (3) to two (2). This resulted from extended discussion which took place at the LUDC Meeting. The Committee expressed concerns relative to the negative impact that three (3) towing operations would have on the neighborhood. As you may recall, towing operations are only permitted in the 1-1 District, which are the Sunset Harbour area and Terminal Island. The 1-1 District was the subject of a recent zoning change last year. The amendments, the result of a long discussion with the residents and property owners of the Sunset Harbour neighborhood sought to address concerns of incompatible uses. The new regulations encourage the creation of a vibrant urban commercial district that can support and co-exist with the surrounding residential districts. One major component of the regulations was to make certain uses allowable only after approval by the Planning Board through the Conditional Use process, one of the review criteria for evaluating Conditional Uses deals with the concentration of similar uses creating a negative impact on the surrounding neighborhood. The Land Use and Development Committee expressed this same concern in October 27, 2010 City Commission Memorandum NBE Parking Space Lease Amendment Page 2 of 2 recommending a reduction in the number of police vehicle towing permits allowed within the City. Fiscal Impact: The City has had two (2) active towing permits for decades. During this time, the towing needs of the City as well as private property owners have been sufficiently addressed under two (2) active towing permits. There is no foreseeable need for a third towing permit; therefore, there is no fiscal impact identified at this time. JMGIJGGISF T:\AGENDA\2010\0ct27201 O\Regualr\TowingCodeAmendment.cme.doc "POLICE TOWING PERMITS" ORDINANCE NO. AN ORDINANCE OF THE MAYOR AND ClTY COMMISSION OF THE CIN OF MIAMI BEACH, FLORIDA AMENDING THE CODE OF THE ClTY OF MIAMI BEACH, BY AMENDING CHAPTER 106, "TRAFFIC AND VEHICLES," ARTICLE V, "POLICE VEHICLE TOWING," DIVISION 2, "PERMIT," SECTION 106-213, "APPLICATION," TO REDUCE THE NUMBER OF POLICE VEHICLE TOWING PERMITS FROM THREE TO TWO, PROVIDING FOR CODIFICATION, REPEALER, SEVERABILITY AND AN EFFECTIVE DATE. WHEREAS, the City of Miami Beach is responsible for providing a transportation network and system that is usable by its residents and visitors; and WHEREAS, the vehicular traffic demands on the road network in the City is choking the people who must travel to and from the City, and move in and around the City; and WHEREAS, while the shortage of parking is a major issue in the City, resulting in a high number of incidents of illegal parking, so too is the adverse impacts of towing companies whose tow trucks operate within the City's streets; and WHEREAS, while the tow companies provide a needed service, in removing improperly parked vehicles, having too many tow trucks operating in the City also has adverse effects resulting from various factors, including but not limited to, the size of the vehicles, the speed with which they operate on City streets, and the noise the tow yard operations have on surrounding residents and businesses; and WHEREAS, the City Code authorizes up to three permits to be granted to towing companies engaged in the business of providing towing services to the City's Police Department, and the number of permits the City has granted to towing companies engaged in the business of providing towing services to the City's Police Department is presently at two; and WHEREAS, it appears to the City Commission that having two towing companies engaged in the business of providing towing services to the City's Police Department is adequate to address the needs of the City, and would reduce the adverse impact tow company operations have on City residents and businesses; and "POLICE TOWING PERMITS" WHEREAS, since it is within the discretion of the City Commission to select the number of permits it awards to towing companies engaged in the business of providing towing services to the City's Police Department, in order to reduce overhead, reduce duplication of administrative and vehicle investment, and reduce tow vehicle traffic on City streets, and the other adverse impacts tow company operations have on the City as discussed above, or might otherwise be established by further review; and WHEREAS, based upon the foregoing, the City Commission therefore adopts this ordinance to accomplish the above objectives. NOW THEREFORE BE IT ORDAINED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA: SECTION I. Chapter 106, "Traffic And Vehicles," Article V, "Police Vehicle Towing," Division 2, "Permit," Section 106-213, "Application," is hereby amended as follows: Sec. 106-21 3. Application. An application for a permit under this article shall be filed in writing with the city manager. Such application shall be verified by the oath of the person making such application as to the truth of the statements contained therein, if a natural person, by such person; by the officers thereof, if the applicant is a corporation; or by a member thereof, if the applicant is a partnership. Such application shall include the name and address of the applicant and the address of its officers, if any. The total number of permits granted under this article shall not exceed #wee two. - SECTION 2. REPEALER. All ordinances or parts of ordinances and all sections and parts of sections in conflict herewith be and the same are hereby repealed. SECTION 3. CODIFICATION. It is the intention of the City Commission, and it is hereby ordained that the provisions of this ordinance shall become and be made part of the Code of the City of Miami Beach as amended; that the sections of this ordinance may be renumbered or relettered to accomplish such intention; and that the word "ordinance" may be changed to "section" or other appropriate word. "POLICE TOWING PERMITS" SECTION 4. SEVERABILIN. If any section, subsection, clause or provision of this Ordinance is held invalid, the remainder shall not be affected by such invalidity. SECTION 5. EFFECTIVE DATE. This Ordinance shall take effect ten days following adoption. Passed and adopted this day of ,2010. MAYOR ATTEST: CITY CLERK APPROVED AS TO FORM & LANGUAGE F:\atto\HELG\Ordinances\Towing\Ordinance draft 10-20-2010.doc COMMISSION ITEM SUMMARY Condensed Title: An Ordinance Of The Mayor And City Commission Of The City Of Miami Beach, Amending The Miami Beach Employees' Retirement Plan; Implementing Provisions Of The 2009-2012 Collective Bargaining Agreement Between The City And The Communications Workers Of America, Local 3178 (CWA); Providing For Severability; Repealing All Ordinances In Conflict Therewith; And Providing An Effective Date. Key Intended Outcome Supported: I Control costs of payroll including salary and fringes1 minimize taxes1 ensure expenditure trends are sustainable over the long I term. Supporting Data (Surveys, Environmental Scan, etc NIA Issue: Should the City Commission approve the ordinance on First Reading to amend the Miami Beach Employees' Retirement Plan and set the Second Reading, Public Hearing for November 17,2010? Item Summary/Recommendation: I First Reading. Public Hearinn I The City negotiated with the Communications Workers of America, Local 31 78 (CWA) to negotiate changes toihe Miami each Employees' Retirement Plan (MBERP) in order to effectuate recurring savings in the City's Annual Required Contribution (ARC) to the Plan, as well as a reduction in the Plan's Unfunded Accrued Actuarial Liability (UAAL). The Administration negotiated a two percent (2%) increase to the employees' contribution to the pension system, a phased-in change to the Final Average Monthly Earnings (FAME), and changes to MBERP for future employees for the CWA bargaining unit. On September 15,201 0 the MBERP ordinance was amended to implement these changes for all general employee salary groups who participate in MBERP, except for the CWA. The proposed amendments to the MBERP ordinance apply the pension changes referenced above to those employees covered under the CWA bargaining unit. Should the amendments to the MBERP ordinance pass, the proposed pension changes will result in considerable savings to the City, both short and long term. I The Administration recommends approving this ordinance on First Reading and setting the Second Reading for November 17, 1 Advisory Board Recommendation: Financial Information: Source of I Funds: contribution, FAME change). Savings to be applied towards the City ARC payable 10/1/10 assuming the City receives written confirmation from the State of Florida Division of Retirement and the MBERP actuary that the savings can be applied retroactively Amount FYI 011 I ($1,000,050) I towards the City's ARC payable on 1011110. FYI 111 2 ($1,000,050) ( Savings to ARC payable on 10/1111 Additional 2% Employee Account FYI 011 1 savings related to pension changes (additional 2% Pension Contribution; Change in FAME; and Changes for Future Employees L__I 1 OBPl Total ( ($2,000,100) Financial Impact Summarv: Adopting this ordinance will result in short-term savings in the City's MBERP ARC and a long-term reduction to the Unfunded Accrued ~Guarial Liability (UAAL). In addition, these amendments ti the ordinance will yield additional I long-term, recurring savings in future fiscal years. City Clerk's Office Legislative Tracking: Ramiro Inguanzo, Human Resources Director MIAMIBEACH City of Miami Beach, 1700 Convention Center Drive, Miami Beach, Florida 33 139, www.miomibeochfl.gov COMMISSION MEMORANDUM of the City Commission DATE: October 27,201 0 FIRST READING SUBJECT: AN ORDINANCE OF THE MAYOR AND ClTY COMMISSION OF THE ClTY OF MIAMI BEACH, FLORIDA, AMENDING THE MIAMI BEACH EMPLOYEES' RETIREMENT PLAN; IMPLEMENTING PROVISIONS OF THE 2009-2012 COLLECTIVE BARGAINING AGREEMENT BETWEEN THE ClTY AND THE COMMUNICATIONS WORKERS OF AMERICA, LOCAL 3178 (CWA); PROVIDING FOR SEVERABILITY; REPEALING ALL ORDINANCES IN CONFLICT THEREWITH; AND PROVIDING AN EFFECTIVE DATE. ADMINISTRATION RECOMMENDATION The Administration recommends that the City Commission approve the ordinance on first reading and set the second reading and public hearing for November 17,2010. BACKGROUND During the July 2009 Finance and Citywide Projects Committee (Committee) budget preparation meetings for the FY200912010 Budget, the Committee requested that all City of Miami Beach employees make certain financial concessions to help address the challenges being faced during the FY200912010 budget cycle and beyond. The Committee requested the Administration to budget for specific employee givebacks for FY200912010, which would in turn effectuate a cost savings of approximately $4.3 million (approximately $3.5 million savings attributed to the General Fund and $800,000 from various enterprise funds). Furthermore, in 2010 the City Commission directed the Administration to secure and budget for an additional $1 1 million in savings attributed to employee givebacks for FY201012011. Therefore, the total amount of employee givebacks for both the FY2009/2010 and FY201012011 was $15.3 million. In addition, the City Commission also directed the Administration to negotiate with the respective unions for pension changes to both of the City's pension plans (the Miami Beach Fire Fighters and Police Officers (Fire and Police) Pension Plan and the Miami Beach Employees' Retirement Plan (MBERP)), in order to effectuate recurring savings in the overall reduction to the City's Annual Required Contribution (ARC), as well as a reduction in the Unfunded Accrued Actuarial Liability (UAAL). In keeping with the spirit of treating similar groups of employees in a consistent manner, the Administration negotiated with the respective general employee labor unions (AFSCME, GSA and CWA) to implement changes to MBERP for current and future employees that are the same for all general employees, including the Unclassified and "Others". This is in addition to the wage and other economic concessions the City negotiated with all Unions. The target for the pension changes for MBERP was to generate a savings of twelve and one half percent (12.5%) of pension value applicable towards the FY201012011. Based on this 12.5% target, the target savings was approximately $2.3 million for FY201012011 for employees who participate in the MBERP. Gabriel, Roeder and Smith (GRS), the actuary for the general employees' pension plan, has estimated that the City's Annual Required Contribution (ARC) due on October 1, 2011 would be reduced by approximately $300,000 if no COLA were provided to any active plan participants for FY200912010. Since no COLA was given to any members of the general employees' pension plan, the City will realize the estimated $300,000 savings towards the City's October 1,201 1 ARC. After assessing a number of Commission Memorandum October 27,201 0 MBERP Pension Ordinance CWA Page 2 of 4 options to reach the target savings, the City determined that changing the Final Average Monthly Earnings (FAME), which is currently one twelfth (1112) of the average annual earnings of the Member during the two (2) highest paid years of creditable service, to one twelfth (1112) of the average annual earnings of the Member during the five (5) highest years, would yield the approximate target savings for the general employees' pension plan. By implementing the change in FAME for the AFSCME, CWA, GSA, Unclassified and "Others" salary groups, the City estimates an additional savings of $1.9M, for a total combined savings for FY2010/2011. On July 14,2010, the City Commission approved on first Reading, amendments to the MBERP pension ordinance for the applicable general salary groups, excluding the CWA. At that time, the City and the CWA were still actively negotiating for a successor collective bargaining Agreement. On September 15, 2010, the City Commission approved the ordinance on Second Reading. On September 23,2010, the City and the CWA reached an Agreement covering the time period of October 1, 2009 through September 30,2012, which was ratified by the CWA membership on September 30,2010 and is being presented for ratification by the City Commission in conjunction with this item. ANALYSIS Some of the significant pension related changes include the following: Pension Changes for Current and Future Employees Change in the Final Average Monthlv Earnings (FAME) Calculation Methodoloqv- The CWA has agreed to the changes in pension requested by the Administration and that were agreed to by all other general employee groups (AFSCME, GSA, Unclassified and "Others"). This included a five (5) year FAME instead of a two (2) year FAME, and changes for employees hired after the implementation. However, concerns were raised about changing the FAME for certain employees who are close to retirement. The City recognizes that there are a number of employees who have reached or are very close to reaching retirement age eligibility. In order to minimize the impacts of this pension change, the City has agreed to implement the FAME change in a phased-in approach, as described below: For those MBERP members who, as of September 30, 2010, are at or within two (2) years of normal retirement age, the FAME will remain being based on the two (2) highest paid years of creditable service. For those MBERP members who, as of September 30,2010, are between two (2) and three (3) years from normal retirement age, the FAME will be based on the three (3) highest paid years of creditable service. For those MBERP members who, as of September 30,201 0, are between three (3) and four (4) years from normal retirement age, the FAME will be based on the four (4) highest paid years of creditable service. For those MBERP members who, as of September 30,2010, are more than four (4) years from normal retirement age, the FAME will be based on the five (5) highest paid years of creditable service. The savings to the City for changing the FAME for CWA employees from two (2) years to five (5) years is approximately $587,000 in FY201012011, and an additional $587,000 in FY201112012, for a total of $1.17M for both the FY201012011 and FY 201 112012 combined. For all general employees who participate in MBERP (including the CWA), the total impact in FY201012011 for all general employees who participate in MBERP is approximately $1.9M. The MBERP actuary estimates that the future impact of the change in FAME for all general employees will yield an annual savings ranging from $1.49M to $2.275M per year (approximately 2.1 2% of payroll) for each year over the next ten (1 0) years. Commission Memorandum October 27,201 0 MBERP Pension Ordinance CWA Page 3 of 4 Changes for future emplovees - In addition to changing the FAME, the CWA has also agreed to the following pension plan changes for all future employees covered under the CWA bargaining unit that are hired after the ratification of the Agreement and the amendment to the City's pension ordinance: The normal retirement date will be age 55 with at least thirty (30) years of creditable service, or age 62 with at least five (5) years of creditable service. The early retirement date will be the date on which the member's age plus years of creditable service equal 75, with a minimum age of 55. The FAME will be an average of the highest five (5) years of employment. The benefit multiplier will be two and one half percent (2.5%) multiplied by the member's years of creditable service, subject to a maximum of 80% of the member's FAME. The retiree Cost of Living Adjustment (COLA) will be one and one half percent (I .5%) per year, with the first adjustment deferred to one (I) year after the end of the DROP. The employee contribution will be ten percent (1 0%) of salary. The standard form of benefit is a lifetime annuity. Members who separate from City employment with five (5) or more years of creditable service but prior to the normal or early retirement date will be eligible to receive a normal retirement benefit at age 62. Employees will be eligible to enter the Deferred Retirement Option Plan (DROP) at the normal retirement age specified above and may participate in the DROP for a maximum of five (5) years. (The five year DROP is only applicable to those CWA employees who are hired on or after October 27,201 0). Gabriel, Roeder and Smith (GRS), the actuary for MBERP, has stated that the implementation of the pension changes for any employees hired after the amendment to the City's pension ordinance will not generate any immediate savings. However, future' savings will be realized beginning in FY2011/2012 with approximately $900,000 (1.92% of payroll) in savings towards the City's ARC. The pension actuary has estimated that the City will realize an additional annual reduction of seven-tenths percent (.7%) per year of payroll applied as a reduction towards the City's ARC in perpetuity. These savings will range from $910,000 in FY201112012 to as much as $5.995 million in FY202012021. These calculations are for all general employees hired after September 30,201 0 (CWA employees hired after October27,2010) with the amendment to the City pension ordinance who participate in MBERP, not just those participants covered under the CWA bargaining unit. The CWA's portion of the $900,000 in savings was based on their proportionate share of payroll as of March 201 0. The estimated savings for the pension changes for future employees covered under the CWA bargaining unit would be approximately $162,000 to be applied in FY201 llFY2012. Attached is the GRS' Supplemental Actuarial Valuation Reports for the additional proposed benefit changes to the MBERP for the change in FAME (Attachment6'A") and for the change for future employees (Attachment "B). Additional Two Percent (2%) Emplovee Pension Contribution Pursuant to the Agreement reached by the City and the CWA, effective upon ratification of the Agreement, all CWA employees will experience a temporary, twelve (12) month wage concession of three and one half percent (3.5%) for all CWA bargaining unit members. However, based on the terms of the Agreement, should the City receive confirmation, in writing, from the MBERP actuary and from the State of Florida Division of Retirement that the City can recognize at least a $1,000,050 savings from the pension adjustments agreed to by the CWA, and that these savings could be applied retroactively to the City's Annual Required Contribution (ARC) due on October 1,201 0, then the three and one half percent (3.5%) temporary wage reduction will be replaced with a two percent (2%) increase towards the employee's pension contribution for all members who participate in MBERP. This would mean an increase from ten percent (1 0%) to twelve percent (12%) of earnings for "Tier A employees (hired prior to February 21,1994), and an increase from eight percent (8%) to ten percent (1 0%) of earnings for "Tier B employees (hired on or after February 21,1994). Commission Memorandum October 27,2010 MBERP Pension Ordinance CWA Page 4 of 4 In the event that the City fails to receive the written confirmation from the State of Florida Division of Retirement and the MBERP actuary that the savings can be applied retroactively to the City's ARC payable on October 1, 2010, then the additional two percent (2%) employee pension contribution for CWA members shall take effect immediately upon the expiration of the temporary twelve (12) month wage concession. The actuary for MBERP estimates that the value of an additional two percent (2%) employee pension contribution for CWA members who participate in MBERP would yield a savings of approximately $412,626 towards the City's ARC annually, if it were to be collected for a full twelve (12) month period. Should the City receive confirmation in writing from the State of Florida Division of Retirement and the MBERP actuary that a savings of at least $1,000,050 associated with the pension changes agreed to by the CWA could be applied retroactively to the City's ARC payable on October 1, 2010, then effective November 27,201 0, the temporary three and one half percent (3.5%) wage concession enacted for the CWA employees would cease and would be replaced with the implementation of the additional two percent (2%) pension contribution for all CWA employees who participate in MBERP. Assuming the implementation of an additional two percent (2%) employee pension contribution for CWA members commences on November 27, 2010, the City would realize a savings of approximately $347,000, thus representing a prorated portion of the $412,626 savings (November 27,2010 through September 30, 201 1) applicable towards the City's ARC payable on October 1, 201 1). Furthermore, there will be an additional savings of approximately $412,626 to the City's ARC payable on October I, 201 2 derived from the additional two percent (2%) employee pension contribution for CWA members that will be contributed during the FY2011/2012, thus providing a total estimated savings of $760,000 through the term of the entire three (3) year labor Agreement. CONCLUSION The employees represented by the CWA have agreed to the pension changes proposed by the City and accepted by all of the other general employee salary groups (AFSCME, GSA, Unclassified and "Others). If applied to CWA, these changes will be consistent for all general employee salary groups who participate in MBERP. Based on these changes for all general salary groups who participate in MBERP, the revised assumptions applied in the Actuarial Impact Statement provided by the actuary for MBERP, represents a total savings of $3,297,614 (a reduction of 4.70% of Non-DROP payroll) to the City's ARC payable on October I, 2010, of which approximately $1,000,050 is attributed for the pension changes agreed to by the CWA. These proposed changes represent substantial short-term and long-term savings for the City. Should the ordinance be approved on first reading, the Commission shall set a second reading and public hearing for November 17,201 0. The Administration recommends that the City Commission adopt the Ordinance. T:L9GENDA\2010\0ctober 27\MBERP Ordinance CWA Memo.doc ORDINANCE NO. AN ORDINANCE OF THE MAYOR AND ClTY COMMISSION OF THE ClTY OF MlAMl BEACH, FLORIDA, AMENDING THE MlAMl BEACH EMPLOYEES' RETIREMENT PLAN; IMPLEMENTING PROVISIONS OF THE 2009-2012 COLLECTIVE BARGAINING AGREEMENT BETWEEN THE CITY AND COMMUNICATIONS WORKERS OF AMERICA LOCAL 3178; PROVIDING FOR SEVERABILITY; REPEALING ALL ORDINANCES IN CONFLICT THEREWITH; AND PROVIDING AN EFFECTIVE DATE. BE IT ORDAINED BY THE ClTY COMMISSION OF THE CITY OF MlAMl BEACH, FLORIDA: Section I. Section 2.14 of the Miami Beach Employees' Retirement Plan created by Ordinance 2006-3504, as subsequently amended, is amended to read: 2.14 (a) "Final Average Monthly Earnings" means one-twelfth of the average annual earnings of the Member during the two highest paid years of creditable service except as otherwise provided in this Section 2.14. Notwithstanding the foregoing, for any Member who became a member of the Unclassified System prior to October 18, 1992 and was continuously a member of the Unclassified System from that date until March 18, 2006, "Final Average Monthly Earnings" means one-twelfth of the average annual earnings of the Member during the two highest paid years of creditable service, but shall not in any event be less than one-twelfth of the earnings of the Member during the twelve months immediately preceding March 18, 2006. . . .. . (b) Notwithstanding section 2.14(a) above, 3 nr "I effective September 30, 201 0 "Final Average Monthly Earnings" means: 1. For those Members who as of September 30, 2010 have attained normal retirement age or are within 24 months from normal retirement age, "Final Average Monthly Earnings" shall have the same meaning as in section 2.14(a) above. 2. For those Members who as of September 30, 201 0 are between 24 and 36 months from normal retirement age, "Final Average Monthly Earnings" means one-twelfth (1112) of the average annual earnings of the Member during the three (3) highest paid years of creditable service. 3. For those Members who as of September 30, 2010 are between 36 and 48 months from normal retirement age, "Final Average Monthly Earnings" means one-twelfth (1112) of the average annual earnings of the Member during the four (4) highest paid years of creditable service. 4. For those Members who as of September 30, 2010 are more than 48 months from normal retirement age, "Final Average Monthly Earnings" means one-twelfth (1112) of the average annual earnings of the employee during the five (5) highest paid years of creditable service. Section 2. Section 6.02 of the Miami Beach Employees' Retirement Plan created by Ordinance 2006-3504, as subsequently amended, is amended to read: 6.02 Contributions by Members (a) Each Member shall contribute to the Plan eight percent (8%) of earnings, except as otherwise provided in this Section 6.02. Notwithstanding the preceding sentence, effective July 14, 2010, each Member in a classification within the AFSCME and GSA bargaining units, and each Unclassified and "Other" Member, shall contribute to the Plan ten percent (10%) of earnings, except as otherwise provided in this Section 6.02. Notwithstandinq the first sentence of this subsection (a), effective November 27, 2010, each Member in a classification within the CWA (MBEBA) barqaininq unit shall contribute to the Plan ten percent (10%) of earnings, except as otherwise provided in this Section 6.02.. and continqent on State a~proval of an actuarial impact statement confirminq a reduction in the City's annual reauired pension contribution for FY 2010-2011 associated with the pension changes contained in the 2009-2012 collective CWA collective barqaininq aqreement of at least $1,000,050. The contributions made by each Member to the Plan shall be deducted from the Member's Earnings and designated as Employer contributions pursuant to section 414(h) of the Internal Revenue Code. Such designation is contingent upon the contributions being excluded from the Members' gross income for Federal Income Tax purposes. For all other purposes of the Plan, such contributions shall be considered to be Member contributions. (b) Notwithstanding subsection (a) above, all persons entering service with the City prior to April 1, 1993 who are in the classifications within the AFSCME bargaining unit; all persons entering service with the City prior to February 21, 1994 who are in classifications within the CWA (MBEBA) bargaining unit, and all persons entering service with the City prior to August 1, 1993 who are in classifications within the GSA bargaining unit or classified as "Other", who were members of the Classified Plan continuously from the date they entered service with the City until March 18,2006, shall contribute to the Plan ten percent (10%) of their earnings throughout their service as a Member of this Plan. Notwithstanding the preceding sentence, effective July 14, 2010, each Member described in the preceding sentence who is in a classification within the AFSCME or GSA bargaining units shall contribute to the Plan twelve percent (12%) of earnings; and effective January 18, 2010, each Member described in the preceding sentence classified as "Other" shall contribute to the Plan twelve percent (12%) of earnings. Notwithstandinq the first sentence of this subsection (b), effective November 27, 201 0, each Member described in the first sentence of this subsection (b) who is in a classification within the CWA (MBEBA) barqaininq unit shall contribute to the Plan twelve percent (12%) of earninqs, continqent on State approval of an actuarial impact statement confirmina a reduction in the Citv's annual required pension contribution for FY 2010-201 1 associated with the pension chanqes contained in the 2009-2012 collective CWA bargaininq aareement of at least $1,000,050. * * * Section 3. Article 13 of the Miami Beach Employees' Retirement Plan created by Ordinance 2006-3504, as subsequently amended, is amended to read: ARTICLE 13. Employees hired on or after September 30,201 0. Notwithstanding any other provision of the Plan, for employees hired on or after September 30, 2010, other than employees hired in classifications within the CWA (MBEBA) bargaining unit, the provisions of the Miami Beach Employees' Retirement Plan created by Ordinance 2006- 3504, as subsequently amended, shall be applicable, except as set forth in paragraphs a throuqh i below.#dkws Notwithstanding anv other provision of the Plan, for emplovees hired on or after October 27. 2010 in classifications within the CWA (MBEBA) bargaininq unit. the provisions of the Miami Beach Emplovees' Retirement Plan created by Ordinance 2006-3504, as subsequentlv amended, shall be applicable, except as set forth in paraqraphs a throuqh i below. a. The normal retirement date shall be age 55 with at least thirty (30) years of creditable service, or age 62 with at least five (5) years of creditable service. b. The early retirement date shall be the date on which the member's age plus years of creditable service equal 75, with a minimum age of 55 c. Final average monthly earnings shall be an average of the highest five (5) years of employment. d. The benefit multiplier shall be 2.5% multiplied by the member's years of creditable service, subject to a maximum of 80% of the member's FAME. e. The retiree Cost of Living Adjustment shall be I .5% per year, with the first adjustment deferred to one year after the end of the DROP. f. The employee contribution shall be 10% of salary. g. The standard form of benefit shall be a lifetime annuity. h. Members who separate from City employment with 5 or more years of creditable service but prior to the normal or early retirement date shall be eligible to receive a normal retirement benefit at age 62. i. Employees shall be eligible to enter the DROP at the normal retirement age specified in paragraph a, above, and may participate in the DROP for a maximum of 5 years. Section 4. Conflicts and Severability. (a) All Ordinances, and parts of ordinances, in conflict herewith shall be and the same, are hereby repealed. (b) In the event any article, section, paragraph, sentence, clause, or phrase of this Ordinance shall be adjudicated invalid or unconstitutional, such adjudication shall in no manner affect the other articles, sections, paragraphs, sentences, clauses or phrases of this Ordinance, which shall be and remain in full force and effect as fully as if the item so adjudged invalid or unconstitutional was not originally a part hereof. Section 5. Effective Date. This Ordinance shall take effect ten days following adoption, except as otherwise specified herein. PASSED and ADOPTED by the City Commission of the City of Miami Beach this day of ,2010. Mayor Attest: (Seal) 1st Reading - 2nd Reading - Attachment A GRS Gabriel ~oeder'smith & Company One East Broward Blvd. 954.527.1616 phone Consultants & Actuaries Suite 505 954.525.0083 fax Ft. Lauderdale, FL 33301-1827 www.gabrielroeder.com August 3,2010 Mr. Rick Rivera Pension Administrator City of Miaini Beach I700 Convention Center Drive Miatlli Beach, Florida 33 139 Re: . Actuarial Impact Statement for Proposed Benefit Changes to the Miami Beach Employees' Dear Ranko: As requested, we have prepared the enclosed Actuarial Impact Statement showing the financial effect of the following proposed changes to the Miami Beach General Employees' Retirement System: 1. Increase employee contributions by 2% 2. Change final average earnings period from two to five years, except for manbeis who are less than five years away &om nod retirement eligibility. Members who are eligible for normal retirement in two years or less will have average earnings of two years. Members who are eligible for normal retirement in three years will have average earnings of three years. Members who are eligible for normal retirement in four years will have average earnings of four years. 3. Change the following for new hires only: a. Nonnal Retirement Age of 55 with 30 years of service or age 62 with 5 years of service b. Early retirement eligibility of "Rule of 75" with a minimum of age 55 c. Multiplier of 2.5%, subject to a maximum of 80% of final average monthly dgs d. Final average monthly earnings of five years e. Normal fonn of payment of life annuity f. Members may participate in the DROP for up to 5 years g. Cost-of-living adjustment (COLA) of 1.5% at retirement (no COLA while in the DROP) h. Employee contributions of 10% Please note that the changes for new hires described in item (3) above will have no immediate financial impact on the Plan. This report is intended to describe the' financial effect of the proposed plan changes. No statement in this report is, intended to be interpreted as a recommendation in favor of the changes, or in opposition to them. The calculatio~ls are based upon assumptions regarding future events, which may or may not materialize. They are also based upon present and proposed plan provisions that are outlined in the report. If you have reason to believe that the assumptions that were used are unreasonable, that the plan provisions are incorrectly described, that important plan provisions relevant to this proposal are not described, or that conditions have changed since the calculations were made, you should contact the author of this report prior to relying on informatioil in the report. Mr. Rick Rivera August 3,2010 Page 2 of 2 If you have reason to believe that the information provided in this report is inaccurate, or is in any way incomplete, or if you need further information in order to make an informed decision on the subject matter of this report, please contact the author of the report prior to making such decision. We welcome your questions and cormnents. Sincerely yours, - J. Stephen Paln~quist, ASA Senior Consultant & Actuary Enclosures Gabriel Roeder Smith & Company SUPPLEMENTAL ACTUARIAL VALUATION REPORT Plan City of Mi& Beach Employees' Retirement Plan Valuation Date October 1,2009 Date of Report August 3,2010 Report Requested by Board of Trustees Prepared by J. Stephen Palmquist Group Valued All active and inactive members. Plan Provisions Being Considered for Change Present Plan Provisions Before Change Tier A employees contriiute 10% of earnings and Tier B employees contribute 8% of earnings to the Plan Normal Retirement eligibility is age 50 with five years of credited service for Tier A employees and age 55 with five years of credited service for Tier B employees. * Early Retiremait is available for Tier B members of the former General Plan whose age plus service is greater than 75, not earlier than age 50. The multiplier is 3% with a total accrual cap of 90% for Tier A members and 80% for Tier B members. * Earnings are averaged over the two highest paid years. The nod fonn of payment is a 50% joint and survivor annuity payable to the spouse. Members who are eligible for normal retirement may participate in the deferred retirement option program (DROP) for up to three years. Retirees receive an annual cost-of-living adjustment (COLA) of 2.5%. The COLA is not payable while members are in the DROP. Proposed Plan Chancres The following changes would apply to current members of the Plan: Earnings would be averaged over the five highest paid years except for members who are with less than five years away fio~n normal retirement eligibility as of September 30,2010. Members who are eligible for nonnal retirement in two years or less will have average earnings of two years. Members who are eligible for normal retirement in three years will have average earnings of three years. Meinbers who are eligible for normal retirement in four yeais will have average earnings of four years. Tier A employees would contribute 12% of earnings and Tier B employees contribute 10% of earnings to the Plan. The following cl~anges would apply only to members who are hired after September 30,2010: Normal Retirement eligibility would be the earlier of age 55 with 30 years of credited service or age 62 with 5 years of credited service. Members who are at least age 55 and whose age plus credited service is greater than 75 would be eligible to receive an early retirement benefit. Tlie multiplier would be 2.5% with a total accrual cap of 80%. Earnings would be averaged over the five highest paid years. The normal form of paynent would be a life annuity Members who are eligible for normal retirement may participate in the deferred retirement option program (DROP) for up to five years. o Retirees would receive an annual cost-of-living adjustment (COLA) of 1.5%. The COLA is not payable while members are in the DROP. Employees would contribute 10% of earnings to the Plan. Participants Affected Tl~e changes would apply to active members or new members as of the date of the amending ordinance. Actuarial Assumptions and Methods Sane as October 1,2009 Actuarial Valuation Report. Some of the key ass~nptions/methods are: Investment return - 8.35% per year Salary increase - 6% per year Cost Method - Entry Age Normal Cost Method Amortization Period for Any Change in Actuarial Accrued Liability 30 years. Sunlmary of Data Used in Report Same as data used in October 1,2009 Actuarial Valuation Report. Actuarial Impact of Proposal(s) See attached page(s). The proposed changes for current members will decrease the annual required contribution by $3,297,614 or 4.70% of Non-DROP payroll. The changes for new hires will have no immediate financia1 effect. Special Risks Involved With the Proposal That the Plan Has Not Been Exposed to Previously None Other Cost Considerations None Possible Conflicts With IRS Qualification Rules None As indicated below, the undersigned are Members of the American Academy of Actuaries @dAAP;) and meet the Qualification Standards of the Academy of Actuaries to render the actuarial opinion herein BY BY A Melissa R Algayer, MW FCA Enrolled Actuary No. d9-1560 Enrolled Actuary No. 08-6467 CITY OF MIAMI BEACH EMPLOYEES' RETIREMENT PLAN Impact Statement - August 3,201 0 Description of Amendment The proposed ordinance incorporates the following plan changes pursuant to 2009-2012 collective bargaining agreements: 1. Increase employee contributions by 2% 2. Change final average earnings period from two to five years, except for members who are less than five years away from normal retirement eligi'bility. Members who are eligible for normal retirement in two years or less will have average earnings of two years. Meinbers who are eligible for nonnal retirement in three years wilt have average earnings of three years. Members who are eligible for normal retirement in four years will have average earnings of four years. 3. Change the following for new hires only: a. Normal Retirement Age from 55 with 5 years of credited service to 55 with 30 years of service or age 62 with 5 years of service b. Early retirement eligibility from of "Rule of 75" with a minimum of age 50(only for Tier B members of the former General Plan) to "Rule of 75" with a minimum of age 55 c. Change multiplier from 3.0% to 2.5% with a maximum accrual of 80% d. Final average monthly earnings from two to five years e. Nonnal form of paynent from 50% joint and survivor annuity to life annuity f. Extend maximum DROP participation from 3 to 5 years g. Change cost-of-living adjustwent (COLA) from 2.5% to 1.5% at retirement (no COLA during DROP participation) h. Einployee contributions of 10% Funding Implications of Amendment An actuarial cost estimate is attached. The annual required City contribution to the System would decrease by $3,297,614 or 4.70% of Non-DROP payroll. The changes for new hires will have no iinrnediate financial effect. Certification of Administrator I believe the amendment to be in compliance with Part VII, Chapter 112, Florida Statutes and Sectioil 14, Article X of the Constitution of the State of Florida. For the Board ofTruste& as Plan Administrator - ANNUAL REQUlRED CONTRIBUTION (ARC) A. Valuation Date B. ARC to Be Paid During Fiscal Year Ending C. Assumed Date of Employer Contrib. D. Annual Payment to Amortize Unfunded Actuarial Liability E. Employer Normal Cost F. ARC if Paid on the Valuation Date: D+E G. ARC Adjusted for Frequency of Payments H. ARC as % of Covered Payroll - Non-DROP Payroll - Total Payroll I. Covered Payroll for Contribution Year - Non-DROP Payroll - Total Payroll -- October I, 2009 Valuation 9/30/2011 10/1/2010 $ 7,119,977 9,545,472 16,665,449 18,057,014 25.76 % 24.79 % 70,097,549 72,835,309 October 1,2009 Increase EE Cont. by 2% and 5- Year Final Average Earnings 913 0/20 1 1 10/1/2010 $ 6,598,080 7,023,886 13,621,966 14,759,400 21.06 % 20.26 % 70,097,549 72,835,309 Increasd (Decrease) $ (521,897) (2,521,586) (3,043,483) (3,297,614) (4.70) % (4.53) % 0 0 ACTUARIAL VALUE OF BENEFITS AND ASSETS A. Valuation Date B. Actuarial Present Value of All Projected Benefits for 1. Active Members a. Service Retirement Benefits b. Vesting Benefits c. Disability Benefits d. Preretirement Death Benefits e. Return of Member Contributions f. Total 2. Inactive Members a. Service Retirees & Beneficiaries b. Disability Retirees c. Terminated Vested Members d. Total 3. Total for All Members C. Actuarial Accrued (Past Service) Liability per GASB No. 25 D. Plan Assets 1. Market Value 2. Actuarial Value E. Unfunded Actuarial Accrued Liability (C-D2) F. Funded Ratio (D2 + C) G. Actuarial Present Value of Projected Covered Payroll H. Actuarial Present Value of Projected Member Contributions October 1,2009 Valuation $ 267,872,671 27,198,459 15,514,626 5,25 1,473 651,313 3 16,488,542 327,327,568 9,874,613 12,914,814 350,116,995 666,605,537 551,698,377 349,4 16,064 419,393,718 132,304,659 76.0 %. 518,982,308 39,721,439 October 1,2009 Increase EE Cont. by 2% and 5-Year Final Average Earnings $ 255,645,788 25,47 1,962 14,646,'130 4,959,83 1 702,197 301,425,908 327,327,568 9,874,613 12,914,814 350,116,995 651,542,903 545,536,965 349,416,064 419,393,718 126,143,247 76.9 % 5 18,982,308 49,466,392 Increase/ (Decrease) $ (12,226,883) (1,726,497) (868,496) (291,642) 50,884 (15,062,634) - - - - (15,062,634) (6,161;412) - - (6,161,412) 0.9 % - 9,744,953 CALCULATION A. Valuation Date B. Nonnal Cost for 1. Service Retirement Benefits 2. Vesting Benefits 3. Disability Benefits 4. Preretirement Death Benefits 5. Return of Member Contributions 6. Total for Future Benefits 7. Asswned Amount for Administrative Expenses 8. Total Normal Cost % of Covered Payroll - Non-DROP Payroll - Total Payroll C. Expected Meinber Contribution % of Covered Payroll - Non-DROP Payroll - Total Payroll D. Employer Normal Cost: B8-C % of Covered Payroll - Excluding DROP Payroll - Including DROP Payroll Increw J (Decrease) $ (890,657) (1 36,050) (75,959) (24,75 1) - (1,127,417) - (1,127,417) (1.61) % (1.55) % 1,394,169 1.99 % 1.91 % (2,521,586) (3.60) % (3.46) % OF EMPLOUER October 1,2009 Valuation $ 11,131,111 1,707,845 1,212,589 374,643 214,559 14,640,747 657,393 15,298,140 21.82 % 21.00 % 5,752,668 8.21 % 7.90 % 9,545,472 13.62 % 13.11 % NORMAL COST October 1,2009 Increase EE Cont. by 2% and 5-Year Final Aver-age Earnings $ 10,240,454 1,571,795 1,136,630 349,892 214,559 13,513,330 657,393 14,170,723 20.22 % 19.46 % 7,146,837 10.20 % 9.81 % 7,023,886 10.02 % 9.64 % 1 PARTICIPANT DATA October 1,2009 Before Changes October 1,2009 After Changes ACTIVE MEMBERS 1,154 $ 70,097,549 $ 60,743 72,835,309 61,258 43.5 8.2 35.3 Nwnber (Non-DROP) Covered Amual Non-DROP Payroll Average Annual Non-DROP Pay Total Covered Annual Payroll Average Annual Pay Average Age Average Past Se~ice Average Age at Hire 1,154 $ 70,097,549 $ 60,743 $ 72,835,309 $ 61,258 43.5 8.2 35.3 DROP PARTICIPANTS 35 1,763,119 50,375 57.9 Number Annual Benefits Average Annual Benefit Average Age 35 $ 1,763,119 $ 50,375 57.9 RETIREES & BENEFICIARDES 972 $ 28,200,927 $ 29,013 70.8 Number Annual Benefits Average Annual Benefit Average Age 972 $ 28,200,927 $ 29,013 70.8 DISABILITY RETIREES 41 $ 936,354 $ 22,838 65.9 Number Annual Benefits Average Annual Benefit Average Age 41 $ 936,354 $ 22,838 65.9 TERMINATED VESTED MEMBERS 79 $ 1,373,077 $ 17,381 46.9 Nsunber Annual Benefits Average Annual Benefit Average Age 79 $ 1,373,077 $ 17,381 46.9 Attachment B Gabriel Roeder Smith & Company One East Broward Blvd. 9 54.527.1616 phone Consultants & Actuaries Suite 505 954.525.0083 fax Fr. Lauderdale, FL 33301-1827 www.gabrielroeder.com June 4,20 1 0 Mr. Rarniro Znguanzo Human Resources Director City of Miami Beach g,- =E < 1700 Convention Center Drive m W Miami Beach, Florida 33 139 ,9? rT . n, 0 g a3 Re: .Supplemental Actuarial Valuation Report for Additional Proposed Benefit Changes tWe Miami Beach Employees' Retirement Plan Dear Rarniro: As requested, enclosed is a 10-year projection of cost savings assuming the proposed changes listed below apply to new hires of the Miami Beach Employees' Retirement Plan. When performing these projections, we assumed that there would be no gains and losses or assumption changes 6 September 30, 2009. In actuality, thm will likely be losses due to investmeats wer the next four years. 0 Nod Retirement Age of 55 plus 30 years of service or 62 with 5 years of service o Early Retirement eligiiility of 'Rule of 75" with a minimum of age 55 Multiplier of 2.5% for all service 0 Final average earnings of five years Nonnal form of payment of life annuity 0 Extend DROP to 5 years P, Retiree COLA of 1.5% (no COLA while in the DROP) Employee contributions of 10% Since the Normal Retirement Age would be raised, we used the same normal retirement probabilities that are currently used for Tier B members. All other assumptions and provisions are the same as outlined in the October 1,2009 report. This report is intended to describe the financial effect of the proposed plan changes. No statement in this report is intended to be interpreted as a recommendation in favor of the changes, or in opposition to them. The calculations are based upon assumptions regarding kture events, which may or may not materialize. They are also based upon present and proposed plan provisions that are outlined in the report. If you have reason to believe that the assumptions that were used are unreasonable; that the plan provisions are incorrectly described, that important plan provisions relevant to this proposal are not described, or that conditions have changed since the calculations were made, you should contact the author of this report prior to relying on information in the report. Attachment c6B~ Mr. Raoliro In-o June 4,201 0 Page 2 of 2 If you have reason .to believe that the information provided in this report is inaccurate, or is in any way incomplete, or if you need further infomation in order to make an informed decision on the subject matter of this report, please contact the author of the report prior to making such decision. We welcome your questions and comments. Sincerely yours, t j. Stephen Palmquist, ASA Senior Consultant & Actuary Enclosure Gabriel Roeder Smith & Company 520 Projection of Annual Cost (Savings) Fiscal Year Ending 9/30 New Benefit Structure for New Entrants Dollar % of Amount Payroll Benefit Structure for New Entrants: o Normal Retirement Age of 55 plus 30 years of service or 62 with 5 years of service e Early Retirement eligiiility of "Rule of 75" with a minimum of age 55 e Multiplier of 2.5% for all service a Final average earnings of five years e Nod fonn of payment of life annuity cs Extend DROP to 5 years Retiree COLA of 1.5% (no COLA while in the DROP) Employee contributions of 10% Note: As indicated in the cover letter, these projections have been prepared & though there would be no experience gains or losses or assumption changes afkr 9/30/2009. This assumption was made in order to keep the projections simple and uncluttered. June 4,2010 Mr. Ramiro Inguanzo Human Resources Director City of Miami Beach 1700 Convention Center Drive Miami Beach, Florida 33 139 Re: Supplemental Actuarial Valuation Report for Beach Employees' Retirement Plan Dear Ramiro: As requested, enclosed is a 10-year g the proposed changes listed below apply to new hires of the Mi Plan. When performing these them. The calculations are based upon assumptions regarding future events, which may or may not materialize. They are also based upon present and proposed plan provisions that are outlined in the report. If you have reason to believe that the assumptions that were used are unreasonable, that the plan provisions are incorrectly described, that important plan provisions relevant to this proposal are not described, or that conditions have changed since the calculations were made, you should contact the author of this report prior to relying on information in the report. Mr. Ramiro Inguanzo June 4,20 10 Page 2 of 2 If you have reason to believe that the information provided in this report is inaccurate, or is incomplete, or if you need further information in order to make an informed decision on We welcome your questions and comments. Sincerely yours, J. Stephen Palrnquist, ASA Senior Consultant & Actuary JSPIma Enclosure in any way the subject Projection of Annual Cost (Savings) New Benefit Structure for New Entrants Fiscal Year Ending Dollar % of 913 0 Amount Payroll Benefit Structure for New Entrants: Early Retirement e e Multiplier of 2.5% Normal form ctions have been prepared as though there would be no experience 13012009. This assumption was made in order to keep the projections R5 - Ordinances R50 An Emergency Ordinance Amending Chapter 14 Of The City Code To Reinsert Section 14-31 And Section 14-33, Pertaining To Violations, Penalty For Delinquency And Payment Of Fees; And Providing For Severability, Repealer, Codification, And An Effective Date. First Reading (Building Department) (Memorandum & Resolution To Be Submitted In Supplemental) AGENDA ITEM: - R50 DATE: 10127110 THIS PAGE INTENTIONALLY LEFT BLANK R5 - Ordinances R5P An Ordinance Amending Chapter 14 Of The City Code To Reinsert Section 14-32 And Sections 14-34 Through 14-38, Pertaining To Temporary Certificates Of Occupancy, Suspension Or Revocation Of Certificates Of Use, Rule Making Authority, Emergency Action, Administrative Hearings And Enforcement Of Orders; And Providing For Severability, Repealer, Codification, And An Effective Date. First Reading (Building Department) (Memorandum & Resolution To Be Submitted In Supplemental) AGENDA ITEM: - R5P DATE: 10/27/10 THIS PAGE INTENTIONALLY LEFT BLANK COMMISSION ITEM SUMMARY Condensed Title: Resolution approving and authorizing the Mayor and City Clerk to execute a Lease Agreement, after a duly noticed public hearing, between the City and United Police Federal Credit Union, for use of 196 SF of City-owned property located at 11 00 Washington Avenue, Rooms 11 0 and 11 1, for an initial term of 3 years, with one additional 3 year renewal term; waiving by 517th~ vote the competitive bid requirement. Key Intended Outcome Supported: I Increase resident satisfaction with the level of services and facilities. I Supporting Data (Surveys, Environmental Scan, etc.): Approximately 40% of retail businesses surveyed, rank Miami Beach as one of the best places to do business and 61 % of the same group would recommend Miami Beach as a place to do business. Issue: I Shall the City Commission approve the Lease Agreement? I Item SummarylRecommendation: PUBLIC HEARING On December 8, 2004, the Mayor and City Commission adopted Resolution No. 2004-25762, approving a Lease Agreement between the City of Miami Beach (City) and the Miami Police Federal Credit Union (MPFCU) for use of approximately 196 square feet of City-owned property. The approved Lease Agreement was for an initial term of thirty five (35) months, commencing on November 1, 2004, with one additional three year renewal term at the City's sole discretion. In February 2006, the MPFCU changed its name to the United Police Federal Credit Union (Credit Union). Said lease renewal term expired on September 30,201 0, and the Credit Union has expressed its desire to remain in its current location. The City and the Credit Union have negotiated a proposed lease agreement with the following terms: I Square Footaae: 196 SF; Term: Three (3) years; Base Rent: $1.20 annually, payable monthly @ $0.10; Additional Rent: $3,116.40 annually, payable monthly @ $259.70 to offset City's operating expenses and insurance costs; Securitv Deposit: Prior to execution of the Lease, the Tenant will furnish the City a Security Deposit in the sum of $51 9.60 (equal to two months of Rent and Additional Rent costs). ATM surcharqe: Per the ATM Use Agreement (attached to the Lease as Exhibit 7.3), non United Police Federal Credit Union members will be surcharged a minimum of $3.00 per ATM transaction. City shall receive $1.50 from each transaction from a non United Police Federal Credit Union member. Section 82-37 of the Miami Beach City Code, governing the salellease of public property for a term of ten (10) years or less requires review by the Finance and Citywide Projects Committee (F&CPC), and City Commission approval accompanied by a public hearing. Furthermore, Section 82-39 provides for the waiver of the competitive bidding, by 517th~ vote of the Mayor and City Commission. At its October 14,201 0 meeting, the F&CPC discussed and recommended approval of the proposed lease agreement, said lease having an initial term of three (3) years, retroactively commencing on October 1, 2010, and ending on September 30, 2013, with one additional three (3) year renewal term, at the City's sole discretion. Advisory Board Recommendation: I Finance & Citywide Projects Committee: October 14, 201 0 I 1 I nla Financial Impact Summary: I City Clerk's Office Legislative Tracking: 1 Anna Parekh, extension 7193 Financial Information: Shn-Offs: Source of Funds: nla T:\AGENDA\2010\0ctober 27\Regular\CREDIT UNION Lease.SUM.doc I Amount ( Account MIAMIBEACH City of Miami Beach, 1700 Convention Center Drive, Miami Beach, Florida 33 139, www.rniamibeachfl.gov COMMISSION MEMORANDUM mbers of the City Commission DATE: October 27, 201 0 PUBLIC HEARING SUBJECT: A RESOLUTION OF THE MAYOR AND ClTY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, APPROVING, FOLLOWING A DULY NOTICED PUBLIC HEARING, A LEASE AGREEMENT BETWEEN THE ClTY AND UNITED POLICE FEDERAL CREDIT UNION, FOR USE OF APPROXIMATELY 196 SQUARE FEET OF CITY- OWNED PROPERTY, LOCATED AT 1100 WASHINGTON AVENUE, ROOMS I10 AND 1 11, MIAMI BEACH, FLORIDA; SAID LEASE HAVING AN INITIAL TERM OF THREE (3) YEARS, WITH ONE ADDITIONAL THREE (3) YEAR RENEWAL TERM, ATTHE CITY'S SOLE DISCRETION; FURTHER WAIVING, BY 517THS VOTE, THE COMPETITIVE BIDDING REQUIREMENT, AS REQUIRED BY SECTION 82-39 OF THE MIAMI BEACH ClTY CODE; AUTHORIZING THE MAYOR AND ClTY CLERK TO EXECUTED THE LEASE AGREEMENT ADMINISTRATION RECOMMENDATION Adopt the Resolution. KEY INTENDED OUTCOMES SUPPORTED Increase resident satisfaction with the level of services and facilities. BACKGROUND On December 8, 2004, the Mayor and City Commission adopted Resolution No. 2204-25762, approving a lease agreement beheen the city of Miami Beach (City) and the Miami Police Federal Credit Union (MPFCU) for use of approximately 196 square feet of ground floor office space within the Miami Beach Police Department Building (Demised Premises), located at 1100 Washington Avenue, Rooms 11 0 and 11 1. This lease provided both the tenant and the tenant's customers (employee members of the MPFCU) with a location that offers convenient access to their services. The initial term of the lease was for a period of thirty five (35) months, from November 1, 2004 through September 30,2007. The lease agreement also provided for one additional three (3) year renewal term; this renewal term was exercised and the renewal period commenced on October 1, 2007. The lease, which expired on September 30,201 0, provided for a rent of one dollar ($1.00) per year and additional rent of two hundred forty five dollars ($245.00) per month. In February 2006, the Miami Police Federal Credit Union was changed its name to the United Police Federal Credit Union (Credit Union). ANALYSIS The Credit Union has ex~ressed its desire to remain at its current location and enter into a new lease agreement. The prdposed lease agreement contains all the terms and conditions contained in other commercial leases for use of City-owned property. A summary of the proposed lease terms Commission Memorandum United Police Federal Credit Union October 27,2010 Page 2 of 4 are as follows: TENANT: United Police Federal Credit Union, a federally chartered credit union. DEMISED PREMISES: 196 SF on the ground floor of the Miami Beach Police Department Headquarter building, located at 1 100 Washington Avenue, Rooms 110 and 111. TERM: Initial term of three (3) years, with one (1) additional three (3) year renewal option, at the City's sole discretion. LEASE COMMENCEMENT DATE: retroactive to October 1, 201 0. RENT COMMENCEMENT DATE: retroactive to October 1, 201 0. BASE RENT: $1.20 annually, payable in monthly installments of $0.10. ADDITIONAL RENT: $3,116.40 annually, payable in monthly installments of $259.70. This additional rent covers operating expenses and insurance costs. Any increase in these costs will result in an increase to Tenant's proportionate share. Per the Automated Teller Machine (ATM) Use Agreement (attached to the Lease as Exhibit 7.3), non United Police Federal Credit Union Members will be surcharged a minimum of three dollars ($3.00) per ATM transaction. City shall receive one dollar and fifty cents ($1.50) from each transaction from a non United Police Federal Credit Union member. PARKING: Tenant may request, from the City's Parking Department, the use of parking spaces, if available, on a first come, first served basis. Rates for the spaces are subject to change, and are currently $70 per month plus applicable sales tax. SECURITY DEPOSIT: Upon execution of the Lease, the Tenant will furnish the City with a Security Deposit in the sum of $519.60 (equal to two months Rent and Additional Rent costs). USES: The Demised Premises shall be used by the Tenant as office space for a federally chartered credit union providing financial services to members comprised primarily of City of Miami Beach Police Department employees. The Demised Premises will be open for operation in accordance with Federal Law. Tenant shall also be permitted to operate and maintain an automated teller machine, subject to the terms and conditions of the Automated Teller Machine (ATM) Use Agreement, attached as Exhibit 7.3 to the lease agreement. IMPROVEMENTS: None anticipated. INSURANCE: Tenant must comply with the following insurance requirements throughout Commission Memorandum United Police Federal Credit Union October 27,201 0 Page 3 of 4 the Term: Comprehensive General Liability in the minimum amount of $1,000,000 per occurrence for bodily injury and property damage. The City of Miami Beach must be named as additional insured parties on this policy, subject to adjustment for inflation. Workers Compensation and Employers Liability coverage in accordance with Florida statutory requirements. All-Risks property and casualty insurance, written at a minimum of 80% of replacement cost value and with replacement cost endorsement, covering all of Tenant's personal property in the Demised Premises (including, without limitation, inventory, trade fixtures, floor coverings, furniture and other property removable by Tenant under the provisions of this Agreement) and all leasehold improvements installed in the Demised Premises by or on behalf of Tenant, subject to adjustment for inflation. PROPERTY TAXES: Property taxes for Property Tax Year 2010 are estimated at Zero Dollars ($0.00). Notwithstanding, the City makes no warranty or representation, that the Building, the Land, andlor the proposed leased premises will not be subject to ad valorem (or other) taxes in subsequent years. In the event Miami-Dade County assesses the property, Tenant shall pay its proportionate share of the property tax bill. Any property tax payment shall be payable by Tenant immediately upon receipt of notice from the City. UTILITIES: Tenant retains sole responsibility for all utilities (not included as part of Operating Expenses) including internet and telephone services. MAINTENANCE AND REPAIR: Tenant will be responsible for day-to-day maintenance and repairs of the Demised Premises, including, without limitation, all fixtures, appurtenances, equipment and furnishings, and janitorial services for the demised premises. CONCLUSION Section 82-37 of the Miami Beach City Code, governing the salellease of public property, as amended by the City Commission on September 15, 2010, provides that the lease of any City- owned property for a term of ten (1 0) years or less (including renewal option periods) requires the following: 1) the proposed lease shall be transmitted by the City Manager (without need for referral by the City Commission) to the Finance and Citywide Projects Committee (F&CPC), for review; and 2) City Commission approval accompanied by a public hearing, which may be set by he City Manager and shall be advertised not less than seven (7) days prior to said hearing in order to obtain citizen input into the proposed lease. Sections 82-39 further provides for the waiver of the competitive bidding requirement, by 517'" vote of the City Commission, upon a finding by the City Commission that the public interest would be served by waiving such condition. Commission Memorandum United Police Federal Credit Union October 27,201 0 Page 4 of 4 At its October 14,2010 meeting, the F&CPC discussed the proposed agreement and recommended that the City Commission approve the proposed lease agreement. The Administration deems that the proposed lease agreement with the Credit Union is in both the City's and its employee's best interest. Based on the aforementioned; the Administration recommends that the Mayor and City Commission approve, following a duly noticed public hearing, the lease agreement between the City and United Police Federal Credit Union, with the proposed terms, as delineated herein. JMGIHMF Irr T:\AGENDA\2010\0ctober 27\Regular\CREDIT UNION Lease.MEM.doc RESOLUTION NO. A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MlAMl BEACH, FLORIDA, APPROVING, FOLLOWING A DULY NOTICED PUBLIC HEARING, A LEASE AGREEMENT BETWEEN THE CITY AND UNITED POLICE FEDERAL CREDIT UNION, FOR USE OF APPROXIMATELY 196 SQUARE FEET OF CITY-OWNED PROPERTY, LOCATED AT I100 WASHINGTON AVENUE, ROOMS I10 AND 111, MlAMl BEACH, FLORIDA; SAID LEASE HAVING AN INITIAL TERM OF THREE (3) YEARS, WITH ONE ADDITIONAL THREE (3) YEAR RENEWAL TERM, AT THE CITY'S SOLE DISCRETION; FURTHER WAIVING, BY 517THS VOTE, THE COMPETITIVE BIDDING REQUIREMENT, AS REQUIRED BY SECTION 82-39 OF THE MlAMl BEACH CITY CODE; AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTED THE LEASE AGREEMENT WHEREAS, on December 8, 2004, the Mayor and City Commission adopted Resolution No. 2004-25762, approving a Lease Agreement between the City of Miami Beach (City) and the Miami Police Federal Credit Union (Credit Union) for use of approximately 196 square feet of City-owned property, located at 1 100 Washington Avenue, Rooms 11 0 and 11 1, Miami Beach, Florida; and WHEREAS, the approved Lease Agreement was for an initial term of thirty five (35) months, commencing on November 1,2004, with one additional three year renewal term at the City's sole discretion; and WHEREAS, in February 2006, the Miami Police Federal Credit Union changed its name to the United Police Federal Credit Union; and WHEREAS, said renewal term expired on September 30, 2010, and the Credit Union has expressed its desire to remain at the same location; and WHEREAS, Section 82-37 of the Miami Beach City Code, governing the salellease of public property for a term of ten (I 0) years or less requires review by the Finance and Citywide Projects Committee (F&CPC), and City Commission approval accompanied by a public hearing; and WHEREAS, Section 82-39 of the City Code further provides for the waiver of the competitive bidding requirement, by 5~'" vote of the City Commission, and WHEREAS, at its October 14,2010 meeting, the F&CPC recommended approval of the attached lease agreement, said lease having an initial term of three (3) years, retroactively commencing October 1,201 0, and ending on September 30,201 3, with one additional three (3) year renewal term, at the City's sole discretion; and WHEREAS, said public hearing was held on October 27, 2010. NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, that the Mayor and City Commission hereby approve, following a duly noticed public hearing, a Lease Agreement between the City and United Police Federal Credit Union, for use of approximately 196 square feet of City-owned property, located at I1 00 Washington Avenue, Rooms 11 0 and 11 1, Miami Beach, Florida; said lease having an initial term of three (3) years, with one additional three (3) year renewal term, at the City's sole discretion; further waiving, by 5ffthS vote, the competitive bidding requirement, as required by Section 82-39 of the Miami Beach City Code; authorizing the Mayor and City Clerk to executed the Lease Agreement. PASSED AND ADOPTED THIS 27th day of October, 2010. Attest : Robert Parcher, CITY CLERK Matti Herrera Bower, MAYOR F:\RHCD\$ALL\ECON\$ALL\ASSEnUNlTED POLICE FEDERAL CREDIT UNION\CREDIT UNION LEASE.RES.DOC APPROVED AS TO FORM & LANGUAGE & FOI3 EXECUTION LEASE AGREEMENT THIS LEASE AGREEMENT, made this 27'" day of October, 201 0, by and between the CITY OF MIAMI BEACH, a Florida municipal corporation, (hereinafter referred to as "City" or "Landlord"), and UNITED POLICE FEDERAL CREDIT UNION, a federally chartered credit union, (hereinafter referred to as "Tenant"). I. Demised Premises. The Citv, in consideration of the rentals hereinafter reserved to be paid and of the covenants, conditions and agreements to be kept and performed by the Tenant, hereby leases, lets and demises to the Tenant, and Tenant hereby leases and hires from the City, those certain premises hereinafter referred to as the "Demised Premises" and more fully described as follows: Approximately 196 square feet of City-owned property (the "Building" a.k.a. "Miami Beach Police Department Headquarters"), located at 1100 Washington Avenue, Rooms 110 and 1 11, Miami Beach, Florida, 331 39, and as further delineated in Exhibit 1, attached hereto and incorporated herein on page 20. 2. Term. 2.1 Tenant shall be entitled to have and to hold the Demised Premises for an initial term of three (3) years, retroactively commencing on the 1'' day of October, 2010 (the "Commencement Date"), and ending on the 3oth day of September, 2013. For purposes of this Lease Agreement, and including, without limitation, Subsection 2.2 herein, a "contract year" shall be defined as that certain period commencing on the 1'' day of October, and ending on the 3oth day of September. 2.2 Provided Tenant is in good standing and free from default(s) under Section 18 hereof, and upon written notice from Tenant, which notice shall be submitted to the City Manager no earlier than one hundred twenty (120) days, but in any case no later than sixty (60) days prior to the expiration of the initial term, this Lease may be extended for one (1) additional three (3) year renewal term. Any extension, if approved, shall be memorialized in writing and signed by the parties hereto (with the City hereby designating the City Manager as the individual authorized to execute such extensions on its behalf). In the event that the City Manager determines, in his sole discretion, not to extend or renew this Lease Agreement, the City Manager shall notify Tenant of same in writing, which notice shall be provided to Tenant within fifteen (I 5) business days of the City Manager's receipt of Tenant's written notice. 3. Rent. Tenant's payment of Rent, as defined in this Section 3, shall begin to accrue retroactively, commencing on October 1, 201 0 (the "Rent Commencement Date") and, thereafter, on each first day of subsequent months. Base Rent: Throughout the Term herein, the Base Rent for the Demised Premises shall be one Dollar and 2011 00 ($1.20) per year, payable in monthly installments of 101100 ($0.10). 3.2 Additional Rent: In addition to the Base Rent, as set forth in Section 3.1, Tenant shall also pay the following Additional Rent as provided below: 3.2.1 Operating Expenses: Throughout the Term herein, the Operating Expenses for the Demised Premises shall be Two Thousand Nine Hundred Forty Dollars and 001100 ($2,940.00) per year, payable in monthly installments of Two Hundred Forty Five Dollars and 0011 00 ($245.00) per month, for its proportionate share of "Operating Expenses" which are defined as follows: "Operating Expenses" shall mean the following costs and expenses incurred in operating, repairing, and maintaining the Common Facilities (as hereinafter defined) and shall include, without limitation, electric service, water service to the Building, sewer service to the Building, trash removal from the Building, costs incurred for gardening and landscaping, repairing and maintaining elevator(s), painting, janitorial services (except for areas within the Demised Premises), lighting, cleaning, striping, policing, removing garbage and other refuse and trash, removing ice and snow, repairing and maintaining sprinkler systems, water pipes, air-conditioning systems, temperature control systems, and security systems, fire alarm repair and maintenance and other equipment in the common areas and the exterior and structural portions of the Building, paving and repairing, patching and maintaining the parking areas and walkways, and cleaning adjacent areas, management fees and the City's employment expenses to employees furnishing and rendering any services to the common areas, together with an additional administration charge equal to fifteen percent (15%) of all other expenses included in the annual common area expenses, provided by the City for the common or joint use and/or benefit of the occupants of the Building, their employees, agents, servants, customers and other invitees. "Common Facilities" shall mean all Building areas, spaces, equipment, as well as certain services, available for use by or for the benefit of Tenant andlor its employees, agents, servants, volunteers, customers, guests andlor invitees. 3.2.2 Propertv Taxes: The Property Tax Payment shall be payable by Tenant, in accordance with Section 11 herein. The Property Tax Payment for Property Tax Year 201 0 is estimated at Zero Dollars ($0.00). Notwithstanding the preceding sentence, the City makes no warranty or representation, whether express or implied, that the Historic City Hall building, the Land, andlor the Demised Premises will not be subject to ad valorem (or other) taxes in subsequent years. Insurance: The Additional Rent shall also include Tenant's pro-rata share toward estimated insurance costs incurred to insure the.whole of the Building, in the amount of One Hundred Seventy Six Dollars and 401100 ($176.40) per year, payable in monthly installments of Fourteen Dollars and 701100 ($14.70) per month. This insurance coverage is in addition to the insurance required pursuant to Section 10, which shall be obtained at Tenant's sole expense and responsibility. 3.3 Sales Taxes: Concurrent with the payment of the Base Rent and Additional Rent as provide herein, Tenant shall also pay, if applicable, any and all sums for all required tax(es), including without limitation, sales and use taxes and Property Taxes, imposed, levied or assessed against the Demised Premises, or any other charge or payment required by any governmental authority having jurisdiction there over, even though the taxing statute or ordinance may purport to impose such tax against the City. 3.4 Enforcement. Tenant agrees to pay the Base Rent, Additional Rent, and any other amounts as may be due and payable by Tenant under this Agreement, at the time and in the manner provided herein, and should said rents andlor other additional amounts due herein provided, at any time remain due and unpaid for a period of fifteen (15) days after the same shall become due, the City may exercise any or all options available to it hereunder, which options may be exercised concurrently or separately, or the City may pursue any other remedies enforced by law. 4. Location for Pavments. All rents or other payments due hereunder shall be paid to the City at the following address: City of Miami Beach Revenue Manager 1700 Convention Center Drive, 3rd Floor Miami Beach, Florida 331 39 or at such other address as the City may, from time to time, designate in writing. 5. Parking. Tenant may request, from the City's Parking Department, the use of parking spaces, if available; on'a first come, first served basis, at Municipal parking ~ara~e G-2 located at the intersection of 12'~ Street and Drexel Avenue. Rates for said spaces are subject to change, and are currently Seventy Dollars ($70.00) per month, plus applicable sales and use tax per space. 6. Security Deposit. Upon execution of this Agreement Tenant shall furnish the City with a Security Deposit, in the amount of Five Hundred Nineteen Dollars and 6011 00 ($519.60). Said Security Deposit shall serve to secure Tenant's performance in accordance with the provisions of this Agreement. In the event Tenant fails to perform in accordance with said provisions, the City may retain said Security Deposit, as well as pursue any and all other legal remedies provided herein, or as may be provided by applicable law. The parties agree and acknowledge that the foregoing condition is intended to be a condition subsequent to the City's approval of this Agreement. Accordingly, in the event that Tenant does not satisfy the aforestated, then the City Manager or his designee may immediately, without further demand or notice, terminate this Agreement without being prejudiced as to any remedies which may be available to him for breach of contract. 7. Use and Possession of Demised Premises. 7.1 The Demised Premises shall be used by the Tenant as office space for a federally chartered credit union providing financial services to members comprised primarily of City of Miami Beach Police Department employees. Said Premises shall be open for operation in accordance with Federal Law. Nothing herein contained shall be construed to authorize hours contrary to the laws governing such operations. It is understood and agreed that the Demised Premises shall be used by the Tenant during the Term of this Agreement only for the above purpose(s)luse(s), and for no other purpose(s) and/or use(s) whatsoever. Tenant will not make or permit any use of the Demised Premises that, directly or indirectly, is forbidden by law, ordinance or government regulation, or that may be dangerous to life, limb or property. Tenant may not commit (nor permit) waste on the Demised Premises; nor permit the use of the Demised Premises for any illegal purposes; nor commit a nuisance on the Demised Premises. In the event that the Tenant uses the Demised Premises (or otherwise allows the Demised Premises to be used) for any purpose(s) not expressly permitted herein, or permits andlor allows any prohibited use(s) as provided herein, then the City may declare this Agreement in default pursuant to Section 18 or, without notice to Tenant, restrain such improper use by injunction or other legal action. Automated Teller Machine (ATM): Tenant shall also be permitted to install, operate and maintain an automatic teller machine (ATM), subject to the terms and conditions of the Automated Teller Machine Use Agreement (Use Agreement), attached hereto and incorporated herein as Exhibit 7.3 on page 21. The Use Agreement shall run concurrent with, and shall not be renewed and/or extended beyond, the term of this Lease Agreement. In the event this Lease Agreement is terminated or otherwise expires prior to the term stated therein, then the Use Agreement shall automatically terminate. 8. Improvements. 8.1 Tenant accepts the Demised Premises in their present "AS IS" condition and may construct or cause to be constructed, such interior and exterior improvements and maintenance to the Demised Premises, as reasonably necessary for it to carry on its permitted use(s), as set forth in Section 7; provided, however, that any plans for such improvements shall be first submitted to the City Manager for his prior written consent, which consent, if granted at all, shall be at the City Manager's sole and absolute discretion. Additionally, any and all approved improvements shall be made at Tenant's sole expense and responsibility. All permanent (fixed) improvements to the Demised Premises shall remain the property of the City upon termination and/or expiration of this Agreement. Upon termination and/or expiration of this Agreement, all personal property and non-permanent trade fixtures may be removed by the Tenant from the Demised Premises, provided that they can be (and are) removed without damage to the Demised Premises. Tenant will permit no liens to attach to the Demised Premises arising from, connected with, or related to the design and construction of any improvements. Moreover, such construction shall be accomplished through the use of licensed, reputable contractors who are acceptable to the City. Any and all permits and or licenses required for the installation of improvements shall be the sole cost and responsibility of Tenant. Notwithstanding Subsection 8.1, upon termination and/or expiration of this Agreement, and at City's sole option and discretion, any or all alterations or additions made by Tenant to or in the Demised Premises shall, upon written demand by the City Manager, be promptly removed by Tenant, at its expense and responsibility, and Tenant further hereby agrees, in such event, to restore the Demised Premises to their original condition prior to the Commencement Date of this Agreement. The above requirements for submission of plans and the use of specific contractors shall not apply to improvements (which term, for purposes of this Subsection 8.3 only, shall also include improvements as necessary for Tenant's maintenance and repair of the Demised Premises) which do not exceed Five Hundred ($500.00) Dollars, provided that the work is not structural, and provided that it is permitted by applicable law. 9. Citv's Right of Entrv. 9.1 The City Manager, and/or his authorized representatives, shall have the right to enter upon the Demised Premises at all reasonable times for the purpose of inspecting same; preventing waste; making such repairs as the City may consider necessary; and for the purpose of preventing fire, theft or vandalism. The City agrees that, whenever reasonably possible, it shall use reasonable efforts to provide notice (whether written or verbal), unless the need to enter the Demised Premises is an emergency, as deemed by the City Manager, in his sole discretion, which if not immediately addressed could cause property damage, loss of life or limb, or other injury to persons. Nothing herein shall imply any duty on the part of the City to do any work that under any provisions of this Agreement the Tenant may be required to perform, and the performance thereof by the City shall not constitute a waiver of the Tenant's default. If the Tenant shall not be personally present to open and permit entry into the Demised Premises at any time, for any reason, and any entry thereon shall be necessary or permissible, the City Manager, and/or his authorized representatives, may enter the Demised Premises by master key, or may forcibly enter the Demised Premises without rendering the City or such agents liable therefore. Tenant shall furnish the City with duplicate keys to all locks including exterior and interior doors prior to (but no later than by) the Commencement Date of this Agreement. Tenant shall not change the locks to the Demised Premises without the prior written consent of the City Manager, and in the event such consent is given, Tenant shall furnish the City with duplicate keys to said locks in advance of their installation. 10. Tenant's Insurance. 10.1 Tenant shall, at its sole expense and responsibility, comply with all insurance requirements of the City. It is agreed by the parties that Tenant shall not occupy the Demised Premises until proof of the following insurance coverages have been reviewed and approved by the City's Risk Manager: 10.1.1 Comprehensive General Liability, in the minimum amount of One Million ($1,000,000) Dollars (subject to adjustment for inflation) per occurrence for bodily injury and property damage. The City of Miami Beach must be named as an additional insured on this policy. 10.1.2 Workers Compensation and Employers Liability coverage in accordance with Florida statutory requirements. 10.1.3 All-Risk property and casualty insurance, written at a minimum of eighty (80%) percent of replacement cost value and with replacement cost endorsement, covering all leasehold improvements installed in the Demised Premises by or on behalf of Tenant and including without limitation all of Tenant's personal property in the Demised Premises (including, without limitation, inventory, trade fixtures, floor coverings, furniture, and other property removable by Tenant under the provisions of this Agreement). Proof of these coverages must be provided by submitting original certificates of insurance to the City's Risk Manager and Asset Manager respectively. All policies must provide thirty (30) days written notice of cancellation to both the City's Risk Manager and Asset Manager (to be submitted to the addresses set forth in Section 27 hereof). All insurance policies shall be issued by companies authorized to do business under the laws of the State of Florida and must have a rating of B+:VI or better per A.M. Best's Key Rating Guide, latest edition, and certificates are subject to the approval of the City's Risk Manager. 1 1. Property Taxes and Assessments. For the purposes of this Section and other provisions of this Agreement: 11 .I The term "Property Taxes" shall mean (i) real estate taxes, assessments, and special assessments of any kind which may be imposed upon the Demised Premises, and (ii) any expenses incurred by the City in obtaining a reduction of any such taxes or assessments. 11.2 The term "Property Tax Year" shall mean the period of twelve (1 2) calendar months, beginning on January 1" of each year. Tenant shall pay, as Additional Rent pursuant to Section 3.2, for such Property Tax Year an amount ("Property Tax Payment") equal to Tenant's pro-rata share of Property Taxes (if any) for such Property Tax Year; said pro-rata share to be determined by the City based upon the ratio of the Demised Premises to the tax lot. If a Property Tax Year ends after the expiration or termination of the term of this Agreement, the Property Tax Payment therefore shall be prorated to correspond to that portion of such Property Tax Year occurring within the term of this Agreement. The Property Tax Payment shall be payable by Tenant immediately upon receipt of notice from the City. A copy of the tax bill(s) or other evidence of such taxes issued by the taxing authorities, together with the City's computation of the Property Tax Payment, will be made available to Tenant once received from the taxing authorities, if requested by Tenant. Tenant shall pay any difference in the amount between the estimated property taxes and the actual property taxes to the City immediately, upon receipt of request for said payment from the City. 12. Assignment and Subletting. Tenant shall not have the right to assign or sublet the Demised Premises, in whole or in part, without the prior written consent of the City Manager, which consent, if granted at all shall be at the City Manager's sole and absolute discretion. Such written consent is not a matter of right and the City is not obligated to give such consent. If granted as provided herein, the making of any assignment or sublease will not release Tenant from any of its obligations under this Agreement. 13. Operation, Maintenance and Repair. 13.1 Tenant shall be solely responsible for the operation, maintenance and repair of the Demised Premises. Tenant shall, at its sole expense and responsibility, maintain the Demised Premises, and all fixtures and appurtenances therein, and shall make all repairs thereto, as and when needed, to preserve them in good working order and condition. Tenant shall be responsible for all interior walls and the interior and exterior of all windows and doors, as well as immediate replacement of any and all plate glass or other glass in the Demised Premises which may become broken, using glass of the same or better quality. The City shall be responsible for the maintenance of the roof, the exterior of the Building, all heating/ventilation/air conditioning (HVAC) equipment servicing the Demised Premises, the structural electrical and plumbing (other than plumbing surrounding any sink(s) and/or toilet(s), including such sink(s) and toilet(s) fixture(s), within the Demised Premises), the common areas and the chilled water supply system. The City shall maintain and/or repair those items that it is responsible for, so as to keep same in proper working condition. 13.2 All damage or injury of any kind to the Demised Premises, and including without limitation its fixtures, glass, appurtenances, and equipment (if any), or to the building fixtures, glass, appurtenances, and equipment, if any, except damage caused by the negligence and/or willful misconduct of the City, shall be the sole obligation of Tenant, and shall be repaired, restored or replaced promptly by Tenant, at its sole expense and to the satisfaction of the City. 13.3 All of the aforesaid repairs, restorations and replacements shall be in quality and class equal to or better than the original work or installations and shall be done in good and workmanlike manner. 13.4 If Tenant fails to make such repairs or restorations or replacements, the same may be made by the City, at the expense of Tenant, and all sums spent and expenses incurred by the City shall be collectable by the City and shall be paid by Tenant within three (3) days after submittal of a bill or statement therefore. 13.5 It shall be Tenant's sole obligation and responsibility to insure that any renovations, repairs and/or improvements made by Tenant to the Demised Premises comply with all applicable building codes and life safety codes of governmental authorities having jurisdiction. 13.6 Tenant Responsibilities for Utilities (not included within Operatins Expenses). Tenant is solely responsible for, and shall promptly pay when due, all charges and impact fees for any and all utilities for the Demised Premises NOT included as an Operating Expense (pursuant to Subsection 3.2.1). In addition to other rights and remedies hereinafter reserved to the City, upon the failure of Tenant to pay for such utility services (as contemplated in this Subsection 13.6) when due, the City may elect, at its sole discretion, to pay same, whereby Tenant agrees to promptly reimburse the City upon demand. In no event, however, shall the City be liable, whether to Tenant or to third parties, for an interruption or failure in the supply of any utilities or services to the Demised Premises. 13.7 TENANT HEREBY ACKNOWLEDGES AND AGREES THAT THE DEMISED PREMISES ARE BEING LEASED IN THEIR PRESENT "AS IS" CONDITION. Governmental Regulations. Tenant covenants and agrees to fulfill and comply with all statutes, ordinances, rules, orders, regulations, and requirements of any and all governmental bodies, including but not limited to Federal, State, Miami-Dade County, and City governments, and any and all of their departments and bureaus applicable to the Demised Premises, and shall also comply with and fulfill all rules, orders, and regulations for the prevention of fire, all at Tenant's own expense and responsibility. Tenant shall pay all cost, expenses, claims, fines, penalties, and damages that may be imposed because of the failure of Tenant to comply with this Section, and shall indemnify and hold harmless the City from all liability arising from each non- compliance. 15. Liens. Tenant will not permit any mechanics, laborers, or materialman's liens to stand against the Demised Premises or improvements for any labor or materials to Tenant or claimed to have been furnished to Tenant's agents, contractors, or sub-tenants, in connection with work of any character performed or claimed to have performed on said Premises, or improvements by or at the direction or sufferance of the Tenant; provided however, Tenant shall have the right to contest the validity or amount of any such lien or claimed lien. In the event of such contest, Tenant shall give the City reasonable security as may be demanded by the City to insure payment thereof and prevent sale, foreclosure, or forfeiture of the Premises or improvements by reasons of such non-payment. Such security need not exceed one and one half (1 %) times the amount of such lien or such claim of lien. Such security shall be posted by Tenant within ten (10) days of written notice from the City, or Tenant may "bond off' the lien according to statutory procedures. Tenant will immediately pay any judgment rendered with all proper costs and charges and shall have such lien released or judgment satisfied at Tenant's own expense. 16. Intentionally Omitted. 17. Condemnation. 17.1 If at any time during the Term of this Agreement (including any renewal term hereunder) all or any part or portion of the Demised Premises is taken, appropriated, or condemned by reason of Eminent Domain proceedings, then this Agreement shall be terminated as of the date of such taking, and shall thereafter be completely null and void, and neither of the parties hereto shall thereafter have any rights against the other by reason of this Agreement or anything contained therein, except that any rent prepaid beyond the date of such taking shall be prorated to such date, and Tenant shall pay any and all rents, additional rents, utility charges, and/or other costs for which it is liable under the terms of this Agreement, up to the date of such taking. Except as hereunder provided, Tenant shall not be entitled to participate in the proceeds of any award made to the City in any such Eminent Domain proceeding, excepting, however, Tenant shall have the right to claim and recover from the condemning authority, but not from the City, such compensation as may be separately awarded or recoverable by Tenant in Tenant's own right on account of any and all damage to Tenant's business by reasons of the condemnation and for or on account of any cost or loss which Tenant might incur in removing Tenant's furniture and fixtures. 18. Default. 18.1 Default bv Tenant: At the City's option, any of the following shall constitute an Event of Default under this Agreement: 18.1 .I The Base Rent, Additional Rent, or any other amounts as may be due and payable by Tenant under this Agreement, or any installment thereof, is not paid promptly when and where due, and Tenant shall not have cured such failure within five (5) days after receipt of written notice from the City specifying such default; 18.1.2 The Demised Premises shall be deserted, abandoned, or vacated; 18.1.3 Tenant shall fail to comply with any material term, provision, condition or covenant contained herein other than the payment of rent and shall not cure such failure within thirty (30) days after the receipt of written notice from the City specifying any such default; or such longer period of time acceptable to the City, at its sole discretion; 18.1.4 Receipt of notice of violation from any governmental authority having jurisdiction dealing with a law, code, regulation, ordinance or the like, which remains uncured for a period of thirty (30) days from its issuance, or such longer period of time as may be acceptable and approved in writing by the City Manager, at his sole discretion; 18.1.5 Any petition is filed by or against Tenant under any section or chapter of the Bankruptcy Act, as amended, which remains pending for more than sixty (60) days, or any other proceedings now or hereafter authorized by the laws of the United States or of any state for the purpose of discharging or extending the time for payment of debts; 18.1.6 Tenant shall become insolvent; 18.1.7 Tenant shall make an assignment for benefit of creditors; 18.1.8 A receiver is appointed for Tenant by any court and shall not be dissolved within thirty (30) days thereafter; or 18.1.9 The leasehold interest is levied on under execution. 19. Rights on Default. 19.1 Rights on Default: In the event of any default by Tenant as provided herein, City shall have the option to do any of the following, in addition to and not in limitation of, any other remedy permitted by law or by this Agreement; 19.1.1 Terminate this Agreement, in which event Tenant shall immediately surrender the Demised Premises to the City, but if Tenant shall fail to do so the City may, without further notice, and without prejudice to any other remedy the City may have for possession or arrearages in rent or damages for breach of contract, enter upon the Demised Premises and expel or remove Tenant and its effects in accordance with law, without being liable for prosecution or any claim for damages therefore, and Tenant agrees to indemnify and hold harmless the City for all loss and damage which the City may suffer by reasons of such Agreement termination, whether through inability to re-let the Demised Premises, or otherwise. 19.1.2 Declare the entire amount of the Base Rent and Additional Rent which would become due and payable during the remainder of the term of this Agreement to be due and payable immediately, in which event Tenant agrees to pay the same at once, together with all rents therefore due, at the address of the City, as provided in the Notices section of this Agreement; provided, however, that such payment shall not constitute a penalty, forfeiture, or liquidated damage, but shall merely constitute payment in advance of the rents for the remainder of said term and such payment shall be considered, construed and taken to be a debt provable in bankruptcy or receivership. 19.1.3 Enter the Demised Premises as the agent of Tenant, by force if necessary, without being liable to prosecution or any claim for damages therefore; remove Tenant's property there from; and re-let the Demised Premises, or portions thereof, for such terms and upon such conditions which the City deems, in its sole discretion, desirable, and to receive the rents therefore, and Tenant shall pay the City any deficiency that may arise by reason of such re-letting, on demand at any time and from time to time at the office of the City; and for the purpose of re-letting, the City may (i) make any repairs, changes, alterations or additions in or to said Demised Premises that may be necessary or convenient; (ii) pay all costs and expenses therefore from rents resulting from re-letting; and (iii) Tenant shall pay the City any deficiency as aforesaid. 19.1.4 Take possession of any personal property owned by Tenant on said Demised Premises and sell the same at public or private sale, and apply same to the payment of rent due, holding Tenant liable for the deficiency, if any. 19.1.5 It is expressly agreed and understood by and between the parties hereto that any installments of rent accruing under the provisions of this Agreement which shall not be paid when due shall bear interest at the maximum legal rate of interest per annum then prevailing in Florida from the date when the same was payable by the terms hereof, until the same shall be paid by Tenant. Any failure on the City's behalf to enforce this Section shall not constitute a waiver of this provision with respect to future accruals of past due rent. In addition, there will be a late charge of Fifty ($50.00) Dollars for any payments submitted after the due date. 19.1.6 If Tenant shall default in making any payment of monies to any person or for any purpose as may be required hereunder, the City may pay such expense but the City shall not be obligated to do so. Tenant, upon the City's paying such expense, shall be obligated to forthwith reimburse the City for the amount thereof. All sums of money payable by Tenant to the City hereunder shall be deemed as rent for use of the Demised Premises and collectable by the City from Tenant as rent, and shall be due from Tenant to the City on the first day of the month following the payment of the expense by the City. 19.1.7 The rights of the City under this Agreement shall be cumulative but not restrictive to those given by law and failure on the part of the City to exercise promptly any rights given hereunder shall not operate to waive or to forfeit any of the said rights. Default by City: The failure of the City to perform any of the covenants, conditions and agreements of this ~~reement which are to be performed by the City and the continuance of such failure for a period of thirty (30) days after notice thereof in writing from Tenant to the City (which notice shall specify the respects in which Tenant contends that the City failed to perform any such covenant, conditions and agreements) shall constitute a default by the City, unless such default is one which cannot be cured within thirty (30) days because of circumstances beyond the City's control, and the City within such thirty (30) day period shall have commenced and thereafter shall continue diligently to prosecute all actions necessary to cure such defaults. However, in the event the City fails to perform within the initial thirty (30) day period provided above, and such failure to perform prevents Tenant from operating its business in a customary manner and causes an undue hardship for Tenant, then such failure to perform (regardless of circumstances beyond its control) as indicated above, shall constitute a default by the City. Tenant's Rights on Default: If an event of the City's default shall occur, Tenant, to the fullest extent permitted by law, shall have the right to pursue any and all remedies available at law or in equity, including the right to sue for and collect damages, including reasonable attorney fees and costs, to terminate this Agreement; provided however, that Tenant expressly acknowledges and agrees that any recovery by Tenant shall be limited to the amount set forth in Section 32 of this Agreement. 20. Indemnity Against Costs and Charges. 20.1 Tenant shall be liable to the City for all costs and charges, expenses, reasonable attorney's fees, and damages which may be incurred or sustained by the City, by reason of Tenant's breach of any of the provisions of this Agreement. Any sums due the City under the provisions of this item shall constitute a lien against the interest of the Tenant and the Demised Premises and all of Tenant's property situated thereon to the same extent and on the same conditions as delinquent rent would constitute a lien on said premises and property. If Tenant shall at any time be in default hereunder, and if the City shall deem it necessary to engage an attorney to enforce the City's rights and Tenant's obligations hereunder, Tenant will reimburse the City for the reasonable expenses incurred thereby, including, but not limited to, court costs and reasonable attorney's fees, whether suit be brought or not and if suit be brought, then Tenant shall be liable for expenses incurred at both the trial and appellate levels. 21. Indemnification Against Claims. 21 .I Tenant shall indemnify and save the City harmless from and against any and all claims or causes of action (whether groundless or otherwise) by or on behalf of any person, firm, or corporation, for personal injury or property damage occurring upon the Demised Premises or upon any other land or other facility or appurtenance used in connection with the Demised Premises, occasioned in whole or in part by any of the following: 21.1.1 An act or omission on the part of Tenant, or any employee, agent, contractor, invitee, guest, assignee, sub-tenant or subcontractor of Tenant; 21.1.2 Any misuse, neglect, or unlawful use of the Demised Premises by Tenant, or any employee, agent, contractor, invitee, guest, assignee, sub-tenant or subcontractor of Tenant; 21 .I .3 Any breach, violation, or non-performance of any undertaking of Tenant under this Agreement; 21 .I .4 Anything growing out of the use or occupancy of the Demised Premises by Tenant or anyone holding or claiming to hold through or under this Agreement. 21.2 Tenant agrees to pay all damages to the Demised Premises and/or other facilities used in connection therewith, caused by Tenant or any employee, agent, contractor, guest, or invitee of Tenant. 22. Signs and Advertising. Without the prior written consent of the City Manager, which consent, if given at all, shall be at the City Manager's sole and absolute discretion, Tenant shall not permit the painting and display of any signs, plaques, lettering or advertising material of any kind on or near the Demised Premises. All additional signage shall comply with signage standards established by the City and comply with all applicable building codes, and any other municipal, County, State and Federal laws. Effect of Conveyance. The term "Citv" and/or "Landlord" as used in the Agreement means only the owner for the time being of the land and building containing the Demised premises, so that in the event of any sale of said land and building, or in the event of a lease of said building, the City shall be and hereby is entirely freed and relieved of all covenants and obligations of the City hereunder, and it shall be deemed and construed without further agreement between the parties, or between the parties and the purchaser at such sale, or the lease of this building, that the purchaser or Tenant has assumed and agreed to carry out all covenants and obligations of the City hereunder. 24. Damage to the Demised Premises. 24. I If the Demised Premises shall be damaged by the elements or other casualty not due to Tenant's negligence, or by fire, but are not thereby rendered untenantable, as determined by the City Manager, in his sole discretion, in whole or in part, and such damage is covered by the City's insurance, if any, (hereinafter referred to as "such occurrence"), the City, shall, as soon as possible after such occurrence, utilize the insurance proceeds to cause such damage to be repaired and the Rent (Base Rent and Additional Rent) shall not be abated. If by reason of such occurrence, the Demised Premises shall be rendered untenantable, as determined by the City Manager, in his sole discretion, only in part, the City shall as soon as possible utilize the insurance proceeds to cause the damage to be repaired, and the Rent meanwhile shall be abated proportionately as to the portion of the Demised Premises rendered untenantable; provided however, that the City shall promptly obtain a good faith estimate of the time required to render the Demised Premises tenantable and if such time exceeds sixty (60) days, either party shall have the option of canceling this Agreement. If the Demised Premises shall be rendered wholly untenantable by reason of such occurrence, the City shall have the option, but not the obligation, in its sole discretion, to utilize the insurance proceeds to cause such damage to be repaired and the Rent meanwhile shall be abated. However, the City shall have the right, to be exercised by notice in writing delivered to Tenant within sixty (60) days from and after said occurrence, to elect not to reconstruct the destroyed Demised Premises, and in such event, this Agreement and the tenancy hereby created shall cease as of the date of said occurrence, the Rent to be adjusted as of such date. If the Demised Premises shall be rendered wholly untenantable, Tenant shall have the right, to be exercised by notice in writing, delivered to the City within thirty (30) days from and after said occurrence, to elect to terminate this Agreement, the Rent to be adjusted accordingly. Notwithstanding any clause contained in this Section 24, if the damage is not covered by the City's insurance, then the City shall have no obligation to repair the damage, but the City shall advise Tenant in writing within thirty (30) days of the occurrence giving rise to the damage and of its decision not to repair, and the Tenant may, at any time thereafter, elect to terminate this Agreement, and the Rent shall be adjusted accordingly. 25. Quiet Enjoyment. Tenant shall enjoy quiet enjoyment of the Demised Premises and shall not be evicted or disturbed in possession of the Demised Premises so long as Tenant complies with the terms of this Agreement. 26. Waiver. 26.1 It is mutually covenanted and agreed by and between the parties hereto that the failure of the City to insist upon the strict performance of any of the conditions, covenants, terms or provisions of this Agreement, or to exercise any option herein conferred, will not be considered or construed as a waiver or relinquishment for the future of any such conditions, covenants, terms, provisions or options but the same shall continue and remain in full force and effect. A waiver of any term expressed herein shall not be implied by any neglect of the City to declare a forfeiture on account of the violation of such term if such violation by continued or repeated subsequently and any express waiver shall not affect any term other than the one specified in such waiver and that one only for the time and in the manner specifically stated. 26.3 The receipt of any sum paid by Tenant to the City after breach of any condition, covenant, term or provision herein contained shall not be deemed a waiver of such breach, but shall be taken, considered and construed as payment for use and occupation, and not as Rent, unless such breach be expressly waived in writing by the City. 27. Notices. The addresses for all notices required under this Agreement shall be as follows, or at such other address as either party shall be in writing, notify the other: LANDLORD: City Manager City of Miami Beach 1700 Convention Center Drive Miami Beach, Florida 33139 With copy to: Director City of Miami Beach Office of Real Estate, Housing & Community Development 1700 Convention Center Drive Miami Beach, Florida 33139 TENANT: United Police Federal Credit Union 1 100 Washington Avenue, Room 1 10-1 1 1 Miami Beach, Florida 331 39 With copy to: United Police Federal Credit Union 400 NW 2" Avenue, Suite 309 Miami, Florida 33128 All notices shall be hand delivered and a receipt requested, or by certified mail with Return receipt requested, and shall be effective upon receipt. 28. Entire and Bindina Agreement. This Agreement contains all of the agreements between the parties hereto, and it may not be modified in any manner other than by agreement in writing signed by all the parties hereto or their successors in interest. The terms, covenants and conditions contained herein shall inure to the benefit of and be binding upon the City and Tenant and their respective successors and assigns, except as may be otherwise expressly provided in this Agreement. 29. Provisions Severable. If any term or provision of this Agreement or the application thereof to any person or circumstance shall, to any extent, be invalid or unenforceable, the remainder of this Agreement, or the application of such term or provision to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby and each term and provision of this Agreement shall be valid and be enforced to the fullest extent permitted by law. 30. Captions. The captions contained herein are for the convenience and reference only and shall not be deemed a part of this Agreement or construed as in any manner limiting or amplifying the terms and provisions of this Agreement to which they relate. 31. Number and Gender. Whenever used herein, the singular number shall include the plural and the plural shall include the singular, and the use of one gender shall include all genders. 32. Limitation of Liability. The City desires to enter into this Agreement only if in so doing the City can place a limit on the City's liability for any cause of action for money damages due to an alleged breach by the City of this Agreement, so that its liability for any such breach never exceeds the sum of Ten Thousand ($10,000.00) Dollars. Tenant hereby expresses its willingness to enter into this Agreement with Tenant's recovery from the City for any damage action for breach of contract to be limited to a maximum amount of $1 0,000.00. Accordingly, and notwithstanding any other term or condition of this Agreement, Tenant hereby agrees that the City shall not be liable to Tenant for damage in an amount in excess of $1 0,000.00 for any action or claim for breach of contract arising out of the performance or non-performance of any obligations imposed upon the City by this Agreement. Nothing contained in this Section or elsewhere in this Agreement is in any way intended to be a waiver of the limitation placed upon the City's liability as set forth in Florida Statutes, Section 768.28. 33. Surrender of the Demised Premises. Tenant shall, on or before the last day of the Term herein demised, or the sooner termination thereof, peaceably and quietly leave, surrender and yield upon to the City the Demised Premises, together with any and all equipment, fixtures, furnishings, appliances or other personal property, if any, located at or on the Demised Premises and used by Tenant in the maintenance, management or operation of the Demised Premises, excluding any trade fixtures or personal property, if any, which can be removed without material injury to the Demised Premises, free of all liens, claims and encumbrances and rights of others or broom- clean, together with all structural changes, alterations, additions, and improvements which may have been made upon the Demised Premises, in good order, condition and repair, reasonable wear and tear excepted, subject, however, to the subsequent provisions of this Section. Any property which pursuant to the provisions of this Section is removable by Tenant on or at the Demised Premises upon the termination of this Agreement and is not so removed may, at the option of the City, be deemed abandoned by Tenant, and either may be retained by the City as its property or may be removed and disposed of at the sole cost of the Tenant in such manner as the City may see fit. If the Demised Premises and personal property, if any, be not surrendered at the end of the Term as provided in this Section, Tenant shall make good the City all damages which the City shall suffer by reason thereof, and shall indemnify and hold harmless the City against all claims made by any succeeding tenant or purchaser, so far as such delay is occasioned by the failure of Tenant to surrender the Demised Premises as and when herein required. Time is of the Essence. Time is of the essence in every particular and particularly where the obligation to pay money is involved. Venue: This Agreement shall be deemed to have been made and shall be construed and interpreted in accordance with the laws of the State of Florida. This Agreement shall be enforceable in Miami-Dade County, Florida, and if legal action is necessary by either party with respect to the enforcement of any and all the terms or conditions herein, exclusive venue for the enforcement of same shall lie in Miami-Dade County, Florida. ClTY AND TENANT HEREBY KNOWINGLY AND INTENTIONALLY WAIVE THE RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING THAT THE ClTY AND TENANT MAY HEREIN AFTER INSTITUTE AGAINST EACH OTHER WITH RESPECT TO ANY MATTER ARISING OUT OF OR RELATED TO THIS AGREEMENT. Radon is a naturally occurring radioactive gas that, when it is accumulated in a building in sufficient quantities, may present health risks to persons who are exposed to it over time. Levels of Radon that exceed Federal and State guidelines have been found in buildings in Florida. Additional information regarding Radon and Radon testing may be obtained from your County Public Health Unit. No Dangerous Materials. Tenant agrees not to use or permit in the Demised Premises the storage andlor use of gasoline, fuel oils, diesel, illuminating oils, oil lamps, combustible powered electricity producing generators, turpentine, benzene, naphtha, propane, natural gas, or other similar substances, combustible materials, or explosives of any kind, or any substance or thing prohibited in the standard policies of fire insurance companies in the State of Florida. Any such substances or materials found within the Demised Premises shall be immediately removed. Tenant shall indemnify and hold the City harmless from any loss, damage, cost, or expense of the City, including, without limitation, reasonable attorney's fees, incurred as a result of, arising from, or connected with the placement by Tenant of any "hazardous substance" or "petroleum products" on, in or upon the Demised Premises as those terms are defined by applicable Federal and State Statute, or any environmental rules and environmental regulations promulgated thereunder. The provisions of this Section 37 shall survive the termination or earlier expiration of this Agreement. REMAINDER OF PAGE INTENTIONALLY LEFT BLANK IN WITNESS WHEREOF, the parties hereto have caused their names to be signed and their seals to be affixed, all as of the day and year first above written, indicating their agreement. Attest : CITY OF MIAMI BEACH, FLORIDA Robert Parcher, CITY CLERK Matti Herrera Bower, MAYOR Attest: UNITED POLICE FEDERAL CREDIT UNION WITNESS Tabitha Redero, INTERIM PRESIDENT (PRINT NAME) F:\RHCD\$ALL\ECON\$ALLMSSET\United Police Federal Credit Union\Lease Agreement.FINAL.doc APPROVED AS TO FORM & LANGUAGE EXHIBIT I (Demised Premises) EXHIBIT 7.3 AUTOMATED TELLER MACHINE (ATM) USE AGREEMENT THIS USE AGREEMENT (hereinafter referred to as the "Agreement") is made by and between the UNITED POLICE FEDERAL CREDIT UNION (hereinafter referred to as the "User"), a federally chartered credit union whose principal address is 400 NW 2"d Avenue, Suite 309, Miami, Florida 33128, and the CIW OF MIAMI BEACH (hereinafter referred to as the "City"), a Florida municipal corporation, having its principal office at 1700 Convention Center Drive, Miami Beach, Florida 33139. In consideration of the terms, covenants and conditions hereinafter set forth, City hereby authorizes User to use certain space in the City-owned premises, located at 1100 Washington Avenue, Miami Beach, Florida, 33139, as identified in Exhibit A on page 30 of this Agreement (Use Location), for the term of this Agreement, in accordance with the following terms and provisions. 1. Use. User shall use and occupy the Use Location for the sole purpose of installing, operating, and maintaining thereon, an automated teller machine (ATM) in accordance with the terms and provisions of this Agreement. 2. Term. The initial term of this Agreement shall be for a period of three (3) years, retroactively commencing on the 1'' day of October, 201 0 (Commencement Date), and ending on the 3oth day of September, 2013. 3. Renewal Option. Provided that the Tenant is not in default, the term of this Agreement shall automatically extend for one additional period of three (3) years, and without the Landlord and/or Tenant being required to take any additional action to extend same. Notwithstanding the preceding sentence, this Agreement shall run concurrent with, and shall not be renewed and/or extended beyond, the term of that certain Lease Agreement, dated October 27, 2010, between the City of Miami Beach and the United Police Credit Union. In the event the aforestated Lease Agreement is terminated or otherwise expires prior to the term stated therein, then this Use Agreement shall automatically terminate, and the City and User shall have no further obligation with regard to same, except for any and all monies that may be due and payable by User as of the date of termination and User's obligation to restore the ATM Location, as provided herein. 4. Installation and Operation of the ATM. 4.1 City herein allows User to install and operate an ATM. Any and all costs associated with the design, permitting and any required approvals, construction, and maintenance shall be at the sole cost and expense of the User. 4.2 User shall be solely responsible for obtaining all approvals from the City and any other regulatory agencies, including approvals by the City in its regulatory capacity. 4.3 User shall submit to City, acting in its proprietary capacity as owner of the property, plans and specifications for the ATM, to be submitted to the City Manager or his designee for his review and approval. 4.4 Following review and approval of the plans and specifications, User shall seek and obtain any and all necessary approvals and permits, including but not limited to, a building permit for construction of the proposed improvements within the Use Location including, without limitation, the ATM. 4.5 User shall not commence construction until all necessary permits and approvals for installation of the ATM are issued, and, following commencement shall thereafter continue to prosecute installation of the ATM with diligence and continuity to completion. 4.6 Complete installation of the ATM shall be completed no later than two (2) months from the issuance of a building permit for same. 4.7 User herein acknowledges, represents and warrants that any and all cost associated with the purchase and installation of the aforestated ATM shall be the sole responsibility of the User. 5. Maintenance and Service of the ATM. 5.1 User shall operate, maintain, service, and repair, as necessary, the ATM, and shall be solely responsible for any and all costs and expenses related to such operation, maintenance, service, and repair of the ATM. 5.2 User shall supply, install and replace, as necessary, paper for transaction receipts and printer ribbons, at its sole cost and expense. 5.3 User shall be responsible for providing, at its sole cost and expense, all necessary improvements, to install, operate and maintain the ATM. User shall pay before delinquency any and all charges for utilities used by, for, or on behalf of the activities contemplated herein, including but not limited to, electricity and telephone. 5.4 User shall be responsible for providing a dedicated leased data circuit. User, at its sole cost and expense, shall be responsible for all costs, including but not limited to installation, maintenance and monthly charges relating to the leased data circuit. 5.5 User shall provide support to the City, its employees, and its customers, by providing a dedicated phone line, which shall be reached by dialing the following number 305-329-1400. 5.6 Maintenance services will be performed by the User, and/or by the party designated in Exhibit B on page 31. Any changes to said party designation shall only occur with the prior written consent of the City. 5.7 User shall handle customer complaints, Reg E claims, and any and all other related operational issues as they arise and in a timely manner. 6. Title / Insurance / Indemnification. 6.1 The ATM shall remain the property of User. Notwithstanding the preceding sentence, in no event shall City be responsible or liable for any damage, destruction, or theft to all or a portion of the ATM, nor be responsible for any stolen or damaged personal property of any patrons, guests, invitees, and/or any other third parties utilizing the ATM. User shall indemnify and hold harmless the City. 6.2 Insurance. User shall maintain, at its sole cost and expense, the following types of insurance coverage at all times throughout the term of this Agreement. (i) Comprehensive General Liability in the minimum amount of One Million Dollars ($1,000,000) per occurrence for bodily injury and property damage. This policy must also contain coverage for premises operations, products and contractual liability. (ii) Workers Compensation lnsurance shaal be required under the Laws of the State of Florida. The policies of insurance referred to above shall not be subject to cancellation or changing coverage except upon at least thirty (30) days prior written notice to the City, and then only subject to the prior written approval of the City Manager or his designee. Prior to the Commencement Date of this Agreement, User shall provide City with a Certificate of lnsurance for each such policy. ALL POLICIES SHALL NAME THE CITY OF MIAMI BEACH AS AN ADDITIONAL NAMED INSURED. All such policies shall be obtained from companies authorized to do business in the State of Florida with an A.M. Best's lnsurance Guide (latest edition) rating acceptable to the City's Risk Manager, and any replacement or substitute company shall also be subject to the approval of the City's Risk Manager. Should User fail to obtain, maintain or renew the policies of insurance referred to above, in the required amounts, the City may, at its sole discretion, obtain such insurance, and any sums expended by City in obtaining said insurance, shall be repaid by User to City, plus ten percent (10%) of the amount of premiums paid to compensate City for its administrative costs. If User fails to repay City's expenditures within fifteen (15) days of demand, the total sum owed shall accrue interest at the rate of twelve percent (1 2%) until paid and such failure shall be deemed an event of default hereunder. 6.3 Indemnification. User agrees to indemnify and hold harmless the City of Miami Beach, its officers, employees and agents, from and against any and all actions, claims, liabilities, losses, and expenses, including, but not limited to, attorneys' fees, for personal, economic or bodily injury, wrongful death, loss of or damage to property, at law or in equity, which may arise or be alleged to have arisen from the negligent acts, errors, omissions or other wrongful conduct of the User, its employees, agents, officers, patrons, guests, invitees, or any other person or entity acting under User's control, in connection with this Agreement; and to that extent, the User shall pay all such claims and losses and shall pay all such costs and judgments which may issue from any lawsuit arising from such claims and losses, and shall pay all costs and attorneys' fees expended by the City in the defense of such claims and losses, including appeals. This Subsection 6.3 shall survive the termination or expiration of this Agreement. Subsection 6.3 shall not apply, however, to any liability that arises as a result of the willful misconduct or gross negligence of the City, its agents, servants or employees. 7. Taxes and Liens. User shall at all times keep the ATM free of all liens and encumbrances that may be imposed by anyone on the ATM and/or the ATM Location. User agrees to and shall pay before delinquency all taxes and assessments of any kind assessed or levied upon User by reason of this Agreement or by reason of the activities of User under this Agreement. User shall also pay for any fees imposed by law for licenses or permits for any business or activities of User under this Agreement. If ad valorem taxes should be assessed by the Miami-Dade County Tax Appraiser, User shall be solely responsible for payment of same. 8. Payment Obligations. City and User agree to divide surcharge fees during the term of this Agreement, as set forth in Exhibit C on page 35. 8.1 If permitted by law and by network regulations, User will surcharge its clients (i.e. non-members) a convenience fee on a per transaction basis, as shown in Exhibit C. 8.2 User shall monitor the ATM on a daily basis. 8.3 User shall provide City with an Executive Monthly Report showing all ATM activity for the month and shall ensure that accurate settlements are deposited to the City, monthly. 8.4 User shall pay any amount due to City by the 30th day of the following month. 9. Termination for Convenience. Notwithstanding any other provision of this Agreement, the City may, at its sole discretion, and for its convenience and without cause, terminate this Agreement at any time during the term hereof, without any penalty or liability to City, by giving written notice to User of such termination, which shall become effective thirty (30) days following receipt by the User of the written termination notice. 10. User's Right to Terminate. User may terminate this Agreement at any time if the ATM fails to break even or produce a profit for User, without any penalty or liability to User (other than fees owed to City under this Agreement) by giving City written notice at least thirty (30) days prior to such termination. I 1 Surrender of ATM Location. At the expiration of this Agreement, or in the event of a termination, or in the event this Agreement is otherwise declared null and void and of no further force or effect, User shall surrender the ATM Location in the same condition as said Location was prior to the commencement of this Agreement, reasonable wear and tear excepted. User shall restore the ATM Location to a satisfactory condition, as shall be determined solely by the City in its reasonable discretion and judgment. User's obligation to observe or perform this covenant shall survive the expiration or other termination of this Agreement. Continued occupancy of the ATM Location after termination of the Agreement shall constitute trespass by the User, and may be prosecuted as such. In addition, the User shall pay to the City One Thousand ($1,000) Dollars per day as liquidated damages for such trespass and holding over. 12. Entire Agreement. This Agreement and the exhibits attached hereto constitute the entire Agreement between User and City with respect to the subject matter hereof and shall supersede all previous negotiations, commitments and writings. This Agreement may not be modified in any manner except by an instrument in writing signed by a duly authorized officer or representative of both User and City. 13. Notices. All notices from the City to the User shall be deemed duly served upon receipt, if mailed by registered or certified mail with a return receipt, or hand delivered, to the User at the following address: United Police Federal Credit Union 1 100 Washington Avenue, Room 1 10-1 1 1 Miami Beach, Florida 33139 With copy to: United Police Federal Credit Union 400 NW 2"d Avenue, Suite 309 Miami, Florida 331 28 All notices from the User to the City shall be deemed duly served upon receipt, if mailed by registered or certified mail return receipt requested, or hand delivered, to the City at the following addresses: City Manager City of Miami Beach 1700 Convention Center Drive Miami Beach, Florida 33139 With copy to: Director City of Miami Beach Office of Real Estate, Housing & Community Development 1700 Convention Center Drive Miami Beach, Florida 33139 User and City may change the above mailing address at any time upon giving the other party written notification. All notices under this Agreement must be in writing. Binding Effect: Successors and Assignments. This Agreement is binding on the Parties and their respective successors and assigns. User may not assign this Agreement without the prior written consent of City. Relationship of the Parties. It is expressly understood and acknowledged that it is not the intention or purpose of this Agreement to create, nor shall the same be construed as creating, any type of partnership, relationship or joint venture. Governing Law and Exclusive Venue. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Florida, both substantive and remedial, without regard to principles of conflict of laws. The exclusive venue for any litigation arising out of this Agreement shall be Miami-Dade County, Florida, if in State Court, and the U.S. District Court, Southern District of Florida, if in federal court. BY ENTERING INTO THlS AGREEMENT, CITY AND USER EXPRESSLY WAIVE ANY RIGHTS EITHER PARTY MAY HAVE TO A TRIAL BY JURY OF ANY CIVIL LITIGATION RELATED TO, OR ARISING OUT OF, THlS AGREEMENT. Laws. 17.1 Compliance. User shall comply with all applicable City, County, State, and Federal ordinances, statutes, rules and regulations, including but not limited to all applicable environmental City, County, State, and Federal ordinances, statutes, rules and regulations. 17.2 Equal Emplovment Opportunitv. Neither User nor any affiliate of User performing services hereunder, or pursuant hereto, will discriminate against any employee or applicant for employment because of race, creed, sex, color, national origin, sexual orientation, and disability, as defined in Title I of ADA. User will take affirmative steps to utilize minorities and females in the work force and in correlative business enterprises. 17.3 No Discrimination. User agrees that there shall be no discrimination as to race, sex, sexual orientation, color, creed, national origin, familial status, religion or handicap, in its employment practice or in the operations referred to by this Agreement; and further, there shall be no discrimination regarding any use, service, maintenance, or operation within the area. All services offered within the area shall be made available to the public, subject to the right of the User and the City to establish and enforce rules and regulations to provide for the safety, orderly operation and security of the area. Pursuant to Sections 62-90 and 62-91, of Chapter 62, of the Miami Beach City Code entitled "Human Relations", User, by executing this Agreement, certifies that it does not discriminate in its membership or policies based on race, color, national origin, religion, sex, sexual orientation, familial status or handicap. 18. Miscellaneous. 18.1 No Partnership. Nothing contained in this Agreement shall constitute or be construed to be or create a partnership or joint venture between the User and City. 18.2 Modifications. This Agreement cannot be changed or modified except by agreement in writing executed by all parties hereto. 18.3 Headings. The section, subsection and paragraph headings contained herein are for convenience of reference only and are not intended to define, limit, or describe the scope or intent of any provision of this Agreement. 18.4 Binding Effect. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. 18.5 Clauses. The illegality or invalidity of any term or any clause of this Agreement shall not affect the validity of the remainder of the Agreement, and the Agreement shall remain in full force and effect as if such illegal or invalid term or clause were not contained herein unless the elimination of such provision detrimentally reduces the consideration that either party is to receive under this Agreement or materially affects the continuing operation of this Agreement. 18.6 Severabilitv. If any provision of this Agreement or any portion of such provision or the application thereof to any person or circumstance shall be held to be invalid or unenforceable, or shall become a violation of any local, State, or Federal laws, then the same as so applied shall no longer be a part of this Agreement but the remainder of the Agreement, such provisions and the application thereof to other persons or circumstances, shall not be affected thereby and this Agreement as so modified shall remain in full force and effect. 18.7 Right of Entw. City, in response to emergency situations, said emergency situations to be determined in the City's sole and reasonable judgment and discretion, shall have the right to enter into and upon any and all parts of the Use Location. 18.8 Si~nane. Any signage posted by User on its facilities and equipment shall be subject to the prior approval of the City as to size, shape and placement of same. Any advertising, signage and postings shall be approved by the City, and shall be in accordance with all applicable Municipal, County, State and Federal laws and regulations. 18.9 No Waiver. No waiver of any covenant or condition of this Agreement by either party shall be deemed to imply or constitute a waiver in the future of the same covenant or condition or of any other covenant or condition of this Agreement. 18.10 No Third Party Beneficiary. Nothing in this Agreement shall confer upon any person or entity, other than the parties hereto and their respective successors and permitted assigns, any rights or remedies by reason of this Agreement. 18.1 1 Attornevs' Fees. If it becomes necessary for User or City to enforce their respective rights under this Agreement or any part hereof through litigation, User and City agree that the prevailing party shall be entitled to recover from the other party all costs and expenses of such litigation, including a reasonable attorneys' fee and costs, for all trial and appellate proceedings. 19. Limitation of Liabilitv. City desires to enter into this Agreement placing the operation and management of the area(s) in the hands of a private management entity only if so doing the City can place a limit on its liability for any cause of action for breach of this Agreement, so that its liability for any such breach never exceeds the sum of $10,000.00. User hereby expresses its willingness to enter into this Agreement with a $10,000.00 limitation on recovery for any action for breach of contract. Accordingly, and in consideration of the separate consideration of $1 0,000.00, the receipt of which is hereby acknowledged, the City shall not be liable to User for damages to User in an amount in excess of Ten Thousand ($1 0,000.00) Dollars, for any action for breach of contract arising out of the performance or non-performance of any obligations imposed upon the City by this Agreement. Nothing contained in this paragraph or elsewhere in this Agreement is in any way intended to be a waiver of limitation placed upon the City's liability as set forth in Florida Statutes, Section 768.28. IN WITNESS WHEREOF, the parties hereto have caused their names to be signed and their seals to be affixed, all as of the day and year first above written, indicating their agreement. ATTEST: CITY OF MIAMI BEACH, FLORIDA Robert Parcher, CITY CLERK Jorge M. Gonzalez, CITY MANAGER ATTEST: UNITED POLICE FEDERAL CREDIT UNION SECRETARY Tabitha Redero, INTERIM PRESIDENT (Print Name) F:\RHCD\$ALL\ECON\$ALL\ASSEnUnited Police Federal Credit UnionMTM Use Agreement.FINAL.doc APPROVED AS TO FORM & LANGUAGE . a FOR MECUTION EXHIBIT A (ATM Use Location) EXHIBIT B QUALITY CARE MAINTENANCE AGREEMENT Name of 8ubeorlber. Addreae: 401) Nwd Ave STE 309 Clty: s- Stete: EL. Zlp: h Thls Agreement Is made and entered Into by and between DieboM, Irtcorporwted of 5995 ivlayfalr Road, North Canton, QMo 44720, an Wo carpontion (herelnaffer "15iebold") 5lnd the Subserlber, whose name end address is set forth above (hereinafter '&ub$cdberV), ' ~hI~MordB~bBX~of~ Agrssmam ah. Far wulm to be oo~red hemby M nervlces ordered. an EstilpmanI Schedule (MatJo#'Form 2802-K) w.elmlliu documian~ ehiill.be cmpteled by Diebold and Wed lo Subpiolber, Bud, EqulpmM $We &an furttmr dafhe the sawbe pian or w&es belng provided. Each such Me Is deemed a pen d tMo Agreemenl. In the ewnl of Mot behueen an Equlpmml Mukt snd he prmhlone hreol, the provlsl~ne d ha Equipmakt Boheduld Bhall. mnkDl, emepl ah reeped to Sedlons 6 and 7 ha[, *rtl8d, ahaU gm h Um ewnt of W. mnflipl m any ow pmv$km, '' =lee a( IWh h 8 gkm EquIpmennt84ldllg. .*hi a. by It6 authorized re~~vee, tirspeclt and repair h opuipmenl HeM on much Eqvlpmml ~ctreddm, w prwlde moh olhw aervioer. m dasortbed on he EqiqWptnenl Srhakde. If the wvh plen dehalbsd on en Equipmad Saedu~e - ~kaven#ve makdwrance, Buch pdve malntenancs whkh Mebdd deems neoeeeer, lo msbrtain Uu? quipwegvlpment in reasonable ttperaUng oondYm wlll be provided. &bold may provlde any preveme matnlenenae at be same the 88 Mebold Is prom olher mlce on the cm~8d eqdpmcatL Bubaerlber she8 requeer servioe by om$ohg pbbM at l.B0Wlebold. 3, .&@ The Wllal annual fee fw sdm #'I& be 8s MI forth on Lhe Equlpmen( Sohedkde, or, wlh rwed to the prbe fw e@We pallormed on e %me snd rnaWialu bwls, at DleboW6 lhen ourreill rates fherelor, For ilrmusl pariods abr mo InIUal muel Mce period, he annuel se& lee sheil be sll Msbdd1s lhen aurenl-rate. Dbbold wlll Mvke Bubsalber of tsnt ram upon thrt requttst of lubserlber. Should Suubsalber mqwl aenice and 6ubsafber he6 em& pa61 due for sMhlel aervice brrs or Ume and mrlal fees dua hereunder, Subscrlbor shall be deemed to he@ rqimled servke punnreni to GeoUon 'la, 4.' In eddition to ma Oham lot the aerrvim, Svberalbw aha8 addrllonny. pw lpny en& sU relas w exdaa, em mlm, We added or owr faxes di"i8&'~p&&f'6y~'n~~ae*11. ate!@ of 1-1 ~overnrnelllal euawrtty, asft~piated with Dleb9ld'n psrTormenca, axctudlng only taxes baed on Dleb&s ner lnmmo or Lbe employment by Dlebdd of Dlebdd's employees, 6, m)nneN -due prdea mm. Bubar be imm)oed nnrnraRv h advam, AB hbea for neMb fee6 are due @or la the cobnmenoemen~ dele for me airp~wla fee pew. For Eqdprnent SmedUlm added sub ue* to dsle hereof, DIeboM may proram C hrvolo;l~o pm% tbr e mmn tnvdce dale for all equipment awered, A8 lnvokss Ibr wak performed on a the and malsrlal bask will h due upon redpi. All hmicee not psld wlhln IhMy (30) days of the deb dua &d bear hbmsl Nthe tale of ow Pnd one-hptf percenl(l-V2%) per month on b? kpld belance or ih~ hahael rab permitted by lew, mlvhrphever h less. In ltre eW GubscrUwr falls b pay any lnvolce when &, Webold m?y, in &%Won ti^ any oMr rlghls and medles &able lo WeboW, ouapeMl nenrke under thls Aarwrnant end sny or sll epulpmerll SdnduIw unVl subsaribsr's ainounl hw no mwlnh more than inMy (30) days past dw. 8. - a) WLHl rmpacl lo services prodded for sn mJ servloe fee, WbpM warranb lhat I1 rnwm Mirvirn6. durhg the horn ofbwsr~ne aeI knlh h the Wpment fachedule. wch sarvlmb pmk deferithw during #w ~i%.h~rebf, provided 8Ubeorher nMk6 Mebdd dudng he (srm h the me mennwas the Gbsdber othf~rwha fdfle, Dkbdd of Ihe naed for~rvlcr! on the oovered Bpl)pment b) WUh rrsspl lo rts end eeNioes pmvlaed an a rn and me!eriel bebis. Rebold wmnla Us same to be free of deb* In maletbls or vvotkmerrjllp hr a period of ihbzy (30) dm from Mtl data eervlco wao performed or kwn inshnatlon k, the case of S~bacrlbet ahat nolily DkW withit~ ("0) day6 oekd of W~I thw (30) d~)' pctkd of any failure b sew 8wh mmrnty, and a fanun LO nolifywitnm such period waives any dalm rals~ed therelo, . C) In tk e&nl da hch oflha forgoing werrantyln (a) dor (b) or thk SeolkKl6, the sok Ilabillv of Wehokl and Vie eok remedy u18ubSCAber shdl be (he repdr or ~lplami af be psrl w ra-pertomnrm af the swlw, vvhld~ prmd lo ba dekdha. Subsafber atbowledges end agmes that IlmlUrig Dlebdd's URbUlty to thts remedy doas no1 cause Vdp AgraemaM to fall of h$ tru18nOal purpoee or othemlge render Ihk Agnemm Invalid or unenforcasbl6. 6) THE FOREQOINP WARRANTY COlvsMS THE SME UA5lLlTY OF DIEBOLO AM ME SOLe REMEW OF SUB8CtWER FOR DEPECTWE MATERIALS OR WQRlOdANSHIP, WMFRl6R ARISING WER CCONWiCT, TORT, BTRIC7 LIABILITY OR OrWeA FOW OF ACTIDN. ALL MtrrR WAR-, EXPRESS OR imm, INCLWJNG W WARRAMll89 OF MERCHMBIUTY AND FITNIiS8 FOR A PARTICULAR PURPOSE, ARE Ojs"G~*O. 7. ITATlQN OP UABIUrY ElO'MATHSTANWMO ANY OTHER PROWBlWN OP THIS AQRWUJT, THE PARTIES AOKNOMLF~DGE AND A@=! I) DIEBOLD WOT AN INBURW 11) THE PAYMENT8 PROVIDED FOR HEREIN ARE PJAGED SOLELY (MI 7HE VMUIi OF ME OM3DS AND BERVICE?S PROVRZW AND ARE UNRELATED 70 7Hf v~we a sumem PROPERTY OR 'THE PROPRRTY OF UT)t6RS LOCATED OM BUBBCRIBER'S PREMISE6 OR WI7HM. THE EQUIPMFSTT; I[) THE PROVlDlNO OF SBRVlCE ANPIOR PRWfim MAlNTeNnNCE DOES NOT QUPJUINZBB WE COMfNUED l3K CtNlMERRUPTED OPERATION OP THE EQUWMENI' OR CONNECTED SYSlWdS: AND lv) W NO EVEWT 8W L BE LIABLE MR LOSE8 OR DAMAOL1 fWt (WBSCRIBBR BUSTIUNB WE 10 BURbLIVIY, RDOIUIRY, WQAL AmMrrl PRe.PLOoD,DROIHeffbuaE,ORABAlceBULT OF LOSS OR COBOPKOMDE OF MTA, 8YBlEUiB OR FACILITIEB, OU PDR Me IIII5MBPEI)BlhW OR LOBS, OP FUNDS, DDCUIRJtS, CUKKWCY OR MHeR VIEW4 OF VALUE MEBOLD WALL NOT BE LIABLE FOR W6W INCIDENTAL, INDIRECT OR WBQUEMVU. DAMAGES OP AWY KIND OR NATURE, OR FOh LOSS DP PAWITB, INCOME OR BUSME98 OPPORNNM, WHETHW ANY OF 8UCH DAMAGES OR LOSSES ARlgE! WDER CONTRACT. TORT, eTRtCT WLW, OR OTHER FORM OP AmOK Wo YHteT)(BR OR NOT WBMD W BEEN AOVBED DP THC! Pp8aBlLflY7HRWOF. A8 A MATERIAL C0NBB)ERATK)N WR I)- BNTP;RlNQ W4TO THLS AOREt?N)ENT THE PARTIES AQREE THAT IF, NDMMUITANDUY(I THe POReDOlNO UIWTAllONB, WeEJDCD HAS ANY UAt3DJTY YO 8U$SQR18BR, $UGH UABlllTY SHAU. IN NO WENT BXC~!ED THE AIYNWAL txe BPEGIPIW m me E~C~~PMEK~ 6CHeDUI.E FOR THE EQWMEW OR SERVICE RELAPEO TO me EVENT wnrm wse TO WE LIMPSTY on F(FTEEN WWSAHD WWS MWW,W), HIWIOI.gVB3 Is QRBAYER PRcRIm MAC OBTN* A *mm LllYtTA~hl W UABlUTY F RB8WBD BY THE PAYMEW OF AN MM~EABEO ANENAL PEE, ~ICH BMAU BE NEOOTIATRD BY THE PARTIE3 BUBSEQUEN'l TO tn-8 tteam OF SUBSCRIBER'S WRI~ REQUEST ZWBREfOR THIS 8U88EmK)N 7W IHAU. WT APPLY TO CAU868 OR OLAllYlS FOR WHK;H DIEBOLD HAS INDEMNITY OBUMTIOP1B PURBUANTTQJeCllQN 14. ME PRWIOIJS Of Ti46 SEOnON 7 cor'wmvrr! AN AUOtATlON OF WSk B@lWUEN THE PARllEB AND niE PRICE GHARQED TO 5WWUEIER 18 WR) OW SUCH AUM:AllDN OF RISK. e. The term of lhls Agrehlmenl &R be for the WUsl term ael forth abwe rvlR DWId prwldlng Bervtcee starling on ;ha cMnmememanl date. Uniess tenn)nated eerfler due to e dafaub thb Agreement ehal auQmalkwsy rsnew Rx renewill lerms of om (1) yeet eW wJeoe either Subscdbe~ w Dlobold g& nollcs of wnmllarion h wfilhg lo be el least nlrtety (00) days pibr lo msmdorthelhendurenltenn. ~eprovl~OTBe&i~A,5, 6, 7. a 9, io. 11. 13, $6. 17. 19. ia and 20 ma wnrhre terminatton. 9, ESmkrSlons The eer~loes b be p&ided for an annual servlrs Le do MI inclm a) Wce raqvlred as a mw11 of abuse, misum, aieclribgl stonna, pwer feflures or nVPblaUm, @a56 bfBBkRve OT damam. failun, la khw uw malnlm ew opefaring blWone, or the faflure or resub 01 fab or (ntermcled equfpment, solhrrere w dish nor specmen on an Equlpmnl Bdredl.de, ineludhrg, but nal DmM to. wiring. wnduit w vob or data (rammbIon equlpmm w f~cHllles; b) cornurnable Rems IhducRng, ~III nol llmed (o, mem fflm, audll bpes, ribbons. carrler bodlas. llghl bulbr. Wslomer sccomt nards. envelopes or v#tlc, cag.selteo: C) lodtouts of damam caud by ww, puMu dieonfer, uanddbm. Rtsnel ~CljYlty. .Em. .waw ..sr @thar hp,Ms. bum16ry1 blu3tslg. mlnlng, wlrg of bundaUom, sxpwbn of doom w wallb, lase' of aomblnellans w by imperfect chsn~~glng or wmbtnellm w tkne d) wwk rsqulmd because or confact, Mlflcatlon, eenrica, inw&on. or tempering wfUc dquipmenl by non-Diebold de6lgnEted pereonnel, &docatton d equ)pmenL Fhimgwr lo mnf@mUon, saHwere or dale, Wlrinon d RddUlonfil lsalurea @or18 or lundlona; major orehls, or reTwbtshlng Via equlprnonl: e) eulomallc feller maohha oaasettee ar wmatb tobe mnien, unless specllrled an an QIApmenl Schdula; 0 the Ehunghg of nny bcke or wmbinatlons, or UIE rephoement of keys unless epydfied on en lirprlpmeni achedute: g) serul~e DUM& Ihe hw~% d corerape set forth on Uv: Equlpmenl Gchedule, or wall@ f me h emea of fifteen (15) mlnvlea, K ru, ha#e am utt Mh. covsnge ahal be from 890 a.m. to 6:00 p,m prcwsnng Wl tbm a1 the el@ of che squ(pmwt, exduslve of Saluday~, 8unday6. or hdldsys pmmJly nbaenred by &&a or local gov%~nmenIa In We are@ where the aqulpment b localed: h) mallundons resulllng from the use of softwem, msdm, supplsa, andlo? ooneumaMee whlch am W fumlshed & Mebdd or wNch do no1 meal nendsrds set by the equipmen1 manufnClLWr: If OkWd delarmlnas thaf $?a ham mquesled by Gubdber In exduded pursuant b Le above, and Subecrlber mqwk MM m perform euch wrvlPe, Ihe aervipe fil be provided pnsuen) lo &don 12 howl. a w m&mern Sumdule wlcale~ *a[ paris am IMuded. Sllbecrlbar W pay Dlebdd's Wn aamnt k4 pW fw my replrcamenl parts neoesasfy far the pec!omnca of serrloe on equipmehl, wbjacl lo a mlntmum prte charge of 626.00 on any selvlw aal whtreln the redaDQmenI of pens OCQPe. The pem wed by DW ta perform rnainlonance and rep& servlw henrundar may be new, rabultt w mmhed, Tlb to wile Bhsll paas to Sub- when the he m helelled by Dleb0M. Ti tp psrta thlrt era remau&d ard tepkced by Dlrbold may, el Mebow's opllon. vest tn DleboU st the lRne of removal, Subscriber Jhsl Pe on We the\ p$@ tey not be exported or -ported to reslrided gmonraphles. Mebold aha# hsw no obllgallm rebd Lo Ihs proper dkpspasel or WR1PUon of peh removed from Subscaiber'e equipment in wuti;e of pmvkllrtg 8ervkas. and lhb rlrduslon lrOm msponslMnty applies wilhout UrnIMirn lo dais smge devices thst mlah SUbswRWa or ebnsumar's wnMenUal or nonpllbflc pf~rmtxal Informallon, No Me to any oomputer prwms Muded tn parts shall ever paas to Subsmbr, WsUl reepeal to suoh palts lhal lodude cornpuler pmfinw. Dlebokl gnnc & Subsdber a personal, nontreMrabla, nonBxcClsive rtgM b use suoh computer programs In wjvwtlon niVl Ple equipment wMe Bubwhr 16 W rigMtrd possessor of Vw equlpmenl, 8uch Ibnsa exlends only to the use of UB ompuler programe In conJunollan with spoaffio qutpment on whW Me 6ama em I~~lalisd by MBbOld. Such cDmptner program are pmlemd by ltm wplnfghl md other Laws of the Unlted SUlw. Suberamer agree8 no! lo mpy. dbdae, bansfur. dacompBe, rewise asmmbb, revers@ engineer. or omrre mod@ 8&1 wmputar pqmms. C~mputer programs for whldl a npmb ehme 1s normally required by Dlebold are lloensed only puauant lo a eaparek. llwe wreemeni. MebolOl I6 granted the tight fo operala wphs of Diebold Mmpuer pmgrams In SSvbrcrlbr1r eqdpment lo Wfiete swvlce'advWes, and Dbbdd may mrnove end die~ble such programs at any Ume either during or eRer terminalon of {Ire Agreement inanurecmmsr of !he he~qutpnbt and opefate Ihk equtpmint hc mrdence wllh the mmvfeolweZs mmndetion6. If any equipment o~vereU by nn Equipment Bcheduls or ~ofhvara oparallng theraln has baon lumlshed by olher thsn Mebold, . Subsalben sheP have the ultlmste reapansbility fw obtahing' and pmvidrng lo Dlebold any noce6sary ochemnlG drawlnge, wtrtng mRgrRml. mpvler sohware. doarmentation. authorttaU0ns sndlor replacement parts lhar may be nwcee.8~~ for MflhoM lo acms, operale and &~e Vw squlpmnt, arXl 10 backup end tealore cornouter oroarsms th& owrate Vlsnh: ~d Suhscdb~ shall defend andrh& Diebold h~rmlesc horn and againsl any dalm made agalnsl mebold a5 a resrdl of DlebuM Wormh~ EXHIBIT 5.6 mntnlenenca M OUIsr aewkan on or WYh rruparl Lo KIch aqulpmenl under the tern hof, 8u-r ohell pmvlde be. abut end safe owoh 10 the etlltlpmeN &id e raft! ehd hmrd frea Wwk area lor Dlebdd and tts poraonnol hwaunder. 12. r6tmlms gcQer may frmn the lo ha mqul hl Dko!d pr~m OM rwkw rwl lnduded In the wb pten for oqulpmant dworlbed op a 6 lo ulph Soheduk, or kr whkh rw WrnPnt 9hge dLm oompklrd. uee roesonable EWE lo pmvlde Buch Mcs al W@o rtten mnl lPne and meWer rela& Any uldl Bwdce ehall be subJeoi to he povlflpns of UJI; AgtwmnL hkwN a reparate lllgmd Pgreemanl under whkh DieW has Nnaed to ptoMde doarmarllwr dlepizl w dwlrucllon for an addtloal hrge, WM nhe(l have no obllgstlon for tha Ubpoael W doebuc#on of any oamponents moved frnm Subscftber'e equlpmenl In Lhe muse of provldlng sewbas, Subsamst may rqwst sufviue or Mdiliaml mvkas purgveY 10 W provlelon by con$o(kyl DInbdd. I) 4pDn a mlerlal brmh hsreof by Ye athar pany HsW oUler p(lrly has fMed to wrred, w onmnam and llfinnuy punue the cormattPn of ruPh blcreah wlUlh %My (30) days efbrnotb W rueh brew pew: H) if be other party Is WwnL mha a genenl msh~nmant br he banefit oi credbn of volmtarb e paMon we^ b&uptcy or d!= OI(DYYs M Wuht patlUon b ounlhue more lhan 10- (48) *eye Xetft~ng; or HI) In the cam of Dlebdd, If Subscriber falls lo maka a pa ntwhendoa, b) In erldiE(o ttw pmvt6iom of (a) gme, s&* mw b Ihe psymer~l of a oancaAaUon fee, remwo ony equlprnenl cawvedbyenennualsp~fmhamwwrse,upon ninety (DO) deya prlor wbn ndea, 'Rm andaflon kw oM be forty pbenl(L04k) of h snnvsl fee sswdsted 4th seMm 01 ha Wan1 WpW ffMn me wmenoement data to the Wrellon of b han arnenl term of UQ r@rmmd AAddllbneBy. DM may @ud the be for any egulpmenl remebtng aubjmt to ssrrrjDe baseQ on Dkbold's Ulen armmi elandard volume price adJwmls. Any spedal provlslons of any EguQmaru BcWAde temehlq shall be edjus6sd in e manner that Mebold In Its mnable diCmlioh deem ~quw. Howev~t, Subecribar wW not be requlred Lo pay the oanwllatlon fee WW In ME bdon I*) if Ihe eqqipmenl being reinwed Tmm eervltre hss been taken rml of mlomer aeMm and has not been repled edlh &other equipmen1 whbh pertom al leas! mme of the same Mow end whlCtl16 r~16utyaCI D WaWM Swim wMW It116 Agreament or 11h branch or ohr IocaUon of such equipmenl hes bean dosed, 14. Mebold's Res!mndblUty Ebbold w#l IndWy end hold hennleJs h hebaalber kr any judgments obtained by lhlrd partW based an &lms of bodlly iilj~ny (D WM parfie, Or dred dam&te lo.itralngWe pmlty of Ullrd perli~~. Lo the exrent caused by Ihe mgM of nep!4geni min of Dtebold, it8 doers, dtreotws, sgents or employees end occunlng while lAebold employ= ant perfoW aem@ on equlpmenl: at Subeoriber$ BHe, Diebold will sl~ be mpmlble fur he bft d Grtbscrlbel'p funds or rsnglble propany by DlaWd amplow wMle Ny urn perffxdi~~, aenrlca, lo 8 maxlmum cumthlive lrrdl for any end ell su ofsims or Sever~Ly-Fhrs Thousand Qob (&75.000). 13. - E- Soh&& eg~lpmml Wl Is tnslellsd, da-iaaRed, ralwbd, elterad, or secvioed by olhw ban Diebold repreoentaltws, Plebold mey require, as s eondMon 0 accepkg or mnnuing ihe equ'w1 for aenlm mme. that he heBubsw\ber heve DleMd Insped UI% equlprnen\ (pmd to Section 12) for dems~6 and k, nmure that sU wnufeclurclr- recommended thsngw have been me& and the1 UE oqulpnl b omenVise h good woMng order. Wmdber rhall hew CiebaM perform any rsqubed oervlolng or mpnlrs ncommonded by kbaM prbr to Uw soDeplenm al the egUlpmnl lor ~CB cweruge, MsboW my rlaa rfqulro ih~l wrvlw be per)onnrd pulvvlenl b bdlon 12 lor a ~peoltied perlocl of Ime to msum the1 ' the aqulpmnl Is, In fact, In good wwolklng ordet. 16, eervkia bema, rials, rmr, Insudon, a& any gomcMl Mlllty or the puhtk enemy, dekp In tnmspotWIon, 'dele e in pmcwlng mattrkls (wn thld pews. unevallab~lly d Ll or othar wp lle8, or on)' olher ~WM byond !he rc)a~onsbk ixnttii aP ~ebdd. tn tha eve^^ 0, a* mna, Dlebdd's tCDe bt perfo~menoe ehRl be Oqyltilbly edjueled or c.mc&A II In Dlebold'a reswmbla judgmenl perfarmance has been mndared no1 aeonomloally monuble, b) lhauld DleboV~ cosl of or .oWr neWela and/or oupplk hmase more Uwn ten pswl (10%) horn tho prkrea h affect en lh~ Commenwmenl Dste harsof, arc wrWd by puWd Indexes met enconpees such be\, materiala w~PIILJI;. #xi ~nnual mrvlcp prloo ahall be lrroreeeed by Mebold bslM ad one b6e m the mDsl app8osM published M. 0) If a\ my Ume alutng !ha term of U\ls AQreamed. Diebdd 18 required to own any slle $pdlio w any othr noenbe. pemdl cerlIAcatlon or authorizatlolt to perronn he ~ervlcas for Suborbw, no1 already held by Mebold, w Nlhanr Is eny ohange in epplkable lot7, oaKlkMnce w mgulatlon ttral malerlaly horeasas Dlebdd'a Dost to perform we servlcee, then, upon ghhg Submbt masoneble noQm of 8vch lnoreeee ht cosls endlor expnses, Subeulbrr eblr b responsible to rahnbuwe DLebold UIeralPr or mrwlse lo pay auDn irtmmd mb and expenees, 17, -in, M hnnunent mey be waived or n modllled only by rt mftlilg exeouted by both parllas. In Ule sVBnl of tho Wition or deklbn al equlpmeru from scW wverap under MD Agreement, or ohr modMattom of Equipment Bchedula(s) c~nfemplaled by Ms Agreemefl, DlM shall pWe a nw Equtpment 8chedde or other ttpproprlate noUw of e *en@ to Subsam~r. The provlslarx of such new Equtpmctnt Schedule of natlce of chmnge dwfi bs deemed a part of Ws ~ipeement and WaUy blndlng upon Suboortber, unbs Bubscrlbw objeds lo Dlebdd in writing Mhln Wrty (HJ) days of the bmnw of be new Eq~pmenl 8chedtdc or mUw of Fhege. 18. s At-rne *. of tiia ~sr~rmmt a eny wnwat or exiwded lsnn hemof, DIebPld may rees~nebly detemdoe lhal equlpment belng servlDed hereunder Is omlah or no1 alhemlea reeriDnably capable of being rn81ntalnwl In an operable oondllbn a6 il result of age, volume of me, unavifH@bllily pf necesulry replaosmenl parts or olher reaaon of oondI8an. whlch diebold m8y MenUfy as exMon%nsry. upon racalpr of wrltlen notice or ruoh detBrmRlation Rom Dhbdd. Subsrxlber $ha1 ether repha dw ohlem equlprnenl Nth new equipment, remove the equipment Mm W mpe of wwrage of !hk Agrcernenl, or agree h wrlllng #id eu~h equmenl dm mtime to be tiehrlced hewunder by Dlebold on a #me end materfals bttsls, ID. lhal U~ls &reemen1 may b oxedrted or ecmpled ushg elearonlo, mrnped or feoshnile dgnaLures. and lhal Mwh'a sIgns$re shell be legelly blndlng to ttm 6am emnr ss a MRran We @num by a pew5 aulhorfeed repteserdefive, Eadr pafly walmr any legal requlramenl mat lhk Agreemenl be embodled, stored or repmduced tn tangible Me, end agree6 1h1 an &uronlc repmduEUen shall h glven Lhe same legal for# and efied as 8 EXHIBIT 5.6 @ply lo snd pwk whew ol auah Oams. Thb Agraemnt rhsll ml be blndlriu uwn MeboM unW rcce~ted Wrebv. end &I be Wordarme wim Ile termslup~n be partled, herelo . may 11o1 b~ BO~~QMH~ h w 0r.h purl wllhwt PIB oxma6 pttor wdh oansenl d the dher p~rky and any UnwIhorhod mig~ 16 W, hew, DIBboW mey rmbn or wbmma dulles uwer lhl3 Agmmenl MVtoUI flrsl obtalnlng Sub- pnbr cansen1 themto, wllhwl rcpsrd lo anybon~lds ol ihs h' provllslonr theraof, The b) No wahkr of any rlghl On any party llheU be at oonetlMe a appf)cabHHy dthe UrJled %Uok Cwnrentkn on 'hdraoh for lhe wlvar of my oVwr fight kl ouoh perly, nw a WIW~ of MY InI-BrnB11o~l Bde of Goods le expnmly emluded. Any Bcmon arldng or mslrn, dlredly or bxhrtly, W~I the pmfumems w wxavednaperfDrmenneby DlsbddobIhbM4mrhsllbe awn- by Bubsafber wrmkc m [2) years aaer ~\e caw of mUonRelBorruetlwbedOreverbarmd. 20. Glwaal a) 7Ns Agreamenl and Eqtmpmenl fkheUuh(6) mne4Iute b enh egreemenl behueen Uls penk amcemlng eny Wee by Wold k Subsoltber, and m rapeeen(e(lon, Inducaml pmmW w qrwmente ml embodted herdn *I be d any force w e(kd Any pwoh'sse ader or ielmMr dcmmmt lssued by Subsalbsr mn he deemed ~creued enly for 8ubscr1~ kaamel admlnlslntke 0wn,,ee~ ad W no1 beo~ma 0 pall of his &reemem 7hls Agm riw be 'blndll .. MU breach uw other PW. 01 NDUOQIQ 10 be (uo~lded lj~m one pny 10 snolher shatl b doemed callecllvs upon mpelpl end WE! UI ebn by cmmbhl amim or other mWhPd Umt prwldes wid%nce d dellvary. Notlcs shrill be delivered to the eddr~ea of much pafly w rafleoted herein, ol such olhar addmas 88 a pnrty mev MenUfy by hxmel nollce the other p8cty. *r 1w oum my pP%won of ws lDewna ba held Mmsble or halM by a murl or edmlnishllallve body heulng juMcUon, tuch prPYhbn ohell be fef~mted m as to most doesly efhhhle Ihe Intent Ulweof In e valM Md entomable manner, Tk lnt8dlnga end Was coWned h Wv Agreement em InW& s&)y kr he wnrenfsnw of Ihs padeb and shall mtlk used In opru\NLng the lnlanl of WW honeof, ,, SUBSCKIBER ACKNOWLEDGE1 HAVING READ AND UWI36TOOD ALL PAGES OF MIS AGREEMENT. nCR1Bm DIEBOP. INCORPORATED ~ame: .Mark Lmnau Name: Denise Bonner (?r~nledtTyped Name) 03rio~~%@t~&t;ator Title: pret4idmffCEO Tltie: Service Date: ~I2010 Date: b.&.\b L EXHIBIT C User will surcharge the non United Police Federal Credit Union Members a minimum of three dollars and/00/100 ($3.00) per transaction and City shall receive one dollar and 501100 ($1.50) from each transaction from a non United Police Federal Credit Union member. User shall pay any amount due to City as set forth in Section 8, entitled "Payment Obligations" of this Agreement. Should User increase its surcharge fee, at any time during the Term of this Agreement, for United Police Federal Credit Union non-members, User agrees that City shall be entitled, and continue to receive, the same percentage of said surcharge during the Term of this Agreement, including any renewals and extensions thereof. For purposes of this Agreement, the City's percentage shall be set at fifty percent (50%) and City shall receive said percentage of any surcharge fees collected pursuant to this Agreement. MIAMIBEACH CITY OF-MIAMI BEACH I NOTICE OF PUBLIC HEARING I I NOTICE IS HEREBY given that a public hearing will be held by the Mayor and City Commission of the City of Miami Beach, Florida, in the Commission Chambers, 3rd floor, Clty Hall, 1700 .Convention Center Drive, Miami Beach, Florida, on Wednesday, October 27,2010, to consider the following: I 10:45 a.m. . A Resolution Approving, Following A Duly Noticed Public Hearing, A Lease Agreement Between The City And United Police Federal Credit Union, For Use Of Approximately 196 Square Feet Of City-Owned Property, Located At 11 00 Washington Avenue, Rooms 11 0 And 11 1, Miami Beach, Florida; Said Lease Having An Initial Term Of Three (3) Years, With One Additional Three (3) Year Renewal Term, At The City's Sore Discretion; Further Waiving. By Bffths.Vote, The Competitive Bidding Requirement, As Required By Section 82-39 Of The Miami Beach Citv Code: Authorizing The Mayor And Clty Clerk To Executed The Lease ~greekent INTERESTED PARTIES are civcted to appear at thls meetlng, or be represented by an agent, or to express thelr vtews In wntlng addressed to the C~ty Commcss~on, c/o the Clty Clerk, 1700 Convent~on Center Dr~ve, 1st Floor, Ccty Hall, M~amc Beach, Flor~da 33139 Cop~es of these ordinances are ava~lable for pubilc ~nspectlon durlng normal buslness hours In the C~ty Clerk's Offlce. 1700 Conventton Center Drtve, 1st Floor, Ccty Hall, and M~arn~ Beach, Flor~da 33139 Th~s meetlng may be continued and under such ccrcumstances add~t~onal legal notice would not be provided Robert E. Parcher, C~ty Clerk C~ty of M~arni Beach Pursuant to Sectlon 286.0105, ~la.%tat., the City hereby adv~ses the publ~c that. d a person decides to appeal any dec~s~on made by the C~ty Comm~ss~on wlth respect to any matter cons~dere&at ~ts meeting or ~ts heanng, such person must ensure that a verbatcm record of the proceed~ngs IS made, whlch record Includes the test~mony and ev~dence upon whlch the appeal a to be based Thcs notlce does not constltute consent by the City for the cntroduct~on or adm8saon of otherw~se ~nadm~sslble or Irrelevant evcdence, nor does ~t author~ze challenges or appeals not otherwcse allowed by law To request th~s materlal In access~ble format, slgn language ~nterpreters, ~nformat~on on access for persons wlth dlsabrllt~es, and/or any accommodat~on to revcew any document or participate In anyc~ty-spohsored proceed~ng, please oontact (305) 604-2489 (vorce), (305) 673-7218CTPC)dlve days In advance to ~nlt~ate your request TTY users may also call 771 (FlontIa ReIayBervrm) -- I 'Ail g MONDAY, OCTOBER 18,2010 "-- - THIS PAGE INTENTIONALLY LEFT BLANK COMMISSION ITEM SUMMARY Condensed Title: A Resolution Of The Mayor And City Commission Of The City Of Miami Beach, Florida, Ratifying A Three (3) Year Labor Agreement Between The City Of Miami Beach And The Communications Workers Of America, Local 3178 (CWA), For The Period From October 1,2009 Through September 30,2012; And Authorizing The Mayor And City Clerk To Execute The Agreement. Key Intended Outcome Supported: ( Control costs of payroll including salary and fringes1 minimize taxes1 ensure expenditure trends are sustainable over the long I I term. I Supporting Data (Surveys, Environmental Scan, etc NIA 1 Issue: Should the City Commission adopt the resolution to ratify a three (3) year successor labor Agreement between the City and the CWA bargaining unit? Item SummarylRecommendation: After nearly 20 negotiation sessions, the City and CWA successfully concluded negotiations and reached a tentative three (3) year labor ~~reement covering the time period of october 1,2009 through ~e~tember 30,2012. These employee concessions include a zero Cost of Living Increase for 30 months, a freeze on merits, a 3.5% wage reduction for 12 months, (or an additional 2% employee pension contribution if the pension board actuary and the State of Florida Division of Retirement agree to recognize the value of pension changes), the elimination of certain incentive pays, adherence to FLSA guidelines when compensating for overtime and a reduction in Holiday pay compensation. In addition, CWA has also agreed to pension plan changes for current and future CWA employees. For current employees, the Final Average Monthly Earnings (FAME) calculation will be adjusted from the two (2) highest years to the five (5) highest years. In exchange for the employee concessions, the City has agreed that all CWA bargaining unit members will be guaranteed a job with the City for the time period of October 1,2010 through September 30,2012. During this time period, no employee covered under the CWA Bargaining Unit shall be separated from the City for reasons other than disciplinary, voluntary separation or whose position has been reclassified due to changes in job duties. The value for the proposed successor Agreement is estimated to generate a savings of approximately $1.87M for FY2010/2011 and over $4.28 million through the full term of the Agreement. In addition, these concessions will yield additional, recurring, long term savings in future fiscal years. Advisory Board Recommendation: Financial Information: Source of I Amount Account Funds: 1 I FY200912010 NIA I Status Quo 2 1 FY2010/2011 I Freeze on Merits, 3.5% Wage Concession andlor 2% employee pension ($1,870,000) contribution, Elimination of Incentive Pays, Change of FAME. 3 FY2011/2012 Merit Freeze; Elimination of Incentive Pays; Change of FAME; 3% ($2,409,745) COLA April 2012; Additional 2% employee pension contribution; Pension Changes for Future Employees. OBPl Total ($4,279,745) Financial Impact Summary: The savings for FY 2010/201 I total $1.87M. This represents a per person impact of $4,400 to each member of the CWA bargaining unit for this time period. The total savings for the three (3) year agreement total $4.28M. In 1 addition, these concessions will yield additional, recurring, long term savings in future fiscal years. City Clerk's Office Legislative Tracking: I Ramiro Inguanzo, Human Resources Director AGENDA ITEM MIAMIBEACH City of Miami Beach, 1700 Convention Center Drive, Miami Beach, Florida 33 139, www.miamibeachfl.gov COMMISSION MEMORANDUM TO: of the City Commission FROM: DATE: October 27,201 0 SUBJECT: A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE ClTY OF MIAMI BEACH, FLORIDA, RATIFYING A THREE (3) YEAR LABOR AGREEMENT BETWEEN THE ClTY OF MIAMI BEACH AND THE COMMUNICATIONS WORKERS OF AMERICA, LOCAL 3178 (CWA), FOR THE PERIOD FROM OCTOBER 1, 2009 THROUGH SEPTEMBER 30, 2012; AND AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE THE AGREEMENT. ADMINISTRATIVE RECOMMENDATION Adopt the Resolution. BACKGROUND During the July 2009 Finance and Citywide Projects Committee (Committee) budget preparation meetings for the FY2009/2010 Budget, the Committee requested that all City of Miami Beach employees make certain financial concessions to help address the challenges being faced during the FY2009/2010 budget cycle and beyond. The Committee requested the Administration to budget for specific employee givebacks for FY2009/2010, which would in turn effectuate a cost savings of approximately $4.3M (approximately $3.5M savings attributed to the General Fund and $800,000 from various enterprise funds). Furthermore, in 2010 the City Commission directed the Administration to secure and budget for an additional $AIM in savings attributed to employee givebacks for FY2010/2011. Therefore, the total amount of employee givebacks for both the FY2009/2010 and FY2010/2011 is $1 5.3M. The City currently has a total of seven (7) salary groups who represent employees: (1) the American Federation of State, County and Municipal Employees, Local 1554 (AFSCME); (2) the Communications Workers of America, Local 3178 (CWA); (3) the Government Supervisors Association of Florida/OPEIU, Local 100 (GSA); (4) the Fraternal Order of Police, William Nichols Lodge No. 8 (FOP); (5) the International Association of Fire Fighters, Local 1510 (IAFF) (6) Unclassified employees; and (7) "Others" (Classified employees not represented by a bargaining unit). Based upon the direction received from the City Commission, the $15.3M savings in employee concessions for FY2009/2010 and FY2010/2011 combined was to be divided up proportionately amongst each of the seven (7) salary groups based on total budgeted payroll and a proportionate share of the preliminary FY2010/2011 City's Annual Required Contributions to both of City Commission Memorandum October 27,201 0 CWA 2009-2012 Ratified Collective Bargaining Agreement Page 2 of 9 the City's pension plans. In addition, the City Commission also directed the Administration to negotiate with the respective unions for pension adjustment and changes to both of the City's pension plans (the Miami Beach Fire Fighters and Police Officers (Fire and Police) Pension Plan and the Miami Beach Employees' Retirement Plan (MBERP)), in order to obtain recurring savings for future years in each of the pension plans. ANALYSIS On September 30, 2009, the previous three (3) year Collective Bargaining Agreement (Agreement) for CWA (covering the period of October 1, 2006 through September 30, 2009) expired. In anticipation of the contract expiring, negotiators for the City and the CWA began meeting in June 2009 to negotiate for a successor three (3) year Agreement in June 2009. After nearly twenty (20) negotiation sessions, in September 24, 2010 the City and the CWA successfully concluded negotiations and reached a tentative three (3) year labor Agreement covering the time period of October 1,2009 through September 30,2012. Based on the direction from the City Commission, the CWA's portion towards the FY2009/2010 and FY2010/2011 employee portion of the $15.3M totaled approximately $2M. Based on the terms and conditions tentatively agreed to between the City and CWA, the City estimates that the CWA meets their portion for FY2009/2010 and FY2010/2011 combined. This represents a per employee impact of $4,400 to each member of the CWA bargaining unit and represents 8.32% of CWA payroll. In addition, the value for the proposed successor Agreement is estimated to generate a savings of approximately $4.28M for the entire three (3) year Agreement. More importantly, these negotiated amendments represent long-term, recurring savings for future fiscal years. The CWA membership scheduled a ratification vote among its members for the proposed Agreement on Friday, September 30, 2010. The final vote was 207 in favor and 11 3 opposed (65 percent of the voting members voted in favor of the proposed Agreement). The following is a summary of the proposed Agreement with the CWA: Year One (1) of the Agreement (October I. 2009 through September 30.2010) - Status Quo For the time period covering October I, 2009 through September 30, 2010, the City and the Union agreed to maintain all provisions of the previous Agreement (2006 - 2009) as status quo. Therefore, all CWA employees who were eligible to receive merit or step increases during the time period covering October I, 2009 through September 30, 2010, received them. However, no CWA employee received a Cost of Living Adjustment for FY2009/2010, since the previous Agreement did not specifically provide for one. Waqes Cost of Living Adiustments (COLA) - Effective October 1, 2009 through March 31, 201 2, (30 months) there will be no across-the-board wage increases (COLA) for this two (2) year period for any CWA bargaining unit members. Gabriel, Roeder and Smith (GRS), the actuary for the MBERP, has estimated that the City's Annual Required Contribution (ARC) due on October I, 201 1 would be reduced by approximately $300,000 if no COL4 were provided to any active plan participants (all general employees in the AFSCME, CWA, GSA, Unclassified and "Others" salary groups) for FY2009/2010. Furthermore, an additional $600,000 savings will be realized to the City's ARC due on October 1, 2012 if no COLA were provided to any active plan participants (all general employees in the AFSCME, CWA, GSA, Unclassified and "Others" salary groups) in FY2010/2011. The zero COLA for just the CWA members will City Commission Memorandum October 27,201 0 CWA 2009-2012 Ratified Collective Bargaining Agreement Page 3 of 9 generate a savings of approximately $84,000 to the City's ARC payment due on October 1, 201 1, and approximately an additional $168,000 savings on the City's ARC payment due on October 1, 2012. The total savings to the City's ARC for the three (3) year period for just CWA members is approximately $252,000. Effective with the first full pay period ending in April 2012, all active CWA Bargaining Unit members will receive an across-the-board COLA of three percent (3%). In addition, effective with the three percent (3%) COLA, the minimum and maximum pay rates of the salary ranges for all job classifications covered by the CWA bargaining unit will be adjusted accordingly. The City estimates a cost impact from this COLA for CWA employees of approximately $386,000 to be applied towards the City's FY2011/2012 operating budget. Pav for Performance Plan - Effective October 1, 201 0, the classifications of Lifeguard I, Lifeguard II and Lifeguard Lieutenants were removed from the City's Automatic Step Pay Plan System and placed in the City's Pay for Performance Classification and Pay System. In doing so, new salary grades were created for each of these classifications, however the salary ranges remain consistent with the corresponding salary ranges for each of the three (3) respective classifications that were already in place under the Step Pay Plan System. With this change, all CWA employees are now in the City's Pay for Performance plan effective October 1, 201 0. Performance Merit Increases - Effective October 1, 2010, merit salary increases will be suspended for any eligible CWA bargaining unit member. Additional Wase Concession - Pursuant to the proposed Agreement, the CWA has agreed to a temporary, twelve (12) month wage concession for all CWA bargaining unit members. Effective upon ratification, all CWA members will receive a three and one half percent (3.5%) wage reduction, calculated on base pay, for a twelve (12) month period. However, based on the terms of the Agreement, should the City receive confirmation, in writing, from the MBERP actuary and from the State of Florida Division of Retirement that the City will recognize at least a $1,000,050 savings from the pension adjustments agreed to by the CWA, and that these savings could be applied retroactively to the City's Annual Required Contribution (ARC) due on October 1, 201 0, then effective November 27, 201 0, the three and one half percent (3.5%) temporary wage reduction will be replaced with a two percent (2%) increase towards the employee's pension contribution for all CWA members who participate in MBERP. The value of the wage concessions (COLA, freeze on performance merits and a 3.5% wage reduction for twelve (12) months) made by CWA total approximately $1.73M over the term of the three (3) year Agreement. Approximately $330,000 will be realized during FY201012011 and an additional estimated $1,010,000 will be realized during FY201112012, primarily due to the compounding effect of no merits in FY201012011 and FY201112012. The City will spend approximately $386,000 in FY201112012 for the three percent (3%) COLA effective the first full pay period in April 2012. The twelve (12) month temporary wage concession will generate a savings of approximately $776,000. However, should the City receive confirmation, in writing, from the MBERP actuary and the State of Florida Division of Retirement that the pension savings agreed to by the CWA can be applied retroactively towards the City's ARC payable on October I, 2010, then the three and one half percent (3.5%) wage reduction will cease on November 27, 2010 and will be replaced with the additional two percent (2%) employee pension contribution. The prorated value for the three and one half percent (3.5%) City Commission Memorandum October 27,201 0 CWA 2009-2012 Ratified Collective Bargaining Agreement Page 4 of 9 wage reduction for the one (1) month time period (October 27, 2010 through November 26, 2010) will be approximately $65,900. In addition, these concessions will yield additional, recurring, long-term savings in future fiscal years. Pension Employee Pension Contribution - As stated above, the City and the CWA have agreed to begin an additional two percent (2%) employee pension contribution for their members who participate in MBERP. The effective date for implementing the additional two percent (2%) employee pension contribution is subject to the City receiving written confirmation from the MBERP actuary and the State of Florida Division of Retirement that the estimated savings of approximately $1M attributed from the pension plan changes for CWA members who participate in MBERP, can be retroactively applied towards the City's ARC due on October 1, 2010. If these pension savings can be confirmed in writing, the three and one half percent (3.5%) temporary wage concession would cease and the additional two percent (2%) employee pension contribution would begin for all CWA bargaining unit members who participate in MBERP. When the two percent (2%) increase to the employee's pension contribution becomes effective, this would mean an increase from ten percent (10%) to twelve percent (12%) of earnings for "Tier A" employees (hired prior to February 21, 1994), and an increase from eight percent (8%) to ten percent (10%) of earnings for "Tier B employees (hired on or after February 21, 1994). In the event that the City fails to receive the written confirmation from the State of Florida Division of Retirement and the MBERP actuary that the approximated $1 M savings attributed to the pension changes agreed upon for CWA employees can be applied retroactively to the City's ARC payable on October 1, 2010, then the additional two percent (2%) employee pension contribution for CWA members shall take effect immediately upon the expiration of the temporary twelve (12) month three and one half percent (3.5%) wage concession. The actuary for MBERP estimates that the value of the additional two percent (2%) contribution from CWA would yield a savings to the City's ARC of approximately $412,626 if it were to be collected for a full twelve (12) month period. Assuming the implementation of the additional two percent (2%) employee pension contribution for CWA members commences on November 27, 2010, the City would realize a savings of approximately $347,000, thus representing a prorated portion of the $412,626 savings (November 27, 2010 through September 30, 2011) applicable towards the City's ARC payable on October 1, 201 1). Furthermore, there will be an additional savings of approximately $412,626 to the City's ARC payable on October 1, 2012 derived from the additional two percent (2%) employee pension contribution for CWA members that will be contributed during the 201 112012 fiscal year, thus providing a total estimated savings of $760,000 through the term of the entire three (3) year labor Agreement. Pension Plan AdiustrnentsKhanqes - As previously mentioned above, the City Commission directed the Administration to implement changes to the City's two (2) employee pension plans (Fire and Police Pension and the MBERP) which would effectuate recurring savings in the overall reduction to the City's Annual Required Contribution (ARC), as well as a reduction in the Unfunded Accrued Actuarial Liability (UAAL). In keeping with the spirit of treating similar groups of employees in a consistent manner, the Administration negotiated with the respective general employee labor unions (AFSCME, GSA and CWA) to implement changes to MBERP for current and future employees that are the same for all general employees, including the Unclassified and "Others" employees. City Commission Memorandum October 27,201 0 CWA 2009-2012 Ratified Collective Bargaining Agreement Page 5 of 9 The target for pension changes for the general employees' salary groups applicable towards FY200912010 and FY201012011 is approximately $2.3M. After assessing a number of options to reach the target savings, the City determined that changing the Final Average Monthly Earnings (FAME), which is currently one twelfth (1112) of the average annual earnings of the Member during the two (2) highest paid years of creditable service, to one twelfth (1112) of the average annual earnings of the Member during the five (5) highest years of creditable service, would yield the approximate target savings for MBERP. The City recognizes that there are a number of employees who have reached or are very close to reaching retirement age eligibility. In order to minimize the impacts of this pension change, the City has agreed to implement the FAME change in a phased-in approach. Upon implementation, those employees who are twenty four (24) months or less away from retirement age eligibility will maintain a two (2) year FAME; those employees who are between twenty-four (24) and thirty-six (36) months away from retirement age eligibility will have a three (3) year FAME calculation; those employees who are between thirty-six (36) months and forty-eight (48) months away from retirement age eligibility will have a four (4) year FAME calculation; and any employees who are forty-eight (48) months or more away from retirement age eligibility will have a five (5) year FAME calculation. By changing the FAME (phased-in) for all current employees who participate in MBERP from the employee's two (2) highest years to the employee's five (5) highest years, the pension board actuary, (Gabriel, Roeder and Smith (GRS)), estimates that the City would generate a savings to the City's ARC for FY201012011 of approximately $1.9M. This amount is recurring and continues for future years, therefore resulting in additional, long-term, recurring savings in future fiscal years. The CWA's portion of the $1.9M in savings was based on their proportionate share of payroll as of March 2010. The estimated savings for adjusting the FAME for those employees covered under the CWA bargaining unit would be approximately $587,000 for FY201012011, thus providing a total savings over two (2) years from changes to FAME of approximately $1.17M for the entire term of the Agreement. In addition, GRS has indicated that these savings will continue to grow in perpetuity as long as the revised FAME formula remains in effect. Attached is a copy of GRS' Supplemental Actuarial Valuation Report for the additional proposed benefit changes to the MBERP for the change in FAME for all MBERP participants (Attachment "A). In addition to changing the FAME, the CWA has also agreed to the following pension plan changes for any employees covered under the CWA bargaining unit that are hired after ratification of the 2009-2012 Agreement: The normal retirement date will be age 55 with at least thirty (30) years of creditable service, or age 62 with at least five (5) years of creditable service. The early retirement date will be the date on which the member's age plus years of creditable service equal 75, with a minimum age of 55. The Final Average Monthly Earnings (FAME) will be an average of the highest five (5) years of employment. The benefit multiplier will be two and one half percent (2.5%) multiplied by the member's years of creditable service, subject to a maximum of 80% of the member's FAME. The retiree Cost of Living Adjustment (COLA) will be one and one half percent (1.5%) per year, with the first adjustment deferred to one (1) year after the end of the DROP. The employee contribution will be ten percent (10%) of salary. City Commission Memorandum October 27,201 0 CWA 2009-2012 Ratified Collective Bargaining Agreement Page 6 of 9 The standard form of benefit is a lifetime annuity. Members who separate from City employment with five (5) or more years of creditable service but prior to the normal or early retirement date will be eligible to receive a normal retirement benefit at age 62. Employees will be eligible to enter the Deferred Retirement Option Plan (DROP) at the normal retirement age specified above and may participate in the DROP for a maximum of five (5) years. (The five year DROP is only applicable to those CWA employees hired on or after October 27, 201 0). GRS has stated that the implementation of the pension changes for any employees hired after September 30, 2010 (any CWA employees hired after October 27, 2010) will not generate any immediate savings for the next fiscal year. However, future savings will be realized beginning in FY2011/2012 with approximately $900,000 (1.92% of payroll) in savings towards the City's ARC. The pension actuary has estimated that the City will realize an additional annual reduction of seven tenths percent (.7%) per year of payroll applied as a reduction towards the City's ARC in perpetuity. Again, this is for all employees hired after the amendment to the City pension ordinance who participate in MBERP, not just those covered under the CWA bargaining unit. The CWA's portion of the $900,000 in savings was based on their proportionate share of payroll as of March 2010. The estimated savings for the pension changes for future employees covered under the CWA bargaining unit would be approximately $1 62,000 to be applied in FY2011/FY2012. Also included in GRS' Actuarial Valuation Report are the additional proposed benefit changes to the MBERP for future employees (Attachment "B). Other Economic and Contractual Provisions Overfime Pay - In an effort to be more consistent with the United States Federal Government Fair Labor Standards Act (FLSA), which defines the minimum requirements that employers must adhere to for purposes of compensating for overtime, effective October 1, 2010, only actual hours worked shall be considered for the purposes of computing overtime for all CWA bargaining unit members. For example, paid leave, including but not limited to, any Annual, Holiday, Sick, Birthday, Floater, Bereavement, Compensatory Leave or Administrative Leave shall not be considered as time worked for the purpose of computing overtime. Therefore, all CWA employees will be required to physically work a full 40 hours within their scheduled workweek before qualifying for any overtime pay. Based on these changes, the City estimates a cost savings of at least approximately $225,000 for each of the two (2) remaining Contract years, thus providing a total savings of at least approximately $450,000 for the entire term of the three (3) year Agreement. Holidav Pav - In addition to the overtime pay provisions mentioned above, the City and CWA have agreed to make adjustments to the Holiday Pay provisions for all CWA members. Effective October I, 201 0, compensation for Holiday Pay will be revised as follows: o A holiday which is observed during an employee's regularly scheduled workweek shall not be considered as time worked for the purpose of computing overtime. o An employee who is not scheduled to work on an observed holiday, and does not work, shall receive straight pay for the equivalent hours of their regularly scheduled work day for the observed holiday (i.e. 8 hours or 10 hours), which is consistent with what all other general employees are provided with in regards to pay. City Commission Memorandum October 27,201 0 CWA 2009-2012 Ratified Collective Bargaining Agreement Page 7 of 9 o If an employee woks on their regularly scheduled day, and it is also an observed holiday, the employee shall receive holiday pay at % the regular rate of pay for all hours worked. For example, if an employee is scheduled to work on a day that falls on a holiday and works eight (8) hours, they shall receive eight (8) hours of straight pay and an additional four (4) hours of holiday pay (i.e. 8 hours at straight time for working, plus 4 hours for holiday pay, for a total of 12 hours.) o If an employee's regularly scheduled day off is an observed holiday, and they are required to work that day, they shall receive pay at straight time for all hours worked plus holiday pay at straight time. For example, an employee's regularly scheduled day off is a Tuesday, which is also an observed holiday. The employee is called in to work that day. The employee shall be paid 8 hours of straight time for working, plus 8 hours of holiday pay, for a total of 16 hours. Based on these changes to how holiday pay is compensated, the City estimates a cost savings of at least approximately $35,000 per Contract year, thus providing a total savings of at least approximately $70,000 for the entire term of the three (3) year Agreement. Lonaevitv Pav - Prior to October 1, 2010, all Lifeguard I, Lifeguard II and Lifeguard Lieutenants were in the City's Automatic Step Pay Plan System. In conjunction with the Step Pay Plan, employees in these classifications are eligible to receive Longevity incentive pay, whereas employees receive additional, permanent, percentage-based compensation calculated on their earnings when they reach certain milestones for completed years of service with the City as follows: As previously stated, effective October 1, 2010 all Lifeguard I and II and Lifeguard Lieutenants were placed in the City's Pay for Performance System. However, the City and the CWA have agreed to continue the Longevity incentive pay for those employees who qualify for it through the last day of the Agreement. Therefore, effective September 30, 2012 Longevity pay will cease for any and all CWA bargaining unit members. Once the Longevity incentive pay is eliminated on the last day of the Agreement, the City will realize future savings of approximately $1 60,000 for each fiscal year beginning in FY201212013. Completed Years of Service 7 Years 10 Years 15 Years 20 Years 25 Years Emerqencv Medical Technician (EMT) Cerfification Pav - Based on the terms of the existing Agreement, EMT certification is not a mandatory job requirement for the classifications of Full-Time Lifeguard I, Lifeguard 11, Lifeguard Lieutenants and Full-time Pool Guards. Currently, those employees working in these classifications, who attain and maintain an EMT certificate given by the State of Florida receive a five percent (5%) pay increase. However, all Lifeguard I, Lifeguard 11, Lifeguard Lieutenants, Pool Guard I and Pool Guard II employees hired on or after September 30, 201 1 will be required to have and maintain an EMT Percentage Increase 2.5% 5.0% 7.5% 10.0% I 1 .O% City Commission Memorandum October 27,2010 CWA 2009-2012 Ratified Collective Bargaining Agreement Page 8 of 9 certification given by the State of Florida prior to being hired by the City. In addition, effective September 30, 2012, the EMT Certification Pay shall be eliminated for any and all CWA bargaining unit members. All Lifeguard I, Lifeguard 11, Lifeguard Lieutenants, Pool Guard I and Pool Guard II employees, regardless of the date of hire, shall be required to have and maintain an EMT certificate given by the State of Florida. Although the EMT incentive pay will not be eliminated until the last day of the Agreement, the City will realize future savings of approximately $1 25,000 for each fiscal year beginning in FY201212013. Reduction in Force - In exchange for the employee concessions agreed to by the CWA bargaining unit, the City has agreed that all CWA bargaining unit members will be guaranteed a job with the City for the time period of October 1, 201 0 through September 30, 2012. During this time period, no employee covered under the CWA Bargaining Unit will be separated from the City for reasons other than disciplinary action, voluntary separation or whose position has been reclassified due to changes in job duties. In the event that there is an impact to a CWA bargaining unit member's position for the time period referenced above, as a result of the positions being eliminated in the budget (excluding any separations relating to disciplinary actions, voluntary separation or when an employee's position has been reclassified due to changes in job duties) the impacted employee will be offered an alternative position with the City for which they meet the minimum qualifications. Union Time Bank - The CWA has agreed to a reduction in their Union Time Bank. Effective October I, 2010, the Union Time Bank will be reduced from 3,000 hours to 1,500 hours per year to be used by the Union President and hislher designee to conduct union business during regularly scheduled work hours. Based on the agreed upon terms, the City estimates a savings of approximately $45,000 per Contract year, for a total savings of approximately $90,000 for the term of the entire Agreement. Shifl Differential - Pursuant to the terms of the prior Agreement (2006-2009), CWA employees were entitled to qualify for Shift Differential incentive pay. Based on the employees schedule, when a majority of the employee's regularly assigned shift hours fall between a certain time, they would receive additional pay per hour, (which ranged from $.45 to $.55 per hour, based on the employee's shift). However, effective October I, 2010 the Shift Differential incentive pay was eliminated for all CWA bargaining unit members. Based on the agreed upon terms, the City estimates a savings of approximately $77,000 per Contract year, for a total savings of $1 54,000 for the term of the entire Agreement. Cleanins Allowance - Pursuant to the terms of the prior Agreement (2006-2009), those CWA employees who are required to wear a City uniform, received a uniform cleaning allowance of $40.00 per month. However, effective October I, 2010 the Uniform Cleaning Allowance supplement was eliminated for all CWA bargaining unit members. Based on the agreed upon terms, the City estimates a savings of approximately $70,000 per Contract year, for a total savings of $140,000 for the term of the entire Agreement. The FY 201012011 Adopted Work Plan and Budget included privatization and outsourcing initiatives, as well as the conversion of full-time to part-time positions. Implementing these initiatives would have resulted in 11 3 full-time positions offset by the addition of 53 part-time positions Citywide. The timeframe for implementation had yet to be determined at the time of budget adoption, so savings were offset by increased contingency. Since the adoption of the FY 201012011 budget, the subsequent ratification of the CWA Agreement included a "no-layoff" provision which therefore City Commission Memorandum October 27,201 0 CWA 2009-2012 Ratified Collective Bargaining Agreement Page 9 of 9 precludes the implementation of these initiatives, at least in the short-term. The City will pursue these initiatives, where feasible, through attrition. As a result, a budget amendment reinstating these positions will be brought to the City Commission at a future meeting. CONCLUSION The terms and conditions of the proposed amended three (3) year labor Agreement include CWA employee concessions that total approximately $1.87M for FY2009/FY2010 and FY2010/2011 with a total savings of approximately $4.28M for the three (3) year contract, while achieving the City's goal for pension changes with both short-term and long-term implications. The Administration recommends adopting the Resolution to ratify the three (3) year labor Agreement with the CWA bargaining unit for the time period covering October 1, 2009 through September 30,201 2. T:VAGENDA\201 O\October 27\Regular\CWA 2009-201 2 Labor Agreement Memo.doc RESOLUTION NO. A RESOLUTION OF THE MAYOR AND ClTY COMMISSION OF THE ClTY OF MlAMl BEACH, FLORIDA, RATIFYING A THREE (3) YEAR LABOR AGREEMENT BETWEEN THE CITY OF MlAMl BEACH AND THE COMMUNICATIONS WORKERS OF AMERICAILOCAL NO. 3178 (CWA), FOR THE PERIOD FROM OCTOBER I, 2009 THROUGH SEPTEMBER 30, 2012; AND AUTHORIZING THE MAYOR AND ClTY CLERK TO EXECUTE THE AGREEMENT. WHEREAS, the City Manager is hereby submitting to the Mayor and City Commission the attached Labor Agreement, negotiated between the City and the Communications Workers of AmericaILocal no. 31 78 (CWA), for the employees covered by said Agreement for the time period of October I, 2009 through September 30, 2012; and WHEREAS, the previous Labor Agreement was for a three year period from October I, 2006, through September 30, 2009; and WHEREAS, on September 30, 2009 the Collective Bargaining Agreement (Agreement) for CWA expired; and WHEREAS, the CWA membership held a ratification vote on the proposed Labor Agreement (attached) on September 30, 2010. The final vote was 207 in favor and 113 opposed (65 percent (%) of the voting members were in favor of the proposed Agreement); and NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND ClTY COMMISSION OF THE CITY OF MlAMl BEACH, FLORIDA, hereby approving and authorizing the Administration to ratify the attached three (3) year labor Agreement with the CWA bargaining unit for the time period covering October I, 2009 through September 30,2012. PASSED AND ADOPTED THIS DAY OF 201 0. ATTEST,: CITY CLERK MAYOR T:\AGENDA\20lO\October 27\Regular\CWA 2010-2013 Labor Agreement Reso.docx Attachment A GRS Gabriel ~oeder'smith & Company One East Broward Blvd. 954.527.1616 phone Consultants & Actuaries Suite 505 954.525.0083 fax Ft. Lauderdale, FL 33301-1827 www.gabrielroeder.com August 3,2010 Mr. Rick Rivera Pension Adninistrator City of Miaini Beach 1700 Convention Center Drive Miaini Beach, Florida 33139 Re: Actuarial Impact Statement for Proposed Benefit Changes to the Miami Beach Employees' Retirement Plan Dear ~a'kiro: As requested, we have prepared the enclosed Actuarial Impact Statement showing the financial effect of the following proposed changes to the Miami Beach General Employees' Retirement System: 1. Increase employee contributions by 2% 2. Change final average earnings period from two to five years, except for me~nbeis who are less than five years away from normal retirement eligibility. Members who are eligible for normal retirement in two years or less will have average earnings of two years. Members who are eligible for normal retirement in three years will have average earnings of three years. Members who are eligible for normal retirement in four years will have average earnings of four years. 3. Change the following for new hires only: a. Nonnal Retirement Age of 55 with 30 years of service or age 62 with 5 years of service b. Early retirement eligibility of "Rule of 75" with a minimum of age 55 c. Multiplier of 2.5%, subject to a maximum of 80% of final average monthly earnings d. Final average monthly earnings of five years e. Nonnal fonn of payment of life annuity f. Members may participate in the DROP for up to 5 years g. Cost-of-living adjustment (COLA) of 1.5% at retirement (no COLA while in the DROP) 11. Employee contributions of 10% Please note that the changes for new hires described in item (3) above will have no inmediate financial impact on the Plan. This report is intended to describe the financial effect of the proposed plan changes. No statement in this report is intended to be inteqpreted as a recommnendation in favor of the changes, or in opposition to them. The calculatioils are based upon assumptions regarding future events, which may or may not materialize. They are also based upon present and proposed plan provisions that are outlined in the report. If you have reason to believe that the assumptions that were used are unreasonable, that the plan provisions are incorrectly described, that in.portant plan provisions relevant to this proposal are not described, or that conditions have changed since the calculations were made, you should contact the author of this report prior to relying on information in the report. Mi. Rick Rivera August 3,2010 Page 2 of 2 If you have reason to believe that the information provided in this report is inaccurate, or is in any way inconlplete, or if you need further information in order to make an informed decision on the subject matter of this report, please contact the author of the report prior to making such decision. , We welcome your questions and comments. Sincerely yours, - *?? J. Stephen Paln~quist, ASA Senior Consultant & Actuary Enclosures Gabriel Roeder Smith & Company SUPPLEMENTAL ACTUARIAL VALUATION REPORT City of Miami Beach Employees' Retirement Plan Valuation Date October 1,2009 Date of Report August 3,201 0 Report Requested by Board of Trustees Prepared by J. Stephen Palmquist Group Valued All active and inactive members. Plan Provisions Being Considered for Change Present Plan Provisions Before Change Tier A employees contribute 10% of earnings and Tier B employees contribute 8% of earnings to the Plan Normal Retirement eligibility is age 50 with five years of credited service for Tier A employees and age 55 with five years of credited service for Tier B employees. Early Retirement is available for Tier B members of the former General Plan whose age plus service is greater than 75, not earlier thau age 50. The multiplier is 3% with a total accrual cap of 90% for Tier A members and 80% for Tier B members. Earnings are averaged over the two highest paid years. The nonnd fonn of payment is a 50% joint and survivor annuity payable to the spouse. Members who are eligible for normal retirement may participate in the deferred retirement option program (DROP) for up to three years. Retirees receive an annual cost-of-living adjustment (COLA) of 2.5%. The COLA is not payable while members are in the DROP. Proposed Plan Changes The following changes would apply to current members of the Plan: Earnings would be averaged over the five highest paid years except for members who are within less than five years away f?o~n norma1 retirement eligibility as of September 30,2010. Members who are eligible for normal retirement in two years or less will have average earnings of two years. Members who are eligible for normal retirement in three years will have average earnings of three years. Members who are eligible for normal retirement in four years will have average earnings of four years. Tier A employees would contribute 12% of earnings and Tier B employees contribute 10% of earnings to the Plan. The following changes would apply only to members who are hired after September 30,2010: Normal Retirement eligibility would be the earlier of age 55 with 30 years of credited service or age 62 with 5 years of credited service. Members who are at least age 55 and whose age plus credited service is greater than 75 would be eligible to receive an early retirement benefit. The multiplier would be 2.5% with a total accrual cap of 80%. Earnings would be averaged over the five highest paid years. The normal form of payment would be a life annuity Members who are eligible for normal retirement may participate in the deferred retirement option program (DROP) for up to five years. Retirees would receive an annual cost-of-living adjustment (COLA) of 1.5%. The COLA is not payable while members are in the DROP. Employees would contribute 10% of earnings to the Plan. Participants Affected The changes would apply to active members or new members as of the date of the amending ordinance. Actuarial Assumptions and Methods Same as October 1,2009 Actuarial Valuation Report. Some of the key assunptions/inethods are: Investment return - 8.35% per year Salary increase - 6% per year Cost Method - Entry Age Normal Cost Method Amortization Period for Any Change in Actuarial Accrued Liability 30 years. Sunlmary of Data Used in Report Same as data used in October 1,2009 Actuarial Valuation Report. Actuarial Impact of Proposal(s) See attached page(s). The proposed changes for current members will decrease the annual required contribution by $3,297,614 or 4.70% of Non-DROP payroll. The cl~anges for new hires will have no immediate financial effect. Special Risks Involved With the Proposal That the Plan Has Not Been Exposed to Previously None Other Cost Considerations None Possible Conflicts With IRS Qualification Rules None As indicated below, the undersigned are Members of the American Academy of Actuaries (MU) and meet the Qualification Standards of the Academy of Actuaries to render the actuarial opinion herein. BY BY &.aea&h A Melissa R. Algayer, MM FCA Enrolled Actuary No. dd-1560 Enrolled Actuary No. 084467 CITY OF MWI BEACH EMPLOYEES' RETIREMENT PLAN Impact Statement - August 3,2010 Description of Amendment The proposed ordinance incorporates the following plan changes pursuant to 2009-2012 collective bargaining agreements: 1. Increase e~nployee contributions by 2% 2. Change final average earnings period from two to five years, except for members who are less than five years away from normal retirement eligiiility. Members who are eligible for normal retirement in two years or less will have average earnings of two years. Members who are eligible for normal retirement in three years will have average earnings of three years. Members who are eligible for normal retirement in four years will have average earnings of four years. 3. Change the following for new hires only: a. Normal Retirement Age from 55 with 5 years of credited service to 55 with 30 years of service or age 62 with 5 years of service b. Early retirement eligibility fiom of "Rule of 75" with a minimum of age 50(only for Tier B members of the former General Plan) to "Rule of 75" with a minimum of age 55 c. Change multiplier fioln 3.0% to 2.5% with a maximum accrual of 80% d. Final average monthly earnings fi-om two to five years e. Normal fonn of payment from 50% joint and survivor annuity to life annuity f. Extend rnaxitnum DROP participation &om 3 to 5 years g. Change cost-of-living adjustment (COLA) from 2.5% to 1.5% at retirement (no COLA during DROP participation) h. Employee contributions of 10% Funding Implications of Amendment An actuarial cost estimate is attached. The annual required City contribution to the System would decrease by $3,297,614 or 4.70% of Non-DROP payroll. The changes for new hires will have no immediate financial effect. Certification of Administrator I believe the amendment to be in compliance with Part VJI, Chapter 112, Florida Statutes and Section 14, Article X of the Constitution of the State of Florida. For the Board of Trustees as Plan Administrator ANNUAL REQUIRED CONTRIBUTION (ARC) A. Valuation Date B. ARC to Be Paid During Fiscal Year Ending C. Assumed Date of Employer Contrib. D. Annual Payment to Amortize Unfunded Actuarial Liability E. Employer Normal Cost I?. ARC if Paid on the Valuation Date: D+E G. ARC Adjusted for Frequency of Payments H. ARC as % of Covered Payroll - Non-DROP Payroll - Total Payroll I. Covered Payroll for Contribution Year - Noii-DROP Payroll - Total Payroll October 1,2009 Increase EE Cont. by 2% and PYear Final Average Earnings 9/3 0/20 1 1 10/1/2010 $ 6,598,080 7,023,886 13,621,966 14,759,400 21.06 % 20.26 % 70,097,549 72,835,309 October I, 2009 Valuation 9/30/2011 10/1/2010 $ 7,119,977 9,545,472 16,665,449 18,057,014 25.76 % 24.79 % 70,097,549 72,835,309 Increasd (Decreme) $ (521,897) (2,521,586) (3,043,483) (3,297,614) (4.70) % (4.53) % 0 0 ACTUARIAL VALUE OF BENEFITS AND ASSETS A. Valuation Date B. Actuarial Present Value of All Projected Benefits for 1. Active Members a. Service Retirement Benefits b. Vesting Benefits c. Disability Benefits d. Preretirement Death Benefits e. Return of Member Contributions f. Total 2. Inactive Members a. Service Retirees & Beneficiaries b. Disability Retirees c. Terminated Vested Members d. Total 3. Total for All Members C. Actuarial Accrued (Past Service) Liability per GASB No. 25 D. Plan Assets 1. Market Value 2. Actuarial Value E. Unfbnded Actuarial Accrued Liability (C-D2) F. Funded Ratio (D2 + C) G. Actuarial Present VaIue of Projected Covered Payroll H. Actuarial Present Value of Projected Member Contributions Increase/ (Decrease) $ (12,226,883) (1,726,497) (868,496) (291,642) 50,884 (15,062,634) - - - (15,062,634) (6,161;412) - (6,161,412) 0.9 % - - ' 9,744,953 October 1,2009 Valuation $ 267,872,671 27,198,459 15,5 14,626 5,25 1,473 651,313 3 16,488,542 327,327,568 9,874,613 12,914,814 350,116,995 666,605,537 551,698,377 349,416,064 419,393,718 132,304,659 76.0 %. 518,982,308 39,721,439 October 1,2009 Increase EE Cont. by 2% and PYem Final Average Earnings $ 255,645,788 25,471,962 14,646;130 4,959,83 1 702,197 301,425,908 , 327,327,568 9,874,613 12,914,814 350,116,995 65 1,542,903 545,53 6,965 349,416,064 419,393,718 126,143,247 76.9 % 5 18,982,308 49,466,392 Increasd (Decrease) $ (890,657) (136,050) (75,959) (24,75 1) - (1,127,417) - (1,127,417) (1.61) % (1.55) % 1,394,169 1.99 % 1.91 % (2,521,586) (3.60) % (3.46) % CALCULATION A. Valuation Date B. Nonnal Cost for 1. Service Retirement Benefits 2. Vesting Benefits 3. Disability Benefits 4. Preretirement Death Benefits 5. Return of Member Contributions 6. Total for Future Benefits 7. Assumed Amount for Administrative Expenses 8. Total Normal Cost % of Covered Payroll - Non-DROP Payroll - Total Payroll C. Expected Mernber Contribution % of Covered Payroll - Non-DROP Payroll - Total Payroll D. Employer Normal Cost: B8-C % of Covered Payroll - Excluding DROP Payroll - Including DROP Payroll OF EMPLOUER October 1,2009 Valuation $ 11,131,111 1,707,845 1,212,589 374,643 214,559 14,640,747 657,393 15,298,140 21.82 % 21.00 % 5,752,668 8.21 % 7.90 % 9,545,472 13.62 % 13.11 % NORMAL COST October 1,2009 Increase EE Cont. by 2% and 5-Year Final Average Earnings $ 10,240,454 1,571,795 1 ,I 36,630 349,892 214,559 13,513,330 657,393 14,170,723 20.22 % 19.46 % 7,146,837 10.20 % 9.81 % 7,023,886 10.02 % 9.64 % Attachment B 1 Gabriel Roeder Smith & Company One East Broward Blvd. 954.527.1616 phone Consultants & Actuaries Suite 505 954.525.0083 fax Ft. Lauderdale, FL 33301-1827 www.ga brielroedezcom T June 4,201 0 C g s zg3Pk9 =a;rm Mr. Ramiro Inguanzo In Human Resources Director c a * ;- City of Miami Beach 28 1700 Convention Cmter Drive 0,PT m y * $37 Miami Beach, Florida 33 139 rum 30 0s Re: ,Supplemental Actuarial Valuation Report for Additional Proposed Benefit Changes t89he Miami Beach Employees' Retirement Plan Dear Ramiro: As requested, enclosed is a 10-year projection of cost savings assuming the proposed changes listed below apply to new hires of the Miami Beach Employees' Retirement Plan. When performing these projections, we assumed that &ere would be no gains and losses or assumption changes after September 30, 2009. In actuality, &ere will likely be losses due to investments over the next four years. Normal Retirement Age of 55 plus 30 years of service or 62 with 5 years of service Early Retirement eligibility of 'Xule of 75" with a minimum of age 55 Multiplier of 2.5% for all service Final average earnings of five years Normal form of payment of life axmuity Extend DROP to 5 years Retiree COLA of 1.5% (no COLA while in the DROP) Employee contributions of 10% Since the Normal Retirement Age would be raised, we used the same normal retirement probabilities that are currently used for Tier B members. All other assumptions and provisions are the same as outlined in the October 1,2009 report. This report is intended to describe the financial effect of the proposed plan changes. No statement in this report is intended to be interpreted as a recommendation in favor of the changes, or in opposition to them. The calculations are based upon assumptions regarding fume events, which may or may not materialize. They are also based upon present and proposed plan provisions that are outlined in the report. If YOU have reason to believe that the assumptions that were used are unreasonable; that the plan provisions are incorrectly described, that important plan provisions relevant to this proposal are not described, or that conditions have changed since the calculations were made, you should contact the author of this report prior to relying on information in the report. Attachment Mr. Ramiro Inguanzo June 4,20 1 0 Page 2 of 2 If you have reason .to believe that the information provided in this report is inaccurate, or is in any way incomplete, or if you need fhrther information in order to make an informed decision on the subject matter of this report, please contact the author of the report prior to making such decision. We welcome your questions and comments. Sincerely yours, I j. Stephen ~a~mquist, MA Senior Consultant & Actuary Enclosure Gabriel Roeder Smith & Company 597 Projection of Annual Cost (Savings) Fiscal Year Ending 9/30 New Benefit Structure for New Entrants Dollar % of Amount Payroll Benefit Structure for New Entrants: e Normal Retirement Age of 55 plus 30 years of service or 62 with 5 years of service s Early Retirement eligibility of 'Rule of 75" with a minimum of age 55 ca Multiplier of 2.5% for all service Final average earnings of five years r Nod form of payment of life annuity Extend DROP to 5 years e Retiree COLA of 1.5% (no COLA while in the DROP) .o Employee contributions of 10% Note: As indicated in the cover letter, these projections have been prepared iis though there would be no experience gains or losses or assumption changes after 913012009. This assumption was made in order to keep the projections simple and uncluttered. June 4,2010 Mr. Rarniro Inguanzo Human Resources Director City of Miami Beach 1700 Convention Center Drive Miami Beach, Florida 33 139 Beach Employees' Retirement Plan Dear Ramiro: below apply to new hires of the Mi 2009. In actuality, there will likely be losses Final avera rpreted as a recommendation in favor of the changes, or in opposition to them. The calculations are based upon assumptions regarding future events, which may or may not materialize. They are also based upon present and proposed plan provisions that are outlined in the report. If you have reason to believe that the assumptions that were used are unreasonable, that the plan provisions are incorrectly described, that important plan provisions relevant to this proposal are not described, or that conditions have changed since the calculations were made, you should contact the author of this report prior to relying on information in the report. Mr. Ramiro Inguanzo June 4,2010 Page 2 of 2 J. Stephen Palmquist, ASA Senior Consultant & Actuary JSPIma Enclosure If you have reason to believe that the information provided in this report is inaccurate, or is incomplete, or if you need further information in order to make an ' matter of this report, please contact the author of the report prior to m We welcome your questions and comments. Sincerely yours, in any way the subject Projection of Annual Cost (Savings) New Benefit Structure for New Entrants Fiscal Year Ending Dollar % of 913 0 Amount Payroll Benefit Structure for New Entrants: Final average e Normal form of p Id be no experience keep the projections AGREEMENT Between ClN OF MIAMI BEACH, FLORIDA MIAMIBEACH and COMMUNICATIONS WORKERS OF AMERICA (CWA) LOCAL 3 1 78 Period Covered October 1,2009 to September 30,20 1 2 TABLE OF CONTENTS PAGE AGREEMENT ................................................................................................................................. 1 .................................................................................................................................... PREAMBLE 2 ARTICLE I . Recoqnition ............................................................... Section 1 . 1 Representation and Bargaining Unit 3 Section 1.2 Unit Description ........................................................................................... 3 ............................................................................. Section 1.3 Job Classifications/Audits 4 ARTICLE 2 . Employee and Union Riahts Section 2.1 Section 2.2 Section 2.3 Section 2.4 Section 2.5 Section 2.6 Section 2.7 Section 2.8 Section 2.9 Section 2.1 0 Section 2.1 1 Employee Rights During Meetings or Interviews ................................................ 5 Notice of Disciplinary Action ......................................................................... 5 ..................................................................... Retaliation for Exercising Rights 6 ........................ Union Membership/Right of Union to Represent Only Members 6 Access to Personnel Records ......................................................................... 7 Employee Bargaining Team .......................................................................... 7 ....................................................................................... Recording Devices 7 ..................................... Polygraph Examinations & Psychological Examinations 8 Employee Examination Review ...................................................................... 8 ............................................................................................ Meeting Leave -8 Information to be provided to Union by City .................................................... 9 ARTICLE 3 . Deduction of Union Dues .................................................................................................. Section 3.1 Check-off 10 ......................................................................................... Section 3.2 Indemnification 10 ARTICLE 4 . Grievance Procedure Section 4.1 Section 4.2 Section 4.3 Section 4.4 Section 4.5 Section 4.6 Section 4.7 Section 4.8 Definitions ................................................................................................ 11 Special Provisions ...................................................................................... 12 ................................................................... Grievances Involving Discipline 14 ................................................................................ Grievance Procedures 15 ................................................................................................ Arbitration 16 ........................................................ Differences Concerning Personnel Rules 18 ...................................................................................... Union Time Bank 18 ARTICLE 5 . No Strike and No Lockout ................................................................................................. Section 5.1 No Strike -20 ............................................................................................... Section 5.2 No Lockout 20 TABLE OF CONTENTS. continued PAGE ARTICLE 6 . Manaqement Riqhts . ............................................................................................ 21 ARTICLE 7 . Hours of Work and Overtime Section 7.1 Section 7.2 Section 7.3 Section 7.4 Section 7.5 Section 7.6 Section 7.7 Section 7.8 Section 7.9 Section 7.1 0 Section 7.1 1 Section 7.1 2 Section 7.1 3 Purpose ........................................................................................ 22 Normal Workday ...................................................................................... 22 .................................................................................... Normal Workweek 22 .................................................................................................. Overtime 22 Distribution of Overtime Opportunity ............................................................ 23 Holiday Celebration and Pay for Working on Holiday .................................... 23 .............................................................................................. Rest Periods 25 .......................................................................................... Reporting Pay -26 Come Back Pay ......................................................................................... 26 Standby Time ............................................................................................ 26 Clean-Up Time .......................................................................................... 26 No Pyramiding .......................................................................................... 26 ................................................................ Essential Personal (Hurricane Pay) 26 ARTICLE 8 . Waqes and Frinqe Benefits Section 8.1 Section 8.2 Section 8.3 Section 8.4 Section 8.5 Section 8.6 Section 8.7 Section 8.8 Section 8.9 Section 8.10 Section 8.1 1 Section 8.1 2 Section 8.1 3 Section 8.14 Section 8.1 5 Section 8.16 Section 8.17 Section 8.1 8 Section 8.19 Section 8.20 Section 8.21 Section 8.22 Section 8.23 Section 8.24 ..................................................................................................... Wages 27 ......................................................................................... Shift Differential 29 .................................................................................................. Holidays 29 .................................................................................... Bereavement Leave 29 Rate of Pay When Working Out of Classification ........................................... 30 .............................................................................................. Voting Time 30 ........................................................................................ Meal Allowance 30 Jury Duty .................................................................................................. 30 ......................................................................................... Tool Allowance 31 .................................................................................. Cleaning Allowance 31 ...................................................................................... Uniform Provision 31 .................................................................................................. Insurance 32 Pension .................................................................................................... 33 Vacation Benefits ....................................................................................... 37 Sick & Vacation Leave Accrual and Maximum Payment on Termination ............. 38 ............................................................................................. Public Safety 38 Step & Longevity Increases for Lifeguard I, Lifeguard II and Lifeguard Lieutenant .. 39 ............................................................................ Perfect Attendance Bonus 40 .............................................................................................. Lead Person 40 .................................................................................... Union Conventions 40 ............................................................................................... Orientation 40 ............................................................. Educational Leave & Tuition Refund 41 .............................................. Property Management- License(s) Maintenance 41 ................................................................................. EMT Certification Pay 41 TABLE OF CONTENTS. continued PAGE ARTICLE 9 . General Provisions Section 9.1 Section 9.2 Section 9.3 Section 9.4 Section 9.5 Section 9.6 Section 9.7 Section 9.8 Section 9.9 Section 9.10 Section 9.1 1 Section 9.12 Section 9.1 3 Section 9.14 Section 9.15 Section 9.1 6 Section 9.17 Section 9.1 8 ........................................................................................... Discrimination 42 ........................................................................... Meetings Between Parties 42 ............................................................................ Reduction in Work Force 42 ............................................................................................... Work Rules 42 ............................................................................. Probationary Employees 43 ............................................................................ "Temporary" Employees -43 Political Activities of Employees ................................................................... 44 ..................................................................................................... Safety -44 .................................................................................................... Parking 45 Glasses and Hats ...................................................................................... 46 ................................... Notification in the Event of Transfer or Contracting Out 46 Stress Reduction/Police Department's Public Safety Communications Unit .......... 47 Bulletin Boards .......................................................................................... 47 Seniority ................................................................................................... 47 Safety Shoes ............................................................................................. 48 ................................................................... Labor/Management Committee 48 Promotions ............................................................................................... -49 ............................................................................. Beach Patrol Promotions 49 ARTICLE 10 . Drua and Alcohol Testing . ........................................................................................................ Section 10.1 10.7 50 ................................................................ Section 10.8 Drug/Alcohol Random Testing 51 ........................................................................ Section 10.9 Last Chance Agreement 51 ............................................................................................... ARTICLE 1 1 . Entire Aareement 52 ............................................................................................................... ARTICLE 12 . Savinqs . 53 ARTICLE 13 . Term of Contract ................................................................................................ 54 .............................................................................................................................. EXECUTION 55 ................................................................................... APPENDIX A . COMPENSATION PLAN 57 APPENDIX B . GRIEVANCE FORM ........................................................................................... 63 AGREEMENT THIS AGREEMENT, was made and entered into on this ,2010 by and beiween the CITY OF MIAMI BEACH, FLORIDA (herein called the "City"), and the COMMUNICATIONS WORKERS OF AMERICA (herein called the "Union"). CWA - 1 606 PREAMBLE WHEREAS, the Union has been selected as the sole and exclusive bargaining representative by a majority of the employees set forth in Article 1, and has been recognized by the City pursuant to the laws of Florida as the sole and exclusive bargaining representative for said employees; WHEREAS, the City and the Union have voluntarily endorsed the practices and procedures of collective bargaining as a fair and orderly way of conducting relations between the City and the employees covered by this Agreement insofar as such practices and procedures are appropriate to the obligations of the City to retain the right effectively to operate the various departments of the City and are consonant with the paramount interests of the public; WHEREAS, it is the intention of the parties to this Agreement to provide, where not otherwise mandated by Statute, for the salary schedule, fringe benefits and conditions of employment of the employees covered by this Agreement, to provide for the continued and efficient operation of the various departments of the City, and to provide an orderly and prompt method of handling and processing grievances; NOW, THEREFORE, the parties agree with each other as follows; CWA - 2 607 ARTICLE 1 RECOGNITION Section 1 .l. Representation and Barqaininq Unit. - The City recognizes the Union as the sole and exclusive representative of all employees in the unit described below. Section 1.2 Unit Description. -All regular, full-time employees in the following classified job descriptions, excluding all managerial, supervisory, confidential, temporary, and casual employees, and employees currently represented in other certified bargaining units: Account Clerk I Account Clerk II Account Clerk Ill Administrative Aide I Administrative Aide II Administrative Assistant I Administrative Secretary Air Conditioning Mechanic Building lnspector Buyer Carpenter I Carpenter II Clerk Clerk Typist Code Compliance Administrator Code Compliance Officer I Code Compliance Officer II Commission Reporter I Commission Reporter II Communications Operator Complaint Operator ll Crime Analysis Specialist Crime Scene Technician I Crime Scene Technician II Data Entry Clerk Dispatcher Dispatcher Trainee Duplicating Equipment Operator Electrical lnspector Electrician Elevator lnspector Engineering Assistant I Engineering Assistant II Engineering Assistant Ill Engineering lnspector Field lnspector I Field lnspector II Finance Specialist I Finance Specialist II Finance Specialist Ill Lifeguard I LiFeguard II Lifeguard Lieutenant Mason Masonry Helper Mechanical lnspector Meter Analyst Painter Parking Dispatcher Parking Enforcement Specialist I Parking Enforcement Specialist I1 Parking Meter Technician I Parking Meter Technician II Permit Clerk I Permit Clerk II Planning Technician Plumber Plumbing lnspector Pool Guard I Pool Guard II Police Fleet Specialist Police Photographer Police Records Technician Property Evidence Technician I Property Evidence Technician II Public Safeiy Specialist Revenue Processor I Revenue Processor II CWA - 3 608 Section 1.3 Job Classifications/Audits. a) The City and the Union agree that in the event the City creates a new job classification within the bargaining unit, or substantially changes the duties of a iob classification which remains within the bargaining unit, or combines iob classifications within the bargaining unit as a result of job audits, or market studies, the City will bargain with the Union concerning the appropriate rate of pay for the new, changed, or combined iobs. However, in no event, will the position be paid at a lower rate of pay or at a lower classification. Until agreement is reached or impasse is resolved, affected employees will be paid as determined by the City. Upon agreement as to the rate of pay for the new, changed, or combined iob(s), the agreed rate shall be retroactive to the date that the City filled the positions. b) The parties agree that they will periodically review the job classifications and, if appropriate, file a joint petition to Public Employees Relation Commission (PERC) to determine which positions should be in or out of the bargaining unit. c) The City recognizes the life safety work that lifeguard I, Lifeguard II and Lifeguard Lieutenants perform is of a public safety service nature, however, the parties further agree and understand that there is no assumption of additional compensation or benefits based on this recognition. CWA - 4 609 ARTICLE 2 EMPLOYEE AND UNION RIGHTS Section 2.1 Employee Riqhts - Durinq - Meetinqs - or Interviews. a) An employee shall be entitled to request Union representation at all meetings where the representative of the City intends to seek to gain information from the employee which may become a part of the written disciplinary record or may result in a written warning/reprimand of the employee. b) The employee shall be informed of the nature of the meeting, the alleged conduct, and if requested, be given a reasonable period of time prior to the meeting to contact and consult with the Union. Nothing contained herein shall preclude an employee from legal representation in the event of a criminal investigation. c) At the request of the employee, the City will advise the Union President of all such meetings with the employee and the Union President will arrange to have a Union Representative present. d) All meetings will be held in the City at a reasonable hour during the employee's shift or contiguous to the shift on the clock, unless an emergency or serious condition prevents such action. e) This provisions of Article 2, Section 2.1 shall be subject to the Union Time Bank as described in Section 4.8. Section 2.2 Notice of Disciplinary Action. a) No reprimand, termination, suspension, demotion, punitive transfer, or punitive reassignment which results in loss of pay shall be taken against an employee unless he/she is notified of the action, and the reason(s) for such recommended action given in writing specifically prior to the action. Notice in writing shall be given to the employee as soon as practicable. b) If such disciplinary action is taken against any employee which results in loss of pay or monetary benefits or denial of annual merit increase, Management will adhere to progressive discipline: CWA - 5 61 0 Written "verbal warnings" shall not be kept in departmental or Human Resources files. If the employee is not disciplined for the same incident again during a calendar year, the written "verbal warning" shall not be used for his/her Annual Performance Evaluation report. C) The employee must have received a Special Report during the evaluation period informing him/her of the less than satisfactory performance and what action should be taken for improvement. A copy of the Special Report must be submitted with the Annual Evaluation Report. d) The employee must have received a warning during the evaluation period at least sixty (60) but no more than ninety (90) days prior to an employee receiving a less than satisfactory performance. If the unsatisfactory work performance occurred prior to ninety (90) days before the anniversary increase was due, the warning must state what action the employee must take to correct the unsatisfactory performance. A copy of the warning shall be submitted with the Annual Evaluation Report. e) Nothing in this section shall be intended to contravene public record law. Annual merit increases are not automatic and may be denied. The employee's Department will be responsible for monitoring the progress or lack of progress on the employee's effort to correct the problem which led to the unsatisfactory rating. Such follow-up shall be every ninety (90) days after the corrective process commenced. Upon correction of the problem, the employee will be granted the annual increase. Section 2.3 Retaliation for Exercisina Riahts. - No employee, supervisor or management person shall be retaliated against or be threatened with any such retaliation by reason of his/her exercise of any rights set forth in this Agreement. Section 2.4 Union Membership-Riaht of Union to Represent Only Members. -The City and the Union agree not to interfere with the right of employees to become or not become members of the Union, and further, both parties agree that there shall be no discrimination, interference, restraint, or coercion against any employee because of Union membership or lack of it; except that the Union may process grievances for, advise, CWA - 6 61 1 or participate in meetings or interviews on behalf of members only. Human Resources will inform the Union of new hires on a monthly basis. Section 2.5 Access to Personnel Records. - Upon reasonable request, an employee shall have the right, in the presence of an appropriate representative of the employer, to review and copy all or any portion of the employee's official records which are or may become a part of the personnel file maintained by the Human Resources Department and his/her department. The employer may charge a reasonable fee of fifteen cents ($. 15) per page for such copying. Employees will be provided with a copy of records or letters that are to be placed in the employee's Personnel File maintained in either Human Resources or in the Department personnel file, which make specific, derogatory comments about the employee's work performance. This shall be done by the Department prior to the filing and the employee shall be asked to sign his/her acknowledgement. The employee shall be allowed to place in his personnel file a response of reasonable length to anything contained therein which the employee deems to be adverse. No anonymous material shall be placed in an employee's personnel file. It is specifically understood that this provision shall not in any way alter or modify the Personnel Rules concerning tests or examinations and the period of time which an employee has to review tests or examinations which he/she has taken. Section 2.6 Employee Barqaininq Team. -The City agrees that the Union shall be permitted up to five (5) employees to serve on a collective bargaining team in any collective bargaining negotiations with the City, and that such persons shall be compensated at their regular salary when negotiations are during regular working hours. The Union may appoint alternates who shall be compensated instead of regular members of the collective bargaining team for those periods of time when they actually serve on the bargaining team. Attendance at negotiations for a successor agreement shall not be counted against the union time bank. Section 2.7 Recordina Devices. - No mechanical recording devices of any kind shall be used in discussions between department heads, division heads, or supervisors and employees unless the parties mutually agree otherwise. It is specifically understood that this subsection shall not in any way apply to any City Board. CWA - 7 61 2 Section 2.8 Polyqraph - - Examinations and Psycholoqical Examinations. A) Polygraph - Examinations 1) A bargaining unit member may be required to submit to a polygraph test, or any other electronic examination, the purpose of which is to test the truthfulness of the employee when investigating a work place theft only when there is reasonable suspicion to believe that the employee is involved. 2) It is understood that bargaining unit members may be required to take a polygraph examination when such examination is a precondition of their initial employment with the City. A bargaining unit member may be required to take a polygraph for promotion, or transfer into a department that has required polygraph tests. 3) Such polygraph test shall be conducted by an independent, professional examiner as selected by the City. Nothing contained in the Agreement shall abridge the rights of individual employees or the rights of the City under Florida law. B) Psycholoqical Examinations 1) At the City's request, the Union agrees to appear before the Personnel Board and jointly submit with the City a proposal to include a psychological examination for Lifeguard I applicants. Psychological examinations shall be in English and Spanish. Section 2.9 Employee Examination Review. - An employee shall have the right in the presence of an appropriate representative of the employer to examine and/or review his/her own completed promotional examination as provided in Florida Statutes. Section 2.10 Meeting Leave. - The Union shall have the right to send up to two (2) of the four (4) designated Union representatives, authorized with pay for time he/she would have otherwise been working, to attend City Commission Meetings, Personnel Board Meetings, or Pension Board Meetings, when a matter relating to the collective bargaining agreement is on the Agenda for such meeting, and if prior approval has been given by the representative's supervisor. The representative is to return to work immediately after the City Commission addresses the Agenda item. This section shall be subiect to the Union Time Bank in Section 4.8. CWA - 8 61 3 Section 2.1 1 Information To Be Provided To Union By City. - The City will provide to the Union one (1) copy of the following: a) A listing of all bargaining unit employees on a disk and hard copy to include the employee's name, address, I.D. number, department assignment, and date of hire, except where such information is exempt from the definition of public records as established by Florida Statutes 1 19.07 (3) (i). b) The "Personnel Rules" of the City of Miami Beach. C) "Classification Specifications1' for all bargaining unit classifications. d) "Agenda" (as distributed to all department heads and news media) for each City Commission Meeting. e) Salary Ordinance amendments affecting bargaining unit classifications. CWA - 9 61 4 ARTICLE 3 DEDUCTION OF UNION DUES Section 3.1 Check-off. - Upon receipt of a lawfully executed written authorization from an employee, which is presented to the City by an official designated by the Union in writing, the City agrees during the term of this Agreement to deduct the uniform Union dues and assessments of such employees from their pay and remit such deductions to the Union Treasurer; provided, however, that such authorization is revocable at the employee's will upon thirty (30) days' written notice to the City and the Union. The Union will notify the City thirty (30) days prior to any change in its dues and assessments structure. The Union shall pay, during the term of this Agreement, the amount of two hundred dollars ($200) dollars annually as a service charge for implementing and processing the abovestated dues and assessments deductions. The Union shall make the payment on or before April 1 of each year of the Agreement. The Union and the City agree to develop an electronic/magnetic media reporting system for deduction of dues within six (6) months of ratification of the contract. Section 3.2 Indemnification. -The Union agrees to indemnify and hold the City harmless against any and all claims, suits, orders or iudgments brought against the City under the provisions of this Article; provided, however, this Section shall not apply to any act or failure to act on the part of the City resulting from its own willful behavior. In the event of an error in dues deductions, transfer should be transmitted thirty (30) days after written notification. CWA- 10 61 5 ARTICLE 4 GRIEVANCE PROCEDURE Section 4.1 Purpose - It is recognized that complaints and grievances may arise between the bargaining agent and the employer or between the employer and any one or more employees concerning the application or interpretation of any provision of this Agreement. The employer and the bargaining agent desire that these grievances and complaints be settled in an orderly, prompt and equitable manner so that the efficiency of the City of Miami Beach may be maintained and the morale of employees not be impaired. Every effort will be made by the employer, employees, and bargaining agent to settle the grievances at the lowest level of supervision. The initiation or presentation of a grievance by an employee will not adversely affect his standing with the employer. No reprisals of any kind will be made by agents of the City against the grievant(s) or the Union's representatives by reason of such participation in the processing of their grievance. Similarly, the Union, its officers or agents, shall not impede, malign, or delay the City or management's representative in their duties during the investigation or processing of said grievance. In order to investigate, discuss and process grievances, the designated Union representatives and witnesses must request permission 24 hours in advance (except in emergencies), and report their return to work upon conclusion of the use of time for grievance matters. All such time away from work by Union representatives shall be deducted from and is subject to the Union's Time Bank. Bargaining unit employees covered by this Agreement shall no longer be able to file an appeal via the City's Personnel Board procedure for any disciplinary matter. Section 4.2 Definitions. 1) Grievance - a grievance is a dispute involving the interpretation or application of any provision of this Agreement, excluding matters not covered by this Agreement or where Personnel Board rules and regulations are involved; provided, that disciplinary actions, including discharges, but not including verbal warnings, may be grieved under this Article further provided that the reasonableness of new or changed work rules and whether there has been reasonable application of old or new work rules and lay-off provisions of the Personnel Board's rules and regulations, may be grieved under this Article. The reasonableness of work rules which were negotiated is not grievable. CWA- 11 61 6 2) Aggrieved Employee(s) - the employee(s) filing the grievance or causing the grievance to be filed. 3) Immediate Supervisor - the individual having immediate supervisory authority over the aggrieved employee(s). 4) Division Head - the head of the division in which the aggrieved employee(s) works. 5) Department Head -the head of the department in which the aggrieved employee(s) works. 6) Days - as referred to in the time limits herein, days shall mean working days (i.e., Monday through Friday, exclusive of scheduled holidays). Section 4.3 Special Provisions. a) The time limits set forth herein may be extended and/or modified by mutual written agreement. b) If the employer violates any time limits, the bargaining agent may advance to the next step without waiting for the employer's response. If the Union, or the grievant(s) fail to initiate or move the grievance to the first or next step of the grievance procedure, as set forth herein (time limits), it shall be untimely and considered withdrawn. c) The parties acknowledge that, as a principle of interpretation, employees are obligated to work as directed while grievances are pending; except where the safety of a working condition or health of the employee(s) is the basis of the grievance. d) Aggrieved employees, a reasonable number of employees, not to exceed three (3), called as witnesses, and a specifically designated Union representative, shall be allowed to be present at the various Formal steps of the grievance procedure, including arbitration. One witness may attend without loss of pay for those actual hours during his/her regular work schedule. Any other witnesses, not to exceed two (2) in total, may attend provided that there is adequate time to cover such work time in the Union Time Bank. The Union shall notify the City Manager's designee for Labor Relations of who it wishes to call, and then Management will schedule the witnesses to be available as needed. If there are circumstances CWA- 12 61 7 where more than three (3) witnesses are needed, the Union will make a request to the City Manager's designee for Labor Relations, who will make the final decision. e) The Union shall designate to the City the names of the seventeen (1 7) Union representatives, plus one individual who shall be designated as the Chairman of the Grievance Committee, whose function shall be to assist unit members in the processing of complaints and grievances under this procedure. At Step I only one (1) of the designated Union representative will be allowed at any grievance meeting. At Step II & Ill, only two (2) of the designated Union representatives will be allowed at any grievance meeting. All such attendance time shall be deducted from and subject to the Union's Time Bank as set forth in Section 4.8, including, but not limited to, the specification of representation by four (4) members of the executive board. City of Miami Beach employees other than those designated Union representatives (as set forth in Section 4.8) shall not be granted time off from work without loss of pay for the processing of grievances. The specifically designated Union Representatives shall be permitted during working hours without loss of pay to investigate, discuss, and process grievances in their respective areas, provided the following conditions are met: 1) that they first secure the permission of their immediate supervisor (such permission shall not be unreasonably denied); 2) that the supervisor shall be notified twenty-four (24) hours prior to investigating, discussing, and processing grievances on City time (shorter notice may be given in the case of emergencies); and 3) that the representative will report his/her return to work to the immediate supervisor upon conclusion of the use of time for grievance matters. 4) that there is sufficient time in the Union Time Bank to cover the entire period of the representative's absence from work. f) An employee may request Union representation in accordance with the provisions of this Agreement at each and every step of the grievance procedure set forth in this Agreement. CWA- 13 61 8 g) The bargaining agent, in accordance with its own lawful internal rules, shall have the sole and exclusive right to determine whether any grievance warrants processing through this procedure. In the event the bargaining agent determines at any step of the grievance procedure that a grievance does not warrant processing, a written notification of that determination shall be sent to the City Manager's designee for Labor Relations. The employee(s) involved shall then be free to process it themselves or through legal counsel. h) If the bargaining agent has declined to process or further process any grievance presented to it, and if any employee, or group of employees, desires to process it or further process their own grievance through this procedure, the bargaining agent shall be sent copies of all written communications sent by the employer or the employee(s) involved. Further, nothing herein contained shall be construed to prevent any public employees from representing, at any time, their own grievance in person or by legal counsel to the employer, and having such grievance(s) adjusted without the intervention of the bargaining agent, provided however, that the adiustment is not inconsistent with the terms of the collective bargaining agreement then in effect; and provided further that the bargaining agent has been given notice and a reasonable opportunity to be present at any meeting called for the resolution of such grievances. i) The bargaining agent shall not be responsible for any costs attendant to the resolution of any grievance(s) it has not processed. i) The parties acknowledge that multiple grievances may be combined at any stage of the grievance procedure where the class of aggrieved employees is clearly defined and the subject matter of the grievances is the same or similar. k) At Step I, all formal grievances presented shall include the date of the alleged violation, the specific article and section grieved; a brief description of the grievance, and the remedy requested. Secfion 4.4 Grievances lnvolvinq Discipline. - Discipline shall be only for just cause and shall include written reprimand, suspension, or dismissal. A verbal warning is not disciplinary and is not grievable. Any regular employee who is disciplined, and who has completed the required probationary period, may file a grievance pursuant to the provisions of this Article. The Union or employees not represented by the Union in a grievance or who are not members of the Union may file discipline grievances at either Step I or II within fifteen (1 5) days of the written notice of action. CWA- 14 61 9 Section 4.5 Grievance Procedures: STEP I a) The grievance shall be filed within fifteen (1 5) days of the alleged violation, interpretation or application of the terms of employment set forth in this Agreement. b) The grievance shall be filed with the division head in writing, on the Grievance Form as attached in the appendix. c) The division head or his/her designee shall note the date of receipt of the grievance, and shall seek to meet the aggrieved employee at a mutually agreeable time within ten (10) days of receipt of the grievance. d) Within five (5) of the meeting, the division head shall render a decision and shall immediaiely communicate that decision in writing to the aggrieved, the bargaining agent, and the department head. If the decision is to deny the grievance, the reasons for denial shall be specifically stated. e) The aggrieved employee(s) and/or the bargaining agent may appeal the decision of the division head within seven (7) days of receipt of the decision. f) The appeal shall be submitted in writing to the department head. Failure to appeal the decision of the division head within seven (7) days shall constitute acceptance by the aggrieved employee(s) and the bargaining agent of the decision as being a final resolution of the issues raised. STEP II a) If the aggrieved employee(s) appeals the decision, the department head shall schedule a meeting to take place at a mutually agreeable time not more than five (5) days after receipt of the appeal. The exclusive bargaining agent shall be advised in writing as to the date of the proposed meeting, and shall have the right to send one (1) observer to the proceedings if the bargaining agent is not involved in the actual representation of the aggrieved employee(s). CWA- 15 620 b) Within five (5) days of the meeting, the department head shall render a decision and shall immediately communicate that decision in writing to the aggrieved employee(s), and to the bargaining agent. If the decision is to deny the grievance, the reasons for denial shall be specifically stated. c) The aggrieved employee(s) may appeal the decision of the department head within seven (7) days of receipt of the decision. The appeal shall be communicated in writing to the City Manager's designee for Labor Relations. Failure to appeal the decision of the department head within seven (7) days shall constitute acceptance by the aggrieved ernployee(s) and the bargaining agent of the decision as being a final resolution of the issues raised. STEP Ill a) If the aggrieved employee and/or a representative of the bargaining unit appeals the decision, the City Manager, or his/her designee for Labor Relations, shall schedule a meeting to take place at a mutually agreeable time not more than twelve (1 2) days after receipt of the appeal. b) Within twelve (1 2) days of the meeting, the City Manager or his/her designee for Labor Relations shall render a decision and shall immediately communicate that decision in writing to the aggrieved employee and the bargaining agent. If the decision is to deny the grievance, the reasons for denial shall be specifically stated. c) Failure to appeal the decision rendered in Step Ill within twelve (1 2) days by notice of intent to submit to arbitration shall deem the decision at Step Ill to be final and no further appeal will be pursued. Section 4.6 Arbitration. - if the employer and the aggrieved employee(s) and/or the bargaining agent fail to resolve the grievance, the grievance may be submitted to final and binding arbitration by an impartial neutral mutually selected by the parties. a) Notice of intent to submit the grievance to arbitration shall be communicated in writing by the Union President or his designee to the office of the City Manager's designee for Labor Relations within twelve (1 2) days of the receipt of the decision at Step Ill. Any request to go to arbitration on behalf of the employer is to go to the Union President. CWA- 16 621 b) Within thirty (30) days after written notice of submission to arbitration a request for a list of five (5) or seven (7) arbitrators shall be submitted to the Federal Mediation and Conciliation Service (FMCS). Both the City and the Union shall have the right to strike two (2) names from the panel of five (5) or three (3) names from the panel of seven. The City and the Union agree to alternate as to who shall strike the first name. The arbitrator remaining on the panel after both parties have utilized their two (2) strikes from a panel of five (5) or three (3) strikes from a panel of seven (7) shall be the selected arbitrator. Upon receipt of the panel of arbitrators from the FMCS, the City and the Union shall have thirty (30) days to complete the striking process. The arbitrator shall be notified of his/her selection within five (5) days by a joint letter from the City and the Union requesting that he/she schedule a date and place for a hearing, subject to the availability of the City and the Union. c) Prior to the commencement of the arbitration, the arbitrator may hold a pre-hearing conference to consider and determine: 1. the simplification of the issues; 2. the possibility of obtaining stipulation of facts and documents that will avoid unnecessary proof; 3. such other matters as may aid in the disposition of the grievance; 4. matters of iurisdiction or applicability. d) The arbitrator shall have no right to amend, modify, ignore, add to, or subtract from the provisions of this Agreement. He/She shall consider and decide only the specific issue submitted to him/her in writing by the City and the Union, and shall have no authority to make a decision on any other issue not submitted to him/her. The arbitrator shall submit in writing his/her decision within thirty (30) days following close of the hearing or the submission of briefs by the parties, whichever is later, provided that the parties may mutually agree in writing to extend said limitation. The decision shall be based solely upon his/her interpretation of the meaning or application of the express terms of this Agreement to the facts of the grievance presented. Consistent with this Section, the decision of the arbitrator shall be final and binding. CWA- 17 622 e) In the event that an employee desires, on his/her own behalf, to process his/her grievance to arbitration, the bargaining agent reserves the right to intervene in the arbitration proceeding up to and including the full right to participation as a pa*. f 1 All arbitration costs, including the cost of stenographic reporting of the arbitration hearing if agreed to by the parties, shall be divided equally between the employer and the bargaining agent, or if the bargaining agent has determined not to process the grievance through arbitration, between the employer and the employee(s). Each party will pay the cost of presenting its own case. Section 4.7 Differences Concerninq Personnel Rules. - A difference of opinion with respect to the meaning or application of the Personnel Rules which directly affects wages, hours, or working conditions may be submitted by the employee or the Union President (or his/her designee) to the City Manager's designee for Labor Relations within ten (1 0) days after the occurrence of the event giving rise to the difference of opinion. The City Manager's designee for Labor Relations shall discuss the matter with the employee and the Union Representative at a time mutually agreeable to the parties. If no settlement is reached at this meeting, the employee retains his/her right to appeal to the Personnel Board under the statutory procedures governing such appeals. Section 4.8 Union Time Bank. The CWA represented by four (4) members of the Executive Board, as determined by the President, shall have the right to conduct union business (under the conditions described in this Section) through the use of a time bank. The Time Bank hours for the period covering October 1, 2009 through September 30,201 0 shall be 3,000 hours. Effective October 1,201 0 the Time Bank shall be 1,500 hours each contract year. Unused time bank hours from one contract year shall rollover to the next contract year, not to exceed a total maximum of 1,500 hours per contract year. No more than two (2) of the designated Union representatives may use time from the Union Time Bank at the same time. The President or designated union representative of the CWA shall provide a minimum of twenty-four (24) hours notice to the appropriate Department Director or designee for any leave to be granted. Such leave shall not be granted unless previously approved in writing by the CWA President. Time for attendance at negotiations for a successor agreement is addressed in Article 2.6. of this Agreement. The time bank shall be used for union representation as outlined in Section 2.1,2.10, and Article 4 of this agreement. All other union convention time other than union convention time referred in Section 8.22 shall be part of the Union Time Bank. CWA- 18 623 Representatives must return to work immediately upon conclusion of the meeting that was the reason for the approved Union time off. If the Union Time Bank is exhausted, no more paid time off to conduct union business on City time shall be requested, paid or approved. Attendance at a pension board meeting by a designated union representative as a pension board member shall not be counted against the union time bank. CWA- 19 624 ARTICLE 5 NO STRIKE AND NO LOCKOUT Section 5.1 No Strike. - The parties hereby recognize the provisions of Chapter 447, Florida Statutes, which define strikes, prohibit strikes, and establish penalties in the case of a strike and incorporate those statutory provisions herein by reference. The parties further agree that the City shall have the right to discharge or otherwise discipline any employee(s) who engage(s) in any activity defined in Section 447.203(6), Florida Statutes. Accordingly, the Union, its officers, stewards and other representatives agree that it is their continuing obligation and responsibility to maintain compliance with this Article and the law, and to encourage and direct employees violating this Article or the law to return to work, and to disavow the strike publicly. Section 5.2 No Lockout. -The City will not lockout any employees during the term of this Agreement as a result of a labor dispute with the Union. CWA - 20 625 ARTICLE 6 MANAGEMENT RIGHTS It is recognized that except as stated herein, it is the right of the City to determine unilaterally the purpose of each of its constituent agencies, set standards of service to be offered to the public, and exercise control and discretion over its organization and operations. The Union recognizes the sole and exclusive rights, powers, and authorities of the City further include but are not limited to the following: to direct and manage employees of the City; to hire, promote, transfer, schedule, assign, and retain employees; to suspend, demote, discharge or take other disciplinary action against employees for just cause; to relieve employees from duty because of lack of work, funds or other legitimate reasons; to maintain the efficiency of its operations, including the right to contract and subcontract existing and future work; to determine the duties to be included in lob classifications and the numbers, types, and grades of positions or employees assigned to an organizational unit, department or project; to assign overtime and to determine the amount of overtime required; to control and regulate the use of all its equipment and property; to establish and require employees to observe all its rules and regulations; to conduct performance evaluations; and, to determine internal security practices; provided however, that the exercise of any of the above rights shall not conflict with any of the express written provisions of this Agreement. The City agrees that, prior to substantial permanent layoff of bargaining unit members, it will advise the Union. If, in the sole discretion of the City it is determined that civil emergency conditions exist, including but not limited to riots, civil disorders, hurricane conditions, or similar catastrophes, the provisions of this Agreement may be suspended by the City Manager or his/her designee for Labor Relations during the time of the declared emergency, provided that wage rates and monetary fringe benefits shall not be suspended. Should an emergency arise, the Union President shall be advised as soon as possible of the nature of the emergency. ARTICLE 7 HOURS OF WORK AND OVERTIME Section 7.1 Purpose. -This Article is intended to define the normal hours of work and to provide the basis for the calculation and payment of overtime. Section 7.2 Normal Workday. - The normal workday shall consist of eight (8) or ten (1 0) consecutive hours of work, exclusive of the lunch period, in a twenty-four (24) hour period. Subiect to the above, the City shall determine all aspects of the scheduling of Ocean Rescue employees, including, but not limited to, the daily and weekly shifts of individual employees and/or group of employees (including the start and finish times of each shift and the start and finish times of individuals within a shift (staggered shifts)) and days off, provided that any change to scheduling is made consistent with notice and seniority requirements contained in this agreement when applicable. The City may, on an as needed basis, supplement the LiFeguard workforce with such "temporary employees" as outlined in Section 9.6. Section 7.3 Normal Workweek. -The normal workweek shall consist of forty (40) hours per week, and such additional time as may, from time to time, be required in the iudgment of the City to serve the citizens of the City. The workweek shall begin with the employee's first regular shift each week. No schedule changes involving shifts or days off shall be made without at least ten (1 0) workdays' notice to the employees involved, provided that in an emergency, or other such reason iustifying a temporary schedule change only, such notice as is practicable shall be given. The implementation of this provision shall not be arbitrary and capricious. Section 7.4 Overtime. - It is understood that the City may require necessary and reasonable overtime for unit members. For all hours worked in excess of forty hours during an employee's workweek, the City will pay the employee one and one-half (1-1 /2) times the employee's straight time hourly rate of pay. Annual and Holiday leave shall be considered as time worked for the purpose of computing overtime; but sick leave shall not for the time period of October 1, 2009 through September 30, 201 0. This provision shall terminate on September 30, 201 0. Effective October 1, 201 0, only actual hours worked shall be considered for the purposes of computing overtime. For example, paid leave including but not limited to any Annual, Holiday, Sick, Birthday, Floater, CWA - 22 627 Bereavement, Compensatory Leave, Administrative Leave shall not be considered as time worked for the purpose of computing overtime. For all hours worked on an employee's seventh consecutive workday within his/her workweek, the City shall pay two (2) times the employee's straight time hourly rate of pay, provided the employee has actually worked his/her full shift on each of the six (6) preceding workdays. This provision shall not be applicable if a substantial number of employees are scheduled to work seven (7) consecutive workdays because of an emergency such as a hurricane. If an employee, scheduled to work, works more than his/her normal hours on a holiday, the excess hours shall be paid at the holiday rate. Section 7.5 Distribution of Overtime Opportunity. - Opportunity to work overtime shall be distributed as equally as practicable among employees in the same iob classification in the same work section and area starting with the most senior employee, provided the employees are qualified to perform the specific overtime work required. Seniority for the purpose of this subsection shall mean length of continuous service with the City. Overtime opportunities shall be accumulated on adequate records (which shall be available to the employees) and offered overtime not worked shall be considered as worked in maintaining these records. If any qualified employee establishes that he/she has not received his/her fair share of overtime opportunities, such employee shall have first preference to future weekly overtime work until reasonable balance is recreated. The overtime list shall be updated on a monthly basis and posted. If no one is willing to voluntarily work the overtime requested, then the City may require the least senior employee to work the overtime necessary. On a particular job, an employee may be asked to complete work in progress during overtime when hazardous conditions are present. Section 7.6 Holiday Celebration and Pay for Working on Holiday. For the time period of October 1, 2009 through September 30, 201 0, the following shall apply: a) (See Section 8.3. Holidays) Whenever any of the holidays listed in Section 8.3. Holidays of this Agreement fall on a Sunday (or Monday for employees whose regular day off is Monday), the following workday shall be observed as the official holiday; whenever any of the above listed holidays occur on a Saturday (or Friday for employees whose regular day off is Friday), the preceding workday shall be observed as the official holiday. In such cases, the day on which the holiday is observed shall be considered to be the paid holiday and not the regular day. CWA - 23 628 City celebrated holidays that fall on Tuesday, Wednesday, or Thursday, and said holiday is on the employee's regular day off, then the employee shall receive a day's pay for said holiday, if they meet all of the qualifications contained herein. b) To be eligible for a paid holiday, an employee must report for scheduled work on the holiday, on the last scheduled day preceding the holiday and the first scheduled day following the holiday unless such absences are excused. Excused absences are defined as: 1) an employee calls in sick and is eligible to receive paid sick leave, and who is granted sick leave usage; 2) approved annual leave; 3) floating holiday; 4) birthday. c) Whenever an observed holiday occurs on an employee's scheduled day off and the employee does not work thereon, the employee shall receive for his/her normal workday a straight time hourly rate of pay for the holiday. d) Work on a holiday falling on an employee's regularly scheduled workday, he/she shall receive holiday pay for the holiday and time and one half for the hours worked. e) Should an employee be required to work on a holiday falling on his/her day off, he/she shall receive holiday pay for the holiday and shall receive pay at double time and one half rate for the hours worked. f ) Failure to report for work on, before, after, or during the holiday after having been scheduled to work on such holiday shall be iust cause for denial of holiday pay. g) A holiday which is observed during an employee's regularly scheduled workweek shall be considered as time worked for the purpose of computing overtime. Effective October 1, 201 0, the following shall apply: a) (See Section 8.3. Holidays) Whenever any of the holidays listed in Section 8.3. of this Agreement fall on a Sunday, the following workday shall be observed as the official holiday; whenever any of the above listed holidays occur on a Saturday, the preceding workday shall be observed as the official holiday. In such cases, the day on which the holiday is observed CWA - 24 629 shall be considered to be the paid holiday and not the regular day. b) To be eligible for a paid holiday, an employee must report for scheduled work on the holiday, on the last scheduled day preceding the holiday and the first scheduled day following the holiday unless such absences are excused. Excused absences are defined as: 1) an employee calls in sick and is eligible to receive paid sick leave, and who is granted sick leave usage; 2) approved annual leave; 3) floating holiday; 4) birthday. C) Failure to report for work on, before, after, or during the holiday after having been scheduled to work on such holiday shall be iust cause for denial of holiday pay. d) A holiday which is observed during an employee's regularly scheduled workweek shall not be considered as time worked for the purpose of computing overtime, pursuant to Section 7.4 herein. e) An employee who is not scheduled to work on an observed holiday, and does not work, shall receive holiday pay for their regularly scheduled hours that day (i.e. 8 hours or 10 hours). f 1 If an employee woks on their regularly scheduled day, and it is also an observed holiday, the employee shall receive holiday pay at '/2 the regular rate of pay for all hours worked. For example, if an employee is scheduled to work, and does work, 8 hours, they shall receive 4 hours of holiday pay (i.e. 8 hours at straight time for working, plus 4 hours for holiday pay, for a total of 12 hours.) g) If an employee's regularly scheduled day off is an observed holiday, and they are required to work that day, they shall receive holiday pay at straight time for all hours worked. For example, an employee's regularly scheduled day off is a Tuesday, which is also an observed holiday. The employee is called in to work that day. The employee shall be paid 8 hours of straight time For working, plus 8 hours of holiday pay, for a total of 16 hours. CWA - 25 630 Section 7.7 Rest Periods. Employees may take a rest period of fifteen (1 5) minutes for each half day of work. Daily rest periods shall be scheduled by the supervisors. Whenever practicable, the rest period will be scheduled approximately mid-point in the first onehalf of the employee's regular work shift and in the second half of the employee's regular work shift. Employees who extend their rest period may be subiect to disciplinary action. For each additional four (4) hours worked beyond the regular shift, an additional fifteen (1 5) minute rest period shall be provided. Employees in PSCU shall enioy a fifty (50) minute meal break and a ten (1 0) minute rest period which, upon request of an employee and with the approval of the supervisor, will be combined into a sixty (60) minute meal break. Section 7.8 Reportinq Pay. -An employee who reports to work as scheduled will be guaranteed eight (8) hours of work or eight (8) hours of pay; (or, for those on ten-hour days, ten hours of work or ten of pay); provided, however, that supervisors may assign employees to perform any reasonable work. Section 7.9 Come Back Pay. - An employee who is scheduled or called in to work outside of his/her normal hours of work will be guaranteed four (4) hours of work or four (4) hours of pay. It is understood that call-in pay does not apply to work which is contiguous to his/her regularly scheduled shift. Employees who are required to attend Court shall only be required to return to Division Headquarters if their Court appearance has been scheduled during their normal workweek. Section 7.10 Standby Time. Employees assigned to standby shall receive two (2) hours per day of straight time as a standby bonus unless they receive comeback pay. Standby Pay shall be offered to employees in the same manner and conditions as in Article 7.5 Distribution of Overtime. Section 7.1 1 Clean-Up Time. -At the end of the shift, skilled trades employees and members of the beach patrol and Pool Guards shall be allowed fifteen (1 5) minutes clean-up time; provided that they may also be required to perform other work tasks during such time if it does not interfere with clean up. However, Pool guards cannot leave the iob site during this clean-up time. Section 7.1 2 No Pyramidinq. - Premium pay and overtime shall not be paid for the same hours. The employee shall receive the greater of the two alternative premiums. Section 7.1 3 Essential Personnel (Hurricane Pay). When the City declares an emergency due to a named hurricane and other events and non-essential personnel employees are advised to stay home with pay and essential personnel employees are ordered to work, essential personnel employees shall be paid at the rate of one and onehalf of their straight hourly wages for all hours worked for up to three (3) days. CWA - 26 631 ARTICLE 8 WAGES AND FRINGE BENEFITS Section 8.1 Waaes Waue - Increase. No bargaining unit member who left the City's employ prior to the date of ratification of this Agreement by the Commission will be eligible for any wages or benefits under this Agreement. Both parties agree, if the MBERP Actuary and the State of Florida Division of Retirement do not confirm in writing that the City will realize a pension savings for the Actuarial Required Contribution (ARC) payable on October 1,201 0 associated with the pension changes for CWA employees, then effective upon ratification of this Agreement, all CWA employees will experience a temporary 12 month wage reduction of 3.5%. a,) Effective the first (1") full pay period ending in October 2009, there shall be no across-the-board wage increase for any CWA bargaining unit positions. Also, there shall be no increase on the minimums and maximums of each job classification range. b.) Effective the first (1 st) full pay period ending in October 2010, there shall be no across-theboard wage increase for any CWA bargaining unit positions. Also, there shall be no increase on the minimums and maximums of each job classification range. c.) Effective the first (I st) full pay period ending in October 201 1, there shall be no across-theboard wage increase for any CWA bargaining unit positions. Also, there shall be no increase on the minimums and maximums of each job classification range. d.) Effective with the first (IS') full pay period ending in April 201 2, there shall be an across-the-board wage increase of three percent (3%) for all CWA bargaining unit positions. In addition, the minimums and maximums of each job classification range will be increased by three percent (3%)) effective the first full pay period ending in April 201 2. The City of Miami Beach classification and pay system will continue to be utilized as part of this contract for all bargaining unit employees with the exception of Lifeguard I, Lifeguard II and Lifeguard Lieutenants (who shall be removed from the step plan and placed in the pay for performance classification and pay system effective CWA - 27 632 October 1,201 0). Therefore, effective October 1 201 0 all classifications in the CWA Bargaining Unit shall be in the pay for performance pay system. This classification and pay system includes salary range changes, job audits, and market classification studies, but does not include cost-of-living increases. No change (to salary ranges, job audits or market classification studies) shall take place until the Union President or his/her designee concurs. No decision made within the context of this provision shall result in a lower grade, the removal of a job classification from the bargaining unit, nor shall said decision result in an exemption from FLSA overtime requirements. The classifications of Lifeguard I, Lifeguard II and Lifeguard Lieutenants shall remain under the current step plan, due to the unique nature of their work, until October 1,201 0, at which time they shall be placed in the pay for performance system. All other employees will remain the pay for performance system, which has no longevity benefits. Consistent with the classification and pay system, no employee's salary shall thereafter exceed, for any reason, the applicable maximum salary for the pay range of the employee's position. However, employees in the Lifeguard I, Lifeguard II and Lifeguard Lieutenant classifications shall be eligible for longevity pay as outlined in Section 8.1 7 through September 29, 201 2. Effective September 30, 201 2, longevity pay will be eliminated. With the exception of Lifeguard I, Lifeguard II and Lifeguard Lieutenants who shall remain under the current step plan until October 1, 201 0, commencing on each employee's first merit review date that falls on or after the effective date of the classification and pay system, an employee who receives a score of ninety (90) or above on their respective annual performance evaluation shall receive a four percent (4%) increase on their merit review date, provided that the employee's salary shall not exceed the maximum salary range of his/her position. This shall now also apply to all Lifeguard I, Lifeguard II and Lifeguard Lieutenants effective October 1, 201 0. Employees in the pay for performance plan who receive a score of less than ninety (90), but eighty (80) or above, shall receive a three percent (3%) increase on their merit date, provided that the employee's salary shall not exceed the maximum salary range of his/her position. This shall now also apply to all Lifeguard I, Lifeguard II and Lifeguard Lieutenants effective October 1, 201 0. Employees in the pay for performance plan who receive a score of less than eighty (80), but sixty (60) or above, shall receive a two percent (2%) increase on their merit date, provided that the employee's salary shall not exceed the maximum salary range of his/her position. This shall now also apply to all Lifeguard I, Lifeguard II and Lifeguard Lieutenants effective October 1 , 20 1 0. CWA - 28 633 If an employee's merit rating score does not qualify him/her for a merit increase, the employee may grieve the evaluation up t o Step Ill under the provisions of this Agreement. However, effective October 1,201 0, there shall be no merit or step salary increases for any CWA bargaining unit employees. [ATTACHED - The Pay for Performance MIN/MUM/MAX/MUM PAY RANGE SCHEDULE for all CWA CIassificafions effective October 7,20 70 for all CWA classifications including Lifeguard I, Lifeguard I/ and Lifeguard Lieutenants. Also aftached is the STEP PLAN APPLICABLE TO THE LIFEGUARD I, LIFEGUARD I1 AND LIFEGUARD LIEUTENANT CLASSIFICATIONS for time period of October 7,2009 through September 30,20 701. Section 8.2 Shift Differential. Where a maiority of an employee's regularly assigned shift hours fall between 3:00 p.m. and 1 1 :00 p.m., the employee shall receive a shift differential of forty five ($.45) per hour for work performed after 3:00 p.m. Where a maiority of an employee's regularly assigned shift hours fall between 1 1 :00 p.m. and 6:30 a.m., the employee shall receive a shift differential of fifty five ($.55) per hour for work performed after 1 1 :00 p.m. However, effective October 1, 201 0, Shift Differential pay shall be eliminated. Section 8.3 Holidays. - (See Section 7.6) The following fourteen (1 4) days shall be considered as holidays but the City reserves the right to schedule work on the holidays: New Years' Day, President's Day, Memorial Day, Independence Day, Labor Day, Veteran's Day, Thanksgiving Day, the day following Thanksgiving, Christmas Day, Martin Luther King's Birthday, three (3) floating holidays, and the employee's birthday. Employees shall become eligible for floating holidays and the birthday holiday upon completing six (6) months' continuous service with the City. Section 8.4 Bereavement Leave. - In case of death in the immediate family of an employee, time off with straight-time pay will be allowed of two (2) scheduled work days off per death and four (4) scheduled work days off per death if the funeral is held outside the State of Florida. The immediate family shall be defined as father, mother, husband, wife, sister, brother, son, daughter, grandchild, grandfather, grandmother, CWA - 29 634 mother-in-law, father-in-law, stepfather, stepmother, stepson, stepdaughter, or domestic partner as defined in the Domestic Partner Ordinance. Additional time off may be granted by the Department Head, in writing, chargeable to the employee's accrued sick or vacation leave. In such circumstances such additional sick leave shall not count against an employee for purposes of performance evaluations. Section 8.5 Rate of Pay When Workins Out of Classification. -An employee may be required to temporarily work out of his/her classification when directed by management. Temporarily is defined as an employee who is clearly and definitely performing the principal duties in a higher pay classification for more than one hour per day, and they shall not exceed 580 hours in a 12-month period, and shall be paid as follows, except at the sole discretion of the City Manager or his/her designee for Human Resources who may waive the 580 hour cap if in his/her iudgment, it will best serve the needs of the City service: a) Out of class pay shall be distributed as equally as practicable among employees in the same job classification in the same work section. b) If he/she is temporarily working in a lower classification, he/she shall receive his/her hourly rate in his/her regular classification. Employees will not be assigned to lower classification work as punishment or to demean the employee. C) If he/she is temporarily working for one or more consecutive hours in a higher paying classification, he/she shall be paid an hourly rate of one dollar ($1.00) per hour to be added to the employee's straight-time rate of pay. Employees being trained with on-site supervisory assistance in a bona-fide training program for a higher paying classification will be paid their current rate in their regular classification during such training time. Section 8.6 Voting Time. Given the availability of alternatives such as absentee ballots and early voting, the past practice of allowing paid time off for voting shall be discontinued. Section 8.7 Meal Allowance. -An employee who works three (3) consecutive hours or more of preshift or post-shift overtime shall be paid $7.00 unless meals are provided by the City. Employees shall receive compensation within three (3) months. In the event employees are supplied with a meal while working the overtime hours, the meal allowance, as provided under this Section, shall cease. Section 8.8 Jury Duty. The City of Miami Beach shall permit employees either to keep payments received from courts of competent jurisdiction for being on duty, or in the alternative, their standard rate of pay, whichever is higher. For each day an employee is called to jury duty, he/she shall be excused from work for CWA - 30 635 such time as is necessary to complete jury duty services. If three (3) or more hours are left in the employee's work shift upon release from jury duty, the employee shall immediately contact his/her immediate supervisor for instruction. Section 8.9 Tool Allowance. Employees in those classifications who are required to provide their own personal tools as part of the iob duties shall be entitled to a $1 7.50 per pay period for the purchase of new/replacement tools. Section 8.1 0 Cleaninq Allowance. If required to wear a City uniform, persons employed in the following public contact positions shall receive a uniform cleaning allowance of forty dollars ($40) monthly. Air Conditioning Mechanic Building lnspector Carpenter I Carpenter II Code Compliance Administrator Code Compliance Officer I and I1 Crime Scene Technician I Crime Scene Technician II Electrical lnspector Electrician Elevator lnspector Engineering lnspector Mason Masonry Helper Mechanical lnspector Painter Parking Enforcement Specialist I and I1 Plumber Plumbing lnspector Police Fleet Specialist Police Records Technician Property Evidence Technician I Property Evidence Technician II Police Photographer Public Safety Specialist However, effective October 1, 201 0, all cleaning allowances shall be eliminated. Section 8.1 1 Uniform Provision. Persons employed in all divisions, including the Public Safety Communications Unit (PSCU), who are compelled to wear City-issued uniforms shall be provided with six (6) uniforms. Lifeguards and full-time pool guards shall be provided with one (1) sweat suit per year, and a winter jacket every five (5) years. Six (6) long sleeved/short sleeved shirts or any combination thereof shall be offered to Lifeguard I, 11, Lieutenant, Pool Guard I, 11, to further protect them from the dangerous ultra-violet rays. On a onetime basis only, all regular, full-time Lifeguard I, Lifeguard II and Lifeguard Lieutenants shall be issued one (1) pair of dress pants, one (1) Class A shirt and one (1) badge. Lost, damaged or stolen badges shall be replaced at the employee's expense. Worn dress uniforms shall be replaced at the City's expense, but no sooner than once per year. CWA- 31 636 Uniforms shall be issued on the following schedule: a) All other uniforms (except the Class A dress uniforms for Lifeguards) shall be delivered to the employees in the month of January of each year. Sponsorship: In the event that the City enters into an agreement with any outside sponsor concerning uniforms that may be issued to any employee(s) (but not necessarily all employees) who are in the bargaining unit, these sponsored uniforms may be issued to satisfy the contractual uniform obligations. No additional contract obligations concerning uniforms are hereby created and such sponsored uniforms may be discontinued at any time by the City. Section 8.1 2 Insurance. a) Effective at the beginning of the first full health insurance plan year, or as soon as practicable, after (and only if) this multi-year Agreement is ratified by both parties, the City shall offer medical, dental, and life insurance benefit plans to full-time bargaining unit employees and their legal dependents, as set forth in this section (a, b and c) during the term of this Agreement. The City will continue to pay at least fifty percent (50%) of the premium cost for eligible employees and their dependents. The City will offer alternative plans as options for employees. The City may change insurance carriers and/or the scope and level of benefits in any plan. The City also may change the percentage of premium cost paid by the City (i.e., provided that it remains at least 50%) from year to year for any one or more of the optional plans available, depending upon the scope and level of benefits available in each of the optional plans. b) The City agrees that it will not change the level of benefits during the term of this Agreement without first consulting with the Group Insurance Board, or a labor-management advisory committee created as a substitute for such Board, such attendance shall not be counted against the Union Time Bank. The designated Union representative may serve on this Board/committee for as long as bargaining unit employees participate, exclusively, in the City's group health insurance plan. In the event that the City materially reduces the scope and level of benefits in the current base (PPO or HMO) plan then the Union may request post-implementation impact bargaining. CWA - 32 637 c) Employees in the bargaining unit shall be eligible to participate in the City's flexible and voluntary benefits plans, which may be modified by the City from time to time. The flexible and voluntary benefits plans shall be administered by the Ciiy. Section 8.1 3 Pension. Promoted employees may remain in Classified Plan. The pension plan will provide that in a case where an employee who is thereafter promoted to a position that is in the unclassified pension plan, the promoted employee may elect to stay in the classified pension plan. The Miami Beach Employees' Retirement Plan (MBERP) is the pension plan for CWA bargaining unit members, except for those employees who previously elected to remain in the 401-A retirement program (in lieu of participating in the City's pension plan). The current benefits and member contributions provided by the MBERP shall remain in effect for the term of this Agreement, except as follows: 10% Cap on Overtime for Plan Members Hired before February 21, 1994 For those employees in the Miami Beach Employees' Retirement Plan (MBERP) who were hired before February 21, 1994, overtime included in pensionable earnings received after the effective date will be limited to a maximum of 10% above the employee's highest pensionable compensation, if applicable each year. Upon reaching the 10% maximum cap within a fiscal year, any additional overtime earnings in that year shall not be subject to the pension contribution. Two Year Past Service Purchase Option A vested employee may purchase up to two years of creditable service under the following terms. An employee may elect to purchase creditable service under the pension plan for up to two years of any of the following types of employment prior to the employee's date of hire by the City, provided that the employee may not purchase such service credit if the employee has received or will be receiving a pension benefit for the same period of employment under another retirement plan: Active duty military service in the Armed Forces of the United States or the Coast Guard. Full-time employment with another governmental entity. Full-time employment in the private sector performing the same or very similar duties the employee is performing for the Ciiy at the time of his/her election to purchase additional service. CWA - 33 638 In order to receive such pension service credit, the member shall pay 10% of his/her annual rate of pensionable earnings multiplied by the number of years and fractions of a year purchased, up to a total of two years. The annual rate of pensionable earnings shall be the rate in effect on the date of payment and shall include the annual amount of overtime pay for those members whose overtime pay is pensionable. Payment shall be made in a single lump sum to the pension plan within six months following the date of the member's election to purchase the additional service, but, in no event later than the last day of employment. At the time an employee exercises a past service purchase option, the buy back shall be accrued at the same percentage rate the employee is accruing at the time of the election. Any accrued sick leave used to purchase the buy back will be valued on a one for two basis, and annual leave on a one for one basis. In addition, any use of sick or annual leave for buy back purposes shall be deducted from the any final payout of sick or annual leave time at the time of termination. Partial Lump Sum Distribution A member who retires under normal retirement (as that term is defined by the GERS) shall be allowed to convert 25% of the actuarial value of his/her pension benefit into a lump sum distribution. For example, if the normal retirement benefit is equal to $2,000 per month, the member may either receive $2,000 per month or the combination of $1,500 per month plus a single lump sum equal to the actuarial value of the other $500. This lump sum option shall not be available to early retirees, disability retirees, or beneficiaries receiving pre- retirement death benefits. The lump sum shall be calculated using the same discount rate and mortality rates used in the most recent Actuarial Valuation Report for the GERS. 1. Effective upon ratification of this Agreement, for employees hired prior to February 21, 1994, who participate in the MBERP, the employee pension contribution shall increase by 2% of pensionable earnings, from 10% to 1 2% of pensionable earnings. Effective upon ratification of this Agreement, for employees hired on or after February 21, 1994, who participate in the MBERP, the employee pension contribution shall increase by 2% of pensionable earnings, from 8% to 10% of pensionable earnings. 2. However, if the MBERP Actuary and the State of Florida Division of Retirement do not confirm in writing that the City will realize a pension savings for the Actuarial Required Contribution (ARC) payable on October 1, 201 0 associated with the pension changes for CWA employees, then effective upon ratification of this Agreement, all CWA employees will experience a temporary 12 month wage CWA - 34 639 reduction of 3.5%. If this provision takes effect, the additional two percent (2%) employee pension contribution shall not become effective until after the expiration of the twelve (1 2) month wage reduction. 3. Final Average Monthly Earnings (FAME1 The City and Union agree to change the creditable service component of the formula for calculation of the FAME for current members from two (2) highest paid years of creditable service to the five (5) highest paid years of creditable service as described below: a) For those employees who participate in the MBERP and are at normal retirement age or are 24 months or less from normal retirement age, as defined by Ordinance 2006-3504 as amended, as of September 30, 201 0, the Final Average Monthly Earnings (FAME) is at one twelfth (1 /12) of the average annual earnings of the employee during the two (2) highest paid years of creditable service. b) For those employees who participate in the MBERP, and who are between 24 and 36 months from normal retirement age, as defined by Ordinance 2006-3504 as amended, as of September 30, 201 0, the Final Average Monthly Earnings (FAME) means onetwelfth (1 /12) of the average annual earnings of the employee during the three (3) highest paid years of creditable service. c) For those employees who participate in the MBERP, and who are between 36 and 48 months from normal retirement age, as defined by Ordinance 2006-3504 as amended, as of September 30, 201 0, the Final Average Monthly Earnings (FAME) means onetwelfth (1 /12) of the average annual earnings of the employee during the four (4) highest paid years of creditable service. d) For those employees who participate in the MBERP, and who are more than 48 months from normal retirement age, as defined by Ordinance 2006-3504 as amended, as of September 30, 201 0, the Final Average Monthly Earnings (FAME) means onetwelfth (1 /12) of the average annual earnings of the employee during the five (5) highest paid years of creditable service. 4. New Employees (Bar~aining Unit Members hired on or after the ratification of the CWA Aareement) CWA - 35 640 The current benefits and member contributions provided by the MBERP shall remain in effect for employees hired on or after the date this Agreement is ratified, except as follows: 1) The normal retirement date is age 55 with at least thirty (30) years of creditable service, or age 62 with at least five (5) years of creditable service. 2) The early retirement date is the date on which the member's age plus years of creditable service equal 75, with a minimum age of 55. 3) The Final Average Monthly Earnings (FAME) shall be an average of the highest five (5) years of employment. 4) The benefit multiplier shall be two and one half percent (2.5%) multiplied by the member's years of creditable service, subject to a maximum of 80% of the member's FAME. 5) The retiree Cost of Living Adjustment (COLA) will be one and one half percent (1.5%) per year, with the first adjustment deferred to one (1) year after the end of the Deferred Retirement Option Plan (DROP). 6) The employee contribution will be 10% of salary. 7) The standard form of benefit is a lifetime annuity. 8) Members who separate from City employment with five (5) or more years of creditable service but prior to the normal or early retirement date shall be eligible to receive a normal retirement benefit at age 62. 9) Employees shall be eligible to enter the DROP at the normal retirement age specified in paragraph 2, above, and may participate in the DROP for a maximum of five (5) years. Reduction in Vesting Requirement for Employees Hired On or After February 2 1, 1994 The minimum vesting requirement for pension plan members hired on or after February 21, 1994, is 5 years of service. Reduction in Normal Retirement Aae for Employees Hired On or After February 2 1, 1994 The normal retirement age for pension plan members is as follows: For members hired prior to February 21, 1994, the normal retirement age is 50. For members hired on or after February 21, 1994 but prior to September 30,2009, the normal retirement age is age 55. For members hired on or after September 30, 201 0, the normal retirement age is 62. Other Requirements and Conditions In order to be eligible for each of the above pension benefits, each employee must be actively employed on the CWA - 36 641 effective date of the benefit and must thereafter retire. All of the foregoing pension changes shall apply prospectively, not retroactively. All other provisions of the MBERP plan not specifically addressed in this Agreement shall remain unchanged. Retiree Health Insurance a) The parties agree that any bargaining unit member who previously elected or who elects to participate in the 401-A retirement program (in lieu of participating in the City's pension plan) shall be required to work at least ten (1 0) years before becoming eligible for any retiree health benefits from the City. b) The parties agree that any bargaining unit member who is eligible for retiree health benefits from the City must make a onetime irrevocable election to continue receipt of health benefits via the City's plan at the time that the employee terminates City employment. The parties also agree that iF a member initially elects to continue under City health insurance, but thereafter discontinues or is discontinued from such coverage, then the retiree may resume coverage only at their own expense, without any employer contribution whatsoever. c) Employees hired on or after February 2, 2006, will be entitled to a City contribution against the cost of continued health insurance coverage in the City's health insurance plan after retirement (or separation) from City employment, as set forth in this section. Any employee hired on or after this Agreement is ratified, who then remains employed until reaching eligibility for normal retirement, and who elects to continue insurance coverage under the City's health plan, shall upon receipt of normal retirement benefits also receive an additional separate supplemental monthly stipend payment in the initial amount of $1 0.00 per year of credited service, up to a maximum of $250.00 per month until age 65, and $5.00 per year of credited service up to a maximum of $125.00 per month thereafter. There shall be no other City contribution toward the cost of continued health insurance coverage for such employees and this benefit shall be paid only during the life of the retiree. Section 8.14 Vacation Benefits. Consistent with applicable ordinances, the vacation benefits enjoyed presently by the employees covered by this Agreement shall continue. CWA - 37 642 Section 8.1 5 Sick and Vacation Leave Accrual and Maximum Payment on Termination. a) Employees shall be entitled to twelve paid days a year due to illness for themselves or family members. b) The present policy concerning sick leave, including the policy for payment of accrued sick and vacation time combined, up to a maximum of one year's salary, upon termination, retirement, or death, shall continue for all employees hired before October 1, 1978. c) All employees hired after October 1, 1978 shall, under applicable ordinances, rules, and regulations shall be allowed to accrue no more than 500 vacation hours effective October 1, 2006, and except in accordance with provisions for postponement of vacation leave as set forth in Article 8.14 of this Agreement; be permitted to transfer sick leave in excess of 360 hours to vacation leave at the rate of two days' sick leave to one day vacation leave to be used in the pay period year when transferred; be permitted a maximum payment at time of termination, death, or retirement of no more than 620 hours (effective upon ratification of this agreement) vacation leave and one half of sick leave to a maximum of 600 hours. Section 8.1 6 Public Safety. Public Safety Communications Unit (PSCU) 1) Persons hired into the classification of Dispatcher Trainee will receive a 3% increase after six (6) months of satisfactory service; 2) Upon being certified by the Police Chief as being fully qualified to dispatch both Police and Fire calls, a Dispatcher will receive a three percent (3%) increase (in lieu of the prior onestep increase) while assigned to PSCU. The City can require employees to dispatch both Police and Fire calls. However, an employee hired before September of 1995 who is not already trained in both police and fire calls as of the April 8, 2002, can continue to dispatch either fire or police calls; 3) Dispatchers, Communication Operators, and Complaint Operator 11's who are designated as certified training officers shall receive one dollar per hour for all hours worked in a training CWA - 38 643 capacity. All employees who express an interest and whose last performance evaluation was satisfactory shall be considered eligible for certification as a CTO. Generally, an employee without CTO certification shall not be required to perform in a training capacity unless a CTO is not available. However, if a Non-CTO is mandated to train, he/she will also receive the stipend. Section 8.17 Step and Lonqevity Increases for Lifequard - I, Lifequard - I1 and Lifequard - Lieutenant only For the time period of October 1, 2009 through September 30, 201 0, the following shall apply: a) Starting Salary - New employees will start at the minimum step of the pay range. b) First (1") Step Increase - Newly hired employees shall receive a step increase after satisfactory completion of the probationary period. C) Anniversary Date Increase - Step increases shall become effective on the payroll period commencing on the employee's anniversary date. A step increase shall be awarded based upon the employee receiving a satisfactory 50 merit evaluation during that rating period. Anniversary date shall be defined as the date that an employee completes probation or the effective date when promoted to a higher classification. d) Longevity Pay - Longevity increases shall become effective on the payroll period commencing on the employee's date of hire. Longevity Pay - Longevity shall be calculated by multiplying the employees' earnings (as defined in arbitration decision FMCS 03-041 17 by arbitrator Robert Hoffman) at the end of each pay period by the percentage of longevity pay as determined by years of service per the following table: e) CWA - 39 644 Completed Years of Service * 7 Years 10 Years 15 Years 20 Years 25 Years Percentage Increase 2.5% 5.0% _ 7.5% 10.0% 11 .O% * This does not include time taken as unpaid leave. Effective October 1, 201 0, step increases shall be eliminated for all Lifeguard I, Lifeguard II and Lifeguard Lieutenant employees, and they shall be placed in the City's pay for performance classification and pay system. Additionally, effective September 30, 201 2, Longevity Pay shall cease for any and all CWA bargaining unit members. Section 8.1 8 Perfect Attendance Bonus. Employees who perform the full scope of their regularly assigned classification for each fiscal year shall receive a lump sum bonus of $300.00 (non-pensionable earnings) provided that they have not used sick leave or been absent for any reason that was not authorized at least 48 hours in advance. An employee will also be allowed two (2) incidents of tardiness and one (1) emergency vacation. Employees out on ISC will not be eligible for the perfect attendance bonus. Religious/Sick and Bereavement/Sick shall not be counted against employees under this section. Section 8.19 Lead Person. An employee in the Carpenter, Electrician, Painter, Plumber, and Air Conditioning Mechanic, positions in the Property Management Division will receive a five percent (5%) supplement for Lead pay if the following conditions are met: a) The employee is in charge of a construction proiect, b) The construction project consists of four (4) or more employees, c) The Lead Person will have three (3) years of experience in his/her position with the City of Miami Beach, d) The Lead Person will have most recent three (3) years of performance appraisals of 75 or above. Section 8.20 Union Conventions. Two (2) delegates of the Union will be granted a leave of absence with pay, not to exceed two (2) weeks in any one year, for the purpose of attending State and International conventions. The Union will provide the City with the name(s) of the delegate(s) and provide the dates and locations of any such conventions for which a leave of absence is requested six (6) weeks in advance of the convention so that the department can make appropriate arrangements. This time shall not be deducted from the Union time bank. Section 8.21 Orientation. The union shall have the right to send two of the four designated Union representatives, authorized with pay pursuant to the Union Time Bank for time he/she would have otherwise been working to attend and participate in new employee orientation conducted by Labor Relations and Human Resources where bargaining unit members are present. CWA - 40 645 Section 8.22 Educational Leave and Tuition Reimbursement. The City's tuition reimbursement program shall be continued for the term of this Agreement. Section 8.23 Property Manaqement License(s) Maintenance - (Required continuing education/certification for current position) Employees in the Property Management Division who in order to maintain their licenses as required in their job descriptions, and have to attend continuing education classes shall be paid their straight hourly wages for all required hours up to 20 hours a year: provided that no additional pay shall be made to the employees if the training is provided by the City during regular work hours. Any hours spent attending training under this section shall count as hours worked. Section 8.24 EMT Certification Pay. Lifeguard I, Lifeguard II, Lifeguard Lieutenants, and Full-time Pool Guards who attain and maintain Emergency Medical Technician (EMT) certificate given by the State of Florida shall receive a five percent (5%) pay increase. All Lifeguard I, Lifeguard II, Lifeguard Lieutenants, Pool Guard I and Pool Guard II employees hired on or after September 30, 201 1 shall be required to have and maintain an Emergency Medical Technician (EMT) certification given by the State of Florida prior to being hired by the City of Miami Beach. Effective September 30, 201 2, the EMT Certification Pay shall be eliminated. By September 30, 20 1 2, all Lifeguard I, Lifeguard II, Lifeguard Lieutenants, Pool Guard I and Pool Guard II employees, regardless of the date of hire, shall be required to have and maintain an EMT certificate given by the State of Florida. The City and the Union agree to meet after ratification of this Agreement to discuss and enter into a side agreement implementing this provision. CWA - 41 646 ARTICLE 9 GENERAL PROVISIONS Section 9.1 Discrimination. - In accordance with applicable federal, state, and local law, the City and the Union agree not to discriminate against any employee on the basis of race, creed, color, religion, disability, sex, national origin, age, sexual orientation, marital status or political beliefs. Section 9.2 Meetinns Between Parties. -At the reasonable request of either party, the Union President, or his/her representative, and the City Manager's designee for Labor Relations, or his/her representative, shall meet at a mutually agreed time and place to discuss matters of concern. Whenever time permits, the party requesting the meeting shall submit written notice of the subject matter to be discussed. Such notice shall be submitted one week in advance of the proposed meeting date. Whenever the Union President, or his/her representative, makes suggestions or recommendations to the City Manager, or his/her designee for Labor Relations, specifically concerning productivity of lob safety, the City Manager, or his/her designee for Labor Relations, will respond as appropriate. Section 9.3 Reduction in Work Force. -When there is a reduction in the work force, employees will be laid off in accordance with their length of service and their ability to perform the work available. When two or more employees have similar ability, the employee with the least amount of service will be the first one to be laid off. However, for the time period covering October 1,201 0 through September 30,201 2, no-employee covered under the CWA Bargaining Unit shall be separated from employment with the City for reasons other than disciplinary, voluntary separation, or whose position is reclassified due to changes in job duties. Individuals whose positions are eliminated from the budget (or who are impacted as a result of the elimination of a position in the budget, ("bumping")) will be placed in a position with the City. Section 9.4 Work Rules. -The City will provide the Union with a copy of any written rules that are instituted or modified during the term of this Agreement affecting employees in the bargaining unit. In the event the City desires to alter, amend, or modify existing written work rules, or promulgate new written work rules, the proposed changes will be submitted for review to a joint labor/management committee. The City shall have two (2) representatives and the Union shall have two (2) representatives on this committee, which will make recommendations to the City Manager. The proposed changes shall not become effective until a final decision of the City Manager has been rendered. No Personnel Rule, Work Rule or any other rule, or application thereof shall in any manner conflict with any provisions of this agreement, and such rules shall be reasonable. CWA - 42 647 Section 9.5 Probationary Employees. -A probationary employee who is dismissed without cause shall have the right to discuss with the appointing officer the reasons for such dismissal at a mutually agreed to time. Following such meeting, a probationary employee, if he/she so desires, shall have the right to further review the reasons for such dismissal with the City Manager or his/her designated designee for Labor Relations at a mutually agreed to time. It is expressly understood, however, that the appointing officer retains the exclusive discretion with respect to the retention or dismissal of probationary employees. Periods of absence shall cause the probationary period to be extended for an equal amount of time. At the request of the appointing authority, the City Manager, or his/her designee for Human Resources may extend the probationary period for up to three (3) additional months provided that the reasons for extension are given to the employee in advance of the expiration of the initial probationary period. The City acknowledges the importance of giving timely performance appraisals and feedback to probationary employees. Sectbn 9.6 "Temporary Employees". - The City shall have the unrestricted right to hire up to one hundred (1 00) "temporary" employees in the bargaining unit, provided they are not hired at the detriment of the bargaining unit employees. The number of temporary employees working in each Division shall not exceed 50% of the number of positions in that Division. Temporary employees being utilized to fill in on short-term vacancies shall not be considered as a detriment to the bargaining unit's employees. Such "temporary" employees shall be paid at rates set in the sole discretion of management and a "temporary1' employee's employment service may not exceed one (1) continuous year at any one time. "Temporary1' employees may not work in a classification wherein a permanent Civil Service employee is laid off. The Human Resources Department shall send the Union a report of "temporary" hires on a monthly basis. "Temporary" employees shall not be covered by Civil Service or Personnel Board Rules, and they shall serve at the will of their employer without right of appeal or access to the grievance procedure contained herein, and they shall not receive any fringe benefits or pension benefits. Terminated "temporary" employees may be re- hired if their separation is under honorable circumstances. CWA - 43 648 Regarding the implementation of the one hundred (1 00) temporary positions, it is understood that those positions were not limited to, but could be used to develop a cadre of employees who, on short notice, could serve as backup for regular employees or for such things as vacancies caused by absences due to maternity, military leave, sick leave, offduty injury, onduty injury, and work overload. The examples cited herein are not meant to be all inclusive. It is further recognized that employees who retire "in good standing'' who may be interested in working on a temporary, part-time basis, and should temporary work become available, the retired employees will have the opportunity to make application for one of the temporary positions. Such part-time positions shall not be covered by Civil Service rules or regulations, will have no fringe or pension benefits, and the salary shall be at a rate determined by the City. Further, the temporary employees shall not have a choice of picking schedules, but will be assigned by the City's management on an as needed, when needed, basis. Section 9.7 Political Activities of Employees. - Except as provided by State law and City of Miami Beach Personnel Rule 1, (b), the City shall not make, adopt or enforce any rule, regulation or policy; a) Forbidding or preventing employees from engaging or participating in politics or from becoming candidates for public office; b) Controlling or directing or tending to control or direct the political activities or affiliations of employees. It is understood that no political activities may be conducted by unit members during the employee's scheduled work day. Section 9.8 Safety. - The City agrees to provide, at no cost to the employee, any appropriate safety equipment required to be worn or otherwise utilized by the employee. This shall include such items as hard hats, gloves, etc. Those employees issued such equipment will be responsible for such safety equipment, and any loss or damage due to the neglect of the employee may require the employee to pay for the replacement of said City-issued equipment. a) The City agrees to provide, upon request, up-to-date, non-glare screens for computer terminals. CWA - 44 649 b) The City shall evaluate and provide, upon request, a wrist rest, which will help alleviate the stress upon the hands and arms of those employees performing repetitive motion, to all persons who type more than 50% of their workday. c) The City shall provide in each lifeguard stand a modern voice amplifier (bullhorn) to be used in providing safety. d) The City will agree to provide safety training to all Parking Enforcement employees as deemed appropriate by the City and Union. e) The Union is encouraged to have its members volunteer to serve on the Department Safety Committees that are being organized in each City Department. The bargaining unit member serving on the City's Safety Committees will not suffer any loss of benefits or wages for attendance at regularly scheduled meetings during regular scheduled work time. No overtime will be paid for attendance at such meetings. f ) If there is a central, Citywide Safety Committee, the Union's President may be a member if he/she so requests. g) Upon request by an employee, the City Manager's designee for Risk Management shall audit the employees' work environment for correct ergonomic functionality and shall make reasonable and appropriate corrections. Those employees issued such equipment will be responsible for such safety equipment, and any loss or damage due to the neglect of the employee may require the employee to pay for the replacement of said City-issued equipment. Section 9.9 Parkina. - -The City shall provide seventeen (1 7) parking spaces at a lot comparable to Lot 1 1 for the exclusive use of onduty Lifeguards. Such parking spaces shall be clearly marked. This Section may become moot if the Lifeguards are able to work out a reporting system that would allow them to proceed directly by their private vehicles to their respective lifeguard stands. CWA - 45 650 Section 9.1 0 Glasses and Hats. -The City agrees to reimburse Lifeguards and Pool Guards I and II for the purchase and/or repair of sunglasses up to a maximum allowable reimbursement of $60.00 per employee in each fiscal year. In order to be reimbursed, the employee must request a reimbursement, in writing, and attach a store receipt reflecting such purchase and/or repair. Section 9.1 1 Notification in the Event of Transfer or Contractinq Out. - When the City contemplates entering into a contract with an outside supplier or service agency to perform services presently being performed by the Bargaining Unit employees and such contract shall result in the lay-off of any bargaining unit employee, the City agrees that it will, upon written request, meet and discuss with the representatives of the Union the effect of such contract upon members of the Bargaining Unit. If the City enters into such a Contract and, as a result thereof, an employee will be laid off, the City agrees to ask the Contractor to provide first consideration for such employee for any available work. In the event that the employee is not employed by the Contractor, the City will offer such employee another available iob with the City, if there is a budgeted vacancy and the employee affected by the subcontracting is qualified to perform. Questions of qualification to perform the lob duties shall be decided in the sole discretion of the City Manager, or his/her designee for Human Resources. If there are no jobs available, the Reduction in Force provision contained in this Agreement shall apply, provided that such laid-off employee shall be recalled to work before the City hires new, permanent employee to perform the work of the classification held by the employee at the time of the layoff. This recall right shall exist for up to the individual's total service time with the City, but not to exceed two (2) years after the date of the person's layoff date, but such recall right shall cease as of two (2) years after layoff, or if the employee does not return to work as scheduled if he/she is offered a recall notice prior to the two (2) years. It shall be the responsibility of the laid-off employee to notify the Human Resources Department when technical skills, training, and experience have been enhanced during the lay-off period, which may allow the individual to apply for another bargaining unit iob with the City. CWA - 46 651 Nothing in this Section will be construed to limit the Union's right to bargain concerning the identified impactsr effects of subcontracting out or transferring upon Bargaining Unit members. Section 9.1 2 Stress Reduction/Police Department's Public Safety Communications Unit - Those employees covered by this Agreement who work in the Miami Beach Police Department Communications Unit, will be given a stress reduction training program provided by the City. Such stress training will be a oneday stress seminar as given to sworn officers. Section 9.13 Bulletin Boards - The Union may, at its own expense, place a bulletin board in each department, not to exceed approximately three feet by two feet (3' x 2') in size. The Bulletin Boards shall be used for posting the following notices only: a) Notices of Union Meetings. b) Notices of Union Elections. C) Reports of Union Committees. d) Recreational and Social Affairs of the Union. e) Any material of informational nature related to CWA. Prior to posting, the material as described above shall be signed by an elected officer of the Union and submitted to the City Manager's designee for Labor Relations, for signature. Materials, notices or announcements which contain anything political or controversial that might reflect upon the City, any of its employees, or any other labor organizations among its employees, or any materials, notices, or announcements which violate any of the provisions of this Section, shall not be posted. Any materials that are posted which are not in conformance with this Section may be removed at the discretion of the City. Section 9.1 4 Seniority a) Definition: Seniority, for purposes of application of this Agreement except as otherwise stated, is an employee's length of regular, full-time, continuous service with the City. b) When vacations are scheduled, permanent vacancies or shifts are filled, promotions are made to a position within the bargaining unit, seniority shall apply when all other factors are equal. CWA - 47 652 C) Seniority will not apply in an emergency situation. d) In the event of same day hiring, seniority rank shall be determined in the order of standing on the eligibility list. Section 9.1 5 Shoes. A) Safety Shoes - Employees in the following iob classifications will be required to wear safety shoes during all working hours. Once each year during the term of this Agreement, a safety shoe reimbursement for up to sixty dollars ($60.00) will be provided to the employees in the following lob classifications for the purchase of safety shoes. Safety shoes must meet the ANSI 24 Federal Safety Standards. Reporting to work without the required safety shoes shall result in the employee being sent home without pay, immediately, for the balance of the day and may result in disciplinary action. Air Conditioning Mechanic Building lnspector Carpenter Carpenter ll Coin Room Money Handler Electrical lnspector Electrician Elevator lnspector Engineering Assistant I, 11, 111 Mason Masonry Helper Mechanical Inspector Painter Parking Meter Technician I, II Plumber Plumber lnspector B) Uniform Shoes - Those employees in the following job classifications not already issued, shoes will be reimbursed sixty dollars ($60.00) a year to purchase uniform shoes. Code Compliance Administrator Communications Operator Complaint Operator I1 Crime Scene Technician I Crime Scene Technician II Code Compliance Officer I & II Dispatcher Dispatcher Trainee Parking Enforcement Specialist I Parking Enforcement Specialist II Property Evidence Technician I Property Evidence Technician II Public Safety Specialist Reporting to work without the required uniform shoes shall result in the employee being sent home without pay, immediately, for the balance of the day and may result in disciplinary action. Section 9.16 Labor/Manaaement Committee. -There shall be a four (4) member labor/management committee with two (2) members each appointed by the CWA President and the City Manager or his/her designee for Labor Relations. The committee shall meet at mutually agreed times to discuss matters of common CWA - 48 653 interest such as critical incident debriefing, absenteeism control, etc. The labor/management committee is not a forum for collective bargaining or resolving specific grievances. Labor Management Committee meetings shall not count against the Union Time Bank. Section 9.17 Promotions. - Within 120 days of the date the Agreement is ratified by the City, the Labor-Management Committee will meet to discuss selection procedures relative to promotions of bargaining unit employees to other bargaining unit positions. Section 9.1 8 Beach Patrol Promotions. - The parties agree as follows: 1) Eligible applicants for promotional exams shall be given a written and an oral examination. 2) Applicants must pass an ocean swim test under reasonably common conditions. Conduct of the swim test shall be monitored by Human Resources. 3) Applicants must have received at least a satisfactory evaluation in each element of their most recent performance review to be eligible to take the promotional examination. 4) The written tests shall be developed under the direction of Human Resources. The reading list for examination materials from which the questions are drawn will be set by the City Manager's designee for Human Resources after consultation with the Department Director and the Union. Any reading lists will be posted at least thirty (30) days prior to the administration of such tests. A copy of an examinee's graded answer sheet shall be furnished to the examinee upon completion of the grading, if requested. All challenges of questions on the written tests must be made in writing to the City Manager's designee for Human Resources within two (2) working days of the testing dates and he/she shall conclusively decide the challenge. 5) For the oral tests, questions shall be iob related and evaluators shall use common criteria to assess the quality of candidates' answers and to determine scores. Final scores on oral examinations shall be the average of all scores made by evaluators. 6) Oral test evaluators shall be knowledgeable of the target position, shall include at least one person who is not a City employee, and shall be selected by Human Resources. 7) Promotional lists shall expire two (2) years after the posting of the results of a promotional test or where lists have been combined, two (2) years after the combining of the old and new lists. CWA - 49 654 ARTICLE 10 DRUG AND ALCOHOL TESTING Section 10.1 The City and the Union recognize the employee substance and alcohol abuse has an adverse impact on City government, the image of City employees, the general health, welfare and safety of employees, and to the general public at large. Therefore, it is in the best interest of the parties to negotiate over the subject of drug and alcohol testing. Section 10.2 Using, selling, possessing or being under the influence of drugs or controlled substances while at work is prohibited. Employees are further prohibited from consuming alcohol and drugs on duty and/or abusing alcohol and drugs off duty to the extent that such use and/or abuse tends to have an effect upon the performance of their iob functions. Section 10.3 The City may require any employee to submit to a blood analysis, urine analysis and/or Breathalyzer when it has a reasonable suspicion as defined in Florida Statutes 440.102 (N) that an employee is under the influence of or using alcohol, drugs or narcotics and/or when an employee has caused, contributed to or been involved in an accident (i.e., automobile or other iniury). Section 10.4 In the event a urine specimen is tested as positive, a portion of that sample will be subiected to a second test at the employee's request and at the employee's expense. If the second test is negative, the employee will be reimbursed by the City. Section 10.5 For purposes of reasonable belief screening criteria for alcohol in this Article, employees shall be deemed alcohol impaired if their blood/alcohol level is measured at .04 or above. Section 10.6 At the conclusion of the drug and alcohol testing, the City may take whatever action, if any, it deems appropriate. In the event that said action is in the form of discipline, the employee may grieve said discipline through the contractual grievance/arbitration procedure. Section 10.7 The parties agree that an employee's refusal to submit ("refusal to submit" includes adulterating a sample or submitting a false sample) to drug or alcohol testing in accordance with the provisions of this Article may result in disciplinary action being taken against the employee up to and including dismissal. CWA - 50 655 Section 10.8 Druq/Alcohol Random Testinq. It is important to the safety and welfare of employees and the public that bargaining unit members not be impaired by alcohol while on duty nor use illegal drugs. To demonstrate the commitment of the City and the Union to this notion, employees in the iob classifications listed below will be subiect to random testing. Employees will be chosen from a blind list by the Human Resources Department or its designee. Those employees who have a CDL license and are in the CDL Drug Testing Pool will not be part of the CWA Drug Testing Pool since the employees who hold a CDL license are already being randomly tested. Employees in the following iob classifications shall be subiect to random testing: Communications Operator and Complaint Operator II Crime Scene Technician I and II Dispatcher and Dispatcher Trainee Lifeguard I, Lifeguard II and Lifeguard Lieutenant Police Photographer Pool Guard I and Pool Guard I1 Property Evidence Technician I and Property Evidence Technician II Public Safety Specialist Section 10.9 Last Chance Agreement. Employees testing positive may be offered the opportunity to enter into a "Last Chance Agreement" (for a maximum duration of 2 years, except in extenuating circumstances) to continue their employment. The Agreement shall require participation in a rehabilitation program and such other requirements as set forth by the City. The City reserves the right to terminate an employee without providing him/her with a Last Chance Agreement. Employees under a Last Chance Agreement who test positive shall be terminated from employment with the City and this is not grievable under the grievance procedure. Employees may be given no more than one (1) chance for substance abuse rehabilitation during employment with the City. CWA- 51 656 ARTICLE 11 ENTIRE AGREEMENT The Union acknowledges that during negotiations resulting in this Agreement, it had the right and opportunity to make demands and proposals with respect to any and all subjects not removed by law from the area of collective bargaining and that the complete understanding and agreements arrived at by the parties after exercise of that right and opportunity are set forth in this Agreement. Therefore, the Union waives the right, during the term of this Agreement, to bargain collectively with respect to any subject or matter referred to or covered in this Agreement, and it particularly waives the right to bargain (except impact bargaining) over the City's exercise or any of its management's rights set forth in Article 6 of this Agreement, e.g., changing work hour schedule, transferring employees, laying off employees, etc. This Agreement may be amended by mutual agreement of the parties but any amendments must be in writing and signed by duly authorized representatives of the parties before it will be effective. CWA - 52 657 ARTICLE 12 SAVINGS If any provisions of this Agreement are subsequently declared by the proper legislative or judicial authority to be unlawful, unenforceable or not in accordance with applicable statutes or ordinances, all other provisions of this Agreement shall remain in full force and effect for the duration of this Agreement. Upon issuance of such a decision or declaration which is not appealed by either party, the parties shall, following a request by either party, negotiate in good faith on a substitute article, section or portion thereof. CWA - 53 658 ARTICLE 13 TERM OF CONTRACT This agreement shall be become effective upon City Commission approval, and shall remain in effect until the 30th day of September201 2. It shall be automatically renewed thereafter from year to year unless either party shall notify the other in writing sixty (60) days prior to the anniversary date that it desires to modify this Agreement. in the event such notice is given, negotiations shall begin not later than thirty (30) days prior to the anniversary date of the Agreement. CWA - 54 659 Executed by the parties hereto on the day of ,201 0. COMMUNICATIONS WORKERS OF AMERICA CITY OF MIAMI BEACH Richard McKinnon CWA President By: Jorge M. Gonzalez City Manager Approved by vote of the City Commission, October 27, 201 0. Matti Herrera Bower Mayor ATTEST: Robert Parcher City Clerk CWA - 55 660 RATIFICATION This Agreement was ratified on September 30, 2010 by a majority vote of bargaining unit members represented by Communications Workers of America (CWA), employed by the City of Miami Beach. Attesting to the above are CWA Local 3178's Negotiation Team members: Richard D. McKinnon, President Joseph Fisher, Vice President Jonathan Sinkes, Member-Elect Warren Green, Member-Elect Jason Cassanova, Member-Elect Martha Nino, Mem ber-Elect Alex Ott, Member-Elect Manuel Villar, Member-Elect CWA - 56 661 APPENDIX A CWA - 57 662 Exhibit #I ClassificationlCompensation Plan Classification I Range Classification I I Range I Clerk Coin Room Money Handler Clerk Typist Masonry Helper Account Clerk I Admin Aide I Data Entry Clerk Duplicating Equip Operator Permit Clerk I Police Records Technician Revenue Processor I Parking Enforcement Spec I Account Clerk II Meter Analyst Parking Meter Tech I Permit Clerk II Property Evidence Tech I Public Safety Specialist Revenue Processor I1 Admin Aide II Admin Secretary Buyer Engineering Assistant I Field Inspector I Financial Specialist I Painter Parking Dispatcher Account Clerk Ill Admin Asst I Communications Operator Dispatcher Trainee Parking Enforcement Spec II Parking Meter Tech II Code Compliance Officer I Commission Reporter I CWA - 58 663 HI5 HI6 HI7 HI8 H20 H20 H20 H20 H20 H20 H20 H22 H23 H23 H23 H23 H23 H23 H23 H24 H24 H24 H24 H24 H24 H24 H24 H25 H25 H25 H25 H25 H25 H26 H26 complaint Operator II Crime Analysis Specialist Financial Specialist II Carpenter I Dispatcher Engineering Assistant II Mason Property Evidence Tech II Carpenter II Code Compliance Officer II Commission Reporter II Financial Specialist Ill Police Fleet Specialist Planning Technician Engineering Assistant Ill Field Inspector II Crime Scene Technician I Police Photographer Air Conditioning Mechanic Code Compliance Admin. Crime Scene Technician II Building Inspector Electrical Inspector Electrician Elevator Inspector Engineering Inspector Mechanical Inspector Plumber Plumbing Inspector Pool Guard I Pool Guard II Lifeguard I Lifeguard II Lifeguard Lt. H26 H26 H26 H27 H27 H27 H27 H27 H28 H28 H28 H28 H28 H29 H30 H30 H31 H3 1 H34 H34 H34 H34 H34 H34 H34 H34 H34 H34 H34 H50 H52 H52 H56 H58 CWA - 59 664 Exhibit # 2a Fiscal Year 2009/2010 ClassificationlCompensation Plan (Effective in the 1st pay period ending in October 2009) Range Min Max Max H22 H23 Range Annual Annual Min H30 H31 $37,119.84 $38,233.43 Annual Annual $53,760.59 $55,373.41 $47,022.29 $48,432.96 H51 H52 $72,867.63 $75,782.34 Annual Annual H59 H60 $39,593.98 $40,781.79 $58,462.76 $60,801.26 Annual Annual $52,669.15 $54,775.91 $80,010.32 $83,210.72 Exhibit # 2b Fiscal Year 20091201 0 Ocean Rescue Compensation Plan (for Lifeguard I, Lifeguard II and Lifeguard Lieutenant) (Effective in the 1st pay period ending in October 2009) 1 I I I I I I I I I I Range Step J 7 H52 I weekly I Step D 1 48,695.45 1,872.90 I Step K 8 Annual Bi- I I H56 CWA - 60 Step E 2 50,643.54 1,947.83 56,966.91 2,191.03 H58 ( weekly I Step L 9 40,781.84 1,568.53 Annual Bi- weekly 59,245.74 2,278.68 I I Step M 10 Step F 3 52,669.27 2,025.74 59,245.74 2,278.68 Annual Bi- I I 54,775.95 2,106.77 42,005.22 1,615.59 45,900.1 8 1,765.39 61,615.46 2,369.83 Step G 4 61,615.46 2,369.83 50,643.54 1,947.83 43,265.32 1,664.05 64,079.98 2,464.61 47,277.35 1,818.36 64,079.98 2,464.61 Step H 5 52,669.27 2,025.74 Step I 6 44,563.34 1,713.97 48,695.45 1,872.90 66,643.22 2,563.20 69,309.08 2,665.73 54,775.95 2,106.77 45,900.18 1,765.39 50,643.54 1,947.83 56,966.91 2,191.03 47,277.35 1,818.36 52,669.27 2,025.74 54,775.95 2,106.77 CWA - 61 666 Exhibit #3 Fiscal Year 201 01201 1 ClassificationlCompensation Plan (Effective in the 1st pay period ending in October 2010) Range Min H23 H24 H25 H26 H27 H28 H29 H30 H31 Max Range Annual Annual Annual Annual Annual Annual Annual Annual Annual H52 H53 H54 H55 H56 H57 H58 H59 H60 Min $38,233.43 $39,380.44 $40,561.85 $41,778.71 $43,032.07 $44,323.03 $45,652.72 $47,022.29 $48,432.96 Max Annual Annual Annual Annual Annual Annual Annual Annual Annual $55,373.41 $57,588.34 $59,891.88 $62,287.55 $64,779.06 $67,370.22 $70,065.03 $72,867.63 $75,782.34 $40,781.79 $42,005.24 $43,265.40 $44,563.37 $45,900.18 $47,277.26 50,643.54 $52,669.15 $54,775.91 $60,801.26 $63,233.32 $65,762.65 $68,393.1 6 $64,079.98 $73,974.05 69,309.08 $80,010.32 $83,210.72 CWA - 62 667 Exhibit #4 Fiscal Year 201 112012 ClassificationlCompensation Plan (Effective in the 1st full pay period ending in April 2012) Range Min Max H20 H21 H22 H23 H24 $52,194.75 $53,760.58 $55,373.41 $57,034.61 $59,315.99 Range Annual Annual Annual Annual Annual H30 H31 $36,038.68 $37,119.84 $38,233.44 $39,380.43 $40,561.85 H37 H50 H51 H52 H53 Min Annual Annual Max Annual Annual Annual Annual Annual $48,432.96 $49,885.95 $62,514.71 $39,593.97 $40,781.80 $42,005.24 $43,265.40 $98,765.49 $57,900.62 $60,216.64 $62,625.30 , $65,130.32 $75,053.66 $78,055.81 H59 H60 Annual Annual $54,249.22 $56,419.1 9 $82,410.63 $85,707.04 APPENDIX CWA - 63 668 7. Contract Article(s) Alleged Violated: 8. Suggested Adjustment: ONSE (FROM Dl ESENTER) - CWA - 64 669 THIS PAGE INTENTIONALLY LEFT BLANK COMMISSION ITEM SUMMARY Condensed Title: A Resolution Accepting The Recommendation of The City Manager Pertaining To The Ranking of Proposals Pursuant to ' Request for Proposals (RFP) No. 24-0911 0, for Management andlor Development of The Byron Carlyle Theater Complex; Authorize The Administration To Enter Into Negotiations With The Broward Stage Door Theater Co. Inc. Key Intended Outcome Supported: Maximize Miami Beach as a Brand Destination and Diversify Business Base in Miami Beach Supporting Data (Surveys, Environmental Scan, etc.): The 2009 Community Satisfaction Survey indicated that respondents attended performances at the Byron Carlyle Theater less than 1 time (0.64) per year on average. Although Broward Stage Door Theater Co, Inc was ranked number one (1) bythree out of the five (5) Committee members, the Committee said it would be happy to have either Broward Stage Door Theater Co, Inc or New Theatre at the Byron Carlyle. The Evaluation Committee stated that both proposers were strong candidates and recommended the Administration to approach both. A motion was presented by Sol Genet, seconded by Liliam Lopez, and unanimously approved by all Committee members for recommending the Administration to initiate discussions with the two (2) top ranked proposers: Broward Stage Door Theater Co, Inc and New Theatre. Issue: Shall the Mayor and the City Commission authorize the Administration to enter into negotiations with the Broward Stage Door Theater Co, Inc for the management of the Byron Carlyle Theater? Item SummarylRecommendation: This item was presented to the Finance and Citywide Projects Committee at their regular meeting July 29, 2010. The Administration expressed concern with entering into a long-term agreement (initial term of five (5) years, with an option to renew for an additional five (5) year term) essentially rent free. The Scope of Services for this RFP sought proposals with cultural themed uses for the facility. The Administration believes that eliminating this restriction would yield additional proposals that might generate a greater economic impact for the neighborhood, which should be considered before entering into a long-term rent-free agreement. The Committee discussed the item and unanimously recommended awarding the management agreement to Broward Stage Door Theatre Company with benchmarks included. i ; The Administration agrees that if the Commission wishes to pursue an agreement for cultural programming at this location, that Broward Stage Door Theatre offers the City several advantages over the other bidders. ACCEPT THE CITY MANAGER'S RECOMENDATION. On February 3,2010, the Mayor and City Commission approved the issuance of Request for proposals (RFP) No. 24-09/40, for Management andlor Development of the Byron Carlyle Theater Complex. The RFP was issued on February 18,2010, with an opening date of April 19,2010. A pre-proposal conference to provide information to the proposers submitting a response was held on March 8, 2010. Additionally, four (4) site visits were offered to potential proposers on March 8, 2010, March 23, 2010, March 30,2010, and April 8,2010. BidNet issued bid notices to 151 prospective proposers, BidSync (formerly known as RFP Depot) issued bid notices to 44 prospective proposers, and 175 proposers were notified via mail, e-mail, and fax circulation, which resulted in the receipt of three (3) proposals. The City Manager via Letter to Commission (LTC) No. 128-201 0, appointed an Evaluation Committee ("the Committee"). On May 21,2010, the Committee convened and a quorum was attained. The Committee discussed their individual perceptions of the contractor's qualifications, experience, proposed revenues, and competence, and ranked the proposers being evaluated accordingly. Advisory Board Recommendation: The Finance and Citywide Projects Committee discussed the item at their July 29, 2010 meeting and unanimously recommended awarding the management agreement to Broward Stage Door Theatre Company with benchmarks included. Financial Information: I I Approved Amount Funds: OBPl I Account 1 Total Financial Impact Summary: The Administration's intent is to eliminate the City's financial obligation with the privatization of the Byron Carlyle. It should be noted that there are some personnel expenses that are shared between the Byron Carlyle and the Colony theaters and staff projects an additional $5,200 in expenses at the Colony if this agreement is awarded. City Clerk's Office Legislative Tracking: I Max Sklar, TCD Director, Ext. 61 16 MIAMIBEACH City of Miami Beach, 1700 Convention Center Drive, Miami Beach, Florida 33 139, www.miamibeachfl.gov COMMISSION MEMORANDUM ers of the City Commission DATE: October 27, 201 0 SUBJECT: A RESOLUTION OF THE MAYOR AND ClTY COMMISSION OF THE ClTY OF MIAMI BEACH, FLORIDA, ACCEPTING THE RECOMMENDATION OF THE ClTY MANAGER PERTAINING TO THE RANKING OF PROPOSALS PURSUANT TO REQUEST FOR PROPOSALS (RFP) NO. 24-09/10, FOR MANAGEMENT AND/OR DEVELOPMENT OF THE BYRON CARLYLE THEATER COMPLEX; AUTHORIZING THE ADMINISTRATION TO ENTER INTO NEGOTIATIONS WITH BROWARD STAGE DOOR THEATRE CO. INC. ADMINISTRATION RECOMMENDATION Adopt the Resolution. FUNDING Each fiscal year of the Theater's operation has yielded operating deficits for the Byron Carlyle, with the largest being $195,000 in 2006. In 2009, the last full year of operation, the operating deficit was approximately $40,000, and it is projected that the Theater will have an operating loss of almost $66,000 in the current fiscal year. The Administration's intent is to eliminate the City's financial obligation with the privatization of the Byron Carlyle and would seek to do so in the negotiation of a management agreement with the successful bidder. It should be noted that currently there are some personnel expenses that are shared between the Byron Carlyle and the Colony theaters. With the privatization of the Byron Carlyle there would be some additional expenses that the Colony would have to absorb. However, staff anticipates that the Colony would benefit from additional bookings that would help to offset the expenses. At this time, staff estimates an additional $5,200 in expenses (net of new revenues) at the Colony if this agreement is awarded. KEY INTENDED OUTCOME SUPPORTED Maximize Miami Beach as a Brand Destination and Diversify Business Base in Miami Beach. ANALYSIS The purpose of this Request for Proposals (RFP) is to select a proposer for the Management and/or Development of the Byron Carlyle Theater Complex, located at 500 71st Street, between Byron Avenue and Carlyle Avenue. The Byron Carlyle Theater Complex (the "Theater"), located at 500 71'' Street, between Byron Avenue and Carlyle Avenue, originally opened in December 1968 as twin cinemas hosting Commission Memorandum RFP # 24-09-10 For Management and/or Development of the Byron Carlyle Theater Complex October 27, 2010 Page 2 first-run movies in the heart of North Beach. A total of 994 seats were originally built, with the large auditorium having a capacity of 590 seats. In the mid-1970s, the Theater was re- developed into a multiplex cinema; the larger auditorium to the west was subdivided into five (5) smaller theaters. Following the opening of the Regal Cinemas on Lincoln Road, the theater was closed by its owner, Wometco Enterprises, and the City of Miami Beach purchased it in 2001, for $1.7 million. The North Beach Town Center Plan, adopted in July, 2007, identifies a wide range of strategies to attract new development. The most important of the strategies identified includes the assemblage of one or two sites large enough to provide the critical mass of activity necessary to serve as anchors to support smaller site development in the district; to program the Byron Carlyle Theater and the North Beach Bandshell as cultural anchors to bookend both sides of the district; and to provide convenient public parking to lower the cost of development. The Byron Carlyle Theater property was identified as an important piece of the Town Center redevelopment strategy because of the location, size, public ownership and potential to provide a cultural anchor. Undoubtedly, cultural facilities are proven magnets for economic revitalization, both for the business community and for residential development by making the community more attractive. Indeed, the purchase and renovation of the theater was intended for economic development purposes, as well as to assist the local talent by providing a venue for rehearsal, performances, office space, and to ensure that, once established, the arts would be able to remain in a rejuvenated North Beach. However, for the Byron Carlyle Theater to succeed in this role, a few of the other supporting elements of the plan should be underway. PAST COMMISSION DIRECTIVES Issuance of RFP/2008: In May of 2008, the City Commission directed the Administration to research and propose alternatives for the privatization of the Byron Carlyle Theater. Subsequently, at the July 9, 2008 Finance and Citywide Projects Committee meeting, the Committee recommended the issuance of a Request for Proposals (RFP) and directed staff to place this item on the July 16, 2008 City Commission agenda. RFP No. 39-07/08 was issued on July 22, 2008 and two proposals were received. The evaluation committee unanimously recommended to reject both proposals and to request the re-issuance of a new RFP for the Management and/or Development of the Byron Carlyle Theater Complex. The Finance and Citywide Projects Committee considered this matter at its meeting on March 10, 2009, and also recommended that the City reject both proposals and issue a new RFP. It was recommended that the new RFP should encourage potentially different uses for the facility, and should request superior evidence of financial capacity of the proposers and demonstrated capacity to sustain the proposed programming. Visioning Sessions: Following discussion at the April 22, 2009 City Commission meeting, the Mayor and Commission directed the Administration to engage the community in a discussion of possible alternative uses for the Byron Carlyle Theater before issuing another RFP. Staff of the Department of Tourism and Cultural Development, in conjunction with Planning Department staff, convened two public visioning sessions to discuss the future of the theater. The first was held on June 17, 2009 at 9 a.m. in the City Commission chambers with 25 representatives of the various nonprofit arts groups which apply for grants funding through the Cultural Arts Council. The second was held on June 24, 2009 at 6:30 p.m. at the Byron Carlyle Theater. Both meetings were publicly noticed on the City's website and in the Miami Herald. To Commission Memorandum RFP # 24-09-10 For Management and/or Development of fhe Byron Carlyle Theater Complex October 27, 2010 Page 3 publicize the June 24 meeting, 3,000 palm cards in both English and Spanish were distributed to North Beach businesses, residents and facilities, including the North Shore Park Youth Center, the Hispanic Community Center and the Normandy Pool. Twenty-five (25) residents attended this second meeting. At both meetings each individual in attendance was invited to speak, and questionnaires were distributed requesting opinions and comments on current and future uses. The comments of the arts groups were typical: users of the Theater like its size but complained about its lack of wing space, limited backstage area and rental costs; non-users complained about its location, neighborhood ambience and lack of parking. The responses at the second community meeting were a bit more surprising, especially considering that over 90% of the residents in attendance had never attended a single performance at the Theater: the desire for the Byron Carlyle to remain a theater of some kind seemed to be unanimous. A few individuals suggested dinner cinemaltheater or cinema brewpub concepts, and several expressed interest in film screenings, or in moving the Cinematheque there. A couple of people asked for a resident theater company. Nearly everyone wanted to see a cafe or restaurant included in future plans. Other Uses for Facility: Previously, the City Commission had also directed staff to contact educational institutions to inquire about whether they might have an interest in the facility. Contacted institutions included the University of Miami, Miami-Dade College, Florida International University, Florida Atlantic University, Barry University, the University of Florida, University of South Florida, University of Central Florida, Nova Southeastern University, St. Thomas University and Johnson & Wales University. Florida Atlantic University, University of Florida and Miami Dade College requested additional information, but have yet to express an interest in the facility. In terms of the discussion regarding reactivating a movie theater at the Byron Carlyle Theater, City Staff was directed to contact theater chains to gauge their interest in the facility. Muvico was the only major movie theater chain that expressed the slightest interest; however, they would require the City to fund the build-out of any improvements they require. They subsequently stopped responding to City calls. While it seems to be a desire to have a major movie theater chain like an AMC, Regal, Cobb or Muvico, industry conditions don't support that type of operation. Theater chains have invested heavily the past decade in stadium seating and digital projection, and the model of distribution has changed such that the "window" from when a movie is in theaters to being on video or available for digital download has shrunk considerably, something being pushed further by studios who are frequently spending more on the marketing than the production of a film, and would like to have that marketing stay fresh to consumers through this shortened window. As a result, no major chain will likely operate a single theater venue. While build-out of the Byron Carlyle to accommodate additional screens is an option that some may explore, that process will take much longer and/or may require capital investment from the City. In the future there may be an independent movie company interested. These typically run more avant-garde or independent films and thus are not under the same pressures as the mainstream chains The City Administration has also initiated discussions with City National Bank regarding a potential joint venture which would include a parking facility. Discussions have been limited thus far, but inclusion of the Byron Carlyle Theater is one alternative being considered because it is adjacent to the property owned by City National Bank. Please note that if the City and City National Bank agree to terms, design and construction is still a three to five year process. Additionally, there has been a suggestion that the North Shore Library could possibly Commission Memorandum RFP # 24-09-10 For Management and/or Development of the Byron Cariyle Theater Complex October 27, 2010 Page 4 be relocated to the empty portion of the Byron Carlyle building. However, no funding has been identified for such a move. Neighborhoods and Communify Affairs Commiftee/ZOO9: This subject was discussed again at the October 2009 Neighborhoods and Community Affairs Committee meeting following a discussion at the September 9, 2009 City Commission meeting regarding the potential marketing of the property by a broker for either rental or sale. At the time, the City had just received an "Opinion of Value" for the property. Much of the subsequent Committee discussion centered on reactivating a movie theater operation at the Byron Carlyle with potentially some food, beverage and alcohol component, rather than selling the facility. Also discussed was the possibility of removing Global Spectrum from managing the facility to make it less expensive for users to rent, as well as whether or not the City should assume responsibility for directly programming the facility, instead of operating it as a rental facility. The Administration advised the Committee that eliminating Global Spectrum and/or having the City program the facility would require additional staff, which carries a cost that is not currently funded. The Administration also advised the Committee that the Cultural Arts Council (CAC) approved a new grant category for Fiscal Year 2010/11 called the "Byron Bonus" which would fund the rental fees and hard costs associated with renting the Byron Carlyle for any non-profit groups awarded funding in this category. The Committee directed staff to return to the Neighborhoods/Community Affairs Committee with its suggestions for the programming and management of the Byron Carlyle Theater, such as having an organization selected to be responsible for also making the facility available for other programming. It was understood by staff that the expectation was that the organization selected would assume all costs, providing a savings to the City. At the January 19, 2010, Neighborhoods and Community Affairs Committee, the Administration reviewed the history of this item and also explained that recently a number of organizations toured the facility. Some of the organizations were referred by members of the City Commission, while others were initiated through the Tourism and Cultural Development Department. Committee members present also clarified to the Administration that they would also consider subsidizing costs at the Byron if a resident company were able to activate the space regularly. The Committee unanimously recommended that the Administration immediately issue an RFP for management and/or development of the Byron Carlyle Theater. Additionally, the Committee unanimously recommended the Administration simultaneously work with the City's broker in order to determine if there is a commercial client interested in leasing or purchasing the facility. All options would be presented to the City Commission for consideration. The Koniver Stern Group conducted a site visit of the facility, but has not been successful in finding an interested commercial entity to date. SCOPE OF SERVICES Based on the direction provided at the Neighborhoods and Community Affairs Committee Meeting, the following was the Scope of Work and Specifications for the RFP: Summary: The City was interested in proposals for use of the existing theater portion of the building as a theater or with some similar cultural use. Proposers were encouraged to submit proposals that would address the needs of the community and provide both daytime and nighttime uses if Commission Memorandum RFP # 24-09-10 For Management and/or Development of the Byron Carlyle Theafer Complex October 27, 2010 Page 5 possible. The City would also consider proposals that incorporate the closed, western portion of the building, or for only the western portion of the building, for a use compatible to the theater use. The City was open to proposals that considered the use of the current theater facility on the eastern portion of the complex only, the unrenovated western portion of the facility only, or for the overall complex. Proposers had the ability to submit proposals for the use or development of the entire complex or only for one of the two portions of the complex. Collaborations among theater, film, dance, and other performing and/or presenting cultural organizations are encouraged. The proposer would be responsible for any and all renovation or alteration to the portions of the facility requested via this RFP, including funding for any renovation or alteration; maintenance and equipment; marketing; coordination of utilization; and any and all other responsibilities as may be required for the proposed use. It was anticipated that the successful proposer would negotiate with the City for a long-term contract with an initial term of five (5) years, with an option to renew for an additional five (5) year term, at the City's sole discretion. Goals and Objectives: The goal of this RFP was the selection of a public or private (not-for-profit or for-profit) entity to develop and implement active cultural uses for all or part of the complex, while managing and operating all or a portion of the complex in a first class, high quality, state-of-the-art manner that meets the needs of the residents, visitors, tourists, City businesses, and the general public. To that end, proposals were to present a comprehensive, well-articulated program for use and/or development of a portion or all of the complex, complete with supporting documentation, including design sketches, if necessary, that demonstrated how the proposed project would enhance the vitality of the 71st Street corridor and neighboring business district (refer to the North Beach Town Center Plan provided with the RFP). A theatrical or other cultural use (film, dance, theater, or other performing art) for the facility was desired by the City. Proposers were encouraged to submit proposals that provided both daytime and nighttime uses. As previously stated, the City would accept proposals for the use and development of the entire complex or only for one portion of the complex. Proposers had to present their experience, reputation and financial and managerial capability appropriate for the successful development and operation of a project of the type they are proposing, and they had to present uses for the portion(s) of the site for which they are submitting this proposal. If renovations are anticipated, the proposers must demonstrate their experience in previously overseeing a similar renovation project. Furthermore, the City has multiple objectives which proposers had to successfully address in their response to this RFP: How they would efficiently operate the facility, while eliminating or minimizing direct costs to the City; How they would properly maintain and safeguard the City's capital investment in the facility through the exercise of the highest standards of maintenance and preservation and, as the need arises, make or recommend capital improvements; How they would manage day-to-day operations of all or the portion of the facility for which the proposer is submitting a proposal; How they would oversee and provide superior services to users of the facility and Commission Memorandum RFP # 24-09-10 For Management and/or Development of the Byron Carlyle Theater Complex October 27, 2010 Page 6 patrons and visitors attending the facility, thereby maximizing customer satisfaction as exhibited by an industry-wide positive image; How they would achieve the greatest possible profit by developing and implementing innovative ways to generate revenue and penetrate new markets, attract new events and promote the facility to maximize usage, during daytime and evening hours; How they would actively solicit, promote or co-promote the facility and any proposed program(s)/services; How they would create a comprehensive strategic plan for the future of all or a portion of the facility; How they would achieve all objectives with the least possible disruption to the City and its citizens; How they would achieve all objectives in a professional manner, consistent with best industry practices and all applicable laws and ordinances; How they would respond to the ever-changing needs of the community and users of the facility with recommendations for expansions, renovations and upgrades of services; RFP PROCESS On February 3, 2010, the Mayor and City Commission approved the issuance of Request for proposals (RFP) No. 24-09/10, for Management andlor Development of the Byron Carlyle Theater Complex. RFP No. 24-09/10 was issued on February 18, 2010, with an opening date of April 19, 201 0. A pre-proposal conference to provide information to the proposers submitting a response was held on March 8, 2010. Additionally, four (4) site visits were offered to potential proposers on March 8, 2010, March 23, 2010, March 30, 2010, and April 8, 2010. BidNet issued bid notices to 151 prospective proposers, BidSync (formerly known as RFP Depot) issued bid notices to 44 prospective proposers, and 175 proposers were notified via mail, e-mail, and fax circulation, which resulted in the receipt of following three (3) proposals: 1. Bollywood/Hollywood Productions, Inc. 2. Broward Stage Door Theatre Co, Inc 3. New Theatre The City Manager via Letter to Commission (LTC) No. 128-2010, appointed an Evaluation Committee ("the Committee") consisting of the following individuals: o Sol Genet, Vice-Chair of the Cultural Arts Council o Eric Lawrence, North Beach Resident o Liliam Lopez, PresidentICEO of the South Florida Hispanic Chamber and former CAC Member o Joyce Meyers, Principal Planner o David Philips, CFO of the New World Symphony o Alan Randolph, North Beach Resident o Daniel Veitia, North Beach Resident On May 21, 2010, the Committee convened and a quorum was attained. Resident, Alan Randolph, and CFO of the New World Symphony, David Phillips were unable to participate. Gary Farmer, Cultural Affairs Program Manager from the Tourism and Cultural Development Department, addressed the Committee and provided general information on the scope of Commission Memorandum RFP # 24-09-10 For Management and/or Development of the Byron Carlyle Theater Complex October 27, 2010 Page 7 services. The Committee members were also provided with Performance Evaluation Surveys and presentations from all responsive proposers. The following Evaluation Criteria was used to evaluate and rank the groups or individuals: 1) Experience and qualifications of the proposer and key staff 30 points (including development and/or management of similar uses) 2) Organization philosophy and approach for use of all or some 30 points portion of the facility, including the demonstrated ability to achieve the goals and objectives of the City, including the quality, suitability and sustainability of the programlconcept within the community; ability to meet proposed project timelines; and marketing plan 3) Term sheet to include proposed revenue to the City 10 points 4) Preliminary five-year pro forma, including capital pro forma (if applicable) 15 points 5) Staffing, operating and transition plan 15 points The Committee discussed their individual perceptions of the contractor's qualifications, experience, proposed revenues, and competence, and ranked the proposers being evaluated accordingly. RANKING ORDER 1. Broward Stage Door Theatre Co, Inc 2. New Theatre 3. Bollywood/Hollywood Productions, Inc. Although Broward Stage Door Theatre Co, Inc was ranked number one (1) by three out of the five (5) Committee members, the Committee expressed that it would be happy to have either Broward Stage Door Theatre Co, Inc or New Theatre at the Byron Carlyle. Both of these theater groups have offered to accommodate dates already booked at the Byron for next Commission Memorandum RFP # 24-09-10 For Management and/or Development of the Byron Carlyle Theater Complex October 27,2010 Page 8 season by other groups, and both are favorable to offering discounted tickets to Miami Beach residents. The Evaluation Committee stated that both proposers were very strong candidates and recommended the Administration to approach both to really determine and discuss the most adequate and suitable programming to the space and the community, proposed package discounts for residents, review potential small renovations to the space at no cost to the City, and truly prove that they will achieve the multiple goals and objective for the facility. A motion was presented by Sol Genet, seconded by Liliam Lopez, and unanimously approved by all Committee members for recommending the Administration to initiate discussions with the two (2) top ranked proposers: Broward Stage Door Theatre Co, Inc and New Theatre. Broward Stage Door Theatre Co, Inc. Broward Stage Door Theatre Co, Inc ("Stage Door TheatreJJ) is a non-profit 501(c)3 that was formed in 1993. The Stage Door Theatre proposes to operate a professional theatre company in the eastern portion of the Byron Carlyle Theater. The Stage Door Theatre proposes a high quality state-of-the-art performing arts facility that will operate with the needs of the residents, city businesses, tourism, and the general public in mind. The performance schedule includes both matinees and evenings, keeping the facility operating both weekdays and weekend. Programming at the theatre would include both musicals and plays, with an awareness of family values and appropriate content for a municipal venue. The Stage Door Theatre is best known for productions of large scale musicals, but has also received critical acclaim for dramas as well. Stage Door Theatre proposes to operate the facility at no cost to the City, with regard to utilities, personnel, insurance, and other daily operating expenses. The Stage Door Theatre proposes to pay $1 per year in rent, so that all moneys collected from the box office will be reinvested in the organization, making it possible for the company to continue to grow and expand its offerings. Even though the Stage Door Theatre is a 501 (c)3 nonprofit corporation, it does not rely on grants and it is fully funded by its revenues. Stage Door Theatre has managed its current location in Coral Springs for seventeen (17) years. It successfully operated a second location in Wilton Manors for seven (7) years. The Stage Door has a proven record of marketing prowess and has shown its ability to develop and maintain a new and loyal audience base. The organization is familiar with the need to generate revenue and create financial stability. As a team, Derelle Wilson Bunn and David R. Torres, have produced over 200 shows. They have also produced on the national tour level, and Off-Broadway. The theatre company currently produces approximately twelve (12) - fifteen (1 5) shows per year. One of the organization's goals is the use of young talent from nearby universities and high schools, furthering their education and career goals. In addition, the Stage Door Theatre will cooperate with other arts organizations and community projects by making possible for them to take advantage of the facility, as allowed by scheduling. Further, the organization welcomes the opportunity to have arts exhibits in the lobby, and to work whenever possible with other groups to raise arts awareness. Commission Memorandum RFP # 24-09-10 For Management and/or Development of the Byron Carlyle Theater Complex October 27, 2010 Page 9 The Stage Door Theatre is an active community partner, donating tickets to events that range from fund raisers for the Boy Scouts, to helping support the Make a Wish Foundation. The Stage Door Theatre's goal is to establish the Byron Carlyle as a facility that contributes to the vibrancy and beauty of the area, while becoming a destination which will further the economic growth and development of the surrounding community. New Theatre New Theatre is a 501(c)3 non-profit corporation. New Theatre relies heavily on grants from Miami-Dade County Department of Cultural Affairs office, the Funding Arts Network, the National New Play Network and other similar organization in addition to ticket sales to support its productions. New Theatre is a live professional theatre company which produces classical and new works. New Theatre has been in existence for twenty four years, having received many awards for its productions. New Theatre wishes to inhabit the renovated portion of the Byron Carlyle Theater in its current condition with the sole exception of adding showers to the stage restrooms. New Theatre is looking for a partnership with the City for a rent-free facility in which to continue to produce live theatre. In addition, New Theatre would intend that all revenue be used to support the activities of New Theatre. New Theatre anticipates that the City of Miami Beach would maintain the facility with the exception of day-to-day maintenance and cleaning needs. The only modification to the existing floor plan, which New Theatre would request the City make, is the addition of showers to the stage restroom/dressing rooms as the existence of showers is required by the Actors' Equity Union. New Theatre intends to operate a live theatre with a full year-round season. New Theatre currently produces six (6) - eight (8) plays per season, each running four to five weeks. New Theatre has approximately 450 subscribers and sells many single tickets as well. The larger Byron Carlyle Theater will permit New Theatre to put in place plans which the current space has not allowed included, but not limited to, the sharing of the space with other organizations. In addition, New Theatre has discussed the implementation of an acting school to be taught by Artistic Director Ricky Martinez and New Theatre's company of actors. The theatre is run on a day-to-day basis by Eileen Suarez, the Theatre's Managing Director, who has been in this position for almost fifteen (15) years. The theatre is also managed and run by Ricky Martinez, the Artistic Director, who has been in this position for in excess of five (5) years, and prior thereto was the Assistant Artistic Director. FINANCE AND CITYWIDE PROJECTS COMMITTEE RECOMMENDATION This item was presented to the Finance and Citywide Projects Committee at their regular meeting July 29, 2010. The Administration expressed concern with entering into a long-term agreement (initial term of five (5) years, with an option to renew for an additional five (5) year term) essentially rent free. The Scope of Services for this RFP sought proposals with cultural themed uses for the facility. The Administration believes that eliminating this restriction with the same flexibility on rent would yield additional proposals that might generate a greater economic impact for the neighborhood, and which should be considered before entering into a long-term rent-free agreement. Commission Memorandum RFP # 24-09-10 For Management and/or Development of the Byron Carlyle Theater Complex October 27,2010 Page 10 The Committee discussed the item and unanimously recommended awarding the management agreement to Broward Stage Door Theatre Company with benchmarks included. ADMINISTRATION RECOMMENDATION While both proposals have their strengths, the Administration agrees with the Finance and Citywide Projects Committee that if the desire is to continue cultural uses at the facility, Broward Stage Door Theatre offers the City several advantages over the other bidders. Its proven record of market development is evidenced by its annual sales revenue of more than $1.4 million, ten times greater than that of New Theatre. Stage Door also is proposing to offer twice as many productions as New Theatre, which will mean more active nights for the Byron Carlyle and its surrounding neighborhood. The Administration also believes that Stage Door's market-driven programming, which is geared to general audiences rather than to theater aficionados, has the better chance for success in the North Beach neighborhood. Moreover, New Theatre is seeking support from the City for ongoing maintenance and capital improvements, while Stage Door does not. CONCLUSION The Administration recommends that the Mayor and City Commission of the City of Miami Beach, Florida accept the recommendation of the City Manager pertaining to the ranking of proposals pursuant to Request for Proposals (RFP) No. 24-09/10, for Management and/or Development of the Byron Carlyle Theater Complex; Authorize the Administration to enter into negotiations with Broward Stage Door Theatre Co. Inc.; and further authorize the Mayor and City Clerk to execute an agreement upon the conclusion of successful negotiations by the Administration. During negotiations, the Administration will include annual benchmarks, as well as attempt to obtain more of a market rate rent instead of $1 per year as proposed by Broward Stage Door. T:\AGENDA\201O\October 27\Regular\RFP-24-09-10 Byron Carlyle - Memo (2).doc RESOLUTION NO. A RESOLUTION OF THE MAYOR AND ClTY COMMISSION OF THE ClTY OF MIAMI BEACH, FLORIDA, ACCEPTING THE RECOMMENDATION OF THE ClTY MANAGER PERTAINING TO THE RANKING OF PROPOSALS PURSUANT TO REQUEST FOR PROPOSALS (RFP) NO. 24-09/10, FOR MANAGEMENT AND/OR DEVELOPMENT OF THE BYRON CARLYLE THEATER COMPLEX; AUTHORIZING THE ADMINISTRATION TO ENTER INTO NEGOTIATIONS WITH BROWARD STAGE DOOR THEATRE CO. INC. WHEREAS, the City of Miami Beach purchased the Byron Carlyle Theater in 2001 and renovated the facility into a performance theater; and WHEREAS, the City's intent was for the Byron Carlyle to serve as a catalyst to the redevelopment of the 71St Street corridor in North Beach; and WHEREAS, since reopening the Byron Carlyle in 2003, the City has subsidized the operating deficit of the facility ; and WHEREAS, bookings at the Byron Carlyle have historically not been strong enough to activate the space and neighborhood regularly; and WHEREAS, the Neighborhoods and Community Affairs Committee, at its meeting on January 19, 201 0 unanimously recommended that the Administration issue a Request for Proposals for the management of the Byron Carlyle; and WHEREAS, on February 3,201 0, the Mayor and City Commission approved the issuance of Request for Proposals (RFP) No. 24-0911 0 for the Management andlor Development of the Byron Carlyle Theater (the RFP); and WHEREAS, the RFP was issued on February 18,201 0 with an opening date of April 19,201 0; and WHEREAS, a pre-proposal meeting was held on March 8, 2010, and four (4) additional site visits were offered to potential proposers, which resulted in the receipt of three (3) proposals; and WHEREAS, the City Manager via Letter to Commission (LTC) No. 128-2010, appointed an Evaluation Committee ("the Committee"); and WHEREAS, the Committee convened on March 21,201 0 to review the proposals and listen to presentations; and WHEREAS, the Evaluation Committee unanimously recommended the Administration initiate discussion with the two (2) top ranked proposers, Broward Stage Door Theater Company and New Theater; and WHEREAS, at its meeting on July 29, 201 0, the Finance and Citywide Projects Committee discussed the item and unanimously recommended Broward Stage Door Theatre Company; and WHEREAS, the City Manager, after conducting his own due diligence and independent review of the proposals, concur's with the Finance and Citywide Projects Committee recommendation; and WHEREAS, Broward Stage Door has a proven track record of market development, as evidenced by its annual sales revenue of more than $1.4 million, and proposes to offertwice as many productions as New Theater, which will activate the neighborhood more frequently; and WHEREAS, Broward Stage Door also provides market-driven programming geared toward general audiences, which is better suited for the North Beach neighborhood; and WHEREAS, the City Manager recommends that the Mayor and City Commission authorizes the Administration to enter into negotiations with Broward Stage Door Theater Co, Inc., as the recommended proposer. NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, the Mayor and City Commission hereby accept the recommendation of the City Manager, pertaining to the ranking of proposals pursuant to Request for Proposals (RFP) No. 24-0911 0, for Management andlor Development of the Byron Carlyle Theater Complex, and authorize the administration to enter into negotiations with Broward Stage Door Theatre Co. Inc. PASSED AND ADOPTED this day of ,2010. ATTEST: MAYOR: CITY CLERK JMGIHFIMS T:\AGENDA\201O\September 15\Regular\RFP-24-09-10 Byron Carlyle - RESO.doc APPROVED AS TO THIS PAGE INTENTIONALLY LEFT BLANK City of Miami Beach, 1700 Convention Center Drive, Miami Beach, Florida 331 39, ymw.miarnibeachfl.~ov OFFICE OF THE CITY CLERK, Robert Parcher, City Clerk Tel: (305) 673-741 1, Fax: (305) 673-7254 COMMISSION MEMORANDUM To: Mayor Matti Herrera Bower and Members of the City Commission From: Jorge M. Gonzalez, City Manager Date: October 27,201 0 Subiect: BOARD AND COMMITTEES ADMINISTRATION RECOMMENDATION: That appointments be made as indicated. ANALYSIS: Attached are the applicants that have filed with the City Clerk's Office for Board and Committee appointments. VACANCIES . -. BOARD OR COMMITTEE: TOTAL MERS, ' APPOINTED BY: , - . TOTAL VAC PAGE . Affordable Housing Advisory 11 City Commission Committee 5 Page I Beautification Committee 8 Commissioner Jerry Libbin 1 page 4 Community Development Advisory 14 Commissioner Ed Tobin 1 Page 11 Committee Commissioner Jorge Exposito 1 Fine Arts Board 14 Commissioner Ed Tobin 1 Page 18 Commissioner Jerry Libbin 2 Commissioner Jorge Exposito 1 Gay, Lesbian, Bisexual and 15 Mayor Matti Herrera Bower 1 Page 19 Transgender (GLBT) a Agenda Itern We are committed to providing excellent public service and safety to all who live, work and play in 01 Date 10 - 27 -1 0 687 VACANCIES BOARD OR COM Health Advisory Committee I1 City Commission 5 Page 21 Hispanic Affairs Committee 7 Mayor Matti Herrera Bower Housing Authority 5 Mayor Matti Herrera Bower 1 Page 26 Marine Authority 7 Commissioner Ed Tobin 1 Page28 Miami Beach Commission For 2 1 Commissioner Jonah M. Wolfson 1 page 29 Women Miami Beach Sister Cities Program 24 Mayor Matti Herrera Bower 6 page 31 - -- Normandy Shores Local Gov. 3 City Commission Neighborhood Impv. Police Citizens Relations Committee 17 Mayor Matti Herrera Bower 1 page 37 Production Industry Council 7 Commissioner Deede Weithorn 1 Page 39 Safety Committee 14 Commissioner Jorge Exposito 1 page 40 Single-Family Residential Review 3 Jorge M. Gonzalez, City Manager 3 page 41 Panel VACANCIES BOARD OR COMMITTEE: TOTAL MBRS. APPOINTED BY: ' : TOTAL VAC PAGE Attached is breakdown by Commissioner or City Commission: JMG: REPIlg NON-CITY COMMISSION COMMITTEES Citizen's Oversight Committee Greater Miami Convention and Visitors Bureau Metropolitan Planning Organization Tourist Development Council Miami-Dade County Homeless Trust Board Performing Arts Center Trust (PACT) Dade Cultural Alliance Miami Dade League of Cities City Commission Committees Committee Position First Name Appointed by - - Chairperson Commissioner Deede Weithorn Mayor Bower Vice-Chair Commissioner Jerry Libbin Mayor Bower Alternate Commissioner Jonah Wolfson Mayor Bower Member Commissioner Jorge Exposito Mayor Bower Liaison Patricia Walker, Chief Financial Off. Chairperson Commissioner Michael Gongora Mayor Bower Vice-Chair Commissioner Jonah Wolfson Mayor Bower Alternate Commissioner Deede Weithorn Mayor Bower Member Commissioner Edward L. Tobin Mayor Bower Liaison Richard Lorber, Acting Planning Dir Chairperson Commissioner Jerry Libbin Mayor Bower Vice-C hair Commissioner Edward L, Tobin Mayor Bower Alternate Commissioner Michael Gongora Mayor Bower Member Commissioner Jorge Exposito Mayor Bower Liaison Barbara Hawayek, Code Compliant Monday, October 04,2010 Page 1 of 1 THIS PAGE INTENTIONALLY LEFT BLANK MIAMIBEACH City of Miami Beach, 1700 Convention Center Drive, Miami Beach, Florida 33 139, www.miarnibeachfl.gov COMMISSION MEMORANDUM TO: Mayor Matti Herrera Bower and Members of the City Commission FROM: Jorge M. Gonzalez, City Manag DATE: October 27, 201 0 APPOINTMENTS SUBJECT: BOARD AND COMMITTEE APPOINTMENTS - CITY COMMISSION ADMINISTRATION RECOMMENDATION Make appointments as indicated. BOARDS AND COMMITTEES 1 Affordable Housing Advisory Committee 2 Health Advisory Committee 43 yormandy shores Local Gov. Neighborhood Improvements F:\CLER\$ALL\MARIA-M\B & C\Cornrnission Memo B & C FOR 10-27-10.doc 693 Agenda Item RYAl Date ID-27-lO Board and Committees Current Members y~q%~.~n.a~ k~~gd~&$~~~~~$&~~2~$~&$~~~~$~$~@~~~~,&@~~~&~~~ nc-~~msr-~~x-"~~~--- ~$~~~~~~~T~$$ .Arm. cui.2c,. ; u... . *i,iu" *.A', 2r-k5.~.&i.>k.k223 Composition: The committee shall consist of eleven (11) voting members with two (2) year terms appointed at large by a majority vote of the Mayor and City Commission: One citizen: 1) actively engaged in the residential home building industry in connection with affordable housing; 2) actively engaged in the banking or mortgage banking industry in connection with affordable housing; 3) representative of those areas of labor actively engaged in home building in connection with affordable housing; 4) actively engaged as an advocate for low-income persons in connection with affordable housing; 5) actively engaged as a for-profit provider of affordable housing; 6) actively engaged as a not-for-profit provider of affordable housing (Housing Authority member); 7) actively engaged as a real estate professional in connection with affordable housing; 8) actively serving on the local planning agency pursuant to Florida Statute 5 163.3174 (Planning Board member); 9) who resides within the jurisdiction of the local governing body making the appointments; 10) who represents employers within the jurisdiction; 11) who represents essential services personnel as defined in the local housing assistance plan. Members of the Loan Review Committee, members of the Community Development Advisory Committee (CDAC), Planning Board and Miami Beach Housing Authority may be appointed to fill any of the eleven (11) categories and serve as ex-officio voting members on this committee. If due to conflict of interest by prospective appointees, or other reasonable factor, the City is unable to appoint a citizen actively engaged in these activities in connection with affordable housing, a citizen engaged in the activity without regard to affordable housing may be appointed. City Liaison: Richard Bowman To replace Roberto (6) Not For Profit 12/31/2010 City Commission DaTorre To replace Dr. (10) Rep. Empl. withlju 12/31/2011 City Commission Barry Ragone To replace Ada (4) Low-Income Advoc. 12/31/2011 City Commission Llerandi To replace Brian (1) Res. Home Bldg. 12/31/2010 City Commission Ehrlich To replace Lianne (11) Rep. Essential Serv 12/31/2011 City Commission Pastoriza Name Last Name PositionITitle Term Ends: Appointed by: Term Limit: . . .... -. . . . .- - ..... ... . ... . -- Clark Reynolds (9) Res. Juris. Local Gvt 12/31/2011 City Commission 12/31/13 David Smith (2) BankinglMortgage 12/31/2010 City Commission 12/31/15 Jonathan Fwd (8) Local Planning Board 12/31/2010 City Commission 12/31/13 Michael Burnstine (7) Real Estate Prof. 12/31/2011 City Commission 12/31/13 Robert Saland (5) For Profit 12/31/2010 City Commission 12/31/13 Stephanie Berman (3) Rep. Labor Home Bldg. 12/31/2010 City Commission 12/31/13 &,,,-----w--"m P - Monhy, October 04,2010 Page I of47 (Continued. ... Board and Committees Current Members Applicants Positionfritle Applicants PositionITitle Amy Perry Andrew Fischer Charles Urstadt Karen Fryd Marie Towers Mario Coryell Roberto DaTorre Steven Gonzalez .-w-.------=- Monday, October 04,2010 Page2 of 47 Board and Committees Current Members Composition: Eleven (11) voting members. Appointed by the City Commission at-large, upon recommendations of the City Manager: Two (2) members shall be the chief executive officers (CEO's) or their designated administrators from each of the following local hospitals: 1) Mount Sinai Medical Center, 2) South Shore Hospital, One (1) member shall be the Chief Executive Officer (CEO) from Stanley C. Myers Community Health Center or his/her designee administrator; Two (2) member shall be an administrator from an Adult Congregate Living Facility (ACLF). And/or an Assisted Living Facility (ACLF); One (1) member shall be a representative from the nursing profession; One (1) member shall be a health benefits provider; Two (2) members shall be physicians.; Two (2) members shall be consumers consisting of: 1) one (1) individual from the corporate level and ; 2) one (1) private individual. There shall be one (1) non-voting ex-officio representative from each of the following: The Miami Dade County Health Department and the Fire Rescue Department. The director of the Office of the Children's Affairs shall be added as a non-voting ex-officio member of the board. City Liaison: Cliff Leonard @&%= To replace Kathryn CEO Stanley Myers (NT 12/31/2010 City Commission Abbate To replace William CEO So. Shore (NTL) 12/31/2010 City Commission Zu bkoff To replace Joyce Adm. Adult Congr. Liv. 12/31/2010 City Commission Galbut To replace Laura Nursing Profession 12/31/2011 City Commission Leyva To replace ACLF 12/31/2010 City Commission Abraham Galbut ~TFw.y*A% 'jj ,w4w&-sl@ Name Last Name PositionITitle Term Ends: Appointed by: Term Linzit: - - - -. -- Baruch Jacobs M.D. Health Provider 12/31/2011 City Commission 12/31/15 Dr. Andrew Nullman Physician 12/31/2010 City Commission 12/31/14 Harold Foster Private Industry 12/31/2011 City Commission 12/31/15 Shaheen Wirk 12/31/2011 City Commission 12/31/15 Steven Sonenreich CEOIMt. SinailMH (NTL) 12/31/2010 City Commission Zalman Bacheikov Dentist (TL 12/31/2010) 12/31/2010 City Commission 12/31/10 Maria Ruiz ex-officio, Director of Children's Affairs Sonia Alburv re^. From the Health Council of South Fla Applicants Position/Title Applicants Position/Title U.-~m,.~Mm-~~---lm.-..m~m------m- Monday, October 04,2010 Page 21 of 47 (Continued. ... Board and Committees Current Members Charlotte Tomic Jared Plitt Rachel Schuster - - - - - Eli Strohli Paul Venette -"*,",*mm--"~--,~~--~-~-m~,~~ -- Monfluy, October 04,2010 Page 22 of 4 7 Board and Committees Current Members f ~Ndman~y~~fihoreSi&OC~~~@~~:;1Nd~~~;ii,I~~~~~~.~~~~~~~~:~b~.~.i1~I,~~~:I:I-';i$5:~ *'(.~..-?);%.;.y ~~~~~:-;:~q.~~;:;~,~;~gj~y;~~~~~~~~-r.-.~,~zx~~~v~~,~$~~~~~~~ ,. {=qk &,% cpv mp$,?.~:q;~ g~G~@qgqq-~;~~;; ::. .2!v :,,.. ,.; . .. . ., . ,.., .,,. .... , , ,.,, ,. .,.. ~..,u ,,.. s*.,..., ,.--:,&+.',: is., ' 1L,.,,.,..,,,,,.12L1 ' -~~~~~~~i!~;,~.~i.i:;i ~..,~L~~~~~z~Ls>~~.A~~~:& Composition: The Advisory Council shall be appointed by the Board of Directors (City Commission) and composed of three members of the Executive Committee of the Normandy Shores Homeowner Association. On behalf of the Board of Directors, the City Clerk shall solicit from the Executive Committee the eligibity list of its members for appointment consideration. The Advisory Council shall be composed of the three members of the Executive Committee of the Normandy Shores Homeowners Association as per Resolution No. 97-22449 adopted July 2, 1997. City Liaison: To replace Erik 12/31/2010 City Commission Schlein Name Last Name Position/Title Term Ends: Appointed by: Term Limit: -. - -- -- - .- - . -. . - - Geoff Green 12/31/2010 City Commission 12/31 I1 5 Ronald Loring 12/31/2010 City Commission 12/31/14 Applicants PositionITitle Applicants PositionITitle Miguel Antonio Aviles Sofia Emuriel .. . --.-- a~M-wm~~.B~*e~.~~~m7~7m-~---m- - Monday, October 04,2010 Page 33 of 47 R9 - New Business and Commission Requests R9B1 Dr. Stanley Sutnick Citizen's Forum. (12:30 p.m.) R9B2 Dr. Stanley Sutnick Citizen's Forum. (330 p.m.) AGENDA ITEM: R9B1-2 DATE: 10-27-10 THIS PAGE INTENTiONALhY LEFT BLANK MIAMIBEACH OFFICE OF THE MAYOR AND COMMISSION MEMORANDUM TO: Jorge M. Gonzalez, City Manager FROM: Jonah Wolfson, Commissioner DATE: October 1 St, 20 1 0 SUBJECT: Agenda Item Please place on the October 27'" 201 0, Commission meeting agenda a discussion item for the City Commission to talk about the most recent report of the Fire & Police pension and General Pension which I am asking to be attached to this agenda. If you have any questions, please contact Leonor Hernandez at extension 6437. JW/l h We ore cornrn~fted fo prov~d~ng excellenf puhlrc serv~ce and safety to oll who lrve work and ploy 111 our Agenda Item Rq Date 10 -27-(0 THIS PAGE INTENTIONALLY LEFT BLANK OFFICE OF THE MAYOR AND COMMISSION MEMORANDUM, -- , -- 4 a - - cis p C3 r .I i-- -+ - TO: Jorge M. Gonzalez, City Manager I t . .j --- - a !b7 FROM: Jorge R. Exposito, Commissioner DATE: October 7,2010 SUBJECT: A Discussion Item on iPad Please place on the October 27, 2010 Commission meeting agenda a discussion item regarding the shift to I pad from printed agenda ask city administration to provide us with cost to print agendas as well as committee agendas as well as man hours for delivery to determine if feasibility exists for change to digital format which could not only save money but provide us with a more sustainable and green approach and be more environmentally friendly. We trust that you will find all in good order. Should you have any questions, please feel free to contact my aide, Barbie Paredes at 6457. Best regards, Attachments THIS PAGE INTENTIONALLY LEFT BLANK OFFICE OF THE MAYOR AND COMMISSION TO: Jorge M. Gonzalez, City Manager FROM: Jorge R. Exposito, Commissioner MEMORANDUM a ZI: ;--J DATE: October 7,2010 -1 -. $7 .- - - -1 '> - C17 SUBJECT: A Discussion Item on the Port of Miami Tunnel Project Please place on the October 27, 2010 Commission meeting agenda a discussion item on the Port of Miami Tunnel Project (http://www.portofmiamitunnel.com). Review plans for complex and discuss potential impact to traffic into Miami Beach from the MacArthur Causeway. We trust that you will find all in good order. Should you have any questions, please feel free to contact my aide, Barbie Paredes at 6457. Best regards, Attachments ,, ,# Agenda Itern 89 E o;e2 coilmifrc.d !o pro,;idii;e c>XCe//cnl p:b;ic service i::;d scrieiy :o i;! vvho /ive, work, ond pbj. ii? C. Date 10-~7 - 10 705 INDEX OF DRAWINGS 6-002 6-003 Gdll G-W2 64 G* G45 0416 - C-WI c-002 c-003 C+J4 C-005 C-tOb C-XV C-008 c-M9 CdlI C-OIIA CdlZ C-OIZA C-ON C-ON c-015 C-OS C-OR Cwsr Shset In& of Drmvlws Pro/& LQW Typlml Sdnns Typml SktIon - M & cover - wKrwlty Slab Typal S&Im - M & Gmr - w/mr Pllss Typml Sdon - M & Cover - Slurry Walls TypIml S&Ion - U-WoIl S&/M ~yplml S&IM - UocArtlur Wm Isto. M3+50 to 307+WI &or Shwt -8ored TumY D/erdl Plan - Bored TM llmlde Nlgmwt - WE Row B) Werdl Plon - Bored TM ICutsds Allgm~nt - WE &W 81 Typlml S&IM - @red Tumd Typlml S&lon - MaArthur Wmwq ISto. M7+ao la 3W+50J Typlml Scdlw - WotsM Island IEBI Typal S&ION - wotm Idad IEB) Typlal S&lm - Port of Ulml IEB) Typlml SadION - Wdm Island (WB) Typlal S&Im - Port of Ulml WBI Plan - lmldc Row IS (WB) Plon - Outside Rm I (WB) Plm - lmlds Romp 18 OYB) Plon - Wsldc Ramp 18 (WBt Plon Plon Plon Plan Plan PORT OF MIAMI TUNNEL PORT OF MIAMI TUNNEL AND PORT OF MIAMI TUNNEL PARSONS B~CKERROFF, INC FLORmA*S TURNPIKE ACC~S JMFXOVEMWB PROJECT DEVELOPMENT AND G-002 IF 7300 CORPORATE CENTER DRIVE. SUITE 600 - MIAMI. FL 3312s PH. 13051 ~61.478~ WID: 251156-2 FAW~ 0010-801-R ENVIRONMENTALRE-EVALUATION IN D E X OF DRAW IN G S SHEET NO- - ENTERPRISE MIAMI-DADE COUNTY STUDY 2 i s 3 i., 5 @ 2 . 3.75' , 2' L' 121 ! e1 NP. z.79 i 441 I ' POP I I VARIES - if \ CUT AND COYER C.I.P. CONCRETE TUNNEL M'/GRAVITY SLAB) - WATERPKWFIING MEMBRANE mP.) I CUT AND CWER C.I.P. CONCRETE TUNNEL W/ANCHOR PILE9 NOTES: I- AWUX PILES A?€ 24' DlA. AUGEACWT PNES. PORT OF MIAMI TUNNEL DWC NO. PORT OF MIAMI TUNNEL. AND PORT OF MIAMI TUNNEL !iq@ PARSONS BRLNCKEBEIOFF, EVC EZORIDA'S TURNPIKE ACCESS IMPROVEMENTS PROJECT DEVELOPMENT AND G-013 =Ww 7300 CORPORATE CENTER DRIVE. SUITE 600 - MIAMI. FL 33126 PK 13051 ~SI-~~SS ENTERPRISE RID: 2511562 FAP# 0010-801-R ENVIRONMENTAL RE-EVALUATION TYPICAL SECTION SHEET NO. MIAMI-DADE COUNTY STUDY CUT & COVER mm ,:mhrt'VPV-Tdwhrtm&? GJ BORED TUNNEL PLANS rm 7300 CORPORATE CENTER DRIVE. SUITE 600 FLORIDA'S TURNPIKE ;;,I&;; FL 33126 PH. 13051 261.~7~1~ ENIIB.F"ESE PORT OF MIAMI TUNNEL. AND ACCESS IMPROVEMENTS WID. 251156-2 FAP# 0010-801-R MIAMI-DADE COUNTY PORT OF MIAMI TUNNEL PROJECT DEVIZOPMENT AND ENVIRONMENTAL RE-EVALUAnON STUDY Bl SCAYNE BAY MACMTHUR CAUSEWAY STA. m+m m ST*. J~CM~ Mlsrlffi FRDNTAOE- EXISTING ROAD WB UACARWR C* IT0 REMAINJ UWE UNE WE UV - OlEET PILE mPJ i WE TUlYNEL fRWP B) YACARTHUR CWSRVAY 1 EB TUNNEL [RAW A) ST*. JlCMl TO ST*. ;rerrtso BORED TUNNEL DWG NO. PORT OF MIAMI TUNNEL AND PORT OF MIAMI TUNNEL PARSONS BRINCKEiUfOFF MC FL0~At'S TURNPIKE ACCESS IMPROVEMENTS PROJE(JT DEVELOPMENT AND 7300 CORPWATE CENTER DRIVE, ~ITE 600 = MIAMI. FL 33126 PH. 13051 261-4785 WID: 251156-2 FAWI W10-801-R ENVIRONhC3RAL REEVALUATION TYPICAL SECTIONS k!:!. w ENTERPRISE MIAMI-DADE COUNTY SNDY MACARTHUR CAUSEWAY 13 R-YU-BI* WJCUY.DY-,~~*W~~ EL. 8 r-i r-1 WY @ -- P *-' W '- W '-" @ "' G.W.L. 3.0 - 9.4' SAND LAYER EB CROSS SECTION RAMP A STA. 447+00 (PORT OF MIAMI) WT AND COVER C.I.P. CONCRETE TUNNEL (SLURRY WALLS) I. ELEVATIONS ARE APPKOXIKATE. BORED TUNNEL DWG NO. PORT OF MIAMI TUNNEL AND PORT OF MIAMI TUNNEL PARPONS BRINCKERHOFF, MC FLORIDA'S TURNPIKE ACCESS IMPRO- PROJECT DEVELOPMENT AND C-006 5 sa 7300 CORPORIlE CENTER DRIVE. SUITE 600 SHEET NO. uz MIAMI. FL 33x26 PK 13051 261.a785 $P% ENTERPRISE FPiD: 251156-2 FAP# 0010-801-R ENVIRONMENTAL REEVALUATION TYPICAL SECTION MIAMI-DADE COUNTY STUDY WATSON ISLAND @B) IS MU-rMt em NW~B"P~(-TU~*WP~W 0 fi? m e Ll s G E; k-2- k 7: Q :g S es f; $ ;: a; !$ z; 0. 3 .g BI qr, -t 9~ 0 t;! m 0 u G zl ?a rt;$f k .: Q 2: 3 iig B g; 3: g zi 0 - 3 ;: allllr Ph. PHIS PAGE INTENTIONALLY LEFT BLANK OFFICE OF THE MAYOR AND COMMISSION MEMORANDUM <-3 N - TO : Jorge M. Gonzalez, City Manager + E? 0 --. x3 @ r, C3 -47 FROM: Jorge R. Exposito, Commission r r -4 ?- - - -3 *L 4 -6": .+- . em." DATE: October 7,2010 w .r" 3: -. -* * - "I-? I%j SUBJECT: A Discussion Item on Revenue generating opportunities/Miami % Sh@ -.' r? U1 Please place on the October 27, 2010 Commission meeting agenda a discussion item regarding request for administration to look into and advise commission on this potential revenue opportunity for 2012. We trust that you will find all in good order. Should you have any questions, please feel free to contact my aide, Barbie Paredes at 6457. Best regards, cc: Bob Balsam, Miami Beach Convention Center Date 10-27-10 735 THIS PAGE INTENTIONALLY LEFT BLANK OFFICE OF THE ClTY AlTORNEY JOSE SMITH, CITY ATTORNEY COMMiSSlON MEMORANDUM TO: Mavor Matti Herrera Bower and MI smbers of the City Commission FROM: Jose Smith, City Attor cc: Jorge Gonzalez, City DATE: October 27, 2010 SUBJECT: Discussion on whether or not to require re-certification of the original petition, as approved by the City Commission on February 20,2002, pursuant to Resolution No. 2002-24761, which authorized the Administration and City Attorney's office to proceed to work with the residents of Sunset Island Nos. 3 and 4 on the creation of a special assessment district to underground utilities The City Administration has been working with various homeowners' associations (HOA1s)- most notably, the Palm and Hibiscus Island HOA and the Sunset Island Nos. 3 and 4 HOA- regarding their request to create special assessment districts to fund the undergrounding of existing overhead utilities in those neighborhoods. Currently, a neighborhood andlor other area in the City seeking to fund the conversion of overhead utilities to underground can accomplish this via one of the following mechanisms: 1 .) creation of a special taxing district, which is authorized and created pursuant to the requirements of the Miami-Dade County Code and, therefore, is facilitated through the County; or 2.) creation, by the City Commission, of a special assessment district, pursuant to the authority granted the City under Chapter 170, Florida Statutes. Among other requirements, the County's special taxing district process requires that, prior to the County initiating the process to create the proposed district, a petition with at least 50% of the property owners within the proposed district signing in favor, be certified and accepted by the Board of County Commissioners. Once the Board accepts the petition (and proceeds with the creation of the special taxing district), and prior to adoption by their board of the final ordinance establishing the district, the County Code further requires that a majority vote, in an election of the qualified electors in the proposed district, also be obtained. Chapter 170, Florida Statutes, which is the mechanism available to the City Commission for creation of special assessment districts (to fund certain capital improvement projects, including undergrounding), does not have the petition or election requirement that the County Code requires for special taxing districts. However, on or about 2002, in light of increased requests from various HOA's throughout the City for the creation of special assessment districts to fund underground utilities conversions, and in order to gauge whether there was support for same among the property owners in those neighborhoodslareas, the City Commission self-imposed similar petitionlelection requirements (as a matter of policy and not, per se, a statutory requirement). I Agenda Item f?? 6 Date 10-23- 10 Similar to the County's requirements for special taxing districts, the City Commission requires that where a neighborhood and/or other area requests that the City Commission create a special assessment district to assist in funding an undergrounding utilities conversion, the following additional requirements must be complied with: prior to authorizing the Administration and City Attorney's Office to initiate the process and begin working with the HOA toward- the creation of the district , the Commission requires that the HOA obtain a petition evidencing signatures of at least 60% of the affected property owners (within the proposed district) in favor of its creation; and following the acceptance of the petition by the Commission and the City Commission's approval of the first Resolution establishing the proposed district, but prior to finalizing the creation of the district, the City Commission also requires an election, with at least 60% of the property owners within the proposed district voting in favor of its creation. At its regular meeting on February 20, 2002, the City Commission approved Resolution No. 2002-24761 (See Attachment "A"), accepting the initial petitions of, respectively, 1 .) Palm and Hibiscus Islands, and 2.) Sunset lsland Nos. 3 and 4; and-accordingly--authorized the Administration and City Attorney's Office to work with the HOA's andlor their respective representatives to creating special assessment districts in these neighborhoods for the requested underground conversions. Palm and Hibiscus lslands have since elected to pursue their underground conversion via the creation of a special taxing district through Miami Dade County. However, Sunset lsland Nos. 3 and 4 have continued the process with the City and, pursuant to the most recent meetings between the City Administration and HOA representatives, have indicated that they have reached the point where they're ready to proceed with presenting the first Resolution (i.e. creating the proposed special assessment district) to the City Commission. The concern expressed by the City Administration, and the issue that has been brought to the Commission today for discussion, is whether--given the passage of time since the 2002 City Resolution accepting Sunset lsland 3 and 4's initial petition-- the City Commission would require that the HOA go through this "first step" again and obtain a new petition, evidencing that there is still at least 60% initial support for the proposed district among the affected property owners. In order to assist the City Commission, and facilitate the discussion, representatives of the HOA prepared an analysis-comparing the homeowners on the Sunsets 3 and 4 in 2002, and those who voted in favor of the creation of the district then, with actual owners on the Islands today. In summary, in 2002, 98 out of a total of 118 residents on Sunset lsland Nos. 3 and 4 participated in the petition process; out of that, 82 residents signed the petition in favor of the creation of the district. The 82 "yes" votes represented 69% of the total residents on the Islands. In comparing the 2002 results to present day, the HOA's research further concludes that, of the 98 homeowners that participated in 2002, 60 are still current residents. From among those 60 residents, 48 signed the petition (i.e. were "yes" votes) in 2002. Should the Commission wish to reference the complete packet submitted by the HOA, we have attached their 10/8/10 e-mail cover memo (from Sunset lsland resident Terry Bienstock to Deputy City Attorney Raul J. Aguila), as well as all submitted supporting documentation (See Attachment "B). 2 We are committed to providing excellent public service and safety tee live, work, and ploy in our vibranf, fropical, historic community The HOA is desirous of moving forward with the process to create the proposed special assessment district, and has indicated to the City staff that it would like to bring the first Resolution, establishing the intent to create the proposed district, to the next City Commission Meeting on November 17, 2010. As they have also (correctly) pointed out in support of their position that they should not be required to go through a new petition process, prior to the Commission's consideration of the final Resolution establishing the district (and as a condition thereto), they will still have to comply with the election requirement, and obtain at least a 60% vote. F:\atto\AGUR\RESOS-ORDWIEMOS\Sunset Islands 3 & 4 - Underground Utilities (1 0-1 9-1 O).doc 3 We are committed to providing excellent public senlice and safety to all who live, work, and play in our vibrant, tropical, historic community. Attachment "A RESOLUTION NO. 2002-24761 A RESOLUTION OF THE MAYOR AND ClTY COMMISSION OF THE ClTY OF MIAMI BEACH, FLORIDA, AUTHORIZING THE ADMINISTRATION AND CITY ATTORNEY'S OFFICE TO PROCEED WITH THE CREATION OF SPECIAL ASSESSMENT AREAS, ALSO KNOWN AS SPECIAL ASSESSMENT DISTRICTS, PURSUANT TO THE PROVISIONS PROVIDED IN CHAPTER 170 OF THE FLORIDA STATUTES, FOR THE PURPOSE OF- FUNDING THE RELOCATION OF OVERHEAD UTILITY LINES UNDERGROUND, ON EITHER A PORTION OR ALL OF HIBISCUS ISLAND AND PALM ISLAND AND SUNSET ISLAND 3 AND SUNSET ISLAND 4, RESPECTIVELY, PURSUANT TO THE WRITTEN REQUEST OF THE PROPERTY OWNERS OF THOSE ISLANDS; AND AUTHORIZING THE ClTY MANAGER, OR HIS DESIGNEE, TO MAKE ALL NECESSARY PREPARATIONS TO IMPLEMENT THIS INTENT. WHEREAS, in areas of the City, utility lines for services such as telephone, electricity and cable television exist overhead; and WHEREAS, certain residential neighborhoods in the City have requested the relocation of overhead utility lines underground; and WHEREAS, the City recognizes that such relocations are generally considered an improvement, which are unique to these certain neighborhoods; and WHEREAS, the City supports neighborhood initiatives to relocate utilities underground, but cannot provide direct funding or resources to any such individual effort not enjoyed or pursued by the City as a whole; and WHEREAS, the City recognizes its inimitable ability to assist with said initiatives and to provide a collection mechanism, such as those used with special assessment areas or districts created pursuant to Chapter 170 of the Florida Statutes, at the request of individual neighbohoods; and WHEREAS, the City has received such requests from the Hibiscus ldand and Palm Island and Sunset Islands 3 and 4 neighborhoods, respectively, in the form of petitions, to consider the establishment of these special assessment areas, also known as special assessment districts, to provide financing for the relocation of overhead utilities underground; and WHEREAS, on January 30, 2002, the Mayor and City Commission referred said petitions to the Finance and Citywide Projects Committee for consideration; and WHEREAS, on February 19,2002, the Finance and Citywide Projects Committee considered said petitions and recommended that the City Commission declare its intent to proceed with the creation of the applicable special assessment areas, or districts, pursuant to Chapter 170, Florida Statutes for the Hibiscus lsland and Palm lsland and Sunset Islands 3 and 4 neighborhoods, respectively; and WHEREAS, the Mayor and City Commission are satisfied that sufficient public interest is served by the creation of said special assessment areas or districts. NOW, THEREFORE BE IT DULY RESOLVED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, that the Mayor and the City Commission authorize the Administration and City Attorney's Office to proceed with the creation of special assessment areas, also known as special assessment districts, pursuant to the provisions provided in Chapter 170 of the Florida Statutes, for the purpose of funding the relocation of the overhead utility lines underground, on either a portion or all of Hibiscus lsland and Palm lsland and Sunset Island 3 and Sunset lsland 4, respectively, pursuant to the written request of the property owners of those islands; and authorize the City Manager, or designee, to make all necessary preparations to implement this intent. PASSED AND ADOPTED this 20th day of February 2002. Attachment "B" Aguila, Raul From: terry bienstock [tbienstock@tbienstock.com] Sent: Friday, October 08,2010 1.37 PM To: Aguila, Raul Cc: jefflax@bellsouth.net Subject: FW: Undergrounding Attachments: Vote comparison for same owners.pdf; Sunset Owners who are new or didn't vote.pdf; Resident Tally Detail 2002.pdf We did the work the manager asked. Hope it helps. ----- Original Message----- From: Gary Weiner [mailto:GWeiner@bellsouth.net] Sent: Saturday, September 11, 2010 12:55 PM To: tbienstock@tbienstock.com Subject: Undergrounding Terry, Here is the information comparing ownership in 2002 and now of those 98 residents that voted. To summarize, I would point out that in 2002, 98 residents voted out of 118 for an 83% participation rate. Of the 98 votes cast, 82 were in favor or 88%. The 82 yes votes represented 69% of the total residents on the Islands. Phrased another way, if everyone who had NOT voted, were counted as a NO vote, the initiative would have passed by a 69% affirmative vote (82/118). Moving forward to current times, 60 of the 93 who voted in 2002 still live here. If those 60 still felt and voted the same way as they did in 2002, you would have 48 'YES' votes and 12 'NO' votes for an 80% passage rate of the proposition. I have also included a list of the 61 people who are not counted in the updated 'projected' vote list. These people represent either people who moved away or those who did not vote in 2002. Finally, I have included as a backup document the tally details from 2002. Please distribute as you wish. If you like this analysis, please send a reference letter for me to CNN, I might want a job as an election analyst! Gary - - - - - Original Message----- From: terry bienstock [mailto:tbienstock@tbienstock.com] Sent: Saturday, September 11, 2010 8:42 AM To: Gary Weiner Subject: Re: Undergrounding Have you compared the original vote with the current property owner list? That will tell us a lot. ------ Original Message------ From: Gary Weiner To: Dennis Richard Cc: Terry 5. Bienstock Cc: Catherine Rodstein Cc: Inga Luksza-Senis Cc: Loretta Ciraldo Cc: David Haber Cc: Jeffrey Akin Cc: Suzanne Hollander Cc: Kumar Kadiyala Cc: Robert Caporale Cc: Dennis Richard Cc : Carolina Beltran Subject: Re: Undergrounding Sent: Sep 11, 2010 8:30 AM Great job Terry! Sent from my iPhone On Sep 11, 2010, at 8:13 AM, "Dennis Richard" <dennis@richardandrichard.com> wrote: > You have my full support. > > DENNIS RICHARD > RICHARD AND RICHARD, P.A. > This message may be attorney privileged. If you are not the intended recipient please discard. > > On Sep 11, 2010, at 8:10 AM, "terry bienstock" > <tbienstock@tbienstock.com> wrote: > > > >> Sent via BlackBerry by AT&T > > >> ----- Original Message----- >> From: "terry bienstock" <tbienstock@tbienstock.com> >> Date: Sat, 11 Sep 2010 03:10:34 >> To: Jeff Lax<jeff@jefflax.com>; Peter Luria<peterpl@bellsouth.net>; >> David Berger<Bergerdav@aol.com>; Tom Murphy<tcmurphy@coastalconstruction.com>; Jeff Brandon<jbrandon@thebrandoncompany.com> >> Reply-To: tbienstock@tbienstock.com >> Subject: Undergrounding > > >> I met with the City today. The short version is: > > >> 1) County involvement is a waste of time; > > >> 2) The number is still $1.3M or $11J150/home. They will confirm the numbers before our HOA meeting. > > >> 3) We probably will not need to pay the City until 1 year from now. > > >> In sum, we could assess $15k/home, over 3 payments over the next 12 months. We would then collect enough if 70-75 percent pay, to do the project. Then we can refund once we collect the rest. > > >> From the numerous supportive calls I have received, this is doable. > > >> We still need a financing plan to help people pay the assessment. >> Sent via BlackBerry by AT&T Sent via BlackBerry by AT&T total votes - 88% Response Summary \ Count I Percent Yes 4 82 69% 4 I Total Responses I I Total Residents I 118 100% Unknown owners is 69% yes. 20 17% Alter, ~ichard Berger, David J. & Cindy Berman, Brian &Anne Bettendorf, lrmengard Bienstock, T & Lang C Bivio Property Management Inc. (Dreesman) Brandon, Jeffrey Lynn Christoph, Robert W. Ciraldo, Robert & Loretta Cisneros, Jose H. & Blanca G. Cohen, Lena Dewitt, David Doino, Tonino Fink, Brian &Jenny Freed, Stephanie Goldstein, Jeremy Gonzalez, Esther X. Gray, Keith Gutman, Isaac Haber, David Hackmeyer, Mark & Sharon Herrada, Andres Holtz, Laurie S. & Mona Huth, Karlheinz & Sigrid lngraham Jr., William & Maria Iver, Robert & Lisa Karp, Nancy & Kobi Kaufman, Dana & Cheryl Kerr, Kenneth & George Kournikova, Anna Kurten, Leonhard LBTP Investments (Alex Tachmes) Levien, Stephen & Harlan Lopez, Jesus & Carolina Marrero, Luis & Lobelia (Mary) Melcher, Harold Miller, Irving E. Moriber, Andrew & Sara Nash, Martin & Cynthia Petzold, Hans Ulrich Pigna, Franc & Susan Porter, Charles & Margit Powers, Christine Powers, Sandi Reisler, B&M/Adams, C Richard, Dennis & Susan Robins, Scott & Deborah Robinson, Morton & Jane Rodriguez, Tony Rodstein, Catherine Rose, Frank & Daniela Rosefielde, Alan P. Samuels, Michael &Judith Senis, Francesco Serruya, Salomon & Gladys Sheppard, Marjory (Melissa & Anthony) Sommers, Steven Taylor, William C. & Phyllis Violet, Gary & Viola 1401 Grand Total Count of Vote Resident vote 2002 Ahlman, Harry A. ONLY FOR THE GROUP OF OWNERS THAT VOTED IN 2002: 60 of the 93 who voted are still current day owners. If everyone felt and voted the same way, the yes votes would be 48 versus 12 no votes or 80%. Vote NO YES 1 rand ~otal 1 1 Count of Vote Resident vote 2002 Abiantun, Antonio Baskin, Gregory & Raisa Berggruen, Nicolas Blatt, Jeffrey & Lisa Brickstein Construction, LLC Castillo, Giimer Ciraldo, Robert & Loretta 2 Comesana, Joe & Mercy Comesana, Mercy Crompton, Michael De Pass, Andrew DS Sunset, Inc. (Mark Csete) Duffle, Inc Elfering, Ursula & Gert Gallian, Andrea & Marina Garrett, Dawn Goldwyn, Goldie Gonzalez, Pedro & Barbara Gottlieb, Richard & Aida Greider, Stephen & Vicki Gutman, Isaac & Star Hertz, Helen Hilton, Herbert S. Hornik, Leonard Iglesias, Jose Johnson, David R. Jurksaitis, Danute Laureti, Lucio Lubonty, Gregory & Tim Smith Luria, Peter & Pam Maag, Gustav & Emily H. Maribona, Ricardo Mendel, Herbert & Audre Miller, Irving Moreau, Ron Nasi, Antonio & Sueli Newson Investments (Ron Getty) Oraham, Steve and James Samson Posner, Gail Rabin, Samuel J. & Amy Raven Associates (Frank & Karl) Reinfeld, Howard Rosenfarb, Alvin & Karen Scharer, Jay Segan, Adam &Judy Shapiro, David & Erica Shulevitz, David & Carolyn Stecher, Robert 1431 Stecher, Robert 1745 Steinberg, William & Lucienne Sunset Ill, LLC Sunset Islands Holdings, LLC Sunset Three 525 LLC Teller, Beth Toledo, Richard G. Violet, Gary & Viola 141 0 Weiner, Gary & Susan Wieselberg, Shmuel &April Wish, Jonathan & Barbara Grand Total Vote 1 1 1 1 1 1 1 1 1 1 1 1 I 1 1 1 1 1 1 1 I 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 2 1 1 1 1 1 1 52 9 Grand Total 1 1 1 1 1 1 1 2 1 1 1 I 1 1 1 I 1 1 1 1 1 1 1 I 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 2 1 1 1 1 1 1 61 Sunset Islands 3 4 Underground Utilities Project I I I 1 Next Action I I Resident Street Address Folio No. Potentially Yes or Overall Yes I I I or No I -l a 0 I 7el~ewson Investments (Ron Getty) 1161 1 W. 24th Street Sunset Island 3 1 ~3~280011410 1 I YES^ I 78(0raham, Steve and James Samson 11510 W. 22nd Street Sunset Island 4 1 23~28001~170 1 I Accept I Count I Transformer UnChkd YES 6 YES 7 No 8 UnChkd UnChkd NO UnChkd I YES 1 42 UnChkd 1-1 Page 1 d5 Sunset Islands 3 4 Underground Utilities Project Street Address I liCcept I Count / Transformer YES 1 68 Page 2 of 5 Sunset Islands 3 4 Underground Utilities Project Street Address Page 3 of 5 Page 4 of 5 Sunset Islands 3 4 Underground Utilities Project Street Address a u Mailed I31 2001 3' Mailed 1 31 2001 Mailed 1 31 zoo1 Mailed 131 2001 118 Total Count 60 64 72 85 87 2 Laureti, Lucio ~uria, peter & am Moreau, Ron Raffy, Pascal & Lailla Reinfeld, Howard & Sara 82 1450 W. 21st Street Sunset Island 4 1800 W. 23rd Street Sunset Island 3 1531 W. 22nd Street Sunset Island 4 1833 W. 24th Street Sunset Island 3 2300 Bay Avenue Sunset Island 3 Z~Z~OIOO~ZO z3zz800~1710 23z80011980 232280011800 232280011760 Sunset Islands 3 4 Underground Utilities Project Petitions Transformers YES 1 1 YES 2 6 5% YES 3 75 64% Total yes1 82 69% 10 UnChkd No 16 14% - If Needed Total ~eplys) 98 83% 74 Replys Potential Yes 2 Potential No Overall Yes Or NO Potential Undeterminded 18 Potentially Yes or NO To Resolve 1 20 1 Folio NO. Reslv & Unreslv 118 Street Address Next Action Page 5 of 5 NO. Resident MIAMIBEACH OFFICE OF THE MAYOR AND COMMISSION MEMORANDUM TO : Jorge M. Gonzalez, City Manager FROM: Jonah Wolfson, Commissioner DATE: October I 3th, 201 0 SUBJECT: Agenda Discussion Item Please place on the October 27th, 2010 Commission Meeting Agenda a discussion item on the status of the Altos Del Mar Sculpture Park project. If you have any questions, please contact Leonor Hernandez at extension 6437. J Wll h we ore comnil~ed to pro~tdinq excebni public service nnd SO~~IY n oi! who IV~, wok, ond ploy MI our ; Agenda k3m ??q H Date Ic> -27 - 10 755 From: Peter Saile [mailto:peter@altosdelmarsculpturepark.com] Sent: Wednesday, October 20, 2010 07:46 AM To: Sklar, Max Cc: msaile@arttrustmasters.com ~msaile@arttrustmasters.com~; 'Steven Jackman' <sjackman@arttrustmasters.com>; 'Les Beilinson' <Idb@beilinsonarchitectspa.com>; barleyg@atlanticbb.net <barley9@atlanticbb.net>; klewin@lennoxsecurities.com <klewin@lennoxsecurities.com>; 'Marc Briihwiler' <mb@mbfin.ch>; 'Gerrit Schulz-Bennewitz' <Gerrit.Schulz-Bennewitz@templeflower.com; rperez4bullseye@aol.com <rperez4bullseye@aol.com>; 'juan carlos toca' <tocaboyl@gmail.com>; julie@juliemiro.net <julie@juliemiro.net>; 'Lama Karma Chotso' <kagyu@kagyu-sfla.org> Subject: FW: ADMSP As-Is Status Report Dear Max, Ladies and Gentlemen, I am sending it again, since I got server messages that this mail could not be delivered. Sorry about this. Best, Peter ----- Original Message ----- From: Peter Saile To: 'Sklar, Max' Cc: marlene@altosdelmarscul~turepark.com ; 'Steven Jackman' ; tonv@altosdelmarscul~ture~ark.com ; Idb@beilinsonarchitects~a.com ; klewin@lennoxsecurities.com ; 'Marc Bruehwiler' ; 'Gerrit Schulz-Bennewitz' ; 'Lama Karma Chotso' ; 'David Schaff Ltd' ; r~erez4bullseve~aoI.com ; 'iuan carlos toca' ; fweberbrccl.com ; 'Julie Miro' Sent: Thursday, January 19,2012 6:46 PM Subject: ADMSP As-Is Status Report Dear Max, Reference is made to our communication if I may be able to change my previously agreed upon important meeting outside of Florida on the 27th of October in order to join the Commission Meeting on the 27th of October 201 0. As you know, I had planned to be at the original date of the Commission Meeting on the 20th of October, but then the Commission Meeting was changed to the 27th of October. Unfortunately, I have to inform you that I cannot change my meeting on the 27th, so that I will not be in Florida on the day of the Commission Meeting. Actually, I will be back in Florida at the 6th of November. Because of this, ADMSP will be represented at the Commission Meeting by our directors, Stevie Jackman and Dr. Anthony M. Weaver, who will be available to provide information about the 'As-Is' status of ADMSP to the Commissioners and the Mayor. There will be additional directors and members of our ADMSP team at the Commission meeting on October 27, 201 0. It would be helpful, if you could let us know, at which approximate time we can expect that ADMSP will be on. Following is some information about ADMSP and its advanced project status, which I hope will be of assistance to you and your information which you will provide to the Mayor and the Commission. ADMSP's website is a presentation in and of itself about the project. Each page has all the components of the project and are self-explanatory. The key pages to see are: 1. http://www.altosdelrnarsculpturepark.coml where you will see a link to ADMSP's Social Impact Assessment. This is a downloadable and printable presentation of ADMSP's social impact. The social impact is an important reason for our potential large donors to provide funding to ADMSP. Below this link there are other important links like our location and timeline. 2. htt~://www.altosdelmarscul~ture~ark.com/desin.html where you will see the design and its current status. This page has downloadable documents that go into all of the detail about the design and preliminary plans. ADMSP will apply for the building and DEP permit on or before December 15, 201 0. 3. http://www.alto~delmar~c~Ipturepark.com/programs.htmI where you will see our intended community programming. 4. http://admsp.org/ will take you to our brand community. 5. htt~://www.altosdelmarscuI~ture~ark.com/~ive.html where you will see our donation page. 6. htt~://www.altosdelmarscul~ture~ark.com/ek.html where you will see our press kit. This page has downloadable documents with all of the pertinent fact sheets (miami beach, members of the board and so on) 7. Status of Funding. All project activities and related costs from the beginning to the approval by the Historic Preservation Board ('HPB') have been privately funded by our directors and friends of the project, among them Rudy and Betsy Perez, Chris Costigan, Stevie Debe, Juan Carlos Toca, Enrique Bargioni, Les Beilinson, Orlando Comas, Isaac Jaroslawicz, Dr. Marlene Saile, Dr. Anthony M. Weaver, Gerrit Schulz-Bennewitz , Marc Briihwiler and Peter Saile. After the approval of our plans by the HPB in the summer of 2010, our financial advisor, Lennox Securities, Inc., was able to continue negotiations with two of our pre-selected large donors. One is affiliated with a world wide operating good purpose trust organization headquartered in Rome and the other is affiliated with a major US institutional money market organization in New York. Our plan is to secure from one or both a total donation of US$ 5 million, payable in two installments, US$ 1 million in November 05, 201 0 and US$4 million on or before March 31 of 201 1. In the following years, we expect additional funding from the same parties, and we plan to establish an endowment fund in order to generate revenue that will be used for additional investments and especially to fund our long term operation of ADMSP. Our endowment fund will be designed to function in perpetuity, making it possible to provide financial support over the long-term. One of the distinguishing characteristics of an endowment fund is that the principal amount contained in the account is not disbursed for any reason. This principal amount is invested in a manner that creates a steady return; it is this return that is actually used to supply personal and institutional support to any entity that meets the provisions that govern the disbursement process established for the fund. Since the amount of return can vary over time, the actual amount of the disbursements made from the fund will reflect the amount of surplus funds that are currently available. I mentioned this concept as one of our goals for ADMSP when we started with the first ideas six years ago, and we have not forgotten this meaningful funding concept and are supported by our large potential donors. In addition to the large donations, we are expecting the influx of additional US$250,000 from several individual donors from Florida in November and December. The timing of the expected influx of capital will allow us to fulfill all current and future expenditures in conjunction with our current total construction budget of $4.5 million. Our agreement with the City of Miami Beach calls for a POF by approximately June of 201 1, which we will be able to provide on or before this date. Generally we experienced that the current capital market conditions require substantially more solicitation effort compared with years before 2008. The qualification requirements are tougher than ever before and projects as ADMSP must fulfill clearly defined socially conscious goals in order to qualify. Our social impact study for North Beach helped us to convince our funding partners that ADMSP represents a meaningful chance to change the social and economic environment in North Beach. One issue needs to be cleared with the City of Miami Beach which is important to our large funding sources. It is the visible recognition of their names. We will provide the City of Miami Beach with some designs and will ask for approval. 8. Sponsorship Programs Finally, for your information, I attach our available sponsorships for those sponsors interested in having a programmed giving approach. Please let me know if you need additional information. If you have any question or need additional information, please contact me, I will do my best that you will get the answers. I would appreciate it if you'd inform the Mayor and the Commission that I would have loved to be at this commission meeting as I already had committed it for the 2oth, but I could not alter my already confirmed appointment on the ~7'~. I look forward to meetings with the Commissioners and the Mayor from the 6th of November on, when I will be back in our beautiful Miami Beach. I thank the Mayor and the Commissioners for their engaged interest in our ADMSP development. We will continue to inform everybody about our further development and would love it, if they would find interesting information in our permanently updated website, www.altosdelmarscul~ture~ark.com. I thank the City Manager, you Max and the City Staff for all the work you all have put into our project. You have been very instrumental for our advanced stage with this great community project. Let me know if you need more information from me and thank you. Best regards, Peter Peter Saile Director Altos Del Mar Sculpture Park, Inc. A Florida not-for profit 501 (c)(31 Public Charity East of Collins Ave between 76' and 77th Streets Miami Beach, FL 33141 Phone3054686168 5 MIAMIBEACH OFFICE OF THE MAYOR AND COMMISSION MEMORANDUM TO: Jorge Gonzalez, City Manager Jose Smith, City Attorney FROM: Deede Weithorn, Commissioner 9443 DATE: October 1 3, 20 1 0 SUBJECT: Agenda item for October 27 Commission meeting I would like to request a resolution supporting the current federal limits on the weight and length of 18-wheeler trailers on highways, specifically in light of the port tunnel currently being constructed. Thank you. DW/aks http://www.usatoday.com/news/nation/2009-06-04-big-trucks-debate~N.htm Page 1 of 2 and the maximum length to 53 feet. 1 'Big battle' mounts "It's a big battle," says Jackie Gillan, vice president of Advocates for Highway and Auto Safety and a 1 over b i g g e r b i g ri gs member O, StopBigc~erTrucks.org, a campaign urgin~ Congress to reject any weight and size I By Larry Copeland, USA TODAY Federa! I;?.;; liir?irs Zlln ~2ight and lerigtl: of I5-wlieelc:i tr,?ilers G;: the .?.?.>C>..r,!il$ IJ S. inters?ate higtlway SVSi<?171. Debate is heating up over an issue likely to strike terror in the heart of any driver who has spied an 18-wheeler looming in the rearview mirror as he scrambles into the slow lane: whether even bigger big-rigs should be allowed on the nation's highways. Federal law limits the weight and length of 18- wheeler trailers on the USA's 47,000-mile interstate highway system. Supporters say bigger commercial trucks allow drivers to deliver more freight in fewer trips, thus cutting pollution and reducing congestion on crowded highways. Opponents say the larger trucks would cause more wear-and-tear on the USA's dilapidated roads and bridges and create a greater safety hazard to other drivers. Those issues are at the center of a congressional battle over whether federal laws that govern truck weights and lengths should allow heavier, longer trucks, or whether the current limits should stand and be extended to even more roads. Federal law limits the weight of 18-wheelers to 80,000 pounds increases fir commercial trucks. "These trucking companies don't come close to paying their fair share for the damage they do. The American public is going to pay with their lives and their wallets if this goes through." Increasing the federal maximum weight would be a boon to shippers and to the public, says Clayton Boyce, vice president of public affairs at the American Trucking Associations, which represents trucking companies. "It does take a little more fuel, but when you factor in what it would take to pull that in separate loads, it's more fuel-efficient." Move to extend limits A measure supported by highway safety advocates, the International Brotherhood of Teamsters and many independent truckers would extend weight and length limits to the entire National Highway System, a network of roads vital to the economy, defense and mobility. That legislation, by Sen. Frank Lautenberg, D-N.J., and Rep. Jim McGovern, D-Mass., would also extend a freeze on multiple-trailer trucks. These trucks, known as longer combination vehicles, are currently permitted in 26 states. Many major trucking companies and manufacturers support a measure that would allow trucks with a %' Print Powered Ry @# ' I -> "Dynamics - e Page 2 of 2 gross weight up to 97,000 pounds, provided heavier trucks added a sixth axle with additional brakes. Under that measure, introduced by Rep. Mike Michaud, D-Maine, and Rep. Jean Schmidt; R- Ohio, the heavier weights would require the approval of a state legislature. "The time is really right for us to look at bigger trucks in an educated way," says Dan Middleton, a specialist in trucks and vehicle detection at the Texas Transportation Institute. "Canada and Mexico already allow the larger trucks," Middleton said, "and this could help with harmonization of sizes and weights (at the border)." Weighty debate Major shippers have sought for years to increase the maximum weight allowed for trucks on federal highways, which has been set at 80,000 pounds since 1982. Some states allow much heavier loads; Michigan, for instance, allows a maximum weight of 164,000 pounds. Boyce questions whether the additional weight would create more wear-and-tear on roads and disputes the safety concerns related to larger trucks: "There are no safety concerns at all. They are just as safe as lighter trucks." Gillan, the Owner-Operator Independent Drivers Association and some truckers disagree. "Eighty thousand is enough for anybody. If it gets much bigger, it's going to create an unsafe environment, and more deaths on the roads," says truck driver Lewie Pugh, 35, of Freeport, Ohio. He has driven for 14 years. 1 Ce~rt! Emore RESOLUTION NO. A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE ClTY OF MIAMI BEACH, FLORIDA, URGING THE UNITED STATES CONGRESS TO REJECT ANY WEIGHT AND LENGTH INCREASES FOR COMMERCIAL TRUCKS AND TRAILERS ON THE NATIONAL HIGHWAY SYSTEM. WHEREAS, federal laws currently limit the weight of commercial trucks and trailers to 80,000 pounds on our nation's 40,000 mile interstate highway system; and WHEREAS, currently the United States Congress is considering whether to allow heavier, longer commercial trucks and trailers on the nation's highways; and WHEREAS, heavier trucks cause more wear and tear on the nations dilapidated roads and bridges, and create a greater safety hazard to other drivers who use the nation's roadways to commute to work and for leisure travel; and WHEREAS, heavier trucks on federal roadways in South Florida would have a particular negative impact in the City of Miami Beach because a new underground tunnel is being built connecting the Port of Miami and the McArthur Causeway, which is major roadway into the City of Miami Beach from the mainland; and WHEREAS, highway safety advocates, and many independent truckers support the extension of the current weight and length limits on the entire national highway system, which roads are deemed vital to the nation's economy, defense, and mobility; and WHEREAS, due to the significant deleterious effects which would result from an increase in the width and length limits to commercial trucks and trailers not only on the nation's highways but on the federal roadways connecting the City of Miami Beach to the South Florida mainland, the Mayor and the City Commission of the City of Miami Beach hereby oppose any increase to the weight and length limits for commercial trucks and trailers and hereby urge the United States Congress to reject any measures which would increase such limits, thereby causing additional deterioration of local roadway infrastructure, as well as resulting in greater safety hazards. NOW, THEREFORE BE IT DULY RESOLVED BY THE MAYOR AND ClTY COMMISSION OF THE ClTY OF MIAMI BEACH, FLORIDA that the United States Congress is hereby urged to reject any measure to increase the weight and length limits of commercial trucks and trailers on the nation's highway system. PASSED and ADOPTED this day of October, 201 0. ATTEST: ROBERT PARCHER, ClTY CLERK ClTY CLERK MATTI HERRERA BOWER MAYOR APPROVED AS TO FORM & LANGUAGE & FOR EpPCUTION Reports and Informational Items (see LTC # 279-201 0)