20101117_Reg_detail_red_ocrCity Commission Meeting
City Hall, Commission Chambers, 3rd Floor, 1700 Convention Center Drive
November 17,2010
Mayor Matti Herrera Bower
Vice-Mayor Michael G6ngora
Commissioner Jorge Exposito
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 at 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
R2 - Competitive Bid Reports
R2A Request For Approval To Award A Contract, Pursuant To Invitation To Bid (ITB) No. 25-0911 0, For
Right Of Way Infrastructure lmprovement Program City Center Neighborhood #9c (Lincoln Road),
Authorizing The Mayor And City Clerk To Execute An Agreement With M. Vila &Associates, Inc. In
The Amount Of $1 ,I 71,208.25, Plus Approve A Project Contingency Of Ten Percent In The Amount
Of $117,120.83, For A Total Project Amount Of $1,288,329.08; Funding In The Amount Of
$1,171,208.25 For Construction Has Been Previously Appropriated In The City Center RDA Capital
Fund 365; Funding In The Amount Of $117,120.83 For Contingency Has Been Previously
Appropriated In The City Center RDA Fund 365; Further Authorizing The Administration To Engage In
Value Engineering To Further Reduce The Cost And Time For Completion Of Said Project.
(Page 227)
(Capital lmprovement Projects)
Regular Agenda, November 17,2010
R5 - Ordinances L
R5A Alton Road Historic District Buffer Overlay
An Ordinance Amending Chapter 142, "Zoning Districts And Regulations,'' Article Ill, "Overlay
Districts," Creating Division 8 "Alton Road - Historic District Buffer Overlay," By Including Section 142-
858 "Location And Purpose," And Section 142-859 "Development Regulations,: Including Among
Other Provisions Regulations On Maximum Floor Area Ratio; Maximum Building Height; Minimum
Setbacks; Building Separation; Demolition Or Additions To Contributing Buildings In An Historic
District; And Land Use Regulations For Location Of Retail Uses, Restaurants, Bars, Entertainment
Establishments, Alcoholic Beverage Establishments And Similar Uses; Requiring Conditional Use
Approval Of Such Uses In Excess Of 20,000 Sq. Ft.; And Prohibiting Alcoholic Beverage And
Entertainment Establishments In Open Areas With Exceptions As Prescribed In The Ordinance.
11 :00 a.m. First Readinn Public Hearing (Page 237)
(Planning Department)
R5B 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 Inclusion 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 :00 a.m. Second Readinn Public Hearing (Page 265)
(Human Resources)
(Continued from October 27, 2010)
R5C 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. 11:lO a.m. Second Readinn Public Hearing
(Page 275)
(Human Resources)
(First Reading on October 27, 201 0)
R5D 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 1 18-6, "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. 11 :30 a.m. Second Readinn Public Hearing (Page 287)
(Planning Department)
(First Reading on October 27, 2010)
Regular Agenda, November 17,201 0
R5 - Ordinances (Continued)
R5E 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. I1 :31 a.m. Second Reading Public Hearing (Page 297)
(Public Works)
(First Reading on October 27, 201 0)
R5F 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 106-21 3, "Application,"
To Reduce The Number Of Police Vehicle Towing Permits From Three To Two, Providing For
Codification, Repealer, Severability And An Effective Date. 11:32 a.m. Second Reading Public
Hearing (Page 309)
(Parking Department)
(First Reading on October 27, 201 0)
R5G An Ordinance Amending The Code Of The City Of Miami Beach, By Amending Chapter 2, Entitled
"Administration," By Amending Article Ill, Entitled "Agencies, Boards And Committees," By Amending
Division 14, Entitled "Safety Committee," By Amending Sec. 2-1 76(E) To Require That One Of The
Two Direct Appointments Made By The Mayor And Each City Commissioner Be Citizen Emergency
Response Team (CERT) Certified; Providing For Codification, Repealer, Severability, And An
Effective Date. First Reading (Page 31 7)
(City Clerk's Office)
R5H An Ordinance Amending The Land Development Regulations Of The City Code By Amending
Chapter 118, "Administrative And Review Procedures," Article II, "Boards," Division 5, "Board Of
Adjustment," Section I 18-1 34, "Notification Of Hearings"; Article IV, "Conditional Use Procedure,"
Section 118-193. "Applications For Conditional Uses"; Article VI, "Design Review Procedures";
Section 118-254, "Decision Of Design Review Board," And Section 118-257, "Deferrals,
Continuances And Withdrawals," Article X, "Historic Preservation"; Section 118-563, "Review
Procedure," And Section 1 18-591, "Historic Designation Procedure," And Article XI. "Neighborhood
Conservation Districts (NCD)"; Section 1 18-705, "Procedures For Adoption Of Specific NCD Overlay
Districts," To Expand The Public Notice Period For All Four Land Use Boards From 15 Days To 30
Days; Providing For Repealer; Codification; Severability And An Effective Date. First Readinq
(Page 321)
(Planning Department)
R51 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 331)
(Planning Department)
(Continued from October 27, 201 0)
Regular Agenda, November 17,201 0
R5 - Ordinances (Continued)
R5J An Ordinance Amending The Code Of The City Of Miami Beach, Florida, By Amending Chapter 130
Off-Street Parking, Article II "Districts; Requirements," Section 130-31 "Parking Districts Established,"
Creating A New Parking District No. 5, And Section 130-33 "Off-Street Parking Requirements For
Parking Districts Nos. 2,3 And 4," By Adding New Parking Regulations For Parking District No. 5, For
Properties With A Lot Line On Alton Road From 5th Street To Dade Boulevard, Including A Reduction
In Off-Street Parking Requirements For Certain Land Uses And Bicycle Parking Requirements;
Providing For Codification; Repealer; Severability; And An Effective Date. First Reading
(Page 441)
(Planning Department)
R7 - Resolutions
R7A A Resolution [Granting Or Denying] An Appeal Request By The Euroamerican Group Pertaining To A
Decision Of The Design Review Board, Pursuant To Miami Beach City Code Section 118-262, For
The Property Located At 31 Venetian Way (DRB File No. 22347) 10:20 a.m. Public Hearinq
(Page 459)
(Planning Department)
R7B A Resolution Approving, Following A Duly Noticed Public Hearing, A Lease Agreement Between The
City And Syanna, LLC. (Tenant), For The Lease Of Approximately 221 6 Square Feet Of City Owned
Property, Located At 22 Washington Avenue, Miami Beach, Florida, For The Purpose Of An Outdoor
Cafe Associated With The Restaurant To Be Operated By The Tenant At 816 Commerce Street,
Which Is Directly Adjacent To And West Of The Subject City Property; Said Lease Having An Initial
Term Of Five Years, With An Option To Renew For Four Years And 364 Days, At The City's Sole
Discretion; Further Waiving By 5Rths Vote, The Competitive Bidding And Appraisal Requirements, As
Required By Section 82-39 Of The Miami Beach City Code. 11:40 a.m. First and Only Public
Hearing (Page 475)
(Real Estate, Housing & Community Development)
R7C A Resolution Setting The Dates For The Year 2011 City Commission Meetings. Joint City
Commission Redevelopment Anencv (Page 507)
(City Clerk's Office)
R7D A Resolution Accepting The Recommendation Of The City Manager, Pursuant To Invitation To Bid
(ITB) No. 40-0911 0, For The Construction Of The Sunset Harbour Parking Garage And Retail Project;
And Authorizing The Mayor And City Clerk To Execute An Agreement With Boran Craig Barber Engel
Construction Company, Inc. (BCBE), In The Not-To-Exceed Amount Of $9,267,556.00, For The
Construction Of The Project, Plus Approve A Project Contingency In The Amount Of $926,755.60
(ForA Grand Total Of $1 0,194,311.60), And Execution Subject To And Contingent Upon Satisfaction
Of The Following Conditions: 1 .) Proceeds Of The Bond Financing For The Garage Being Available
To The City; 2.) Occurrence Of The "Second Closing" For The Remaining Property Being Acquired By
The City For Assembly Of The Land To DeveloplConstruct The Project; And 3.) Concurrent With The
"Second Closing," Execution Of An Agreement Between The City And The DeveloperlOwner Of The
Retail Portion Of The Project For Set Aside Of The Developer's Contribution; And Further Authorizing
The Administration To Engage In Value Engineering To Further Reduce The Cost And Time For
Completion Of Said Project. (Page 51 5)
(Capital Improvement Projects)
Regular Agenda, November 17,201 0
R7 - Resolutions (Continued)
R7E A Resolution Approving And Authorizing The Mayor And City Clerk To Execute A New Sovereignty
Submerged Land Lease (BOT File No. 130765469) For The Miami Beach Marina By And Among The
City And The Miami Beach Redevelopment Agency (RDA), As Lessee, And The Board Of The
Internal Improvement Trust Fund Of The State Of Florida, As Lessor. Joint Citv Commission
Redevelopment Aaency (Page 523)
(City Attorney's Office)
R7F A Resolution Approving The Settlement Agreement Between Nancy Bona, Mary Michel, And Robert
And Rita Swedroe, And The City Of Miami Beach, And Authorizing The Mayor And City Clerk To
Execute A Settlement Agreement, And Authorizing The City Manager And City Attorney To Take
Such Actions As May Be Necessary To Carry Out The Intent Hereof. (Page 601)
(City Attorney's Off ice)
R9 - New Business and Commission Requests
R9A Board And Committee Appointments. (Page 607)
(City Clerk's Office)
R9A1 Board And Committee Appointments - City Commission Appointments. (Page 61 3)
(City Clerk's Office)
R9B1 Dr. Stanley Sutnick Citizen's Forum. (12:30 p.m.) (Page 61 9)
R9B2 Dr. Stanley Sutnick Citizen's Forum. (530 p.m.)
R9C The Committee Of The Whole Will Meet During Lunch Recess Of The November 17, 2010 City
Commission Meeting At The City Manager's Office Large Conference Room To Discuss The Audit
Committee. (Page 621)
(Budget & Performance Improvement)
R9D Discussion Regarding The Shift To iPad From Printed Agenda. (Page 687)
(Requested by Commissioner Jorge R. Exposito)
(Deferred from October 27, 201 0)
R9E Discussion Regarding Revenue Generating Opportunities 1 Miami Air Show. (Page 689)
(Requested by Commissioner Jorge R. Exposito)
(Deferred from October 27, 201 0)
R9F Discussion And Referral To Finance And Citywide Projects Committee A Change In City Ordinance
To Allow The City Of Miami Beach To Sell Police Vehicles To Other Municipalities, Instead Of Selling
Them Through The Auction Process. (Page 691)
(Requested by Commissioner Jorge Exposito)
Regular Agenda, November 17,201 0
R9 - New Business and Commission Requests (Continued)
R9G Discussion Regarding The Mega Yacht Complex. (Page 693)
(Requested by Commissioner Jorge R. Exposito)
R9H Discussion Regarding Resolution No. 2010-27314, In Which The City Commission Voted Against
Supporting The Miami Dolphins' Initiative To Get Public Funding For Their Stadium. (Page 695)
(Requested by Commissioner Jonah Wolfson)
R10 - Citv Attornev Reports
Rl OA Attorney Client Session (Page 699)
Pursuant To Section 286.01 1, Florida Statutes, The City Attorney Hereby Advises The Mayor And City
Commission That He Desires Advice Concerning The Following Pending Litigation Matter:
Nancv J. Bona, Maw Michel, Robert M. Swedroe. Rita Swedroe And Altos Del Mar Realty Corp. V.
City Of Miami Beach Eleventh Judicial Circuit Court, General Jurisdiction Division Case No. 07-32876
CA 21
Therefore, A Private Closed Attorney-Client Session Will Be Held During The Lunch Recess Of The
City Commission On November 17, 2010 In The City Manager's Large Conference Room, Fourth
Floor, City Hall, To Discuss Settlement Negotiations And/or Strategy Related To Litigation
Expenditures With Regard To The Above-Referenced Litigation Matter.
The Following Individuals Will Be In Attendance: Mayor Matti Herrera Bower; Members Of The City
Commission: Jorge Exposito, Michael Gongora, Jerry Libbin, Ed Tobin, Deede Weithorn, And Jonah
Wolfson; City Attorney Jose Smith, City Manager Jorge Gonzalez, First Assistant City Attorney Gary
Held, And Senior Assistant City Attorney Aleksandr Boksner.
Reports and Informational ltems
Reports and Informational ltems (see LTC #302-2010)
End of Renular Anenda
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
CITY CLERK'S OFFICE
LOBBYISTS LIST
November 17,2010
COMMISSION ITEM SUMMARY
Condensed Title:
Request For Approval To Award A Contract To M. Vila &Associates, Inc. Pursuant To Invitation To Bid (ITB)
No. 25-09/10 For Right Of Way lnfrastructure lmprovement Program City Center Neighborhood #9C
Key Intended Outcome Supported:
Ensure well-desig ned quality capital projects.
According to the City's 2007 Community Satisfaction Survey, 89% of residents citywide rated recent I capital projects completed as "excellen? or "good".
Issue: I Shall the Crty Commission Approve the Award of a Contract? I
Item SummarylRecommendation:
I The Scope of Work specified in the bid package comprises the construction of the infrastructure site work 1
for Neighborhood NO. 9C - Crty Center. he work will include, but not be limited to, site preparation,
earthwork, storm drainage, road and walkway paving, water, lighting, planting, irrigation, graphics and site
furnishings.
ITB No. 25-09/10 For Right Of Way lnfrastructure lmprovement Program City Center Neighborhood #9C
was issued on August 20, 2010, and the Procurement Division e-mailed as well as uploaded the Bid to
BidSync and Bidnet, sending notification to over 300 firms. A non-mandatory pre-bid meeting to provide
information and respond to questions from prospective bidders was held on September 3,2010. On the
due date of September 20,2010, eight (8) bid responses were received from: HAContracting Corporation;
Homestead Concrete & Drainage, Inc.; Horizon Contractors, Inc.; McBayne's Construction & Renovation
Inc.; M. Vila & Associates, Inc.; Southeastern Engineering Contractors, Inc.; Team Contracting, Inc.; and
Williams Paving Co., Inc.
The initiil meeting of the Technical Review Panel (TRP) occurred on October 8,201 0 where the bids were
reviewed and shortlisted The second TRP meeting to interview the key personnel of the top five (5) firms
occurred on October 28,2010. The TRP unanimously ranked M. Vila &Associates as the top firm.
Approve the Award of a Contract.
Advisory Board Recommendation: I N/A
Financial Information:
I i
Financial Impact Summary:
//
City Clerk's Office Legislative Tracking: // I Gus Lopez, Procurement Director, ext 6641 &
MIAMIBEACH
City of Miami Beach, 1700 Convention Center Drive, Miami Beach, Florida 33 139, www.miamibeachR.gov
COMMISSION MEMORANDUM
To: Mayor Matti Herrera Bower and
FROM: Jorge M. Gonzalez, City
DATE: November 17, 2010 w
SUBJECT: REQUEST FOR APPROVAL TO AWARD A CONTRACT, PURSUANT TO
INVITATION TO BID (ITB) NO. 25-09/10, FOR RIGHT OF WAY
INFRASTRUCTURE IMPROVEMENT PROGRAM ClTY CENTER
NEIGHBORHOOD #9C (LINCOLN ROAD), AUTHORIZING THE MAYOR AND
CITY CLERK TO EXECUTE AN AGREEMENT WITH M. VILA & ASSOCIATES,
INC. IN THE AMOUNT OF $1,171,208.25, PLUS APPROVE A PROJECT
CONTINGENCY OF TEN PERCENT IN THE AMOUNT OF $117,120.83, FOR A
TOTAL PROJECT AMOUNT OF $1,288,329.08; FUNDING IN THE AMOUNT OF
$1,171,208.25 FOR CONSTRUCTION HAS BEEN PREVIOUSLY
APPROPRIATED IN THE ClTY CENTER RDA CAPITAL FUND 365; FUNDING IN
THE AMOUNT OF $117,120.83 FOR CONTINGENCY HAS BEEN PREVIOUSLY
APPROPRIATED IN THE ClTY CENTER RDA CAPITAL FUND 365; FURTHER
AUTHORIZING THE ADMINISTRATION TO ENGAGE IN VALUE ENGINEERING
TO FURTHER REDUCE THE COST AND TIME FOR COMPLETION OF SAID
PROJECT.
FUNDING
Funding has been previously appropriated for Construction and Contingency in the City
Center RDA Capital Fund 365 for the Project.
The Account breakdown is as follows;
$1 ,I 71,208.25 Account No. 365-2664-069357 For Construction
$ 1 17,120.83 Account No 365-2664-069358 For Contingency
$1,288,329.08 Total Project
ADMINISTRATION RECOMMENDATION
Approve the Award of Contract.
KEY INTENDED OUTCOMES SUPPORTED
Ensure well-designed quality capital projects.
ANALYSIS
The City Center 9C portion of the Project was added to the Chen and Associates Agreement
on February 8,2006. The boundary of work is generally described as Lincoln Road between
Washington Avenue and Collins Avenue, and portions of work within Collins Avenue,
Washington Avenue, James Avenue rights-of-way.
SCOPE OF SERVICES
The Scope of Work specified in the bid package comprises the construction of the
infrastructure site work for Neighborhood No. 9C - City Center. The work will include, but not
228
Commission Memorandum
ITB 25-09/10 CC9C Lincoln Road ROW
November 17,201 0
Page 2 of 6
be limited to, site preparation, earthwork, storm drainage, road and walkway paving, water,
lighting, planting, irrigation, graphics and site furnishings.
The City Center 9C Project plans were approved by the Historic Presentation (HPB) on
January 9, 2007, and the ninety percent (90%) plans were received on March 20, 2007.
However, due to the redesign to match the 1 11 1 block of Lincoln Road, design by Ramond
Jungles (Jungles), the ninety percent (90%) plans were redesigned and resubmitted in
August 2008. The original contract design completion was extended to accommodate the
introduction of a new design concept by Jungles.
The design concept presented by Jungles was incorporated into the one hundred percent
(100%) Construction Documents that were submitted on October 2008. Subsequently, in
February 2009, a Job Order Contracting (JOC) Cost Proposal was received in the amount of
$1,318,339. However the decision was made to advertise the Project for bids in an effort to
get a more competitive price.
The Bid Documents were forwarded to Procurement in November, 2009. At the February 3,
201 0, Commission meeting, the Administration requested that the issue of the Lincoln Road
median be referred to the February 16,201 0, Neighborhoods/Community Affairs Committee
for discussion. The Committee voted in favor of recommending to the City Commission that
the project components, as currently designed (with center medians), be maintained and that
the Project be issued for Bids. The City Commission voted on March 10,2010, to utilize gray
and white paver stones in lieu of the Pedra Portuguesa as proposed and to remove the
center median. The Planning Department staff later determined that such changes would
require that the project be brought back to the Historic Preservation Board (HPB) for
review.The Project was presented to HPB on June 8,2010, and the Board voted to retain the
proposed median. On July 14, 2010, the City Commission approved the center median.
Subsequently, the Commission referred the issue of the center median to the October 14,
2010 Finance and Citywide Projects Committee meeting. The Committee instructed the
Administration to discuss the matter with the Mayor's Blue Ribbon Taskforce on Tourism
Lincoln Road Beautification Sub-committee and representatives of the owners of the subject
area. Depending on the resolution of this matter the median will be treated as a deductive
change order if it is to be removed.
BID PROCESS
ITB No. 25-09/10 was issued on August 20, 2010, with an amended opening date of
September 28,2010. The pre-bid conference was held on September 3, 2010.
The Procurement Division e-mailed, as well as uploaded the RFP to BidSync.com and
BidNet, sending notifications to over 300 firms. This outreach resulted in the receipt of eight
(8) bids from the following firms:
HA Contracting Corporation
Homestead Concrete & Drainage, Inc.
Horizon Contractors, Inc.
McBayne's Construction & Renovation, Inc.
M. Vila & Associates, Inc.
Southeastern Engineering Contractors, Inc.
Team Contracting, Inc.
Williams Paving Co., Inc.
Commission Memorandum
ITB 25-09/10 CC9C Lincoln Road ROW
November I 7,201 0
Page 3 of 6
BID REQUIREMENTS
The ITB required that the Prime Contractor must be a licensed General Contractor (GC) in
the State of Florida, or a Certified Underground Contractor (CUC), licensed in the State of
Florida, and have a minimum of five (5) years experience in projects of similar size, scope
and complexity, supported by references of completed projects. The bidder must self perform
at least fifty percent (50%) of the work.
There were only two (2) additive alternates included in this ITB. Additive alternate Bid ltem
No.1 is for procurement of the services of a Public Information Officer (PIO); and Additive
alternate Bid ltem No. 2 is for providing a staging area, both of which are considered
essential to the project, and are currently funded. Allowances were a total of $5425. The
Grand Total Bid amounts,including the Additive Alternates and Allowances in ascending
order, are as follows:
The Technical Review Panel (the "TRP") consisted of the following individuals:
Team Contracting, Inc.
Horizon Contractors, Inc.
HA Contracting Corporation
Williams Paving Co., Inc.
Carla Dixon, Capital Projects Coordinator, CIP
Chuck Fossler, Sr. Capital Projects Coordinator, CIP
Ricardo Guzman, Sr. Planner, Planning Department
Maria Hernandez, Sr. Capital Projects Coordinator, CIP
Jose Perez, Civil Engineer, Public Works Department
$1,277,599,50
$1,420,332.00
$1,461,895.1 1
$1,597,474.60
The initial meeting of the TRP took place on October 8, 2010. In attendance at the TRP
meeting from Chen & Associates was Oscar Bello, Project Manager. Carla Dixon was
unable to attend the initial meeting.
In Step 1 of the reviewlevaluation process, the TRP scored and ranked the bids in
accordance with the following evaluative criteria, for a potential total of 80 points:
60 Points - Base Bid Price
10 Points - Qualifications of Bidder andlor Past Performance
10 Points - RAPNAS Submittal
Commission Memorandum
ITB 25-09/70 CC9C Lincoln Road ROW
November 17,2010
Page 4 of 6
Based on the criteria outlined above, the TRP scored and ranked the bids as follows:
Based on the rankings, the TRP elected to short-list the bidders, and hear presentations and
conduct interviews with the five (5) top ranked bidders: M. Vila & Associates, Inc.; McBaynels
Construction & Renovation, Inc.; Southeastern Engineering Contractors, Inc.; Homestead
Concrete & Drainage, Inc.; and Horizon Contractors, Inc.
Southeastern Engineering
Homestead Concrete
Horizon Contractors, Inc.
Team Contracting, Inc.
HA Contracting Corporation
Williams Paving Co., Inc.
The TRP reconvened on October 28, 2010, and was scheduled to interview the key
personnel of the top five (5) firms listed above. The interview process carried a possible
score of 20 points. Jose Perez was unable to attend the second meeting. Carla Dixon was in
attendance and led the interview process, however, did not participate in the scoring and
ranking, due to not attending the first TRP meeting.
The TRP unanimously ranked M. Vila & Associates as the top ranked firm as it was very
satisfied with the credentials and long history of projects of the key personnel of M. Vila's
project team. M. Vila intends to use the same Public Information Officer that it is currently
using in its City Center 9A project. The City has been very satisfied with this service since
they are very hands on and are accustomed to updating the hotels, restaurants, valet
operators and building property managers with construction status and anticipated work
activities.
McBayne's Construction & Renovation, lnc. did not illustrate experience working in an urban
and dense commercial district similar to Miami Beach. During the interview process, it
became clear to the TRP that McBayne's project team did not understand the dynamics of
working in a congested, highly visible area such as this project on Lincoln Road, which is
active twenty four (24) hours per day, seven (7) days per week. Their Maintenance of Traffic
(MOT) plan for the project did not take into consideration the dynamics of the corridor which
consist of heavy pedestrian traffic generated from the Miami Dade County Transit
Association (MDTA) bus terminal and businesses that are open late. McBayne's
Construction contemplated performing this work during the evening hours when the corridor
receives the greatest volume of pedestrian traffic and to close all access to the sidewalk
areas during the construction period.
78 (1)
76 (2)
75 (3)
71 (5)
68 (6)
72 (4)
Additional inquiries as to their relevant experience illustrated that McBayne's only relevant
experience consisted of the sidewalk replacement at a public housing facility in the City of
Miami. The firm has limited project experience in the South Florida area. McBayne's hold
construction licenses in Florida, Alabama, Mississippi, Louisiana, and Texas and has
performed work in these states, however, they were not able to demonstrate working in
environments comparable to that of Miami Beach.
61 (3)
48 (7)
51 (5)
53 (4)
50 (6)
46 (8)
72.5 (1)
47.5 (5)
50 (4)
30 (7)
45.5 (6)
27.5 (8)
74 (2)
73 (3)
66 (5)
68 (4)
63 (6)
60 (7)
7
17
17
20
24
27
Commission Memorandum
IT5 25-09/10 CC9C Lincoln Road ROW
November 1 7,201 0
Page 5 of 6
The TRP inquired whether McBayne's had the appropriate work force in place locally to
perform the work and they acknowledged that they needed to retain a local labor force.
McBayne's stated during their interview that they are based in Mississippi, with a local office
in Miami. They stated that they currently have approximately eleven (1 1) employees in their
Miami area office, and would need to hire additional staff for this project, which requires
substantial completion in only four (4) months. The TRP also noted that one of their key
personnel to be assigned to this project was a new employee of the company.
McBayne's also acknowledged that it intended to self perform the PI0 services task with in-
house staff. The PI0 function is considered a critical element of the project and requires
constant communication with the parties impacted by the construction activities. Their plan
consisted of the issuance of brochures to businesses with updates on the construction
progress. Review of McBayne's unit price breakdown illustrated that they did not account for
hiring the Public lnformation Officer. The difference between McBayne's and M. Vila's bid for
the Public lnformation Officer is $26,220.
M. Vila & Associates outlined a logical and pragmatic approach to maintaining vehicular and
pedestrian access while the work is being implemented. M. Vila physically illustrated to the
TRP how it intended to execute the work with the least amount of disruption. A physical
model was provided which illustrated the work execution.
M. Vila identified the use of pedestrian barriers to separate the work zone from the
pedestrian traffic while the curb and gutter, street lighting, tree pit and landscaping work
elements were constructed. This phased and sequenced approach allows for the
transitioning of pedestrian traffic to the newly completed area while the construction work is
ongoing. Also, M. Vila provided assurances that temporary pedestrian bridges into and out
of the commercial establishments would be maintained and that sidewalks would not be
removed unless they could be replaced before the end of the work week. Additionally, M.
Vila's team demonstrated an extensive familiarity with the project, as the firm is currently
contracted by the City for the construction of the City Center Neighborhood #9A project and
this project will be a natural progression into the adjacent area.
The TRP also had a comfort level that M. Vila will be able to complete the project within
budget, on schedule and illustrated familiarity with working in a dense and urban commercial
corridor. Review of M. Vila's unit price breakdown provided a comfort level that work
elements were appropriately priced such as the colored sidewalk concrete, unit pavers and
the public information officer function. The difference between M Vila & McBayne's grand
total is $222,924.66. When further analysis is performed and items not included in
McBayne's grand total (i.e. Public lnformation Officer (PIO) and concrete and paver costs
and additional items) are taken into account, this difference in costs between M.Vila and
McBayne's final price is approximately $152,000.
The City's experience with M. Vila has been positive and they have demonstrated a
willingness to work out of sequence in order to beautify their work areas and to be a good
neighbor. A recent example of this is the Washington Avenue corridor between 17'~ Street
and Dade Boulevard where M. Vila, at the request of the City, accelerated its schedule to
install the landscaping and irrigation along the median.
Commission Memorandum
ITB 25-0911 0 CCQC Lincoln Road ROW
November 17,2010
Page 6 of 6
The Administration recommends the award of contract to M. Vila & Associates, Inc.,
pursuant to Invitation to Bid No. 25-09/10, for Right of Way infrastructure Improvement
Program City Center Neighborhood #9C (Lincoln Road) in the amount of $1,171,208.25; plus
project contingency of ten percent in the amount of $1 17,120.83, for a total project amount
of $1,288,329.08 from funds previously appropriated in the Capital Budget, further
authorizing the Administration to engage in value engineering to further reduce the cost and
T:L4GENDAWlO\November 1 i'\Regular\lTB 25-09-10 CCQC Lincoln Road Merno.doc
THIS PAGE INTENTIONALLY LEFT BLANK
COMMISSION ITEM SUMMARY
Condensed Title:
Alton Road Historic District Buffer Overlay zoning district
Key Intended Outcome Supported: I Maintain strong growth management policies; Protect historic building stock I
Supporting Data (Surveys, Environmental Scan, etc.):
While nearly half, 47.6%, suggested the effort put forth by the City to regulate development is
"about the right amount," nearly one-third, 29.6%, indicated "too little" effort is being put forth by the
City in this area.
Issue:
Should the City Commission approve the ordinance on first reading and set the second reading public
hearing for ; Januaq ,201 1 meeting?
Item SummarylRecommendation:
FIRST READING PUBLIC HEARING
The proposed zoning overlay district will modify the existing CD-2 Commercial Medium Intensity district
that is adjacent to lower intensity RS-4 and RM-1 residential buildings in the Flamingo Park historic district
and the Palm View historic district on the east side of Alton Road between 6 St and Dade Blvd. The overlay
district regulations are intended to achieve a more compatible relationship of scale and massing between
the Alton Road corridor and the adjoining residential neighborhoods, to promote mixed-use development
that makes efficient use of parking, to minimize the concentration of impacts from intense retail and
restaurant development and to encourage smaller neighborhood-oriented uses.
The proposed overlay district will eliminate the .5 FAR bonus for residential uses, regulate building form
through changes to height and setbacks, introduce certain restrictions on the size and location of
commercial uses, and regulate lots containing contributing buildings in the historic district.
Advisory Board Recommendation:
Planninq Board Action: November 17,2009 recommended approval as amended by a vote of 5 to 0
April 27,2010 recommended approval as amended by a vote of 5 to 0.
August 24, 201 0 motion to recommend approval as amended failed by a vote of 3 to 2.
Financial Information:
I I I
Financial Impact Summary: This ordinance is also expected to generally enhance property values
throughout the neighborhood by permitting appropriately scaled infill development and by encouraging
the development of smaller, locally oriented businesses..
OBPl
City Clerk's Office Legislative Tracking:
1 Joyce Meyers, Planning Department
Account
3
Total
MIAMIBEACH
237
Amount
NIA
Source of
Funds: 1
2
MIAMIBEACH
City of Miami Beach, 1700 Convention Center Drive, Miami Beach, Florida 33 139, www.rniarnibeachfl.gov
MEMO # COMMISSION MEMORANDUM
TO: Mayor Matti Herrera Bower and Members
FROM: Jorge M. Gonzalez, City Manager
DATE: November 17, 201 0
SUBJECT: FIRST READING PUBLIC HEARING - Alton Road Historic District Buffer Overlay
zoning district
AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY OF
MIAMI BEACH, FLORIDA, AMENDING THE CODE OF THE CITY OF MIAMI BEACH,
FLORIDA, BY AMENDING CHAPTER 142, "ZONING DISTRICTS AND
REGULATIONS," ARTICLE Ill, "OVERLAY DISTRICTS," CREATING DIVISION 8
"ALTON ROAD - HISTORIC DISTRICT BUFFER OVERLAY," BY INCLUDING
SECTION 142-858 "LOCATION AND PURPOSE," AND SECTION 142-859
"DEVELOPMENT REGULATIONS," INCLUDING AMONG OTHER PROVISIONS
REGULATIONS ON MAXIMUM FLOOR AREA RATIO; MAXIMUM BUILDING
HEIGHT; MINIMUM SETBACKS; BUILDING SEPARATION;-DEMOLITION OR
ADDITIONS TO CONTRIBUTING BUILDINGS IN AN HISTORIC DISTRICT; AND
LAND USE REGULATIONS FOR LOCATION OF RETAIL USES, RESTAURANTS,
BARS, ENTERTAINMENT ESTABLISHMENTS, ALCOHOLIC BEVERAGE
ESTABLISHMENTS AND SIMILAR USES; REQUIRING CONDITIONAL USE
APPROVAL OF SUCH USES IN EXCESS OF 20,000 SQ. FT.; AND PROHIBITING
ALCOHOLIC BEVERAGE AND ENTERTAINMENT ESTABLISHMENTS IN OPEN
AREAS WITH EXCEPTIONS AS PRESCRIBED IN THE ORDINANCE; PROVIDING
FOR CODIFICATION; REPEALER; SEVERABILITY; AND AN EFFECTIVE DATE.
BACKGROUND
In the Summer of 2006 the Historic Preservation Board initiated the westward expansion of the
Flamingo Park Local Historic District to the east right-of-way line of Alton Road between 6th
Street and 1 4th Street in order to protect the character of the adjacent National Register Historic
District as well as the historically significant but yet unprotected properties along this stretch of
Alton Road. It was noted by the board that recent commercial development trends along Alton
Road could significantly adversely impact the quality of life and historic integrity of the National
Register Historic District thereby undermining the cultural tourism appeal and quality of life of the
city.
At the same time the Historic Preservation Board requested the Planning Department to initiate
a major planning study of the Alton Road Corridor, including both sides of the road between 5th
Street and Michigan Avenue, which should include an analysis and evaluation of existing uses
and conditions, historically significant properties, permitted building heights, allowable FAR,
parking conditions and requirements, the efficacy of current zoning, and the character of the
public right-of-way with regard to pedestrian amenities, convenient means of transit, and quality
of landscape.
Alton Road Historic District Buffer Overlay
November 17, 2010
Page 2 of 7
The board further requested that the Planning Department organize and advertise a series of
community planning workshops, inviting members of the Historic Preservation Board and the
Planning Board, in order to gain public input and insight from local business owners and
residents so that the Department might develop a comprehensive set of planning and zoning
recommendations for future development and preservation along the corridor that would enable
healthy future growth and development without overwhelming or adversely impacting the historic
character of the area.
On January 16, 2008, the Mayor and City Commission approved Ordinance No. 2008-3592,
expanding the boundaries of the Flamingo Park Historic District westward expansion to Alton
Road between 8 Street and 14 Street; and on January 28, 2009, the Mayor and City
Commission approved Ordinance No. 2008-3592, expanding the boundaries of the Flamingo
Park Historic District westward expansion to Alton Road between 6 Street and 8 Street.
The Planning Department conducted an analysis of existing conditions, issues and opportunities
in the Alton Road corridor and held a community planning workshop on August 20, 2008 to
receive community input on land use, zoning, business development, parking, transit and
pedestrian/bicycle amenities. On January 27, 2009, the Planning Department presented
preliminary findings and recommendations for the Alton Road Neighborhood Planning Study to
the Planning Board. On February 26,2009, the Planning Department and the Planning Board
held a second community planning workshop on the Alton Road Neighborhood Planning Study
to receive community input. Both community planning workshops were advertised by mailed
notice to propertyowners, newspaper notice, and City email newsletters.
On March 2, 2009, the Land Use and Development Committee adopted a motion directing the
Planning Department to prepare an ordinance that would rezone the east side of Alton Road
between 6 Street and 16 Street from the CD-2 district to the CD-1 district, and to review the uses
and to the extent that there is a floor area incentive for mixed-use buildings, require that the
additional FAR be set aside for affordable or workforce housing, and to refer the item to the
Planning Board. On March 18, 2009, the Mayor and City Commission discussed the motion
from the Land Use and Development Committee and clarified their intent to consider other
options, including an overlay district that would remove the floor area ratio incentive for mixed-
use projects.
During the Planning Board meetings on April 21,2009, May 26,2009 and August 25,2009, the
Planning Department staff held additional detailed discussions with the Board on the proposed
zoning modifications for the east side of Alton Road in the Flamingo Park Historic District. The
proposed Alton Road- Historic District Buffer Overlay is the result of those discussions.
On October 27,2009, the Planning Board held a public hearing on the proposed overlay district
and heard testimony from residents who were unhappy with some aspects of the draft
ordinance. The Planning Board continued the hearing to the November 17 meeting and asked
staff to meet with the concerned residents to try to resolve their issues. The Planning
Department held two meetings with the residents on October 30 and November 9,2009. The
public hearing at the Planning Board meeting on November 17, 2009 resulted in several
additional amendments to the proposed ordinance. The Planning Board recommended approval
of the amended overlay district by a vote of 5 to 0.
Subsequently, the Administration made a determination that the amendments added to the
ordinance during the November 1 7th public hearing, specifically amendments dealing with land
use restrictions, may require a different type of notice to property owners than was provided for
Alton Road Historic District Buffer Overlay
November 17, 2010
Page 3 of 7
the previous public hearings. To avoid any legal challenges, the overlay district was brought
back to the Planning Board in the same form as it was approved in November, 2009, with 30-day
notice mailed to all property owners in and within 375 feet of the proposed overlay district.
On February 25, 2010, the Land Use and Development Committee discussed the proposed
Alton Road Historic District Buffer Overlay. The Committee recommended that the ordinance be
approved, and indicated that it does not need to come back to them unless there is a major
material change made by the Planning Board.
On April 27,201 0, the Planning Board held a second public hearing on the proposed Alton Road
Historic District Buffer Overlay district after the required 30-day mailed notice. The Planning
Board voted 5 - 0 to recommend approval of the ordinance with an amendment that deleted the
"no variances" provision. Subsequently, at their meeting on May 25,2010, the Board voted 3 - 2
to reconsider their recommendation and to schedule the item for rehearing.
On August 24,201 0, the Planning Board held a third public hearing on the proposed Alton Road
Historic District Buffer Overlay district after the required 30-day mailed notice. Based on
objections from commercial property owners who were not present during the first two hearings,
the Board voted separately on each of several amendments to the ordinance. Individual
amendments that were approved by the Planning Board have been incorporated into the
ordinance. However, a final vote to recommend approval of the entire ordinance, as amended,
failed by a vote of 3-2 (four affirmative votes are required to approve a request before the board
that requires City Commission approval).
On November 1, 201 0, the Administration hosted a meeting between attorneys representing
certain property owners who objected to the ordinance and representatives from the
neighborhoods in an attempt to forge a compromise on several limited points of disagreement.
As a result of that meeting, the Administration is proposing an alternate version of the ordinance
that we believe satisfies the most critical objections from both sides; while at the same time it
represents sound planning principles and the interests of the city-at-large. A summary chart of
the disputed issues and proposed changes to the ordinance is enclosed as Attachment A, and
each issue is discussed in the analysis below.
ANALYSIS
The purpose of the Alton Road - Historic District Buffer Overlay District is to minimize the
impacts of development along Alton Road on residential properties located in the Flamingo Park
Historic District and the Palm View Historic District. Specifically the overlay district is intended to
apply to properties zoned CD-2 Commercial Medium Intensity that are adjacent to lower intensity
RS-4 and RM-1 residential buildings in designated local historic districts. The overlay district
regulations are intended to achieve a more compatible relationship of scale and massing
between the Alton Road corridor and the adjoining residential neighborhoods.
The locations of the proposed overlay district are as follows (see also attached map):
Area 1 includes those properties fronting on the east side of Alton Road from 6 Street to 11
Street. Existing zoning is CD-2 adjacent to RM-1 in the Flamingo Park Historic District.
Area 2 includes those properties fronting on the east side of Alton Road from 14 Street to 15
Street. Existing zoning is CD-2 adjacent to RS-4 in the Flamingo Park Historic District.
Area 3 includes those properties fronting on the east side of Alton Road from 17 Street to the
Collins Canal, except for the corner property adjacent to 17 Street. Existing zoning is
CD-2 adjacent to RS-4 in the Palm View Historic District.
Alton Road Historic District Buffer Overlay
November 17, 2010
Page 4 of 7
The proposed ordinance limits the floor area ratio (FAR) to a maximum of 1.5 by removing the
existing bonus of .5 FAR for mixed-use buildings. This will make new construction along Alton
Road more compatible in scale and intensity with the adjoining historic neighborhood zoned RM-
I, which has existing buildings that range from 0.5 to 1.25 FAR with a few scattered sites over
1.25 FAR. During the planning process, various alternatives were considered, including down-
zoning from CD-2 to CD-1, which has a maximum FAR of 1.0 with a mixed-use bonus of .25
FAR. After much discussion and analysis, it was ultimately decided that 1.5 FAR is suitable for
Alton Road development. This is based on many factors, including the importance of Alton Road
as a commercial corridor and the existing bus and potential future transit linkages (e.g. Bus
Rapid Transit). From an urban design viewpoint, the proposed overlay district forms a gradual
stepping up of the intensity from RM-1 on the residential neighborhood to the east, to a
maximum of 1.5 FAR on the east side of Alton Road, to a maximum of 2.0 FAR on the west side
of Alton Road, to a maximum of 2.25 FAR (2.75 for large lots) on the Bayfront in RM-3.
However, it must be noted that FAR alone does not define the building envelop that is necessary
to assure compatibility with the historic district. The height and setback regulations described
below are also necessary to achieve this goal.
Another alternative that was discussed during the planning process was to keep a FAR bonus
for residential uses in a mixed-use building, but to make the bonus an incentive to provide
affordable or workforce housing. The Planning Board did not support this recommendation due
to their consensus to limit FAR to a maximum of 1.5.
The maximum building height in the Planning Board recommended ordinance is 43 feet along
Alton Road and a maximum of 23 feet in the rear portion of the lots within 50 feet from the rear
property line for lots abutting an alley (Lenox Court) and within 60 feet from the RM-1 district for
blocks with no alley between 8 Street and 11 Street. The 23 feet height limit in the rear of the
lots is based upon maintaining consistency with the predominant 2-story height of existing
buildings in the RM-1 district. For lots adjoining single family districts, the 23 feet height limit will
also ensure a compatible transition in the rear portion of the commercial property. The
administration has an alternative recommendation for maximum building height of 50 feet along
the front portion of the lots fronting Alton Road and 28 feet in the rear portion of the lots. This
change is based upon information supplied by property owners concerning industry standards
for minimum ceiling heights in new retail, restaurant and office buildings. However, this
recommendation is subject to building separation requirements for larger site development (see
below) to prevent monolithic buildings at 50 feet height.
The building height limitations in the proposed overlay district are coupled with rear yard
setbacks to achieve the appropriate buffer between the RM-AIRS-4 districts and the CD-2
district. Proposed minimum building setbacks in the rear yard are 25 feet for lots with no alley
and 5 feet for lots with an alley. The existing CD-2 and CD-1 zoning districts have a 5 feet
minimum rear setback irrespective of whether there is an alley (20 feet width) to provide
adequate separation between the buildings.
The overlay district proposes a minimum 5 feet setback on the front and side facing a street.
This is necessary to provide adequate pedestrian circulation space to support alternative modes
of transportation and sustain a vibrant commercial district.
The overlay district as amended by the Planning Board has no minimum interior side yard
setback, nor does it have provisions for building separation, lot aggregation or view corridors on
larger lot assemblages. Instead, the Planning Board version of the ordinance contains language
requiring architectural treatments on the fa~ades of buildings to be reflective of the 50 feet wide
Alton Road Hisforic District Buffer Overlay
November 17,2010
Page 5 of 7
lot development pattem that is predominant in the historic district. This could be accomplished
by such things as small variations in setbacks, window placement, or vertical and horizontal
design elements on the fa~ade, subject to design review. This was the recommendation of the
Planning Board in November 2009 following extensive workshop discussions wherein the
Planning Department staff had recommended various formulas for requiring a complete physical
separation between adjacent buildings on the upper stories above ground level retail. The intent
was to prevent a continuous wall of 40-50 feet tall buildings that would be inconsistent with the
small lot development pattem of the historic residential neighborhoods. The current
recommendation from the Administration is retain the language developed by the Planning
Board with the clarification of "east and west" facades, and to add a paragraph requiring building
separation under limited circumstances as follows: "Any development greater than 43 feet in
height on a lot with more than 150 linear feet of frontage along Alton Road shall have a
separation between all portions of the structure above a height of 28 feet, so that there is a
minimum 15 feet wide view corridor running from east to west at least every 150 linear feet along
the Alton Road corridor".
The overlay district contains 9 contributing buildings in the Flamingo Park Historic District.
Those contributing buildings are proposed to be subject to two of the same conditions applied to
historic buildings in the adjoining RM-1 zoning district. Those include a prohibition on demolition
of architecturally significant portions of the building and prohibition of building within a historic
courtyard.
Residents of the Flamingo Park neighborhood were concerned about impacts of noise and
traffic from intensive commercial uses. Therefore, the proposed overlay district modifies the
underlying CD-2 land uses in several ways. One of them is by prohibiting retail uses,
restaurants, bars, entertainment establishments and similar uses at any level above the ground
floor. An exception is provided for loft or mezzanine within the interior of a ground floor
commercial space, provided that the loft or mezzanine does not exceed one third of the floor
area of the store. Based upon objections from property owners, the current Administration
recommended ordinance deletes the language limiting the loft or mezzanine to one third of the
floor area, and replaces it with language permitting "a second floor within a ground floor
commercial space, if it functions as one single contiguous establishment and is only accessible
to the public through the contiguous ground floor commercial space." This would allow two full
floors inside any given retail store, similar to CB2 or Borders book stores, but it would not allow
multilevel shopping centers.
No alcoholic beverage establishment, entertainment establishment or restaurant may be
licensed as a main permitted or accessory use in any open area above the ground floor (any
area that is not included in the FAR calculations) or at ground level in any open area within 125
feet of a residential district, except that residents of a multifamily (apartment or condominium)
building or hotel guests may use these areas, which may include a pool or other recreational
amenities, for their individual, personal use with appropriate buffering as determined by the
Planning Department or applicable land use board with jurisdiction. No variance to this provision
would be permitted.
In accord with the objective of encouraging locally oriented retail and service uses that are
compatible in scale and character with the historic districts, the overlay district requires
conditional use approval for any individual retail, restaurant, bar, entertainment establishment or
similar establishment in excess of a certain size threshold. The Planning Dept. conducted a
detailed survey of businesses in the Alton Road corridor and determined that a threshold of
5,000 sq. ft. generally separates businesses that primarily serve the neighborhood population
from businesses that primarily serve the entire city and beyond. To provide a generous margin of
Alton Road Historic District Buffer Overlay
November 17, 2010
Page 6 of 7
error, staff doubled the recommended threshold to 10,000 sq. ft. for conditional use approval.
The Planning Board changed the conditional use threshold from 10,000 sq. ft. to 20,000 sq. ft.
by a 4-2 vote at their meeting on August 24,201 0, based upon objections from property owners.
The Administration's recommendation is to keep the original threshold of 10,000 sq. ft. per
establishment for conditional use approval based upon the analysis conducted by the Planning
Department.
A majority of the discussions during the community workshops and Planning Board meetings
centered upon the blocks between 6th and 1 I th Streets. However, it was noted that there is an
incompatible scale relationship between the CD-2 zoning district and adjoining RS-4 single
family zoning districts located in the 1400 block and the 1700 block. Down-zoning to CD-1 was
considered for these two blocks, but the Planning Department recommends that the proposed
overlay district will provide a more effective buffer than CD-1 due to the height and setback
regulations in the overlay district. At their August 24,201 0 meeting, the Planning Board voted 5-
1 to remove lots 15 and 16 from the overlay district (northeast corner of 17 Street and Alton
Road).
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, and determined that there will be no measurable
impact on the City's budget. By nature, a zoning district amendment does not have direct costs
to the City, but it may affect long term revenue from property tax, sales tax and other revenue
streams. Although some property owners have argued that the proposed overlay zoning will
diminish their property values, the Administration believes that this is claim is highly speculative,
especially if the Administration's alternate ordinance is adopted. The Administration's proposal
would preserve all of the most valuable development rights on each parcel, with the exception of
removing the .5 bonus FAR for residential use mixed with commercial uses. Since this is a
bonus and not as-of-right floor area, it is difficult to say whether any real development would be
sacrificed. There are no existing buildings in the district that have used this bonus.
Counterbalancing any potential loss of development rights on private property is the companion
ordinance creating Parking District #5, which will reduce minimum parking requirements thereby
creating significant savings to private property owners in the cost of providing parking spaces.
This ordinance is also expected to generally enhance property values throughout the
neighborhood by permitting appropriately scaled infill development and by encouraging the
development of smaller, locally oriented businesses.
PLANNING BOARD ACTION
November 17,2009 recommended approval as amended by a vote of 5 to 0
April 27,2010 recommended approvai as amended by a vote of 5 to 0.
August 24, 2010 motion to recommend approval as amended failed by a vote of 3 to 2.
ADMINISTRATION RECOMMENDATION
In view of the above analysis, the Administration recommends that the Mayor and City
Commission should approve the Administration's proposed ordinance on first reading and set a
second reading public hearing for January , 201 1 meeting after 5:00 PM.
T:\AGENDAEOl O\November 17\Regular\Alton Rd Historic Buffer Overlay memo.doc
Alton Road Historic District Buffer Overlay
November 17,2010
Page 7 of 7
Proposed Alton Road Historic District Buffer Overlay
ALTON ROAD HISTORIC DISTRICT BUFFER OVERLAY - ANALYSIS OF DISPUTED ISSUES
CD-2 zoning
residential uses
Height limit 50 feet or 5
stories
I Residents' concerns
zoning to CD-1 which has
FAR 1 .O and .25 FAR
bonus for residential uses.
Rationale: 2.0 FAR
buildings are too massive
to be compatible with the
scale of the historic district
FPNA recommended down-
zoning to CD-1 which has
a height limit of 40 feet or
4 stories. Subsequently, all
residents agreed to the
Planning Board
recommendation of 43 feet
along Alton Road and 23
feet in the rear 50-60 feet
of the property.
Rationale: 50 feet is too
high to be compatible with
1 and 2 story buildings in
the historic district,
particularly where large
sites are assembled.
I Property Owners'
concerns
Opposed to losing .5 FAR
I residential bonus I Rationale: diminishes
property rights, and is not
conducive to development
( of a maior urban
.
I commercial corridor.
50 feet height is required
along the Alton Road
frontage to build ground
floor retail with 3 stories of
other uses on upper floors.
The rear 50-60 feet of the
lot needs to be minimum
28-35 feet in height to
provide ceiling height for
ground floor retail plus one
level of parking
I Planning Board -
recommendation
Remove .5 FAR residential
bonus
Maximum building height
43 feet and a maximum of
4 stories, except that
building height shall be
limited to 23 feet within 50
feet from the rear property
line for lots abutting an
alley (Lenox Court) and
within 60 feet from the RM-
1 district for blocks with no
alley.
I Administration
recommendation
Remove .5 FAR residential
bonus
Rationale: Removing the bonus
makes the building more
compatible in scale, and
keeping the base FAR 1.5
gives flexibility to develop
commercial or residential
uses.
Same as Planning Board
except increase 43 feet to 50
feet and increase 23 feet to
28 feet, with no height
variances for height or
setbacks.
Rationale: Upon further
analysis of industry standards
for ceiling heights, staff agrees
with 50 feet and 28 feet
maximums. However, this is
subject to building separation
requirements for larger site
development (see below] to
prevent monolithic buildings at
50 feet heiaht.
Page 1 of 5
ALTON ROAD HISTORIC DISTRICT BUFFER OVERLAY - ANALYSIS OF DISPUTED ISSUES
Page 2 of 5
Existing CD-2
zoning
Building separation -
for residential use, sum
of the side yards shall
equal 16% of thejlot
width minimum 7.5 ft;
otherwise none required
2-story retail - not
regulated in CD-2
Property Owners'
concerns
Opposed to building
separation
requirements but do
not object to the
architectural
differentiation
recommended by the
Planning Board
Advocate for 2 levels
of retail space internal
to a single store such
as in CB2 or typical
Borders book stores
Residents' concerns
Recommend same as for
RM-1 in Flamingo Park
historic district: "No more
than 2 contiguous lots
may be aggregated for
development purposes"
Rationale: This follows the
same small lot
development pattern as
the historic district and
most existing buildings
along Alton Road and
prevents large monolithic
buildings
Opposed to 2-story retail
in the form of multilevel
shopping centers such as
5Qnd Alton.
Rationale: Higher intensity
aggregations of retail uses
are not compatible with
the residential
neighborhood.
Planning Board
recommendation
The faqades of any building
constructed on more than 50
linear feet of frontage along
Alton Road shall be divided
into segments with building
massing and architectural
treatments intended to be
reflective of the 50 feet wide lot
development pattern that is
predominant in the historic
district
Retail uses, restaurants, bars,
entertainment establishments
and similar uses shall not be
permitted at any level above
the ground floor, except that a
loft or mezzanine containing
these uses may be permitted
within the interior of a ground
floor commercial space
provided that the total floor
area of any such loft or
mezzanine does not exceed
one-third the total floor area in
that room in which the loft
space or mezzanine is located.
This subsection shall not apply
to existing and proposed retail
uses in existing buildings.
Administration
recommendation
Clarify the Planning Board language
by inserting "east and west" facades;
and also add "Any development
greater than 43 feet in height on a lot
with more than 50 linear feet of
frontage along Alton Road shall have
a separation between all portions of
the structure above a height of 28
feet, so that there is a minimum 15
feet wide view corridor running from
east to west at least every 150 linear
feet along the Alton Road corridor."
See attached graphic.
Recommend the following alternative
language, "...except that a second
floor within a ground floor
commercial space may be permitted
within the interior premises of a
multistory building if it functions as
one single contiguous establishment
and is only accessible to the public
through the contiguous ground floor
commercial space."
Rationale: This change will permit the
internal 2-story retail advocated by
the property owners without allowing
more intense multilevel shopping
centers which the residents oppose.
This is subject to reducing the size of
the threshold for individual
commercial businesses requiring
conditional use approval.
ALTON ROAD HISTORIC DISTRICT BUFFER OVERLAY - ANALYSIS OF DISPUTED ISSUES
Existing CD-2 zoning I
individual establishments
not regulated in CD-2
I Residents' concerns I Property Owners' I Planning Board
Opposed to destination-
type commercial uses on
the east side of Alton Road.
Rationale: Uses that attract
a majority of their
customers from outside the
neighborhood will add to
traffic congestion, parking
needs and other
externalities that will
negatively impact the
residential character of the
historic district. Residents
support the requirement for
businesses above 10,000
sq. ft. to get conditional use
approval from the Planning
concerns
Opposed to conditional use
approval based on size of
establishments, but satisfied
with a compromise with the
Planning Board to raise the
threshold from 10,000 sq.
ft. to 20,000 sq. ft.
recommendation
Any individual retail,
restaurant, bar,
entertainment establishment
or similar establishment in
excess of 20,000 square
feet, inclusive of outdoor
seating areas, shall require
conditional use approval.
Board.
I Administration I
recommendation
Keep the original I recdmmend& threshold of I
1 0,000 sq. ft. per
establishment for conditional
use approval.
Rationale: The Planning Dept.
conducted a detailed survey of
businesses in the Alton Road
corridor and determined that
a threshold of 5,000 sq. ft.
generally separates businesses
that primarily serve the
neighborhood population from
businesses that primarily serve
the entire city and beyond. To
~rovide a generous margin of
error, staff doubled the
recommended threshold to
10,000 sq. ft.
ITEMS WITH CONSENSUS AMONG ALL GROUPS
Boundaries of the overlay district (although some residents of Palm View may not agree with omitting the corner of 17 St. and Alton Road)
Maximum 4 stories
Rear step back of buildings above the first two stories - 50 with alley and 60 feet with no alley
All minimum setbacks - front 5 ft, side facing street 5 ft., interior side 0 ft., rear 5 ft, with alley and 25 ft. with no alley
Regulations for lots containing contributing historic buildings
Prohibition on alcoholic beverage, entertainment or restaurant uses in any open area above the ground floor, no variances for these
Page 3 of 5
ALTON ROAD HISTORIC DISTRICT BUFFER OVERLAY - ANALYSIS OF DISPUTED ISSUES
Illustration of proposed
building separation above
a height of 28 feet
Page 4 of 5
Increased building height limits recommended by the Administration
Page 5 of 5
Administration Recommendation
1111 712010
ORDINANCE NO.
AN ORDINANCE OF THE MAYOR AND ClN COMMISSION OF THE
ClN OF MIAMI BEACH, FLORIDA, AMENDING THE CODE OF THE
CIN OF MIAMI BEACH, FLORIDA, BY AMENDING CHAPTER 142,
"ZONING DISTRICTS AND REGULATIONS," ARTICLE Ill,
"OVERLAY DISTRICTS," CREATING DIVISION 8 "ALTON ROAD -
HISTORIC DISTRICT BUFFER OVERLAY," BY INCLUDING
SECTION 142-858 "LOCATION AND PURPOSE," AND SECTION
142-859 "DEVELOPMENT REGULATIONS," INCLUDING AMONG
OTHER PROVISIONS REGULATIONS ON MAXIMUM FLOOR AREA
RATIO; MAXIMUM BUILDING HEIGHT; MINIMUM SETBACKS;
BUILDING SEPARATION; DEMOLITION OR ADDITIONS TO
CONTRIBUTING BUILDINGS IN AN HISTORIC DISTRICT; AND
LAND USE REGULATIONS FOR LOCATION OF RETAIL USES,
RESTAURANTS, BARS, ENTERTAINMENT ESTABLISHMENTS,
ALCOHOLIC BEVERAGE ESTABLISHMENTS AND SIMILAR USES;
REQUIRING CONDITIONAL USE APPROVAL OF SUCH USES IN
EXCESS OF 10,000 SQ. FT.; AND PROHIBITING ALCOHOLIC
BEVERAGE AND ENTERTAINMENT ESTABLISHMENTS IN OPEN
AREAS WITH EXCEPTIONS AS PRESCRIBED IN THE
ORDINANCE; PROVIDING FOR CODIFICATION; REPEALER;
SEVERABILITY; AND AN EFFECTIVE DATE.
WHEREAS, In the summer of 2006, the Historic Preservation Board initiated
the westward expansion of the Flamingo Park Local Historic District to the east right-
of-way line of Alton Road between 6 Street and 14 Street, and requested the
Planning Department to initiate a major planning study of the Alton Road corridor,
including both sides of the road between 5 Street and Michigan Avenue, to include
an analysis and evaluation of existing uses and conditions, historically significant
properties, permitted building heights, allowable FAR, parking conditions and
requirements, the efficacy of current zoning, and the character of the public right-of-
way with regard to pedestrian amenities, convenient means of transit, and quality of
landscape.
WHEREAS, on January I, 2008, the Mayor and City Commission approved
Ordinance No. 2008-3592, expanding the boundaries of the Flamingo Park Historic
District westward expansion to Alton Road between 8 Street and 14 Street; and
WHEREAS, the Planning Department conducted an analysis of existing
conditions, issues and opportunities in the Alton Road corridor and held a
community planning workshop on August 20, 2008 to receive community input on
land use, zoning, business development, parking, transit and pedestrianlbicycle
amenities; and
Administration Recommendation
11/17/2010
WHEREAS, on January 27, 2009, the Planning Department presented
preliminary findings and recommendations for the Alton Road Neighborhood
Planning Study to the Planning Board; and
WHEREAS, on January 28, 2009, the Mayor and City Commission approved
Ordinance No. 2008-3592, expanding the boundaries of the Flamingo Park Historic
District westward expansion to Alton Road between 6 Street and 8 Street; and
WHEREAS, on February 26, 2009, the Planning Department and the
Planning Board held a second community planning workshop on the Alton Road
Neighborhood Planning Study to receive community input; and
WHEREAS, on March 2, 2009, the Land Use and Development Committee
adopted a motion directing the Planning Department to prepare an ordinance that
would rezone the east side of Alton Road between 6 Street and 16 Street from the
CD-2 district to the CD-1 district, and to review the uses and to the extent that there
is a floor area incentive for mixed-use buildings, require that the additional FAR be
set aside for affordable or workforce housing, and to refer the item to the Planning
Board; and
WHEREAS, on March 18, 2009, the Mayor and City Commission discussed
the motion from the Land Use and Development Committee and clarified their intent
to consider other options, including an overlay district that would remove the floor
area ratio incentive for mixed-use projects; and
WHEREAS, on April 21, 2009, May 26, 2009 and August 25, 2009, the
Planning Board held additional detailed discussions on the proposed zoning
modifications for the east side of Alton Road in the Flamingo Park Historic District;
and
WHEREAS, the proposed "Alton Road - Historic District Buffer Overlay"
district responds to concerns expressed by the Planning Board, the Land Use and
Development Committee and local residents by requiring among other things, a
more compatible relationship of scale and massing between new development along
the east side of the Alton Road corridor and the adjoining residential neighborhoods,
by promoting mixed-use development that makes efficient use of parking, by
minimizing the concentration of impacts from intense retail and restaurant
development and by encouraging smaller neighborhood-oriented uses.
NOW THEREFORE, BE IT ORDAINED BY THE MAYOR AND CITY
COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA:
Section 1. Chapter 142 of the City Code, entitled "Zoning Districts and
Regulations," Article Ill, "Overlay Districts," Division 8 "Alton Road - Historic District
Buffer Overlay" is hereby created as follows:
Administration Recommendation
11/17/2010
DIVISION 8. ALTON ROAD - HISTORIC DISTRICT BUFFER OVERLAY
Sec. 142-858. Location and purpose.
(a) The regulations of this division shall applv to properties within the followinq
boundaries, which shall be known as the Alton Road - Historic District Buffer
Overlav.
{I) Area 1 shall be those properties fronting on the east side of Alton Road
from 6 Street to 11 Street, more specificallv described as Lots 9 thru
16, Block 105 and Lots 9 thru 16, Block 106, OCEAN BEACH, FLA.
ADDITION N03, Plat Book 2, Page 81, Public Records of Miami-Dade
Countv, Florida.
TOGETHER WITH:
Lots 6 thru 10, Block 122, Lots 7 thru 12, Block 123, and Lots 7 thru
12, Block 124, all in LENOX MANOR, Plat Book 7, Page 15, Public
Records of Miami-Dade Countv, Florida.
12) Area 2 shall be those properties fronting on the east side of Alton Road
from 14 Street to 15 Street, more specificallv described as Lots 13 thru
24, Block 109, OCEAN BEACH, FLA. ADDITION N03, Plat book 2,
Page 81, Public Records of Miami-Dade Countv, Florida.
TOGETHER WITH:
Lots 3, and 4, Block 68, COMMERCIAL SUBDIVISION OF THE
ALTON BEACH REALTY COMPANY. Plat Book 6, Pane 5, Public
Records of Miami-Dade Countv, Florida.
(3) Area 3 shall be those properties fronting on the east side of Alton Road
from 17 Street to the Collins Canal, more specificallv described as Lots
10 thru 14. Block 18. FIRST ADDITION TO COMMERCIAL
SUBDIVISION OF THE ALTON BEACH REALTY COMPANY, Plat
Book 6, Page 30, Public Records of Miami-Dade Countv, Florida.
(b) The purpose of this overlay district is to minimize the im~acts of development
along Alton Road on residential properties located in the Flamingo Park
Historic District and the Palm View Historic District. Specificallv the overlav
district is intended to applv to properties zoned CD-2 Commercial Medium
Intensity that are adjacent to lower intensity RS-4 and RM-1 residential
buildings in designated local historic districts. The overlav district regulations
are intended to achieve a more compatible relationship of scale and massing
between the Alton Road corridor and the adioining residential neighborhoods,
to promote mixed-use development that makes efficient use of parking, to
minimize the concentration of impacts from intense retail and restaurant
development and to encourage smaller neighborhood-oriented uses.
Administration Recommendation
11/17/2010
Sec. 142-859. Development regulations.
The following overlav regulations shall applv within the Alton Road - Historic District
Buffer Overlav District. All development regulations applicable to andlor in the
underlving zoning district shall apply, except as follows:
la) Maximum FAR. The maximum floor area ratio (FAR) in this overlav district
shall be 1.5. The floor area ratio provision for mixed use buildinns in section
142-307(d)(2) shall not applv in this overlay district.
Jb) Maximum building height. The maximum building height in this district shall be
50 feet and a maximum of 4 stories, except that building height shall be
limited to 28 feet within 50 feet from the rear properhr line for lots abutting an
allev (Lenox Court) and within 60 feet from the RM-1 district for blocks with no
allev between 8 Street and 11 Street. There shall be no variances for buildinq
height.
Jc) Minimum setbacks.
JI) Front - 5 feet.
(2) Side facing a street - 5 feet.
13) Interior side - 0 feet.
/4) Rear - for lots with a rear propertv line abutting an RM-1 or an RS-4
district the rear vard setback shall be a minimum of 25 feet; for lots
with a rear propertv line abutting an allev (Lenox Court) the rear
setback shall be a minimum of 5 feet; otherwise the rear setback shall
be a minimum of 7.5 feet.
15) There shall be no variances for building setbacks, except for triangular
lots. -
Jd) Building separation:
(1) The east and west facades of anv building constructed on more than
50 linear feet of frontage along Alton Road shall be divided into
segments with building massing and architectural treatments intended
to be reflective of the 50 feet wide lot development pattern that is
predominant in the historic district.
J2) Anv development greater than 43 feet in height on a lot with more than
150 linear feet of frontage along Alton Road shall have a separation
between all portions of the structure above a height of 28 feet, so that
there is a minimum 15 feet wide view corridor running from east to
west at least even/ 150 linear feet along the Alton Road corridor.
Administration Recommendation
11/17/2010
{e) The following regulations shall applv to lots containing contributing buildings
in the Flamingo Park Historic District within the Alton Road - Historic District
Buffer Overlav.
{I) Onlv those portions of a contributing building that were not part of the
original structure on site, or that have not acquired any tvpe of
architectural siqnificance, as determined by staff or the historic
preservation board, may be issued a Certificate of Appropriateness for
demolition.
/2) For contributing buildings or properties, no building or structure shall
be permitted within an existing historic courtyard. For purposes of this
subsection, an historic courtyard shall be defined as a grade level
space, open to the skv, which is enclosed on at least two sides bv an
existing building or structure on the same property and is an
established architectural or historic component of the site or buildinq
design bv virtue of significant features and/or finishes, including, but
not limited to, paving patterns, fountains, terraces, walkwavs or
landscaping.
Land Use: Main permitted uses, conditional uses and accessorv uses shall be
permissible as set forth in the CD-2 district regulations, with the followinq
exceptions:
{I) Retail uses, restaurants, bars, entertainment establishments and
similar uses shall not be permitted at anv level above the ground floor,
except that a second floor within a ground floor commercial space rnav
be permitted within the interior premises of a multistorv building if it
functions as one single contiguous establishment and is onlv
accessible to the public through the contiguous ground floor
commercial space. This subsection shall not applv to existing and
proposed retail uses in buildings existing in this district as of the
effective date of this ordinance.
12) Anv individual retail, restaurant, bar, entertainment establishment or
similar establishment in excess of 10,000 sauare feet, inclusive of
outdoor seating areas, shall require conditional use approval. The
regulations in Chapter 142, Article V, Division 6, Entertainment
Establishments, shall continue to applv to uses in this overlav district.
(3) No alcoholic beveraqe establishment, entertainment establishment or
restaurant may be licensed as a main permitted or accessorv use in
anv open area above the ground floor (anv area that is not included in
the FAR calculations) or at ground level in anv open area within 125
feet of a residential district, except that residents of a multifamilv
{apartment or condominium) building or hotel guests rnav use these
areas. which mav include a pool or other recreational amenities, for
Administration Recommendation
11/17/2010
their individual, personal use with appropriate buffering as determined
bv the Planning Department or applicable land use board with
jurisdiction. No variances to this provision shall be permitted.
SECTION 2. 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 3. 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 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 I 20-.
MAYOR
ATTEST:
CITY CLERK APPROVED AS TO
FORM AND LANGUAGE
First Reading:
Second Reading:
Verified by:
Richard G. Lorber
Acting Planning Director
T:\AGENDA\201O\November I~Regular\Alton Rd Overlay staff rec.Nov.2010 ord.doc
Administration Recommendation
11/17/2010
Map - Alton Road Historic District Buffer Overlay
Planning Board recommendation 81241201 0
ORDINANCE NO.
AN ORDINANCE OF THE MAYOR AND ClTY COMMISSION OF
THE CITY OF MIAMI BEACH, FLORIDA, AMENDING THE CODE
OF THE ClTY OF MIAMI BEACH, FLORIDA, BY AMENDING
CHAPTER 142, "ZONING DISTRICTS AND REGULATIONS,"
ARTICLE Ill, "OVERLAY DISTRICTS," CREATING DIVISION 8
"ALTON ROAD - HISTORIC DISTRICT BUFFER OVERLAY," BY
INCLUDING SECTION 142-858 "LOCATION AND PURPOSE,"
AND SECTION 142-859 "DEVELOPMENT REGULATIONS,"
INCLUDING AMONG OTHER PROVISIONS REGULATIONS ON
MAXIMUM FLOOR AREA RATIO; MAXIMUM BUILDING
HEIGHT; MINIMUM SETBACKS; BUILDING SEPARATION;
DEMOLITION OR ADDITIONS TO CONTRIBUTING BUILDINGS
IN AN HISTORIC DISTRICT; AND LAND USE REGULATIONS
FOR LOCATION OF RETAIL USES, RESTAURANTS, BARS,
ENTERTAINMENT ESTABLISHMENTS, ALCOHOLIC
BEVERAGE ESTABLISHMENTS AND SIMILAR USES;
REQUIRING CONDITIONAL USE APPROVAL OF SUCH USES
IN EXCESS OF 20,000 SQ. FT.; AND PROHIBITING ALCOHOLIC
BEVERAGE AND ENTERTAINMENT ESTABLISHMENTS IN
OPEN AREAS WITH EXCEPTIONS AS PRESCRIBED IN THE
ORDINANCE; PROVIDING FOR CODIFICATION; REPEALER;
SEVERABILITY; AND AN EFFECTIVE DATE.
WHEREAS, In the summer of 2006, the Historic Preservation Board
initiated the westward expansion of the Flamingo Park Local Historic District to
the east right-of-way line of Alton Road between 6 Street and 14 Street, and
requested the Planning Department to initiate a major planning study of the Alton
Road corridor, including both sides of the road between 5 Street and Michigan
Avenue, to include an analysis and evaluation of existing uses and conditions,
historically significant properties, permitted building heights, allowable FAR,
parking conditions and requirements, the efficacy of current zoning, and the
character of the public right-of-way with regard to pedestrian amenities,
convenient .means of transit, and quality of landscape.
WHEREAS, on January I, 2008, the Mayor and City Commission
approved Ordinance No. 2008-3592, expanding the boundaries of the Flamingo
Park Historic District westward expansion to Alton Road between 8 Street and 14
Street; and
WHEREAS, the Planning Department conducted an analysis of existing
conditions, issues and opportunities in the Alton Road corridor and held a
community planning workshop on August 20, 2008 to receive community input on
land use, zoning, business development, parking, transit and pedestrianlbicycle
amenities; and
Planning Board recommendation 8/24/2010
WHEREAS, on January 27, 2009, the Planning Department presented
preliminary findings and recommendations for the Alton Road Neighborhood
Planning Study to the Planning Board; and
WHEREAS, on January 28, 2009, the Mayor and City Commission
approved Ordinance No. 2008-3592, expanding the boundaries of the Flamingo
Park Historic District westward expansion to Alton Road between 6 Street and 8
Street; and
WHEREAS, on February 26, 2009, the Planning Department and the
Planning Board held a second community planning workshop on the Alton Road
Neighborhood Planning Study to receive community input; and
WHEREAS, on March 2, 2009, the Land Use and Development
Committee adopted a motion directing the Planning Department to prepare an
ordinance that would rezone the east side of Alton Road between 6 Street and
16 Street from the CD-2 district to the CD-I district, and to review the uses and to
the extent that there is a floor area incentive for mixed-use buildings, require that
the additional FAR be set aside for affordable or workforce housing, and to refer
the item to the Planning Board; and
WHEREAS, on March 18, 2009, the Mayor and City Commission
discussed the motion from the Land Use and Development Committee and
clarified their intent to consider other options, including an overlay district that
would remove the floor area ratio incentive for mixed-use projects; and
WHEREAS, on April 21, 2009, May 26, 2009 and August 25, 2009, the
Planning Board held additional detailed discussions on the proposed zoning
modifications for the east side of Alton Road in the Flamingo Park Historic
District; and
WHEREAS, the proposed "Alton Road - Historic District Buffer Overlay"
district responds to concerns expressed by the Planning Board, the Land Use
and Development Committee and local residents by requiring among other
things, a more compatible relationship of scale and massing between new
development along the east side of the Alton Road corridor and the adjoining
residential neighborhoods, by promoting mixed-use development that makes
efficient use of parking, by minimizing the concentration of impacts from intense
retail and restaurant development and by encouraging smaller neighborhood-
oriented uses.
NOW THEREFORE, BE IT ORDAINED BY THE MAYOR AND CITY
COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA:
Section I. Chapter 142 of the City Code, entitled "Zoning Districts and
Regulations," Article Ill, "Overlay Districts," Division 8 "Alton Road - Historic
District Buffer Overlay" is hereby created as follows:
Planning Board recommendation 81241201 0
DIVISION 8. ALTON ROAD - HISTORIC DISTRICT BUFFER OVERLAY
Sec. 142-858. Location and purpose.
(a) The regulations of this division shall applv to properties within the followinq
boundaries, which shall be known as the Alton Road - Historic District
Buffer Overlav.
(I) Area 1 shall be those properties fronting on the east side of Alton
Road from 6 Street to I1 Street, more specificallv described as Lots
9 thru 16, Block 105 and Lots 9 thru 16, Block 106, OCEAN
BEACH, FLA. ADDITION N03, Plat Book 2, Page 81, Public
Records of Miami-Dade Countv, Florida.
TOGETHER WITH:
Lots 6 thru 10, Block 122, Lots 7 thru 12, Block 123, and Lots 7 thru
12, Block 124, all in LENOX MANOR, Plat Book 7, Page 15, Public
Records of Miami-Dade Countv, Florida.
(2) Area 2 shall be those properties fronting on the east side of Alton
Road from 14 Street to 15 Street, more specificallv described as
Lots 13 thru 24, Block 109, OCEAN BEACH, FLA. ADDITION N03,
Plat book 2, Page 81, Public Records of Miami-Dade Countv,
Florida.
TOGETHER WITH:
Lots 3. and 4, Block 68. COMMERCIAL SUBDIVISION OF THE
ALTON BEACH REALTY COMPANY, Plat Book 6. Page 5, Public
Records of Miami-Dade Countv, Florida.
(3) Area 3 shall be those properties fronting on the east side of Alton
Road from 17 Street to the Collins Canal, more specificallv
described as Lots 10 thru -14, Block 18, FIRST ADDITION TO
COMMERCIAL SUBDIVISION OF THE ALTON BEACH REALTY
COMPANY, Plat Book 6, Page 30, Public Records of Miami-Dade
Countv, Florida.
(b) The purpose of this overlav district is to minimize the impacts of
development along Alton Road on residential properties located in the
Flamingo Park Historic District and the Palm View Historic District.
Specificallv the overlav district is intended to apply to properties zoned
CD-2 Commercial Medium lntensitv that are adiacent to lower intensitv
RS-4 and RM-1 residential buildings in designated local historic districts.
The overlav district regulations are intended to achieve a more compatible
relationship of scale and massing between the Alton Road corridor and
the adioining residential neighborhoods, to promote mixed-use
development that makes efficient use of parking. to minimize the
concentration of impacts from intense retail and restaurant development
and to encourage smaller neiahborhood-oriented uses.
Planning Board recommendation 8/24/2010
Sec. 142-859. Development regulations.
The following overlav regulations shall applv within the Alton Road - Historic
District Buffer Overlav District. All development regulations applicable to and/or in
the underlving zoning district shall applv, except as follows:
la) Maximum FAR. The maximum floor area ratio (FAR) in this overlav district
shall be 1.5. The floor area ratio provision for mixed use buildings in
section 142-307(d)(2) shall not applv in this overlav district.
ib) Maximum building height. The maximum building height in this district
shall be 43 feet and a maximum of 4 stories, except that building height
shall be limited to 23 feet within 50 feet from the rear propertv line for lots
abutting an allev (Lenox Court) and within 60 feet from the RM-1 district
for blocks with no alley between 8 Street and I I Street.
lc) Minimum setbacks.
11) Front - 5 feet.
12) Side facing a street - 5 feet.
13) Interior side - 0 feet.
(4) Rear - for lots with a rear property line abutting an RM-I or an RS-4
district the rear yard setback shall be a minimum of 25 feet; for lots
with a rear propertv line abutting an allev (Lenox Court) the rear
setback shall be a minimum of 5 feet; otherwise the rear setback
shall be a minimum of 7.5 feet.
id) Building separation: The facades of anv building constructed on more than
50 linear feet of frontage along Alton Road shall be divided into segments
with building massing and architectural treatments intended to be
reflective of the 50 feet wide lot development pattern that is predominant
in the historic district.
le) The following regulations shall applv to lots containing contributinq
buildings in the Flaminqo Park Historic District within the Alton Road -
Historic District Buffer Overlav.
/I) Onlv those portions of a contributing building that were not part of
the original structure on site, or that have not acquired any tvpe of
architectural significance, as determined bv staff or the historic
preservation board, mav be issued a Certificate of Appropriateness
for demolition.
12) For contributing buildings or properties, no building or structure
shall be permitted within an existing historic courtvard. For
4
Planning Board recommendation 81241201 0
purposes of this subsection, an historic courtvard shall be defined
as a grade level space, open to the sky, which is enclosed on at
least two sides bv an existing building or structure on the same
properly and is an established architectural or historic component
of the site or building design bv virtue of significant features andlor
finishes, including, but not limited to, paving patterns, fountains,
terraces, walkways or landscaping.
In Land Use: Main permitted uses, conditional uses and accessorv uses
shall be permissible as set forth in the CD-2 district regulations, with the
following exceptions:
(I) Retail uses, restaurants, bars, entertainment establishments and
similar uses shall not be permitted at any level above the ground
floor, except that a loft or mezzanine containing these uses may be
permitted within the interior of a ground floor commercial space
provided that the total floor area of anv such loft or mezzanine does
not exceed one-third the total floor area in that room in which the
loft space or mezzanine is located. This subsection shall not apply
to existing and proposed retail uses in buildings existing in this
district as of the effective date of this ordinance.
/2) Anv individual retail, restaurant, bar, entertainment establishment or
similar establishment in excess of 20,000 square feet, inclusive of
outdoor seating areas, shall require conditional use approval. The
reaulations in Chapter 142. Article V. Division 6. Entertainment
Establishments, shall continue to applv to uses in this overlav
district.
/3) No alcoholic beverage establishment, entertainment establishment
or restaurant mav be licensed as a main permitted or accessorv
use in anv open area above the ground floor (anv area that is not
included in the FAR calculations) or at ground level in anv open
area within 125 feet of a residential district, except that residents of
a multifamilv (apartment or condominium) building or hotel guests
mav use these areas, which rnav include a pool or other
recreational amenities, for their individual, personal use with
appropriate buffering as determined bv the Planning Department or
applicable land use board with iurisdiction.
Planning Board recommendation 8/24/2010
SECTION 2. 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 3. 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 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 20-.
MAYOR
ATTEST:
CITY CLERK
APPROVED AS TO
FORM AND LANGUAGE
First Reading:
Second Reading:
& FOR EXECUTION
Verified by:
Richard G. Lorber
Acting Planning Director
T:WGENDA\2010\Novernber 17\RegularWlton Rd Overlay PB 8.24.2010 ord.doc
Planning Board recommendation 81241201 0
Map - Alton Road Historic District Buffer Overlay
THURSDAY, NOVEMBER 4,2010 I 19NE
MIAMIBEACH
I CITY OF MIAMI BEACH
I
1 NOTICE OF PUBLIC HEARING
I *
I NOTICE IS HEREBY GIVEN that a first reading and public hearing witt be , held by the City Commission of the Ci of Miami Beach on WEDNESDAY,
I November 17,2010 at lldlO a.m. in the Ci Commission Chambers, Third
Floor, City Hall, located at 1700 Convention Center Drive, Miami Beach,
Florida 331 39 to considerthe following ordinances:
AN ORDINANCE OF
THE MAYOR AND CITY
COMMISSION OF THE
CITY OF MIAMI BEACH,
FLORIDA, AMENDING
ME CODE OF ME
CITY OF MIAMI BEACH,
FLORIDA,BY AMENDING
CHAPTER 1421
"ZONING DISTRICTS
AN0 REGULATIONS,"
ARTICLE Ill, "OVERLAY
DISTRICTS:' CREATING
DMSION 8 "ALTON
ROAD - . HISTORIC
DISTRICT Be
OVERLAY," . BY
INCLUDING SECTION
142-858 "LOeATlON
AND PURPOSE,"
AND SECTION 142-
859 "DEVELOPMENT
REGULATIONS,"
INCLUDING AMONG
OTHER PROVISIONS
REGULATIONS ON
MAXIMUM FLOOR
AREARATIO; MAXIMUM
BUILDING HEIGKI;
MINIMUM SETBACKS;
BUILDING SEPARATION; DEMOLITION OR ADDITIONS TO
CONTRIBUTING BUILDINGS IN AN HISTORIC DISTRICT; AND LAND
USE REGULATIONS FOR LOCATION OF RETAIL USES, RESTAURANTS,
BARS, EMTERTAINMENT ESTABLISHMENTS, ALCOHOLIC BEVERAGE
ESTABLISHMENTS AND SIMILAR USES; REQUIRING CONDITIQNAL
USE APPROVAL OF SUCH USES IN EXCESS OF 10,000 SO. FT.;
AND PROHIBITING ALCOHOLIC BEVERAGE AND ENTERTAINMENT
ESTABLISHMENTS IN OPEN AREAS WITH EXCEPTIONS AS
PRESCRIBED IN THE ORDINANCE; PROVIDING FOR CODIRCATION; .
REPEALER; SNERABILITY; AND AN EFFECTIVE DATE. -
All persons are invited to appear at thls meetmg or be represented by an
agent, or to expresstheir views in wrlting addressed to the Planntng Board
c/o Planning Department, 1700 Convention Center Drive, 2nd Floor, City Hall,
M~ami Beach, Florida 33139
Pursuant to Florida Stat 286.0105, the City hereby advises the public that;
~f a person decides to appeal any decision made by thls Board with respect
to any matter considered at its meeting or ~ts hearing, they must insure that
a verbatim record of the proceedings is made, which record include the
testimony and evldence upon which the appeal is to be based Thls notice.
does not constitute consent by the Ctty for the ~ntroduction or admission
of otherwise inadmissible or irrelevant ev~dence, nor does It authorize
challenges or appeals not othelwlse allowed by law.
IN ACCORDANCE WIM THE AMERICANS WITH DISABILITIES ACT OF
1990, PERSONS NEEDING SPECIAL ACCOMMOOATION TO PARTICIPATE
IN THIS PROCEEDING SHOULD CONTACT ME BOARD'S ADMINISTRATOR
NO LATER THAN FOUR DAYS PRIOR TO THE PROCEEDING. TELEPHONE
(305) 673-7550 FOR ASSISTANCE; IF HEARING IMPAIRED, TELEPHONE
THE FLORIDA RELAY SERVICE NUMBERS, (800) 955-8771 (TDD) OR
(800) 955-8770 (VOICE), FOR ASSISTANCE.
COMMISSION ITEM SUMMARY
Condensed 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 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 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:
Control costs of payroll including salary and fringes1 minimize taxes/ 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 SummarylRecommendation:
Second Reading
The City has been negotiating with the IAFF and FOP to amend and change the City Pension Fund for Firefighters and
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\OENDI\ ITEM bl~B
11-17-19
This item was previously presented on second reading at the October 27,2010, City Commission meeting. By a vote of 3-
3, the item initially failed. However, Commissioner Wolfson made a motion to reconsider and the item was opened and
continued to the November 17, 201 0 City Commission meeting.
Advisory Board Recommendation: I N/A 1
Financial Information:
Source of
Funds:
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: I Ramiro Inguanzo, Human Resources Director
I
2
3
Total
Amount
Year I
($827,207)
Year 2
($840,000)
Year 3
($840,000)
Plus the impact
of changes for
future employees
($2,507,207)
Account
Reduction of City's ARC payable on October 1,2010 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
MIAMIBEACH
City of Miami Beach, 1700 Convention Center Drive, Miami Beach, Florida 33 139, www.rniarnibeachfI.gov
COMMISSION MEMORANDUM
TO: Mayor Matti Herrera Bower and Members of the City Commission
FROM: Jorge M. Gonzalez, City Manager at
DATE: November 17,201 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 MlAMl 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 ClTY 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 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 $4.3 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
November 17,2010
Fire and Police Pension Ordinance 2" Reading
Page 2 of 6
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 FloridaIOPEIU,
Local I00 (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 $15.3 million savings in employee concessions for FY2009/2010 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 lAFF 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 lnsurance 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 1,2009 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 (DROP) -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
November 17,2010
Fire and Police Pension Ordinance 2"d Reading
Page 3 of 6
For those employees who enter the DROP after September 1,201 2, 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, 2010.
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 30,201 0 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 IAFF 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 (1 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 and/or vacation time for inclusion in the member's
salary for pension purposes as follows: for each one hundred dollars ($1 00) of unused sick and/or
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 and/or vacation time applied to a member's
City Commission Memorandum
November 1 7,201 0
Fire and Police Pension Ordinance znd Reading
Page 4 of 6
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 IAFF bargaining unit and 70% of the next
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 andlor unused sick and/or vacation, exceed 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.
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 eligibility will 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).
Wages - Effective October 1,2009 through September 30,2010; October 1,2010 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, 201 0 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
City Commission Memorandum
November 17,2010
Fire and Police Pension Ordinance 2" Reading
Page 5 of 6
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.
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.
This item was previously presented on second reading at the October 27,2010, City Commission meeting.
By a vote of 3-3, the item initially failed. However, Commissioner Wolfson made a motion to reconsider
and the item was opened and continued to the November 17,2010 City Commission meeting.
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 actuary and 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 1,2010 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.
City Commission Memorandum
November 17,2010
Fire and Police Pension Ordinance 2nd Reading
Page 6 of 6
Based on the proposed pension changes agreed to by the IAFF 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:WGENDAV010\November IilRegular\lAFF FOP Pension Ordinance 2ndRdg Memo.doc
ORDINANCE TO BE SUBMITTED
THIS PAGE INTENTIONALLY LEFT BLANK
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 term.
Supporting Data (Surveys, Environmental Scan, etc NIA
Issue:
Should the City Commission adopt the ordinance?
Item SummarylRecommendation:
Second Reading, Public Hearing I
The City negotiated with the Communications Workers of America, Local 3178 (CWA) to negotiate changes to the Miami
Beach 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 negotiated pension changes included: (1) a two percent (2%) increase to the employees' contribution to the pension
system (this change is contingent on the City receiving written confirmation from the State of Florida Division of Retirement and
the MBERP actuary but until that written confirmation is received, CWA employees will experience a temporary twelve (12)
month wage concession of three and one half percent (3.5%)); (2) a phased-in change to the Final Average Monthly Earnings
(FAME); and (3) changes to MBERP for future employees for the CWA bargaining unit. In addition, other negotiated wage
items, such as zero COLAS and the freeze on meritlstep increases, also impact the future ARC and UAAL for the MBERP.
On September 15,201 0 the MBERP ordinance was amended on second reading 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. The Administration recommends adopting this ordinance.
Financial Information:
Funds:
Amount Account
FYI 011 1 ($1,000,050) FYI011 1 savings related to pension changes (additional 2%
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 towards the City's ARC payable on 1011110.
FYI 1/12 ($1,000,050) Savings to ARC payable on 10/1/11 Additional 2% Employee
Pension Contribution; Change in FAME; and Changes for
Future Employees
OBPl 1 Total 1 ($2,000,100)
Financial Impact Summary: Adopting this ordinance will result in short-term savings in the City's MBERP ARC and a long-
term reduction to the unfunded ~ccruid Actuarial Liability (UAAL). In addition, the& amendments to the ordinance will yield
additional long-term, recurring savings in future fiscal years.
City Clerk's Office Legislative Tracking: I Ramiro Inguanzo, Human Resources Director
Sign-Offs:
Department Director Assistant City Manager City Manager
BEACH 275
MIAMIBEACH
City of Miami Beach, 1700 Convention Center Drive, Miami Beach, Florida 33 139, www.miamibeachfl.gov
COMMISSION MEMORANDUM
mbers of the City Commission
DATE: November 17,201 0 SECOND READING
SUBJECT: AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE ClTY OF MIAMI
BEACH, FLORIDA, AMENDING THE MIAMI BEACH EMPLOYEES
y
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 adopt the ordinance on second reading.
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 $4.3 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.
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 FY2010/2011. Based on this 12.5% target, the target
savings was approximately $2.3 million for FY2010/2011 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, 201 1 would be reduced by
approximately $300,000 if no COLA were provided to any active plan participants for FY2009/2010.
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 I, 201 1 ARC. After assessing a number of
options to reach the target savings, the City determined that changing the Final Average Monthly
Commission Memorandum
November 17, 201 0
MBERP Pension Ordinance CWA 2nd Reading
Page 2 of 4
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 FY201012011.
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 23,201 0, 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 was
ratified by the City Commission on October 27, 2010.
ANALYSIS
Some of the significant pension related changes include the following:
Pension Changes for Current and Future Employees
Chanqe in the Final Average Monthly Earnings (FAME) Calculation Methodology- 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, 201 0, 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 30,201 0, 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 2.12% of payroll) for each year over the next ten (1 0) years.
Commission Memorandum
November 17,201 0
MBERP Pension Ordinance CWA 2"d Reading
Page 3 of 4
Changes for future em~lovees - 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 (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.
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
$91 0,000 in FY2011/2012 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 October 27,2010) 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 2010. 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 FY2011/FY2012. Attached is the GRS' Supplemental Actuarial Valuation Reports for the
additional proposed benefit changes to the MBERP for the change in FAME (Attachment "A") and for the
change for future employees (Attachment "B").
Additional Two Percent (2%) Employee 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 (1 2%) of earnings for "Tier A" employees (hired prior
to February 21, 1994), and an increase from eight percent (8%) to ten percent (I 0%) of earnings for "Tier
B employees (hired on or after February 21, 1994).
Commission Memorandum
November 17,2010
MBERP Pension Ordinance CWA 2nd Reading
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
$41 2,626 towards the City's ARC annually, if it were to be collected for a full twelve (1 2) 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 I, 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 $41 2,626 savings (November 27, 201 0 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 1,
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 lmpact 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, 201 0, 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.
GRS has prepared an Actuarial lmpact Statement to be submitted to the State of Florida Division of
Retirement which reflects the proposed changes to the MBERP ordinance for those employees covered
by the CWA. Should the City Commission adopt the ordinance, the Actuarial lmpact Statement will be
submitted to the State of Florida Division of Retirement for review and approval. The actuary from the
State of Florida Division of Retirement has indicated that the State then needs to conduct a review of the
actuarial impact statements in order to determine the actual savings attributed to these changes. GRS
will inform the Administration as soon as they receive a response back from the State of Florida Division
of Retirement.
The Administration recommends that the City Commission adopt the ordinance.
T:WGENDA\2010\November 17\Regular\MBERP Ordinance CWA Memo 2nd Rdg.doc
ORDINANCE NO.
AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF
THE CITY OF MlAMl BEACH, FLORIDA, AMENDING THE MlAMl
BEACH EMPLOYEES' RETIREMENT PLAN; IMPLEMENTING
PROVISIONS OF THE 2009-2012 COLLECTIVE BARGAINING
AGREEMENT BETWEEN THE ClTY 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 1. 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, 1
AEw nr C nr "
V "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, 2010 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 (111 2)
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) bargaininq unit shall contribute to the Plan ten percent
/lo%) of earnings, except as otherwise provided in this Section 6.02.. and continqent on State
approval of an actuarial impact statement confirminq 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 collective barqaininq agreement 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. Notwithstanding the first sentence of this subsection (b), effective November 27. 2010,
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, contingent on State approval of an actuarial impact statement confirminq a reduction
in the City's annual required pension contribution for FY 2010-201 1 associated with the pension
chanqes contained in the 2009-2012 collective CWA barqaininq aqreement 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 paraqraphs a
through i below.inl-.lcl Notwithstandinq anv other provision of the Plan, for emplovees hired on
or after October 27. 2010 in classifications within the CWA (MBEBA) barqaininq unit, the
provisions of the Miami Beach Emplovees' Retirement Plan created bv 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 1.5% 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.
Attest:
Mayor
(Seal)
1st Reading -
2nd Reading -
T:\AGENDA\2010\0ctober SARegular\MBERP Ordinance CWA 1st Rdg.doc
THURSDAY, NOVEMBER 4,2010 ( 17NE
MIAMI BEACH
ClN.OF MIAMI BEACH '
NOTICE PUBLIC HEARINGS
NWlCE IS HEREBY given that second readings and public hearings
will be held by the Mayor and City Commission of the Ci of Miami
Beach, Florida, in the Commission Chambers, 3jd floor, City Hall,
1700 Convention Center Drive, Miam1 Beach, Florida, on Wednesday,
November 17", 2010, to consider-the following:
ing The Mlami Beach Employees' Retirement Plan;
lmplementlng Prov~sions Of The 2009-2012 Collective Bargaining
Agreement Between The C~ty And The Communicat~ons Workers Of
America, Local 31 78 (CWA).
lnquiries may be directed to the Human Resources Department
An Ordinance Amendiig The Code Of The City Of Miami Beach, By
Amending Chapter 178, "Admin~stration And ~eview Procedures,"
Article 1, "In General," Section 118-6, "Use Of, And Cost Recovery For,
Consultants For Appl~cations 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
lnquiries may be directed to the Planning Department (305) 673-7550.
11:31 a.m.
Ordinance Amending Chapter 46 Of The Miami Beach City Code, Entitled
"Environment," By Amending Article Ill Thereof, Entitled "Lier," By
Amending Section 46-92 To Clarify And Provide For Additional Prohibitions
And Definitions For Cier Wrth Regard To Leaf Blowers And Yard
Maintenance Debris, And Clarifying Penalties For Certain Litter Violations.
lnquiries may be directed to Public Works Departnient at (305) 673-7080.
11:32 a.m. -
Ordinance Amending The Code OfThe Ci 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 1 Inquiries may be directed to the Parking Department (305) 673-7275. 1 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 Ci Commission clothe Ci Clerk, 1700 Convention Center Drive,
Is Floor, City Hall, Miami Beach, Florida 33139.This meeting may be
opened and continued and under such circumstances additional legal
notice would not be provided.
Robert E. Parcher, Ci Clerk
Ci of Miami Beach
Pursuant to Section 286.0105, FL Statutes, the Ci hereby advises the
public that: if a person decides to appeal any decision made by the
Ci Commission with respect to 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 notice does 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.
.In accordance with the Americans with Disabilities Act of 1990, persons
needing special accommodation to participate in this proceeding, or to
request information on access for persons with disabilities, or to request
this publication in accessible format, or to request sign language
interpreters, should contact the Ci CIerk's off ice at (305) 673-741 1,
no later than four days prior to the proceeding. If Rearing impaired,
contact the City Merk's ~ffice. via the Florida Relay Service numbers,
(800) 955-8771 fIN) or (800) 955-8770 (VOICE). AD # 634 -
285
THIS PAGE INTENTIONALLY LEFT BLANK
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
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 setting additional
requirements for consultant reports submitted with development approval applications?
Item Summary/Recommendation:
SECOND READING PUBLIC HEARING he 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 adopt the ordinance upon second reading
public hearing.
Advisory Board Recommendation: I At the August 24, 2010 meeting the Planning Board reviewed the proposed ordinance, and I I recommended its approval.
Financial Information:
I I I
Financial Impact Summary:
u
OBPl
Not Applicable
Account
I I
Total I
City Clerk's Office Legislative Tracking:
I Richard Lorber 1
Amount Source of
Funds: 1
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
FROM: Jorge M. Gonzalez, City Manager
DATE: November 17,201 0 V
SUBJECT: Ordinance Amendment SECOND READING PUBLIC HEARING
Use of Consultants for Development Approval
AN ORDINANCE OF THE MAYOR AND ClTY COMMISSION OF THE
CITY OF MIAMI BEACH, FLORIDA, AMENDING THE CODE OF THE
ClTY OF MIAMI BEACH, BY AMENDING CHAPTER 118,
"ADMINISTRATION AND REVIEW PROCEDURES," ARTICLE I, "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,
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
November 17, 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 Baard 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:
City Commission Memorandum
Ordinance Amendment - Use of Consultants for Development Approval
November 17, 2010 Page 3
Consultants or experts submitting reportslstudies for consideration at public
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 reportlstudy 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 adopt the ordinance uDon
second reading public hearing.
fik
JMGIJGGIRGL
T:L4GENDA\2010\November 1 ARegular\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 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.
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, 201 0, 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 11 8 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 approvar' 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 consulfanf 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 and/or 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.
f. - Expert Reports and Appearances
i. All required consultant or expert studies andlor reports, including those -
requested bv 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 Citv no later than -
10 davs prior to the public hearing at which thev are to be considered.
Rebuttal reports submitted bv opponents' consultants shall be submitted to
the Citv no less than 5 davs before the public hearing. Failure to meet these
deadlines shall result in the subiect report/studv being deemed inadmissible
for that public hearinq, subiect to a waiver of this inadmissibilitv bv a 517 vote
of the applicable board.
iii. Consultants or experts submitting reportslstudies for consideration at public -
hearings must appear at the public hearing in order to allow for questions
from the Board andlor cross-examination. This ~rovision mav be waived bv a
517 vote of the applicable board, authorizing the reoort/studv to be sufficient
for the purposes of the subiect public hearing
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:
Verified by:
Acting Planning Director
APPROVED AS TO
FORM AND LANGUAGE
& FOR EXECUTION
T:\AGENDA\2010Wovember 17\Regular\consultant fee add1 Ordinance ORD CITY COMMN 10-27-2010 rev.docx
THURSDAY, NOVEMBER 4,2010 I 17NE . . 1 8 MIAMIBEACH
CITY OF MIAMI BEACH '
NOTICE PUBLIC HEARINGS
NOTICE IS HEREBY given that second readings and public hearings
will be held by the Mayor and City Commission of the City of Mlami
Beach, Florida, in the Commiss~on Chambers, 3~d floor, City Hall,
1700 Convention Center Drive, Miami Beach, Flor~da, on Wednesday,
November lP, 2010, to cons~derthe following:
11:lO a.m.
Ordrnance Amendrng The M~arni Beach Employees' Rebrement Plan,
Implementing Provisions Of The 2009-2012 Collective Bargaming
Agreement Between The City And The Communications Workers Of
America, Local 3178 (CWA).
lnquiries may be drrected to the Human Resources Department
(305) 673-7520.
11:30 a.m.
An Ordinance Amending The Code Of The City Of M~ami Beach, By
Amending Chapter 118, "Admin~stration And ~eiiew Procedures,"
Article 1, "In General," Section 118-6, "Use Of, A@ &st Recovery Far,
Consultants For Applications For Development Approval," By Specifying
Requirements For Reports To Be In Wriing, To Be Submitted By A
Specified Deadline, And For The Author Of Said Reports To Be Present
At Public Hearing.
lnquiries may be directed to the Planning Department (305) 673-7550.
11:31 a.m.
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 Pmvide For Additional Prohibitions
And Definitions For Litter With Regard To Leaf Blowers And Yard
Maintenance Debris, And Clariiing Penalties For Certain Litter Violations.
lnquiries may be directed to Public Works Departnient at (305) 673-7080.
ll:32 a.m. -
Ordinance AmendingThe Code OfThe Ci Of Miami Beach, By Amending
Chapter 106, "Traffic And Vehicles," Article V, "Police Vehicle Towing?
Division 2, "Permit," Sectim 106-21 3, "Application," To Reduce The
Number Of Policevehicle Towing Permits From Three To Two
lnquiries may be directed to the Parking Department (305) 673-7275.
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 Ci Commission c/o the Cii Clerk, 1700 Convention Center Drive,
la Floor, City Hall, Miami Beach, Florida 33139. This meeting may be
opened and continued and under such circumstances additional legal
notice would riot be provided.
Robert E. Parcher, Ci Clerk
Cii of Miami Beach
Pursuant to Section 286.01 05, FL Statutes, the Ci hereby advises the
public that: if a person decides to appeal any decision made by the
Ci Commission with respect to any matter considered at its meeting
or its hearing, such person must ensure that a verbatim record of the
proceedingsk made, which record includes the testimony and evidence
upon which the appeal is to be based. This notice does not constitute
consent by the City for the introduction or admission of othewise
inadmissible or irrelevant evidence, nor does it authorize challenges or
appeals not otherwise allowed by law.
.In accordance with the Americans with Disabilities Act of 1990, persons
needing special accommodation to participate in this proceeding, or to
request information on access for persons with disabilities, or to request
this publication in accessible format, or to request sign language
interpreters, should contact the Cii CIerk's office at (305) 673-741 1,
no later than four days prior to the proceeding. lf hearing impaired,
contact the Ciiy Merk's Mice via the Florida Relay Service numbers;
(800) 955-8771 0 or (800) 955-8770 (VOICE). AD # 634 -
295
THIS PAGE INTENTIONALLY LEFT BLANK
COMMISSION ITEM SUMMARY
Condensed Title: I An Ordinance amending Article Ill, Chapter 46 of the City Code entitled "Litter". I
Key Intended Outcome Supported:
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: I Shall the Mayor and City Commission amend the Ordinance?
Item SummarylRecommendation:
SECOND READING PUBLIC HEARING
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 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.
The City Commission approved the Ordinance Amendment on First Reading at their meeting on October
27, 2010.
THE ADMINISTRATION RECOMMENDS THE CITY COMMISSION AMEND THE ORDINANCE ON
SECOND READING.
Advisory Board Recommendation:
Sustainability Committee July 20, 2010 and Neighborhoods1 Community Affairs Committee October 5,
2010, both endorsed the proposed amendments.
Financial Information:
City Clerk's Office Legislative Tracking: I Fernando Vazquez ext. 6399
I3 OBPl
Account
2
Total
Amount Source of
Funds:
Financial Impact Summary:
1
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
FROM: Jorge M. Gonzalez, City Manager
DATE: November 17,201 0 v -
SECOND READING PUBLIC HEARING
SUBJECT: AN ORDINANCE OF THE MAYOR AND ClTY COMMISSION OF THE ClTY OF
MIAMI BEACH, FLORIDA, AMENDING CHAPTER 46 OF THE MIAMI BEACH
ClTY 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 LllTERVIOLATIONS;
PROVIDING FOR REPEALER; SEVERABILITY; CODIFICATION; AND AN
EFFECTIVE DATE.
ADMINISTRATION RECOMMENDATION
The Administration recommends that the City Commission approve the Ordinance amendment on
second reading.
BACKGROUND
At the City Commission hearing held on October 27, 2010, the Mayor and City Commission
approved the Ordinance on first reading and set a second reading public hearing for November 17,
201 0.
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.
City Commission Memo- Litter Amendments, Second Reading
November 17, 2010
Page 2 of 3
ANALYSIS
The leaf blower ordinance amendment was sponsored by Commissioner Michael Gongora and
referred by the City Commission to the Sustainability Committee. At the 2oth, 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.
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.
City Commission Memo- Lifter Amendments, Second Reading
November 17, 2010
Page 3 of 3
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.
On October 5th, 2010, the Neighborhoods/Community 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.
JMG/JGG/FHB/FV/LEB/EW
T:\AGENDAPOl D\November 17\Regular\Leaf Blower Ordinance Memo 2nd reading.doc
ORDINANCE
AN ORDINANCE OF THE MAYOR AND ClTY COMMISSION OF THE
ClTY OF MIAMI BEACH, FLORIDA, AMENDING CHAPTER 46 OF THE
MIAMI BEACH ClTY 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 MIAMI 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,
er sewers, or public rights-of-way within the city, or upon anv adjacent public or private real or
personal ~ropertv, any garbage, litter, paper, handbill, trash, tree, plantL 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 eikese or subseauent 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)(I).
(I) If the offense is the first offense, $100.00 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.
(j) 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,
includinq 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, rinht-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.
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, 18 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, 2010.
ATTEST:
Matti Herrera Bower, Mayor
Robert Parcher, City Clerk
Underline denotes additions
S%A&km& denotes deletions
F:\atto\TURN\ORDINANC\Prohibitions on Litter - Leaf Blowers (revised).docx
, THURSDAY, NOVEMBER 4,2010 I 17NE
CITY OF MIAMI BEACH '
NOTICE PUBLIC HEARINGS
NOTICE IS HEREBY given that second readings and public hearings
will be held by the Mayor and City Commission of the City of Miami
Beach, Florida, in the Commission Chambers, 3~d floor, City Hall,
1700 Convention Center Drive, Miam1 Beach, Florida, on Wednesday,
November 17h, 2010, to cons~derZhe following:
11:lO a.m.
Ordrnance Amending The Miami Beach Employees' Retirement Plan;
lmpiement~ng Provisions Of The 2009-2012 Collective Bargaming
Agreement Between The City And The Communicat~ons Workers Of
America, Local 31 78 (CWA).
lnqurries may be dlrected to the Human Resources Department
(305) 673-7520.
11:30 a.m.
An Ordinance Amending The Code Of The City Of Miaml Beach, By
Amending Chapter 118, "Admrnrstration And ~eview 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.
lnquiries may be directed to the Planning Department (305) 673-7550.
11:31 a.m. X Ordinance Amending Chapter 46 Of The Miami Beach City Code. Entitled
"Environment," By Amending Article Ill Thereof, Entitled "Liier," 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 Clariiing Penalties For Certain Litter Violations.
Inquiries may be directed to Public Works Department at (305) 673-7080.
ll:32a.m. -
Ordinance AmendingThe Code OfThe Ci Of Miami Beach, By Amending
Chapter 106, "Traffic And Vehicles," Article V, "Police Vehicle Towing:'
Division 2, "Permit," Section 106-21 3, "Application," To Reduce The
Number Of Police Vehicle Towing Permits From Three To Two
lnquiries may be directed to the Parking Department (305) 673-7275.
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 Ci Commission c/o the City Clerk, 1700 Convention Center Drive,
1" Floor, City Hall, Miami Beach, Florida 33139. This meeting may be
opened and continued and under such circumstances additional legal
notice would not be provided.
Robert E. Parcher, City Clerk
Ci of Miami Beach
Pursuant to Section 286.01 05, FL Statutes, the City hereby advises the
public that: if a person decides to appeal any decision made by the
City Commission with respect to 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 notice does not constitute
consent by the Cii for the introduction or admission of otherwise
inadmissible or irrelevant evidence, nor does it authorize challenges or
appeals not otherwise allowed by law.
.In accordance with the Americans with Disabilities Act of 1990. Dersons I needing special accommodation to participate in this proceeding, or to
request information on access for persons with disabilities, or to request
I this publication in accessible format, or to request sign language
interpreters, should contact the City Cl'erk's office at (305) 673-741 1,
no later than four days prior to the proceeding. lf hearing impaired,
contact the City .Clerk's ,office via the Florida Relay Service numbers;
(800) 955-8771 0 or (800) 955-8770 (VOICE). AD # 634
THIS PAGE INTENTIONALLY LEFT BLANK
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 availability of parking across the City as too little or much too little. I I Availability of parking was one of the changes residents identified to Make Miami each better to live, work or play. ]
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 Summary/Recommendation:
I
On October 27,201 0, the Mayor and Commission approved the proposed ordinance amendment on first
reading. A brief discussion was held regarding restricting other uses to further reduce intensity in the Light
Industrial Districts. Among them, rooftop cafes, robotic/automated garages, and valet storage are uses to
be discussed and addressed by the Land Use and Development Committee.
On September 27,201 0, 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 second and final public hearing.
Advisory Board Recommendation:
I
Financial Information:
I I
OBPI Total I Financial ImD! SummLrv:
J
City Clerk's Office Legislative Tracking: I Saul Frances, ext. 6483
Source of
Funds:
I.
Ai3END.A ITEM 675~
Approved Account
I
2
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: City Manager Jorge M. Gonzalez 4%-
DATE: November 17,2010 1 SECOND AND FINAL PUBLIC HEARING
SUBJECT: AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE
CITY OF MIAMI BEACH, FLORIDA AMENDING THE CODE OFTHE CITY
OF MIAMI BEACH, BY AMENDING CHAPTER 106, "TRAFFIC AND
VEHICLES," ARTICLE V, "POLICE VEHICLE TOWING," DIVISION 2,
"PERMIT," SECTION 106-213, '%PPLICATION," 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
on second and final public hearing.
ANALYSIS
On October 27, 2010, the Mayor and Commission approved the proposed ordinance
amendment on first reading. A brief discussion was held regarding restricting other uses to
further reduce intensity in the Light Industrial Districts. Among them, rooftop cafes,
robotic/automated garages, and valet storage are uses to be discussed and addressed by
the Land Use and Development Committee.
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
November 17,2010
City Commission Memorandum
Police Vehicle Towing Amendment
Second and Final Public Hearing
Page 2 of 2
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
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.
"POLICE TOWING PERMITS"
ORDINANCE NO.
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, "POLICE VEHICLE
TOWING," DIVISION 2, "PERMIT," SECTION 106-21 3,
"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 ClTY
COMMISSION OF THE ClTY OF MIAMI BEACH, FLORIDA:
SECTION 1. Chapter 106, "Traffic And Vehicles," Article V, "Police Vehicle
Towing," Division 2, "Permit," Section 1 06-21 3, "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
THURSDAY, NOVEMBER 4,2010 1 17NE . .
CITY OF MIAMI BEACH '
NOTICE PUBLIC HEARINGS
NOTICE IS HEREBY given that second readings and public hearhgs
will be held by the Mayor and City Commission of the City of Miami
Beach, Florida, In the Commission Chambers, 3jd floor, City Hall,
1700 Convention Center Drive, Miami Beach, Florida, on Wednesday,
November 1P, 2010, to cons~der-the following:
11:lO a.m.
Ordnance Amend~ng The M~ami Beach Employees' Retirement Plan;
lmplement~ng Provis~ons Of The 2009-2012 Collective Bargaining
Agreement Between The City And The Communications Workers Of
America, Local 3178 (CWA).
Inquiries may be directed to the Human Resources Department
(305) 673-7520.
11:30 a.m.
An Ordinance Amending The Code Of The City Of Miami Beach, By
Amending Chapter 118, "Adrno~stratcon And Review Procedures,"
Article 1, "In General," Section 118-6, "Use Of, And Cost Recovery For,
Consultants For Appl~cations 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 Publ~c Hearing.
lnquiries may be directed to the Planning Department (305) 673-7550.
11:31 a.m.
Ordinance Amendlng Chapter 46 Of The Miami Beach City Code, Entitled
"Environment," By Amending Article Ill Thereof, Entitled "Litter," By
Amending Section 46-92To 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.
Inquiries may be directed to Public Works Departnient at (305) 673-7080.
OrdrnanceAmendingThe Code Of The Ci Of Miami Beach, By Amending I"" -
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
Inquiries may be directed to the Parking Department (305) 673-7275.
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 clothe City Clerk, 1700 Convention Center Drive,
1"' Floor, Ci Hall, Miami Beach, Florida 33139. This meeting may be
opened and continued and under such circumstances additional legal
notice would not be provided.
Robert E. Parcher, Ci Clerk
City of Miami Beach
Pursuant to Section 286.0105, FL Statutes, the Ci hereby advises the
public that: if a person decides to appeal any decision made by the
Ci Commission with respect to any matter considered at its meeting
or its hearing, such person must ensure that a verbatim record of the
proceedingsis made, which record includes the testimony and evidence
upon which the appeal is to be based. This notice does 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.
.In accordance with the Americans with Disabilities Act of 1990, persons
needing special accommodation to participate in this proceeding, or to
request information on access for persons with disabilities, orto request
this publication in accessible format, or to mquest sign language
interpreters, should contact the Ci Cl'erk's oifice at (305) 673-741 1,
no later than four days prior to the proceeding. If Rearing impaired,
contact the City Uerk's office via the Florida Relay Service numbers,
(800) 955-8771 0 or (800) 955-8770 (VOICE). AD # 634 -
315
THIS PAGE INTENTIONALLY LEFT BLANK
COMMISSION ITEM SUMMARY
?ondensed Title:
An Ordinance Amending The Code Of The City Of Miami Beach, By Amending Chapter 2,
Entitled "Administration," By Amending Article Ill, Entitled "Agencies, Boards And Committees,"
By Amending Division 14, Entitled "Safety Committee," By Amending Sec. 2-1 76(E) To Require
That One Of The Two Direct Appointments Made By The Mayor And Each City Commissioner
Be Citizen Emergency Response Team (CERT) Certified; Providing For Codification, Repealer,
Severability, And An Effective Date.
Key Intended Outcome Supported:
N/A
Supporting Data (Surveys, Environmental Scan, etc.): N/A
Issue:
Shall the Mayor and City Commission amend the City Code By Amending Sec. 2-176(E) To Require
That One Of The Two Direct Appointments Made By The Mayor And Each City Commissioner Be
Citizen Emergency Response Team (CERT) Certified?
Item SummarylRecommendation:
Pursuant to Sec. 2-1 76 (b) the goal of the safety committee is to protect the safety and well-being
of the citizens and visitors of the city. As members of the community, the committee serves as a
vehicle for communications between those who have the ability to correct them. Through the
efforts of the committee, the city will be saved from lawsuits resulting from perilous conditions
while simultaneously promoting the overall image of the city. The committee shall be composed
of 14 members who shall be direct appointments; two appointments shall be made by the mayor
and each commissioner.
Pursuant to Sec 2-1 76 (e) the members of the committee shall have knowledge of and interest in
the safety of the citizens of the city. At the Neighborhood/Community Affairs Committee meeting
of August 31, 2010, the committee members moved to require that as appointments for the
Safety Committee come due, that one (1) of the two (2) members appointed by the mayor and
each commissioner be required to be Citizen Emergency Response Team "CERT certified.
At its October 27, 2010 Commission Meeting, the City Commission approved the report of
August 31,201 0, which requires that one of the two appointments made by the Mayor and each
Commissioner be CERT certified.
Advisory Board Recommendation:
Neighborhood1 Community Affairs Committee Report 8/31/2010 Approved - October 27, 2010.
OBPl I Total I
Financial Impact Summary:
'inancia1 Information:
City Clerk's Office Legislative Tracking: I Robert E. Parcher, Ext 6451 j
@ MIAMIBEACH
Source of
Funds:
l-----l
AGENDA ITEM b' (r
DATE 11-n-10
Amount
1
2
Account
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
FROM: Jorge M. Gonzalez, City Manager
DATE: November 17, 2010 v FIRST READING
SUBJECT: AN ORDINANCE AMENDING THE CODE OF THE ClTY OF MIAMI
BEACH, BY AMENDING CHAPTER 2, ENTITLED "ADMINISTRATION,"
BY AMENDING ARTICLE Ill, ENTITLED "AGENCIES, BOARDS AND
COMMITTEES," BY AMENDING DIVISION 14, ENTITLED "SAFETY
COMMITTEE," BY AMENDING SEC. 2-176(E) TO REQUIRE THAT ONE
OF THE TWO DIRECT APPOINTMENTS MADE BY THE MAYOR AND
EACH ClTY COMMISSIONER BE CITIZEN EMERGENCY RESPONSE
TEAM (CERT) CERTIFIED; PROVIDING FOR CODIFICATION,
REPEALER, SEVERABILITY, AND AN EFFECTIVE DATE.
ADMINISTRATION RECOMMENDATION
Approve the ordinance amendment on first reading.
BACKGROUND
Pursuant to Sec. 2-176 (b) the goal of the safety committee is to protect the safety and well-
being of the citizens and visitors of the city. As members of the community, the committee
serves as a vehicle for communications between those who have the ability to correct them.
Through the efforts of the committee, the city will be saved from lawsuits resulting from perilous
conditions while simultaneously promoting the overall image of the city. The committee shall be
composed of 14 members who shall be direct appointments; two appointments shall be made
by the mayor and each commissioner.
Pursuant to Sec 2-176 (e) the members of the committee shall have knowledge of and interest
in the safety of the citizens of the city. At the Neighborhood/Community Affairs Committee
meeting of August 31, 2010, the committee members moved to require that as appointments for
the Safety Committee come due, that one (1) of the two (2) members appointed by the mayor
and each commissioner be required to be Citizen Emergency Response Team "CERT certified.
At its October 27, 2010 Commission Meeting, the City Commission approved the report of
August 31,2010, which requires that one of the two appointments made by the Mayor and each
Commissioner be CERT certified.
CONCLUSION
As requested, the ordinance amends the Code of the City of Miami Beach, by amending
Chapter 2, Article Ill, "Agencies, Board And Committees," Division 14, "Safety Committee" Sec.
2-1 76(e) to require that one of the appointments made by the Mayor and each Commissioner be
CERT certified.
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 2, ENTITLED
"ADMINISTRATION," BY AMENDING ARTICLE Ill, ENTITLED
"AGENCIES, BOARDS AND COMMITTEES," BY AMENDING
DIVISION 14, ENTITLED "SAFETY COMMITTEE," BY AMENDING
SEC. 2-176(E) TO REQUIRE THAT ONE OF THE TWO DIRECT
APPOINTMENTS MADE BY THE MAYOR AND EACH CITY
COMMISSIONER BE CITIZEN EMERGENCY RESPONSE TEAM
(CERT) CERTIFIED; PROVIDING FOR CODIFICATION, REPEALER,
SEVERABILITY, AND AN EFFECTIVE DATE.
WHEREAS, the concept of Citizen Emergency Response Team (CERT) was developed
as a way to utilize trained citizens to assist fire responders in the event of a catastrophic incident
that overwhelms local response; and
WHEREAS, CERT teams are trained in basic first aid and in search and rescue
techniques; and
WHEREAS, at the October 27, 2010 City Commission Meeting, the City Commission
accepted the recommendation of the Neighborhoods and Community Affairs Committee that
one of the two direct appointments made by the Mayor and City Commission to the City's Safety
Committee be CERT certified.
NOW THEREFORE, BE IT ORDAINED BY THE MAYOR AND ClTY COMMISSION OF
THE ClTY OF MlAMl BEACH, FLORIDA:
SECTION 1.
That Section 2-1 76 of Chapter 2 of the Miami Beach City Code is hereby amended as follows:
Chapter 2
ADMINISTRATION
Article Ill. Agencies, Boards And Committees
Division 14. Safety Committee
Sec. 2-1 76. Established; purpose; powers and duties; composition.
(e) Knowledge and experience. The members of the committee shall have knowledge of and
interest in the safety of the citizens of the city. One of the two direct appointments made by the
Mavor and each Commissioner shall be Citizen Emerqency Response Team (CERT) certified.
SECTION 2. 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 re-lettered to accomplish
such intention; and that the word "ordinance" may be changed to "section" or other appropriate
word.
SECTION 3. REPEALER.
All ordinances or parts of ordinances and all sections and parts of sections in conflict
herewith are hereby repealed.
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 the day of November, 201 0.
PASSED and ADOPTED this day of November, 201 0.
ATTEST:
Matti Herrera Bower, Mayor
Robert Parcher, City Clerk
Underline denotes additions
T:\AGENDA\201 O\November I 'ilRegular\SAFETY COMMlTrEE CERT OR
COMMISSION ITEM SUMMARY
Condensed Title:
An ordinance of the Mayor and City Commission of the City of Miami Beach, Florida, amending the public
notice period from 15 days to 30 days for all four land use boards
Key Intended Outcome Supported:
Regulatory -
Supporting Data (Surveys, Environmental Scan, etc Regulatory
Issue:
I Should the Citv Commission ex~and the Dublic noticina reauirement of all four land use boards from 15 1 1 days to 30 dais; thereby extending the sibmission deidlinks from approximately 45 days to 60 days? 1
At the September 27,2010 meeting, the Land Use and Development Committee discussed and referred
an ordinance to the Planning Board that would extend the mailed notice requirement in the Land
Development Regulations of the City Code from 15 days to 30 days. This proposal developed out of the
TRAC Committee recommendations to make the Land Development Application and Review Process
more transparent and accessible to the public.
Implementation of the proposed ordinance will result in delaying the timing for applications to be heard by
the respective land use boards. By requiring the publishing of a 30-day notice, staff will have to advance
the submission deadlines an additional two weeks, which will have the effect of making this a two-month
(60 days) deadline before the scheduled hearing. However, since additional requirements have been
adopted in the past year, requiring certain consultant studies for noise and traffic impacts, and in many
cases requiring a second peer review performed by a City hired professional consultant, building extra time
into the application process is warranted in order to allow adequate time to commission and review such
studies.
The Administration recommends that the City Commission approve the proposed ordinance on first
reading and set a second reading public hearing for the December 8, 2010 meeting.
Advisory Board Recommendation:
At the October 26,201 0 meeting, the Planning Board voted not to recommend approval of the proposed
ordinance by a vote of 5-2. The Board discussed this ordinance extensively and ultimately believed that
the additional time added to the submission deadlines in order to provide a 30-day notice was not
business friendly and extremely onerous to applicants.
Financial Information:
Financial Impact Summary: The proposed ordinance is not expected to have any fiscal impact upon
the resources of the City at this time.
City Clerk's Office Legislative Tracking: I Richard Lorber or Mercy Lamazares
u I OBPl
@ MIAMIBEACH 32,
Source of
Funds:
I I
Total I
Amount
1
Account
2
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 o
FROM: Jorge M. Gonzalez, City Manager
DATE: November 17, 2010
First Reading
SUBJECT: An ordinance amendment to expand the public notice period from 15
days to 30 days for all four land use boards
AN ORDINANCE OF THE MAYOR AND ClTY COMMISSION OF THE
ClTY OF MIAMI BEACH, FLORIDA, AMENDING THE LAND
DEVELOPMENT REGULATIONS OF THE ClTY CODE BY AMENDING
CHAPTER 118, "ADMINISTRATIVE AND REVIEW PROCEDURES,"
ARTICLE II, "BOARDS," DIVISION 5, "BOARD OF ADJUSTMENT,"
SECTION 118-134, "NOTIFICATION OF HEARINGS"; ARTICLE IV,
"CONDITIONAL USE PROCEDURE," SECTION 118-1 93.
"APPLICATIONS FOR CONDITIONAL USES"; ARTICLE VI, "DESIGN
REVIEW PROCEDURES"; CHAPTER 118, "ADMINISTRATION AND
REVIEW PROCEDURES," ARTICLE x, '‘HISTORIC
PRESERVATION"; AND ARTICLE XI, "NEIGHBORHOOD
CONSERVATION DISTRICTS (NCD)"; TO EXPAND THE PUBLIC
NOTICE PERIOD FOR ALL FOUR LAND USE BOARDS FROM 15
DAYS TO 30 DAYS; PROVIDING FOR REPEALER; CODIFICATION;
SEVERABILITY AND AN EFFECTIVE DATE.
ADMINISTRATION RECOMMENDATION
The Administration recommends that the City Commission approve the proposed
ordinance on first reading, and set a second reading public hearing for the December 8,
201 0 meeting.
BACKGROUND
At the September 27, 2010 meeting, the Land Use and Development Committee
discussed and referred an ordinance to the Planning Board that would extend the mailed
notice requirement in the Land Development Regulations of the City Code from 15 days
to 30 days. This proposal developed out of the TRAC Committee recommendations to
make the Land Development Application and Review Process more transparent and
accessible to the public.
City Commission Memorandum
File 1980 - expand the public notice period from 15 days to 30 days for all four land use boards
November 17, 2010 Page 2
ANALYSIS
At the Land Use and Development Committee meeting of October 26, 2010, staff
discussed with the Committee their plans to post additional information and
documentation on the City's website and to expand the language of the project
descriptions in the public notices for the Land Use Boards. The TRAC Committee
recommendation to expand the public notice period for the four Land Use Boards
(Planning Board, Board of Adjustment, Historic Preservation Board and Design Review
Board) from 15 days to 30 days will require an amendment to the Land Development
regulations. The attached ordinance would accomplish this task for all four boards.
Implementation of the proposed ordinance will result in delaying the timing for
applications to be heard by the respective land use boards. By requiring the publishing
of a 30-day notice, staff will have to advance the submission deadlines an additional two
weeks, which will have the effect of making this a two-month (60 days) deadline before
the scheduled hearing. However, since additional requirements have been adopted in
the past year, requiring certain consultant studies for noise and traffic impacts, and in
many cases requiring a second peer review performed by a City hired professional
consultant, building extra time into the application process is warranted in order to allow
adequate time to commission and review such studies.
Planning Department staff has been discussing this proposal to extend the notice
requirements with the four Land Use Boards, with stakeholders from the business and
development community and with the neighborhood residents and citizen activists.
There is always a strong desire to streamline governmental processes and reduce the
time it takes to have proposals reviewed and approved. However, there is also a clear
realization that additional public notice for pending land use and development approvals
is important. Often public hearings are delayed or continued by the boards, when
nearby residents or neighborhood groups complain about not having been notified about
proposals until the last minute. Rather than to continue to entertain these arguments, by
extending the notice period to 30 days, conflicts over late noticing can be reduced, and
all parties can have more time to work together on building consensus.
By extending the timeframes for applications and public notices for Land Use board
hearings, together with improvements to the City's website and public outreach,
Planning Department staff believes that significant increases in public awareness and
participation in the City's Planning and Development activities can be achieved.
Attached is a sample staff worksheet that illustrates how these new deadlines would
work in relation to the meeting date.
PLANNING BOARD ACTION
At the October 26, 2010 meeting, the Planning Board voted not to recommend approval
of the proposed ordinance by a vote of 5-2. The Board discussed this ordinance
extensively and ultimately believed that the additional time added to the submission
deadlines in order to provide a 30-day notice was not business friendly and would be
extremely onerous to applicants.
CONCLUSION
City Commission Memorandum
File 1980 - expand the public notice period from 15 days to 30 days for all four land use boards
November 17, 2010 Page 3
The Administration recommends that the City Commission approve on first reading the
proposed ordinance and set a second reading public hearing for the December 8, 2010
meeting.
Pursuant to Section 118-164 (3) of the City Code, when a request to amend the land
development regulations does not change the actual list of permitted, conditional or
prohibited uses in a zoning category, the proposed ordinance may be read by title or in
full on at least two separate days and shall, at least ten days prior to adoption, be
noticed once in a newspaper of general circulation in the city. Immediately following the
public hearing at the second reading, the city commission may adopt the ordinance by
an affirmative vote of five-sevenths of all members of the city commission.
KL
JMGIJGGIRGUML
T:\AGENDA\201O\Novernber IARegular\l980 - expan to 30-day notice rnerno.docx
City Commission Memorandum
File 1980 - expand the public notice period from 15 days to 30 days for all four land use boards
November 17, 2010 Page 4
PUBLISHED NOTICE & POSTING LOG
PLANNING BOARD - Example worksheet
MEETING DATE:
Submission deadline for this meeting (the Monday 60 days prior to
(If the date falls on a holiday, then the following day)
MAILING DEADLINES:
Labels, Envelopes & Notices picked up by: (40 days prior)
Stuffed and labeled envelopes due back by: (35 days prior)
Stuffed and labeled envelopes in mailbox by (30 days prior)
Posting of properties by: (30 days prior)
PUBLISHING:
To Miami Herald Neighbors: 35 days prior)
Deadline for Miami Herald Neighbors: 34 days prior)
Published in the Miami Herald Neighbors: (Sunday - 30 days prior)
Post After-Action report on City's Web Site
PACKAGES AND WEB INFO:
Send complete packages to Board Members (the prior Thursday)
E-Mail Agenda to Web & Mailing List
E-Mail TV Agenda to Jeffrey Singer
15 days prior to the meeting: (Monday)
21 days prior to the meeting: (Tuesday)
ORDINANCE NO.
AN ORDINANCE OF THE MAYOR AND ClN COMMISSION OF
THE ClTY OF MIAMI BEACH, FLORIDA, AMENDING THE LAND
DEVELOPMENT REGULATIONS OF THE CIN CODE BY
AMENDING CHAPTER 118, "ADMINISTRATIVE AND REVIEW
PROCEDURES," ARTICLE II, "BOARDS," DIVISION 5, "BOARD
OF ADJUSTMENT," SECTION 118-134, "NOTIFICATION OF
HEARINGS"; ARTICLE IV, "CONDITIONAL USE PROCEDURE,"
SECTION I 18-1 93. "APPLICATIONS FOR CONDITIONAL
USES"; ARTICLE VI, "DESIGN REVIEW PROCEDURES";
SECTION 118-254, "DECISION OF DESIGN REVIEW BOARD,"
AND SECTION 118-257, "DEFERRALS, CONTINUANCES AND
WITHDRAWALS," ARTICLE X, "HISTORIC PRESERVATION";
SECTION 11 8-563, "REVIEW PROCEDURE," AND SECTION
11 8-591, "HISTORIC DESIGNATION PROCEDURE," AND
ARTICLE XI, "NEIGHBORHOOD CONSERVATION DISTRICTS
(NCD)"; SECTION I1 8-705, "PROCEDURES FOR ADOPTION
OF SPECIFIC NCD OVERLAY DISTRICTS," TO EXPAND THE
PUBLIC NOTICE PERIOD FOR ALL FOUR LAND USE BOARDS
FROM 15 DAYS TO 30 DAYS; PROVIDING FOR REPEALER;
CODIFICATION; SEVERABILITY AND AN EFFECTIVE DATE.
WHEREAS, the TRAC Committee recommendations aspire to make the Land
Development Application and Review Process more transparent and accessible to the
public; and
WHEREAS, an important recommendation of the Committee was to extend the
required mailed and newspaper notices for all four land use boards from 15 days to 30
days minimum; and
WHEREAS, the Land Use and Development Committee requested that an
ordinance amendment be drafted, which will extend the required mailed and newspaper
notice for all four land use boards from 15 days to 30 days minimum; and
WHEREAS, doing so should result in significant increases in public awareness
and participation in the City's Planning and Development activities; and
WHEREAS, the amendments set forth below are necessary to accomplish all of
the above objectives.
NOW, THEREFORE, BE IT DULY ORDAINED BY THE MAYOR AND ClTY
COMMISSION OF THE ClTY OF MIAMI BEACH, FLORIDA, AS FOLLOWS:
Section 1. Chapter 11 8, "Administration and Review Procedures," Article II, Boards,,
Division 5,"Board of Adjustment," Section 11 8-1 34, "Notification of hearings" is hereby
amended as follows:
Sec. 11 8-1 34. Notification of hearings.
The board of adjustment shall not vary or modify any regulation or provision of these
land development regulations or hear an appeal of an administrative decision until a
public hearing has been held. At least 30 davs prior to the public hearing date, a
description of the request, and the date, time and place of such hearing shall be (i)
posted on the propertv, (ii) advertised in a paper of cleneral paid circulation in the
community, and (iii) given bv mail to the owners of record of land lving within 375 feet of
the property. This mailed notification requirement shall be the responsibilitv of the
applicant. PCelisc cf f i? 2 mwqsper cf pwakpd
Where the application is for an appeal of an administrative decision the preceding
information shall be supplemented by an explanation of what is being appealed.
Section 2. Chapter 118, "Administration and Review Procedures," Article IV,
"Conditional Use Procedure," Sec. 1 18-1 93. "Applications for conditional uses" is hereby
amended as follows:
Sec. 1 18-1 93. Applications for conditional uses.
At least 30 days prior to the public hearing date, a description of the
request, and the date, time and place of such hearing shall be posted on the property,
U a& advertised in a paper of general paid circulation in the community> and Mi) -
given by mail to the owners of record of land lying within 375 feet of
the property. This mailed notification requirement shall be the responsibility of the
applicant.
Section 3. Chapter 118, "Administration and Review Procedures," Article VI, "Design
Review Procedures," is hereby amended as follows:
Sec. 1 18-254. "Decision of design review board"
(b) P At least 30 days prior to the public hearing date, a description of
the request, and the date, time and place of such hearing shall be (i) posted on the
property, (ii) be advertised in a paper of general paid circulation in the communitv . . mww@&y; and (iii) given by mail to the owners of record of land
lying within 375 feet of property. The mail notification requirement shall be the
responsibility of the applicant.
Set. 1 18-257. Deferrals, continuances, and withdrawals.
(a) An applicant may defer an application before the public hearing only one time.
The request to defer shall be in writing. When an application is deferred, it shall be re-
noticed at the applicant's expense as provided in section 118-254. The applicant shall
also pay a deferral fee as set forth in this article. In the event that the application is not
presented to the design review board for approval at the meeting date for which the
application was deferred, the application shall be deemed null and void. If the application
is deferred by the board, the notice requirements shall be the same as for a new
application as provided in section 11 8-254, and shall be at the city's expense.
(b) The board may continue an application to a date certain at either the request of ... the applicant or at its own discretion. 3
Section 4. Chapter 11 8, "Administration and Review Procedures," Article
XI "Historic Preservation," is hereby amended as follows:
Division 3. Issuance Of Certificate Of Appropriatenesslcertificate To DigICertificate Of
Appropriateness For Demolition"
Section 1 18-563, "Review procedure"
(c) All applications for a certificate of appropriateness for the demolition or partial
demolition of any building, structure, improvement, significant landscape feature, public
interior or site individually designated in accordance with sections 118-591, 118-592 and
118-593, or located within an historic district and all applications for a certificate of
appropriateness for new building construction, alteration, rehabilitation, renovation,
restoration or any other physical modification of any building, structure, improvement,
significant landscape feature, public interior or site individually designated in accordance
with sections 1 18-591, 1 18-592 and 1 18-593, or located within an historic district shall
only be considered by the board following a public hearing. -At least 30
days prior to the public hearing date, a description of the request with the date, time and
place of such hearing shall be fi posted on the ~ro~ertv, (ii) advertised in a paper of
general paid circulation in the comm~nity;~ and w&h-sk# be given by mail to the
owners of record of land lying within 375 feet of the property. The mail notification
requirement shall be the responsibility of the applicant.
Division 4. Designation
Sec. 1 18-591. Historic designation procedure.
(f) Public hearing; notification. A public hearing on a proposed historic preservation
designation shall be conducted by the historic preservation board after the date a
designation report has been filed. The property owners of record within 375 feet of the
property proposed for designation shall be notified by mail of the public hearing at least
4-5 =days in advance of the hearing. This notification requirement shall be the
responsibility of the applicant.
(g) Designation procedures initiated by owners of single-family homes in single-
family districts. Notwithstanding the above, the following shall apply to any request by
property owners for the individual designation of their single-family homes as historic
structures:
(2) Public notice requirements. At least 4-5 adays prior to the public hearing date
for the subject designation, a description of the request with the time and place of the
public hearing, shall be advertised in a paper of general paid circulation in the
community.
Section 5. Chapter 118, "Administration and Review Procedures," Article XI.
"Neighborhood Conservation Districts (NCD)" is hereby amended as follows:
Sec. 11 8-705. Procedures for adoption of specific NCD overlay districts.
(b) Preliminary review.
(2) Notification of the preliminary public hearing shall be advertised in accordance
with section 118-164(2)(b) regardless of acreage and, in addition, all property owners
within the proposed district as well as within a 375-foot radius of the proposed district
shall be notified by individual mail notice with a description prepared in plain English,
and postmarked not less than 4-5 =days in advance of the hearing.
(d) Discussion and recommendations by the design review board.
(2) Notification of this public meeting shall be advertised in a newspaper of general
circulation at least 4-5 =days prior to the meeting.
Section 6. 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 7. 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 8. Severability.
If any section, subsection, clause or provision of this Ordinance is held invalid, the
remainder shall not be affected by such invalidity.
Section 9. Effective Date.
This Ordinance shall take effect ten days following adoption.
PASSED and ADOPTED this day of 2010.
MAYOR
ATTEST:
CITY CLERK
First Reading:
Second Reading:
APPROVED AS TO
A FORM AND LANGUAGE
3R EXECUTION
r
Date
Verified by:
Richard G. Lorber, AlCP
Acting Planning Director
Underscore denotes new language.
denotes deleted language.
T:\AGENDA\2010Wovember 17\Regular\Expan to 30-day notice ORD rev.docx
COMMISSION ITEM SUMMARY
Condensed Title:
A proposed ordinance amending Chapter 6 of the City Code, to allow establishments licensed as
alcoholic beverage establishments to offer partial and total nude adult entertainment.
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: 1 Should the Commission amend the existing alcoholic beverage regulations to permit alcoholic 1 I beverages in adult entertainment establishments permitting full nudity? I
Item SummarylRecommendation:
I FIRST READING 1
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 1
amendment, and recommended that the Commission benv 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.
Financial Information:
I Source of Amount Account 1 1 Funds: 111 I I 1
I
Financial Impact Summary:
Not Applicable
1
City Clerk's Office Legislative Tracking:
Richard Lorber
3
Total
AMIBEACH AGEWDA ITEM &zL
MIAMIBEACH
City of Miami Beach, 1700 Convention Center Drive, Miami Beach, Florida 33 139, www.miamibea~hfl.~ov
COMMISSION MEMORANDUM
TO: Mayor Matti Herrera Bower and Members of the City Commission
FROM: Jorge M. Gonzalez, City Manager
DATE: November 17, 2010
SUBJECT: Ordinance Amendment - Alcoholic Beverages And Nudity Regulations
Applicant: Leroy Griffith
AN ORDINANCE OF THE MAYOR AND CITY 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 Griffifh
November 17, 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.
CITY COMMISSION FIRST READING - OCTOBER 27,2010
At the October 27, 2010 meeting the City Commission began hearing testimony on the
item. However, a short time after the testimony began, the Commission went from seven
members to six, and the item was continued by the Commission until the November
Commission meeting at the applicant's request, due to the lack of a full board.
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.
City Commission Memorandum
Alcoholic Beverages And Nudity Regulations - Applicant: Leroy Griffith
November 17, 20f0 Page 3
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.
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:
I. 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.
City Commission Memorandum
Alcoholic Beverages And Nudity Regulations - Applicant: Leroy Griffith
November 17, 2010 Page 4
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
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.
City Commission Memorandum
Alcoholic Beverages And Nudity Regulations - Applicant: Leroy Grifith
November 17, 2010 Page 5
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?
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, lnc. 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 (I) 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.
Cify Commission Memorandum
Alcoholic Beverages And Nudity Regulations - Applicant: Leroy Griffith
November 17, 20f0 Page 6
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 OfBrien'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."
Id. at 873-875 (bold added; citations omitted).
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. 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.
City Commission Memorandum
Alcoholic Beverages And Nudity Regulations - Applicant: Leroy Griffith
November 1 7, 2010 Page 7
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
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 Liauor 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 chiefs
memorandum; police reports of eighty-three prostitution arrests; police
Cify Commission Memorandum
Alcoholic Beverages And Nudity Regulations - Applicant: Leroy Griffith
November 17. 2010 Page 8
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'Brien's
second prong. See, e.g., Alameda Books, (concluding that the city carried
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 establishmentsJ
1).
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 5 62-
184(b), enacted by Ordinance 03-375 5 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. 544FN2'? 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, 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 andlor erotic images and
reported increased sexual arousal than young men who believed they
had not consumed al~ohol.~ 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 alcohol.-
City Commission Memorandum
Alcoholic Beverages And Nudity Regulations - Applicant: Leroy Grifith
November 17, 2010 Page 9
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 (1 988).
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
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
City Commission Memorandum
Alcoholic Beverages And Nudity Regulations - Applicant: Leroy Griffith
November 1 7,2010 Page 10
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.
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 iivictimless,'' 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 caH 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., lnc. v. City of Snokane, ("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.
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
City Commission Memorandum
Alcoholic Beverages And Nudity Regulations - Applicant: Leroy Griffith
November 17, 2010 Page I I
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 O'Brien.
Id. at 882 - 885 (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
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
City Commission Memorandum
Alcoholic Beverages And Nudity Regulations - Applicant: Leroy GriiTth
November 17, 2010 Page 12
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.
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:\AGENDAPOlO\November 17\Regular\Alcohol& Nudity Ordinance COMM MEMO 11-17-2010.docx
0RE)WANCE NO.
AN O~IMANGE OF THE MAYOR AND CITY COMRIIlSSKBN
. OF THE CITY OF MW BEACH, FLOTUDA,.AMENDING
CHAPTER 6, nALCUHOLfC EVERBOES," OF THE CQDE
OF THE CITY OF MIAMI BEACH, FLORIDA, BY MENDING
SEcfiONS 6-40 AM3 6-43 "TOTAL WlW AND SEXUAL
. CONDUCT PROHlBlTED,* AND "PROVlSIOEJS
PE#TA[NlNO TO ESTABLISHMENTS PERMITTINO
PARTWL OR TOTAL NUDITY," TO ALLOW
BTABUSMMENTS LICENSED AS ALCOHOLlC
BEVERAGE ESTABLISHMEhiTSTO OFFER PARTIALAND
1 OTAL'NUDE ADULT EN'ERTAINMENT; FROViDING FOR
CODIFiGATIOW, REPEALER, NONSEVERABIUTY,ANDAN
' EFFECTNERAE.
WHEREAS, 'the Code of City of ~[ami Beach, as permitted by Me law,
contains Wous rasMetians cm the sale of alcohatic beverages within fhe City; and
WERIEAS, Sectfons 640 and 641 of We Code &strict the sale of alcoholic
beverages &y persons mafnfaidng, ownfng, managing or operating an establishment
permitttng parflal of total nudiey; end
WHEREAS.. the cw ~wnmissiaA ramgnizes the need to pme &lent
appar2unltyfor paf@ns of businesses in the City b ccmpete with other venues that afford
aicobJk beveragelesfablfshments offering partfat or total nude adutt entertalnmwrt; and
WHEKEA8,iln .he interest of improving the efficiency of afIoMng cerSafn alcohol
beverage establlstjments fo offer partial and total nude adult entertainment, It i&
recommended that:an ordinance amendments be adopte& and
WHEREAS,:this ordinance accompRshes the purpose8 set forth &ow,
.NOW THER!SFURE, BE iT ORDAINED BYTHE MAYOR AM3 CFFYCOMMISSION
OF THE CITY OF ?&MI .BEACH, FLORIDA:
SEGTION 4. Thqt Chapter 6, entlfted cc~cohdfc bverages," ofthe Code of the City of
Miami Beach, Sacti~ns 6-40 and 641, entitled 'Total nudEty and sexual conduct pmhlbited"
and uPmvi8fons pebining to eshblfshmervts pemittlng partla1 or total nud&* are hereby
amended to read & klIows: .
See. 640. Totaf nudity and s~xuai ooncfuct prohibited.
(a) it shall he unlawful for any person rnainfaining, owning, managitlg or operating an
alcohaUc Bevemge wtablbhmnt to kkowlngjy, or with reason b know, suffer or
penH totai nudw. or sexual conduct to ocwr on ae prerhisss of that alcoholic
beverage estab?f&ment, excaot.as amvided hemin.
(b) it shall be unlawful for any pemon, whH8 on the premises of an alcoholic beverage
establishment, to expose to pubNcv1ewthose porttans of anatornyddned as tokjl
nudfty, or engage in any sexual conduct, mrrt as nrovided harein%
(4 msnt mrft@rm . . Waf nWRv under an a-e
oocuaaffanaj&g@s mavobtaln an alcg&oIlc: beverag$limw. arovfdsd. it camdfeg - -
wftb all state. cow and -1 reaulrema
a tomtion genarrI&. No alcoholic beverage estabnShment permitting paitla!
nudity is permMed on a paftcel of land tacated:
(3) ~lthhii 300 fa& d any dl&Ict designated as RS, RM, or RPS on the city's
official mdng dtstrlct map;
(2) Within 300 feet of any parcel d hnd upon which a house of worship, sohoof,
publb park or playground is hbd; or
(3) Wlihlri 4,000 fset of any parcel af land upon which anofher adulf
enter@inment establishment is located.
A hotef with a rnhfmurn of 300 unit8 shaff be &xemptlhm subsa%ons (a)(? f, (2) and (3) of
this on.
(4) The minimum buftdfng sfze d rhe alcuhol~c beverage establisfrmsnt
pemfttlng partla1 pr tofat nudrty shall be &QQQ 7.000 square feef.
(2) Art aIcohoitc beverage establlment pedtt lng parHal or taka1 nudlEf shall
have no bss than 250 seafs.
(4) Parkln~ required fur an alcohofic beverage estab8ishmM pennittirig partial g
nudity shaU be a midmum of one space per thrse mats, all af which
shall be loqted an-slte, @xm& as ~rovidu C&g&r 134.
(6) An alcohofic beverage esbbftshent pemmg partial 91:fataI nudfty shall
have no CJXterTof signaga
)Cl/h de~fcttm anv @dItV, at-@
(6) ParUal or t&at nudlty in alcoholic bewmge estabKshments shalf occur only
between the hours of noon and 5:00 a.m,
The mfnfrnurh di&nca sepamtlcn shall be measured by fcdiawing a straight line
fmm the majn entrance or exft In which partial or fabf nudky assodated wl#1 an
almholb beverage estabfishmant occurs to the nearest point of the property
designated $s RS, W, or RPS on the city'$ afficiftl mhg dMd map or used for
house of wo@hlp, schoai, ar public park or piayground. In.cases where a mlnimum
distance Is rdquirgd between an alcsho!ic bsvemgs establishment partnMng partid
or totat nud!iy3 and another adutt entsrta\nment estab8shment, the distance
e9pamtlon shal bs deterrnfned by measuring a straight line bewen the prtncipaf
means of en&nce of each use.
~~~teci ait~fles. NO person own, operate, manage, w* or pe~orm. at
any alcoholfb beverage establishment permitting parttal or totatnudity on the
premises urtless the fallawing mandatory mqulrements are obsewctd therefn:
d In displaying partial or total, nudity am prohlbrtad from
trnulaiing semrd a&ivitywZth any patmn, spectators, emptoyee
on the prmfses, Lau dandnn shall ncrt ba . . considsred a
&J,gttlbn of this rsrdmaa
(2) No pepan shalt engage h the display or expasition of pdi or tohi nudi
8xc+ whllathe person is pos%ioned at Iea8tthcaefeetfrom a patma
farlar,a as ~ermitead he@ir\. It shall not be a UroWan dthls sediq
towchina of a ~erfomer or dancer while @@tallv or btailv nude bv
patmrf fur the sole ~oraose of ~rovldfna a amtrtItvC.
(3) No p&on malntalniq, owning, or operating such an ee$blishment shan
sufferpr permit the construcflon, maintenance or usesf areas parUfioned or
soree~ed from publtcvIwand ~ublic areas that are designed lo be occupied
or are; cammanly occupted afdne or togetkr by any person ar persons on
the pl+mlses ed such sstabllshment fw private performances in~~lving the
display or exhibmon d partif or_totalnudii.
(4) No person on the premises of such eWIlshmeni shaD be pemltkd to use
orto be present h areas partifffaned or screened from publfc vlew and DUN
areas that are dwfgned to be occupied together or alone by any person or
persons on the premises of such establishment Wthe dtsptay or exhblon
of partial or WI nudity.
while ~srbmrin~ an staaa exce~t that ~)erF~~rmers may &
ss whfls mrformtnrr laa dm-. Otherwise.. ~erfarmers shall nof; bq
@dms ar totallv nude,
(6) ProsfbtSan or solidratkm for pro8tt~an as defined in ihe F.S. 768.W shall
not occur on the pmrnIssa
(7) There shall be na sale or we of controlled substances as .defined In F.S.
893.02(4) on the premises.
(d) Comprhce wifh codes, sfanddrds. The e&abDshment sheill be h compliance with
aft appficablg fire, properly maitStenance and bulfdfng codes at a1 tfmes. If a bultding
is an historic structure as dsfinsd h 8edun d14-1, k shan conform with the
secretary of the infertadkt standards for historic places.
(e) Depmtmmt rep-. -A certifItM8 of use or occupationai license shag not be issued
until the city inanager, or his designee receives reports from ti10 cityns police, fire,
bulldf ng sewices and code compliance departments that We above reguiations have
been compiled wb.
(f) ~a~csa &riflnces ~DW pm~ons of subsecthns (a) and @)of this saction may
be granted pimuant fo Eothe procedure in ~&QII I 18-851 et seq.
SECTION 2. REPEALER
AII ordinanais orspark af erfdlnances and all sedans and parts of sections h
mnfl lct herewith ba'and the same are hereby repeated.
It is the the&nii~o of the Cummklon, and it Is hereby ordained that the
prwlsions of thls atdinanis shall become and be made part af the Code of the City d
Mlaml Beach as amended; fhat the sectrons of this ordinance may be renumbered or
relettered to crccornplish such Intentton; and fhat the word E[ardinanc& may be changedb
EIseotionU or other &propriate word.
8
It Is the Wentlon of the Clty Commission that ail provisions of ails Ordfnance are
Integmt to and dependent upon ail other provisions thereof, and thus if any serdbn,
subsec&n, clause or provbbn of this Ordinance b held &valid, the mmahdershal not be
severaQle from the paition declared invalid. In the went any partion of this ordinance shal
be finally d-ebrmined invalid by a murt of cumpetehtjuri~dfction~ the City Code provisions
in e%ct prior to the eftectlve data hereof shall aufomatlcaUy be reinstated.
SECTION 5. EFFECTIVE DATE.
Thfs Ordinance shall take effect ten days foWng adoptlot?.
PASSED and ADOPTED this day Or . 2004.
ATTEST:
C1W CLERK
MAYOR
APPROVED AS TO
FORM & LANGUAGE
& FOR EXECUTION
/2-& 03
Date
F:\~#oU?ELGM~~I~~~U~~~~~ -. aImhdn[~di!# ppmed by Madom rev $2-17.03.d~
- -
Club Madonna
1527 Washington Ave. Miami Beach, Florida 33 139 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.
'
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,
L&O~ Griffith '
Owner, Club Madonna '
File No:
Date: i MCR NO: dS405-
Amount
Zoning Classification
(For Staff Use Only)
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 HlSTORlODlSTRlCTlSlTE DESIGNATION
i. AN AMENDMENT TO THE LAND DEVELOPMENT REGULATIONS OR ZONING MAP
j. ( ) AN AMENDMENT TO THE COMPREHENSIVE PLAN OR FUTURE LAND USE MAP
k. ( ) TO REHAB, TO ADD TO AND 1 OR EXPAND A SINGLE FAMILY HOME
LEGAL DESCRIPTION:
4. NAME OF APPLICANT mi FFI-~+
Note: If applicant is a corporatior( partnership, limited partnership or trustee, a separate Disclosure of Interest Form (Pages 6-7) must be
completed as part of this application.
153% 1nr~-~.~\nm-,9d #HE.. kifimr $£Rc~ FL 33/37
ADDRESS OF APPLICANT CITY STATE ZIP
BUSINESS PHONE # 1%5 FAX t CELL PHONE #
E-mail address: 0 F i (G fl CL J 6 m4~0dfJ
5. NAME OF PROPERTY OWNER (IF DIFFERENT FROM #4, OTHERWISE, WRITE "SAME")
If the owner of the property is not the applicant and willnot be present at the hearing, the Owner/PowerofAttomeyAffidavit
(Page 4) must be filled out and signed by the property owner. In addition, if the property owner is a corporation,
partnership, limited partnership or trustee, a separate Disclosure of Interest Form (Pages 6 - 7) must be completed.
ADDRESS OF PROPERTY OWNER CITY STATE ZIP
BUSINESS PHONE # FAX# CELL PHONE #
E-mail address:
6. NAME OF ARCHITECT, LANDSCAPE ARCHITECT, ENGINEER, CONTR$T OR OR OTHER PERSON RESPONSIBLE FOR PROJECT DESIGN
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, i;)A-tv~)C r&+A/J~nnl OM ud@cje-t PW,k/615 'FF~Ru~~~zo~~Lc
NAME ADDRESS CHY STATE
BUSINESS PHONE# q5 93'7 \%?FAX# CELL PHONE #
E-mail address: I
b.
NAME ADDRESS CITY STATE ZIP
BUSINESS PHONE # FAX# CELL PHONE #
E-mail address:
C.
NAME ADDRESS cry STATE ZIP
BUSINESS PHONE # FAX# CELL PHONE #
E-mail address:
NOTE: ALL ARCHITECTS, LANDSMPE ARCHITECTS, ENGINEERS, CONTRACTORS OR OTHER PERSONS RESPONSIBLE FOR PROJECT
DESIGN, AS WELL AS AUTHORlZED REPRESEN7ATIVE(S), ATTORNEY(SJ, OR AGENT(S) AND/OR CONTACT PERSONS, WHO ARE
REPRESENTING OR APPEARING ON BEHALF OF A 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 APPLICATION.
A
8. SUMMARY OF PROPOSAL: /C\Mf/J D C LTV f (, 6 - 6 -LII ) A'
TRE - ~lfi~~ id N$D~ ADu- w*'~J~~~~~
i
9. 15 THERE-4 THE SITE? YES ( ) NO ) E/&
10. WILL ALL OR ANY PfJFSBMFT~ERlOR AND/OR EXTERIOR, BE DEMOLISHED? [ I YES [ ] NO
11 . TOTAL FLO (if applicable): SQ. FT.
12. TOTAL GRGcluding required parking and all usable floor space) SQ. FT.
13. TOTAL FEE: (to be completed by staff) $
PLEASE NOTE THE FOLLOWING:
Applications for an Boar! hearing(s) will nof be accepted without payment of the required fee. All checks are to be made payable
to: "Cify of Miami LY each.
Public records notice: all documentation application forms, maps, drawings, hofographs, letters and exhibifs will becorne a part
of the public record marntained by the dit of Miami Beach Planning Depa menf and shall under Florida Sfafute, be drsclosed
upon proper requesf to any person or en Y rty.
R
In accordance wifh the requiremenfs of Secfion 2-482 of the Code of the Cit of Miami Beach, any individual or group (Lobb isf) Y cV thaf has been, or wrll be, compensated fo either speak in favor or agains ,a project being presented before any of fhe !fyk
Development Revrew Boards, shall be fully disclosed prior to the publlc hearing. All such individuals and/or groups must regrsfer
wlth fhe Cify Clerk prior to the hearing.
In accordance wifh Secfion 118-31 of the Code of the Cify of Miami Beach, all applicants shall, prior to the public heating, fully
disclose any cons~deration provided or cornmiffed, diredl or on its behalf for an agreemenf to sup ort or withhold objecfion fo fhe
requested approval, relief or action (exclusive of all Isgaror professiona/design servrces). Suc I! disclosure shall:
I. Be in writing.
2. Indicate to whom the consideration has been provided or commiffed.
3. Generally describe the nature of the consideration.
4. Be read info the record by the requesting person or entity prior fo submission to fhe secretary/clerk of the respective board.
In fhe evenf the applicable development review board determines thaf fhe foregoing disclosure requiremenf was not timely satisfied
b the person or enfrfy requesting approval, relief or other action as provided above, then the applicafion or order, as a Iicable, A s all immediafely be deemed null and void ,wifhout further force or effect, and no applicafion from said person or en& for fhe
sub ecf rope shall 6e reviewed or consrdered b fhe applicable board($] unfil expirafion of a periQd of one ear afier the I.! t Y Y nu1 rfica ion off e applrcatron or order, It shall be un awful fo employ any ~evice, scheme or artifice to crrcumvenf he (Jisclosure
requlremenfs of fhrs secfron and such circumvenfion shall be deemed a v/olafron of the disclosure requirements of thrs secfron.
When the applicable Boards reach a decision, a Final Order will be issued stafin the Board's decision and any condifions
imposed therein. The Final Order must be recorded in the Office of fhe ~ecorder of idami-~ade Coun ; the original shall[emain
on file with the board clerklsecretay Under no circumsfances will a building permit be issued by the C y of Miami Beach wrthout a
copy of the recorded Final Order being tendered along wifh fhe consfrucfron plans.
r
To request this material in accessible format, sign language interpreters, information on access for persons with 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 WILL NOT BE PRESENT AT THEHEARING, OR IS HAVING OTHER
PERSONS SPEAK ON THEIR BEHALF.
OWNER AFFlDAVlT FOR INDIVIDUAL OWCIER /%'t'/;l fi f.
STATEOF '
COUNTY OF /A-IY\ 1
fie P lt'cr; .l f
I, f,Q .bV R.\*\fl4 ' , being first duly sworn, depose and say that i am the described and which is the subject
matter of the prcfposed 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 property 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 after the date of hearing.
Sworn to and subscribed before me this?@ day of SUL~
Le6rl CSl%% . - 1 2032)
Gli -~2$ as identification
oath.
NOTARY SEAL OR STAMP
My Commission Expires:
The foregoing instrument was acknowledged before me by
andlor is personally known to me and whowdid not take an
L rr~ a. .=A m4
PRINT NAME
e
ALTERNATE OWNER AFFIDAVIT FOR
CORPORATION or PARTNERSHIP
(Circle one)
STATE OF /
COUNTY OF /
of 1,
this application that all answers to the questions in the
application and all sketches, data and other e a~~lication are true and correct to the best of our
knowledge and belief; that the corporation i is the subject matter of the proposed hearing. We
understand this application must be comple 0 hereby authorize the City of Miami Beach to enter
the subject property for the sole purpose of as required by law and I take the responsibility of
removing this notice after the date of heari
/
PRINT NAME SIGNATURE
day of , 20-. The foregoing instrument was acknowledged before me by
of , on behalf of such entity, who has produced
and who didldid not take an oath.
NOTAW PU~LI;
>?\hi- qL,;>As
My Cornrncsscon Expires:
4
354
POWER OF ATTORNEY AFFIDAVIT
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
pasting 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)
Sworn to and subscribed before me this , 20-. The foregoing instrument was acknowledged before me by
who has produced as
NOTARY SEAL OR STAMP /
/ NOTARY PUBLIC
Ct'
My Commission Expires:
PRINT NAME
CONTRACTFORPURCHASE I
if there is a CONTRACT FOR PUR$HASE, 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@) (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."
NAME, ADDRESS, AND OFFICE /
DATE OF CONTRACT
Oh 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 oublic
hearing, a supplemental disclosure of interest shall be filed.
a CITY OF MIAMI BEACH
DEVELOPMENT REVIEW BOARD APPLICATION
DISCLOSURE OF INTEREST
2. TRUSTEE
lf 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 benefi~iar~lbeneficiaries consist of corporations(s), another trust(s),
partnershipjs) 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. PARTNERSHlPlLlMlTED PARTNERSHIP
If the oro~ertv which is the subiect of the application is owned or leased by a PARTNERSHIP or LIMITED PARTNERSHIP, list a, 4
the principals of Me partnershib, 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 ADC % OF STOCK
NOTE: Nofarizedsignature required on page 8
4. COMPENSATED LOBBYIST:
The City of Miami Beach Code sub-section 1 18-31 requires the disclosure of any individual or group which has been, or will be,
compensated to either speak in favor of or against a project being presented before any 01 the City's Developmen\ Review
Boards, or not to speak at all. Please list below all persons or entities encompassed by this section.
b
NAME ADDRESS PHONE #
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.
b
( APPLICANT AFFIDAVIT )
STATE OF 0
COUNTYOF~/~~AM r Q@$- - 1, r CG'N LR)rn.~\rt , (list name of corporafion and office designafion as applicable) being first duly sworn, depose and say that I am
the applicant, of 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 ?ofiday of ~VL , 20~ The foregoing instrument was acknowledged before me by
[ e(oV Cr; Fh7h . who has produced fbe Gb13-5U las identification andlor is personally known to me and who&fldid not take an oath.
32- \OL-o
NOTARY SEAL OR STAMP
*
1 PRINT NAME
My Commission Expires:
F:\PUN\$ALL\FORMG\DEVELOPMENT REVIEW BOARD APPLICATION JAN
,lanuary 8, 2010
Sworn to and subscribed before me this ?ofiday of ~VL , 20~ The foregoing instrument was acknowledged before me by
[ e(oV Cr; Fh7h , who has produced Fbe Gb13-5U las identification andlor is personally known to me and who&fldid not take an oath.
32- \OL-o ,l~\b\~~~l~~~lt~lt,l,
" H B&Uc*;%* -*:,fip... . . . . .
C C
9
1 PRINT NAME
A+ * m
r'\
1
Miscellaneous Cash Receipt
CITY OF MIAMI BEACH
PLANNING DEPARTMENT
$G
(305) 673-7550 Date: 7 [TO /Q
Received of:
Address:
For:
01 1 .8000.369. --- CHECK No.
Office of Finance Director
Preparer: Ext: By:
m
lf]
359
PLANNING DEPARTMENT
Staff Report & Recommendation
TO: Chairperson and Members
Planning Board
Planning Board
DATE: September 28,201 0
FROM: Richard G. Lorber, AICP, LEED AP
Acting Planning Director
SUBJECT: File No. 1973 - Ordinance: Alcohol and Nudity
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 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
rev0 ked .
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 & Nudity
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.
I. 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 & Nudity
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:
I. 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 I301 (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 OfBrien's second prong, a city must establish that the challenged
ordinance furthers a substantial government interest. Pap'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." City
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 Pap'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. Maricopa Countv,
336 F.3d 1153, I1 66 (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 Lounqe, 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 Lounge. 337 F.3d at 1268;see, 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 experiences1'); Barnes v. Glen Theatre,
Inc., 501 U.S. 560, 584, 111 S.Ct. 2456, 115 L.Ed.2d 504 (19911 (Souter, J.,
concurring in the j~dgrnent)~ (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
September 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 (~luralitv o~inion)); see,
e.g., Pao'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 Pao's A.M., 529 U.S. at 298, 120 S.Ct. 1382
(plurality opinion)); see also Peek-A-Boo Lounge. 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 Lounqe, 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 Liquor Authoritv v, Bellanca, 452 U.S.
Planning Board
File No. 1973 - Ordinance - Alcohol & ~udif~
September 28,2070 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 (1972k 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'Brien's 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 Lounqe, 337 F.3d at 1269-70.
Id. at 876-878.
The City also had before it studies specifically concerning the combination of alcghol 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 & Nudity
September 28, 2010 Page 8
Mr. Smith's testimony from Function Junction, Inc., 705 F.Supp. 544.- 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.SUDD. 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 materials.= 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 al~ohol.~ 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'Brien's
second prong.
FN27. William H. George et al., The Effects of Erotica Exposure
on Drinking, 1 Annals Sex Res. 79 (1 988).
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
Sepfember 28, 2010 Page 9
Function Junction. 705 F.Supe. 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 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 § 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 5 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 91 1. 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" crimes. Cf World Wide Video of Wash.. Inc. v. City of Spokane, 368
F.3d 1 186. 1195-96 (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. City of La Habra. 395 F.3d 1114, 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., 31 7 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 pattern"
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.SUPP. 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 County, 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); Dolls To~less
Saloons, Inc. v. City of Dallas, 295 F.3d 471, 481 (5th Cir.20021 ("Renton
teaches us that the government must produce some evidence of adverse
secondary effects ...." (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
September 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. COMMXSSIGN MEMORANDUM NO. 17-90
, AN ?W;%NCE,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 NU~ITY OR s EXUAL 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 NUDIXY OR SEXJJAL 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 ~oniig amendment.
d
Commissioner Shapiro's motion for adoption of the ordinance presented on 12/20/89,
prohibiting nudity and sexual conduct in alcoholic beverage es tab1 ishment (no grandf athering
provision), failed of passage 3-4 (Mayor Daoud, Vice-Maybr Resnick, and Commissioner Shapiro
favoring; Commissioners Arkin, Hirschfeld, Shockett, and Singer *opposed). 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 .JAN. '' 3 1990
B CoHbiIS,TGii MFSOEWNDUM NO. 708-89 3.
l AN ?RDI~CE OF THE CITY COMMISSION OF THE CITY' OF MIAMI BEACH, FLORIDA, MAKING FI~DIUGS OF
FACT; AMENDING MIAMI BEACH cIm CODE CHAPTER 18, ENTITLED v~~~~~~~~~~~~ LIQUORS" BY AEDITIQN
OF ARTICLE 11, ENTITLED "PROHIBITED NUDITY I\ND 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 OR 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 & ZONING DEPARTMENT)
C
ACTION: Interested persons 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 'existing establishments
(proposed ordinance would pertain to all establishments including those currently
operating) , recommended that they be grandf athered 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 bsaat;VS4
C. REOUEST OF ATTORNEY DAVID H. NEVEL, REPRESENTING COBB PARTHERS D%VELOPMENT, INC., TO DISCUSS
"....PROPOSED PORNOGRAPHIC THEATER.AND L'IVE 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 be
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 second.
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 BOW 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 roving 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 mdft~
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. m Xolqw
-
,$f$ . :-: :-y: 2
A < %:; . '-:: , ."
'~SION MEMORANDUM NO: 583-83.
~LTHE ZONING ORDINANCE, PROHIBITING ADULT MOTION
(REQUESTED BY MAYOR ALEX DAOUD)
voted to add this item to the agenda.
PICTURE THEATERS
'IAL DISTRICTS.
.I
WITHIN
.. 7
*>' 3~ --.
Rabbi '""~a+ Glickstein (Temple *Beth Sholom) , Rev. James P . Murphy (Pastor - St . Patrick
Church), and 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.i.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.
(:[;I 2 1 ICPq
B. (ADD-ON)
AN ORDINANCE AMENDING THE ZONING ORDINANCE REGARDING THE DISTANCE SEPARATION REQUIRED FOR
ALCOHOLIC BEEEMGE EETABLIIWLNTS PEsllITTING NUDIT!fm/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,'19@
Also see related item R-9A.
A. COMMISSION MEMORANDUM NO. 610-89 ( SUBJECTS BEFORE THE P~IND BOARD MEETING SCHEDULED FOR DECEMBER 5, 1989.
Oi
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. % 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 - %
6; , > . location of adult motion picture theaters.
fr t -,
se the Planninw Board members were not a~~ointed until 12/6/89. its 12/5/89
t held. Above anenda items were considered at its 12/27/89 meeting.
ed item R-8C and SNID Action Summary (attached). NQV. 1 5 1969
FLORIDA 33139
"V,4 CA TIOh'L.4 NU U. S. A. "
OFFICE OF THE ClTY MANAGER
ROB W. PARKINS
ClTY MANAGER
ClTY HALL
1700 CONVENTION CENTER DRIVE
TELEPHONE: 673-7070
COMMlSSlON MEMORANDUM NO.
TO:
FROM:
SUBJECT: AMENDMENT TO THE CITY CODE REGULATING NUDITY IN ALCOHOLIC
BEVERAGE ESTILBLISHMENTS
SUMMARY OF THE PROPOSED ORDINMCE
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 aZoning 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.
JAP! 3 5130
AGENDA ,
ITEM CITY OF pfi:l;ag; ~p-*.::;~{
377 - I- ?-C?il
BACKGROUND
On December 20, 1989, the City Commission held a public hearing to
c.onsider 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.
>
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 locational restrictions (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 HALL 1700 CONVENTiON CENTER DRIVE MIAhll BEACH FLORIDA 33i39
OFFICE OF THE CITY MANAGER
December 29, 1989
TELEPHONE: (305) 673-7010
FM (305) 673-77K
NOTICE
Mr. David H. Nevel
Attorney
407 Lincoln Road, Suite 12 D
Miami Beach, FL 33139
SUBJECT: ORDINANCE REGARDING T?OTAL AND PARTIAL NUDITY AWD SEXUAL
CONDUCT IN ALCOHOLIC BEVERAGE ESTABLISHMENTS"
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
Commission Chambers
Drive.
meeting begins at 9:30 a.m. and is held in the , 3rd Floor, City Hall, 1700 Convention Center
RWP: jh
Enclosure
JAN 3 1990
ClN OF MlAhll BEACH
ORDINANCE NO.
AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF'MIAMI
BEACH, FLORIDA MAKING FINDINGS OF FACT, AMENI)ING MIAnI
BEACH CITY CODE CHAPTER 18, ENTITLED 'lINTOXICATING
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 ESTABLISEMENTS 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 COMMISSION OF THE CITY OF MIAMI BEACH,
FLORIDA :
section 1. Pindinqs
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 pernit 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 TEM *-5-A
and child molestation; some of the most notable studies are the
Minneapolis Re~0rt of the Attornev General's Workina Group on the
conducted in 1989, the
Saint Paul Minnesota Planning and Economic Development and the
Minnesota Crime Control planning 'Board's study, Effects on
Surroundins 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 City 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 & Beverases Systems v. City 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 I1 to Citv Code Chapter 18
That Miami Beach City Code Chapter 18, entitled aaIntoxicating
Liquors" be amended by the addition of an Article 11, entitled
"Total and Partial Nudity and Sexual Conduct in Alcoholic Beverage
Establishmentsw to read as follows:
CHAPTER 18
INTOXICATING LIQUORS
* * * * t * *
Article 11. Total and Partial Nudity and Sexual Conduct In
Alcoholic Beveraqe Establishments.
3 18-8. Definitions.
3 18-9. Total Nudity and Sexual Conduct prohibited.
5 18-10. Mandatory reauirements established for
Alcoholic Beveraae Establishments permittinq
Partial ~uditv.
g 18-11. Enforcement and Penalties.
Article 11. Prohibited Nudity and sexual Conduct In
Alcoholic Beverage Establishments.
~ec. 18-8 Definitions.
The follow in^ words and ahrases, when used in this Article.
shall have the meaninss res~ectivelv ascribed to them as
follows:
wAlcoholic Beveraae Establishmentn means anv
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.
(2) alcoholic BeveraueM, "Beern and "Winew shall
have the meaninss set forth in Florida Statutes
Sections 561.01(4), 563.01, and 564.01
res~ectivelv.
13) "Nuditv, Partialu means the exhibition bv anv
female person to any other person of anv
portion of the areola.
(4) tlNuditv, Totaltt means the showins of all or any
portion of the cleft of the human male or
female buttocks with less than a full ODame
coverins; the depiction of covered male
qenitals in a discerniblv turaid state; the
exhibition bv anv Derson to anv other Derson.
of his or her uenitals, pubic area, vulva.
anus, anal cleft or cleavaqe, or anv portion
of the f oreqoinq specified anatomical areas,
or anv simulation thereof.
(5) llPersonlt means an individual, corworation,
f inn. partnership, limited partnership,
association, joint stock association. estate.
trust or business entitv.
16) llSexual Conductqt means anv sexual intercourse.
masturbation, sodomv . bestialitv. oral
copulation, flaqellation, anv sexual act which
is prohibited bv law, touchinq , caressins or
fondlins of the breasts, buttocks or anv
portion thereof, anus or uenitals or the
simulation thereof.
Section 18-9. Total Nuditv and Sexual Conduct Prohibited.
(1) It shall be unlawful for anv Person
maintainina, owninq, manaqinq or overatins an
Alcoholic Beverase Establishment to knowinulv,
or with reason to know, suffer or permit Total
Nuditv or Sexual Conduct to occur on the
premises of that Alcoholic Beveraae
Establishment.
/2) It shall be unlawful for any person, while on
the premises of an Alcoholic Beverase
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.Mandatory remirements established for Alcoholic
Beverase Establishments ~ermittins Partial Nuditv.
No Person shall own, operate, manage. work or perform at anv
Alcoholic Beveraae Establishment which permits Partial Nuditv
on the premises unless the followins mandatorv remirements
are observed therein:
1. Persons enqaaed in displavinq Partial Nuditv are -
prohibited from dancinq or simulatinq sexual
activity with any ~atron, s~ectator, em~lovee or
other person on the premises.
2. No person shall enqaae in the display or exposition -
of Partial Nudity except while the person is
positioned at least three (3) feet from another
person.
3. No Person maintaininq, owninq or operatinq such an -
Establishment shall suffer or permit the
construction, maintenance, or use of areas
partitioned or screened from public view that are
desisned to be occupied or are commonlv occupied
alone or toqether bv anv person or persons 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 bv anv
person or persons on the remises of such
Establishment for the displav or exhibition of
Partial Nuditv.
5. No person who performs in the Establishment shall -
be permitted to converse with patrons while on the
premises prior to , durinq, or after a werformance.
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
893-02 (4) on the ~remises;
8. The Establishment shall be in compliance with all -
applicable fire, property maintenance and buildinq
codes at all times. If a ~uildina is a ~istoric
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 Departments 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 City Charter
and violations of Section 18-9 shall be
punished as provided in Miami Beach City 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. 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 CLEM
commisn\cordnude
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 INESTABLISHMENTS WHERE ALCOHOLIC BEVERAGES, BEER
OR WINE ARE SOLD OR OFFERED FOR SALE FOR CONSUMPTION ON
THE PREMISES AND PROHIBITING ?diY 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 COMHISSION 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 ~udity 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 Working Group on the
Reaulation 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
Surrounding 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. 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 & Beveraaes Svstems v. Citv of Fort
Lauderdale, 664 F-Supp. 482 (S.D. Fla. 1987), aff'd, 838 F.2d 1220
(1988), and Fillinaim 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 Chavter 18
That Miami Beach City Code Chapter 18, entitled ttIntoxicating
Liquorsnn be amended by the addition of an Article 11, entitled
ItTotal 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.
3 18-8. Definitions.
3 18-9. Total Nudity and Sexual Conduct prohibited.
6 18-10. Mandatorv reauirements established for
Alcoholic Beveraqe Establishments vermittinq
Partial Nudity.
3 18-11. Enforcement and Penalties.
Article 11. Total and Partial Nudity and Sexual Conduct In
Alcoholic Beverage Establishments.
Sec. 18-8 Definitions.
The followins words and phrases. when used in this Article.
shall have the meaninqs respectivelv ascribed to them as
follows:
(1) uAlcoholic Beveraqe EstablishmentN means anv
establishment located in the City of Miami
Beach. Florida at which alcoholic beverases ,
beer or wine are offered for sale for
consumption on the premises.
/21 "Alcoholic Beveraqenn. "Beernt and InWinen shall
have the meaninss set forth in Florida Statutes
Sections 561.01 (4) , 563.01, and 564.01
resvectivelv. ~>~~~.5~rpp~m.x , .. ... : '.: 1 .:. .,; '. Ez* - ' --- "...,,~:. .d :>g'*
(31 "Nuditv, Partial" means the exhibition bv anv
female person to anv 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 anv portion of the cleavaqe of the
human female breast exhibited by a dress,
blouse, shirt, leotard, bathinq suit, or other
wearinq apparel. provided the areola is not so
exposed) .
ttNuditv. Totalt1 means the showina of all or anv
portion of the cleft of the human male or
female buttocks with less than a full oDame
coverins: the showinq of all or anv portion of
the female areola; the depiction of covered
male qenitals in a discerniblv turqid state:
the exhibition by any person to anv other
person, of his or her qenitals, pubic area.
vulva. anus. anal cleft or cleavaqe. or anv
portion of the foreqoinq specified anatomical
areas. or anv simulation thereof.
(5) "Personv means an individual, corporation.
firm, partnership, limited partnership,
association, ioint stock association. estate,
trust or business entitv.
16) "Sexual Conductn means any sexual intercourse.
masturbation, sodomv . bestialitv. oral
co~ulation, flaqellation, anv sexual act which
is orohibited bv law, touchinq. caressins or
fondlinq of the breasts, buttocks or any
portion thereof, anus or qenitals or the
simulation thereof.
Section 18-9. Total Nudity and Sexual Conduct Prohibited.
It shall be unlawful for anv Person
maintainins. owninq. manasinq or operatins an
Alcoholic Beverase 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.
121 It shall be unlawful for anv Derson, while on
the premises of an Alcoholic Beverase
Establishment to expose to public view those
portions of his or her anatomy, defined herein
as Total Nuditv, or ensaqe in anv Sexual
Conduct.
Section 18-10.Mandatory recruirements established for Alcoholic
Beveraqe Establishments pernittins Partial Nuditv.
No Person shall own. operate. manaae, work or perform at anv
Alcoholic Beveraqe Establishment which ~ermits Partial Nuditv
on the premises unless the followins mandatorv requirements
are observed therein:
1. Persons ensaued in displayins Partial Nuditv are -
prohibited from dancinq or simulatins sexual
activity with anv patron, spectator, emplovee or
other person on the premises.
2. No person shall ensase in the displav or exposition -
of Partial Nuditv except while the Derson is
positioned at least three (3) feet from another
person.
3. No Person maintaininq, owning or operating such an -
Establishment shall suffer or permit the
construction. maintenance, or use of areas
partitioned or screened from public view that are
designed to be occupied or are commonlv occupied
alone or toaether bv any person or Dersons on the
JAN 3 i03~
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
desianed to be occupied toqether or alone bv anv
person or persons on the premises of such
Establishment for the display or exhibition of
Partial Nuditv.
5. No person who werforms in the Establishment shall -
be permitted to converse with watrons while on the
premises prior to . durina, or after a performance.
6. Prostitution or solicitation for wrostitution 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
893-02 (4) on the premises;
8. The Establishment shall be in com~liance with all
applicable fire, propertv maintenance and buildinq
codes at all times. If a Buildina is a Historic
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. Secretary of Interior's
Standards for Historic Places; and.
9. A Certificate of Use or Occupational License shall -
not be issued until the Citv Manaaer or his desianee
receives reports from the Citvts Police, Fire.
Buildina and Code Enforcement Departments that the
above reaulations 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 beTm7 -_=-, t~<p ; ;'. i; ?: : - .>.s:.,.L%?>.:..?... - - -..-., .. - - %+ :s 5 $ ; :?;: t:;5
6 z.-*..\..4", .<
JAW 3 i390
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. 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
FORPA APPROVEil
LEGAL DEPARTMBT
~y*pz 3.L
DA~E: e- ---
.
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
CITY QF PdlAMrll BEACH
MIAMI BEACH CITY COMMISSION
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
Gin OF b?IA&li 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 Cammunities
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
I. INTRODUCTION
A. Background
On October 31, 1989, the Miami Beach City Commission received two proposed ordinances
pertaining to the regulation of certain 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 5:15 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 11:05 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 secondary imaacts 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 I1 - 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 Supreme 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,-~~~-,,,--:::~:~f+:~ L~jip;II;,;;>l:I~~~I~>
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: I) 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 constit~ltionally 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 pfohibit the content of the activity itself, i.e., prohibitions against showing pornographic
movles.
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 reguIation is sufficiently justified, despite its
incidental impact upon a First Amendment interest, (I) 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 interestn3.
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 1960's. planners in some communities began to distinguish between adult theaf~rs
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."'
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.5
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-rown 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 Rerrulatine Sex Businesses, another
reason the majority of communities followed the Detroit model because its legality had been
upheld by the U.S. Supreme Co~rt.~
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 (1976), the U.S. Supreme Court upheld Detroit's ordinance
which prohibited sexually oriented theaters, bookstores and 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 businesses.'
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 MI.
Ephraim, 198 1).
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 Re~lton 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 Renfon 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 10% 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 MI~I-Theaters (1976), the Court had
stressed the importance of conducting detailed studies on the impacts of these uses.
P'-----.-P - ."
3 a* -.- - . +->.. 15
-iq - . .- 1. . .;
Similarly, in November, 1986, the Court, in City of Newport v. Iacobucci, 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 Plannine. Law Handbook. the Cilg of Newport
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 Newport 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.2346 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 ~n~eles'~
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. Texas14
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 avef&.?.hli!qq~.,nedi&ly surrounding the adult-only businesses and that late at d:?dB$it!?r&h w.4 :
;.; g::?: y:q
=i:...:r>:ka>;4 4 16
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. ~rizonal~
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 no 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 neighborhoods in general. Their association with adult
businesses generated negative images (as well as real or potential hazards) and resulted in a
lowering of the desirability and livability of an impacted neighborhood. <Q~;>3~~$S~f gtJ
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St. Paul ~innesota"
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: !) findings; 2) a list of regulated uses; 3)
definitions of each regulated use; 4) definitions of "specified sexual activities"\"sexual
conduct" and "specified anatomical areas"\"nudityU ; 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 Countv
Adult Booth means a small enclosed or partitioned area inside an Adult Entertainment
Establishment which is: (1) 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 Countv
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,
"buttocksn 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, masochism, 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 rely upon a dispersal. method of controlling the proliferation
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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 distrjcts.
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 Komestead, they are permitted in the B-3, liberal
fommercial 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 Bcverages/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.
CtPY BF 15PIiAM1 BEACH
-- -
111. ADULT ENTERTAINMENT IN MIAMI 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. There 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.
Occuoational 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 1980's, 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 Theater. Twin theaters. One side
shows heterosexual films,onesideshows homosexual films.
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PoIice 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.
10/88 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 DurDose of observing the uses and
activities in the establishment. The Cinema contains two sidelby-side movie cheaters. 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 2lst 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 overwheIming stench of
urine throughout the building. Both theaters were very crowded.
JAN 3 1990
DULT ENTERTAINMENT ESTABLlSi-MENTS IN MIAMI BEACH
NUDE BAR-215 22ND STREET
I ... . ,
-1-' - ---.-.. _
NUDE BAR - 1716 ALTON ROAD
LDULT ENTERTAINMENT ESTABLISHMENTS IN MIAM! BEACH
Con'L .
LIVE NUDE PERFORMANCES/ ADULT MOTION PICTURE THEATER
THE GAYETY - 2004 COLLINS AVENUE
C POSTERS IN FRONT OF
Miami Beach Adult Entertainment Establishments continued I
Name of Establishment: Showgirl RevueSouth (formerly Million Dollar Baby, Place
Pigalle)
Address: 215 22nd Street
Owner: Stephen Lesnick
Occupational License: Beer/Wine/Liquor/S am
Tvve 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:
Battery/Assault.
Juvenile painting side of building with spray paint.
Burglary
Domestic disturbance in parking lot.
Disturbance in progress - female refused to leave. ,
Disturbance - customer doing drugs on premises.
Disturbance - fight, Fire Rescue called.
Fight
Disturbance - 4 men fighting in front. Occurred at Club Nu.
Burglary to car.
Robbery - Hit waitress and took her money.
Theft - Cash taken from dancer. Suspects co-worker.
Phone complaint about police harassment.
Battery/Assault.
Suspicious person - selling "hot" jewelry.
Theft.
Disturbance.
Disturbance/intoxicated person/Baker Act.
Disturbance - Cab driver/customer dispute.
Susuicious person on roof.
4/89 ~it'and R&.
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)
Occu~ational License: Beer\Wine\Liquor\5 am (1989 - unpaid)
TVD~ 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 I0 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
paraphernalia. 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 w venue) 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 contr'oversy and concern over the expansion of adult entertainment uses in Miami
Beach stems from a proposed nude dancing establishment called "The GoId CIub", 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 remalns
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 Miam*&rald Nmhbors article, L$.'- -. < - - *s
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 pornography 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 pictures", 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 filth". 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, piace 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 congregate".
This ordinance was objected to by Leonard Rivkind, Chairman of the Mayor's committee 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 Adopted 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 S:~te..La-y.- -,, c:;-,. - " c J2
16 .>,I
b. - - -- - 28
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
c1TY.b~ MIAblI BEACH
VI. SOURCES
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", Plavbov, November 1986, p. 113.
3"Adult Entertainment Zoning", Zoning and Land Use Controls, October 3, 1984, p. 11-48.
'William Toner, Regulating Sex Businesses, PAS Report No. 327, May 1977, pp. 1-2.
5"~dult Entertainment Zoning", Zonine and Land Use Controls, October 3, 1984, p. 11-6.
ti William Toner, Regulating Sex Businesses, PAS Report No. 327, May 1977, pp. 1-2.
'Bruce McClendon, "Zoning for Adults Only", Zonine News, August 1985, p. 2.
8"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.
''Jules 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.
llHubert H. Humphrey 111, Re~ort of the Attornev General's Working Grouv on the Reeulation
of Sexuallv Oriented Businesses, June 6, 1989.
12~ruce McClendon, "Zoning for Adults Only", Zoning News, August 1985, P. 2.
131bid.
IsHubert H. Humphrey 111, Re~ort of the Attornev General's Working Grouv on the Regulation
of Sexuallv Oriented Businesses, June 6, 1989, p. 12-17.
16planning Department, City of Phoenix, "Relation of Criminal Activity and Adult Businesses,
May 1979.
17Division of Planning, "Effects on Surrounding Area of Adult Entertainment Businesses in
St. Paul", June 1978.
''Hubert H. Humphrey 111, Reoort of the Attornev General's work in^ Grouo 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.
J A?! 3 1990
B. BIBLIOGRAPHY
Baker, Ross K. "Smut Glut." American Demoera~hics, (April 1987), 64.
Begley, Sharon with ~lizabeth Jones. "The Squeeze on Sleaze." Newsweek, (February 1,1988),
44-45.
Byrne, Josepha. Mrs. Bvrne's Dictionarv of Unusual. Obscure. and Pre~osterous 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." Psvcholoev
Todav. (December 1986), 56-59.
Gerard, Jules B. "Supreme Court Restricts Adult Entertainment: A Critique of City of
Newport v. Iacob'ucci." Zonine and Planning Law Re~ort, (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 Attornev General's Working Group on the Reeulation
of Sexuallv Oriented Businesses, June 6, 1989.
Keating, Dan. "Nude Men Dancers Agree to Button Up." Miami Herald Beach Neiehbors,
(November 2, 1989), 20.
Los Angeles Police Department, Administrative Vice Division Research Unit. The Current
Status of Pornogra~hv and Its Effects on Societv, November, 1984.
Luedke, Gerald. "Spaced-Out Zoning.", Plannina and Zoning News, (February, 1989), 10-1 1.
Miami Beach Planning and Zoning Department. Citv of Miami Beach Year 2000
Com~rehensive Plan, adopted by MB. City Commission September 21, 1989.
Miami Herald Beach Neighbors, "New Planning ~oard to Get X-Rated Issue.", (November 2,
1989), 2.
Miami Herald Beach Neighbors, "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, Not Obscenity Laws, Offer the Way to
Control Adult Entertainment." Nation's Cities Weeklv, (April 21, 1980). .
Roberto, Michael J. Memorandum 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
Neiehbors, (November 5, 1989).
Rubin, Aaron S. "Beach WilI Consider Ban on Alcohol at Nude Clubs." Miami Herald
Neichbors. (October 29, 1989). 3.
Schultz 111, Arthur J. "Franklin squar;: Porn Free and Booming." Urban Land, (August, 1986),
14-19.
Smith, Dwight. "Ur.ban Design Offers Control, Not Cosmetics, for Sex Businesses." Nation's
Cities Weeklv, (April 21, 1980).
Squire, Susan. "Ordinary People." Plavbov Magazine, (November 1986) 113-1 14, 159-161. g-t,a,y ;~c-;:-:~!.r
,.*;*S;Z>,,-::.::.- ..:,.
JAN 3 i9S3
41 5 errv nr rsrnnlr rs.FalfU
Taylor, Bruce (interview). "Should Citizens Punish Porn Sellers?" U.S. News & World Reuort,
(July 14, 1986), 64.
Toner, William. Reeulating 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 Jersev Municioalities, (February, 1985). 7.
Yow, Robert B. "Adult Entertainment Zoning: A Case Study." Carolina Plannin~ 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.
Zoning News. "High Court Backs Limits on Adult Theaters.", (hlarch, 1986), 2.
Zonins and Planning Law Handbook. "Ordinance Snuffing Out Erotic Bakery is
Unconstitutional.", (1987), 40-41.
Zonine and Plannin~ Law Handbook. "Are Adult Businesses a Nuisance?", (1987), 39.
Zonine and Planning Law Handbook. "Supreme Court Decision Permits Broad Regulation of
Adult Businesses.", (1987), 5-7.
Zoning and Plannine Law Handbook. "Adult Business Ordinances: Mixed Judicial Review.",
(1987), 40.
JAN 3 1990
DADE COUNTY PUBLIC SCHOOLS
SITE PLANNING & GOVERNMENT LIAISON DEPARTMENT r 1444 BISCAYNE BLVD., SUITE 302 MIAMI. FL 33132 r (305) 995-7280
DR. JOSEPH A. FERNANDR
SUPERW9TENDEM OF SCHOOLS
DADE COUNTY scnooL BOARD
DR. WCWL KROP. WAIRMAN
December 14, 1989 HR. G HOLblES DR. BRAODOCK. ROSA CASTRO VlCECHAlRMAN FEINBERG
MS. arrw wF3.m
.. - ..-:.
Mr. Jud Kurlancheek, Director ;._._ .. ! . .... *... . Planning and Zoning Department
City of Miami Beach o -. ., . . - . ., . .
P. O- Bin 190000 . . .. _
L. : ; . . ., . , . d-. ::, , Miami Beach, Florida 33119 .,.. .- 1 . .
Re: .Amending 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. Notwithstanding 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
for the public hearings scheduled before the city Cawaission for
this ordinance mendment. Once again thank you and warmest wishes
for the holidays.
Sincerely,
~aila N. Kala
Director
cc: Mr. Thomas A. Cerra
Mr. Octavio J. Visiedo
JAN 3 1990
CITY OF ~d!APAI BZACX
January \4 193
(date filed)
1. IDBBYI.STIS NAME: Joseph P. Averill
2. ZOBBYIST'S BUSINESS DKESS: 710 City National Bank Bldg, 25
West Flaoler Street. Miami. Florida 33130
A- U.S. Partners Financial Corp. 3102 Oak Lawn. Suite 730
Dallas, TX 75219
B-
Performance standards around 'alcoholic establishments ; zoning
requirements around alcoholic establishments
rat enter me one ism an this form. File a separate
EiorDoea& specific iszm which you are being qloyed a. a lobbfst.
5. DFSCRIBE THE 10 WIIM YOU HAVE ANY BUSINESS OR PRDFESSIONP;L
RETATIONSHIP WITH ANY PERSCNS DESCRIBED UtDER S.2-ll.l(b)(l) OF THE
OF cImTY. (kym and kadssioners of Miami ~each)
I, lb undaxigned registrant, do hereby depose rrnder oath and say - Frfmticn &clra& Pisb Z&
V
10 wd ~ubsrribed before me this day of January %
198 90 , - .--\, -
7. anW FILING YNWlWTION: CQlMENCING JULY 1, 1986, AND ON JULY 1, OF UU3I
YEAR m, 110 THE OF THE CITY OF MIAMI
BEACH, FLORIRA A SIm m- mm Lm a mw
mI'IURES FOR THE PREEDING CXENDAR YEAR. A SHGL BE FILED
mIF'RIEREHAVEBEENNDExPEND~IKlRINGZHE~PERICP).
CF M!Afdl BEACH
JAN 3 1990
CITY OF fd!Arwll BEACH
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
j community; and I wouldn't want it to turn into a honky-tonk
place." Commissioner Abe Resnick says "we sliould 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."
&&AZ71? c- 6 i3 d2 &. 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."
1
!
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
community and I wouldn't want it to turn into a honky-tonk
I 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
CIn QF PJiiRfSii BEACH
! TO THE COMMISSIONERS 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
t the type of entertainment we want in Miami Beach."
i Commissioner Martin Shapiro says "Miami Beach is a residential
i
communitx 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 tha6 their children live in a decent en'irironrsent."
JAN 3 1990
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 ar.e nof
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 Inwe 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 en~ironment.'~
1
JAN 3 1990 :.
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
I: !k ,
1 JAN 3 1990 i .+
CITY OF M!W!tlI BEACH
I
i 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
communitx 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."
'3 ; ,, . .. .,"'
.ti ,< . - !;'W> / :y5-,:. .,'A< %* ,, -;-, .,;;;A:<.< A??,,,+ ,qc*,;; ,+LC ; y L. L , r, .,--d .. : ,.* . , - ..
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.. :. ; L -; ,. -
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--&. $ ,.Lfid,'i. . L..lL . .f[$-- 7 "Yi ~2 &&- /i , %'.. fig<&
r 7
\/. LL L 6 AyzL .I [ 78: f [-;<.[.,~.&d~f (& & )/Z. /3.. -- , -, .- .*>. . 7 I,! $7- , -. --
&,
JAN 3 1990 -+
i
TO THE COMMISSIONERS OF THE CITY OF MIAMI BEACH
We, the citizens of Miami Beach, do not want nude entertainment
in Miami Beach. Mayor Daoud says "these facilities are not
the type of entertainment we want in Miami Beach."
Commissioner Martin Shapiro says ''Miami Beach is a residential
community and I wouldn't want it to turn into a honky-tonk
place." Commissioner Abe Resnick says "we should look to the
future of Miami Beach for families with children coming to our
city and see that their children live in a decent environment."
11:. +I 7 - ,d. : I L .>$.-.. -. c ->.J -,-.: -7 : .a , .:, : 3 <: - <, /:A'A /. ,: <-- ,gi> \ , -
2 - ', 2
j; CITY OF MIArdi BEACH
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.I1 Commissioner Abe Resnick says 'we shahld 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 ., r err>*
!!'
p':Z,h .T" ., 6 $$$r
i ".* - mu"*- ..-- !y . -
, I 'I . JAN 3 1990
//
i CIN OF MIAMI i3eA~1-r :.
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
CfTY 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
h'ls. Helen Wolsch
5601 Collins Avenue
Miami Beach, Florida 33140Helen
Ms. Ada Kopelman
5601 Collins Avenue
Miami Beach, Florida 33140Ada
Mr. Nat Tepper
5601 Collins Avenue
Miami Beach, Florida 3314ONat
Mr. Meyer Bender
560 1 Collins Avenue
h'liami Beach, Florida 33140Meyer
Ms. Sue Roberts
5601 Collins Avenue
Miami Beach, Florida 3314OSue
Mr. Casdan Roberts
560 1 Collins Avenue
Miami Beach, Florida 33140Casdan
Ms. Eileen Cohen
5601 Collins Avenue
Miami Beach, Florida 33140Eileen
Ms. Sylvia Cohen
5601 Collins Avenue
Miami Beach, Florida 33140Sylvia
Ms. Sylvia Freund
5601 Collins Avenue
Miami Beach, Florida 33140Sylvia
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 33140Sylvia
CITY OF IYilAh41 EEACH
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
Miami 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
5601 Collins Avenue
Miami Beach, Florida 33140Rita and Ben
Mr. Julius Schwartz
5601 Collins Avenue
Miami Beach, Florida 3314OJulius
Ms. Martha Pasternack
5601 Collins Avenue
Miami Beach, Florida 3314OMartha
Ms. Sylvia Madower
560 1 Collins Avenue
Miami Beach, Florida 33140Sylvia
Mr. Joe Fisher
5601 Collins Avenue
Miami Beach, Florida 33140Joe
Mr. David Halpern
5601 Collins Avenue
Miami Beach, Florida 33140David
Mr. Milton Rosenthal
5601 Collins Avenue
Miami Beach, Florida 3314OMilton
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
560 1 Collins Avenue
Miami Beach, Florida 33140Rose
JAN 3 1990
Cln OF MIAMI BEACH
Vs. Gertrude Ruben
5601 Collins Avenue
Miami Beach, Florida 33140Gertrude
Ms. Mildred Spitzer
5601 Collins Avenue
Miami Beach, Florida 33140Mildred
Ms. 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
5601 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
5601 Collins Avenue
Miami Beach, Florida 33140Paula
Ms. Dorothy Grossman
5313 Collins Avenue
Miami Beach, Florida 33140Dorothy
Mr. Sal Hazan
5 161 Collins Aven;ue
Miami Beach, Florida 33140Sal
Mr. Lee Serence
5601 Collins Avenue, 11620
Miami Beach, Florida 33140Lee
Mr. Jack Serene
5601 Collins Avenue, #I620
Miami Beach, Florida 33140Jack
Ms. Sheila Kemp
5601 Collins Avenue
Miami Beach, Florida 3314OSheila
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
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 3314OJane
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
5313 Collins Avenue
Miami Beach, Florida 33140Juiia and Harvey
Mr. & Mrs, Max Elkins
531 3 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
5 135 Lakeview Drive
Miami Beach, Florida 33140Bernice
Mr. Ilse Nelkan
7950 Abbott Avenue
Miami Beach, Florida 33 14 1Ilse
Ms. Julia Dobosh
7935 Carlyle Avenue
Miami Beach, Florida 331413ulia
Mrs. M. Samson
5601 Collins Avenue
Miami Beach, Florida 33140Mrs. Samson
JAN 3 1990
Cll?' Mi4681 BWH
Mr. Louis Redler
8955 Collins 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
Miami Beach, Florida 33141Americo
Ms. Min Schrelstein
5313 Collins Avenue
Miami Beach, Florida 33140Min
Mr. David Frohwirth
5101 Collins Avenue
Miami Beach, Florida 33140David
Mr. 3. Pullman
3800 Collins Avenue, #I004
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 CIerk DATE:
FROM: Mayor
-
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 dc addresses
Original Petition
STATE OF FLORIDA
COUXPl COF DRDE:
i, F~38ERT PARCHER, Clerk of City of
tJist?ii Beecii, i=io:ida, do t;ere*j ceriiSg; that
the &ava and Foregoing is a true md correct
cow of (he original thereof on file in this
oSiise.
WITNES' -v hand ana the seal of said City
lhis 3&$ ~j!bw@ ? .a 20 0.1-
cQ$lf%ls,E%oQ
F;$?E%;&$
JAN 3 1930
CITY QE Wt BEACH /"- ' ,Y
Daniel R. Aaronson*
James S. Benjamin
Law Offices
BENJAMIN & AARONSON, P.A.
One Financial Plaza
Suite 1615
Fort Lauderdale, Florida 33394
Telephone (954) 779-1700
Fax (954) 779-1771
Peter Patanzo
*Also licensed in New Jersey and Georgia
October 25,201 0
Gary Held, Esq.
City Attorney's Office
1 700 Convention Center Drive
Miami Beach, Florida 33 139
RE: Club Madonna
Dear Mr. Held:
Enclosed please find ten copies of the CD that contain case law and studies thdt I wish for
the City Commission to have available for review as to item RbL, Ordinance on Alcohol and
Nudity which will be subject of discussion on October 27,2010. Per our conversation of
October 25,2010, you agreed that I could provide you with these copies along with a Table of
Contents and you would see that they got distributed properly to the City Clerk, etc.
Thank you for your cooperation in this matter.
Sincerely, I
kL
Daniel R. Aaronson
Attorney for Club Madonna
~genda Item R 5L
I Date 10-27-10
MATERIALS SUBMITED IN SUPPPORT OF 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, TO ALLOW ESTABLISHMENTS LICENSED TO PROVIDE TOTAL
NUDE ENTERTAINMENTTO SERVE ALCOHOLIC BEVERAGES TO THEIR CUSTOMERS.
TABLE OF CONTENTS
1 City of Los Angeles v. Alameda Books, 535 U.S. 425, 122 S Ct. 1728. 152 L Ed.2d 670, (2002).
2. Communication Law and Policy, Volume 6. Spring 2001, Number 2 - Government Regulation of
"Adult" Businesses Through Zoning and Anti-Nudity Ordinances: Debunking the Legal Myth of
Negative Secondary Effects, authored by Bryant Paul, Daniel Linz, and Bradley Shafer.
3. Curriculum Vitae of Daniel G. Linz. Ph. D
4. Consumers of Erotic Entertainment. A Survey of the Patrons of the Mons Venus in Tampa,
Florida, taken by Randy Fisher, Ph. D
5. Affidavit of Randy Fisher, Ph D.
6. Contradictory and inconclusive Findings, by Bruce McLaughlin Consulting Services.
7. R. Bruce McLaughlin Experience and Career History
8. Do Adult Cabarets Affect Neighborhood Crime Volumes? Taken by Terry Danner
9. Erie Boulevard Triangle Corp, V. Citv of Schenectady, 152 F.Supp 2d 241 (N.D. N.Y. 2001)
10. Excerpts of Testimony of Dr. Rebekah J. Thomas in Kentucky Restaurant Concepts. Inc. V. ~itv of
Louisville, Case No. 3:Ol-CV-374-H
11. Curriculum Vitae of Dr. Rebekah J. Thomas
12. Exploring the Casual Connection between Adult Use Enterprises and the Adverse Secondary
Effect of Crime
13. Flanigan's Enterprises. Inc. V. Fulton County, 242 F.3d 976 ( llth Cir. 2001)
14. Letter to the U.S. Department of Justice to Byant Paul from Elizabeth Groff of the Crime
Mapping Research Center
15. Market Study and Report: A Study of Real property and Negative Secondary Effects in
Brandenton, Florida taken by Richard Schauseil.
16. Market Study and Report: A Study of Real Property and Negative Secondary Effects in
Casselberry, Florida taken by Richard Schauseil.
Market Study and Report: A Study of Real Property and Negative Secondary Effects in Tampa,
Florida taken by Richard Schauseil Curriculum Bitae - Richard Schauseil
Market Study and Report: A Study of Real Property and Negative Secondary Effects in Pinellas
County, Florida taken by Richard Schauseil
Market Study and Report: A Study of Real Property and Negative Secondary Effects in Oakland
Park, Florida taken by Richard Schauseil
Curriculum Vitae of Richard Schauseil
Market Study of Six Locations in Four Neighborhoods in Oklahoma City, Oklahoma by Stephen V.
Greer. MA1
Palazzolo v. Rhode Island. 533 U.S. 606. 121 S.Ct. 2448. 150 L.Ed.2d 592 (2001)
Paper on the validity of the 1977 Los Angeles Secondary Effects Study Relief on by the City of Los
Angeles Presented in Support of the Amicus Curiae Brief of the First Amendment Lawyers
Association. taken by Daniel Linz.
Pasco County, Florida - Contemplated Amendments to the Adult Use Regulations Predicate
Commentary- Volume IA
Pasco County, Florida - Contemplated Amendments to the Adult Use Regulations Predicate
Commentary - Volume I1
Peek-A-Boo Lounge of Bradenton, Inc. et. al. v. Manatee County, 2003 WL 21649675
Positive Economic lmpact of the Mons Ven8us: The Impact of the Performers Incomes
Summary of Secondary Affects Analyses. By McLaughlin Consulting Services, Inc..
Testimony of Dr. Daniel Linz -University of CAI Santa Barbara- Chair, Law and Society Program;
Professor, Department of Communication, taken by John Feegal (Curriculum Vitae included)
The Effects of the Mons Venus Adult Cabaret on Neighborhood Crime Volumes, in Tampa,
Florida; Empirical Analysis of Longitudinal Data, taken by Terry Danner
The Effects of the Mons Venus Adult Cabaret on Neighborhood Crime Volumes in Tampa,
Florida: A 2001 Updated: An Empirical Analysis of Longitudinal Data, taken by Dr. Terry Danner
The Pornographic Tradition-Formative Influences in the 16~~ and lgth Century European
Literature, by Marianna Beck, Ph.D.
Thirteen Steps to a Successful Experiment, entered into the record of adoption for Oak Park
Ordinance 01-07. March 20.2001
Three Studies of the Secondary Effects of Adult Nightclubs in Charlotte-Mecklenburg County
United States v. Plavbov Entertainment Group. Inc. 592 U.S. 803,120 S.Ct. 1878,146 L.Ed.2d 865
(2000) and Plavbov Entertainment Group. Inc. v. United States, 30 F.Supp.2d 702
Using Crime Mapping to Measure the Negative Secondary Effects of Adult Businesses in Fort
Wayne, Indiana: A Quasi-Experimental Methodology
XLP Corporation v. The Countv of Lake, 317 III.App.3d 881,743 N.E. 2d 162, (2000)
Davtona Grand Inc. d/b/a Lollipop's Gentleman's Club. vs. City of Davtona Beach, Florida 410
F.Supp.2d 1173. (2006)
Article "Club, Porn Fight Dropped." Myrtle Beach Sun News, 3-11-06
Article; "Experts: Porn Shops Don't Hike Crimes." Journallnquirer.com, 4-17- 06.
Plaintiffs' Amended Experts' Reports on Secondary Effects Studies for Daytona Beach
Ordinances 81-334,02-496 and 03-375
A Public Health Analysis Of Rancho Cordova Proposed -Adult Business Ordinance Number 22-
2004, J.R. Greenwood, Ph.D. M.P.H.
An Analysis of Miami-Dade Ordinance 96-13, J.R. Greenwood, Ph.D., M.P.H.
Summarizing and Evaluating Studies and Reports that Examine Whether Adult Businesses Cause
Adverse Secondary Effects
The economic impact of three adult oriented clubs in Rancho Cordova.
COMMISSION ITEM SUMMARY
Condensed Title: I Alton Road Parking District No. 5 I
Key Intended Outcome Supported: I Maintain strong growth management policies; Protect historic building stock
Supporting Data (Surveys, Environmental Scan, etc.):
While nearly half, 47.6%, suggested the effort put forth by the City to regulate development is
"about the right amount," nearly one-third, 29.6%, indicated "too little" effort is being put forth by the I City in this area. I
Issue: . - - -. - .
Should the City Commission approve the ordinance on first reading and set the second reading public
hearing for the January 201 1 meeting?
Item Summary/Recommendation:
FIRST READING - The proposed ordinance would create a new parking district for properties with a lot line
adjoining Alton Road between 5 St. and Dade Blvd. Parking District 5 has been tailored to meet the
following neighborhood-specific objectives: to minimize the height and bulk of new buildings; to encourage
development of commercial uses that are oriented to local neighborhood customers and employees who
could walk or ride bicycles, rather than those uses that would attract a large number of vehicle trips; to
promote the development of smaller, more affordable housing units; to enable automobile drivers to park
once at a convenient location and to access a variety of commercial enterprises in pedestrian friendly
environments by encouraging shared parking and off-site parking; to reduce diffused, inefficient, single-
purpose reserved parking; to provide secure bicycle parking for employees, customers and residents.
The ordinance provides a variety of options for reducing the minimum parking requirements for new
construction or change of use based upon the size of individual businesses or dwelling units, proximity to
existing parking garages, and implementation of parking demand management strategies such as
carpooling, car sharing and prohibiting reserved parking. It also requires short term and long term bicycle
parking for all new development. The Administration recommends approval of the ordinance on first
reading and setting a second reading public hearing for January 201 1.
Advisory Board Recommendation: I Plannina Board Action: September 28,2010 recommended approval as amended by a vote of 5-0. I
Financial Information:
I I I
Financial Impact Summary: This ordinance is estimated to have a -$37,000 impact on annual
parking impact fee revenue, but the long term net fiscal impact is expected to be positive due to
incentives for new development and increased utilization of existing municipal parking, particularly in the
5'h & Alton garage.
1
City Clerk's Office Legislative Tracking:
I Joyce Meyers, Planning Department
Account
3
Total
Amount
NIA
Source of
Funds:
1
1
2
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 Manager
DATE: November 17, 2010
SUBJECT: Alton Road Parking District No. 5
AN ORDINANCE OF THE MAYOR AND ClTY COMMISSION OF THE ClTY OF MIAMI
BEACH, FLORIDA, AMENDING THE CODE OF THE CITY OF MIAMI BEACH, FLORIDA, BY
AMENDING CHAPTER 130 OFFSTREET PARKING, ARTICLE I1 "DISTRICTS;
REQUIREMENTS," SECTION 13031 "PARKING DISTRICTS ESTABLISHED," CREATING A
NEW PARKING DISTRICT NO. 5, AND SECTION 130-33 "OFFSTREET PARKING
REQUIREMENTS FOR PARKING DISTRICTS NOS. 2, 3 AND 4," BY ADDING NEW
PARKING REGULATIONS FOR PARKING DISTRICT NO. 5, FOR PROPERTIES WITH A LOT
LINE ON ALTON ROAD FROM 5TH STREET TO DADE BOULEVARD, INCLUDING A
REDUCTION IN OFFSTREET PARKING REQUIREMENTS FOR CERTAIN LAND USES AND
BICYCLE PARKING REQUIREMENTS; PROVIDING FOR CODIFICATION; REPEALER;
SEVERABILITY; AND AN EFFECTIVE DATE.
BACKGROUND
In the Summer of 2006 the Historic Preservation Board initiated the westward expansion of the
Flamingo Park Local Historic District to the east right-of-way line of Alton Road between 6th
Street and 14'~ Street in order to protect the character of the adjacent National Register Historic
District as well as the historically significant but yet unprotected properties along this stretch of
Alton Road. It was noted by the board that recent commercial development trends along Alton
Road could significantly adversely impact the quality of life and historic integrity of the National
Register Historic District thereby undermining the cultural tourism appeal and quality of life of the
city.
At the same time the Historic Preservation Board requested the Planning Department to initiate
a major planning study of the Alton Road Corridor, including both sides of the road between 5th
Street and Michigan Avenue, which should include an analysis and evaluation of existing uses
and conditions, historically significant properties, permitted building heights, allowable FAR,
parking conditions and requirements, the efficacy of current zoning, and the character of the
public right-of-way with regard to pedestrian amenities, convenient means of transit, and quality
of landscape.
The board further requested that the Planning Department organize and advertise a series of
community planning workshops, inviting members of the Historic Preservation Board and the
Planning Board, in order to gain public input and insight from local business owners and
residents so that the Department might develop a comprehensive set of planning and zoning
recommendations for future development and preservation along the corridor that would enable
Alton Road Parking District No. 5
November 17,2010
Page 2 of 7
healthy future growth and development without overwhelming or adversely impacting the historic
character of the area.
On January 16, 2008, the Mayor and City Commission approved Ordinance No. 2008-3592,
expanding the boundaries of the Flamingo Park Historic District westward expansion to Alton
Road between 8 Street and 14 Street; and on January 28, 2009, the Mayor and City
Commission approved Ordinance No. 2008-3592, expanding the boundaries of the Flamingo
Park Historic District westward expansion to Alton Road between 6 Street and 8 Street.
The Planning Department conducted an analysis of existing conditions, issues and opportunities
in the Alton Road corridor and held a community planning workshop on August 20, 2008 to
receive community input on land use, zoning, business development, parking, transit and
pedestrianlbicycle amenities. On January 27, 2009, the Planning Department presented
preliminary findings and recommendations for the Alton Road Neighborhood Planning Study to
the Planning Board. On February 26, 2009, the Planning Department and the Planning Board
held a second community planning workshop on the Alton Road Neighborhood Planning Study
to receive community input.
During the Planning Board meetings on April 21,2009, May 26,2009 and August 25,2009, the
Planning Department staff held additional detailed discussions with the Board on the proposed
zoning modifications for the east side of Alton Road in the Flamingo Park Historic District, known
as the Alton Road Historic District Buffer Overlay District. The analysis provided by staff
included recommendations for increased building setbacks and reduced building height, all of
which depended upon reduced on-site parking requirements to achieve the maximum Floor
Area Ratio of 1.5. During the September 22, 2009 Planning Board discussion item, staff
presented specific recommendations for reducing the parking requirements. Those
recommendations have been incorporated into the proposed Alton Road Parking District
ordinance.
ANALYSIS
The proposed Alton Road Parking District, entitled Parking District #5, can be classified as
"context-specific parking standards" also known as "flexible parking standards", which are
modeled after a national movement to set parking standards to fit the characteristics of specific
neighborhoods. Citywide parking standards may not always fit the conditions in a particular
neighborhood or the long term vision of how that neighborhood should develop. Context
sensitive or flexible parking requirements are based on certain considerations such as access to
transit, presence of nearby complementary destinations with walkinglbiking distance, potential
for shared parking, auto-ownership rates in the neighborhood, expected demographics of future
residents, implementation of programs to reduce demand for parking and availability of public
parking.
The Alton R~ad corridor scores high marks in all of the considerations listed above. Parking
District #5 has been tailored to meet the following neighborhood-specific objectives, as identified
during the neighborhood planning process:
1. To minimize the height and bulk of new buildings where required vehicle parking would
be located inside the building.
2. To encourage development of commercial uses that are oriented to local neighborhood
customers and employees who could walk or ride bicycles, rather than those uses that
would attract a large number of vehicle trips.
Alfon Road Parking District No. 5
November 17,2010
Page 3 of 7
3. To promote the development of smaller, more affordable housing units.
4. To enable automobile drivers to park once at a convenient location and to access a
variety of commercial enterprises in pedestrian friendly environments by encouraging
shared parking and off-site parking.
5. To reduce diffused, inefficient, single-purpose reserved parking.
6. To provide secure bicycle parking for employees, customers and residents.
Parking District #5 would also support the draft Transportation Element of the City of Miami
Beach Comprehensive Plan, which contains the following policies:
Policy 8.5: Maximum Parking Standards
The City shall examine the economic, transportation and recreational impact of strategically
limiting parking in certain areas, as a means to reinforce alternative modes of transportation.
Policy 8.7: Bicycle Parking
The City shall require all new developments to provide secure short term and long term
bicycle parking in the form of bicycle racks, bicycle lockers, locked rooms or other
appropriate enclosures as a way of reducing the demand for automobile parking.
Policy 8.9: Monitoring Supply and Demand
The City shall continuously monitor and update the parking requirements in the Land
Development Regulations to result in a better ratio of supply to demand which implements
innovative parking strategies in commercial areas to promote multi-modalism.
Policy 6.1 : Transportation Systems Management
The City shall encourage appropriate TSM strategies to improve the mobility systems
efficiency, effectiveness and safety. These may include but are not limited to:
Traffic management and traffic monitoring programs
Incident management
Congestion management
Access management
Parking policies which discourage single-occupancv vehicles
The encouragement of carpools, vanpools or ridesharing
Programs or projects that improve traffic flow, including projects to improve
s'ignalization
On road bicycle lanes, bicvcle parking, and bicycle amenities at commercial and
residential uses
Improve intersections, and implement Intelligent Transportation Systems (ITS)
strategies, including Pedestrian oriented intersection design strategies
Pedestrian countdown signals
Policy 6.2: Transportation Demand Management
The City shall encourage appropriate TDM strategies to improve the mobility systems
efficiency, effectiveness and safety. These may include but are not limited to efforts to
reduce the de~endence on single-occupant vehicle trips, and the encouragement of the use
of bicvcle, pedestrian and transit modes as a means of commuting and recreational mobility.
These may include, but are not limited to:
Alfon Road Parking District No. 5
November 17,2010
Page 4 of 7
carpools,
van pools,
demand response service,
paratransit services (for special needs population),
publicJprivate provision of transit service,
bike sharing, or-shared car initiatives,
provision of bicvcle racks
provision of parking for camools
alternative hours of travel, including flexible work hours, staggered work shifts,
compressed work weeks and telecommuting options,
subsidy of transit fares,
used of long term parking to be developed at City's entry points,
shared vehicular and pedestrian access for compatible land uses, where possible,
shared parking agreements for compatible land uses, where oossible,
provision of transit amenities,
car share vehicle parking.
Following is an explanation of each section of the proposed ordinance.
Boundaries: The proposed parking district no. 5 includes those properties with a lot line on Alton
Road from 5 Street on the south to Dade Boulevard on the north with the exception of properties
included in parking district no. 2 (Lincoln Road). Analysis shows that all properties in this
corridor segment share common characteristics with respect to parking needs and future
development objectives.
Residential parking: The proposed ordinance would reduce parking requirements for new
residential construction or for increasing the number of units in an existing building. The
proposed parking ratios are based on the size of the units with small incremental increases in
the required number of parking spaces as the unit sizes get larger. These ratios will more closely
mirror the actual size of existing apartment units and the rate of vehicle ownership within the
neighborhood. Data from the 2000 Census shows that over 36% of the households in the study
area had no car at all and another 51 % owned only 1 car. The reduced parking requirement for
smaller apartments will help to reduce the cost of those units, which supports an important
objective for housing affordability.
Further reductions in the minimum residential parking requirements are available on a voluntary
basis for unreserved parking spaces and for parking spaces dedicated to an official car sharing
program sanctioned by the City.
Retail stores, food stores and ~ersonal service establishments: The first 2,500 square feet for
each individual establishment is proposed to be exempted from any parking requirement up to a
total aggregate square footage of 10,000 square feet per development site. The theory behind
this is that generally, smaller businesses will be catering to the local residential market, where
many of the customers currently access the businesses by walking, bicycling or the South Beach
Local. Attracting locally-oriented businesses is an objective identified during the Alton Road
neighborhood planning process. This is a more targeted parking exemption than that which is
used in parking districts 2, 3, and 4, where all retaillservice uses are exempted from parking
requirements. Any portion of an establishment over 2,500 sq. ft. or over a total aggregate
square footage of 10,000 sq. ft. will be subject to the existing parking requirement of 1:300.
Restaurant, outdoor cafe or bar: The first 1,500 square feet or 60 seats (up to a total aggregate
Alton Road Parking District No. 5
November 17,2010
Page 5 of 7
square footage of 5,000 square feet per development site) is proposed to be exempted from any
parking requirement. The logic is the same as for retaillservice uses except that the occupancy
is much higher per square foot in food and drink establishments. Any portion of an
establishment over 1,500 square feet or 60 seats (or over a total aggregate square footage of
5,000 sq. ft.) will be subject to the existing parking requirement of 1 space per 4 seats or 1
space per 60 square feet of space not used for seating.
Hotel, suites hotel, motel or motor lodqe: The proposed ordinance would require a minimum of
1 space per 2 units, which is half of the existing requirement of I space per unit. This is based
on the assumption that hotel guests generally do not need a car in this neighborhood, and that
most of the employees will access the site by walking, bicycling or transit.
Offices: The proposed minimum parking requirement for office space is the same as the
existing requirement (1 :400 and medical 1 :300). However, a reduction of 20% is available in
exchange for a voluntary covenant ensuring that there will be no reserved parking for individual
tenants.
Centralized parking: This option is available to non-residential development located near a
publicly accessible parking facility (public or private-owned), provided that a parking study
demonstrates that there are a sufficient number of parking spaces available to serve the subject
development. The proposed reduction in the minimum parking requirement is based upon
distance from the off-site facility: 30% for sites within 500 feet, 20% for sites within 1000 feet and
10% for sites within 1200 feet. This policy support the efficient use #of centralized parking
facilities and encourages customers to park their car once and walk to a variety of destinations
in the commercial district, rather than driving to multiple private parking lots.
Shared ~arkinq: Section 130-221 of the City code currently provides a parking reduction for
mixed-use developments based upon the day and time of peak parking demand for each type of
land use. However, it does not include residential uses and does not allow off-site parking.
Parking district no 5 would add residential uses to the shared parking calculation at a rate of
50% utilization for daytime weekdays, 70% utilization for daytime weekends, and 100%
utilization for nighttime. The proposed ordinance would also allow the shared parking spaces to
be located off-site within 600 feet.
Carpool and vanpool parking: The proposed ordinance would reduce the minimum parking
requirement by 3 parking spaces for every 1 parking space reserved for carpool or vanpool
vehicles registered with South Florida Commuter Services, not to exceed a reduction of more
than 10% of the off-street parking spaces that would otherwise be required. The property
manager must submit an annual report to the Planning Director documenting the
carpool/vanpool registration and ongoing participation by registered users. This option is limited
to non-residential uses, whereas the residential uses have the car-sharing option described
above.
Bicycle parkinn: The proposed ordinance would introduce minimum parking requirements for
bicycles, including short term spaces (bicycle racks) for customers and long term spaces for
employees and residents. The long term spaces would require more security such as being
located in a fenced area or inside the building. The bicycle parking requirements are based on
the LEED (Leadership in Energy and Environmental Design) standards for neighborhood
development. They are an important complement to the reduced vehicle parking requirements in
parking district no. 5. The Administration envisions these bicycle parking standards to be a
model for the entire city.
Alton Road Parking District No. 5
November 17,2010
Page 6 of 7
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, and estimated that the proposed Alton Road Parking
District No. 5 ordinance will have a direct fiscal impact on parking impact fee revenue of
approximately -$37,000 annually for existing retail and restaurant businesses that would no
longer be required to pay the annual fee-in-lieu of providing parking. In the future, there will be
new businesses that qualify for the parking exemption, thereby reducing potential future revenue
to the parking impact fee fund. However, this is expected to be more than offset by the incentive
that this ordinance provides for development of new businesses in the Alton Road corridor. New
construction and rehabilitation is expected to increase property tax and sales tax revenue to the
City. Reduced parking requirements in this ordinance are also expected to increase parking
revenue, especially in the 5th and Alton garage. Therefore, the long term net fiscal impact is
expected to be positive.
PLANNING BOARD ACTION
On September 28,201 0, the Planning Board held a public hearing on the proposed Alton Road
Parking District No. 5 ordinance and recommended approval, as amended, by a 5-0 vote.
ADMINISTRATION RECOMMENDATION
In view of the above analysis, the Administration recommends that the Mayor and City
Commission should approve the Administration's proposed ordinance on first reading and set a
second reading public hearing for the January , 201 1 after 5:00 PM.
JGM\JGG\ fk L JAM
T:\AGENDA\201O\November 17\Regular\Alton Rd Parking Dist #5 memo.doc
Alfon Road Parking Disfrict No. 5
November 17,2010
Page 7 of 7
Q b$i&$h.%~ &&CH Proposed Miami Beccch Parking District # 5 0
Parking District #5
Planning Board recommended Sept 28,2010
ORDINANCE NO.
AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF
THE CITY OF MIAMI BEACH, FLORIDA, AMENDING THE CODE
OF THE CITY OF MIAMI BEACH, FLORIDA, BY AMENDING
CHAPTER 130 OFF-STREET PARKING, ARTICLE II
"DISTRICTS; REQUIREMENTS," SECTION 130-31 "PARKING
DISTRICTS ESTABLISHED," CREATING A NEW PARKING
DISTRICT NO. 5, AND SECTION 130-33 "OFF-STREET
PARKING REQUIREMENTS FOR PARKING DISTRICTS NOS. 2,
3 AND 4," BY ADDING NEW PARKING REGULATIONS FOR
PARKING DISTRICT NO. 5, FOR PROPERTIES WITH A LOT
LINE ON ALTON ROAD FROM 5TH STREET TO DADE
BOULEVARD, INCLUDING A REDUCTION IN OFF-STREET
PARKING REQUIREMENTS FOR CERTAIN LAND USES AND
BICYCLE PARKING REQUIREMENTS; PROVIDING FOR
CODIFICATION; REPEALER; SEVERABILITY; AND AN
EFFECTIVE DATE.
WHEREAS, In the summer of 2006, the Historic Preservation Board initiated the
westward expansion of the Flamingo Park Local Historic District to the east right-of-way
line of Alton Road between 6 Street and 14 Street, and requested the Planning
Department to initiate a major planning study of the Alton Road corridor, including both
sides of the road between 5 Street and Michigan Avenue, to include an analysis and
evaluation of existing uses and conditions, historically significant properties, permitted
building heights, allowable FAR, parking conditions and requirements, the efficacy of
current zoning, and the character of the public right-of-way with regard to pedestrian
amenities, convenient means of transit, and quality of landscape.
WHEREAS, on January 16, 2008, the Mayor and City Commission approved
Ordinance No. 2008-3592, expanding the boundaries of the Flamingo Park Historic
District westward expansion to Alton Road between 8 Street and 14 Street; and on
January 28,2009, the Mayor and City Commission approved Ordinance No. 2008-3592,
expanding the boundaries of the Flamingo Park Historic District westward expansion to
Alton Road between 6 Street and 8 Street; and
WHEREAS, the Planning Department conducted an analysis of existing
conditions, issues and opportunities in the Alton Road corridor and held a community
planning workshop on August 20, 2008 to receive community input on land use, zoning,
business development, parking, transit and pedestrianlbicycle amenities; and
WHEREAS, on January 27, 2009, the Planning Department presented
preliminary findings and recommendations for the Alton Road Neighborhood Planning
Study to the Planning Board; and
Parking District #5
Planning Board recommended Sept 28,2010
WHEREAS, on February 26, 2009, the Planning Department and the Planning
Board held a second community planning workshop on the Alton Road Neighborhood
Planning Study to receive community input; and
WHEREAS, on April 21, 2009, May 26, 2009 August 25, 2009, and September
22, 2009, the Planning Board held additional detailed discussions on the proposed
zoning modifications and parking regulations for the Alton Road corridor, and
WHEREAS, on November 17, 2009 and April 27, 2010, the Planning Board
recommended approval of the proposed "Alton Road - Historic District Buffer Overlay"
district which is intended to achieve a more compatible relationship of scale and
massing between new development along the east side of the Alton Road corridor and
the adjoining residential neighborhoods, by promoting mixed-use development that
makes efficient use of parking, by minimizing the concentration of impacts from intense
retail and restaurant development and by encouraging smaller neighborhood-oriented
uses.
WHEREAS, the Alton Road corridor and its adjoining neighborhoods have one of
the lowest rates of automobile ownership in the city and one of the highest rates of
walking, bicycling and transit modes of transportation in the city; and
WHEREAS, the draft Transportation Element of the City of Miami Beach
Comprehensive Plan states that the City shall examine the economic, transportation
and recreational impact of strategically limiting parking in certain areas, as a means to
reinforce alternative modes of transportation; and the City shall continuously monitor
and update the parking requirements in the Land Development Regulations to result in
a better ratio of supply to demand which implements innovative parking strategies in
commercial areas to promote multimodalism; and
WHEREAS, the draft Transportation Element of the City of Miami Beach
Comprehensive Plan states that the City shall require all new developments to provide
secure short term and long term bicycle parking in the form of bicycle racks, bicycle
lockers, locked rooms or other appropriate enclosures as a way of reducing the demand
for automobile parking; and
WHEREAS, the City desires to reduce parking requirements with certain
conditions in the Alton Road corridor between !jth Street and Dade Blvd. in order to
encourage continuing high percentages of walking, bicycling and transit modes of
transportation, to minimize increases in traffic congestion, and to reduce the scale and
massing of new development to be more compatible with adjacent residential
neighborhoods.
NOW THEREFORE, BE IT ORDAINED BY THE MAYOR AND CITY
COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA:
Section 1. Chapter 130 of the City Code, entitled "Off-Street Parking," Article II,
"Districts; Requirements," is hereby amended as follows:
Parking District #5
Planning Board recommended Sept 28,2010
Sec. 130-31. Parking districts established.
(a) For the purposes of establishing off-street parking requirements, the city shall be
divided into few five parking districts.
(1 ) Parking district no. 7. Parking district no. 1 is that area not included
in parking districts nos. 2, 3, and-4-and 5.
(2) Parking district no. 2. Parking district no. 2 includes those properties
with a lot line on Lincoln Road from the west side of Washington Avenue
to the east side of Alton Road and those properties north of Lincoln Road
and south of 17th Street from the west side of Washington Avenue to the
east side of Lenox Court.
(3) Parking district no. 3. Parking district no. 3 includes those properties
with a lot line on Arthur Godfrey Road from the east side of Alton Road to
west side of Indian Creek Waterway.
(4) Parking district no. 4. Parking district no. 4 includes those properties
within the CD-2 and CD-3 commercial districts with a lot line on 71st
Street from the west side of Collins Avenue to the east side of Rue Notre
Dame, and those properties with a lot line on Normandy Drive from the
west side of the Indian Creek Waterway to the east side of Rue Notre
Dame.
(5) Parkinadistrictno.5. Parking district no. 5 includes those properties
with a lot line on Alton Road from 5 Street on the south to Dade Boulevard
on the north, with the exception of properties included in parkina district
no. 2..
(b) There shall be no off-street parking requirement for main or accessory uses
associated with buildings that existed prior to October 1, 1993, which are (i)
located within the architectural district, (ii) a contributing building within a local
historic district, or (iii) individually designated historic building. This provision shall
not apply to renovations and new additions to existing buildings which create or
add floor area to new construction which has a parking requirement.
Set. 130-33.Off-street parking requirements for parking districts nos. 2, 3, 4 and
5. -
(a) Except as otherwise provided in these land development regulations, when any building
or structure is erected or altered in parking districts nos. 2, 3 and 4 accessory off-street parking
spaces shall be provided for the building, structure or additional floor area as follows. There
shall be no off-street parking requirement for uses in this parking district except for those listed
below:
Parking District #5
Planning Board recommended Sept 28,2010
/b) Except as otherwise provided in these land development regulations, when anv buildinq
or structure is erected or altered in parking district no. 5, off-street automobile parkina spaces
shall be provided for the building, structure or additional floor area as follows. For uses not listed
below, the off-street parking requirement shall be the same as for parking district no. 1 in
section 130-32.
11) Apartment building and apartment-hotel:
a. 0.75 spaces per unit for units between 550 and 799 square feet;
b. 1.0 spaces per unit for units between 800 and 999 sauare feet;
c. 1.25 spaces per unit for units between 1000 and 1199 sauare feet;
d. 1.5 spaces per unit for units between 1200 and 1399 square feet;
e. 1.75 spaces per unit for units between 1400 and 1599 square feet;
f. 2.0 spaces per unit for units above 1600 sauare feet.
g. Designated Guest parkinq: Developments of 20 units or less shall have no
designated guest parking requirements. Multi-familv buildings and suites-hotels with
more than 20 units shall be required to provide supplemental designated guest
parking equal to ten percent of the required residential parking spaces.
h. Reserved parking: The minimum parking requirements listed above rnav be reduced
bv up to 20 percent in cases where the developer voluntarilv proffers a restrictive
covenant running with the land, form approved bv the Citv Attornev, ensuring that
residential parking spaces shall be shared bv all residents and shall not be reserved
for individual units. Whenever the end result of the reduction in required parking is to
provide one space per unit or less, then 100 percent of the parking spaces shall not
be reserved; and when there would be more than one parking space per unit, then
no more than one space per unit shall be reserved.
i. Car Sharing: The minimum parking requirements listed in a - a above mav be
reduced by 4 parking spaces for everv 1 parking space reserved for a vehicle owned
and operated bv an official car-share program sanctioned bv the Citv of Miami
Beach.
12) Retail stores, food stores, personal senlice establishments: There shall be no
parking requirement for individual establishments of 2,500 sauare feet or less. This may
apply to multiple establishments in a building UP to a total aggregate square footage of
10,000 square feet. For anv portion of an individual establishment over 2,500 sauare
feet or over a total aggregate square footage of 10.000 square feet, there shall be one
space for everv 300 sauare feet of floor area.
13) Restaurant, outdoor cafe or bar: There shall be no parkinn requirement for individual
establishments of 60 seats or less and 1,500 sauare feet or less. This mav applv to
multiple establishments in a building UP to a total aggregate square footage of 5,000
square feet. For anv portion of an individual establishment over 60 seats or 1500 square
feet or over a total aggregate square footage of 5,000 sauare feet, there shall be one
space per four seats or one space per 60 sauare feet of space not used for seatina.
Parking District #5
Planning Board recommended Sept 28,2010
(4) Hotel, suites hotel, motel or motor lodge: One space per 2 units; however, suites
hotel units as defined in section 142-1 105 that are greater than 550 square feet and that
contain full cooking facilities shall have the same parking reauirement as apartment
buildings in (1) above. Required parking for hotel accesson, uses shall be the same as
for (2) and (3) above:
Offices: 1 space per 400 square feet of floor area. However, medical offices and
clinics or offices located on the ground floor shall provide one space per 300 square feet
of floor area. The minimum parking requirements for office uses rnav be reduced bv UP
to 20 percent in cases where the developer voluntarilv proffers a restrictive covenant
running with the land, form approved bv the City Attornev, ensuring that the required
office parking spaces shall be shared bv all users in the building and shall not be
reserved for individual persons or tenants.
16) All non-residential uses: The minimum parking requirement mav be reduced as
follows:
a. Centralized parking: The minimum parking requirement mav be reduced for
properties located near a publiclv accessible off-street parking facilitv according
to the following formulas: up to 30 percent within 500 feet, UP to 20 percent within
1000 feet, UP to 10 percent within 1200 feet. Such reduction shall be subiect to a
finding bv the Planning Director based upon a parking studv provided bv the
applicant that documents the availabilitv of parkina spaces within the publicly
accessible parking facilitv to serve the residual demand resulting from the
reduced number of on-site parking spaces, and the availabilitv of safe pedestrian
access routes to the off-site parkinq supplv.
b. Shared parking: Mixed use development is encouraged to utilize the Shared
Parkinq calculations in Section 130-221. Parking for residential uses rnav be
included in the Shared Parkinq calculation at a rate of 50% for davtime
weekdavs, 70% for davtime weekends and 100% for all other times. Shared
Parking shall be designated bv appropriate signage and markings. The Shared
Parking facilitv rnav be located off-site within 600 feet of the uses served, subiect
to section 1 30-36.
c. CarpoolA/an~ool parking: The minimum parking requirement mav be reduced bv
3 parking spaces for even, I parking space reserved for carpool or vanpool
vehicles registered with South Florida Commuter Services, not to exceed a
reduction of more than 10% of the off-street parking spaces that would otherwise
be required. The propertv manager must submit an annual report to the Planning
Director documenting the car~ool/vanpool registration and ongoing participation
bv registered users.
17) Bicycle Parking. Short term and long term bicvcle parking shall be provided for new
construction or substantial rehabilitation over 1,000 sq. ft. according to the minimum
standards in the table below and the "Guidelines for the Design and Management of
Bicvcle Parking Facilities" available from the Planning Department.
a. Shod Term bicvcle ~arkinq (bicycle racks) serves people who leave their bicvcles
for relativelv short periods of time, tvpicallv for shopping, recreation, eatincl or
errands. Bicvcle racks should be located in a highlv visible location near the main
entrance to the use.
Parking District #5
Planning Board recommended Sept 28,201 0
b. Lonq Term bicvcle oarking includes facilities that provide a hiah level of security
such as bicvcle lockers, bicvcle cages and bicvcle stations. These facilities serve
people who frequentlv leave their bicvcles at the same location for the dav or
overnight.
TABLE INSET
c. Developers are encouraged to provide more than the minimum requirement as
appropriate for the particular uses in a building. The minimum required vehicular
parking shall be reduced bv: 1 space for everv 5 long term bicvcle parking
spaces and/or 1 space for everv 10 short term bicvcle parkina spaces, not to
exceed a total of 15 percent of the required vehicle parkina spaces.
d. Nonresidential uses that provide showers and changing facilities for bicvclists
shall be exempted from vehicle parking requirements at a rate of 2 vehicle
parking sDaces for each separate shower facilitv up to a maximum of 8 parking
spaces.
Minimum lona term bicvcle
parkina spaces (whichever is
greater)
1 per 10% of em~lovees or
2 for 5,000 sa ft and under
3 for 5,001-20,000 sa. ft
6 for 20.001 - 50,000 sa. ft.
I0 for 50,000 sa. ft. and over
I per 10% of emolovees or
2 for 5,000 sa ft and under
3 for 5,001-20.000 sa. ft
6 for 20,001 - 50.000 sa. ft.
10 for 50,000 sa. ft. and over
1 per 10% of emDlovees
1 per 10% of emplovees
1 per unit
Land use
Commercial non-retail
Retail -
Restaurants, bars, niahtclubs
Hotel -
Multifamilv residential
e. Short term bicvcle parking spaces may be provided in the public right-of-way,
subiect to design review, in situations where suitable space near the entrance to
the building or storefront is not available on private propertv. Bicvcle parking in
the public right-of-wav shall be subiect to review and approval bv the Public
Works Department and shall not encroach on the pedestrian throuahwav zone.
Minimum short term bicvcle
parking spaces (whichever is
greater)
4 per ~roiect or I per 10,000
sa. ft.
1 per business, 4 per ~roiect
or 1 per 5.000 sa. ft.
1 per 10 seats or occupants
2 per hotel or 1 per 10 rooms
4 per proiect or 1 per 10 units
Parking District #5
Planning Board recommended Sept 28,2010
SECTION 2. 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 3. 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 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 ,20-.
MAYOR
ATTEST:
CITY CLERK
APPROVED AS TO
FORM AND LANGUAGE
& FOR EXECUTION
First Reading:
Second Reading:
Verified by:
Richard Lorber, AICP, LEED
Acting Planning Director
T:\AGENDA\201O\November 17\Regular\Alton Rd Parking Dist 5 ord.doc
7
Parking District #5
Planning Board recommended Sept 28,2010
Attachment #I - map
F:\PLAN\$ALLWlton Road Study\parking\Parking Dist 5 ordinance draft updated.doc
COMMISSION ITEM SUMMARY
Condensed Title: I Pursuant to Miami Beach City Code Section I1 8-262, the review of a Design Review Board decision
(DRB File No. 22347) rendered on July 7,201 0, requested by the project applicant the Euroamerican
Group.
Key Intended Outcome Supported:
Not Applicable
Issue:
Pursuant to Miami Beach City Code Section 118-262, the applicant, the Euroamerican Group, is
requesting that the Mayor and City Commission review a decision of the Design Review Board pertaining
to DRB File No. 22347. Specifically, the applicant is appealing the condition of the DRB to reduce the
overall height of the southeast portion of the project (east wing fronting the Venetian Causeway) by a
minimum of one (1) floor.
Item Summary/Recommendation:
The Administration recommends that the City Commission deny the appeal.
Advisory Board Recommendation:
The Design Review Board approved the subject development project on July 6,201 0, subject to the
conditions of the Final Order, including Condition 3.a: 'The height of the southeast portion of the
project (east wing fronting the Venetian Causeway) shall be reduced by a minimum of one (1) floor,
subject to the review and approval of staff.
Financial Information:
I I
Source of I I Amount I Account I Approved
Funds:
The subject appeal is not expected to have any fiscal impact.
I I I - -
1 I
u
OBPl
City Clerk's Office Legislative Tracking:
Richard Lorber or Thomas Mooney
Sign-Offs:
Departmed Director Assistant City Mnager City Manager I
Financial Impact Summary:
4
Total
AM1 BEACH 459
I
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
FROM: Jorge M. Gonzalez, City Manager
DATE: November 17, 201 0
SUBJECT: A REQUEST BY THE EUROAMERICAN GROUP FOR THE MAYOR AND ClTY
COMMISSION OF THE ClTY OF MIAMI BEACH, FLORIDA, TO REVIEW A
DECISION OF THE DESIGN REVIEW BOARD, PURSUANT TO MIAMI BEACH
ClTY CODE SECTION 118-262, FOR THE PROPERTY LOCATED AT 31
VENETIAN WAY (DRB FILE NO. 22347).
ADMINISTRATION RECOMMENDATION
Deny the Appeal.
BACKGROUND
Pursuant to City Code Section I 18-262, the Euroamerican Group, as the project applicant, is
requesting a review of the Design Review Board (DRB) decision rendered on July 7, 2010
(DRB File No. 22347) pertaining to a development project at 31 Venetian Way. On
Se~tember 15, 201 0, the City Commission set a public hearing for November 17, 201 0 to
rev'iew the decision of the DRB.
The Design Review Section of the Miami Beach Code allows the applicant, or the city
manager on behalf of the city administration, or an affected person, Miami Design
Preservation League or Dade Heritage Trust to seek a review of any Design Review Board
Order by the City Commission. For purposes of this section, "affected person" shall mean
either (i) a person owning property within 375 feet of the applicant's project reviewed by the
board, or (ii) a person that appeared before the Design Review Board (directly or
represented by counsel), and whose appearance is confirmed in the record of the Design
Review Board's public hearing(s) for such project.
Pursuant to Section 11 8-262 of the Miami Beach Code, the review by the City Commission
is not a "de novo" hearing. It must be based upon the record of the hearing before the
Design Review Board. Furthermore, Section 118-262 (b) states the following:
In order to reverse, or remand for amendment, modification or rehearing any decision of the
Design Review Board, the City Commission shall find that the Design Review Board did not
do one of the following:
1) provide procedural due process;
2) observe essential requirements of law; or
3) base its decision upon substantial, competent evidence.
November 17, 2010
Commission Memorandum
Appeal of DRB File No. 22347
Page 2 of 3
In order to reverse or remand a decision of the DRB, a 517'~ vote of the City Commission
is required.
Section 1 18-262(a) requires the appellant to file with the City Clerk a written transcript of the
hearing before the Design Review Board two weeks before the scheduled public hearing on
the appeal. The transcript and associated material were transmitted to the Mayor and City
Commission.
ANALYSIS
On July 6,201 0, the applicant received final approval for a proposed development project at
the NE corner of Belle Isle. The subject project included the demolition of four (4) existing 3-
story buildings and the construction of two (2) new 5-story multifamily buildings with 178
units and 31 6 parking spaces. Residential units surround the perimeter of the 5-story parking
garage, with a loading dock and mechanical rooms located at the ground level of the west
elevation. Two tennis courts are proposed above the parking garage, along with private
roof-top terraces for many of the 5" level units facing Biscayne Bay. Most of the first level
units each have private terraces with individual access to the street or the rear of the site
along the Bay front. A public bay walk is also proposed along Biscayne Bay, with public
access along the west and east ends of the site from Island Avenue and Venetian Way to
the bay walk.
In addition to other conditions of approval, the following condition was included in the Final
Order as part of the DRB approval:
The height of the southeast portion of the project (east wing fronting the Venetian
Causeway) shall be reduced by a minimum of one (I) floor, subject to the review and
approval of staff.
As part of the review of the project, the DRB agreed with staffs analysis and
recommendation that the massing and height of the southern portion of the project (east
wing fronting the Venetian Causeway) should be reduced by one (1) full floor, in order to
create a transition from the ground level to the main 5-story building massing. As proposed,
the 5-story massing of the structure overwhelmed the low slung historicvenetian Causeway
bridges, which in addition to being locally designated, are listed on the National Register,
and designated an American Scenic Highway. Reducing the height of the structure will
mitigate the adverse impact of the large development project. The staff to the DRB has
determined that there are a number of ways in which the floor area of the fifth floor of this
structure at the southeast corner can be re-distributed to the main structure on the north side
of the site.
The DRB's review of the subject project was based upon the information and exhibits
submitted by the applicant, and the Board had before it the recommendation for approval
with proposed conditions presented by its professional staff in the form of a comprehensive
staff report, all of which constitute competent, substantial evidence in support of the
decision.
A review of the transcripts for the July 6, 2010 Design Review Board hearing on this matter
indicates that the DRB observed the essential requirements of law, made its determinations
based on substantial, competent evidence, and afforded all parties involved due process.
November 17, 2010
Commission Memorandum
Appeal of DRB File No. 22347
Page 3 of 3
Additionally, the Board held a public hearing during which members of the public were
afforded the opportunity to testify and present evidence.
The City Attorney will be providing a separate memorandum, which further addresses the
issues raised by the appellants counsel.
Based upon all of the competent, substantial evidence submitted, the Board determined that
the proposed condition requiring that the height of the southeast portion of the project (east
wing fronting the Venetian Causeway) be reduced by a minimum of one (1) floor would allow
the project to meet the Criteria for Design Review Approval.
CONCLUSION
Based upon the foregoing, the Administration recommends that the Mayor and City
Commission deny the subject appeal.
JMGIJGGIRGLST i!P- M
T:RGENDA\201O\November 17\Regular\DRB File No. 22347 -APPEAL MEM.docx
MIAMIBEACH
City of Miami Beach, 1700 Convention Center Drive, Miami Beach, Florida 33 139, www.miamibeachfl.gov
COMMISSION MEMORANDUM
TO: Mavor Matti Herrera Bower and Members of the City Commission
FROM: Jose Smith, City Attorney
Gary Held, First Assistant City A
CC: Jorge M. Gonzalez, City Manager
DATE: November 17, 2010
SUBJECT: DRB File No. 22347 Appeal, 31 Venetian Way- Euroamerican Group Inc.
This appeal challenges the Design Review Board's ("DRB") decision rendered July 7,201 0
that the height and massing of the eastern building in the new multifamily rental apartment
project at 31 Venetian Way must be reduced from five stories to four. This memorandum
responds to the Brief ("Brief') filed by the Appellant Euroamerican Group Inc. ("Appellant"),
served November 2, 2010. The Brief misstates relevant facts and applicable law, as
explained below. The DRB's decision should be affirmed.
I. Contrary to Appellant's mischaracterization of the record, the competent
substantial evidence shows that the Staff recommendation and DRB action were
based on an analysis of adopted design review criteria and justifications other
than the historic status of the Venetian Causeway.
Appellant incorrectly asserts that the DRB "invent[ed] a new criterion for design
review: a part of a project that is closest to a [sic] 'historic road' must be shorter than the
remainder of the project." Brief at p. I. Of course the DRB did no such thing. Planning
Department staff and the DRB reviewed the project based upon the adopted design review
criteria. Each of the five staff reports contains an analysis of the project as proposed prior to
each DRB meeting based upon each design review criterion as codified. See Planning
Department staff reports attached to the Brief at Tabs D (pages 2-5), F (pages 2-5), 1 (pages
3-5), K (pages 3-5), and N (pages 3-5). In addition, each staff report contains a section
called "Staff Analysis" and "Recommendation." As the introductory provision to the adopted
Design Review Criteria in section I 18-251 (a) states:
Memorandum to Mayor Bower and Members of the City Commission
Re: DRB File No. 22347 Appeal, 31 Venetian Way- Euroamerican Group Inc.
Date: November 17,2010
Page 2 of 9
Design review encompasses the examination of architectural drawings for
consistency with the criteria stated below, with regard to the aesthetics,
appearances, safety, and function of any new or existing structure and
physical attributes of the project in relation to the site, adjacent
structures and surrounding community.
Section 118-251 (a), Miami Beach City Code (bold added).
Planning Department staff and the DRB were concerned with the impact of the entire
project on both the Biscayne Bay and Venetian Causeway frontages, and the lower scale
neighborhood on the north half of Belle Isle. Both worked with the Appellant and its architect
over many meetings to reach a final decision approving the project without loss of floor area,
despite the required design reduction of one floor only on the eastern building. See
transcript of meeting on July 6, 2010, Tab 0 at 89 (DRB Board Member Clotilde Luce
recalled Preservation and Design Manager Thomas Mooney's comment from a prior
meeting on this project that the project's floor area would be preserved through a
redistribution to larger residential rental units.).
Staff's summary of the project, consistent throughout, compares an existing use of
120 residential apartment units in a three (3) story multiple building complex, on a site of
about 3.5 acres, with a proposed a 179 unit five (5) story complex that staff noted "effectively
broadsides Biscayne Bay". Staff Report, Tab D at 3.
In its report dated July 6, 2010, just prior to the meeting at which the project was
approved, staff included in its section on "Compliance with Design Review Criteria"
numerous references to "Staff Analysis and Concern No. 3."' Staff Report, Tab N at 3-5.
The Staff Analysis discusses the Planning Department staff concerns about the eastern
building's height and proposed reduction from five floors to four as follows:
Notwithstanding the significant progress [in addressing issues raised about
the project], however, staff continues to have some concerns with regard to
the design of the project. First, staff would continue to recommend that the
massing and height of the southern portion of the project (east wing fronting
the Venetian Causeway) be reduced by one (1) full floor, in order to create
1 "Concern No. 3" is actually a reference to Recommendation No. 3, at page 8, in the Staff Report.
464
Memorandum to Mayor Bower and Members of the City Commission
Re: DRB File No. 22347 Appeal, 31 Venetian Way- Euroamerican Group Inc.
Date: November 17,2010
Page 3 of 9
a transition from the ground level to the main 5-story building massing.
As presently designed, the 5-story massing still overwhelms the low
slung historic Venetian Causeway bridges, which in addition to being
locally designated, are listed on the National Register, and designated an
American Scenic Highway. Reducing the height of the structure would
help mitigate the adverse impact of the large development project. It
should also be noted that with this latest application, the number of
residential units has increased from 178 to 181. As indicated in previous
reports, there are a number of ways in which the floor area of the
structure at the southeast corner can be re-distributed to the main
structure on the north side of the site.
Staff Report, July 6, 2010, Tab N at 6 (bold added). As is readily and plainly apparent, the
first three bolded clauses in the above quoted paragraph, indicate reasons other than the
historic status of the Venetian Causeway that suggest the reduction in height from five to
four stories only in the eastern building should occur. To reiterate, these are:
(1) To "create a transition from the ground level to the main 5-story building
massing."
(2) The "5-story massing still overwhelms the low slung historicvenetian Causeway
bridges."
(3) "Reducing the height of the structure would help mitigate the adverse impact of
the large development project."
Therefore, it should be clear, that Appellants' incorrect assertion that the DRB
created a new criterion for buildings adjacent to historic roadways, is a false statement.
Adjacency alone to a road with historic status was clearly not a justification for this reduction.
Regarding historic status of the Venetian Causeway, the staff was clearly primarily referring
to the bridges on the Venetian Causeway, and their character was enhanced by the
roadway's historic designations. To say otherwise, distorts and misstates the record.
The Planning Department Staffs related recommendation, as contained in the July 6,
2010 report, is "The height of the southeast portion of the project (east wing fronting the
Venetian Causeway) shall be reduced by a minimum of one (1) floor, subject to the review
and approval of staff." The City Code authorizes the DRB to make decisions on applications
within its jurisdiction as follows:
Memorandum to Mayor Bower and Members of the City Commission
Re: DRB File No. 22347 Appeal, 31 Venetian Way- Euroamerican Group Inc.
Date: November 17,2010
Page 4 of 9
The board may require such changes in the plans and specifications, and
conditions, as in its judgment may be requisite and appropriate to the
maintenance of a high standard of architecture, as established by the
standards contained in these land development regulations and as specified
in the city's comprehensive plan and other specific plans adopted by the city
of pertaining to the areas identified in subsection 11 8-252(a).
Section 118-254(c), Miami Beach City Code.
The reduction in massing and height imposed by the DRB falls within the scope of
the "maintenance of a high standard of architecture, as established by the standards
contained in these land development regulations," which includes the adopted design review
criteria. A number of these criteria refer to the relationship of the building to adjacent
properties and the surrounding area, and criterion (1 2) specifically refers to massing, which
is what the reduction of one floor was intended to address:
(6) The proposed structure, andlor additions or modifications to an existing
structure, indicates a sensitivity to and is compatible with the environment
and adjacent structures, and enhances the appearance of the surrounding
properties.
(7) The design and layout of the proposed site plan, as well as all new and
existing buildings shall be reviewed so as to provide an efficient arrangement
of land uses. Particular attention shall be given to safety, crime prevention
and fire protection, relationship to the surrounding neighborhood, impact on
contiguous and adjacent buildings and lands, pedestrian sight lines and view
corridors.
(12) The proposed structure has an orientation and massing which is
sensitive to and compatible with the building site and surrounding area and
which creates or maintains important view corridor(s).
Section 1 18-251, Miami Beach City Code.
It should be clear, therefore, that the Planning Department staff, and the Design
Review Board were reviewing the proposed project, and imposing the condition of a one
floor reduction in the east building only, in accordance with the adopted Miami Beach design
review criteria.
Memorandum to Mayor Bower and Members of the City Commission
Re: DRB File No. 22347 Appeal, 31 Venetian Way- Euroamerican Group Inc.
Date: November 17,201 0
Page 5 of 9
2. Florida law on competent substantial evidence requires the City Commission to
recognize the Staff Analysis and Recommendation of Planning Staff as a sufficient
justification for the DRB's decision below.
The Commission should find, in accord with well settled Florida law, that the DRB's
condition was based on substantial competent evidence in the form of staff
recommendations, which were provided in the written Staff Reports, the testimony of staff at
the hearing, accompanied by other materials in the record below on the proposed design of
the project. City of Hialeah Gardens v. Miami-Dade Charter Foundation, Inc., 857 So.2d
202,204-05 (Fla. 3d DCA 2003) ("the Chief of Police, the Director of Public Works, and the
Chief Zoning Official, gave specific fact-based reasons for their recommendations that the
application be rejected. ") ; Metropolitan Dade County v. Sportacres Development Group, 698
So.2d 281, 282 (Fla. 3d DCA 1997) ("maps, reports and other information which, in
conjunction with the testimony of the neighbors, if believed by the Commission, constituted
competent substantial evidence."); Dade County v. United Resources, Inc., 374 So.2d 1046,
1050 (Fla. 3d DCA 1979) ("recommendations of professional staff'); Nomood-Nodand
Homeowner's AssJn v. Dade County, 51 1 So.2d 1009, 101 3 (Fla. 3d DCA 1 987) ("Dade
County Development Impact Committee report"); Metropolitan Dade County v. Fuller,
51 5 So.2d 1312, 1314 (Fla. 3d DCA 1987) ("staff recommendations").
Appellant argues, through its recitation of quotes from various cases concerning
Florida law on substantial competent evidence, Brief at pp. 16-1 8, that there was insufficient
substantial competent evidence in the record to support the DRB decision to reduce the
number of floors from five to four in the east building. Representative of these cases is
Jesus Fellowship, Inc. v, Miami-Dade County, 752 So.2d 708 (Fla. 3d DCA 2000). In Jesus
Fellowship, despite a staff recommendation of approval for a private school and day care
center with 524 students on the Church's 12.2 acre site, and approval by the County's
Zoning Appeals Board ("ZAB"), the County Commission on appeal from the decision denied
the appeal but imposed a 150 student cap. In reversing, the Third District Court of Appeal
Memorandum to Mayor Bower and Members of the City Commission
Re: DRB File No. 22347 Appeal, 31 Venetian Way- Euroamerican Group Inc.
Date: November 17,2010
Page 6 of 9
reviewed the record and found no evidence supporting the reduction in students. The
record did contain, however, staff recommendations, and other materials and testimony,
usually referred to as substantial competent evidence, but none supporting the reduction.
Thus, the quote, included in Appellant's Brief: "The mere presence in the record of [zoning
maps, the professional staff recommendations, aerial photographs, and testimony in
opposition] is not, however, sufficient. They must be or contain relevant valid evidence
which support the Commission's decision[.]" Jesus Fellowship, 752 So. 2d at 709[.]" The
point the Third District Court was making was that the substantial competent evidence in the
record needed to support the decision under review, in order for the Court to uphold the
decision based upon such evidence.
In this case on appeal before the City Commission, the staff recommendation and
evidence in the record support the imposition of a condition requiring a reduction of one floor
in the east building. The proposed plans themselves, which include the design drawings,
aerial photographs, and artists renderings, depict the relationship between the proposed
project and the surrounding buildings and neighborhood. As recommended by staff, these
documents in the record reflect the need for a "transition from the ground level to the main 5-
story building massing," that the proposed project's "5-story massing still overwhelms the low
slung historic Venetian Causeway bridges," and that "[rleducing the height of the structure
would help mitigate the adverse impact of the large development project.'' All of these
constitute substantial competent evidence supporting the decision of the DRB to impose the
condition at issue on appeal, thus satisfying the requirements of the Jesus Fellowship
decision and other relevant decisions raised by Appellant.
Memorandum to Mayor Bower and Members of the City Commission
Re: DRB File No. 22347 Appeal, 31 Venetian Way- Euroamerican Group Inc.
Date: November 17,2010
Page 7 of 9
3. Florida law does not prohibit the DRB from imposing a reduction in height and
massing when it determines the proposed project, even if permitted under
applicable zoning, is inconsistent with adopted design review rite ria.^
Appellant repeatedly argues that the Design Review Board did not have the legal
authority to impose a reduction of height and massing from that permitted in the applicable
zoning district under the City's land development regulations. In support of this argument,
Appellant cites City of Tampa v. City National Bank of Florida, 974 So.2d 408 (Fla. 2" DCA
2007). Brief at 15, 18, and 20. The City of Tampa case, however, does not support
Appellant's position, since the applicable Miami Beach ordinances specifically authorize the
DRB's action, and are different from the regulations involved in the Tampa dispute.
In the City of Tampa case, the Architectural Review Commission denied a certificate
of appropriateness for a twenty-four (24) story building, which was proposed adjacent to two
buildings built in the 19207s, the heights of which were eleven (1 1) and a two (2) stories
respectively. The Court reviewed the applicable City code provisions, and found that the
Commission was required to "consider the effect of the construction on not only the building
site but also on 'the relationship between such work and other buildings, structures or
objects on the landmark site or other property in the historic district."' 974 So.2d at 41 1.
But, the Court found, this obligation was qualified by language stating: "'In evaluating the
effect and the relationship, the [Commission] shall consider historical and architectural
significance, architectural style, design, arrangement, texture, materials and color.' Notably
lacking is any mention of height or mass of the proposed structure relative to others in the
neighborhood." Id (emphasis added). While the applicable criteria included a reference to
"Scale: height and width," the Second District Court concluded that the Tampa Commission
2 Appellant's argument El Brief at 16, that "if a design review board's decision is not
necessary for the public welfare, it violates the essential requirements of la w"... is an
overstated application of Florida law to this case. The cases from which the quotes In the
Brief arise involve the appropriate zoning designation for properties there at issue, or the
ability to use property at all. These cases do not apply to the subject facts, and hence the
quote and argument are simply inapplicable.
Memorandum to Mayor Bower and Members of the City Commission
Re: DRB File No. 22347 Appeal, 31 Venetian Way- Euroamerican Group Inc.
Date: November 17, 2010
Page 8 of 9
did not have authority to deny a project based upon incompatibility of the project's height
with surrounding properties. Finding the applicable regulations only "guidelines," the Court
concluded "Even if the guidelines as set out in [the code] were specific regulations, they
were never intended to conflict with or supersede the primary zoning designations." Id. at
413. The Court ultimately reversed the Commission's denial of the certificate of
appropriateness.
The City of Miami Beach regulations applicable to the Design Review Board's
evaluation and action on the Appellant's application and proposed project are obviously
different than those applicable to the City of Tampa case. First and foremost, the Miami
Beach Design Review Criteria are required criteria and not just guidelines. The Design
Review Board is specifically directed to consider these adopted criteria in its review of
projects, and to "require such changes in the plans and specifications, and conditions,"
necessary to bring the proposed projects coming before it into compliance with such criteria.
The Code provides:
The board may require such changes in the plans and specifications, and
conditions, as in its judgment may be requisite and appropriate to the
maintenance of a high standard of architecture, as established by the
standards contained in these land development regulations and as specified
in the city's comprehensive plan and other specific plans adopted by the city
of pertaining to the areas identified in subsection 118-252(a).
Section 1 18-254(c), Miami Beach City Code.
As stated above, the adopted Design Review Criteria, specifically include the
relationship of a proposed project to surrounding buildings and properties, and specifically
identify com~atibilitv in massing as criteria against which projects should be judged.
Accordingly, the Design Review Criteria are not inconsistent and do not conflict with the
zoning code, but are additional standards against which projects are evaluated, and must
comply. The reduction imposed by the Design Review Board, rather than being an action
Memorandum to Mayor Bower and Members of the City Commission
Re: DRB File No. 22347 Appeal, 31 Venetian Way- Euroamerican Group Inc.
Date: November 17,201 0
Page 9 of 9
beyond that authorized by the City Code, was in full compliance with the obligations and
authority imposed by the Design Review Board.
Argument that the Design Review Board's decision was not in compliance with the
essential requirements of law, also fail if the Board was acting in accord with the authority
granted to it under the Miami Beach City
CONCLUSION
Based upon the foregoing, the City Commission should affirm the decision of the
Design Review Board, and deny the appeal.
F:\atto\HELGVITIGATION\31 Venetian Way\Commission memo 11-10-2010.doc
3 Appellants' remaining arguments do not justify relief as they are not supported by and misstate
the record, or are misapplications of applicable law.
471
RESOLUTION NO.
A RESOLUTION OF THE MAYOR AND ClTY COMMISSION OF THE CITY OF
MlAMl BEACH, FLORIDA, [GRANTING OR DENYING] AN APPEAL
REQUEST BY THE EUROAMERICAN GROUP PERTAINING TO A DECISION
OF THE DESIGN REVIEW BOARD, PURSUANT TO MIAMI BEACH ClTY
CODE SECTION 118-262, FOR THE PROPERTY LOCATED AT 31 VENETIAN
WAY (DRB FILE NO. 22347).
WHEREAS, a process for review by the Mayor and City Commission of decisions
rendered by the Design Review Board when requested by an applicant or any affected person
has been established under Section 11 8-262 of the Miami Beach City Code; and
WHEREAS, pursuant to City Code Section 118-262, the Euroamerican Group is
requesting a review of the Design Review Board decision rendered on July 7, 2010, (DRB File
No. 22347) pertaining to a development project at 31 Venetian Way, which has been timely filed
for such review; and
WHEREAS, on July 6, 2010, the Design Review Board approved a request for the
construction of a new 5-story multifamily building, which will replace four (4) existing 3-story
buildings, to be demolished; and
WHEREAS, such Code section allows the applicant, or the city manager on behalf of
the city administration, or an affected person, Miami Design Preservation League or Dade
Heritage Trust to seek a review of any Design Review Board Order by the City Commission;
and
WHEREAS, pursuant to Section 118-262, the review by the City Commission is not a
"de novo" hearing; it must be based upon the record of the hearing before the Design Review
Board. Furthermore, Section 118-262 (b) provides: In order to reverse, or remand for
amendment, modification or rehearing any decision of the Design Review Board, the City
Commission shall find that the Design Review Board did not do one of the following: 1)provide
procedural due process; 2)observe essential requirements of law, or 3)base its decision upon
substantial, competent evidence; and
WHEREAS, in order to reverse or remand a decision of the Design Review Board, a
517'~ vote of the City Commission is required; and
WHEREAS, Section 118-262(a) requires the appellants to file with the City Clerk a
written transcript of the hearing before the Design Review Board two weeks before the
scheduled public hearing on the appeal; the transcript and associated material were transmitted
to the Mayor and City Commission via LTC; and
WHEREAS, on September 15, 2010, the City Commission set the hearing for this
appeal to be held on November 17, 2010, and the City Clerk was directed and did notice such
hearing; and
WHEREAS, on November 17, 2010 the City Commission heard the parties, and
pursuant to the argument given, the written materials submitted, and having been duly advised
in the premises determined that the July 6, 2010 decision of the Design Review Board [did or
did not] result in, respectively, I) a denial of due process, 2) a departure from the essential
requirements of law, nor 3) a decision that was not based upon substantial, competent
evidence; and
WHEREAS, on November 17, 2010 a motion was made by the City Commission to
[grant or deny] the appeal by the Euroamerican Group of the July 6, 2010 decision of the Design
Review Board pertaining to DRB File No. 22347; and
WHEREAS, the motion to [affirm or reverse] the decision of the Design Review Board
was made and seconded, and approved by a vote of
NOW THEREFORE BE IT RESOLVED THAT the Mayor and City Commission hereby
[grant or deny] the appeal filed by the Euroamerican Group and [reverse or affirm] the July 6,
2010 decision of the Design Review Board in file No. 22347.
PASSED AND ADOPTED, this day of , 2010.
ATTEST:
MAYOR
CITY CLERK
APPROVED AS TO FORM
& WUA&@FOR EXECUTION
Il/* /C6
DATED
T:WGENDA\201 O\Novernber I nRegular\DRB File No. 22347 -APPEAL RESO.docx
SUNDAY, OCTOBER 31,2010 I 29NE
--"- ----- ---- - -I-.------" -"+7-Ip-p---
d
9 MIAMIBEACH
CITY OF MIAMI BEACH k.4
NOTICE OF PUBLlC HEARING I
NOTICE IS HEREBY given that a public hearing will be held by the City Commission of the
City of Miami Beach, in the Commission Chambers, 3rd floor, City Hall, 1700 Convention
CenJqr Drive, Miami Beach, Florida, on Wednesday, November 17, 2010 at 10:20 A.M.
Pursuant To Miami Beach City Code Section 118-262 To Review A Design Review Board
Decision, Filed By The EuroAmerican Group, For The Property Located At 31 Venetian Way
(DRB File No. 22347). 9 .. .@
Inquiries may be directeddto the'PfaQnipg . * De~art~enfaZ (305) 673-7550.
INTERESTED PARTIES ar~invitedtoa&eatafthtstsmeeting, or be represented by an agent,
or to express their views in-writing kidcjressed-to the City Commission, c/o the City Clerk,
1700 Convention Center Drive, 7sY. Floar, CftyHall, Memi Beach, Florida 331 39. This meeting
may be opened and cbntinued an$, underkuc~eircumstances additional legal notice would
not be provided. -
a > -. _T+ - Robert E. Parcher - .,, - :i *
I ., City Clerk -. City of Miami Beach
Pursuant tosection 286.0105, Fla. Stat,, the City hereby advises the public that: if a person 1 decides:t@.appeal any decision made by the City Commission with respect to any matter
considered-tit 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 notice does 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, andlor any accommodation to review any document
or participate in any city-sponsored proceeding, please contact (305) 604-2489 (voice),
(305) 673-72180 five days in advance to initiate your request. TTY users may also
call 71 1 (Florida Relay Service). A'p # 635
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 Syanna, LLC., Inc. for the lease of approximately 2,216 sf of City-owned property at 22 Washington Avenue for an outdoor
cafe, for an initial term of five years, with an option to renew for an additional four years and 364 days; waiving by 517'~ vote the competitive
bidding and appraisal requirements.
Key Intended Outcome Supported:
Increase resident satisfaction with the level of services and facilities.
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. The Tenant's
request to Lease 22 Washington Avenue supports the Survey's findings.
( Should the City approve the lease agreement? I
Item SummarylRecommendation:
I PUBLIC HEARING
The City has received an offer from Syanna, LLC.,(Syanna) to lease a City-owned 2,216 square foot vacant parcel located at 22
Washington Avenue (Subject or City-owned Parcel), which is adjacent and east of 816 Commerce Street, a privately owned two-story
commercial building. The City-owned parcel is a remaining portion of an undeveloped platted lot which is the residual lot in connection with
the expansion of Washington Avenue. Due to its limited size and shape, the property serves little more than to provide access to 816
Commerce Street. The proposal to lease the space is from a restaurateur who proposes to place tables and chairs on the City-owned site
to supplement the interior seating in the adjacent, privately-owned restaurant. Previously, in 2006, the City Commission approved a Lease
Agreement with Manpriya, Inc. for use of the same site, and the lease was fully executed; however, the project was never developed. In
2009, the City Commission approved a Lease Agreement with Moon Thai South Beach, Inc., for use of the site as an out-door cafe. The
financial lease terms approved were substantially the same as a previous lease agreement, with an initial base rent of $25 per square foot
or 3% of sales. A list of operational conditions were recommended by the local neighborhood association and subsequently approved by
the City Commission and incorporated into the lease. As had occurred previously, the proposed tenant failed to develop the site for its
intended use and the lease terminated for non-payment of rent.
The proposed Lease with Syanna provides for an initial term of five (5) years with one renewal option term for four (4) years and 364 days.
Given the extent of Syanna's proposed investment to improve the City's property, the Administration is recommending an eight (8) month
rent abatement period upon commencement of the proposed lease term, which will allow the Tenant time to develop the site, start up its
operations, and establish cash flow in order to start remitting rent. The total value of the proposed lease payments during the initial five-year
period is $269,613.34. Rent during the renewal term will be subject to a review of Syanna's annual operating results, upon which a
determination will be made whether to charge a percentage of gross receipts or to continue to assess a fixed annual rent to be escalated
annually based on CPI or other acceptable indices. At no time will the base rent during the renewal period be less than $35 per square
foot. The balance of the terms and conditions, including but not limited to, limitations on use, plan approvals and hours of operation, are the
same as those previously approved for the Moon Thai Lease following extensive community input.
Section 82-37 of the Miami Beach City Code, governing the salellease of public property for a term of ten (1 0) 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 competitive bidding, by 517th~ vote of the Mayor and City Commission.
At its November 3,201 0 meeting, the F&CPC discussed and recommended approval of the proposed lease agreement, said lease having
an initial term 5 years, with an option to renew for 4 years and 364 days at the City's sole discretion, with the operational conditions
previously approved for the site.
I I
Advisory Board Recommendation: 1 Finance and Citywide Projects Committee: November 3, 2010.
I Financial Impact summary: '
I
Financial Information:
I I
City Clerk's Office Legislative Tracking: I Anna Parekh, Ext 7260
BEACH 475
Source of
Funds: nla
Amount
NIA 1
Account
MIAMIBEACH
City of Miami Beach, 1700 Convention Center Drive, Miami Beach, Florida 331 39, www.rniamibeachfl.gov
COMMISSION MEMORANDUM
of the City Commission
V
DATE: November 17, 201 0 PUBLIC HEARING
SUBJECT: A RESOLUTION OF THE MAYOR AND ClTY COMMISSION OF THE ClTY OF
MlAMl BEACH, FLORIDA, APPROVING, FOLLOWING A DULY NOTICED
PUBLIC HEARING, A LEASE AGREEMENT BETWEEN THE ClTY AND SYANNA,
LLC. (TENANT), FOR THE LEASE OF APPROXIMATELY 2,216 SQUARE FEET
OF CITY-OWNED PROPERTY, LOCATED AT 22 WASHINGTON AVENUE, MlAMl
BEACH, FLORIDA, FOR THE PURPOSE OF AN OUTDOOR CAFE ASSOCIATED
WlTH THE RESTAURANT TO BE OPERATED AT 816 COMMERCE STREET,
WHICH IS DIRECTLY ADJACENT TO AND WEST OF THE SUBJECT CITY
PROPERTY; SAID LEASE HAVING AN INITIAL TERM OF FIVE YEARS, WlTH AN
OPTION TO RENEW FOR FOUR YEARS AND 364 DAYS, AT THE CITY'S SOLE
DISCRETION; AND WAIVING BY 517THS VOTE, THE COMPETITIVE BIDDING
AND APPRAISAL REQUIREMENTS, AS REQUIRED BY SECTION 82-39 OF THE
MlAMl BEACH ClTY CODE.
ADMINISTRATION RECOMMENDATION
Adopt the Resolution.
KEY INTENDED OUTCOMES SUPPORTED
To ensure well-maintained facilities.
BACKGROUND
The Citv has received an offer to lease a Citv-owned 2.216 square foot vacant arce el located at
22 ~aihin~ton Avenue, (Subject or city-owned parcel), which is adjacent and east of 816
Commerce Street, a privately owned two-story commercial building. The City-owned parcel is a
remaining portion of an undeveloped platted lot which is the residual lot in connection with the
expansion of Washington Avenue. Due to its limited size and shape, the property serves little
more than to provide access to 816 Commerce Street. The proposal to lease the space is from
a restaurateur who proposes to place tables and chairs on the City-owned site to supplement
the interior seating in the adjacent, privately-owned restaurant.
The City has been approached by other restaurant operators in the past regarding the use of
the site. In 2006, the City Commission approved a Lease Agreement with Manpriya, Inc. for use
of the site, and the lease was fully executed; however, the project was never developed. In
2009, the City Commission approved a Lease Agreement with Moon Thai South Beach, Inc., for
use of the site as an out-door cafe. The financial lease terms approved were substantially the
Commission Memo 22 Washington Lease Agreement
November 17,2010
Page 2 of 4
same as a previous lease agreement, with an initial base rent of $25 per square foot or 3% of
sales. A list of operational conditions were recommended by the local neighborhood
association and subsequently approved by the City Commission and incorporated into the
lease. As had occurred previously, the proposed tenant failed to develop the site for its
intended use and the lease terminated for non-payment of rent.
ANALYSIS
This latest offer to lease the subject parcel comes from Syanna, LLC, (Syanna or Tenant), who
entered into a 10-year lease at 816 Commerce Street in April, 2010, to establish a high-end
eclectic restaurant specializing in international cuisine. Syanna's managing principal, Symcha
Zilberman, has a food and beverage background, having owned and operated two 120-seat
restaurants in his native Venezuela, a French restaurantlbar and a deli. Syanna is investing
approximately $800,000 to build out the interior space, which accommodates 45 (+I-) seats, and
is planning an additional $80,000 investment to landscape and improve the City-owned parcel to
accommodate outdoor seating for an additional 46 seats, pursuant to the site plan attached,
should the lease be approved. The Tenant's current preliminary plans have been developed to
generally conform to the site plan submitted by Moon Thai (the previous tenant), which was
approved by the Planning Department. Due to the landscaping and hardscape requirements,
and his proposed plan to address these requirements, the Tenant's usable space for tables and
chairs is approximately 50% of the entire parcel. Any change to the site plan to add additional
tabledchairs would require a lease amendment. In light of the prospective tenant's investment,
they had requested a Ismonth rent abatement, and a reduced price per square foot.
Financial Terms
In order to develop a recommendation regarding this new lease proposal, staff obtained an
appraisal for the site prepared by Bondarenko Associates. However, the appraisal found no
comparables as there are no other outdoor seating areas in the vicinity. The subject site is not
a sidewalk cafe, and therefore, current sidewalk cafe fees are not a reasonable market
comparable.
Based on the foregoing, the Administration has been able to negotiate the following proposed
lease terms:
Given the extent of Syanna's proposed investment to improve the City's property, the
Administration is recommending an eight (8) month rent abatement period upon
commencement of the proposed lease term, which will allow the Tenant time to develop the site,
start up its operations, and establish cash flow in order start remitting rent. This term
acknowledges that permitting cannot occur until a lease has been executed, and as a result, the
site improvements are likely not to be completed for at least two months. The total value of the
Proposal Terms:
Lease Term
Renewal Option
Area
Proposed Rent (initial term, assuming Nov 18'"
commencement date)
Year 1:
Year 2:
Years 3-5:
Security Deposit
5 Years
1 @ 4 years 364 days
2,216 total square feet
$20.00/sf
$25/sf
$30/sf
3 months' security deposit $1 1,089
Commission Memo 22 Washington Lease Agreement
November 17, 2010
Page 3 of 4
proposed lease payments during the initial five-year period is $269,613.34 (Year 1 rent
payments, including the abatement will be $14,773.34; Year 2 rent payments will be $55,400;
Years 3, 4, and 5 rent payments will be $66,480 each year). Rent during the renewal term will
be subject to a review of the Tenant's annual operating results, upon which a determination will
be made whether to charge the Tenant a percentage of gross receipts or to continue to assess
a fixed annual rent to be escalated annually based on CPI or other acceptable indices. At no
time will the base rent during the renewal period be less than $35 per square foot.
Operational Conditions
As previously noted, during discussions with Moon Thai, substantial input was received from the
community regarding certain conditions they wished to have included in the lease. These
included, among other things, not permitting speakers or TVs in the outdoor cafe area; limiting
delivery, valet, take-out, etc. operations to Commerce Street (not on Washington Avenue); no
Special Event permits to be allowed; no outdoor bar counter, and a limit on the hours of
operations.
In addition to the rent terms negotiated with Syanna, the City has negotiated the same operating
termslconditions for this lease, as included with Moon Thai, as follows:
1) Tenant, at its sole cost and expense, will develop the City's property into the
aforementioned outdoor cafe, and demolish and remove any improvements at Lease
termination (at the City's discretion);
2) Tenant agrees to use the City's property solely as an outdoor cafe to serve the patrons
and guests of the adjoining restaurant at 816 Commerce Street. Furthermore, Tenant
agrees not to place any speakers in or around the Property andlor attach any speakers
to the exterior of the restaurant building at 816 Commerce Street. The Planning
Department analysis dated March 16, 2006 supports such use of the City's parcel and
recommends the condition of use as stated above. The Planning Department condition
of use is consistent with expressed City Commission concerns relating to the previous
leases on this property and has been incorporated in order to mitigate those concerns;
3) Syanna must obtain approvals from the Planning Department and the City
Administration in the design and layout of the outdoor cafe pavers, tables, chairs and
umbrellas;
4) In addition to the above-referenced security deposit, Syanna agrees to provide a
performance bond, or other similar instrument (e.g. irrevocable letter of credit, surety
bond, etc.) acceptable to the City, in an amount equal to the estimated costs to construct
the proposed improvements;
5) Any take-out, valet, taxi or sidewalk cafe must only utilize Commerce Street; these
activities will not be allowed on Washington Avenue; deliveries to the business must be
made from the alley south of the business.
6) No televisions will be permitted to be part of the outdoor cafe;
7) There shall be no bar counter allowed outside. Liquor and food operations involving the
outdoor cafe shall only be done in conjunction with the adjacent restaurant operations
and only when the interior kitchen is operational;
8) Tenant shall be permitted to apply for one (1) special event permit, (if needed), for the
sole and express purpose of hosting a grand opening event for the restaurant. At no time
thereafter, shall the Tenant be allowed to apply for a special events permit for the
Demised Premises;
9) Tenant's operation will not interfere with pedestrian traffic;
Commission Memo 22 Washington Lease Agreement
November 17, 2010
Page 4 of 4
10)Tenant's hours of operation are currently established as follows: Sunday through
Thursday 11:30am to 11:OOpm; Friday through Saturday 11 :30am to midnight.
11) No bussing stations shall be permitted in the outdoor cafe area.
At the November 3, 2010, meeting of the Finance and Citywide Projects Committee (FCWPC),
staff informed the Committee that the South of Fifth Street Neighborhood Association (SOFNA)
was notified of the current Lease proposal and that certain concerns were raised by SOFNA
members regarding Syanna's adherence to conditions previously requested by SOFNA. Staff
confirmed that all conditions imposed on the previous tenants have been incorporated into the
current Lease terms. The FCWPC recommended approval of the Lease terms as proposed,
subject to a meeting between Syanna and SOFNA, to occur prior to the Lease being presented
to Commission for approval. That meeting with representatives from SOFNA, the prospective
Tenant and City staff occurred on November 9, 2010. SOFNA was supportive of the concept
and only had one significant concern regarding the size of the Tenant's proposed umbrellas, as
well as a welcomed suggestion to stage deliveries from the kitchen entrance located in the alley
on the south side of 816 Commerce Street. The issue with the umbrellas, which currently do not
conform to Planning requirements, are subject to review and direction from Planning as a
condition of the lease.
In addition, and in response to concerns from the residents, additional operating conditions have
been delineated and are included in the lease (attached) as Exhibit B. These mirror similar
restrictions for sidewalk cafes on public rights-of-way, and should present no operational issues
for the new tenant. The hours of operation were discussed and concerns regarding noise were
raised. At present, operating hours end at midnight on Friday and Saturday. While speakers,
TV's or live entertainment are not permitted in the lease area, crowd noise remains a concern.
As the hours are comparable to nearby businesses, they will remain as proposed. However, the
business has been advised of the City's noise ordinance, and the lease.
CONCLUSION
Based on the unique disposition of this undeveloped parcel of land, and its limited use due to
the size and location, it has been determined that the parcel would not be subject to public
bidding as it could only be used with any functionality by the adjacent property.
The Administration therefore recommends in favor of finalizing the proposed Lease with
Syanna, LLC., for use of the Demised Premises, located at 22 Washington Avenue, said Lease
having an initial term of five (5) years, with an option to renew for four (4) years and three
hundred and sixty four (364) days at the City's sole discretion, incorporating the previously
referenced financial terms and operational conditions; and hereby waiving by 517th~ vote the
competitive bidding and appraisal requirements as required by Section 82-39 of the Miami
Beach City Code.
JMG\HMF\AP\KOB
Attachments
T:MGENDA\2010Wovember 7 7\RegulaASyanna Lease Mem.doc
RESOLUTION NO.
A RESOLUTION OF THE MAYOR AND ClTY COMMISSION OF THE CITY OF
MlAMl BEACH, FLORIDA, APPROVING, FOLLOWING A DULY NOTICED
PUBLIC HEARING, A LEASE AGREEMENT BETWEEN THE CITY AND
SYANNA, LLC. (TENANT), FOR THE LEASE OF APPROXIMATELY 2216
SQUARE FEET OF CITY OWNED PROPERTY, LOCATED AT 22 WASHINGTON
AVENUE, MlAMl BEACH, FLORIDA, FOR THE PURPOSE OF AN OUTDOOR
CAFE ASSOCIATED WlTH THE RESTAURANT TO BE OPERATED BY THE
TENANT AT 816 COMMERCE STREET, WHICH IS DIRECTLY ADJACENT TO
AND WEST OF THE SUBJECT ClTY PROPERTY; SAID LEASE HAVING AN
INITIAL TERM OF FIVE YEARS, WlTH AN OPTION TO RENEW FOR FOUR
YEARS AND 364 DAYS, AT THE CITY'S SOLE DISCRETION; FURTHER
WAIVING BY 517THS VOTE, THE COMPETITIVE BIDDING AND APPRAISAL
REQUIREMENTS, AS REQUIRED BY SECTION 82-39 OF THE MlAMl BEACH
ClTY CODE.
WHEREAS, the City and Syanna, LLC. have negotiated a five (5) year lease, with an option
to renew for an additional four (4) years and three hundred sixty four (364) days, at the City's sole
discretion, for the use of approximately 2,216 square feet of vacant City-owned property located at
22 Washington Avenue for an outdoor cafe associated with the Tenant's operation of a restaurant
located at 816 Commerce Street, (which is directly adjacent to and west of the Property); and
WHEREAS, 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, 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 and appraisal requirements, by 517th~ vote of the City Commission for leases of City Land,
upon a finding by the Mayor and City Commission that the public interest would be served by
waiving such conditions, and the Administration would hereby recommend that the Mayor and City
Commission approve said waiver; and
WHEREAS, on November 3, 2010, the Finance and Citywide Projects Committee
recommended approval of the proposed Lease Agreement, subject to the Tenant scheduling a
meeting to review its proposed site plan with the South of Fifth Neighborhood Association prior to
approval of the Lease Agreement by the Mayor and City Commission.
NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND ClTY COMMISSION
OF THE ClTY 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 Syanna, LLC.,
(Tenant) for use of approximately 2,216 square feet of City-owned property, located at 22
Washington Avenue, Miami Beach, Florida, for the purpose of an outdoor cafe associated with
restaurant to be operated by the Tenant at 81 6 Commerce Street, which is directly adjacent to and
west of the subject City property; said lease having an initial term of five (5) years, with an option to
renew for four years and 364 days, at the City's sole discretion; and, further waiving by 517th~ vote,
the competitive bidding and appraisal requirements, as required by Section 82-39 of the Miami
Beach City Code; authorizing the Mayor and City Clerk to execute the Lease Agreement.
PASSED and ADOPTED this 17th day of November, 201 0.
ATTEST:
Robert Parcher, CITY CLERK Matti Herrera-Bower, MAYOR
JMG\HMF\AP\KOB
T:MGENDA\2010\Noveber 17\Regular\Syanna Lease Res.doc
APPROVED AS TO
FORM & LANGUAGE
& FOR EXECUTION
I
LEASE AGREEMENT
THIS LEASE AGREEMENT, made this day of ,201 0, by and between the
CITY OF MIAMI BEACH, a Florida municipal corporation, (hereinafter referred to as "City"), and
SYANNA, LLC., a Florida Limited Liability corporation, (hereinafter referred to as "Tenant").
1. Demised Premises.
The City, 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", located at 22 Washington Avenue,
Miami Beach, Florida 331 39, and more fully described as follows:
Approximately two thousand eighty (2,216) square feet of unimproved land. Such
Demised Premises are specified in Exhibit A, which is hereby made a part of this
Lease Agreement (the Lease or the Agreement).
2. Term.
2.1. Tenant shall be entitled to have and to hold the Demised Premises for an initial term of
five (5) years, commencing on the I eth day of November, 201 0 (Commencement Date),
and ending on the 17'~ day of November. 2015.
2.2. The City, at its sole discretion, may grant Tenant an option to renew Agreement for one
additional term of four (4) years and 364 days. In the event Tenant wishes to request
said renewal option, Tenant shall communicate said request, in writing, to the City at
least 180 days prior to the end of the initial term.
3. - Rent.
3.1 Base Rent:
Base Rent for the Demised Premises during the initial term shall begin to accrue as Julv
18'~. 201 1 (the Rent Commencement Date), and shall be based upon the total leasable
space of 2,216 square feet as follows:
3.1.2 Base Rent shall be due and payable on the first day of each month
throughout the Term of this Agreement.
3.1.3 Notwithstanding anything in this Section 3 or in the Agreement, the City
reserves the right to re-negotiate the Base Rent amount concurrent with
Tenant's right to exercise, and City's approval (if at all) of, the renewal term.
Total Annual Rent
$14,773.34
$55,400.00
$66,480.00
$66,400.00
$66,400.00
3.2 Latepayment.
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 Landlord's behalf to enforce this
Section shall not constitute a waiver of this provision with respect to future accruals of
past due rent. There will be a late charge of $50.00 for any payments submitted after the
due date.
Base Rent per
Square Foot
$20.00
$25.00
$30.00
$30.00
$30.00
Year
Year 1
Year 2
Year 3
Year 4
Year 5
3.3 Sales and Use Tax.
It is also understood that Tenant shall also include and forward to the City any and all
additional sums for all applicable sales and use tax, now or hereafter prescribed by
State, Federal or local law, and now described by Florida Statute 212.031. It is the City's
intent that it is to receive all payments due from Tenant as net of such Florida State
Sales and Use Tax.
Rent
Commencement
June 18,201 1
July 18, 201 1
July 18, 2012
July 18, 201 3
July 18,2014
3.4 Location for Payments.
All rents or other payments due hereunder shall be paid to the City of Miami Beach at
the following address:
City of Miami Beach
Finance Department
C/O Revenue Supervisor
1700 Convention Center Drive
Miami Beach, Florida 33139
4. MAINTENANCE AND EXAMINATION OF RECORDS.
Tenant shall maintain current, accurate, and complete financial records on an accrual basis of
accounting related to its operations pursuant to this Agreement, including such records and
accounting related to the restaurant operation at 816 Commerce Street. Systems and
procedures used to maintain these records shall include a system of internal controls and all
accounting records shall be maintained in accordance with generally accepted accounting
principles and shall be open to inspection and audit by the City Manager or his designee upon
reasonable prior request and during normal business hours. Such records and accounts shall
include a breakdown of gross receipts, expenses, and profit and loss statements, and such
records shall be maintained as would be required by an independent CPA in order to audit a
statement of annual gross receipts and profit and loss statement pursuant to generally
accepted accounting principles.
A monthly report of gross receipts must be submitted to the City, through the Finance
Department's Revenue Manager, to be received no later than thirty (30) days after the close of
each month.
5. INSPECTION AND AUDIT.
Tenant shall maintain its financial records pertaining to its operation pursuant to this Agreement
and including the restaurant operation at 816 Commerce Street for a period of three (3) years
after the conclusion of the initial term, or (if approved) the last renewal term, and such records
shall be open and available to the City Manager or his designee, as deemed necessary by the
City Manager or his designee. Tenant shall maintain all such records at its principal office,
currently located at 816 Commerce Street, Miami Beach, Florida, 331 39 or, if moved to another
location, all such records shall be relocated, at Tenant's expense, to a location within the City
of Miami Beach, within ten (1 0) days' written notice from the City Manager or his designee that
the City desires to review said records.
Tenant shall submit at the end of each Lease year and in any event no later that June 30th of
each year, an Annual Statement of Gross Receipts, (including the restaurant at 816 Commerce
Street), in a form consistent with generally accepted accounting principles. Additionally, such
Statement shall be accompanied by a report from an independent CPA firm.
6. TAXES, ASSESSMENTS, AND UTILITIES.
6.1 Tenant agrees to and shall pay before delinquency all taxes (including but not limited to
Resort Taxes) and assessments of any kind assessed or levied upon Tenant by reason
of this Agreement or by reason of the business or other activities and operations of
Tenant upon or in connection with the Demised Premises andlor the adjoining
restaurant at 81 6 Commerce Street.
Tenant shall also pay for any fees imposed by law for licenses or permits for any
business, activities, or operations of Tenant upon the Demised Premises andlor the
adjoining ground level restaurant at 816 Commerce Street, and shall maintain same
current and in good standing throughout the Term of this Agreement.
6.2 Utilities.
The City shall not be responsible for providing electrical or water service, or any and all
other utilities to andlor for, andlor in connection with, the Demised Premises.
Requests for installation of electrical, water and lor any and all other utilities shall be
submitted in writing to the City Manager or his designee. Installation and connection of
any and all utilities, as and if approved by the City, will be performed at Tenant's sole
cost and expense.
6.3 Procedure If Ad Valorem Taxes Assessed.
During the term of this Agreement, Tenant shall be solely responsible for all taxes of
whatever nature lawfully levied upon or assessed against the Demised Premises and
improvements, sales, or operations thereon, including but not limited to, Ad Valorem
taxes.
Security Deposit.
7.1 On or prior to the Commencement Date, Tenant shall to pay the City a Security Deposit,
in the sum of eleven thousand eighty nine dollars and 001100 ($11,089.00). Said
Security Deposit is to ensure the full and faithful performance by the Tenant of each and
every term, covenant and condition of this Agreement. In the event that Tenant defaults
in respect of any of the terms, provisions, covenants and conditions of this Agreement,
including but not limited to, the payment of any rent, the City may use, apply or retain
the whole or any part of the Security Deposit for the payment of such rents in default or
any other sum which the City may expend or be required to expend by reason of the
Tenant's default, including any damages or deficiency in the re-letting of the Demised
Premises, whether such damages or deficiency may accrue or after summary
proceedings or other re-entry by City.
7.2 In the event that the Tenant shall fully and faithfully comply with all of the terms,
provisions, covenants and conditions of this Agreement, the Security Deposit or any
balance thereof shall be returned to the Tenant, without interest, upon the expiration of
the Agreement and peaceful surrender of the Demised Premises.
7.3 City shall not be required to keep the Security Deposit in a segregated account and the
Security Deposit may be commingled with other funds of City and in no event shall the
Tenant be entitled to any interest on the Security Deposit.
7.4 In the event of a bona fide sale of the Demised Premises, as delineated in this
Agreement, the City shall have the right to transfer the Security Deposit to the purchaser
for the benefit of the Tenant and the City shall be considered by the Tenant free from all
liability for the return of such Security Deposit, and the Tenant agrees to look to the new
ownerllandlord solely for the return of the Security Deposit, if such Security Deposit is
actually transferred, and it is agreed that this shall apply to every transfer or assignment
made of the Security Deposit to any new ownerllandlord.
It is expressly understood that the issuance of a warrant and the lawful re-entry to the
Demised Premises by the City for any default on the part of the Tenant, prior to the
expiration of the term of this Agreement, shall not be deemed such termination of this
Agreement as to entitle the Tenant to recovery of the Security Deposit and the Security
Deposit shall be retained and remain the possession of the City.
8. Use and Possession of Demised Premises.
8.1 The Demised Premises shall be used by the Tenant solely as an outdoor cafe to serve
the patrons and guests of Tenant's adjoining restaurant at 816 Commerce Street. The
outdoor cafe shall have days and hours of operation from Sunday through Thursday
commencing on 11 :30 a.m., and ending no later than 11 :00 p.m., and Friday through
Saturday, commencing on 11:30 a.m., and ending no later than midnight.
Notwithstanding the preceding hours of operation, the outdoor cafe on the Demised
Premises shall only be open when the restaurant at 816 Commerce Street is open for
business (and, conversely, shall be closed when the restaurant is closed).
8.2 Tenant and owner of the restaurant at 816 Commerce Street shall at all times
throughout the Term of the Agreement be one and the same and cannot exist
independently of each other. Tenant acknowledges and agrees that its use of the
Demised Premises shall be, and remain at all times throughout the Term, an ancillary
use to Tenant's restaurant at 816 Commerce Street.
The number of seating on the Demised Premises shall be included in the overall seating
count of Tenant's restaurant at 81 6 Commerce Street. There shall be no bar counter of
any kind as part of the Demised Premises and all food served shall be prepared within
the interior kitchen of the Tenant's restaurant. Any and all alcoholic beverages served at
the outdoor cafe shall be serviced by Tenant's restaurant. All tables and chairs will be
removed and stored each night at close of business. Any exception to this requirement
shall be at the sole and absolute discretion of the City Manager or his designee. Tenant
shall further maintain the Demised Premises and abide by the conditions set forth in
Exhibit "B" of the Lease.
.3 Tenant hereby warrants and represents that Syanna, LLC. is the owner of the restaurant
at 816 Commerce Street and shall, throughout the Term of the Lease, remain as the
owner of said restaurant, unless any change in ownership is approved by the City
Manager, in writing, prior to such change taking place. Change of ownership for
purposes hereof shall include, without limitation, a sale, exchange, assignment, transfer
or other disposition by Tenant of all or a portion of Tenant's interest in the restaurant,
whether by operation of law or otherwise.
8.4 Tenant agrees not to place any speakers, or any other device used to amplify sound, on
or around the Demised Premises. Tenant further agrees to not attach any televisions,
speakers, or any other device used to amplify sound, to the exterior of the restaurant
building at 816 Commerce Street. Furthermore, Tenant shall in no manner use the
Demised Premises, or Tenant's restaurant at 816 Commerce Street, as an outdoor
entertainment or open air entertainment establishment, and hereby acknowledges that
such uses are prohibited (whether as main or accessory uses).
8.5 Tenant agrees that any (i) valet parking and/or a taxi cab stand; (ii) Take-out service;
and (iii) any Sidewalk Cafe permit, if approved by the City in conjunction with the
Tenant's restaurant operation at 816 Commerce Street shall not utilize Washington
Avenue and will be limited to Commerce Street. Furthermore, any and all deliveries to
the restaurant shall be limited to the alley located on the south side of 816 Commerce
Street.
8.6 Tenant shall be permitted to apply to the City of Miami Beach for one (1) special event
permit for the sole and express purpose of hosting an opening event for the restaurant.
At no time thereafter, throughout the remaining term of the Lease, shall the tenant be
permitted to submit an application for a special event to be held on the Demised
Premises.
8.7 It is understood and agreed that the Demised Premises shall be used by the Tenant
during the term of this Agreement only for the uses contemplated herein, and for no
other purpose or use whatsoever. Tenant will not make or permit any use of the
Demised Premises that, directly or indirectly, is forbidden by public law, ordinance or
government regulation, or that may be dangerous to life, limb or property. Tenant may
not commit waste on the Demised Premises, use the Demised Premises for any illegal
purpose, or commit a nuisance on the Demised Premises. In the event that the Tenant
uses the Demised Premises for any purpose not expressly permitted 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.
8.8 Notwithstanding anything to the contrary contained herein, in the event of a
breach by Tenant of any conditions in this Section 8, the City Manager, in his sole
determination and judgment, shall have the right to automatically terminate this
Lease, without any liability to the City; said termination effective upon three (3)
days written notice to Tenant. By executing the Lease, Tenant hereby agrees to
this condition, and further voluntarily and knowingly waives and releases any and
all rights now or hereinafter conferred upon Tenant pursuant to Florida Statutes
including, without limitation, the procedures set forth in Chapter 83, Florida
Statutes
y
for removal in nonresidential tenancies; the Miami-Dade; and the Miami
Beach Code (respectively); to the extent this and applicable law(s) would have the
effect of limiting or modifying the City's rights to terminate this Lease pursuant to
this Subsection.
9. Improvements.
9.1 Any improvements on the Demised Premises shall be subject to the prior written
approval of the City Manager, which approval, if given at all, shall be at the his sole
discretion. All permanent (fixed) improvements to the Demised Premises shall become
the property of the City upon termination of the Lease. Notwithstanding the preceding
sentence, the City may require that Tenant, upon termination of the Agreement, remove
all permanent (fixed) improvements to the Demised Premises (at hislher sole discretion),
without damage to the Demised Premises or cost to the City. Furthermore, upon the
lawful termination of the Agreement, all personal property and trade fixtures may be
removed by the Tenant from the Demised Premises 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 construction of any improvements. Moreover, such
construction shall be properly permitted and done in compliance with all applicable
6
Municipal, County, State and Federal regulatory requirements, and shall be
accomplished through the use of licensed, reputable contractors who are acceptable to
the City. Any and all costs, permits and or licenses required for the installation of
improvements shall be the sole responsibility of Tenant.
9.2 Performance Bond.
As additional consideration for the City entering into this Lease, Tenant has agreed to
make certain improvements to the Demised Premises including, without limitation,
landscaping and paving (Tenant Improvements), which shall be approved by the City
pursuant to Section 9.1 above. Tenant shall deliver to the City a Performance Bond, or
other similar instrument (e.g. Letter of Credit, Surety Bond, etc.) acceptable to the City,
in an amount equal to the estimated cost of Tenant's improvements. In the event that
Tenant does not complete the Tenant's Improvements within eight (8) months from the
Effective Date, then City may, without further notice to Tenant, apply or retain the whole
or any part of the Performance Bond (or alternate security) as agreed upon liquidated
damages.
10. City's Right of Entry.
10.1 The City, or its authorized agent or agents, 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. However, the City agrees that whenever
possible, the City shall provide reasonable notice, in writing, to Tenant, unless the need
to enter the Demised Premises is an emergency, as deemed by the City at its 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.
10.2 If the Tenant shall not be personally present to permit entry onto the Demised Premises
at any time, for any reason, and any entry thereon shall be necessary or permissible, the
City, or its agents, may enter the Demised Premises, including, without limitation,
forcibly entering the Demised Premises, without rendering the City or such agents liable
therefore.
11. Tenant's Insurance.
The Tenant shall, at its sole cost and expense, comply with all insurance requirements
of the City. It is agreed by the parties that the Tenant shall not occupy the Demised
Premises until proof of the following insurance coverages have been furnished to and
approved by the City's Risk Manager:
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 an additional insured party on this policy.
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 the Lease) and all
leasehold improvements installed in the Demised Premises by or on behalf of
Tenant.
Proof of these coverages must be provided by submitting original certificates of
insurance. All policies must provide thirty (30) days written notice of cancellation to both
the City's Risk Manager and Asset Manager at 11700 Convention Center Drive, Miami
Beach, Florida, 331 39. 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.
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 City which shall not be unreasonably withheld.
Such written consent is not a matter of right and 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. A sale or transfer of
a majority interest of the stock of Tenant's corporate entity shall be deemed an
assignment, and for purposes of this Agreement, the City shall have the right to approve
the new majority owner. Said approval shall be provided in writing. Tenant is prohibited
from assigning or subletting this Agreement to any person or entity which is not of the
same or higher financial responsibility as Tenant, as shall be determined by City, in its
sole judgment and discretion. Further, Tenant shall be prohibited from any changes in
ownership, whether in the Demised Premises or the restaurant located at 816
Commerce Street, as set forth in Subsections 8.2 and 8.3.
12.2 Any consent by the City to any act of assignment shall apply only to the specific
transaction thereby authorized. Such consent shall not be construed as a waiver of the
duty of the Tenant or the legal representatives or assigns of the Tenant, to obtain from
the City consent to any other or subsequent assignment, or as modifying or limiting the
rights of the City under the foregoing covenants of the Tenant not to assign without such
consent.
12.3 Any violation of the provisions of this Agreement, whether by act or omissions, by
assignee, sub-tenant, or under-tenant or occupant, shall be deemed a violation of such
provision by the Tenant, it being the intention and meaning of the parties hereto, that the
Tenant shall assume and be liable to the City for any and all acts and omissions of any
and all assignees, sub-tenants, or under-tenants or occupants. If the Agreement be
assigned, the City may and is hereby empowered to collect rent from the assignee; if the
Demised Premises or any part thereof be underlet or occupied by any person, other that
the Tenant, the City, in the event of the Tenant's default, may, and is hereby
empowered to, collect rent from the under-tenant or occupants; in either of such events,
the City may apply the net amount received by it for rent herein reserved, and no such
collection shall be deemed a waiver of the covenant herein against assignment or the
acceptance of the assignee, under-tenant or occupant as tenant, or a release of the
Tenant from the further performance of the covenants herein contained on the part of
the Tenant.
Maintenance and Repair.
13.1 Tenant shall maintain the Demised Premises and any fixtures and appurtenances
thereon, and, at its sole cost and expense, shall make all repairs thereto as and when
needed to preserve them in good working order and condition. This shall include, but not
be limited to, Tenant being responsible for maintenance and repair of any and all
improvements, such as fences, walkways, pavers, ground-coverings, landscaping, and
gates.
13.2 All damage or injury of any kind to the Demised Premises shall be the obligation of
Tenant, and shall be repaired, restored or replaced promptly by Tenant at its sole cost
and expense to the satisfaction of the City.
13.3 All of the aforesaid repairs, restorations and replacements shall be in quality and class
equal to 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 the Tenant, and all sums spent and expenses
incurred by the City shall be collectable and shall be paid by the Tenant within ten (I 0)
days after rendition of a bill or statement thereof.
13.5 It shall be Tenant's obligation to insure that any renovations, repairs andlor
improvements made by Tenant to the Demised Premises comply with all applicable
building codes and life safety codes of governmental authorities having jurisdiction.
THE DEMISED PREMISES ARE BEING LEASED IN THEIR PRESENT "AS IS"
CONDITION. Tenant may construct or cause to be constructed, such exterior
improvements to the Demised Premises, as reasonably necessary for it to carry on its
permitted use(s); provided, however, that any plans for such improvements shall be first
submitted to the City Manager for his prior received written approval, which approval, 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 cost and expense.
All permanent (fixed) improvements to the Demised Premises shall remain the property
of the City upon termination andlor expiration of this Agreement. Upon termination
andlor 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 Manager. Any and all permits and or licenses required for the construction
andlor installation of improvements shall be the sole cost and responsibility of Tenant.
14. Governmental Regulations.
The 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 cost and
expense. Tenant shall pay all costs, expenses, claims, fines, penalties, and damages that may
be imposed because of Tenant's failure to comply with this Section, and shall indemnify and
hold harmless the City from all liability arising from each non-compliance.
15. lntentionallv Omitted.
16. Condemnation.
16. I If at any time during the term of this Agreement all or any part or portion of the Demised
Premises are taken, appropriated, or condemned by reason of Eminent Domain
proceedings (except if the Eminent Domain proceedings are initiated by the City of
Miami Beach), 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 the Tenant shall pay any and all rents, additional rents, utility
charges, or other costs including excess taxes for which it is liable under the terms of
this Agreement, up to the date of such taking.
16.2 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, the 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.
I7 Default.
17.1 Default bv Tenant.
At the City's option, any of the following shall constitute an Event of Default under this
Agreement:
17.1 .I Rent, or any installment thereof is not paid promptly when and where due
within fifteen (15) days of due date and if Tenant shall not cure such failure
within five (5) days after receipt of written notice from the City specifying such
default;
17.1.2 Any other payment provided for under this Agreement is not paid promptly
when and where due;
17.1.3 Demised Premises shall be deserted, abandoned, or vacated;
17.1.4 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 City
specifying any such default; or such longer period of time acceptable to the
City, at its sole discretion;
17.1.5 Receipt of notice of violation from any governmental authority having
jurisdiction dealing with a code, regulation, ordinance or the like, which
remains uncured within the time specified in such notice of violation or such
period of time acceptable to the City Manager, at his sole discretion;
17.1.6 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;
17.1.7 Tenant shall become insolvent;
17.1.8 Tenant shall make an assignment for benefit of creditors;
17.1.9 A receiver is appointed for Tenant by any court and shall not be dissolved
within thirty (30) days thereafter; or
17.1 .I0 The leasehold interest is levied on under execution.
17.1 I I Tenant's violation of the provision of Subsection 8.8 herein, which shall result
in an automatic termination of the Lease, as further provided in said
subsection.
18 Rights on Default.
18.1 Rights on Default.
18.1 .I In the event of any default by Tenant as provided herein, the 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;
18.1.2 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 Demised Premises and expel or remove Tenant and his
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 termination, whether through inability to re-let the Demised
Premises, or through decrease in rent, or otherwise.
Declare the entire amount of the 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.
18.1.4 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, 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.
18.1.5 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 the Tenant liable for the deficiency, if any.
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. No interest will be charged for payments made within the grace period,
such grace period to be defined as within five (5) days of the due date. In
addition, there will be a late charge of fifty ($50.00) dollars for any payments
submitted after the grace period.
18.1.7 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 City on the first
day of the month following the payment of the expense by the City.
18.1.8 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.
18.2 Default bv Citv.
Failure of the Citv to perform any of the covenants, conditions and agreements of the
~~reement which arito be perfoimed by the City and the continuanceof 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 the Tenant, then such failure
to perform (regardless of circumstances beyond its control) as indicated above, shall
constitute a default by the City.
18.3 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 (and all of its obligations hereunder by giving notice of such
election to the City, whereupon this Agreement shall terminate as of the date of such
notice), to specifically enforce Tenant's rights; andlor to enjoin the City.
19. Indemnity Against Costs and Charges.
19.1 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 the 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.
19.2 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.
20. Indemnification Against Claims.
20.1 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 parking lot or other facility or appurtenance used in connection
with the Demised Premises, occasioned in whole or in part by any of the following:
20.1 .I An act or omission on the part of the Tenant, or any employee, agent, invitee,
or guest, assignee or sub-tenant of the Tenant;
20.1.2 Any misuse, neglect, or unlawful use of the Demised Premises or the building
in which the Demised Premises is located or any of its facilities by the Tenant,
or any employee, agent, invitee, or guest, assignee or sub-tenant or the
Tenant, but not to include trespassers upon the Demised Premises;
20.1.3 Any breach, violation, or non-performance of any undertaking of the Tenant
under this Agreement;
20.1.4 Anything growing out of the use or occupancy of the Demised Premises by
the Tenant or anyone holding or claiming to hold through or under the
Agreement.
20.2 Tenant agrees to pay all damages to the Demised Premises or other facilities used in
connection therewith, caused by the Tenant or any employee, guest, or invitee of the
Tenant.
21. Signs and Advertising.
Without the prior written consent of the City, 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.
22. Damage to the Demised Premises and/or Restaurant at 816 Commerce Street.
22.1 If the Demised Premises and/or restaurant at 81 6 Commerce Street 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, in whole or in part
(hereinafter referred to as "such occurrence"), Tenant shall as soon as possible after
such occurrence, utilize its insurance proceeds to cause such damage to be repaired
and the rent for the Demised Premises shall not be abated. If by reason of such
occurrence, the Demised Premises and/or restaurant at 81 6 Commerce Street shall be
rendered untenantable, as determined by the City, only in part, Tenant shall as soon as
possible utilize its insurance proceeds to cause the damage to be repaired, and the rent
for the Demised Premises shall be abated proportionately as to the portion of the
Demised Premises rendered untenantable; provided however, if either the Demised
Premises and/or restaurant at 81 6 Commerce Street are by reason of such occurrence,
rendered more than 50% but less than 100% untenantable, as determined by the City,
Tenant shall promptly obtain a good faith estimate, from a licensed contractor
acceptable to the City, of the time required to render the Demised Premises and/or
restaurant at 81 6 Commerce Street tenantable. If such time exceeds sixty (60) days,
the City and/or Tenant shall have the option of canceling this Agreement, which
option shall be exercised by the requesting party in writing within ten (10) days of
the end of the sixty (60) day period, and the Agreement shall be terminated within
thirty (30) days from the date thereof.
If the Demised Premises and/or restaurant at 816 Commerce Street shall be rendered
wholly untenantable by reason of such occurrence, Tenant shall utilize its insurance
proceeds to cause such damage to be repaired and the rent for the Demised Premises
shall be abated in whole; provided, however, that the Tenant shall have the right, to be
exercised by notice in writing delivered to the City within sixty (60) days from and after
said occurrence, to elect not to reconstruct the destroyed Demised Premises andlor
restaurant, 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, the City and/or Tenant shall
have the right, to be exercised by notice in writing, delivered to the other party within
thirty (30) days from and after said occurrence, to elect to terminate this Agreement, the
rent to be adjusted accordingly.
23. Quiet Eniovment.
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.
24. Waiver.
24.1 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.
24.2 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.
24.3 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.
25. 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:
CITY:
With copies to:
TENANT:
City Manager
City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 331 39
Asset Manager
City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 331 39
Syanna, LLC
81 6 Commerce Street
Miami Beach, Florida 33139
Attn: Symcha Zilberman
With copies to: N .A.
All notices shall be hand delivered and a receipt requested, or by certified mail with return
receipt requested, and shall be effective upon receipt.
26. Entire and Binding 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.
27. 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.
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.
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.
Governing Law.
This Agreement shall be governed by and construed in accordance with the law of the State of
Florida.
Limitation of Liabilitv.
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 and no11 00. Tenant hereby expresses its willingness to enter
into this Agreement with the Tenant's recovery from the City for any damage action for breach
of contract to be limited to a maximum amount of Ten Thousand ($10,000.00) Dollars.
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 Ten
Thousand ($1 0,000.00) Dollars 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 City's liability as set forth in Florida Statutes, Section
768.28.
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 Article. 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 the 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, the 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 the Tenant to surrender the Demised Premises as and when
herein required.
33. Time is of the Essence.
Time is of the essence in every particular and particularly where the obligation to pay money is
involved.
34. Venue.
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.
(INTENTIONALLY LEFT BLANK)
IN WITNESS WHEREOF, the parties hereto have caused these presents to be signed by the
respective duly authorized officers and the respective corporate seals to be affixed this day of
,2010.
ATTEST:
Robert Parcher, CITY CLERK
ATTEST:
SECRETARY
(Print Name)
CORPORATE SEAL
(affix here)
f:\$AII\RHCD\AssetL?2 Washington Ave\Syanna Lease.doc
CITY:
CITY OF MIAMI BEACH, FLORIDA
BY:
Matti Herrera Bower, MAYOR
TENANT:
SYANNA, LLC.
BY:
PRESIDENT
(Print Name)
EXHIBIT A
Description of Demised Premises
A portion of Lots 1 and 2, Block 51, Ocean Beach Addition No. 3, according to the plat thereof,
recorded in Plat Book 2, at page 81, of the Public Records of Dade County, Florida, being more
particularly described as follows: Bounded on the North by the South R/W line of Commerce St.;
Bounded on the West by the East line of Lot 2; Bounded on the South by the North RAN line of
Biscayne Court; Bounded on the East by a line that is a perpendicular distance of 100 feet westerly
and parallel to the East R/W line of Washington Avenue.
EXHIBIT B
20
502
Additional Requirements
The Demised Premises shall be maintained in a clean, neat and orderly appearance at all times by the
Tenant. The area of the sidewalk, curb and gutter immediately adjacent to the Demised Premises
shall be cleared of all debris during hours of operation, and again at the close of each business day, or
as may otherwise be determined by the City Manager.
The Tenant shall be responsible for cleaning the floor surface on which the outdoor seating is located
at the close of each business day. In addition, the following conditions shall apply:
a. Tables, chairs, umbrellas and any other outdoor cafe furniture shall be maintained in a
clean, attractive, and orderly appearance, and shall be maintained and kept in good repair
at all times;
b. All outdoor furniture shall be of high quality, design, materials, and workmanship so as to
ensure the safety and convenience of the public;
c. Only the outdoor cafe furniture specifically shown on the approved site plan shall be
allowed in the Demised Area;
d. All tables, chairs, umbrellas, and any other outdoor furniture shall be readily removable, and
shall not be physically attached, chained, or in any other manner affixed to any public
structure, street furniture, signage, and/or other public fixture, or to a curb and/or public
right-of-way;
e. The stacking or piling up of chairs shall be prohibited on the Demised Premises;
f. At close of business, all tables, chairs and any other outdoor furniture shall be removed
from the Demised Premises and stored in a non-visible location from the public right-of-way.
Any exception to this requirement shall be at the sole and absolute discretion of the City
Manager and/or hislher designee.
g. No storage of dishes, silverware or other similar restaurant equipment shall be allowed in
the Demised Area, or in any other portion of the public right-of-way, or outside the structural
confines of the building in which the restaurant is located, during non-business hours;
h. There shall be no live entertainment or speakers placed in the Demised Area;
i. Only one menu board shall be permitted to be displayed on the Demised Premises, the
location of which shall be set back next to the main entrance door of the enclosed area of
the restaurant;
j. No food preparation, food storage, refrigeration apparatus or equipment, or fire apparatus
or equipment, shall be allowed on the Demised Premises;
k. No food displays shall be permitted on Demised Premises. No advertising signs or business
identification signs shall be permitted, except that the restaurant name and/or its logo may
be permitted on umbrellas but such logos and/or lettering may not exceed six inches in
height;
I. Plants shall be properly maintained. Distressed plants shall be promptly replaced. Plant
fertilizers which contain material that can stain the sidewalks shall not be allowed;
m. The City Manager or hislher designee may cause the immediate removal, relocation andlor
storage of all or part of any furniture located on the Demised Premises in emergency
situations or for public safety considerations. Upon written and/or verbal notification by the
City Manager of a hurricane or other major weather event, or the issuance of a hurricane
warning by Miami-Dade County, whichever occurs first, the Tenant shall, within no more
2 1
than four hours of same, remove and place indoors all tables, chairs and any other outdoor
furniture located on the Demised Premises. The notification by the City Manager of a
hurricane or other major weather event, or the issuance of a hurricane warning, shall
constitute a public emergency situation as referenced in this division. The City Manager
may remove, relocate, and/or store any outdoor furniture found on the Demised Premises
that has otherwise not been removed by the Tenant pursuant to this subsection. Any and all
costs incurred by the City for removal, relocation andlor storage of Tenant's furniture shall
be the responsibility of the Tenant.
MIAMIBEACH
CITY OF MIAMI BEACH
NOTICE OF PUBLIC HEARING 1
NOTICE IS HEREBY given that a first and only reading and public hearing will be held by the
City Commission of the City of Miami Beach, in the Commission Chambers, 3rd floor, City Hall,
1700 Convention Center Drive, Miami Beach, Florida, on Wednesday, November 17,2010 at
11 $0 A.M Approving, Following A Duly Noticed Public Hearing, A Lease Agreement Between
' The City Of Miami Beach And Syanna, LLC, For Use Of Approximately 2,216 Square Feet Of
City-Qwned Property, Located At 22 Washington Avenue, Miami Beach, Florida; Said Lease
Having An Initial Term Of Five (5) Years, With One Additional Four Year And Three Hundred Sixty
Four (364) Day Renewal Term At The City's Sole Discretion, Further Waiving, By 5/7ths Vote,
The Competitive Bidding Requirement, As Required By Section 82-39 Of The Miami Beach City
Code; Further Authorizing The Mayor And City Clerk To Execute The Lease Agreement.
Inquiries may be directed to the Real Estate. ~ousing & Community ~eve1o~ment'~epartment
(305) 673- 7260.
INTERESTED PARTIES are invited to appear at this meeting, or be. represented by an agent,
or to express their views in writing addressed t~ the City Commission, c/o the City Clerk, 1700
Convention Center Drive, 1st Floor, City Hall, Miami Beach, Florida 33139. This meeting may
be opened and continued and, under such circumstances additional legal notice would not be
provided. 1
Robert E. Parcher
City Clerk.
City of Miami Beach
Pursuant to Section 286.01 05, Fla. stat., the City hereby advises the public that: if a person
decides to appeal any decision made by the City Commission with respect to 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 notice does 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, andlor any accomwadatioa to review any document
or participate in any city-sponsored proceeding, pleasb contact (305) 604-2489 (voice),
(305) 673-721 80 five days in advance to initiate your request.lTY users may also call
711 (Florida Relay Service). /@ &63/ MONDAY, NOVEMBER 1, ~ol~ I - --
THIS PAGE INTENTIONALLY LEFT BLANK
COMMISSION ITEM SUMMARY
Condensed Title: I A resolution setting the dates for the year 201 1 Commission meetings. I
Key Intended Outcome Supported: I Supports multiple KlO's.
Supporting Data (Surveys, Environmental Scan, etc.): NIA
Issue:
hall the Mayor and City Commission approve the 201 1 Commission meeting dates? I
Item Summary1Recommendation:
I Pursuant to Section 2.04 of the Miami Beach City Charter, "The City Commission shall meet at such times I I as may be prescribed by ordinance or resolution.' I
In preparing the Commission Meeting calendar the Administration takes into consideration events such as
the U.S. Conference of Mayors, Miami-Dade County Days, Art Basel, August recess, September to set the
tentativelfinal millage and the budget approval process, and if an election year then November for
electionlrunoff election meetings, and finally Federal and Religious Holidays. Considering the above it is
difficult to always schedule meetings on the same Wednesday of the month.
In preparing the recommended meeting dates, the Administration set three (3) goals: I) schedule one (1)
Commission meeting and one (1) alternate meeting a month; 2) schedule Commission meetings on
Wednesdays; and 3) not to schedule Commission meetings during the month of August, while the City
Commission is in recess.
I The Administration recommends approving the resolution. 1
Advisory Board Recommendation: I NIA
Financial Information:
I 1
Financial Impact Summary: I
Source of
Funds:
0:
OBPI
City Clerk's Office Legislative Tracking:
Bob Parcher, City Clerk I
AMIBEACH
507
Approved Account
I
2
3
4
Total
Amount
City of Miami Beach, 1700 Convention Center Drive, Miami Beach, Florida 33 139, www.rniamibeachfl.gov
COMMISSION MEMORANDUM
TO: Mayor Matti Herrera Bower and
FROM: Jorge M. Gonzalez, City Manager
DATE: November 17,201 0
SUBJECT: A RESOLUTION OF THE MAYOR AND ClTY COMMISSION OF THE CITY
OF MIAMI BEACH, SElTlNG THE DATES FOR THE YEAR 2011 ClTY
COMMISSION MEETINGS.
ADMINISTRATION RECOMMENDATION
Adopt the Resolution.
ANALYSIS
Pursuant to Section 2.04 of the Miami Beach City Charter, "The City Commission shall
meet at such times as may be prescribed by ordinance or resolution."
In preparing the Commission Meeting calendar the Administration takes into
consideration events such as the U.S. Conference of Mayors, Miami-Dade County Days,
Art Basel, August recess, September to set the tentativelfinal millage and the budget
approval process, and if an election year then November for electionlrunoff election
meetings, and finally Federal and Religious Holidays. Considering the above it is difficult
to always schedule meetings on the same Wednesday of the month.
In preparing the recommended meeting dates, the Administration set three (3) goals: 1)
schedule one (1) Commission meeting and one (I) alternate meeting a month; 2)
schedule Commission meetings on Wednesdays; and 3) not to schedule Commission
meetings during the month of August, while the City Commission is in recess.
The Administration met the goals with the following exceptions:
Exception 1: In June, due to Art Basel beginning on June 15, there is no alternate
meeting scheduled.
Exception 2: In September, due to Budget Hearings that will be scheduled at a later
time, there is no alternate meeting scheduled.
Exception 3: In November, due to Elections, the November 2 meeting is for Election
related items only and the November 16 meeting is for runoff only.
Note: The Miami Beach Annual Boat Show is scheduled for February 17-21 with move-
in scheduled to start on February 10-16 and move-out scheduled on February
22-25, which creates significant parking and traffic challenges for the City Hall
area.
It is recommended that the City Commission meetings be set as follows:
Commission Meetings Alternate Meetings
January 19 (Wednesday) January 26 (Wednesday)
February 9 (Wednesday) February 16 (Wednesday)
March 9 (Wednesday) March I 6 (Wednesday)
April 13 (Wednesday) April 27 (Wednesday)
May I I (Wednesday) May I8 (Wednesday)
June 1 (Wednesday)
July 13 (Wednesday) July 20 (Wednesday)
August - City Commission in recess
September 14 (Wednesday)
October 19* (Wednesday) October 26 (Wednesday)
November 2 (Wednesday) - Election related only.
November 16 (Wednesday) - If Run-off Election only.
December 14 (Wednesday) December 21 (Wednesday)
* At nighifall of October 1gh Shemini Atzeret Religious Holiday begins.
The proposed 2011 calendar calls for 10 regularly scheduled Commission meetings, 8
alternate meetings, 2 election related meetings, and an additional special budget
Commission meeting will be scheduled at a later time in September.
In preparing the calendar, City-designated holidays and religious holidays have been
taken into consideration. Attachment "A is a list of City of Miami Beach holidays.
Attachment "B is a list of Jewish holidays.
CONCLUSION
The Administration recommends that the Mayor and City Commission approve the
proposed City Commission meeting dates and alternate meeting dates for the year
201 1.
Attachment "A"
New Year's Day
Dr. Martin Luther King, Jr. Day
President's Day
Memorial Day
Independence Day
Labor Day
Veterans Day
Thanksgiving Day
Day after Thanksgiving
Christmas
CITY OF MIAMI BEACH
LEGAL HOLIDAYS 201 1
Friday, December 31,201 1
Monday, January 17,201 1
Monday, February 21,201 1
Monday, May 30,201 1
Monday, July 4,201 I
Monday, September 5,201 1
Friday, November 11,201 1
Thursday, November 24,201 1
Friday, November 25,201 1
Monday, December 26,201 1
Attachment "6"
Tu B'Shevat
Fast of Esther
Purim
Shushan Purim
Passover
Second Passover
Lag B'Omer
Shavuot
Fast of the 17th of Tammuz
Fast of Tish'a B'Av
Rosh Hashanah
Fast of Gedaliah
Yom Kippur
Sukkot
Hoshana Rabbah
Shemini Atzeret
Simchat Torah
Chanukah
JEWISH HOLIDAYS 201 1
January 20
March 17
Nightfall of March 19 through nightfall of March 20
(work should be avoided)
March 21
Sunset of April 18 through nightfall of April 26
(work is permitted only on April 21-22 & 24)
May 18
May 22
Sunset of June 7 through nightfall of June 9
(no work permitted)
July 19
Sunset of August 8 through nightfall of August 9
(work should be avoided)
Sunset of September 28 through nightfall of September 30
(no work is permitted)
October 2
Sunset of October 7 through nightfall of October 8
(no work is permitted)
Sunset of October 12 through nightfall of October 19
(Work is permitted on October 16-19 only)
October 19
Sunset of October 19 through nightfall of October 20
(no work is permitted)
Nightfall of October 20 through nightfall of October 21
(no work is permitted)
Sunset of December 20 through December 28
RESOLUTION NO.
A RESOLUTION OF THE MAYOR AND ClTY COMMISSION OF THE ClTY
OF MIAMI BEACH, FLORIDA, SETTING THE DATES FOR THE YEAR
201 1 ClTY COMMISSION MEETINGS.
WHEREAS, at the January 12, 2005 Committee of the Whole Meeting, Mayor Dermer
solicited input regarding the scheduling of one City Commission meeting a month; and
WHEREAS, subsequent to Mayor Dermer's request, the Administration placed this issue on
the February 23,2005 City Commission Meeting agenda to refer it to the NeighborhoodlCommunity
Affairs Committee for discussion; and
WHEREAS, the NeighborhoodlCommunity Affairs Committee met on March 29,2005 and
was presented with the idea of having one City Commission meeting a month and an alternate
meeting scheduled the following week; and
WHEREAS, this would allow the City Commission to continue the meeting because of the
lateness of the hour or if a particular item(s) may cause the meeting to run very late, to continue the
item@) not handled to the following Wednesday; and
WHEREAS, because the same City Commission agenda will be used, no City Commission1
Manager Agenda reviews will be required; and
WHEREAS, it also allows the Mayor and City Commission, and the Administration to reserve
the Wednesday following a City Commission meeting so that scheduling of a continued meeting, if
necessary, does not result in scheduling problems; and
WHEREAS, this new schedule of one Commission meeting a month and an alternate
meeting was implemented in May 2005; and
WHEREAS, pursuant to Section 2.04 of the Miami Beach City Charter, the City Commission
shall meet at such times as may be prescribed by ordinance or resolution; and
WHEREAS, in preparing the recommended meeting dates, the Administration set three (3)
goals: 1) schedule one (1) City Commission meeting and one (I) alternate meeting a month; 2)
schedule City Commission meetings on Wednesdays; and 3) not to schedule City Commission
meetings during the month of August, while the City Commission is in recess; and
WHEREAS, the proposed 201 1 calendar calls for eleven (10) regularly scheduled City
Commission meetings, nine (8) alternate meetings, 2 election related meetings; and an additional
special budget City Commission meeting will be scheduled at a later time in September.
NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND ClTY COMMISSION
OF THE ClTY OF MIAMI BEACH, FLORIDA, that the Mayor and City Commission hereby approve
the following dates for the year 201 I City Commission Meetings:
Commission Meetings Alternate Meetings
January 1 9 (Wednesday) January 26 (Wednesday)
February 9 (Wednesday) February 16 (Wednesday)
March 9 (Wednesday) March 16 (Wednesday)
April 13 (Wednesday) April 27 (Wednesday)
May 11 (Wednesday) May 18 (Wednesday)
June 1 (Wednesday)
July 13 (Wednesday) July 20 (Wednesday)
August - City Commission in recess
September 14 (Wednesday)
October 19* (Wednesday) October 26 (Wednesday)
November 2 (Wednesday) - Election related only.
November 16 (Wednesday) - If Run-off Election only.
December 14 (Wednesday) December 2 1 (Wednesday)
PASSED and ADOPTED this 1 7th day of November, 201 0.
MAYOR
ATTEST:
ROBERT PARCHER, CITY CLERK
APPROVED AS TO
FORM & LANGUAGE
& FOR EXECUTION
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, Accepting The
Recommendation Of The City Manager, Pursuant To Invitation To Bid (ITB) No. 40-09110, For The Construction Of
The Sunset Harbour Parking Garage And Retail Project; And Authorizing The Mayor And City Clerk To Execute An
Agreement With Boran Craig Barber Engel Construction Company, Inc. (BCBE), In The Not-To-Exceed Amount of
$9,267,556.00, For The Construction Of The Project, Plus Approve A Project Contingency In The Amount Of
$926,755.60 For A Grand Total Of $10,194,311.60; And Execution Subject To And Contingent Upon Satisfaction Of
The Following Conditions: I. Proceeds Of The Bond Financing For The Garage Being Available To The City; 2.
Occurrence Of The "Second Closing," For The Remaining Property Being Acquired By The City For Assembly Of The
Land To DeveloplConstruct The Project; And 3. Concurrent With The "Second Closing," Execution Of An Agreement
Between The City And The DeveloperlOwner Of The Retail Portion Of The Project For Set Aside Of The Developerls
Contribution; And Further Authorizing The Administration To Engage In Value Engineering To Further Reduce The
Cost and Time For Completion Of Said Project.
Key Intended Outcome Supported:
[ Ensure well-maintained infrastructure
Supporting Data (Surveys, Environmental Scan, etc.):
The 2007 Community Satisfaction Survey noted 82% of North Beach residents rated recent capital projects
completed as "excellent" or "good" compared to 89% of residents citywide.
Issue: 1 Shall the Mayor and City Commission adopt the Resolution? 1
Item SummarylRecommendation:
The work comprises of the construction necessary for the completion of the Sunset Harbour Garage and Retail located
at 1900 Bay Rd. The project is a mixed-use building consisting of 29,350 SF of ground floor retail and 141,000 SF of
parking on 4 levels above grade, accommodating a total of 435 parking spaces. The parking levels will be screened
with an architectural screen consisting of painted aluminum panels and grilles supported on an aluminum framework
across the entire east and west facades and a painted pattern over concrete block and stucco on the north and south
facades. The building has been designed following the criteria for energy efficient, sustainable design as set forth by
the United States Green Building Council (LEED certification will not be a requirement) The building is to be protected
throughout by an automatic sprinkler system.
ITB No. 40-09110 was issued on July 13, 2010, with an opening date of August 20, 2010. The pre-bid conference was
held on July 22, 2010. During the pre-bid conference, prospective bidders were instructed on the procurement
process and the information their respective proposals should contain. Bidsync issued bid notices to 2,827
prospective bidders which resulted in the receipt of seventeen (I 7) bids.
On September 28, 2010, the Technical Review Panel (TRP) convened to shortlist bidders based on the following
criteria:
a 50 Points - Grand Total Base Bid Amount
a 10 Points - Risk Assessment PlanNalue Added Submittals
a 15 Points - Past performance evaluation surveys
On October 5, 2010, the TRP reconvened to interview the shortlisted bidders based on the following criteria:
a 25 Points - Presentation and interview of key personnel
Upon completion of the interviews, the TRP discussed their individual perceptions of each prospective bidder's
qualifications, experience, and competence to score and rank the firms accordingly. Boran Craig Barber Engel
Construction Company, Inc. (BCBE) received four of five first-place votes for contract award.
After considering the review and recommendation of City staff, the City Manager exercised his due diligence and
carefully considered the specifics of this ITB process. As a result, the City Manager recommends to the Mayor and
City Commission to award the contract to Boran Craig Barber Engel Construction Company, Inc.
Advisory Board Recommendation:
I
DATE 11-13-10
1 I
Financial Information:
Approved
Total
Account Amount
NIA
Source of
Funds:
1
MIAMIBEACH
City of Miami B~ch, 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 &&f ..-
DATE: November17,2010
SUBJECT: A RESOLUTION OF THE MAYOR AND ClTY COMMISSION OF THE ClTY OF
MIAMI BEACH, FLORIDA, ACCEPTING THE RECOMMENDATION OF THE CITY
MANAGER, PURSUANT TO INVITATION TO BID (ITB) NO. 40-09110, FOR THE
CONSTRUCTION OF THE SUNSET HARBOUR PARKING GARAGE AND RETAIL
PROJECT; AND AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE AN
AGREEMENT WlTH BORAN CRAIG BARBER ENGEL CONSTRUCTION
COMPANY, INC. (BCBE), IN THE NOT-TO-EXCEED AMOUNT OF $9,267,556.00,
FOR THE CONSTRUCTION OF THE PROJECT, PLUS APPROVE A PROJECT
CONTINGENCY IN THE AMOUNT OF $926,755.60 (FOR A GRAND TOTAL OF
$10,194,311.60), AND EXECUTION SUBJECT TO AND CONTINGENT UPON
SATISFACTION OF THE FOLLOWING CONDITIONS: I.) PROCEEDS OF THE
BOND FINANCING FOR THE GARAGE BEING AVAILABLE TO THE CITY; 2.)
OCCURRENCE OF THE "SECOND CLOSING" FOR THE REMAINING PROPERTY
BEING ACQUIRED BY THE ClTY FOR ASSEMBLY OF THE LAND TO
DEVELOPICONSTRUCT THE PROJECT; AND 3.) CONCURRENT WlTH THE
"SECOND CLOSING," EXECUTION OF AN AGREEMENT BETWEEN THE CITY
AND THE DEVELOPERIOWNER OF THE RETAIL PORTION OF THE PROJECT
FOR SET ASIDE OF THE DEVELOPER'S CONTRIBUTION; AND FURTHER
AUTHORIZING THE ADMINISTRATION TO ENGAGE IN VALUE ENGINEERING TO
FURTHER REDUCE THE COST AND TIME FOR COMPLETION OF SAID
PROJECT.
ADMINISTRATION RECOMMENDATION
Adopt the Resolution.
KEY INTENDED OUTCOMES SUPPORTED
Ensure well-maintained facilities.
ANALYSIS
The Sunset Harbour neighborhood is part of the Middle Beach commercial service area which
has demonstrated a deficiency in neighborhood retail. The City performed an initial economic
development site analysis that indicated retail could do well in this neighborhood, primarily
serving middle beach residents. These residents currently have to travel to other areas since
there is insufficient retail in mid-beach to meet their needs. The proposed development could
provide sustainable neighborhood retail, which would generate the need for approximately 135
parking spaces.
Commission Memorandum - l TB-40-09/10 - Sunset Harbour Garage and Retail
November 1 7,201 0
Page 2 of 5
Additionally, the Parking Department has indicated that there are peak periods with a parking
shortage for current uses in the area, such as evening hours and lunchtime. The estimated
parking demand for these peak periods is 30 spaces. There is also anecdotal demand for valet
parking storage in the neighborhood for restaurants and other establishments, as well as, for
single-family residents who have large events in their homes. The Parking Department
estimates this demand at approximately 50 spaces.
The neighborhood has begun to undergo changes from a utilitarian light industrial district to a
more mixed urban commercial district. There have been initial discussions regarding parking
overlay district in this area that could serve as a catalyst for further redevelopment of properties
in the area, with the potential of expanding the neighborhood retail opportunities beyond that
which would be included in the garage. The preliminary estimate for this demand is 150-175
spaces.
As such, there is an estimated parking demand for 300 to 400 parking spaces not including the
parking needed for the City's Property Maintenance Division.
SCOPE OF SERVICES
The work comprises of the construction necessary for the completion of the Sunset Harbour
Garage and Retail located at 1900 Bay Rd. The project is a mixed-use building consisting of
29,350 SF of ground floor retail and 141,000 SF of parking on 4 levels above grade,
accommodating a total of 435 parking spaces. The parking levels will be screened with an
architectural screen consisting of painted aluminum panels and grilles supported on an
aluminum framework across the entire east and west facades and a painted pattern over
concrete block and stucco on the north and south facades. The building has been designed
following the criteria for energy efficient, sustainable design as set forth by the United States
Green Building Council (LEED certification will not be a requirement) The building is to be
protected throughout by an automatic sprinkler system.
ITB No. 40-0911 0 was issued
pre-bid conference was held
bidders were instructed on
proposals should contain.
on July 13, 2010, with an opening date of August 20, 2010. The
on July 22, 2010. During the pre-bid conference, prospective
the procurement process and the information their respective
Bidsync issued bid notices to 2,827 prospective bidders which resulted in the receipt of the
following seventeen (I 7) bids:
Boran Craig Barber Engel Construction Company, Inc.
CB Constructors, Inc.
Florida Lemark Corp.
G.T. McDonald Enterprises, Inc.
H.A. Contracting Corp.
JCON Group Corp.
John Moriarty and Associates, Inc.
KMlPlaza
KVC Constructors, Inc.
Commission Memorandum - ITB-40-09/10 - Sunset Harbour Garage and Retail
November 17,2010
Page 3 of 5
Link Construction Group, Inc.
Merkury Development
Milton Construction Company
SlKON Construction Company, LLC
Stiles Corporation d/b/a Stiles Construction
Suffolk Construction Company, Inc.
Turner Construction Company
Veitia Padron, Inc.
Through the Procurement Division's review of each bid for responsiveness, there were two (2)
bidders disqualified or deemed nonresponsive to the ITB. JCON Group Corp. and Florida
Lemark Corp., the tenth and sixteenth lowest bidders at $1 0,672,015.82 and $1 2,130,703.31
respectively, were disqualified for failing to respond to the City's request for additional
information within the deadline provided.
As a result, the following table provides the proposed lump sum bid prices of the fifteen (15)
responsive bids:
The Technical Review Panel (TRP) consisted of the following individuals:
Humberto Cabanas, Capital Project Coordinator, CIP Office
William Cary, Assistant Director, Planning Department
Saul Frances, Director, Parking Department
Emanuel Mayer, Special Assistant to the City Manager, City Manager's Office
Scott Robins, President, Scott Robins Companies
On September 28, 2010, the TRP convened to shortlist bidders based on the following criteria:
Commission Memorandum - ITB-40-09/10 - Sunset Harbour Garage and Retail
November 17,2010
Page 4 of 5
50 Points - Grand Total Base Bid Amount
10 Points - Risk Assessment PlanNalue Added Submittals
15 Points - Past performance evaluation surveys
As a result of the shortlisting process, the TRP invited the following companies for interviews:
Boran Craig Barber Engel Construction Company, Inc.
G.T. McDonald Enterprises, Inc.
KMIPlaza
KVC Constructors, Inc.
Merkury Development
Stiles Corporation d/b/a Stiles Construction
Suffolk Construction Company, Inc.
On October 5, 2010, the TRP reconvened to interview the shortlisted bidders based on the
following criteria:
25 Points - Presentation and interview of key personnel
Upon completion of the interviews, the TRP discussed their individual perceptions of each
prospective bidder's qualifications, experience, and competence to score and rank the firms
accordingly. Boran Craig Barber Engel Construction Company, Inc. (BCBE) received four of
five first-place votes for contract award as noted below:
Based on the interviews, the TRP noted that Merkury did not demonstrate sufficient experience
and financial capacity to construct the garage. Merkury did admit that this project would have
been the largest project they would have managed. Given the difference in price between
Merkury and BCBE, the TRP agreed that BCBE was the better option for the City.
Boran Craig Barber Ennel Construction Company, Inc.
BCBE is a General Contractor that has been providing construction services in South Florida for
over 35 years focusing mainly on high and low-rise condominiums, commercial office buildings,
mixed-use projects, government, health care facilities, hotels, and lifestyle community
clubhouses and facilities. BCBE also recently constructed the following parking garages in
Commission Memorandum - ITB-40-09/10 - Sunset Harbour Garage and Retail
November 17,2010
Page 5 of 5
South Florida:
St. Tropez Precast Parking Garage - $9,900,000; 660 spaces
One Bal Harbour Parking Garage - $8,950,000; 453 spaces
Oceanside Parking Garage - $7,955,000; 430 spaces
Beau Rivage Precast Parking Garage - $5,445,000; 363 spaces
Serano at Hammock Bay Precast Parking Garage - $4,560,000; 260 spaces
CITY MANAGER'S REVIEW
After considering the review and recommendation of City staff, the City Manager exercised his
due diligence and carefully considered the specifics of this ITB process. As a result, the City
Manager recommends to the Mayor and City Commission to award the contract to Boran Craig
Barber Engel Construction Company, Inc.
CONCLUSION
The Administration recommends that the Mayor and City Commission adopt the attached
Resolution accepting the recommendation of the City Manager pursuant to Invitation to Bid
(ITB) No. 40-09110, for the Construction of the Sunset Harbour Parking Garage and Retail
Project; and authorize the Mayor and City Clerk to execute an agreement with Boran Craig
Barber Engel Construction Company, Inc. (BCBE), in the not-to-exceed amount of
$9,267,556.00, for the construction of the Project, plus approve a Project contingency in the
amount of $926,755.60 (for a grand total of $10,194,311.60), and execute subject to and
contingent upon satisfaction of the following conditions: I .) Proceeds of the bond financing for
the garage being available to the City; 2.) occurrence of the "Second Closing," for the remaining
property being acquired by the City for assembly of the land to developlconstruct the Project;
and 3.) concurrent with the "Second ClosingJ' execution of an agreement between the City and
DeveloperlOwner of the retail portion of the Project for set aside of the Developer's contribution;
and further authorizing the Administration to engage in value engineering to further reduce the
cost and time for completion of said Project.
T:MGENDA\201 O\November 17\Regular\lTB 40-09-1 0 - Sunset Harbour Garage and Retail - MEMO.docx
RESOLUTION NO.
A RESOLUTION OF THE MAYOR AND ClTY COMMISSION OF THE ClTY OF MIAMI
BEACH, FLORIDA, ACCEPTING THE RECOMMENDATION OF THE ClTY MANAGER,
PURSUANT TO INVITATION TO BID (ITB) NO. 40-09110, FOR THE CONSTRUCTION OF
THE SUNSET HARBOUR PARKING GARAGE AND RETAIL PROJECT; AND
AUTHORIZING THE MAYOR AND ClTY CLERK TO EXECUTE AN AGREEMENT WlTH
BORAN CRAIG BARBER ENGEL CONSTRUCTION COMPANY, INC. (BCBE), IN THE
NOT-TO-EXCEED AMOUNT OF $9,267,556.00, FOR THE CONSTRUCTION OF THE
PROJECT, PLUS APPROVE A PROJECT CONTINGENCY IN THE AMOUNT OF
$926,755.60 (FOR A GRAND TOTAL OF $10,194,311.60), AND EXECUTION SUBJECT
TO AND CONTINGENT UPON SATISFACTION OF THE FOLLOWING CONDITIONS: 1.)
PROCEEDS OF THE BOND FINANCING FOR THE GARAGE BEING AVAILABLE TO
THE CITY; 2.) OCCURRENCE OF THE "SECOND CLOSING" FOR THE REMAINING
PROPERTY BEING ACQUIRED BY THE ClTY FOR ASSEMBLY OF THE LAND TO
DEVELOPICONSTRUCT THE PROJECT; AND 3.) CONCURRENT WlTH THE "SECOND
CLOSING," EXECUTION OF AN AGREEMENT BETWEEN THE ClTY AND THE
DEVELOPERIOWNER OF THE RETAIL PORTION OF THE PROJECT FOR SET ASIDE
OF THE DEVELOPER'S CONTRIBUTION; AND FURTHER AUTHORIZING THE
ADMINISTRATION TO ENGAGE IN VALUE ENGINEERING TO FURTHER REDUCE THE
COST AND TIME FOR COMPLETION OF SAID PROJECT.
WHEREAS, on July 13, 2010, the City issued Invitation to Bid No. 40-09110 for the
construction of the Sunset Harbour Parking Garage and Retail Project (the ITB) with an
opening date of August 20, 201 0; and
WHEREAS, a pre-bid meeting to provide information to prospective proposers was
held on July 22, 2010; and
WHEREAS, Bidsync sent notices to 2,827 prospective proposers resulting in the
receipt of seventeen (17) proposals; and
WHEREAS, the Administrative Review Panel (the "Panel") convened on September
28, 2010, to evaluate and score the proposals in order to shortlist the responsive proposals
based on the evaluation criteria stated in the ITB; and
WHEREAS, the Panel convened on October 5, 2010, to evaluate, score, and rank
the shortlisted proposals based on the evaluation criteria stated in the ITB; and
WHEREAS, based on the scores and rankings of the Panel members, Boran Craig
Barber Engel Construction Company, Inc. (BCBE) was recommended to the City Manager
for award; and
WHEREAS, after considering the review and recommendation of the Panel, the City
Manager has exercised his due diligence and carefully considered the specifics of this ITB
process and, as a result, recommends that the Mayor and City Commission authorize the
Mayor and City Clerk to execute an agreement with BCBE, at the not-to-exceed amount of
$9,267,566 for the construction of the Project, plus approve a project contingency in the
amount of $926,755.60 (for a grand total of $10,194,311.60), subject to satisfaction of the
conditions set forth in this Resolution; and
WHEREAS, the City Manager also requests authorization to engage in value
engineering to further reduce the cost and time for completion of said Project.
NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND CITY
COMMISSION OF THE ClTY OF MIAMI BEACH, FLORIDA, that the Mayor and City
Commission hereby accept the recommendation of the City Manager, pursuant to Invitation
to Bid (ITB) No. 40-09110, for the Construction of the Sunset Harbour Parking Garage and
Retail Project; and authorize the Mayor and City Clerk to execute an agreement with Boran
Craig Barber Engel Construction Company, Inc. (BCBE), in the not-to-exceed amount of
$9,267,556.00, for the construction of the Project, plus approve a Project contingency in the
amount of $926,755.60 (for a grand total of $10,194,311.60), and execute subject to and
contingent upon satisfaction of the following conditions: 1 .) Proceeds of the bond financing
for the Garage being available to the City; 2.) occurrence of the "Second Closing" for the
remaining property being acquired by the City for assembly of the land to developlconstruct
the Project; and 3.) concurrent with the "Second Closing," execution of an agreement
between the City and DeveloperIOwner of the retail portion of the Project for set aside of the
Developer's contribution; and further authorizing the Administration to engage in value
engineering to further reduce the cost and time for completion of said Project.
PASSED AND ADOPTED THIS DAY OF 201 0.
ATTEST:
ClTY CLERK MAYOR
APPROVEDAS70
FORM & LANGUAGE
& FOR EXECUTION
COMMISSION ITEM SUMMARY I
Condensed Title:
A Resolution approving and authorizing the Mayor and City Clerk to execute a new sovereignty submerged land lease for the Miami
Beach Marina by and among the City and the Miami Beach Redevelopment Agency (RDA), as Lessee, and the Board of the Internal
lmorovement Trust Fund of the State of Florida. as Lessor.
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 sumeyed, 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 Should the City Commission approve the lease agreement? 1
Item SummarylRecommendation:
As one of its contractual obligations under the Lease Agreement between the City and RDA, as Lessor, and Miami Beach Marina
Associates, Ltd., as Lessee, for the Miami Beach Marina (the Marina Lease), the CitylRDA is required to maintain its Submerged Land
Lease with the State of Florida -for the submerged lands immediately adjacent to the Marina and comprising that portion of the Marina
Leased Premises defined as "Area 2 ( which currently contains the area for the pierslboat slips utilized by the Marina in its daily
operations)-- current and in full force and effect.
Accordingly, on January 21,1986, the City and the Trustees of the Internal Improvement Trust Fund of the State of Florida entered into
Sovereignty Submerged Land Lease No. 130765469, as recorded in Official Record Book 13020, pp. 2520 through 2526, of the Public
Records of Miami-Dade County, Florida, and as subsequently amended thereto (the Existing Submerged Land Lease). The Existing
Submerged Land Lease provided for a term of twenty five years, which will expire on January 20,201 1.
I Since 2008, the Administration and Marina Lessee have been coordinating a new Submerged Land Lease with the State, which is
attached hereto for the City CommissionIRDA's consideration and approval (the New Submerged Land Lease).
The New Submerged Land Lease is also for a term of twenty five (25) years. The substantive terms and conditions are the same as the
Existing Lease, with the exception of the following:
1. Sq. ft. has been revised to reflect the actual SF of the submerged land area-from 1,648,91 I, to 1,648,937 (an additional 26 sq. ft.).
2. The actual current number of boat slips416 (368 slips and 48 transient slips)-is now referenced.
3. The section of the Lease pertaining to "Use of (the) Property" has been clarified to reflect current uses and now includes liveaboards.
4. Commencing with the first year of the new Lease term, the annual rent is estimated to be between $176,000 and $178,000.
5. The new Lease now prohibits ANY operation of or entry onto the leased premises of gambling cruise ships or vessels that are used I principally for the purpose of gambling.
6. The new Lease also references Miami Beach Marina Associates, Ltd. as the current Marina Lessee.
In addition to these exceptions, which denote changes from language in the Existing Lease, the State has also added the following
additional section, containing "Special Lease Conditions," as follows:
1. Providing that ninety percent (90%) of all wet slips must be made available for rental to the general public.
2. Allowing the State certain rights with respect to review and modification of Lease terms and conditions, including Lease fees.
3. Resewing its rights to adjust the rent.
4. Extending the City's obligation to remove certain pilings currently situated on the area referred to as "Pelican Islandn.
5. Requiring State authorization, in the event the CityIRDA seeks to rebuild or restore any "non-water dependent structures".
The CityIRDA Administration and City Attorney's Office have reviewed the proposed New Submerged Land Lease, as submitted by the
State, and would recommend that the Mayor and City Commission approve same. As initially set forth above, the CitylRDA is
contractually obligated under the Marina Lease to maintain a current submerged land lease with the State in full force and effect.
Advisory Board Recommendation:
I
City Clerk's Office Legislative Tracking:
1 Anna Parekh, extension 7193
Financial Information:
T:\AGENDA\2010\November 17\Regular\Marina Submebed Land Lease.SUM.doc u
BEACH
Source of Funds:
kGEbl5A ITEM
DME I\-\T-[D
Financial Impact Summary:
Amount
$1 78,000 I
Account
01 1-9322-000353
MIAMIBEACH -
OFFICE OF THE CITY AllORNEY
JOSE SMITH, CITY ATTORNEY COMMISSION MEMORANDUM
TO: Mayor Matti Herrera Bower and Memers of the City Commission
FROM: Jose Smith, City Attor
CC: Jorge Gonzalez, City
DATE: November 17,201 0
SUBJECT: A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF
MIAMI BEACH, FLORIDA, APPROVING AND AUTHORIZING THE MAYOR
AND ClTY CLERK TO EXECUTE A NEW SOVEREIGNTY SUBMERGED LAND
LEASE (BOT FILE NO. 130765469) FOR THE MIAMI BEACH MARINA BY AND
AMONG THE ClTY AND THE MIAMI BEACH REDEVELOPMENT AGENCY
(RDA), AS LESSEE, AND THE BOARD OF THE INTERNAL IMPROVEMENT
TRUST FUND OF THE STATE OF FLORIDA, AS LESSOR
As one of its contractual obligations under the Lease Agreement between the City and RDA, as
Lessor, and Miami Beach Marina Associates, Ltd., as Lessee, for the Miami Beach Marina (the
Marina Lease), the CityIRDA is required to maintain its Submerged Land Lease with the State of
Florida -for the submerged lands immediately adjacent to the Marina and comprising that
portion of the Marina Leased Premises defined as "Area 2" ( which currently contains the area
for the pierslboat slips utilized by the Marina in its daily operations)-- current and in full force
and effect.
Accordingly, on January 21, 1986, the City and the Trustees of the Internal Improvement Trust
Fund of the State of Florida entered into Sovereignty Submerged Land Lease No. 130765469,
as recorded in Official Record Book 13020, pp. 2520 through 2526, of the Public Records of
Miami-Dade County, Florida, and as subsequently amended thereto (the Existing Submerged
Land Lease). The Existing Submerged Land Lease provided for a term of twenty five years,
which will expire on January 20, 201 1.
Since 2008, the Administration and Marina Lessee have been coordinating a new Submerged
Land Lease with the State, which is attached hereto for the City CommissionIRDA's
consideration and approval (the New Submerged Land Lease).
The New Submerged Land Lease is also for a term of twenty five (25) years. The substantive
terms and conditions are the same as the Existing Lease, with the exception of the following:
1. The square footage for the leased area has been revised to accurately reflect the actual
square footage of the submerged land area-from 1,648,911, to 1,648,937 (an addtl. 26
sq. ft.).
2. The actual current number of boat slips416 (368 slips and 48 transient slips)-is now
referenced.
3. The section of the Lease pertaining to "Use of (the) PropertyJ' has been clarified to reflect
current uses, and now specifically includes liveaboards (which the Lease continues to
define as any vessel docked at the facility and inhabited by a person or persons for any
five(5) consecutive days or a total of ten(l0) days within a thirty (30) day period, but not
to exceed six(6) months within any twelve (12) month period, nor allowing the use of any
vessel for a legal or primary residence).
4. Commencing with the first year of the New Lease term, the annual rent payable to the
State is estimated to be between $176,000 - $178,000 (Note: The reason for the
approximation is due to the fact that the State's CPI index is not availablelreleased until
late Decemberlearly January). The annual rent for FY 09/10 was $172,509.32,
representing an increase between last year and the first New Lease Year's estimated
rent of approximately 1.9%--3.1%.
5. Language which was previously added through a 2005 Amendment to the Existing
Lease, which permitted an exception to the lease prohibition on gambling vessels to
allow a previously existing sub-lease between the Marina Lessee and Majesty Enterprise
of Florida, LLC for a gambling cruise ship, has been deleted in its entirety. The New
Lease now prohibits ANY operation of or entry onto the leased premises of gambling
cruise ships or vessels that are used principally for the purpose of gambling.
6. The New Lease also references Miami Beach Marina Associates, Ltd. as the current
Marina Lessee.
In addition to the above, which denote changes from language in the Existing Lease, the State
has also added the following additional section, containing "Special Lease Conditions," as
follows:
1. Providing that ninety percent (90%) of all wet slips must be made available for rental to
the general public on a "first come, first served" basis, with no longer than one-year
rental terms and with no automatic renewal rights or conditions.
Allowing the State certain rights with respect to review and modification of Lease terms
and conditions, including Lease fees, for purposes including but not limited to (i)
conformity to adoption or revisions to Florida law; (ii) to ensure compliance with U.S.
Endangered Species Act of 1973 and the Florida Endangered and Threatened Species
Act of 1977; (iii) to conform to adoption or revision of rules regarding the assessment of
Lease fees; (iv) to conform to any modifications to any permits issued by DEP, the
applicable water management district, andlor the Army Corp of Engineers; and (v) to
remove any structure declared to be a public nuisance.
3. Reserving its rights to adjust the rent.
4. Extending the City's obligation, should the State so request during the Lease term, to
remove certain pilings currently situated on the area referred to as "Pelican IslandJJ
(which was deeded to the State in 1990), in the event that the State determines that
such pilings have deteriorated to the point where it deems they're a hazard to public
safety or navigation (Note: As stated, this obligation also existed under the Existing
Lease, and is carried over here).
We are cornmifed to providing excellent public service and safety to all who live, work, and play in our vibrant, tropical, historic community.
5. Requiring authorization by the State, in the event the CityIRDA (as Lessee) seeks to
rebuild or restore any "non-water dependent structures" included in the Lease (which, at
this time, only includes the dockmaster facility).
CONCLUSION
The CityIRDA Administration and City Attorney's Office have reviewed the proposed New
Submerged Land Lease, as submitted by the State, and would recommend that the Mayor and
City Commission (and Chairperson and Members of the RDA) hereby approve and authorize
the Mayor and City Clerk (and Chairperson and Secretary) to execute same. As initially set
forth in this Memorandum, the CityIRDA is contractually obligated under the Marina Lease to
maintain a current submerged land lease with the State in full force and effect.
F:\atto\AGUR\RESOS-ORD\MEMOS\Marina Submerged Land Lease (I 1-4-lO).doc
3
We are committed to providing excellent public service and safety to 011 who live, work, and play in our vibrant, tropical, historic community.
This Instrument Prepared By:
Dana Marcum
Recuning Revenue Section
keau of Public Laad Admhkbtion
3900 Commonwealth Bdd
Mail Station No. 125
Tallahassee, Florida 32399
BOARD OF TRUSTEES OF THE INTERNAZ. IMPROVEMXNT TRUST FUND
OF THE STATE OF FLORIDA
SOVEREIGNTY SUBM16RGED LANDS LEASE
MODD3CATION TO NTLECT CURRENT LEASE AREA,
REFLECT CORRECT hWMBER OF SLIPS, AND
ADD OPEN TO THE PUBLIC SPECIAL LF,ASE &ND~'I'IoN
BOTFZE NO. 130765469
THIS USE is hereby issued by the Board of Txustees of the htemal Improvement Trust Fund of the State of
WlTNESSETH: That for and in conaidemtion of payment of the annual lease fees hen* provided and the
faithfirl and timely perfomawe of and compliance with all terms and conditions stated herein, the Lessor does hereby
lease to atv of Miami Beach Florida and the Miami Beach Redevelmment Age= hereidb refemd to as the Lessee, the
sovereignty lands desm@d as follows:
A parcel of sovereignty Jubmrged land in Section QL
Tomhip 54 South, Range 42 East Biscam Bay,
County, containing 1.648.937 square feet,
more or less, as is more particularly described and shown
on Attachment A, dated Sn,tmk 16.2009.
TO KAVE THE USE OF the hereiuabove described premises fiom Amil28.2010, the effective date of this modified
lease, through Warv 21.203% the expiration date of this modiiied lease. The terms and conditions on and for which this lease
is granted are as follows:
1. USE OF PROPERTY: The Lessee is hereby authorized to opmite an- 368-sli~ ppd a 48 bmient slit,
kin " . exclusively to be used for &of commend n fadtv wrth boat liRs and a 3-stow mn-watar ~~E,, doc
jind recreational vessels. m colljunction wjth an upland commercial mar& y& fueling facilities, &a sewage pumpout
facility if it meets the regulatory requirements of the State of Florida Department of En- Protection or State of
Florida Department of Health, whichever agency has jurisdiction, and with liveaboards as defined in paragraph 29, as shown
and conditioned in Attachment A. AU of the foregoing subject to the remaining conditions of this lease.
2. mSE FEES: The Lessor hereby agrees, throughout the the of this lease, to waive the percentage of wet slip
rental fee rnovisim of Section 18-21.01 1. Florida Admiuishtive Code, (F.A.C.), and to allow the Lessee to pay the base rate per
square foc;t of the lease area as established by Chapter 18-21, F.kC. The Lessee hby agrees to pay an initial annual lease fee
for the expanded area @ square feet) of %= plus 25 percent surcharge and sales tax pursuant to Section212.031, Wda
Statutes, if applicable, within30 day6 of receipt of this My executed ded lease. The annual fee for the nmainiqg years of
the lease tbr the entire lease area (1.648.937 square feet) shall be adjusted pursuant to provision# of Section 18-21.011, FAC.
The Lessee agrees to pay an ad fee for the years of tbis lease at the base rate per square foot for the leased area as
established by Chapter 18-21, PAC. The Lessee wdl be notified in Writing, in advance, of the amount and the due date of the
annual payment. The lease fee shall be remitted dy to the Division of Sfate Lands as the agent for the Lessor, on the due
date each year until the term of this lease termjnates or expires.
to11
3. mT SLIP RENTAL -ON/&-: (A) The ZRssee shall provide upon
request by the Lessor any and all infxmation in a certified formneeded to calculate the lease fee specified in paragraph two
(2jjabave; including theodinincome, as deBd in subsection 18-21.003(3 l), Florida Administrative C-he, derived d&ctiy or
indirectly fiom the use of sovereignty submerged lands on an annual basis. When six percent (6%) of said annual income
exceeds the base fee or minimum ad fee established purmant to Rule 18-21.01 1, Florida Administrative Code, for any
lease year during the tam of this lease, the Lessor shall send the Lessee a supplemental invoice for the difference in the
amounts for that lease year. (8) The inshurnent or agreement used by the Lessee to transfer or assign the right to use a wet slip
at the leased docking facility to a third party shall include a provision that clearly no*s the wet slip renterIu~er/holder that if
the wet slip renter/usamolder subsequently transfers his right to use said wet slip to another party, the instnumat or agreement
used to tramfa said wet slip shall contain a provision that requires six percent (6%) of the d gross income derived iiom
said ins&ummt or agreement for the use of said wet slip be paid to the Lessee who, upon receipt, shall repoxt and transmit said
amount to the Lessor. The instnunent or agreement used by the Lessee to transfer a wet slip sball also include a provision that
clearly notifies the wet slip renterherblder that no interest in said wet slip may be further transferred unless a substantially
similar provision to the one contained in the precediug sentence is piaced in each succeeding instrument or agreement used to
tramfer said wet slip to each new wet slip renter/userblder.
4. LATE FEE ASSESSMENTS: The Lessee shall pay a late payment assessment for lease fees or other charges due
under this lease which are not paid within 30 days after the due date. This assessment shall be computed at the rate of twelve
percent (12%)~~ annum, calculated on a daily bask for every day the payment is late.
5. EXAMINATION OF LESSEE'S RECORDS: For purposes of this lease, the Lessor is hereby specifically
auhorized and empowered to examine, 6r the term of this lease including any extensions thereto plus three (3) additional
years, at all reasonable hours, the books, recmds, contracts, and other docum& confirming and- to the computation
of annual lease payments as speci6ed inpmgraph two (2) above.
6. mNANCE OF LESSEE'S RECORDS: The Lessee shall maintain -me accomtbg records for: (i) the
moss revenue derived directlv from the use of the leased ~&ses. (iil the moss revenue derived indirectlv 6mm the use of the
Lsed premises, and (iii) all other gross revenue &rived korn the ik&eets&eratiom on the ri* up&d pmm. The
Lessee shall secure, maintain and keep all records for the entire tenn of this lease plus three (3) additional ma. This period
shall be extended for an additional two (2) years upon request for examination of all records and accounts for lease verification
purposes by the Lessar.
7. AGREEMENT TO EXTENT OF USE: This lease is given to the Lessee to use or occupy the leased premises only
for those activities specified hexvie The Lessee shall not (i) change or add to the approved use of the leased premises as
defined herein (e.g., from conrmercial to multi-My residential, from Canporary mooring to rental of wet slips, from rental of
wet slips to conhctual amement with third party for do- of cruise ships, from rental of recreational pleasure craft to
rental or temporary mooring of charterhur boais, hm loadiug/offloading commercial to rental of wet slips, etc.); (ii) change
activities in any manna that may have an environmental impact that was not considered in the original authorization or
regulatory permit; or (iiii change the type of use of the riparianuplan& or as permitted by the Lessee's interest in the ripah
upland property that is more particuhly described in Attachment B without first obtaining a regulatory permithodified
permit, if applicable, the Lessor's written authorization in the form of a modified lease, the payment of additional fees, if
applicable, and, if appIicable, the removal of any structures which may no longer qualify for authorization under the m&ed
lease.
8. PROPERTY The Lessee &all make M claim of title or interest to said lands hereinbefore described by
reason of the occupancy or use tbn;eoC and all Mle and interest to said land hexeinbefore desnibed is vested in the Imsor.
The Lessee is prohiiited from including, or making any claim that purports to include, said lands descnied or the Lessee's
leasehold interest in aid lands into any fonn of private ownership, including but not limited to any form of condominium or
cooperative ownership. The Lessee is further prohibited from making any claim, including any advertisement, that said land,
or the use there06 may be purchased, sold, or re-sold.
Page _2- of a Pages
Sovereignty Submerged Lands Lease No. 130765469
9. -ST IN RTPAlUAN UPLAND PROPERTY: During the term of this lease, the Lessee shall mahtah the
inbaest in the ripmianupland property that is more particularly descnied in Attachment B and by reference made a part hereof
together with the riparian rights appmbmmt thereto, and if such intere~t is teamiuated, the lease may be tamhated at the option
of the Lessor. Prior to sale andlor termiaation of the Lessee's &erest in the riparian uplaud property, the he shall inform any
potential buyer or transferee of the Lessee's interest in the riparian upland property and the existence of this lease and all its
term and conditions and shall complete and execute and documents required by the Lessor to effect an assignment of this
lease, if consented to by the Lessor. Failure to do so will not relieve the Lessee from responsibility for full compliance with
the terms and conditions of this lease which include, but are not limited to, payment of all fees dor penalty assessments
incurred prior to such an
10. ASSIGNMENT OF LEASE: This lease shall not be assigned or otherwise tramfared without prior vnitten
consent of the Lessor or its dulv authorized agent Such assigmnent or otha transfer shall be subject to the terms, cwditi011~
and provisions of this lease, &rent manage&nt standads ah applicable laws, rules and regulations in effect at that time.
Any assignment or other transfer without prior written consent of the Lessor shall be null and void and without legal effect
The Lessor acknowledges that the leased premises are part of the leased premises addressed in an agreement between the
Lessee and Miami Beach Marina Associates, Ltd. The hsee acknowledges that the Lessor is not a party or bound by the
tern of the agreanent between the Lessee and Miami Beach Marina Associates, Ltd.
1 I. IND~CATION~TIGATION OF ALL CLAIMS: The Lessee shall investigate all ckims of every
nature at its expense. Each party is responsible for all personal injury and property damage attributable to the negligent acts or
omissions of that party and the officers, employees and agents there~f. Norhing herein ahall be construed as an indemnity or a
waiver of sovereign Mty enjoyed by any paTty hereto, as provided in Section 768.28, Elorida Statutes, as amended from
time to time, or any other law providing limitations on claims.
12. VBNUE: Lessee waives venue as to any litigation arising hmmatters relating to this lease and any such
litigation between Lessor and Lessee shall be initiated and . ' ' ed only in Leon County, Florida.
13. NOTICESICOEvlPLIAN~ATION. The Lessee binds ilxelf, its successors and assigns, to abide by
the movisions and conditions herein set forth, and said provisions and conditions shall be deemed covenants of the Lessee, its
suc&ssors and assigns. In the event the Lessee fails o&eh to comply with the provisions and conditions herein set forth,
or in the event the Lessee violates any of the provisions and conditions henin set forth, and the Lessee fails or refuses to
comply with any of said provisions or conditions within twenty (20) days of receipt of the Lessor's notice to correct, this lease
may be temdmtedby the Lessor upon thirty (30) days written n&e to the Lessee. Ifcancelel, all of the above-described
parcel of laad shall revert to the Lessor. All costs and attorneys' fees incurred by the Lessor to enforce the provisions of this
lease shall be paid by the Lessee. All notices required to be given to the Lessee by this lease OI applicable law or
administrative Ides shall be sufficient ifsent by U.S. Mail to the following address:
City of Miami Beach, Florida
1700 Convention Center Drive
Miami, Florida 33139
Miami Beach Redevelopment Agency
1700 Convention Center Drive
Miami, Florida 33139
The Lessee shall notify the Lessor by cefied mail of any change to this address at least ten (10) days before the change is
effective.
14. TAXES AND ASSESSMENTS: The Lessee shall assume all xesponsibiity for liabilities that accrue to the
subject property or to the improvements thereon, including any and all drainage or special assessments or taxes of evcry kind
and description which are now or may be hereafter la&y asswed and levied against the subject pmpeity during the
effective period of this lease.
15. NUISANCES OR ILLEGAL OPERATIONS: The Lessee shall not permit the leased premises or any part
thereof to be used or occupied for any purpose or business other than hemiin specified unless such proposed use and occupancy
are consented to by the ]Lessor and the lease is modified accordingly, nor shaE Lessee knowingly permit or der any
nuisances or illegal operatioh of any kind on the leased premises.
16. hfAlNTENANCE OF FACILITY IRIGHT TO INSPECT: The Lessee shall maintain the leased premises in
good condition, keeping the simdwes and equipment located thereon in a good state of repair in the interests of public health,
safety and welike. ~odock or pier shall be comtructed in any mmmr that would cause ham to wildlife. The leased
premises shall be subject to inspection by the Lessor or its designated agent at any reawnable time.
Page 3 of 2 Pages
Sovereignty Submerged Lands Lease No. 130765469
17. NON-DISCRIMINATION: The Lessee shall not discrimhie against any individual because of that individual's
race, color, religion, sex, national origin, age, handicap, or marital status with respect to any activity occurring within the area
subject to this lease or upon lauds adjacent to and used as an adjunct of the leased area Drtring the lease term, the Lessee shall
post and maintain the placard fiamished to the Lessee by the Lessor in a prominent and visible location on the leased premises
or adiacent business ofice of the Lessee. It shall be the responsibility of the Lessee to post the placard in a manner which will
proGde protection hm the elements, and, in the event thafsaid placard becomes illegiile at any time dudng the term of this
lease (including any extensions thereof), to not@ the Lessor in writing, so that a repkement may be provided.
18. ENFORCEMENT OF PROVISIONS: No failure, or successive faitnes, on the part of the Lessor to enforce any
pvisian, nor any waiver or successive waivers on its part of any provision herein, shall operate as a discharge thereof or
render the same inoperative or impair the right of the Lessor to enforce the same upon any red thereof or in the event of
subsequent breach or breaches.
19. PERMISSION GRL\NTEL): Upon expiration or cancellation of this lease all permission granted hereunder shall
cease and terminate.
20. mAL PROVISIONS: Renewal ofthis lease shall be at the sole option of the Lessor. Such renewal shall be
subject to the terms, conditions andprovisions of management standards and applicable laws, rules and regulations in effect at that
time. In the event that Lessee is in fd campliauce with the tams of this lease, the Lwee my apply in writing for a rend
Such a~~licatim for renewal must be received by Lessor no so- than 120 days and no later than 30 days prior to the expiration
date of%e original or curcent term hereoE The tkn of any renewal granted by& Le- shall commence in the last day of the
previous lease tem~ Ifthe Lessee fails to timely apply for a renewal, or in the event the Lessor does not grant a rewwd, the
Lessee shall vacate the leased premises andremove all slmctmm and equipment occupying and erecOed theaeon at its expense.
The obligation to remove all sbuchues authmized haeinupontennination of this lease shall constitute an afhnative catenaut
upon the Lasee's interest in the riparianupland property more paaicularly described m Amtchment B, which shall nm with the
title to the Lessee's interest in said -upland and shall be bindkg upon Lessee and Lessee's successors in title or
su-SOIS ininterest.
21. REMOVAL OF STRUCTURES/ADMINISTRATIVE FINES: Ifthe Lessee does not remove said stcuctures
and equipment occupying and acted upon the leased premises after expiration or cancellation ofthis lease, such structms
and equipment will be deemed forfeited to the Lessor, and the Lessor may authorize removal and may sell such forfeited
structures and equipment after ten (10) days written notice by certified mail addressed to the Lessee at the address specified m
Paragraph 13 or at such address on record as provided to the Lessor by the Lessee. However, such remedy shall be in addition
to all ok remedies available to the Lessor under applicable laws, rules and regulations including the right to corqpel removal
of all structures and the right to impose administrative fms.
22. ipeMOVAL COSTSILIEN ON RIPARIAN UPLAM> PROPERTY: Subject to the noticing provisions of
Paragraph 2 1 of this lease, any costs innured by the Lessor in removal of any structures and equipment constructed or
mhtained on state lands shall be mid by Lessee and any unpaid costs and expenses shall constitute a lien upon the Lessee's
interest in the riparh uplandInop&& tbat is more paaic&G descxibed in ~&chment B.. This lien on the Lessee's interest in
the riparian upland propaty shall be enforceable in summary proceedings as pmvided by law.
23. MCORDATION OF LEASE. The Lessee, at its own expense, shall record this fully executed lease in its
eniirety in the public records of the county wirhin which the lease site is located within %&en (14) days after receipt, and
shall provide to the Lessor within ten (10) days following the recordation a copy of the recorded lease in i en* which
contains the 0.R Book and pages at which the lease is raorded.
24. RTPAIUAN RIGHTS/FINAL ADJUDICATION: In the went that any part of any sttucture authorid hereundex
is &temined by a final adjudication issued by a court of competent jurisdiction to encroach on or inte&re with adjacent
riparian rights, Lessee agrees to either obtain written consent for the offending stTucture hm the affected riparian owner or to
remove the interfi or encroachment witbin 60 days from the date of the adjudication. Failure to conply with this
paragraph ahall constitute a material breach of this lease agreemait and shall be grounds for immediate termination of this
lease agreement at the option of the Lessor.
Page 4 of 72 Pages
Sovmeignty Submerged Lands Lease No. 130765469
25. ~MENTS/MODIFIC:4TIONS: This lease is the entire and only apement between the parties. Its
provisions are not severable. Any amendment or modification to this lease must be in writink. must be accated.
acknowlledged and executed by the Lessee and Lessor, and must comply with the rules and Gtutes in ekce at the time of
the execution of the modification or amendment. Notwithstamkg the provisions of this paragraph, if mooring is authorized
by this lease, the Lessee may install boatlifts within the leased pnmises without formal modification of the lease pmvided that
(a) the Lessee obtains any state or local regulatory permit that may be required; and (b) the location or size of the lift does not
increase the mooring capacity of the docking Mty.
26. ADVERnSEMBNTlSIGNSMON-WATtiR DEPENDENT ACTJVEJRSIADDITIONAL
A 0 No permanent or teqomy sip directed to the boating public
adverfjsiq the sale of alcoholic beverages shall be erected or placed within the leased premises. NO restam% or dining
activities are to occur wit& the leased premises. The Lessee shall ensure that no permanent, temporary or floating structures,
fences, docks, pilings or any stmctures whose use is not water-dependent shall be erected or conducted over sovereignty
submerged lands without prior written consent from the Lessor. No additional structures andfor activities including dredging,
relocation/realipnt or major repairs or renovations to authorized s.tructwq shall. be erected or conducted on or over
swereignty, submerged lands without prior written consent fromthe Lessor. Unless specifically authorized m writing by tkc
Lessor, such activities or structures shall be considereduuauthorized and a violation of Chapter 253, Florida Statutes, and shall
subject the Lessee to administrative fures under Chapter 18-14, Florida Administrative Code. This condition does not apply to
minor stmduml repairs required to maintain the authorized structures in a good state of repair in the interests of public health,
safety or we2fare; provided, however, that such activities shall not exceed the activities authorized by this lease.
27. ACOE AUTHORIZATION: Prim m commencement of construction and/or activities aulhorized herein, the
Lessee shall obtain the U.S. Anny Corps of Engineers (ACOE) permit if it is required by the ACOE. Any modifications to the
construction andlor activities authorized herein that may be required by the ACOE shall require consideration by and the prior
written approval of the Lessor prior to the commMlcement of construction and/or any activities on sovereign, submerged lands.
28. COMPUANcE WITH FLORIDA LAWS: On or m conjunction with the use of the leased premises, the Lessee
shall at all times comply with all Florida Statutes and a11 administrative rules promulgated thenunder. Any untawful activity
which occurs on the leased premises or in conjunction with the use of the leased premises aball be grounds for the termination
of this lease by the Lessor.
29. JJYEABOARDS: The term "liveaboard" is dehd as a vessel docked at the facility and inhabited by a person or
persons for any five (5) consecutive days or a total of ten (10) days witbin a thixty (30) day period. If liveaboards are
authorized by paragraph one (1) of this lease, in no event shall such "liveaboard" status exceed six (6) months within any
twelve(l2) month period, nor shall any such vessel constitute a legal or primary residence.
30. GAMBLJNG VESSELS: During the term of this lease and any renewals, extensions, modidications or
assigmenb thereof, Lessee shall pmkbit the operation of or erhy onto the leased premises of gambling cruise ships, or
vessels that are used principally for the purpose of gambling, when these vessels are engaged in "cruises to nowhere," where
the ships leave and return to the state of Florida without an intavenhg stop within another state or fbreign country or waters
within the jurisdiction of another state or foreign country, and any watercraft used to cany passengem to and from such
gambling cruise ships.
A. A minimum of niuetypercent (90°%) of the wet slips at the docking facility shall be made available for rent to the
general public on a "first come, &st served" basis, as defined in subsection 1&21.003(27), Florida Administrative Code, with
no longer than one-year mtal terms and with no automatic renewal rights or conditions. To help &me comphnw with and
to assist in providing public awareness of this requiremenf the Lesseeshall erect permanent sib at the watokvard entraace to
the docking facility and at the upland enme to the docking facility which are clearly visiie to passing boaters and the
general public. The signs shall contain language clearly indicating that a minimum of ninety (96%) of the wet slips at
the docking facility are available for rent to the general public. Any dockage rate sheet publications and dockage advertising
for the docking facility shall clearly state that a minimum of ninety percent (90%) of the wet slips at the docking facility are
open to the general public on a '?first come, first wed" basis.
Page 5 of Pages
Sovereignty Submerged Lands Lease No. 130765469
B. The tews and conditions here& including those related to assessment of lease fees, may be reviewed at any time
during the tam of this lease as deemcd necessary by the Lessor or i$ designated agcnf and such ten& and conditions &ty be
modified or additional conditions may be imposed as deemed necessary by the Lessor. For the Dwose of this orovisiop the
terms and conditions of this lease may be &dified (which may include thk addition of new ten& Ad conditi&) for, bit not
limited to, the following reasons:
a. to confom to the adoption or revision of Florida Statutes (F.S.), rules, and standards that requixe the
modification of the lease for complhq
b. to mure conq,lh.uce with the U.S. Endangered Species Act of 1973, 16 U.S.C.,# 153 1, et seq., and the
Florida Endangad and Threatened Species Act of 1977, Section 372.072, F.S.;
c. to conform to adoption or revision of rules regarding the assessment of lease fees;
d. to conform to any &cation to the terms and conditions of all applicable permits from the State of Mda
Department of En-tal Protection, the applicable water management district andlor the U.S. Army
Corps of Engineers, and all other required approvals; and,
e. to remove any structure decIared to be a public nuisance.
The Lessor shall allow the Lessee a reasonable tkne for compliauce with the amended or new tm and conditions.
C. This lease does not preclude the Lessor fiom adjusting the base lease fees or base rate during the term of this
lease.
D. The Lessee may not allow retail sales, except oil and gas, such as the sale of food, beverages, bait, tackle, sporting
goods, and other marinahoat supplies on all structures within the leased premises including the barbormaster quarters, without
the prior written consent of Lessor.
E. The Lessee agrees to remove, at its expense, the pilings located around the parcel of submerged land previously
deeded to the Lessor by Special Warranty Deed recorded May 14,1992, in Official Records Book1551. Page 0730. Public
Records of Miami-Dade County, Florida, should those ~iliu~s ever deteriorate to the to the mint of becomine a hazard to
public safety or navigation as determined by the State if Fl& ~epartment of ~nvird ~rotection ('Gepammmt").
Prior to removal, the Lessee shall obtain any required authorization from the Demtumt's Southeast District and all other
required perini@-ar authorhati0118 hm all a-pli&able local, state or federal agencies with jurisdiction for this activity.
F. Untess authorbd by the Lessor, the Lessee shall not rebuild or restore the non-water dependent stmctures
included in this lease if 50 percent or me of the area encomuassed bv stmcture is destmved or if use of structure has been
discontinued and 50 perc&t or more of the structure must be-kplacedcedin order to restore &chire to a safely useable
candition. In addition, the use of the non-water dependent structures included in this lease shall not be converted to a new use
except as authorized by the Lcssor.
Page 4, of a Pages
Sovaeignty Submerged Lands Lease No. 130765469
WlTNBSSES: BOARD OF TRUSTEES OF TIlE INTERNAL
IMPROVEMENT TRUST FUND OF THE STATE
OF FLORIDA
Original Signature (a)
BY:
Print?'ype Name of Witness J&ky M. Gentry, Operations and Management Consultant
Managm, Bureau of Public Land AdmMstmtion,
Division of State Lands, State of Florida Deparhent of
Original Signature En' '4 Protection, as agent for on behalf of the Board
of Tmtees of the Internal Improvement Trust Fund of the State
PrWrype Name of Witness
"LESSOR"
STATE OF FLORIDA
COUNTY OF LEON
The fmgoing insinmeat was acknowledged before me this day of ,20- by - -
Jefferv M. GcnlN. Operations and Manaecment Consultant Manaper, Bureau of Public Land Admmstra . . tion Division of Slate m. State of Florida De~arbncnt of Environmental Protection as agent for and on behalf of the Board of Trustees of the
Innnovement Truet Fund ofthe State ofFIorida. He is personally kwwn to me.
APPROVED AS TO FORM AND LEGm
Notary Public, State of morida
DEP Attorney
Printed, Typed or Stamped Name
My Commission Expires:
CommissidSerial No.
DX.
Original Signature Original Signature of Exedng Authority
original Signature Title ofExecuting Authority
TypdRinted Name of Witness 'ZBSSEE"
STATE OF
The forego@ insltument was acknowledged before me rhis day of . . ,20L by
Matti Hmem Bower as= fbr ad on be.half of Qtv of Mmu Beach Hods. She is personally known to me or who has
produced , a8 khtximtion.
Signature of Notary Public
Notary Public, State of
ComdssionfW No.
Page l_ of 72 Pages
Sovereignty Submerged La& Lease No. 630765469
Prinfed, Typed or S-d Name < .. 1 APPROVED '$&32, 7 .. ..-.',A
FORM & LANGUAGe $5:-
BY:
original Signature. ociginal SignatUte of Executing Authority
Matti Henem Bower
T-d Name of Executing AWty
CbaclPerson
original Signature Title of Executing Authority
TslpedlPrinted Name of Wimess
STATE OF
COUNTY OF
The fmgoing instnmoent was acknowledged be&% me this day of
MaaiasBowaas~haimsrsgdb r 20- by
for on behaIfofh/liarm:-. She is pasonally known to m:
or who hasp^ , as identification.
My Commission Expires:
Signature of Notary Public
Notary Public, State of
Commissiod~ No. Printed, Typed or Stamped Name
APPROVED AS r0
FORM &LANGUAGE
& FOR EXECUTION
Page 8 of _Z2_ Pages
Sovereignty Submaged Lands Lease No. 130765469
69999106L 'ON 11SS
sahd ZL 40 6 a6ed
w su='4=)'?uv
LEGAL DESCRfPnON:
LEASE AGREEMENT BETWEEN THE CITY OF MIAMI BEACH, A MUNICIPAL CORPORATION OF THE STATE OF
FLORIDA, AS LANDLORD, AND CARNER-MASON ASSOCIATES, LTD., AS TENANT, DATED JUNE 24,1983 (A SHORT
FORM LEASE WCH WAS FILED NOVEMBER 9,1983, RECORDED IN OFFICIAL RECORDS BOOK 11963, PAGE 1143),
AS MODIFIED BY FIRST AMENDMENT TO MARINA LEASE DATED AS OF OCTOBER 23,1991 AND SECOND
AMENDMENT TO MARINA LEASE DATED AS OF AUGUST 11,1994 (A MEMORANDUM OF LEASE AMENDMENTS
WHICH WAS FILED MAY 29,1997, IN OFFICIAL RECORDS BOOK 17656, AT PAGE 4709) AS AFFECTED BY PARTIAL
RELEASE OF LEASE DATED DECEMBER 27,1995, RECORDED IN OFFICIAL RECORDS BOOK 17077, PAGE 1193, AS
FURTHER MODIFIED BY THIRD AMENDMENT TO MARINA LEASE AGREEMENT DATED AS OF MAY 27,1997,
RECORDED IN OFFICIAL RECORDS BOOK 77673, AT PAGE 2846, AS ASSMNED BY ASSIGNMENT AND
ASSUMPTION AGREEMENT RECORDED JUNE 11,1997, IN OFFICIAL RECORDS BOOK 17673, AT PAGE 2830, AS
FURTHER MODIFIED BY FOURTH AMENDMENT TO MARINA LEASE AGREEMENT DATED AS OF APRIL 15,1998,
RECORDED DECEMBER 15,1998 IN OFFiClAL RECORDS BOOK 18391, AT PAGE 4862, AS PARTIALLY RELEASED BY
PARTIAL RELEASE OF MARINA LEASE AGREEMENT, RECORDED IN OFFlClAL RECORDS BOOK 18626, PAGE 4354,
AS TO THE FOLLOWING DESCRIBED PROPERM:
A PORTION OF LAND LYING WEST OF AND ADJACENT TO BLOCK 111, OF "OCEAN BEACH, FLORIDA ADDITION NO.
Y, ACCORDING TO THE PLAT THEREOF, AS RECORDED IN PLAT BOOK 2, AT PAGE 81, OF THE PUBLIC RECORDS
OF MIAMI-DADE COUNTY, FLORIDA, MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCE AT THE NORTHWEST CORNER OF SECTION 3, TOWNSHIP 54 SOUTH, RANGE 42 EAST; THENCE RUN
EASTERLY, ALONG THE NORTH LlNE OF SAlD SECTION 3, FOR 1350.00 FEET, MORE OR LESS, TO A POINT ON THE
EAST LINE OF BLOCK 90 OF THE AFOREMENTIONED PLAT; THENCE RUN S00°30'00"E, ALONG ME EAST LlNE OF
BLOCKS 90,89,88,87,86,85,84,83,82,81,80,79 AND A PORTION OF BLOCK 11 1 AND ALONG THEIR SOUTHERLY
mENSIONS FOR 5,207.00 FEET, TO THE SOUTHEAST CORNER OF LOT 1, BLOCK 111 OF SAlD SUBDIVISION;
THENCE RUN S89"06'00'W, ALONG THE SOUTH LINE OF SAID LOT I, BLOCK 11 1, FOR 260.00 FEET, TO A POINT ON
THE EAST WATER LlNE OF BISCAYNE BAY, SAlD POINT ALSO BEING THE POINT OF BEGINNING OF THE TRACT OF
!-AND HEREINARER DESCRIBED; THENCE RUN N32"12'76"W, ALONG A LlNE 300.00 FEET WEST OF AND PARALLEL
WH THE WESTERLY RIGHT-OF-WAY LlNE OF ALTON ROAD, FOR 2,159.28 FEET, TO 4 POINT. THENCE RUN
N28"29'08"~, FOR 323.93 FEET, TO A INTERSECTION WITH A LlNE THAT IS 35.00 FEET NORTHERLY OF AND
PARALLEL WITH THE NORTH LINE OF A LOT DESIGNATED 49 8, AS SHOWN ON THE "AMENDED PLAT OF LOTS 43
TO 50, BLOCK 11 1, "OCEAN BEACH, FLA, ADDITION N0.3", AS RECORDED IN PLAT BOOK 14, AT PAGE 70, OF THE
PUBLIC RECORDS OF MIAMI-DADE COUNTY, FLORIDA; THENCE RUN NB8"07'28"W, FOR 35.69 FEW THENCE RUN
~57"47'44"W, FOR 254.60 FEET; THENCE RUN N32°12'16"W FOR 20.00 FEET; THENCE RUN S57"47'44"W, FOR 300.00
FEET, TO A POINT; THENCE RUN S32"12'16"E, FOR 1,154.00 FEET, TO A POINT; THENCE RUN S57"47'4'W, FOR
150.00 FEET, TO A POINT; THENCE RUN S32"12'16"E, FOR 500.00 FEET, TO A POINT; THENCE RUN N57°4T44"E,
FOR 150.00 FEET, TO A POINT; THENCE RUN S32"12'16"E, FOR 912.00 FEET, TO A POINT; THENCE RUN
S67"48'22"~, FOR 347.79 FEET, TO A POINT; THENCE RUN N57"47'44"E, FOR 360.62 FEET, MORE OR LESS, TO
OTHER LANDS OF THE CITY OF MIAMI BEACH; THENCE RUN N 32-1 I137'W, FOR 326.25 FEET, MORE OR LESS, BY
OTHER LANDS OF THE CITY OF MIAMI BEACH, TO THE POINT OF BEGINNING. AND CONTAINING 37.85-1: ACRES
MORE OR LESS
Attachment A
Page 10 of 72 Pages
SSLL No. 130765469
NOTES: -
1) BEARINGS SHOWN HEREON REFER TO AN ASSUMED BEARING OF N32°12'18"W
ALONG THE WESTERLY RIGHT-OF-WAY LINE OF ALTON ROAD.
2) LEGAL DESCRIPTIONS SHOWN HEREON WERE PROVIDED BY CLIENT.
3) UNLESS OTHERWlSE NOTED, THlS FIRM HAS NOT ATTEMPTED TO LOCATE
FOOTINGS AND/OR FOUNDATIONS.
4) ORDERED BY: RCI MARINE, INC,
5) THlS SURVEY WAS PREPARED FOR THE EXCLUSIVE USE OF THE ENTITIES NAMED
HEREON. THE ATACHED CERTIFICATION DOES NOT EXTEND TO ANY'UNNAMED
PARTIES.
6) VISIBLE INDICATORS OF UTILITIES ARE SHOWN HEREON, HOWEVER, NO
ATTEMPT HAS BEEN MADE TO LOCATE UNDERGROUND ITEMS.
7) DISTANCES ALONG BOUNDARY OF SUBJECT PROPERN ARE RECORD AND
MEASURED UNLESS OTHERWISE STATED.
8) MEAN HlGH WATER LlNE AS SHOWN HEREON RUNS ALONG THE FACE OF EXISTING
BULKHEAD LINE MORE OR LESS.
9) AS TO RIPARIAN RIGHTS, THE CIN bF MIAMI BEACH IS THE OWNER OF ALL THE
LANDS LYING EASTERLY OF THE MEAN HlGH WATER ALONG ME ENTIRE LENGTH
OF THE SUBJECT LEASE AREA.
10) TOTAL LINEAR FOOTAGE ALONG SHORE LlNE = 2,808.46 LF.
11) ELEVATIONS IF SHOWN REFER TO N.G.V.D. 1929.
12) SOURCE OF ELEVATIONS: MIAMI-DADE COUNN BENCHMARK NO. D-151,
ELEVATION 3.72' N.G.V.D. 1929.
13) COORDINATES SHOWN ARE REFERENCED TO NAD 1983. N: 522,411.3632. E:
939,889.7387
14) AN ABSTRACT OF TITLE HAS NOT BEEN REVIEWED BY THE UNDERSIGNING
SURVEYOR. SOME EASEMENTS AND REFERENCES SUCH AS OFFICIAL RECORD
BOOKS SHOWN HEREON WERE TAKEN FROM SCHWEBKE-SHISKIN SURVN NO.
~J-4058A) DATED 1 1-16-2007 WHICH WAS PROVIDED BY THE CLIENT.
15) BULKHEAD ELEVATION 5.10' N.G.V.D.
LOWEST WATER LEVEL= (-)1.34' N.G.V.D.
16) TO LOCATE THE MEAN HlGH WATER LlNE SHOWN WE USED THE OUTSIDE FACE OF
THE SEA-WALL OR THE SHEET PILE IN CONTACT MTH THE WATER, IN SOME
PLACES THE FACE OF THE METAL SHEET PILE IS UNDERNEATH THE OUTSIDE
FACE OF THE SEA-WALL, IF THE SHEET PILE WAS CORRUGATED WE USED THE
FACE FARTHEST FROM THE LAND. DISTANCES SHOWN ALONGSIDE THE SEA-WALL
WERE MEASURED OR CALCULATED USING THE SAME CRITERIA. ON THE AREAS,
OUTSIDE OF ME SEA WALLS, THE MEAN HlGH WATER LlNE SHOWN WAS
DETERMINED FROM TIDAL BENCH MARKS 150, USING 7HE LABINS PUBLISHED
ELEVATION OF 0.15 FEET FROM THE 1983-2001 EPOCH.
SURVEYOR'S CERTIFICATION:
I HEREBY CERTIFY : THAT IN MY PROFESSIONAL OPINION AND TO THE BEST OF MY KNOWLEDGE AND BELIEF,
THE ATTACHED "BQ,UP$~&~Y 6URVEY IS TRUE AND CORRECT AS RECENTLY SURVEYED UNDER MY DIRECTION
AND ALSO THAT WJS~".~~MDA&Y SURVEY CONFORMS MTH THE MINIMUM TECHNICAL STANDARDS SET FORTH
BY THE FLORIDABC$RII 6~ B~,QRCSSIONAL SURVEYORS AND MAPPERS 1N CHAPTER 611317-6 OF THE FLORIDA
ADMINISTRATIV&GODEPURSI~WT TO SECTION 472.027 OF THE FLORIDA STATUTES.
, .
ND MAPPER
STATE OF FLORIDA
Attachment A
Page I I of 72 Pages
SSLL No. 130765469
Attachment A
Page12of72Pages
SSLL No. 130765469
Attachment A
Page 13 of 72 Pages
SSLL No. 130765469
Attachment A
Page 14 of 72 Pages
SSLL No. 130765469
I =ACH MARINA
AND LEASE SURVEY
dARINE, INC
;EACH, FLORIDA
Attachment A
Page 15 of 72 Pages
SSLL No. 130765468
Attachment B
Page 16 of 72 Pages
SSLL No. 130765469
Attachment B
Page 17 of 72 Pages
SSLL No. 130765469
I
(has lnslrvrnenl preped by or under Ihe SuprNillOn of
(and onsr lscordlng mould bs returned to)
99R5SS669 1979 JUI. 27 fl:30
(Sp~ca Rasu~sd lor Claa of ~oun)
AMENDED AND RESTATEDGRANT OF BAWALK EASEMENT
THIS AMENDED AND RESTATED GRANT 0 AL EASEMENT ('Grant of'
€laywalk Easeman is made and entered into as of tmy 0$ ,7999 by and among
WEST SlDE PARTNERS. LTD., a Florida limited paitnershlp ('Wesl SI 137, YACHT CLUB AT
PORTOFINO. LTD., a Florida limlted pannership ('Yachl Club') west Side and Yacht Club an
hereinafler colledively referred to as 'Gnntof], and the CITY OF MIAMI BEACH, FLORIDA. a
Flofida municipal corporation r'Gnnteae), the mailing address of which is 1700 Convention
Center Drive. Miaml Beach. Florida 33139.
I WHEREAS, Grantor and Grantee enlared into that certain Granl af Baywalk Easement
recorded January 28,lSBe in Official Records Book 17077, at Page 1232 of the Public Records 01
Miami-DadeCounly (lonnetly Dade County), Florida (the "Exlstlng BaywalkEasoment"): and
WHEREAS, tha parties have agreed to amend and reatale the Existing Baywalk
Easement In its antlrety as more parliculady set forth below.
NOW. THEREFORE, in considerationof he sum of Ten and No1100 Dollars ($10.00) and
other good and valuable consideration, Ihe receipt and sufficiency of which are hereby
acknowledged, the panies hareto hereby agree as follom:
I. The foregoing recilals are lrue and correcf and are Incorporated hereln by this
reference. This Amended and Restated Gtanl of Baywalk Easement hereby amends, replaces.
supersedes, and replaces the Existing Baywalk Easemed in its enthty, and acmrdingly, from
and after the date hereof, the Existing Baywalk Easemenl shall be of M fuNler form or effect.
2. Grantor hereby grants, conveys, bargains and sells lo Grantee, or its Permitled
Successor (as defined In Paragraph 10 hereol). for the use of the public generaUy end such
persona as shall from time lo time be dasignaled by Granlee, a pement, irrevocable non-
e~cluslve easement (subjecl to Ihe provisions of Parsgraph 18 below), for the, purposes herein
expreSSed, over and across that certain parcel of real properly (the "Eassment Parcel?
situated in Miami-Dade County. Florida and more parlicularly desuibed In Schedule A annexed
hereto and hereby made a part hereof, subject lo lhe following terms, conditions and
resewations.
Attachment B
Page 18 of 72 Pages
SSLL No. 130765469
3 The easement hereby granted shaii be for the Bole purposes of providing to the
public and lo Grantee. ~ts mvitees. agents, employees. guests, lessees and licensees, including.
without iirnitation. Grantor, ~b officers, emplqyees. agents and contractors, a non-exclus~e way
01 passage, and access to. and reasonable use of. the Easement Parcel as a baywalk for li)
pedestrian use and use by only Grantee and iils lessees andlor sublessees of small electric
powered-type vehicles or similar vehicles (such as golf caris) which may have nalural or liquid
.propane gas engines (provided said vehicles do not creale any more noise Ihan eledrjc
powered vehrcles). (ii) access to the conliguousmaiina property. (iii) Ule use of emergency and
law enforcement vehicles (for emergency use only). (iv) subject to the provisions of Paragraphs
'7. 0 and 9 hereof. for the installation, relocation or malnlananca d utilities serving the
contiguous marina property and Ihe Easement Pard in the subsurface 01 the Easement Parcel
and the maintenance of aoy uIilily boxes currently located on the surface of the Easement
Parcel. and {v) vehicles necessary to rebuild or replace we piers located adjacent lo the
Easemenl Parcel In the euent of a casually or as oUierwise required in Ihe normal and
customary operation of the marina ptopeny (provided such vehicles d~ not matenally InIerlere
wilh the pedestrian use ol the Easement Parcel).
4. Grantee. or its Pemined Successor, as applicable, agrees that iI (1) shall make
Ihe Easement Parcel available for use by the public generally and by Ula lessee of Ihe
contiguous marina property for marina operations (the 'Marlna Lessee"). pursuant lo the lerms
and conditions of that ceriain Lease Agreemen1 entered into by and between Granlee. as
Lessor. and Camer-Mason Associates. Lld.. as Lessee. dated June 24.1983, as amended by a
Firs1 Amendment dated October $3, 1991 (the 'First Amendment to the Marina Lease'?. a
Second Amendment dated August 11, 1991 (the 'Second Amendment lo the Marina Lease'). a
Third Amendmenl dated May 27, 1997 (the 'Third Amendment to the Marina Lease'?, and a
FouM Amendmenl dated April 15,1998 (Ule 'Fourlh AnIendrnMt fo the Mafina Lease'); said
Lease Agreement, as amended (hereinaner sometimes colleaivdy mfened to as the 'Marina
Lease'). and any subsequent lessee of the marina propeity for marina operations, (il) shall,
excepl as herdnafler expressly provided. restrict the use lhereof to. and shall adopl and
enforce regulalions lo limit Such use to, pedestrian use. the passage of small elecvic powered-
type veMcles or similar vehlcles (such as golf cads) which may have nalural or liquid propane
gas engines (provided said vehldes do not create any more noise than efectrlc powered
vehicles) with respect to Grantee and lls lessees andbr sublessees only, and the passage of
emergency, law enforcement and repair vehicles as provided for in subparagraph 3(v) above.
(iii) shall not constnrct or, except as hereinaner expressly provided, permit to be construded
upon the Easement Parcel any bulidings, structures or other lmpmvemsnls of a similar nature
and (iv) except only as specifically provtded in subparagraph B(A) below, Mall, at ils sole cost
and expense, reslore, maintain and repalr, Including, as required. lhs ntplaMmenl from time to
time of. the Easement Pdicel and the riprap of other bulkhaad and suppon dWdure3 on or
abutting the same (specifica~y induding the seawall and all marina IadUUes located adjacent
therelo) in a liml class condillon cmparabls to the remainder of Gmnlofs propFty and
olherwise in accordance with Ihe Operaling Slandards (as defined below): and except Only as
specibaliy provided in subparagraph 9IAJ below, Grantor, its succassom and assigns, shall
have no restoration. maintenante, repalr or replacement obligations wilh respect to Ihe
Easement Parcel, excepl lo the exlent that any of the foregoing shall be necessitated as a
result of the use of the E~sement Parcel by Oranlor, ils suctassors and assigns, pursuant lo
the pravislons of this Grant of BaywalK Eesernent.
Attachment B
PagelSof72Pages
SSLL No. 130765469
5 The pan~es acknowledge and agree thal the Easement Parcel is 'intended to be
used and malnlained In a first class manner and otherwise tons~slenl with the high slandard of
the propenles located adlacant to the Easement Parcel which are owned by Grantor and the
highest standards In the Clly of Miami Beach. The parties shall reasonably eelermine
standards of use and malnlenance cornistenl with the foregoing sentence (and which a1 a
minimum will indude 24-hour a day security (provided that Granlee shalt not be obligated to
hire privale security and nlay provide the requlsile security through the City'of Miami Beach
niuntdpal police force), daily refuse removal and lirst dass maintenance and repair1 Grantor
shall propose to the Granlee reasonable initial use and rnalnlenonce standards. indutiing rules
and regulalions at least 45 days prior to the comptetion of the conslnrction of the baywalk
rmprovemenls pursuant lo paragraph 9 below. and Granlee shall have 30 days lo reasonably
review and approve these standards in writing. In the event Granlee disapproves the pmposed
standards. Grantee shall pmvide Grantor wilh specific wrillen reasons therefor wlhm said 30-
day period. In the event Grantee fails to respond to the Granlor in writing within sale 30-day
period. the proposed standards shall be deemed approved. The parlies agree to use go& faith
elfons lo mutuatly agiee to such standards. Any dispute as lo use and maintenance slandards
whlch the panies are unable to resdve within lhe 45 day period prbr to compleli~ shall.
pursuant to paragraph 9.7 of that cwtaln Agreemenl dated Novemkrr 7, 1985. by and among
Grantee, the Miami Beach Redevelopment Agency and various Portofim Entities, including the
Grantor, as rewrded in Wicial Records Book 15987. Page 1197 of the Public Records of
Miami.Dade County. Florida (the '1995 Development Agreement') bd submlned for resolution
lo the Circuit Coun of the 11th Judicial Circuit, MLaml-Dade County. Florida. The use and
maintenance slandards. lnduding rules and regulations, as so promulgated and approved are
hereinaner collectively referred lo as the 'Operating Standards- The Grantae shall be
responsible. a1 Grantee's sole cost and expense. for the maintonance of the Easement Parcet
m accordance with the Operating Slandards as psevlously eslablished, provided that. Grantee
shall be pemlned lo make non-material moditaliom to such standards provided further such
modificattons do not materially reduce the ovenll standard of quality established by the
Operating Standards. Any fallure by the Grantoe, or ils Permllled Successor. to properly use
and maintain the Easement Parcel in substanlial accordanw with the Operating Standards
shall be deemed a default hereunder.
6. Grantee, and its Permitted Successor. shall be liable and responsible, to the
extent permitted by hw, lor any cosh, liabilities, claims or damages, including, without
timilalion. reasonable attorneys* fees and disbutsemenls at Ihe trial level and all levels of
appeal, relating lo death of or injury to persons, or loss of or damage to property, incurred by
Grantor, its successors andlor assigns, and resulting Irom, arising out of, or incurred In
connection with. use of the Easement Porccl by the public generally or by Grantee, or its
Permined Successor and their respective invitaes. agents, employeas, guests. lessses or
llcenteos in conneelion with the easement herein granted or the use of tho Easemenl Parcel.
In addltion. Grantee, and Its Permln~d Successor. shall defend any end all clahs asserted
against Grantor, its suw$sors and/or assigns, resulting from, arising out of. or incurred in
connedion with, use of the Easement Parcel by the public generally or by Gtantee. or Its
Permlned Successor and their respective lnvitees, agents, employees. guests, lessees or
licensees in connsctlon wilh the easement herein granted ar lhe use of the Easement Parcel.
In such event. Granlee shall be enlitled lo select counssi of Granlee's choice lo defend the
claim, however, Grantor shall be permitted, al Granlor's cost and expense, to retain
independent wunsel b moniloc the claim proceeding. Nolwithstanding anything contained
herein to the conlnfy, neilher Grantee, nor Its PermlHed Successor, shall be obligated or liable
Attachment B
Page 20 of 72 Pages
SSLL No. 130765469
lo Granlor or any third pariles for any wsu, liabilities, expenses. losses, claims or damages.
includ~ng. wr(i3out timilall0n. reasonable attorneys' fees or dlsbursemenls a1 Ihe trial level and all
levels of appeal. In respecl of third party claims relating to dedlh of or injury to persons. or loss
of, or damage to, propecly, and resulling from, ariang oul of or incurred in wnneciion with, use
of the Easemenl Parcel by the public generaUy or by Granlee or its Perrnined Successor and
their respeciive invlbes, lessees. agents, employees. guesb, or licensees in connecllon wilh
the easemerd herein granted or Ihe use ol the Easemenl Parcel, lor amounts in excess of lhose
limitations on he statutory waiver of s&eraign immunity provided under Florida Sttilute
768.28 (or any successor statute thereto), or in respect of claims resulting lrorn the intentional
or negligent acls oi Grantor, ils omcers. invilees, lessees, employees, agents, licensees or
contractors.
By execution of Ihe Joinder attached hereto. tha Marina Lessee (on behatl of itself and
its successors and assigns) consents and agrees to abide by the terms and conditlons of this
Granl of Baywalk Easement, and hereby indernnifms Grantor and the Grantee and hoMs
Grantor and the Grantee harmless from any wsts, expenses (including, but not limlled to
atlorneys' lees and wun costs, at the trial awrl and any appellate levels) and damages relating
to death of or injury lo persona, or 108s of or damage lo property, including, but not limited to.
any violation by the Marina Lessee, its invilees, agents, employees. guesls, lessees or
licensees of any laws, rules, regulations or ordlnancas regarding hazardous maleriais.
hazardous wasles, hazardous substances, solid wasle or ptlulion. whelher now existing or
hereafler enacted or prornuigated, as they may IN amended from Ume to lime ~Environmenlal
Laws"), any presence, release, or threal of release of hazardous materials, hazardous wasles.
ha2ardous subslances, solid waste or pollution, al. upon, under. from or wlthln the Easement
Percel arising out of Ihe aclivitieki of the Marina Lessee, its invitees, agents, employees, guests.
lessees or iicenseas. Ihe failure of Marina Lessee. ils invllees, agents, employees, guests,
lessees or licensees to duly perform any obligations or actions required to be taken under any
Environmental Laws, including, wilhout limilalion. Ihe Imposition by any governmental aulh&y
of any lien or so-called 'super priority lien' upon lhe Easement Parcal. any clem-up costs,
liability for personal injury or property damage or damage to the environmenl. and any (Tnes,
penalties. and punilive damages, or eny hes or assessments arislng oul of failure of the
Marina Lessea, its invileas, agenla, employees, guests, lessees or licenseas lo comply with any
laws. rules, regulations or ordinances governing the use of the Easement Parcal. which Grantor
andtor the Granlee incw as a reeull ol the Marina Lessee and its iovilees, agenls. employees,
lessees and licensees using the Easement Parcel, but excluding any claim resulting from Ihe
lnlenllonal or negligent acts of the Grantor or the Grantee (and their sUCUIssors and assigns),
and their respedive ofllcers, employees. agents or ccnlraclom; provided. however, lhat Ihe
foregoing indemnity Wilt not negate'or in any way abrogale Grantee's indemnification of the
Marina Lessee pursuan! to the terms and condilions ol Section 3.12 of the FbsL Amendment to
the Marina Loase. Marina Lessee (and 115 SUCC~SSO~ and assigns) shatl defend any such
dairn asserted against the Grantor, its successors andlor assigns, or Ihe Orantee, its
successom andlor assipns, resulling from, arising out 01, or incurred in connection with said use
of the Easement Panel, pursuanl to this Gran! of Baywalk Easement, or prior herato. h such
evenl, lha Marina Lessee shall ba entitled to selecl wuhel of ib choice to dafend the claim:
provided, however, that Ihe Granlor shaU be permitted, at ils cost and expense. 10 retain
independent counsel lo monitor the claim proceeding. Prior to taking possassion af the
Easement Parcel punuanl to lhls Grant of Baywalk Easement, Ihe Marina Lessee shall provide
to the Grantee and the Grantor a copy of its liabihty insurance along wilh the ~ppropriats
andorsement showing the Granlee and Ihe Grantor as additional insureds, whlch poiicy shall
Attachment B
Page 21 of 72 Pages
SSLL No. 130765469
I2 I 87 I 3PC 1 371
provlde Insurance coverage In a commercially reasonable amount for similar type fadilies. in
the event lhal the Mar~na Lessee falls to !xovide a copy of the renewal inlormalion for said
l~abilily msurance pollcy or policies to the Granlee and Granlor prior to the expirallon dale of
said polrcy or policies, then Ihe right to use the Easement Parcel pursuant to this Gram of
Baywalk Easemeol shall cease until such lime as a copy of said renewal lnlormalion for sa~d
Ilabllity Insurance policy or policles IS prov~ded lo the Granlee and Ihe Grantor
Granlee, or Its agents or employeas. shall be lrable and iesponsfblr. to Ihe edeil
permitted by law, for any costs. liabili[ces, clams or damages, including, without fiilation.
reasoneble anomeys' fees and disbursemehls at the trial level and all levels of appeal, relating
lo death of or Injury to persons, or loss of or damage to propetly including, but no! limited lo.
any vlolatlon by the Granlee, its agents or employees of any Environmental Laws, any
presence. release, or threal of release of hazardous materials, hazardous wasles, hazardous
substances. solid waste or pollution, at, upon, under. from or within Ihe Easernenl Parcel by
Grantee, its agenls or employees. the fallure of Grantee, agents or employees to duly parform
any obligations or actions required to be takan under any Environmental Laws, includlng.
without limitation. lhe ~mposition by any governmental auihorily of any lien or so-called "super
priority lien" upon the Easemenl Parcel, any dean-up costs, liability for pecaonal injury or
property damage or damage lo the environment. and any fines, penalties, and punitive
damages incurred by Granlor, its successors andlor asslgns in title to the Easement Parcel.
and resulting from, arising out of. or incurred in connection with the use of the Easement Parcel
by Granlee, or Its agenls or employees, in WMecli~ with the easement herein granted or
such use of Ihe Easement Parcel by [he Granlee. Grmtee, or its succeseors and assigns *hall
defend any and all claims asserted againsl Grantor. ils successors andlor assigns. resullihg
from, arising out of, or Incurred in connection wiih the use of the Easement Parcel by Grantee.
or its agents or employees, in connection with Ihe easemenl herein granted or such use of the
Easemenl Parcel. In such event. Grantee shall be enlilled to sebd counsel 01 Oranlee's
choice to defend the dalrn; provided, however, Ihe Grantor shall be pemtitled. a1 its cost and.
expense, to retain Independent counsel to monilor the dalm proceeding. Notwilhstanding
anything contained herein lo the contrary, neither Grantee nor its successor9 or assigns shaU
be obllgaled or liable lo Grantor or any third parties lor any msls. Ilabililies, expenses. losses.
claims or damages, lndudlng, wllhoul limilat~on, reasonable attorneys' lees or disbursements at
the trial level and all levels of appeal. in respwt of thlrd party bairns relating Iodealh of or injury
to persons. or loss of or damage to properiy, and resulllng fom, arising out of or incurred in
connection wilh the use of Ihe Easement Panel by Grantee, or ils succes~ors and assigns, and
their respecrive agems or employees, in conneclion wilh the easement herein granled or the
use or the Easemenl Parel, for amounts in excess d those limitations on the slatulory waiver
of sovereign immunity provided under Florida StaMb § 768.28 (or eny successor slalute
thereto), or In resped of claims resuiltng from Ihe Intanlionel or negligent acls of Grantor, Us
ohicers, invilees, lessees, employees, agents. guests, licensees or con(ract0rs. In the even1
fiat the Marina Lease expires, or is canceled or terminated, and a new lease for the Marina is
not immedialaly enlered into, then, for the period of lime that there is no Marina Lease or a new
lease for Ihe Marina. Granlee shall be liable and responsible, to the edenl permitled by law. lor
any costs, liabilities. claims or damages. Including, without limitation, reasonable altorneys' fees
and disbursements at the trial level and all levels of appeal, relating lo death of or jnjury lo
psrsons. or loss of or damage to properiy, Incurred by Granlor, ils successors and/or asslgns to
the subject propedy, and resulling from, arising oul of. or incurred in mnneclion wilh the us0 of
the Easement Parcel, pursuant to the lemls of this Giant of Baywalk Eesomant. Gronlee shall
defend any such claim asserted against Grantor. Its succassors andlor assigns, resulting from.
Attachment B
Page 22 of 72 Pages
SSLL No. 130765469
arising oul of, or Incurred In connection with said use of the Easement Parcel, pUrSUanl lo Ihls
Grant of Baywalk Easemenl. In such event. Grantee shall be entilied lo select counsel of
Grantee's choice lo defend the claim. provided, however, thal the Grantor shall be permitted, a1
ils cost and expense, to retain' independent counsel la monitor the claim proceeding.
Notwithstand~ng anflhing contained herein lo the contrary. Grantee (wilhoul limiting in any way
the liability of the Marina Lessee) shall no1 be obligated or liable to Granlor or any third parlies
for any costs. Liabilities, expenses. losses, claims or damages, including. wilhoul limitalion.
reasonable attorneys' fees or disbursements at the trial level and all levels ot appeal, in resped
of third pany claims relating lo deeth of or injury to persons, or loss 01, or damage to. property.
and resulling from, arising oul of or incuned in connecllon wilh said use of the Easement Parcel
pursuant to this Grant of Baywalk Easamenl, for amounts In excess of those limilalions on the
statutory waiver of Mverelgn imrnunily provided under Florida StetUte 3 768.28 (or any
successor statute thereto). or in respect of claims nsulling fmm the Intentional or negligent ads
of Grantor, its officers. Invitees, lessees, employees, agents, guesls, licensees or ConlraCtOrS.
7. Grantor resews unto ilsell, ils successors and essigns, Ihe perpetual right and
prlrilege of:
A. Unrestricled access lo, over. across and in the Easemenl Pareal for
purposes Consistenl with the use of the Easement Parcal as ~~lemplated In this Granl
of Baywalk Easement [which shall no1 include vehicular use except for conslruclion.
dellvery (provided Grantor agrees to reasonable reslricltons on permitted delivery hwn
and lo no1 permil delivery vehicles lo pa* in Ule Are lane, which shall be included wilhi
the Operaling Standards) andlor maintenance vehicles) and provlded such uses do no1
materially ~nlerfere wilh the conlinuous use of he Easement Panel as permitted herein
by Grantee, or its Permllled Successor and 116 invifees, agents, employees. guests,
lessees and licensees: and
B Using, in common wilh olhen entilled to the USE thereof, and granting.
wlthout the joinder or consenl of Grantee, or its Perrnlned Successor, to other persons,
corporations or entilies. the right use Ihe Easemenl Parcel for: (i) ail environmental
remediation purposes; (ii) construction staging purposes: (iii) wndrudlon of the
easement as contemplated by lhls Grant of Baywalk Easement and the Granl of
Easements (150 Fool Easement Area) given by West Side Pariners. Ltd. In favor of
Granlee executed of even dale herewith. (iv) such other purposes as may be necessary
to sallsfy Grantor's surviving obligations under the 1985 Development Agreement ('1
any) and that certain .Development Agreement entered into by and among South Shore
Development. Inc.. a Florida corporation. Grantae and the Miami Beach Redevel~pment
Agency dated the 17th day of April. 1086 and recorded in Oiiicial Records Bwk 12873.
Page 2612 of the Rublic Records of Miami-Dads County. Florida (the '1888
Development Agreement'), provided such uses do not materially inlerfere with the
continuous use of the Easemenl Parcel by the Grantee, or its Permlmd Succesaw end
its invttees, agonts, employees, guests, lassees end licensees as contemplaled in thls
Grant of Baywalk Easement: and
Attachment B
Page 23 of 72 Pages
SSLL No. 130765469
c Us~ng and occupytng. and granting lo olhers the ngnl lo use and occupy
(I) Subject b he provisions of Paragraph 8 hereof, the subsurlace of
the Easement Parcel for any ulitky or drainage purpose or olher use or purpose
which does'nol materially interfere with the non-exclusive rights herein granted lo
Grantee, or I& Permlned Successor and ils aulhorized invitees. agents.
employees, guests. lessees and licensees, induding. w~thout limilalion, the righl
to construcl, install. malntain and operate therein declric81. telephone, telegfaph,
telecommunication (including cable television). gas. gasoline, sewar, water, and
drainage fixtures, related equipment and fadlilies and lhe foundation and
holings 01 andlor anchors for subsurface improvemenls: and
(~i) The use and occupancy reserved hereln anall include the righl to
remnsuurucl. decorale or othetwlse enhance Ihe appearance of any landscaping
and sile improvernenls localed on the fasenlent Parcel a1 any time and from
time to time, a1 Granlor's, ils successors' and assigns'. cosl and expanse,
provided such ccut$l~~tion, dacorallons and enhancemenls are reasonably
acceptable lo Grantee and olhawise consistenl wilh the Operating Slandards.
Granlor, ils successors and assigna, shall, at ils cost and expense, mainlam and repair
any of the items it shall constnrcl or install on or under Ihe Easement Parcel pursuant to the
provisions of this Paragraph 7 (but not Paragraph 9 hereot); provkled, however, that
notwilhstandtng anythlng hereln conlained to the contrary, this Paragraph 7 shall not ba
construed or deemed to relleve Grantee. or its Permitted Successor. as applicable, of its
obligations lo restore, repair and maintain the Easemenl Parcel strictly in accordance wllh the
provisions of this Grant of Baywalk Easement.
Grantor shall be Itable and responsible, lo the extent permitred by law, for any costs.
liabilities, claims or damages, induding. without limilation, reasonable anorneys' fees and
dlsbu~aments a1 the lrial level and all levels of appeal, reialinp 16 dealh of or inJuly lo persons.
or loss of or damage to pmperly, Incurred by Granlee, or its Pennitled Successor, and resulting
from. arising out of or Incurred In mnnecUon wW. use of Ihe Easement Parcel by Grantor, Ils
successoffi andlor assigns. and thelr reapediva invilees, lessees, sgenls, employees, guesls or
licensees, lo Ihe exlent resulling from the inlenlional or negligent acts of Gmnlor, its offwrs,
invitees, lessees, employees, agenls, limnsees or conlraclom. In addltion. Grantor shall
defend any and all claims asserted againsl Granlee. or its Permined Sucoessor, resulting from,
alising out of or incurred ir, connection with, use of the Easement Parcel by Granlor. it8
succossora andlor assigns, and their respective invilees, lessees, agents, employees, guests or
iicensaes. to the exlent resulling from the inlsnUonai or negilgent acts of Grantor, its oHiwn.
invllees, lessees, employees, aganls, licensees or contractors. In such event, Gnnlor shall be
enlitled to select counsel of Granlor's choim to defend the clalm, however. Grantee shall be
permined, a1 Oranlee's cosl and expense. lo retain independent counsel to monitor the dalm
prooeeding.
8. The parties agree that in connecllon with each of iheir respeclive rights to install
and rnaintaln ulilities in the subsurfaca of the Easement Parcel pursuant lo this Grant 01
Baywalk Easement oach party (ij shall notlfy the olher of lls intenlion lo Install, repalr or
olhewise maintain such ultlilies, (ii) shall cooperate fully wllh lha other party and lake such
slaps as may be necessary lo insure that any such installation, maintenance or repair of sald
, Attachment 6
I Page 24 of 72 Pages
, SSLL No. 130765469
utilities will not interfere w~th Ihe use or funclioning of exisllng uttlities. (iii) shall, lo the exlent
feasible. inlegrats any proposed installallon. rnainlenanw or repair with any proposed work of a
similar nature by the other party, and [lv) shall not unreasonably inledere wilh the use of the
Easemenl Parcel by ihe other pany as permitled under lhis Grant of Baywalk Easement.
9. Grantor hereby agrees to permit Ihe existing underground utilities localed ouiside
ltie Easement Parcal to remain m their presenl localion until such time as Grantor delermines.
in Grantor's sole dlscrelion. lhat the relocatlon of the utiiilies is necessary in connection with Ihe
following: (i) Grantor's environmental remedialion of the propefly adJacenl to the Easemenl
Patcel (as well as the Easemenl Parcel), (li) Granlor's development 01 the property adjacent to
the Easement Parcel, andlor (ill) the construction d lhe baywalk improvements In the Easement
Parcel. A! the time Granlor determines thal it is necessary to relocate Ihe ulilles, Grantor shall
provide at least lno (2) weeks notiw lo Granlee prior to ccmmendng the relocation of the
utilities. Grantor shall be responsible for the physical relocation of the uWiliis (including the
relocalion of all utility llnes lo a location within the Easemenl ParwI bul not less than sir (6)
feel, from the eastern boundary ollhe Easemenl Parwl and the relocation of Ihe above ground
eleclncat boxes into the building consl~cted adlacent to the Easemenl Parcel), however,
Grantee shail be responsible for the payment of all wsls and expenses incurred by Grantor lo
relocate such utilities. In this regard, Granlee agrees to fund the relocalbn wsls and expenses
to Granbr wilhin 3D days following receipt of Invoices therefor. Notwlthslandinp any other lerm
conlamed herein. the responslbilily for reconslruction of the existing baywalk, from its present
conftglrraiion as existing on the date hereof lo the locatlon described in Schedule A annexed
hwelo and made a part hereof shall be as follows:
A. Grantor. its successors or asslgns, as applicable, shall, at Grantee's sole
COSI and axpense, conslNcl, or cause lo be conslnrcted, a new bulkhead andlor repair
the existing nprap bulkhead abunlng lhe Easement Parcel. In lhls regard, Grantee
agrees to reimburse Granlor, its successon or asslgna. as applicable, for all cosls and
expenses incurred under this subparagraph A.
B. Grantor. ils succ@ssors or asslgns, as applioable. snail be responsible for,
and shall bear be cosl ol the Initial reconslructlon of the surface of the Easement
ParmI, including but not limited lo relowtion of lighting fixture$, removal and resurfacing
of the surface and removing and replacing or relocating the existing landscaping. and
Grantee agrees to reimburse Grantor, its successors or asslgns, as applimble. for all
cosls and expenses incurred under MIS subparagraph 0.
10. This Grant of Baywalk Easemenl shall inure to tho benefit d and be binding
upon Grantor, and its successorj and assigns. excepl thal Griinlor or such successor or
asslgnee in title to the Easement Parcel, as the case may be, shall be released ot all fulw
obllgatlons hereunder upon conveyance of ils lnteresl in tho property encumbered heteb)St
provided, however, that any such transferee of Grantor or its successor or asslgnea, 0s Ihe
case may be, shall be bound by all such tens and condltions 01 this Grant of Baywalk
Easemenl. For purposes of this Grant of Baywalk Easement. Grantor shall only be pennfned to
asslgn Grantor's rights hereunder lo (and Grantor's successors nhall only indude) successor
developer(s) or mortgage lenders of the development parcels located adjacent to the Easement
Parcel andlor aasodaUon(s) designated with the responsibility of maintenance of common
areas in connecllon with the development or operation of such adlacant development parcels.
Grantor's sumssors andlor assigns shall not include individual unil owners or indhrldual
Attachment B
Page 25 of 72 Pages
SSLL No. 130765469
renters unless such unit owners or renters are successor developers andlor associations as
described above An assignment of Grantor's nghls hereunder shall only be effective if a
speciAc written assignment (including an acceplance by the successor developer and/or
assodation) is recorded In the Public Records of Miami-Dade County. Florida. Grantofs
successors andlor assigns shall maintain reasonable insurance coverage, to the exLent
oblamable, for the liabilities of Grantor hereunder. This Grant of Baywatk Easement shall be
binding upon Grantee, its Permitted Successor, and inure to the benefit of Grantee and its
Permitted Successor Grantee shall not be permined to assign. transfer or convey all or any
pafi of its Interests in the Easement Parcel or under this Grant of Baywalk Easement. except to
a successor municipal corporation. such successor municipal corporalion being herein refened
to as a "Permitled Successof', provided, however, that nothing herein shall be deemed a
tlmitation on Granbeh or a Permined Successor's right to permlt its invltees. agents,
employees. guests, lessees and licensees and the public lo use the Easernent Parcel in
accordance with the terms of this Grant of Baywalk Easemenl.
11. The easement granled herein is subjed to all matters listed on Schedule "8"
annexed hereto and by this reference made a part hereof and righb, if any, of the United Stales
of America and Ihe State of Florida in and to the Easement Parcel, or any portion thereof.
12. In lhe oven1 of a default hereunder. Ihe non4efaUlting party shall be entitled lo
seek all remedies available at law or in equity, excepl lor rescission, revocation or termination
ofthis Grant of Baywaik Easement.
13. In lhe even1 01 litigation arising out of the lerms of this Grant of Baywalk
Easement or the use of the Easement Parcel. the prevailing party will be entitled to reasonable
anomeys' fees and costs al the trial tevel and all levels ol appeal.
14. Upon plior written request of either pafiy, the olher party hereto shall furnish the
requesting parly an estoppel cerlif~ate reasonably satisfactory to lhe requesting party.
15. Granlor, its successors and assigns, shail have the right. but not the obligation.
to conrey tee title to the Easement Parcel to Grantee, or its Permifted Successor, at any time
and from time lo time, subject to the provistons of paragraph 16 below, and if Granlor. Its
successors or assigns, shall eled to do so. Grantee, and ils Permitted Succassor. hereby
agrees that (I) the rear yard requirement for the parcat of land encumbered by this Grant of
Baywalk Easement and the property adjacent thereto shall be reduced to zero (0) feet, (ii)
Grantee, or ib Permitted Successor, shall accept such conveyance and (iii) Granlor shalt have
the right to reserve to itself, its successors and assigns. the rights harain nrserred lo Granlor,
its successors and assigns notwithslanding such conveyance.
16. Noblthslanding anylhing to the mntrary set forth herein, this Grant of Baywalk
Easement shalt aulomallcally termlnale (subject only lo the Grsnlee's obllgations of
reimbursement as set forth In paragraph 8 above) without the execution of any further
documentation upon Granlor conveying to Grantee foe simpls title (by quit claim deed) to the
Easement Parcal. Each parly hereto shall, upan the request of the other patty, execute any
further documentation reasonably reque~led to evidence the terminalion of this Grant of
Baywalk Easemanl upon ths satisfaction of !he above requirement.
Attachment B
Page 26 of 72 Pages
SSLL No. 130765469
17. The Easement Parcel as set forth herein is lnlended lo be the final agreed upon
Baywalk Area (the "Beywalk Area") satisfying the baywalk requirements under that csrtain
Development Agreement bemeen South Shore Developers, Im, a Florida corporallon
{Grantor's predecessor). Grantee and We Miami Beach Redevelopment Agency, a publlc
agency organized and existing pursuant to the CommuniIy Redevelopmenl Ad of 1969, as
amended. Chapter 163, Part Ill, Florida Statutes (2985), dated April 17, 9966 and recorded in
official Records Book 12873, Page 2612. Public Records of Miami-Dade County. Florida (the
"Original Developmant Agresmeni") with rosped to the SSDl South Panel as defined in !ha
1995 Development Agreement.
IN WITNESS WHEREOF. Grantor and Grantee have caused this Grant of Baywalk
Easement to be executed in its name by its undersigned duly authorized officers arid its
[Executions and Acknowledgments Appear on FoIIowing Page]
Attachment B
Page 27 of 72 Pages
SSLL No. 130765469
Attachment B
Page 28 of 72 Pages
SSLL No. 130765469
Signed, scded md dclivercd
in the presence OF
YACHT CLUB AT PORTORNO. Lm.,
a Florido limited panaship
limited panncrship, Gsnerctl
. - Partner
, il~j~) /Yi(: lk. L By: TRG-YCP, INC., a 11,61y1/: hq h.1 Jii Florida corporalion,
ctntratpd 17
STATE OF PLORU)A 1
) SS:
COUNTY OF MIAMI-DADE 1
The foregoing imtrurncnt wu ~~cknowledged before me this&'day of Apd, 199'3 by
Robclro S. Rocha. as Xoc President of TRG-YCP, Inc., a Florida corpomtioq General Partner of
TRG-YCP, Ltd.. a Florida limited partnership, general ppnner of Yachl Club at Poftoho, Ltd., n
Florida limited parlnenhip, n behalfof lhe corpomlion and ps an act of the partncclhips. P
Personally Known 4 OR Pmduad Idend6cation
Type of Identification Produced
I
.,,i !,
(. 1.1 tJJ / {/ ..\
I L.
\. /' or StampName: [,I I://G[ /) ,'i 1111 It(& .
%&Public, State ofFlorida at Lugr
Commission No.:
My Commis~ioo Expires:
O,WglU(Ywa~YWI10
Attachment B
Page 29 of 72 Pages
SSLL No. 130765469
me: Cily Clerk ., ,-'
Jh NW
The foregoing inslrumanl was acknowledged belore me this & day of-*pril. 1999, by
Neisen 0. Kasdin, as Mayor of City of Miami Beach. Florida, a Florida municipal corporation. on
behalf of Ihe corporatiin. He personally appeared before me, is perwnallv known lo qe or
produced Y as MentiTccatin.
[NOTARIAL SEAL]
APPROVED AS TO
FORM 8 UNGUAGE
& FOR EXECUTlON
Attachment B
Page 30 of 72 Pages
SSLL No. 130765469
I% 18713 1%
JOINDER
'Fir undcmignd, MIAMI t3FACI.I MARINA ASSOCIA'SES, LTI).. 11 I:loride linrited
pinenhip, hareby joins in [la foregoing inslrun~cn~ for purposc3 of confirming ils ugrecmcnl tu
thc provisions thereof.
MIAMI BEACII MAItINA ASSOClA'rES.
1,TD.. o I:lorida Iimitd pnrlnurship
tly: SoRc Marine, Inc.. n 1:lorida
'I'irlc: President
S'I'A'I'E OF 1:LOR1I)A
by Robcn W. Christoph, ns PresidenL of SoRc Marine. Inc.. n Florida corpornlion, which is n
genernl painw of Miuni Bmch Mruirul Associates. Lrd., o 1:loridu limircd pnnnership, on beMf
of thc corporu~ion and thcparlncmhip. Hc pcmonslly sppcwcd bcforc mc. is pcrvonolly known
to mc or produccd-..~rc~~r -. iu idcnlilicnlion.
WOTARIAL SMLJ
My Commission Bxpircs:
Attachment B
Page 31 of 72 Pages
SSLL No. 130765469
CONSENT AND SUBORDINATION
The undersigned. ORXl US& CORPORATION, a Delaware corporation, as the holder of
the leasehold morlgaga enarmberlng the Marina Lease, and recorded in Official Records Book
17673, Page 2862 of the Public Records of Mlami-Dade County, Florida, hereby consents to
the foregoing Grant of Baywalk Easement and subordinates the lien of said mortgage lo he
rights granled in said Grant of Baywalk Easement.
ORIX USA WR~ORATION, a Delaware
corporation
[NOTARIAL SEAL]
Attachment B
Page 32 of 72 Pages
SSLL No. 130765469
Attachment B
Page 33 of 72 Pages
SSLL No. 130765469
SCHEDULE "Bn
Permitted Exceolions
1. Encroachments. ovedaps, boundary line disputes, or other matters which would be
disclosed by an accurate survey of the Real Propeny. I
2. Any claim that those porttons 01 the Easement Parcel which are submerged andlor lie
West of the Weslerly line of he lots in the subdivisions as same may be exlanded in a
Soulherly direction are sovereign Lands of Ihe Slale of Florida. I
3. Righls and easemenls of the United States Government for commerce. navigation.
fecreation and fisheries in and to any portion of the Real Propeny which have been
created by artillcia1 means or accfsted to any portions so created and riparian rlghls. I
4. Utility easement ovw. the vacated right-of-way reserved unto the City of Miami Beach and
contained in that Resolulion No. 8517427 filed August 23. 1983, in Offtcial Records Book
11885. at Page 1331. I
5 SSOl Oeudopment Agreement between the City of Miami Beach. Florida. Miami Beach
Redevelopment Agency and South Shore Developers. Inc., dated April 17, 1986, filed in
Official Records Books 12873. at Page 2612. as assigned lo West Side Partners. Ltd..
by that certain inslrument filed April 7. 1994, in Offital Records Book 16313, at Page
1077.
6. Agreement dated November 7, 1995 by and among the City of Miami Beach. Florida. a
Florlda municipal corporalion. the Miami Beach Redevelopment Agency, a Florida public
agency. and the Porlofino Entities listed {herein filed November 9, 1995, in Ofliclsl
Records Book 16987, at Page 1197.
7. Parking Agreement dated January 10. 1996 by and among the City of Mbml Beach.
Florida, a Florida municlpal corporation, the Miami Beach Redevelopment Agency, a
Florida public agency, and West Side Partners. Ltd., a Florlda iirnlted partnership. lied
January 29. 1996 in Official Records Book 17077, at Page 1196. I
8. Grant of Access Easement executed by West Side Patlners. Ltd., a Florida nmilsd
partnership, and Yacht Club at Portolino, Lld., a Florlda limited partnership, in favor ol
the City of Miami Beach, Florida, a Florida munidpal corporation. dated January 10.
1996 and filed January29.1996 in Offcial Records Book 17077. at Page 1245. I
9. Prelimlnaly Oeveiopmenl Agreement for PortoIino DRI beween Yacht Club at Portolno.
Ltd., West Side Partners, Ltd., Azure Coast Development, Ltd.. €891 Coastline
Developmenl. Lld.. Sandpoint Financial, Ltd.. and The Slate of Florida. Department of
Comrnunlly Affairs. 61ed July 22, 1996, in Official Records Book 17283. at Page 1933.
10. Notice of Adoption of a Development Order for the Allemativa Portofino DRI recorded
March 30, 1999 in Ofliciai Records Book 18541, at Page 3641.
Attachment B
Page 34 of 72 Pages
SSLL No. 130765469
11. Amended and Restated Waiver of Riparian Rights and Appointmen1 of Qualified Entity
by and among West Side Pa~tners. Ltd.. a Florida limited partnership. Yacht Club al
Portafino. Lld.. a Florfda limited partnership. the City of Miami Beach, Florida, a Florida
municipal corporation. and the Miami Beach Redevelopment Agency, a Florida publk
agency, dated May 24, 1999 and recorded May 27. 1999 in Official Records Book
18626, at Page 4648.
Note: All recording references are lo the Public Records of Miami-Dade County (fonnerfy
Dada County), Florida.
b i? 1
11
$B fi Y !
t,'
ii
i .;I
:4
Schedule 6
PE~O 2
?'"~~rorrc~ IIe-90r
a g.'*De~~*
"I ct* ww Ede- HARVEY RUWN
C~W~~r~oUor
Attachment B
Page 31 of 72 Pages
SSLL No. 130765469
86Rl50543
. , !k I 2883 t6 22137 .
GRANT OP PERMANENT I?ffiEIiENT
RNOW ALL llEN BY TABSE PRESENTS TiUlT:.
THE HOUSING AUTl3ORI'l'Y OP THE CITY OF MIAMI BEACH, and MIAMZ
BEACH HOUSXNC, INC. (hereinafter collectively called "Grantor")',
in consideration of .the surn'of (me and N0/100 Dollar fS1.00) and
other good an6 valuable consideration paid to Grantor by the CITY
of MIMI BEACH, FI.OP.IDA. a municipal corpor~tion [hcroinaftcr
called -Grantee"), the mailing address of which is 1700 Convention
Center Drive, Niami Beach, Florida 33139, hereby qrants,bargains
and sells to Grantee, for the use of the public generally and such
persons as shall .from time to time be desiqnated by Grantee, a
permanent, Ircevocable non-exclusive easement, for the purposes
herein ctxpressed, on, upon, under, over and across that certain
parcel of raal property (the "Easement Parcel") situated in Dade,
County. Florida and mdre particul~rly described as follows:
;rha west Forty (40) feet of Lots 1s through 20, lock
111, OCEAN BBACIi ADDITION NO. 3 accordins to the Plat .
thereof, recorZcd In Plat Book 2, Page Al, of the Public
Records oE ~ade County, Florida
TOGETHER WITH the right to USC in eOKlfflOn with the Grantor the
riparian rights appurtenant to the Easerncnt Area as ate hold and
owned by Grantor.
TO HAVE AND M llO1.n thc easement hereby grantcd unto Grantee,
upon and subjcct to the followlnq trcmt;, conditions and .
ieservations:
1. he easement hcrehy grantcd shall be Lor the sole
purposes of providing to the public and to Grantee,, its invttees,
lessees and licensees, includina, without Iimitztion, Grantor, its
officers. employees, agents and tenants, n non-exclusive way of
passage, and access to, and use of, the Easement Parcel an a
baywalk for (i) pedestrian use and usc by small, electric powered-
type vehicles (such as qolf carts), rii) access to the existing
marlne piers, (iii) the use of emergency vehicles (such as
embulances, fire trucks, police 'vehicles and rescue vehicles) and
(iv) subject to the provi.5iOns of Paragraph 6 hereof, for the
installation, relocation or maintenance oE utilities serving the
contiguous marina piers and the Easement Parcel in the, subsurface
of the Easement Parcel and the maintenance oE any utility boxes
located on the surface of the Easement Parcel.
2. Grantee agrees that it li) shall make the Easement
Parcel available for usc by the public generally an2 by the lessee
bf. the contiguous macina property for marina operations, f ii)
shall, except as hereinafter expressly provided, restrict the use
thereof to, and shall adopt and enforce regulations to limit such
use to, pedestrian use, the passaqe of small electric powersd-
rhis instrument prepared by Arnold M. WeIner
and return to: City Attorney
City of Miami Beach
1700 Cohvention Center Dr,
Miami Beach, Pla.. 33139 .
(305) 673-7470
Attachment B
Page 36 of 72 Pages
SSLL No. 130765469
typc vehicles (such as qolf carts) and the passayc of emergency
vehicles, (iij) shall not construct or, cxcept as hcrrinoftcr
expcessly provided. pertzit to !c constrtrctcb'upm tlic Kaocment
Parcel any hulldings or other :sprovcments hi o similar nature
[iv) shall, at ito sole cost and expense, restore, maintain and
repair, the Easement Parcel, and Grantor, Its successors and
assigns, shall have no restoration, maintenance, repair or
replacement obligations rith rtspect to the Easemcnt Parcel,
except to the extent that any of thc foregoing shakl be
necessitated as a result of the use of the easement Parcel by
Grantor, Its successors and assigns, pursuant to the provisions~of
this Grant oL Easement; (v.1 shall at 011 times exercise the
-easement and right Of use granted without interference with the
operation of the Project located on the contiguous property
comonly known as "Rebecca Towers North and South' (the
"Project'), nor shall it suffer or allow activity which would
create a nuisance or other trespass upon or against residents oE
the Project: fvil shall at all times provide free access to and
from the Easement Parcel lor the residents of the Project subject
to reasonable rules and reqolationa of Crantee;and [viii) shall
not allow access to trucks or other morbrized vchicles. except for
emergency vehic1.e~.
3. Grantee, may adopt, and change Erom time to time,
reasonable rules and regulations to regulate the conditions of use
of the Easement Parcel, includinq, without being liwited to, rules
and regulations to keep passage open for pedestrians, emergency
vehicles and small electric powered type vehicles, and to keep
access to the Easement Area open to the residents Of the Project.
4, Grantce shall inBeanify and hold harmless Grantor, Erom
the claims of any parties For damages or injury occurrinq upon the
Easement ParccJ oc arising out of thc Granters' uhe thcrcoE.
'5. Grantor reservcs unto itself, its successors and
assigns. the perpetual right ahd privilege OF:
A. Unrcntrictcd access to, over, across and in the .
Easement Parccl for purposes consistent with the use of the
Easement Parcel as contemplated in this .Grant OE Eascment;
and
B. Using and occupylng, and granting to others ' the
right to uae and occupy:
(i) The surface of and air space over the Easement
Parcel for any purpose which does not materially
interfere with the non-exclusive rights herein. granted
to Grantee. and its invitess. lessees and licensees,
including, without limitation, the construction of
walkways, bicycle paths, landscaping and other site
improvements (excluding any building structures or
improvements oE a similar nature) over, upon and across
the same, provided the same do not obstruct the passage
of pedestrians, small electric powered-type vehicles or
emergency vehicles: and
(iil Subject to the provisions of Paragraph 6
hereof, the subsurface of the Saselnent Parcel for any
utility or drainage surface or othec use or purpose
which does not materially interfere rith the non-
exclusive rights herein granted to Grantee, invitees,
lessees and licensees. including, without limitation.
the right to construct, install, maintain and operate
Attachment B
Page 37 of 72 Pages
SSLL No. 150765469
tclecommunicar ion, .gas, sewer, watcr , and dra'inago
fixtures.. related equipment and facili tics and thc
foundation and footin~s of.and/or anchors Enr subsurface
improvrments; and
(iii) The use and occupancy reserved herein
shall include the right to reconstruct, decorate or -
otherwise enhance the appearance OF any Ldndscaping and
' site. i~provemcnts located on ttie Easement Parcel at any
time and Crom time tp time, at Grantor's cost and
Grantor, its successors and dssiqns, shall, at its cost and
expense, rcaintsin and rcpair any of the items it shall construct
or install on or undcr the Easencnt Parccl pursuant to the
provisions of this Parasraph 5; provided, howcvcr, that
notwithstanding anytting herein contained to the contrary,. this .
Paragraph 5 shall not bc'eonstcued or deemcd to relieve Orantee,
of its .obligations to rcstore, rcpair and maintain the Eascment
Parcel strictly in accordance with the provisions of this Grant of
Easement
6. The parties agrcp th,at in connection with each of their
respective rights to install and maintain utilities in the
subsurface of the Easement Parccl pursuant to this Grant of
Easewent, each party (i) Shall notify the other of its intention
to install, repair or othcrwisc maintain such utilitics, (ii)
shall cooperate fully with the othcr party and take such steps as
may be necessary to insure that any such installation, maintenance
or repair of said utilities will not interfere with the use or
functioning of existing utilites and liii) shall, to the extent
feasible, integrate any proposed installation, maintenance or
repelr with any pcoposed work @i a similar naturc by the other
7. . Grantee agrees that it wit1 not erect, construct or
install any structure, improvement or landscaping under, across or
.on the Eascment Area without the specific written authority of
Grantor which authority will not be unreasonably wlthheld or
delayed. -Grantor hereby specifically authorizes reconstruction oE
the shoreline in accordance vith Dade County Department of ,
Environmental Resources Monagemcnt ,Coastal or Wetland Permit : CC-
8. This Grant of Easement shall inure to the beneFit of and
be binding upon Grantor and Grantee, and thel'r respective
successors and assigns.,,
9. he e,asement granted herein is subject to all matters of
10. In thc event of litigation .arising out of the terms of '
this Grant of Easement or the use of the Easement Parcef, the
prevailing party will be entitled to reasonable attorneys fees
and disbursements at the trial level and 013 levels oE appeal.
11. Upon print writtcn request qf eithec party, the other .
narty hereto shall furnish the requesting party an estoppel
bertificate reasonably satisfactory to the re,questing party.
-3-
Attachment B
Page 38 of 72 Pages
SSLL No. '130765469
011 t2@342213 . , sit
I .IN WITNESS WHEREOF, Grantor, hec caused this Gl.~r.t of Gancmcnt
co be executed in its name by its uhdcrsigned duly authorized
off iccrs and its corporate seal to hc hcreunto aFLixed, this -22-
day of -A%,t'-------.-, 1986-
I STATE OF FLORIDA
COUNTY OF DADE
I HEREBY CERTIFY THnT on thie day, before me, an officer duly'
authorized and qualjfied to take acknowledgments, person all^
appeared -LJI(R~ -$cL~~.J to me well known and known to
me to be the Indrv~du~ii--dcgriczbed in and who exccutcd the.
foregoing instrument as -~~&"~n/~:-~.f@~~ ----- nE the
Houainc Authoritv of tho Cltv of ~14~li B~DC%, anT he acknowledqed * -
before me that' he execu<ed the samc for the purpose bnd
consideration thcrein expeessecl
WITNESS my hand and official seal in the Coilnty and stad: .
last aforesaid, this 2-5- day OP --@&y--- , 1986. , :?:; ..
State of norida
My commission expires: . : .... > :;- .!, ;,*,: .: ,
, .I.... : ..,. ?;.;{.
STATE OF FLORIDA
COUNTY OF DADE
I HEREBY CERTIFY THAT on this day, before me, an officer duly
authorized and qualified to Cake acknowledqments, personally
eppeaced flutR-,"af C&,pldde to me well-known and known tb
me to be rnalvi ua scrTbed in and who executed the
foregoina instrument as of the
Miami 8eich Housing, InC. ai?%3&%~ea-&tEE-that he
Attachment B
Page 39 of 72 Pages
SSLL No. 130766469
Attachment B
Page 40 of 72 Pages
SSLL No. 130765469
This instrument prepared by:
99~27734'7 1997 nny 27 15:16
DUCSTPDEE 0 6U SORTX ' 0 45
HARVEY RUVIHP ~ERK ORIJE emrt'n
GRANT OF BAYRAW( EASEMENT
mOW ALL MEN BY THESE PRESENTS TilAT:
UEST SIDE PARTNERS, LTD., a Florida limited partnership
("Grantor"), in consideration of the sum ot One and No/lOO Dollars
($1.00) and other good and valuable consideration paid to Grantor
by the CLTY OF M=!I BEACH, TU,RTDA, a Florida municipal
corporation ("Grahtee") , the mailing address of which is 1700
Convention Center Drive, Miami Beach, Florida 33139, hereby .grants,
conveys, bargains and sells to Grantee, or its Permitted Successor
(as defined in Paragraph 8 hereof), for the use of the public
generally and such persons as shall from time to time be designated
by Grantee, a permanent, irrevocable non-exclusive eaSement
(sbbject to the provisions of Paragraph 14 below), for the purposes
herein expressed, over and across that certain parcel of real
property (the "Easement Parcel") situated in Miami-Dade County,
Florida and more particularly described in Schedule A annexed
hereto and hereby made a part hereof.
TO BAVE AND TO HOLD the easement hereby granted unto Grantee,
and' its Permitted Successor, upon and subject to the following . .
terms, conditions and reservations:
1. The easement hereby granted shall be for the sole puq?oses
of providing to the public and to Grantee, its invitees, agents,
, employees, guests, lessees and licensees, including, without
limitation, Grantor, its officers, employees, agents and
contractors, a non-exclusive way of passage, and access to. and
reasonable use of, the Easement Parcel as a bayualk for (i)
pedestrian use and use by onXy Grantee and its lessees andlor
sublessees of small electric powered-type vehicles or similar ,
vshicLes (such as golf carts] which may have natural or liquid
. propane gas engines (provided said vehicles do not create any more .
~IA951.0ll7E489-14
. .
Attachment B
Page 41 of 72 Pages
SSLL No. 130765469
. .
noise than electric powered vehicles), (ii) access to the I
contiguous marina property, (iii) the use of emergency and law
enforcement vehicles tior emergency use only), (iv) subject to the 1
provisions of Paragraphs 5, 6 and 7 hereof, for the installation,
relocation or maintenance of utilities serving the contiguous
marina property and the Easement Parcel in the subsurface of the
Easement Patcel and the mintenance of any utility bexes currently
located on the surface of the Easement Parcel, and [v) vehicles
necessary to rebuild or .reglace the piers located adjacent to the
Easement Parcel in the event of a casualty or as othewlse required
in the normal and customary operatibn of the marina property
(provided such vehicles do not materially interfere with the
pedestrian use of the Easement Parcel].
2. Grantee, or its Permitted Successor, as applicable, agrees '
that it (il shall make the Easement Parcel available for use by the
public generally and by the lessee of the contiguous marina .
property for marina operations (the "Harina Lessee"), pursuant to
the term and conditions of that certain Lease Agreement entered
into by and between the City, as Lessor, and Carner-Hason
Associates, Ltd., as Lessee, dated June 24, 1983, as amended by a
First Amendmept dated October 23, 1991 (the "First Amendment to the
Marina tease"], a Second Amendment dated August 11, 1994 [the
"Second Amendment to the Marina LeaseH), a Third Amendment dated
May 27, 1497 (the "Third Atnendment to the Harina Leasen), and a.
Fourth Amendment dated April 15, 1998 (the "Fourth Amendment to the
Marina Leasew) ; said Lease Agreement, as amended (hereinafter
sometimes collectively referred to as the "Marina Lease"), and any
subsequent Lessee of the marina property for marina operations,
(iz) shall. except as hereinafter expressly provided, yestrict the
use thereof to, and shall adopt and enforce regulations to limit
such use to, pedestrian use, the passage of small electric powered-
type vehicles or similar vehicles (such as 90I.e carts) which may
have natural or liquid propane gas engines (provided said vehicles
do not create any more noise than electric powered vehicles) with
respect to Grantee and its lessees andfor sublessees only, and the
passage of emergency, law enforcement and repair vehicles as
provided for in subparagraph l(v) above, (iii) shall not construct
or, except as hereinafter expressly provided, pennit to be
constructed upon the Easement Parcel any buildings, structures or
other improvements of a similar nature and (iv) except only as
specifically provlded in subparagraph 7 (A) below, shall, at its
sole cost and expense, restore, maintain and repair,' including, as
required, the replacement from titre to time of, the Easement Parcel
and the rip-rap or other bulkhead and suppart structures on or
abutting the same (specifically including the seawall and all
marina facilities located adjacent thereto) in a first class
condition comparable to the reminder of Grantor's property and
Attachment 6
Page 42 of 72 Pages
SSLL No. 130765469
.. otherwise in accordance With the Operating Standards (as defined
below); and except Only. as specifically provided ili subparagraph
7 (A1 below, Grantor, its successors and assigns, shall have no
restoration, maintenance, repair or replacement obligations with
respect, to the Easement Parcel, except to the extent that any of
the foregoing shall be necessitated as a result of the use of the
Easement Parcel by Grantor, its successors and assigns, pursuant to
the provisions of this Grant of Easement.
3. The parties acknowledge arid agree that the Easement Parcel
is intended to be used and maintained in a first class manner and
otherwise consistent with the high standard of the properties
located adjacent to the Easement Parcel which are owned by Grantor
and the highest standards in the City of Miami Beach. The parties
shall reasonably determine standards of use and maintenance
consistent with the foregoing sentence [and which at a minimum will
include 24-hour a day security (provided that Grantee shall not be
obligated to hire private security and may provide the requisite
security through the City of Miami Beach municipal police force),
daily refuse removal and first class maintenance and repair].
Grantor shall propose to the Grantee reasonable initial use and
maintenance standards, including rules and regulations at least 45
days prior to the completion of the construction of the baywalk
improvements pursuant to paragraph 7 below, and Grantee shall have
30 days to reasonably review and approve these standards in
writing. In the event Grantee disapproves the proposed standards,
Grantee shall provide Grantor with specific written reasons
therefor within said 30-day period. In the event Grantee fails to
respond to the Grantor in writing within said 30-day period, the
proposed standards shall be deemed approved. The parties agree to
use good faith efforts to mutually agree to such standards- Any
dispute as to use and maintenance standards which the parties are
unable to resolve within the 45 day period prior to completioh
shall, pursuant to paragraph 9.7 of that certain Agreement dated
November 7, 1995, by and among Grantee, the Miami Beach
Redevelopment Agency and various Portofino Entities, including the
Grantor, as recorded in Official Records Book 16987, Page 1197 of
the Public Records of Hiami-Dade County, Florida [the nNew
Development AgreementN)be submitted for resolution to the Circuit
Court of the 11th Judicial Circuit, Miami-Dade County, Florida. The
use and maintenance standards, including rules and regulations, as
so promulgated and approved are hereinafter collectively referred
to as the "Operating Standards." The Grantee shall be respons5.blet
at Grantee's sole cost and expense, for the maintenance of the
Easement Parcel in accordance wifh the Operating Standards as
previously established, provided that, Grantee shall be permitted
to make non-material modifications to such standards provided
further such modifications do not materially reduce the ov_erall
Attachment B
Page 43 of 72 Pages
SSLL No. 130765469
.. standard of quality established by the Operating Standards. Any
failure by the Grantee, or its Permitted Successor, to properly use
and maintain the Easement Parcel in wbstantial accardance with the
Operating Standards shall be deemed a default hereunder.
4. Grantee, and its Permitted Successor, shall be liable and
responsible, to the extent permitted by law, for any costs,
liabilities, claims or damages, including, without limitation,
reasonable attorneys' fees and disbursements at the trial level and
all levels of appeal, relating to death of or inj&y to persohs, or
loss of or damage to property, incurred by Grantorl its successors
andlor assigns, and resulting from, arising out of, or incurred in
connection with, use of the Easment Parcel by the public'generally
or by Grantee, .or its Permitted Successor and their respective
invitaes, agents, employees, guests, lessees or licensees in
connection with the easement herein granted or the use of the
Easement Parcel. In addition, Grantee, and its . Permitted
Successor, shall defend any and all clahs asserted agiinst
Grantor, its successors and/or assigns, resulting from, arising out
of, or incurred in connection with, use of the Easement Parcel by
the public generally or by Grantee, or its Permitted SUCCeSSOr and
their respective invitees, agents, employees, guests, lessees or
licensees in connection with the easement herein granted or the use
of the Easement Parcel. In such event, Grantee shall be entitled to
select counsel of Grantee's choice to defend the claim, however,
Grantor shalL be permitted, at Grantor's cost and expense, to
retain independent counsel to monitor the claim proceeding.
Natuithstanding anything contained herein to the contrary, neither
Grantee, nor its Permitted Successor, shall be obligated or Liable
to Grantor or any third parties for any costs, liabilities,
expenses, losses, claims or hges, including, without IiAititti~nr
reasonable attorneys' fees or disbursements at the trial level and
all levels of appeal, in respect of third party claims relating to
death of or injury to persons, or loss of, or damage to. property,
and resulting from, arising out of or incurred in connection with.
use of the Easement Parcel by the public generally or by G-tee or
its Permitted Successor and their respective invitees, lessees,
agents, e~dployees, guests, or licensees in connection with the
easement herein granted or the use of the Easement Parcel, for
amounts in excess of those limitations on the statutory Waiver Of
sovereign immunity provided under Florida Statute LS 768.28. (Or any
successor statute thereto), or in respect of claims resultrng from
the intentional or negligent acts of Grantor, its officers,
invitees, lessees, employees, agents, licensees or C~ntXaCtorS-
By execution of the Joinder attached hereto, the Marina Lessee
(on behalf of itself and its successors and assigns) consents and
agrees to abide by the terms and conditions of this Grant Of
I KIA9510/17a489-14 4
Attachment B
Page 44 of 72 Pages
SSLL No. 13076WB
Easement, and her.eby indemnifies Grantor and the Grantee and holds
Grantor and the Grantee harmless from any costs, expenses . (including, but not limited to attorneys! fees and court costs, at
the trial court and any .appellate levels). ancI damages rel.ating to
death of or injury to persons, or loss of or damage to property,
including, but not limited to, any violation by the Marina Lessee,
its invitees, agents, employees, guests, lessees or licensees of
any laws, rules, regulations or ordinances regarding hazardous
materials, hazardous wastes, hazardous substance-s, solid waste or
pollution, whether now existing or hereafter enacted or
promulgated, as they may be amended from time to time
("Environmental Laws"), any presence, release, or threat of
release of hazardous materials, hazardous wastes, hazardous
substances, solid waste or pollution, at, upon, under, from or
within tine Easement Parcel arising out of the activities of the
Marina Lessee, its fnViteeSt agents, employees, guests, lessees or
licensees, the failure of Marina Lessee, its invitees, agents,
employees, guests, lessees or licensees to duly perform any
obligations or actions required to be taken under any Environmental
. Laws, including, without limitation, the imposition by any
governmental authority of any lien or so-called "super priority
lien" upon the Easement Parcel, any clean-up costs, liability for
personal injury or property damage or dmage to the environment,
and any fines, penalties, and punitive damages, or any fines or
assessments arising out of failure of the. Marina Lessee, its
invitees, agents, employees, guests, lessees or licensees to comply
with any laws, rules, regulations or ordinances governing the use
of the Easement Parcel, which Grantor and/or the Grantee incur as
a result of the Marina Lessee ahd its invitees, agents, employees,
lessees and licensees using the Easement Parcel, but excluding any
claim resulting from the intentional or mgligent'acts of the
Grantor or the Grantee (and their successors and assigns), and
their respective officers, employees, agents or contractors;
provided, however, that the foregoing indemnity will not negate or
in any way abrogate the City's indemnification of the Biariha Lessee
pursuant to the terms and conditions of Section 3.12 of the First.
Amendment to the Marina Lease. Marina Lessee (and its .successors
and assigns) shall defend any such claim asserted against the
Grantor, its successors and/or assigns, or the Grantee, its
successors and/or assigns, resulting from, arising out of, or
incurred in connection with said use of the Easement Parcel,
pursuant to this Grant of Easement, or prior hereto. In such
event, the Marina Lessee shall be entitled to select counsel of its
choice to defend the claim; provided, however, that the Grantor
shall be permitted, at its cost and.expense, to retain independent
'counsel to monitor the claim proceeding. Prior to taking
possession of the Easement Pafeel pursuant to this Grant of
Easement, the Narina Lessee shall provide to the Grantee and the
Attachment B
Page 45 of 72 Pages
SSLL No. 130765469
.-.. . 82 186LW405
.. . Grantor a copy of its liability insurance along with the
appropriate endorsement showing the Grantee and the Grantor as
additional insureds, which policy shall provide insurance covetage
in a commercially reasonable amount for similar type facilities.
In the event that the Marina Lessee fails to provide a copy of the
renewal infonnation for said liability insurance wlicy or policies
to the Grantee and Grantor prior to the expiratioo date of said
policy or policies; then the right to use the Easement Parcel
pursuant' to this Grant of Easement shall cease until such 'time as
a copy of said renewal infomtion for said liibility insurance
policy or policies is provided to the Grantee and the Grantor.
Grantee, or its agents or employees, shall be liable and . responsible, to the extent permitted by law, for any costs,
liabalities, claims or damages, including, without limitation,
reasonable attorneys' fees and disbursements at the trial Level and
a11 levels of appeal, relating to death of or injury to persons, or
loss of or damage to property including, but not limited to, any
violation by the Grantee, its agents or ezaployees of any
Environmental Laws, any presence, release, or threat of release of
hazardous materials, hazardous wastes, hazardous substances, solid
waste or pollution, at, upon, under, from or within the Easement
Parcel by Grantee, its agents or employees, the failure of Grantee,
agents or employees to duly perform any obligations or actions
required to be taken under any Environmental Laws, including,
without limitation, the imposition by any govenu~ental authority of
any lien or so-called "super priority henn upon the Easement
Parcel, any clean-up costs, liability for personal injury or
property damage or damage to the environment, and any fines,
penalties, and puhitive damages incurred by Grantor, its successors
and/or assigns in title to the Easement Parcel, and resulting fr~m,
arising out of, or incurred in connection with the use of the
Easement Parcel by Grantee, or its agents or emplo~es, in
connection with the easement herein granted or such use of the
Easement Parcel by the Grantee. Grantee, or its successors and
I assigns shall defend any and all claims asserted against Grantor,
1 its successors and/or assigns, resulting from, arising out of, or
incurred in connection with the use of the Easement F+arCel by
I Grantee, or its agents or employees, in connsction with the
easement herein granted or such use of the Easaent Psrcel. In
such event, Grantee shall be entitled to select COUIIS~~ of
Grantee's choice to defend the claim; provided, however, the
Grantor shall be permitted, at its cost and expense, to retain
independent counsel to monitor the claim proceeding.
Notwithstanding anything cohtained herein to the contrary, neither
Grantee nor its successors or assigns shall be obligated or liable
to Grantor or any third parties for any costs, liabilities*
expenses, losses, claims or damages, including, without limitationt
Attachment 6
.. ' reasonable attorneysa fees or disbursements at the trial level and
all .levels of appeal, in respect of third party claims relating to
death of or injury to persons, or loss of or damage to property,
and resulting from, arising out of or incurred in connection with
the use of the Easement Parcel by Grantee, or its successors and
assigns, and their respective agents or employees, in connection
with the easement herein granted or the use of the Easement Parcel,
for amounts in excess of those limitations on the statutory waiver
of sovereign immunity provided under Florida Stafute 5 768.28 (or
any successor statute thereto), or in respect of clairns resulting
from the intentional or negligent acts of Grantor, its officers,
invitees, lessees, employees, agents, guests, licensees or
contractors. In the event that the Warina Lease expires, or. is
canceled or terminated, and a new lease for the Marina is not
immediately eneeredinto, then, for,the period of time that there
is no Marina Lease or a new lease for the Marina, Grantee shall be
liable and responsible, to the extent petmiteed by law, for any
costs,' liabilities, claims or damages, including, without
limitation, reasonable attorneys' files and disbursements at the
trial level and all levels of appeal, relating to death of or
injury to persons, or loss of or damage to property, incurred by
Grantor, its successors and/or assigns to the subject property,, and
resulting from, arising out of, or incurred in connection with the
use oi the Easement Parcel, pursuant to the terms of this Grant of
' Easement. Grantee shall defend any such claim asserted against
Grantor, its successors and/or assigns, resulting from, arising out
ot, or incurred in connection with said use of the Easement Parcel,
pursuant to this Grant of Easement. In such event, Grantee~hall
be entitled to select counsel of ran tie's choice to defend the
claim; provided, however, that the Grantor shall be permitted, at
its cost and expense, to retain independent counsel to.monitor the
claim proceeding. Notwithstanding anything contained herein to the
contrary, Grantee (without limiting in.any way the liability of the
Marina hssee) shall not be obligated or liable to Grantor Or any
i' third parties for any costs, liabilities, expenses, losses, claims
i or damages, including, without limitation, reasonable attorneys.'
1 fees or disbursements at the trial level and all levels of appeal,
in respect of third party claims relating to death of or injury to
persons, or loss of, or damage to, property, and resulting from,
arising out of or incurred in connection with said use of the
Easement Parcel pursuant to this Grant of Easement, for amoUntS in
excess of those limitations on the statutory waiver of sovereign
imtmity provided under Florida Statute !$ 768.28 for any successor
statute thezbtol, or in respect of claims resulting -from the
intentional or negligent acts of Grantor, its officers, invitees,
. lessees, employees, agents, gllests, licensees or contractors-
Attachment B
Page 47 of 72 Pages
SSLL No. 130765469
.. . 5. Grantor reserves unto itself, its successors and assigns,
the perpetual right and privilege of:
A. Unrestricted access to, over, across and in the
Easement Parcel for'purposes consistent with the use of the
Easement Parcel as contemplated in this Grant of Baywalk
Easement [which shill not include vehicular we except for
construction, delivery [provided Grantor agrees to reasonable.
restrictions on permitted delivery hours and to not permit
delivery vehicles to park in the Eire lang, vhich shall be
included within the Operating Standards) and/oz maintenance
vehicles] and provided such uses do not materially interfere
with the continuous use of the Easement Parcel as pedtted
herein by Grantee, ar its Permitted Successor and its
invitees, agents, employees, guests, lessees and licensees;
and
8. -Using, in common with others entitled to the use
thereof, and granting, without the joinder or consent of
Grantee, or its Permitted Successor, to ' other persons,
corporations or'entities, the right to use the Easement Parcel
for: (i) all environmental remediation purposes; tii)
construction staging purposes: liii) construction of the
easament as contemplated by this Baywalk Essement and the 150-
Foot Easement executed of even date herewith,(iv) such other
purposes as may be necessary to satisfy Grantor's surviving
obligations under the New Development Agreement (if any) and
that ceztain Development Agreement entered into by and among
South Shore Development, Inc., a Florida corporation, Grantee
and the Miami Beach Redevelopment Agency dated the 17th day of
April, 1986 and recorded in Official Records Book 12873, Page
2612 of the Public Records of Miami-Dade County, Florida (the
"1986 Development Agreement"], provided such uses do not
hlaterially interfere with the continuous use of the Easement
Parcel by the Grantee, or its Permitted Successor and its
invitees, agents, employees, guests, lessees and Licensees as
contemplated in this Grant of Baywalk Easement: and
C. Using and occupying, and granting to others tha right
to use and occupy:
(i) Subject to the provisions of paragraph 6,hereof,
the subsurface of the Easement Parcel for any utility or
drainage purpose or other use or purpose which does not
materially interfere with the non-exclusive rights herein '
granted to Grantee, or its Permitted Successor and its
authorized invitees, agents, employees, guests, Lessees
and licensees, including, without limitation, the right
Attachment B
Page48of72Pages
SSLL No. 130765469
to construct, install, maintain and operate therein
electrical, telephone, telegraph, telecommunicatidn
(including cable television), gas, gasolkne, sewer,
water, and drainage fixtures, related equipment and .
facilities and the foundation ,and footings of and/or
anchors for subsurface improvements; and
(ii) The use and occupancy reserved herein shall
include the right to recons tryt, decorate. or otherwise
enhance the appearance of any landicaping and site
improvements located on the Easement Parcel at any time
and from time to time, at Grantor's, its successors' and
assigns', cost and expense, provided such csnstr~ction~.
decorations and enhancements are reasonably acceptable to
Grantee and otherwise consistent with the Operating
Standards.
Grantor, its successors .and assigns, shall, at its cost
and expense, maintain and repair any of the items it shal.1
construct or install on or under the Easement Parcel pursuant
to the provisions of this Paragraph 5 [but not: Paragraph 7'
hereof) ; provided, however, that notwithstanding anything
herein contained to the contrary, this Paragraph 5 shall not
be construed or deemed to relieve Grantee, or its Permitted
Successor, as applicable, 'of its obligations to restore,
repair and maintain the ~ase'ment Parcel strictly in accordance
with the provisions of this Grant of Easement.
Grantor shall be liable and responsible, to the extent
permitted by law, for any costs, liabilrties, claims or
damages, including, without limitation, reasonable attorneys'
fees and disbursements at the trial level and all levels of
appeal, relating to death of or injury to persons, or loss of
or damage to property, incurred by Grantee, or its Permitted
Successor, and resulting from, arising out of. or incurred in
connection'with, use of the Easement Parcel by Grantor, its
successors and/or assigns, and their respective invifees,
lessees, agents, employees, guests'or licensees, to the extent
resulting from the intentional or negligent acts of Grantor0
its of Picera, fnvitees, lessees, eatployees, agents, licensees
or contractors. In addition, Grantor shall defend any and all
claims asserted agaixist Grantee, or its Permitted Successor,
resulting from, arising out of or incurred in connection with,
use of the Easement Parcel by Grantor, its successors and/or
assigns, and their respective invitees, lessees, agents,
employees, guests or licensees, to the extent resulting from
the intentional or ,negligent acts of Grantor, its officerst
invitees, lessees, employees, agents, licensees Or
Attachment B
Page 49 of 72 Pages
SSLL No. 130765469
!!! 1 8t32Bt4409 ' .
contractors. In such event, Grantor shall be entitled to
select counsel of Grantor's choice to defend the claim,
however, Grantee shall be permitted, at Grantee's cost and
expense, to r@taia independent counsel.to monitor the claim
proceeding.
6. - The parties agree that in connection with-each of their
respective rights to install and maintain utilities in the
subsurface of the Easement Parcel pursuant to this Grant of Baywalk
Easement, each party (i) shall notify the other of its intention to
install, repair or otherwise maintain such utilitiesr (ii) shall
cooperate bully with the other party and take such steps as may be
necessary to insure that any such installation, maintenance or
repair of said utilities will not interfere with the use or
functioning of existing utilities, (iii) shall, to .the extent
feasible, integrate any proposed installation, maintenance or
repair with any proposed work of a similar nature by the other .
party, and (ivl shall not unreasonably interfere with the use of
the Easement Parcel by the other party as permitted under this
Grant of Baywalk Easement.
7. Grantor hereby agrees to permit the existing underground
utilities located outside the Xasement Parcel to remain in their
present location until such time as Grantor determines, in
Grantor's sole discretion, that the relocation oE the utilities is
necessary in connection with the following: Ci) Grantor's
environmental remediation of the property adjacent to the Easement
Parcel [as well as the Easement Parcel), (iil Grantor's development
of the property adjacent to the Easement Parc~l, andfor (iii) the
construction of the paywalk improvements in the Easement Parcel. At
the time Grantor determines that it is necessary to relocate the
utilities, Grantor shall provide at least two (2) weeks notice to
Grantee prior to commencing the relocation of the utilities.
Grantor shall be responsible for the physical relocation of the
utilities [including the relocation of all utility lines to a .
location within the Easement Parcel but not less than six (6) feet,
'from the eastern boundary of the Easement Parcel and the relocation
of the above ground electrical boxes into the building constructed
adjacent to the Easement Parcel], however, Grantee shall be
responsible for the payment of all costs and expenses incurred by
Grantor to relocate such utilities. In this regard, Grentee agrees
to fwd the relocation costs and expenses to Grantor within 30 days
Eollowing receipt of invoices therefor. Notwithstanding any other
term contained herein, the responsibility for reconstruction of the, .
existing baywalk, from its present configuration as existing on the
date hereof to the 1ocatio.n described in Schedule A annexed hereto
and made a part hereof shall be as follows:
MIA95101178484-14
Attachment B - .--
Page 50 of 72 Pages
SSLL No. 130765469
A. Grantor, its Successors or assigns, as applicable, shall,
at Grantee's sole cost and expense, construct, or cause to be
constructed, a new bulkhead and/or repair the existing rip-rap
bulkhead abutting the Easement Parcel. In this regard, Grantee
agrees to reimburse Grantor, its successors or assigns, as
applicable, for all costs and expenses incurred under this
subparagraph A.
B. Grantor, its successors or assigns, as .applicable, shall
be responsible for, and shall bear the cost of the initial
reconstruction of the surface of the Easement Parcel, including but
not limited to relociition of lighting fixtures, removal and
resurfacing of the surface and removing and replacing or relocating
the existing landscaping) and Grantee agrees to reimburse Grantor,
its successors or assigns, as applicable, for a11 costs and
expenses incurred under this subparagraph 6.
8. Thls Grant of Baywalk Easement shall inure to the benefit
of and be binding upon Grantor, and its successors and assigns,
except that Grantor or such successor or assignee in title to the
Easement Parcel, as the case may be, shall be released of all .
future obligations hereunder upon conveyance of its interest in the
property encubered hereby; provided, however, that any such
transferee of Grantor or its successor or assignee, as the case may
be, shall he bound by all such terms and conditions of this Gtant
of Easement. For purposes of this Grant of Easement, Grantor shall
only be permitted to assign Grantor's rights hereunder to (and
Grantor's successors shall only include) successor developerts) or
mortgage lenders of the development parcels located adjacent to the
Easement Parcel and/or association(s) designated with the
responsibility of maintenance of common areas in connection with
the development or operation of such adjacent development parcels.
Grantor's successors and/or assigns shall not include individual
unit owners or individual renters unless such unit owners or
renters are successor developers and/or associations as described
above. An assignment of Grantor's rights hereunder shall only be
effective if a specific written assignment (including an acceptance
by the successor developer and/or association) is recorded in the
Public Records of Kiami-Dade County, Florida. Grantor's successors
and/or assigns shall maintain reasonable insurance coverage, to the
extent 08tainable, for the liabilities of Grantor hereunder. This
Graht of Baywalk Easement shall be binding upon .Grantee, its
Permitted Successor, and inure to the benefit of Grantee and its
Permitted Successor. Grantee shall not be permitted to assign,
transfer or convey all or any part of its interests in the Easement
I Parcel or under this Grant of Baywalk Easement, except to a
I successor municipal corporation, such successor municipal
I corporation being herein referred to as a "Permitted SuccesSor";
Attachment B
Page 51 of 72 Pages
SSLL No. 130765469
provided, however, that nothing herein shall be deemed a limitation
on Grantee's or a Permitted Successor's right to perinit its
invitees, agents, employees, guests, lessees and licensees and the
public to use the Easement Parcel in accordance with the terms of
this Grant of Baywalk Easement.
9. The easement granted herein is subject tm all mettezs
listed on Schedule '8" annexed hereto and by this reference made a
parthereof and rights, if eny, of the United States'of America and
the State of Florida. in and to the Easement Parcel, or any portion
thereof.
10. Sn the event of a default hereunder, the non-defaulting
party shall be entitled to seek all remedies available at law or in
equity,. except for rescission, revocation or termination of this
Grant of Baywalk Easement.
11. In the event of litigation arising out of the terns of
this Grant of qaywalk Easement or the use of the Easement Parcel,
the prevailing party will be entitled to reasonable attorneys' fees
and costs at the trial level and all levels of appeal.
12. Upon prior written request of either party, the other
party hereto shall furnish the requesting party an estoppel
certificate'reasonahly satisfactory to the requesting party:
13. Grantor, its successors and assigns, shall have the
right, but not the obligation, to convey fee title to the Easement
Parcel to Grantee, or its Pemi,tted Successor, at any the and from
time to time, subject to the provisions of paragraph 14 below, and
if Grantor, its successors or assigns, shall elect to do so,
Grantee, and its Permitted Successor, hereby agrees that (1) the
rear yard requirement for the parcel of land encl~mbered by this
Grant of Easeauent and the property adjacent thereto shall be
reduced to zero (0) feet, (ii) Grantee, or its Perrditted Successor,
shall accept such conveyance and (iii) Grantor shall have the right
to reserve to itself, its successors and assigns, the rights herein
reserved to Grantor, its successors and assigns notwithstanding
such conveyance.
14. Notwithstanding anything to the contrary set forth
herein, this Grant of Easement shall automatically terminate
(subject only to the Grantee's obligations of reimbursement as set
forth in paragraph 7 above) without the execution'of any further
documentation upon Grantor conveying to Grantee fee simple title
[by quit claim deed) to the Easement parcel. Each party hereto
shall, upon the request of the other party, execute any further
documentation seasonably requested to eviden~e the termination of
Attachment B
Page 52 of 72 Pages
SSLL No. 130765469
.. .
this Grant- of Easement upon the satisfaction af the &ova
requirement.
15. The Easement Parcel as set forth herein is intended to be
the final agreed upon Baywakk Area (the "Baywalk Area") satisfying
the baywalk requirements under that certain Development Agreement
between South Shore Developers, Inc., a Florida corporation
(Grantor's predecessor), Grantee and the Miami Beach Redevelopment
Agency, a public agency organized and existinq pursuant to the
. Community Redevelopment Act of 1969, as amended, Chapter 163, 'Part
111. Florida Statutes (19851, dated April 17, 1986 and recorded in
Official Records Book 12073, Page 2612, Public Records of Mi&-
Dade County, Florida (the "Original Development Agreementn) with
respect to the SSDI North Parcel as defined in the New Development
Agreement.
IN VZTNESS WHEREOF, Grantor and Grante= have caused this Grant
of Easement to be executed in its name by its undersigned duly
authorized officers a d its corporate seal to be ereunto W '4. affixed, as of the #I!- day of my , r~948'?~
Signed. sealed and delivered in WEST SIDE PMTNERS, LTD., a
the presence of: Florida limited partnership
BY: WEST SIDE P~~TNERS, XNC., a
ion, General
(corporate Seal)
STATE OF FLORIDA .
I fss:
I & FOR EXK;UT(QN
Attachment 8
Page 53 of 72 Pages
SSLL No. 130765469
, COUNTY OF MIAMI-UADE 1
STATE OF FLORIDA
) SS:
COUNTY OF MIAMI-DADE 1
The foregoing instrument was acknowledged before me thisi)atl) - day of Mw. ,.w'~& .tb D. I-ard,.h
Mayor of City of ~i&i Beach. Florida, a munpcipal corporation, on
behalf af the corporation. He/& personally appeared before me,
is -own to me or producedh~
identification.
[NOTARIAL SEAL]
KIA9510/178489-14
Attachment B
Page 54 of 72 Pages
SSLL No. 130765469
Attachment B
Page 55 of 72 Pages
SSLL No. 130765469
ORIX USA CORPORATION, a Delaware
corporation
MIAS5101178489-la .
Attachment B
Page 56 of 72 Pages
SSLL No. 130765469
Attachment B
Page 57 of 72 Pages
SSU No. 130765469
MWmnB, omflap& hndaty Ih dtjpitas, or o&sr matters umk-h wwfd be dlsdosed by an eaum
survey of the Real Pmpedy.
Any dalm that those portions of the Real Pmperrj which are submwged adof lie West of the Westeriy line of the
tob in Ihe tlubdiii~lons as same may be extended in a Southerly diredion are sovereign lands of the State of
Fbtida.
Rlghts and easements of the Unitwi States Oovamment br commerce, navigation. mmation and tisheties in and
to any pwtkrn of Ihe Real Proparty %MI hew been o~eated by arWlcial mgens or accreted lo any pwtiona w
aeatedwdApsrbnrighb.
Finsen Fwt Dnlnage OvtlLall Dtalnage Easement a- Lots 46 and 47, per Phl mc&ded in Plat Ekmk 14. Page
70, as set fofih in mat lrirsbumant Wed DaDmber 15. I872 under ClarKs File No. 72R480442. .-
Thwe certain easamerrts -wed unto the Ci of Mii Beach end conmined on P&S 2777 and 2778 of the
Spedsl Wanany Dssd fikd Juiy 31,1905 InOmcfal Remnin Book 12590, at Pa@ 2778 and dawxlbed as Mlcwo:
(0 undergmund WiC/ easement wer the South S'faet of Lot 30; (11) essiiment weithe Soutk lo feet of Lot 30 for
' maintenance of tha undecgrwnd utility anmnt Mbed In subparag~rh ti); and (El) underground utility
aasement wer Wb 498 and WC.
SSDl kvekpment Agrwment bstwnn the City of Mkmi Beach, Fbrida. Mkni Eeach R6develapmand ABsmy
and South Shon Devslopers. IM., &tad April 17.1986, tiled In'Ofidal Rds Badu 12873. at Pw 2812, es
sagigned'to \Nsst SMe Pathreis, Ltd.. by Ihatc@ain insbumen1 iikd Apcil7. 1894, In OIWd Raoord~ 16313,
at Page 1077.
Tern and jmvisbna of Pc4ob-10 Hddlngs §580.032(3) &Agnsmt wfth The Daparbnant of ComnMity Aft&
filed May 19, 1896, In GfiicW Rd Ed 16788, at Pam 3089, sa a!ktd by Notice of Adoplh ct a
Development Order forlhe Aitamativa PoMnoORI rscorded March 30.1999 In Offidal Reamls Book 18541. at
Paso 9641.
Agreement dabxi November 7. 1995 by and arnons the City of Miami Baadr. Fbdda, a FbMa mnklpal
Cirporatbn, tb Miami Beach ~edevebfhent 4enr.y; a ~lolida publlc agensy, and the Poiiofino i3Ws Lted
thersln Ilbd N-9.1895, In Oftidal RkMdr Bodc 18887. at Page 1107.
Abnded Restaled Pdng Agrew*ulL by and among tho Clty of Miami Mach, FbrMa, the Miml Beach
Redevskpmnt Agency and West Side Pam, Ltd.. dated as al May 24, 1969. and Feawded d ~ven data
hafwunh.
All rswnllng ralemnces em to the W~lc~arxds of ~lanrl~ade County (tMmerly OW dounv), F(MicB .
Atbchment B
Page58of72 Pages
SSLL No. 130765469
hiak~. Ritw~n. E~Q. ' . . . . 'L 1 e6~6~~84.4
la1 Wckaii Avenue
. Mlaml. Fbrlds 33131
l'hl~.dDEIBCnt Is him9 re-xcc~eded to earrect the.exhlD%t .arlqindlli
attaOhe4 thcirmto vhlcb lnadvmttantl). antalned Che ovcralll legal dE- ' scrlptloa of the p~agutles mnrd by Yes1 Sldc and Yacht Club rather . . tbm tbademcrIpr.rmm or' th~ TWPFCIIVC p6rtlana ChenoC omed by
an& of Pose partlea As rn ta be slt forth. Exhibits A end B .
attachsa bsrcro mplaLc thc ExhlDlt h attncbcd Lo tbc hoht and
Astptcd Walver as orlqlnallY r~mrdad nnd Drmrly rcfloct tba
mrti~m 'DI tho nr~rtim ovned W'WQL~ side SOL Carth in
nblblt A att+ch@d LrcCo) kra Yacht Club {as act forth In ~hlbit . B attadhdd hcrbto). . .
FD AND RE~TATEO WA~VER OF RIPARIAN RIGHTS
'
(SSOi SOUTH) ' ,
THIS AMENDED AND RESTATED WAIVER 0 IPARIAN HTS rAnlended and ' '
Restated man is made and ented into n or wq day +B9a 4 and a- .
. ,WEST SIDE. PAWNERS, LTD., .a florid8 llrnlad pa,- ip (71Vsst S1 '), YACHT CLUB A'I;
PORTOFINO, LTD., a.Florida Umlled patlnarahlp f Yacht Club'), the Cfi?' OF MWMl BEACH,
FLORIDA. a Ffotida municipal cdrporatipn m"Clty7, and the MYMI BEACH :I?EDWOPMENT .
A(3ENCY. a Florida public egew organized aha' sxlstlng pursuant lo the Gomrnunily
Rdevelopmentv of 1969 [Chaplet 13 Part 111. Rorida S!aMes, 8s amended) rbwelopment . . AnenW. .
' ..
. . : alwasai~:.
. . . .
WHEREAS. West Side, Yacht Chb, the City and the Agency enled Into thet cerle\lr
Waiver of Riparlan'Righti and Appointment of Qualified Entity dated as of January 10, 1v and
recorded January 2S. 7998 b ORidalRemrds Bwk 17077, at Page 1268 of the.Public Recordsd . .
Ml~mNlade County (formerly Dade County), Florida ((he 'ExbUng Waiver): . . ..
. WHEREAS, West Side Is the record qwner or, that iedaln real property mom partlcularfy
described In'ExhlbIt "A" ettached herelo and by lhls reference made a part hereof-Ithe . .
'Soulhem Portion of SSP1 South7, and Yacht Club Is the rewnl owner of that cerlain real '
. pbpbrtjrmore particulady desuibedln ExhibIt'"Bn anached hem10 and by this referen~bmade'a .
part hereof (the 'Norhem PortJon oISSOl Sam): . . . ,
WHER!~~, thk h;,~n~ea 919 to the southem ofl lion of SSDI Squib snd thq
'
NoWm Pprtibn of SSP1 South. and the parties have agreed Lo ameod end ?state !he Existing
Waiver in L entiretyas more paftieularly set 101th below. . . . . . .
' NOW, THEREFORE, in consiierationo~the sum of Tan and.~di00 ~ollars ($10.00).and ' . . . other gw and valuable consideration, the receipt and sufficiency of which are hereby
e&d9@,the parties hem10 hemby agree as folknvs: . .
Attachment B
Page 59 of 72 Pages
SSLL No. 130765469
.. .
. . hemby amend$, 'repla&, supersedes, and replaces fhe.ErisUng Waiver In its ehlirely. and . am+in,gly. from and after the dale hereol. Ihe'Existii Wiliver sha!l be of no furlher force gr
.EN&. . .
2. Was1 Side or9 behaifof Ifselland 11s sum61ons and.isbns, and YS& Club on
behalf of itsel and its sua;s$soh and assigns, each hereby waive all cftheir respedive tipadan
rlgMf, if any. foflhe Soqlhem Pofiien of SSDl Souih end tho Ndpm Porllon of .ESM Gm~h
'aa neatsaw to assum Lhe City anU Redevelopmenf Ag0ni;f Lhl Uls CRy apd RedeJebpmeot
#Agency will be able lo relaln'lhe exlsting.Modled Sovereignfy Submerged Land base (Ihe
'Submsfgad Land &adoi) hered lnlo by and among Ihe Boad of T~stees of the Inkmid
' ImpmVement Tpsl Fund.al the State of Florida, as Lessor. erxl Uie C47y of Miam1 Beach ad . . ute'clty of Miami Beach Redevelopment Agency. .aa Lessae. and mcorded k WI~ Recurds
Bwk 18S09, Page 3694, PuMc krds or Miami-Dada County, Florlde, as fhe Subnarged
Land Lease may bs modified or ertendsd from Lime lo lime (pimidad, hawaver. that any such
: rnodlficetion or e)?ensioi, does not expand to Lhe east Ihe exirlhg lwal dasdpUon lor Ihe land . , d&uib6d in Uw Submerged Land Lase'or In any ,way mab any lighh in favor d the Lassor
wlB wards to Ihe land located Id the eesl d the land desciSbed 'in the Submwged Lpnd
, Lease) and Wesl Skltl and Yacht Club, on behalf d Ulernaelvbsmd each d theii reopedive
su-m ehd mdgni. agree to mey to the City SI~M) and other good .a& vakabie
arnsldr)ratbn, the miolmum am'ounl d land neeassaiy (but in no eJent gmk than ihe
. Baywalk Easemen1 granled by .WW~ We and Yacht Chrb to.tha City of evon' data kwl),
cor~Kgwus it, the Wr MI the we@tem bundarj, of fhe Southsm Portion of SSDI Sauth ad
'the Northern Porn of SSDI Solith and wRaenl to fvrther confi or presswe the City's
riparian rights Jn canneUion with Ux, Submerged Lend bass, in the even1 thatpaid conrsyanod
is required by the flwida Depamnnl of, Environmenlal' Pmtedion or eny oUlbr Ptatb
govemmeatal body in order far the City and Ihe Rsdevelopment Agency to mainpin tho.
Submemed Land Leasa; provided, howaver, lha! upon such a conv8yanw, WBBl Sie and
Yaeht Club shall be permitid to indlxle Ihe podlons'oflheir reapedivs bOd eo conveyed in any
zoning' or planning slculaBons, lndudlng withoul Ilmldon, pet ba&, floor srsa ratio! lot size
endlor fmnlsgs, as Ihowh huh conveyance had no! oocwnrd. . .
3. W8sl Slda snd Yachl Club, on behalf d ,@emsekes and each of lh89 fBspsc(ive
aucfassors andass@ns, hereby'aldh&es Iha Cj4r andfw'tha Redwdamen( ~genty Lo apply
. , lor ad.rnrlinf&, in ita om name .(~d if applicable, on beW of Weel SMe and Yacht Chb.
lhek resp&ive succeswm nTid 'sssigns in Wa), any and dl parmiin, ken686 w olher
minmental .appwaIr 0- to Imp Be menns rnnt@ou~ to the GouYrsm PA bf
SSDI South and Uls Northern Podbn of SSDI Souttr m tho western bvmU~y (Ule 'Maha')
open and operating MI the same or subslsnliaHy same bask thal lhe Marlna Is tunsnlly
. opedllng, ,andlor lo mslora or rebulB any of Ihe improvemenls Yr the Madna, aas
lmpmvemenb exlU on Lhe dale hemof. .. .
5. ' ma Amendedand Restaled ~alver shatl !l bending op~n @ parlies hemto, and
lheir mspectfve suf&assm sn6w a68ig~ . , . .
Attachment B
Page60of72Pages
SSLL No. 130765469
Signed, sealed and daliue'red
[CORPORATESEAL] ; .
mwg LANGUAGE
Attachment B
Page 61 of 72 Pages
SSLL No. 130765469
Attachment B
Page 62 of 72 Pages
SStL No. 130765469
Attachment B
Page 63 of 72 Pages
SSLL No. 130765469
CoUNtV OF MIAMI-WDE ..
. . , w iod iwtmrnen! w,acknok~edged me itii~+'&.nfM~ by .
as -~4,-./ ' of ole MIAMI BWCH REDEVELOPMENT
, --orsaniudpunvant to U. Cammunlly Redevelopni~nt Ad dlBQP. as '' . amended, op beheif of th~ agency. 3/~ypenonoIly appear& bebra me- pk0Wb
as identiion. kmta me or produced . - ..---, - ..
Attachment B
Page 64 of 72 Pages
SSLL No. 130765469
Attachment B
Page 65 of 72 Pages
SSLL No. 130765469
Lots I Uwugh 7, iacltaive, rmd SouWaly 30.00 ice[ or Lot 8. the nkhwcslcrty linc . .
ofsaid 30.0001 being pdld lo ha 011 linc betwccn lols 7 Md8, in BIN 1 I 1 , . . . d OCEAN BEACH FhRiDA'MD%%N NO. .3, according to Ihc PI81 thcrcol: d . . rwsded in Plrrt Bwk Z..at Pnge~81, of the Public Rcmrda oiDadc County. Florida, , . cogelher wicb lhcacmlions thqmtoj . . . .
. '. Ta of Biscaync SbKl (ah &mas B.iwp Avcnue) n.'dwm on &'Plat d
, . BEACH FLOIUDA ,mDlTlDN NO. 3 lying wcstnly of Lc muihEdy
projoqiion of thc.wcs Right of Way fine of~cffcrxl; Avcaudes didwsr an said PIB~ sad ' being bounded on lbc wrrt by Bbyn~ BUY, IOgChCrwilh Ihc mti0~'thtrCto; , . .
ALSO:, ' , .. . .
'. ~li thet psrt.oi&y ~?h 132.0 feet orsection 10. i.o-hip 54 SO* Rnngc 42 .
described lu. Bcgmung.at.a pod on thc Norhem boundary oisaid'Scflion 10, which is . , . . ' .iM by the. .WcrIy bounaary of Jcfipson. Avauc dcd Soulbedy acm .
.Biync SW ra s point or plm of. hgiing; Ulcnoc Sou~hcrly continuing the
EsnP1 blmdary of Jefferson Avnuc cxmdcd for a dirlMcc.of 132.0 feel in a pojntd . . ~bcoce%stnly 208.1 'feet &on or Ius nloig n he pyallef b and t32.O fcct SO-; '
hm thc Nonhcrn line of snid Scclion 10 to Bic Bay: hnec Nmthwtshrrly . menadcring the Bay to ihc +cmccllon oi the Nonhm linc of Section ID; thcaco . Easraly nloug the Nonbcm lrno of Sezlion 10,285.0 itcl more or 1ns.m the point or '
pl~a of bcrpanig (h Noahoriy bo of &id Sarion 10 king Oanmon wilh th
Sor;dbPly ofBiscaync Sbnt* ar A,! oftiwt or& North .
132.0 fsd of Sqlron 10. Township 54 So& RMgc 42.Enrt, LnMvn as TW A m chc
' ' . SrniU~ Company Bay. Fmnl Tmt, mow panjeulerly dcsafbcd as foll~..& wit: . '
Bouuded on the North liy UicNonhcm lint orsnid Seetioh 10; boundcd on the h by .
thc East linc oTJ&&on Avcnue ~cnded; poundcd.on Ill? Spulh by a line paralld to . and disrant 132.0 fsl South of the NoNrm Lme oisatd Sccbon 10. and bounded on Be
Attachment B
Page 66 of 72 Pages
SSLL No. 130765469
.. . .,
,I.. .' I . . - . I.
.' .
. .
. .
I .'
' . ..
. . . , . . .. . .
Soulhrsfdy lm of @d .
Block I1 1, of OCEAN . .
rccotded in Plat Book 2; .
. ..
i. . . . .
Attachment B
Page 67 of 72 Pages
SSLL No. 130765469
e. ..
..' .
'.I g:ls€i26f~sno .
Y
-* ' 'Ihislns!~mmt PrepdBy: S.A 4.2.1.5
Thomas V. %an, B.k
Steel Hector-& Davis UP 99R277348 1999 HAY 27 15:ih
4000 First Union Financjal Center
Miami. Florida 33131-2398
' WAIS'ER'OFRIPARKANRIGHTS . .
(SSD!NOR'IT.I) '
1999,
This Waiver of Ripdan Rights ("Weivd') t made as of tbay day C+9,-p of
by and ammg WEST §WE PAR'fN'QU, LTD., a Florida limited partnership at Si e"). the
CITY OF MYIMI BEACH, FLORIDA, a Florida municipal corporation ("GI$') and THE MIAMI , BEACH REDEVELOPMENT AGENCY, a Florida public age- organized and misting pursuant
to Lc Cody Redcvclopmcat Act of 1969 (Chapter 163, Part IX, Florida Statutes, as amended)
("Redwelopmat Agency").
WHEREAS:
A West.Side, the City and the Rcdevclopmeni Agency are all parties to a dn
Agreement dartd November 7,1995, remrded in Ofticial Rerds Book 16987. at Page ,119'1. of the
PublicRecords dMiami4ade Caunty, Florida C'Dtvtlopmcnt Agr~ment").
33.' Pmu~t to theDevdopmcnt Agremtnf thellcdcvelopment Agency is on even date
herewith wnveyiag to West Side that certain red property more parbhrlarly described in . Mibit ''An.attach* herito to by this refwence made a part hcreoP(tbc "SSDIND~~~ ParceF).
' C In connectionwitb tlif, convtysnu of the SSDl North Parcel, West Side on behall
of itselfand its successon Bnd aslips h;ts agreed to waive the riparian rights, ifany, for the SSDI
Nonb Parcel, subject to tbe terms and provisions set firth herein. '
. ,
Now,Tbenfarr, inu)~wtion of the sum of Ten and Not100 DoIIan (S10.00) and OW . god andvdubk consldaati6t1, the receipt and suiiicicncy ofwhich hemby acknowlidgul. the
parties hereto hereby agrees as follows:
. .
1. ' The foregoing rtdlals are true and &rmt and incarporated htr* by* refycc.
2. ' Wcst'Sido on behalf ofitself and its ~CCUSOIS wd @signs hcnby waivf~ dl of* .
riparian r$h4 ifmy, far the SSDI North Parul as necwsary to assure the City and~Rcdevclopmenc
Agency that Lhe City and Redcvdopment Agency will be. able to retain the &Sing M~difiad
Sovurigniy Submerged Land Lase (the *Subme@ hd Lw") entered into by and among the ,
Board of.Tmsms of the Ind lymvcmblt TmFund of the 'State of Florida, as Ewr, and the
City oFMiamiB* md the City ofMiami Beach Rcdweloprncnt Ageriq, as Lcssct, and .mrded
MIA951 0117Z48I-5 .. .
Attachment B
Page 68 of 72 Pages
SSLL No. 130765469
in Ufiid Records Book 16509, Page 3694, Public ~krds of Miami-Dade &unty, Florida, as the
Submergd Land Lase may be rnDdified or ~dendcd hm 'time to time (provided, however, that any
such mdicadon or &=.on does not expand to the .east the exidrig legal dewriptian fix the iand .
described in the Submerged Land Lease or in any way create any rights in favor tifthe Lessor with
regards to the land located to themst of the hd descnied in the Submerged Land Lcase) and West
Sidc, on bthaff of itself and its successors and assigns agrees to convey to tht City for S10.00 and
other good and valuable considdon, the minimum amount of'land necessary (but in no event
greater (han the Baywalk Easement graotal by Wut Side to the C,ity of even date hamot),
contjguous to the wsltr on Ihe westan boundary of the SSDI North f anel and sn&imt to fbther .
anfirm or preserve the City's riparian rights in &medon with the Submerged hd he, in the
evmtthnt said caw- is requid by the Fkda Department oFEnvironmenta1 Protectionnor any
othwstlllegovemmental body in order for the City and the Redevelopment Agency to maintain the
Submerged Land Lease; pmvidd however, that upon such a conveyance. Wwt Side shall be
pded to include the land so conveyed in any ronin8 or planning dcularlons, including without
limitation, set backs, floor area ratio, lot size and/or fmntnge, as though such conveyance had not
occurred.
3. West Side, on behatfofitself and its successors and assks, hereby authcdms the
City and/or the Redevelopment Agency to apply for and maintain, in its own name [and if
applicable, on behalf of West Sidc, its suwoo and assigns in title), any and all pennits, licenses
or orbesgbvanmental approvals necessary to keep the marina contiguous to the SSDI North Parcel
&the w~boundary (the "Marinau) open and operating on tlie same or substantially same b&
that the Marina is currently operating, and/or to restore or rebuiM any of the improvaments in the
Marina, as said improvements exist on Ihe date hered
4. his ~aivershalj. be binding upon the parties hereto, cind their respectivi successors
and/or assigns.
Dl WITNESS WEREOF, the.partits hereto ha;c executed this Waives as octhe date kt .
above rn-&en.
. . Signed, sealed and delivered
in the presen~~ot rn SIDE PA~TNERS, LlIY#, a Rorida I . . limited'pactnership
'bl IN&, a Florida By: WESTSID
Attachment B
Page 69 of 72 Pages
SSLL No. 130765469
APPROMD AS 50
FdW 6 LANOUAGE
8 FOR ExEcUnON
Attachment 6
Page 70 of 72 Pages
SSLL No. 130765469
3 STATE OF FLORIDA
) ss: I COUNTYOFMAMI-DADE , 1
. The forenoins &&was acfiowledged before ma this! - -
LtSd 0. I tJ a5 UL LC- ' & f 0 H pdy appeared bda. ..-~ ~ . ny, is pcrscnal~ilplo& to me or p~obucsd - as identification
NOW-
POTARIAL SEAL] Pint Name:&
Notary Public, State of Florida
F-! My commission expires (/'. 24--'L-
' L
' STATE OF FL,ORZDA 1
) ss:
1 COW OFW-DATE 1 .
- -
ILJ 0. Icerdt3 as ~AGI~W* .. . of The & Beach
Redrvtlopment Agcnq,'a public agency organized and ertistis& purmant to the Commumty
Rtdcvdopmcnt Ad of 1969, as am&&d, Chapt~r 163, Part m Florida.Stautes. Hdghfpersonally
appeared before me, is persollally known to me or produced - aS
idenGficatioa
~otary:.,&&k&
~OTWAL SEAL] Pht ~amc&
Notary Public, Sw ofFiorida
My commission expirt5' u- W-a- . I
Attachment B
Page 71 of 72 Pages
SSLL No. 130765469
.. .
~ots. 30 tbrough'42, isiclusive, in Block I1 1. bf OCm BEAC~ FLORIDA ADD];nON NO. 3,
a according to the Plat themof, as recorded in Pl8t Book 2, at Page 81, of the PubIic.Records of .
Dade Cow, Florida, together with lhe accretions thmto.
ALSO:.
Lats 43,'44,45, %, 47, 498 and 5OC of DADE COUNTY PROPERTY, a&rding to the '
Plat thered& as.mrded in Plat Book 14, at Page 70, of the Public Recoids of Dade County,
Florida, together with the etio& thereto.
Attachment B
Page 72 of 72 Pages
SSLL No. 130765469
RESOLUTIONS TO BE SUBMITTED
THIS PAGE INTENTIONALLY LEFT BLANK
MIAMIBEACH
City of Miami Beach, 1700 Convention Center Drive, Miami Beach, Florida 33 139, www.rniamibeachfl.gov
COMMISSION MEMORANDUM
TO: Mayor Matti Herrera Bowexnd Metpimy of the City Commission
FROM: Jose Smith, City Attor
CC: Jorge M. Gonzalez, Ci
DATE: November 17,201 0
SUBJECT: A RESOLUTION OF THE MAYOR AND ClTY COMMISSION OF THE CITY OF
MIAMI BEACH, FLORIDA, APPROVING A SETTLEMENT AGREEMENT
BETWEEN NANCY BONA, MARY MICHEL, AND ROBERT AND RITA
SWEDROE, AND THE CITY OF MIAMI BEACH, AND AUTHORIZING THE
MAYOR AND ClTY CLERK TO EXECUTE A SETTLEMENT AGREEMENT, AND
AUTHORIZING THE ClTY MANAGER AND ClTY ATTORNEY TO TAKE SUCH
ACTIONS AS MAY BE NECESSARY TO CARRY OUT THE INTENT HEREOF.
RECOMMENDATION
The City Commission should adopt the Resolution and approve a Settlement Agreement
(the proposed Agreement is transmitted to the City Commission under separate cover).
BACKGROUND
This resolution is submitted for your consideration if you approve the proposed settlement of
this case.
The City of Miami Beach obtained all required permits and completed construction of a
recreational path called the North Beach Recreational Corridor (the "Corridor") on State-
owned beach property. Several Altos del Mar homeowners (the "~laintiffs"') filed a lawsuit
challenging the construction of the path and its alleged impacts on their homes. The case is
styled Bona et a1 v. City of Miami Beach, case no. 07-32876 CA 21, Circuit Court, Miami-
Dade County, Florida, (the "Lawsuit").
The Lawsuit contained three counts: Count 1 for Injunctive Relief, seeking to require the City
to remove the Corridor because of alleged safety concerns during catastrophic storms;
Count 2 for declaratory relief, alleging that the Corridor impaired the Plaintiffs' riparian rights,
interfered with the use and enjoyment of their property, and was otherwise illegal. Count 3
requires the City to commence eminent domain proceedings to compensate the Plaintiffs for
the alleged impact to their riparian rights.
The Judge set the case for trial on the three-week trial calendar commencing November 1,
1 An additional Plaintiff, Altos del Mar Realty Corp., voluntarily dismissed its claims, without
prejudice, rather than settling with the City. Those claims now appear to be time-barred.
I Agenda Item 87 F
Date ID
Memorandum to Mayor Bower and Members of the City Commission
Re: Resolution approving Settlement Agreement; Bona et al v. City of Miami Beach
Date: November 17, 2010
Page 2 of 2
201 0, and required a rigorous schedule for discovery and pre-trial motions. Several expert
witnesses were retained to testify at trial.
The parties engaged in extensive discovery and on October 15, 201 0 attended a court
ordered mediation in an attempt to resolve this matter.
At mediation with the former Florida Supreme Court Justice Gerald Kogan mediating, the
parties negotiated a settlement in principle of the pending claims, subject to City
Commission approval. That settlement has been drafted into a Settlement Agreement,
which is now before you for consideration.
ANALYSIS
The settlement resolves all disputes, without admitting liability, on terms that are in the best
interests of the City. Not only does the Corridor serve an important public purpose and is an
outstanding public amenity, but the connections of the Corridor to the adjacent single family
neighborhood, along with beach access issues, are important matters that must be resolved.
This settlement therefore accomplishes the purposes sought, while providing resolution to
the Plaintiffs of the issues they raised, and protects the City from further litigation and costs
in addressing the claims of the settling Plaintiffs.
For the foregoing reasons, among others, the City Attorney, in consultation with the Office of
the City Manager, recommends that the City Commission approve the settlement,
authorizing the Mayor and City Clerk to execute the Settlement Agreement, subject to such
further minor modifications as may be necessary for the best interests of the City that are
acceptable to the City Manager and the City Attorney, and to authorize the City Manager and
the City Attorney to take such further actions as may be necessary to accomplish the intent
hereof, subject to such matters as remain in the discretion of the City Commission.
CONCLUSION
The City Commission should adopt the Resolution and approve the Settlement Agreement.
JSIJGGIGMH
F:\atto\HELGVITIGATION\Bona v CMB\Settlement\Comrnission memo 11-5-2010.doc
RESOLUTION NO.
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF
THE CITY OF MIAMI BEACH, FLORIDA, APPROVING THE
SETTLEMENT AGREEMENT BETWEEN NANCY BONA, MARY
MICHEL, AND ROBERT AND RITA SWEDROE, AND THE CITY
OF MIAMI BEACH, AND AUTHORIZING THE MAYOR AND CITY
CLERK TO EXECUTE A SETTLEMENT AGREEMENT, AND
AUTHORIZING THE CITY MANAGER AND CITY ATTORNEY TO
TAKE SUCH ACTIONS AS MAY BE NECESSARY TO CARRY
OUT THE INTENT HEREOF.
WHEREAS, the City of Miami Beach has obtained all required permits for
and completed construction of a recreational path called the North- Beach
Recreational Corridor (the "Corridor") on State-owned beach property; and
WHEREAS, certain single family homeowners in the Altos del Mar
neighborhood, Nancy Bona, Mary Michel, and Robert and Rita Swedroe, (the
"Plaintiffs"') filed a lawsuit challenging the construction of the path and its alleged
effects on their homes; and
WHEREAS, the case is styled Bona et a1 v. City of Miami Beach, case no.
07-32876 CA 21, Circuit Court, Miami-Dade County, Florida, (the "Lawsuit"); and
WHEREAS, the Lawsuit contained three counts: Count 1 for Injunctive
Relief, seeking to require the City to remove the Corridor because of alleged
safety concerns during catastrophic storms; Count 2 for declaratory relief,
alleging that the Corridor impaired the Plaintiffs' riparian rights, interfered with the
use and enjoyment of their property, and was illegal in other respects; and Count
3 requiring the City to commence eminent domain proceedings to compensate
the Plaintiffs for the alleged impact to their riparian rights; and
WHEREAS, the Judge recently set the case for trial on the three-week
trial calendar commencing November 1, 2010, which required a rigorous
schedule for discovery and pre-trial motions; and
WHEREAS, the parties engaged in discovery and pre-trial preparations;
and on October 15, 2010 attended a court imposed mediation in an attempt to
resolve this matter between them in an amicable manner; and
An additional Plaintiff, Altos del Mar Realty Corp., has voluntarily dismissed its
claims without prejudice rather than entering into a settlement agreement with
the City.
WHEREAS, at mediation with the Honorable Justice Gerald Kogan
mediating, most of the Plaintiffs agreed to a tentative settlement, subject to City
Commission approval; and
WHEREAS, the parties have negotiated a Settlement Agreement based
upon the agreement at mediation, and have presented that Settlement
Agreement to the City Commission for consideration; and
WHEREAS, the settlement resolves this dispute, without any party
admitting liability, on terms that are in the best interests of the City, because not
only does the Corridor serve an important public purpose and is an outstanding
public amenity, but the relationship of the Corridor to the adjacent single family
neighborhood is an important matter to address; and
WHEREAS, this settlement therefore accomplishes the purposes sought,
while providing resolution to the Plaintiffs of the issues they raised, and protects
the City from further litigation and litigation expenses in addressing the claims of
the settling Plaintiffs in this matter; and
WHEREAS, for the foregoing reasons, among others, the City Attorney
and City Manager recommend that the City Commission approve the settlement,
authorizing the Mayor and City Clerk to execute the Settlement Agreement,
subject to such further minor modifications as may be necessary for the best
interests of the City that are acceptable to the City Manager and the City
Attorney, and to authorize the City Manager and the City Attorney to take such
further actions as may be necessary to accomplish the intent hereof, subject to
such matters as remain in the discretion of the City Commission.
NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND
ClTY COMMISSION OF THE ClTY OF MIAMI BEACH, FLORIDA, that the
Mayor and City Commission approve the Settlement Agreement with Nancy
Bona, Mary Michel, and Robert and Rita Swedroe, and authorize the Mayor and
City Clerk to execute the Settlement Agreement in such final form as the City
Manager and City Attorney approve, and authorizing the City Manager and City
Attorney to take such further actions as may be necessary to accomplish the
intent hereof, subject to such matters as remain in the discretion of the City
Commission.
PASSED and ADOPTED this day of ,2010.
ATTEST:
CITY CLERK
MAYOR
APPROVED AS TO
FORM AND LANGUAGE
City of Miami Beach, 1700 Convention Center Drive, Miami Beach, Florida 331 39, www.rniarnibeochfl.goy
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 a
Date: November 1 7,201 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
Affordable Housing Advisory 11 City Commission
Committee
5 Page I
Beautification Committee 8 Commissioner Jerry Libbin 1
- -
Community Development Advisory 14 Commissioner Ed Tobin
Committee Commissioner Jerry Libbin
Commissioner Jorge Exposito 1
Fine Arts Board 14 Commissioner Ed Tobin 1
Commissioner Jerry Libbin 2
Commissioner Jorge Exposito 1
Gay, Lesbian, Bisexual and
Transgender (GLBT)
15 Mayor Matti Herrera Bower 1
i I Agenda itern RC( h
We are committed to providing excellent public service and safety to all who live, work and play in 01 Date \\- 13- fg
VACANCIES
BOARD OR
Health Advisory Committee 11 City Commission 4
Hispanic Affairs Committee 7 Mayor Matti Herrera Bower 1
Housing Authority 5 Mayor Matti Herrera Bower 2
Marine Authority 7 Commissioner Ed Tobin 1
Miami Beach Commission For 21 Commissioner Jonah M. Wolfson
Women
Miami Beach Human Rights 5 City Commission 4
Committee Mayor Matti Herrera Bower 1
Miami Beach Sister Cities Program 24 Mayor Matti Herrera Bower 6
Normandy Shores Local Gov. 3 City Commission
Neighborhood Impv.
Police Citizens Relations Committee 17 Mayor Matti Herrera Bower 1
Production Industry Council 7 Commissioner Deede Weithorn 1
Safety Committee 14 Commissioner Jorge Exposito 1
Single-Family Residential Review 3 Jorge M. Gonzalez, City Manager 3
Panel
VACANCIES
Attached is breakdown by Commissioner or City Commission:
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-Chair Commissioner Edward L. Tobin Mayor Bower
Alternate Commissioner Michael Gongora Mayor Bower
Member Commissioner Jorge Exposito Mayor Bower
Liaison Barbara Hawayek, Code Compliant
Tuesday, November 02,2010 Page 1 of 1
NON-CITY COMMISSION COMMITTEES
Mayor Matti Herrera Bo
8 Citizen's Oversight Committee
= Greater Miami Convention and Visitors Bureau
Metropolitan Planning Organization
Tourist Development Council
Hilda Fernandez, 'Asst.
Miami-Dade County Homeless Trust Board
Mitchell Kaplan
Performing Arts Center Trust (PACT)
Vacant Vacant Vacant
Dade Cultural Alliance
Commissioner Weithorn
Miami Dade League of Cities
THIS PAGE INTENTIONALLY LEFT BLANK
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
DATE: November 17, 2010
SUBJECT: BOARD AND COMMITTEE APPOINTMENTS - CITY COMMISSION
APPOINTMENTS
ADMINISTRATION RECOMMENDATION
Make appointments as indicated.
BOARDS AND COMMITTEES
1 Affordable Housing Advisory Committee
2 Health Advisory Committee
3 Miami Beach Human Rights Committee
4 Normandy Shores Local Gov. Neighborhood Improvements
P JMG EP
F:\CLER\$ALL\MARIA-M\B & C\Commission Memo I3 & C FOR 11-17-lO.doc
61 3
Agenda Item Rq A\
Date \\- \l- \D
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 (I) 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
Zubkoff
To replace Joyce Adm. Adult Congr. Liv. 12/31/2010 City Commission
Galbut
To replace ACLF 12/31/2010 City Commission
Abraham Galbut
Name Last Name Position/Title Term Ends: Appointed by: - - -- Term Limit: -
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 Private Industry 12/31/2011 City Commission 12/31/15
Steven Sonenreich CEOIMt. SinailMH (NTL) 12/31/2010 City Commission
To bi Ash Nursing Profession 12/31/2011 City Commission 12/31/15
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
Tuesday, November 02,2010 Page 21 of 48 (Continued. ...
Board and Committees Current Members
Charlotte Tornic Eli Strohli
Jared Plitt
Rachel Schuster
Paul Venette
Tuesday, November 02,2010 Page 22 of 48
Board and Committees Current Members
Composition:
The committee shall consist of a minimum of five (5) and a maximum of eleven (11) members, with
one (1) out of every five (5) members, to be a direct appointment by the Mayor, and with the
remaining members to be at-large appointments of the City Commission.
The members of the committee shall reflect as nearly as possible, the diversity of individuals
protected under the City's Human Rights Ordinance. In keeping with this policy, not less than two (2)
months prior to making appointments or re-appointments to the committee, the City Manager shall
solicit nominations from as many public service groups and other sources, which he/she deems
appropriate, as possible.
At least one (1) of the committee members shall possess, in addition to the general qualifications set
forth herein for members, a license to practice law in the State of Florida; be an active member of and
in good standing with the Florida Bar, and have experience in civil rights law. The attorney member
shall also serve as chair of the committee.
City Liaison:
Lawyer 12/31/2011 City Commission
12/31/2011 City Commission
12/31/2012 City Commission
12/31/2012 City commission
12/31/2011 Mayor Matti Herrera Bower
Name Last Name PositionITitle Term Ends: Appointed by: Term Limit:
New Member 12/31/2011 City Commission
Tuesday, November 02,2010 Page 31 of 48
Board and Committees Current Members
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 Citv Commission
Name Last Name PositionITitle Term Ends: Appointed by: Term Limit:
- -
Geoff Green 12/31/2010 City Commission 12/31/15
Ronald Loring 12/31/2010 City Commission 12/31/14
Applicants PositionITitle Applicants PositiontTitle
Miguel Antonio Aviles Sofia Emuriel
Tuesday, November 02,2010 Page 34 of 48
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R9 - New Business and Commission Requests
R9B1 Dr. Stanley Sutnick Citizen's Forum. (1 2:30 p.m.)
R9B2 Dr. Stanley Sutnick Citizen's Forum. (5:30 p.m.)
AGENDA ITEM: R9BI -2
DATE: \\-lJ-lO
THIS PAGE INTENTIONALLY LEFT BLANK
MIAMIBEACH
City of Miami Beach, 1700 Convention Center Drive, Miami Beach, Florida 33 139, www.miamibeachfl.gov
COMMlllEE OF THE WHOLE MEMORANDUM
TO: Mayor Matti Herrera Bower and Members of the City Commission
FROM: Jorge M. Gonzalez, City Manager
DATE: November 17,201 0
SUBJECT: COMMITTEE OF THE WHOLE - AUDIT COMMITTEE
BACKGROUND
Previously, the City's Finance and Citywide Projects Committee has served as the Audit
Committee for the City. At the January 26, 2010 meeting of the Finance and Citywide
Projects Committee and the February 16, 2010 meeting of the Neighborhood Community
Affairs, both committees accepted the City Manager's recommendation to utilize the
"Committee Of The Whole" to serve as the audit committee to review the following items:
The External Auditors' reports.
lnternal Audit's annual risk areas / plan.
Annual Review of lnternal Audit findings and status.
The recommendation accepted by both Committees was that:
The first meeting is to occur in the first quarter whereby results of lnternal Audit's
prior year reports can be presented along with the current risk assessment audit
plan.
The second meeting is to occur in the third quarter with the External Auditors
communicating their final reports and results along with the presentation of an
interim report on the status of lnternal Audit recommendations to date.
However due to the unusual nature of the budget development for FY 2010/11, concurrent
with the negotiation of the five labor agreements with significant givebacks, the third quarter
meeting was not held. As a result, at the October 2010 meeting the following items will be
discussed.
I. External Auditor's Reports
The City's External Auditors are responsible for issuing an opinion after conducting an audit
of the City's financial statements in accordance with Generally Accepted Auditing Standards
and the standards applicable to financial audits contained in the Governmental Auditing
Standards.
The City contracts an external independent audit firm of licensed certified public accountants
to prepare and issue an auditor's opinion after conducting an audit of the City
Comprehensive Annual Financial Report (CAFR) in accordance with Generally Accepted
Auditing Standards and the standards applicable to financial audits contained in the
Governmental Auditing Standards, issue by the Comptroller General of the United States.
The current firm under contract is McGladrey & Pullen, LLP. I
Agenda Itern R 9 C
1 I Date I(- 13-10
The audit is conducted and an opinion expressed on the governmental activities, the
business-type activities, the aggregate discretely presented component units, each major
fund, and the aggregate remaining funds information of the City except for the retirement
and pension funds which are audited by other auditors. The independent audit involves
examining, on a test basis, evidence supporting the amounts and disclosures in the financial
statements; assessing the accounting principles used and significant estimates made by
management; and evaluating the overall financial statement presentation. Florida State
Statues requires this annual audit.
The external auditors also perform a Single Audit separate from the CAFR audit to satisfy
the audit requirements imposed by the Single Audit Act and the U.S. Office of Management
and Budget (OMB )Circular A-1 33 and the Florida Single Audit Act in accordance with and
Florida Rules of the Auditor General, Section 10.550. The standards governing these
engagements require that the external auditors also report on the City's controls and
compliance with legal requirements, with the special emphasis on internal controls and legal
requirement involving the administration of federal awards.
The external auditors issue a separate management letter which addresses any
recommendations to improve financial management, accounting procedures, and internal
control. Their report on internal controls included any reportable condition and material
weaknesses in the system of which they became aware as a result of obtaining an
understanding of the City's internal controls and performance of tests of internal controls.
The report of compliance addresses any material errors, fraud, violation of compliance
requirement and other responsibility imposed by state and federal statutes and regulations
which they may be aware. For the past several years, the external auditor's management
letters contained no reportable conditions and/or material weakness only minor
recommendations to improve financial management, accounting procedures and internal
controls.
Further, the external auditors issue separate opinions on the Miami Beach Redevelopment
Agency, (RDA), the Parking Service Fund, the Miami Beach Convention Center and Jackie
Gleason Theater, the Visitor and Convention Authority (VCA), City of Miami Beach Safe
Neighborhood Parks Bonds Projects, the City of Miami Beach Building Bond Communities
Bond Projects, and the City's Children Trust Fund.
Annually, a Letter to Commission is sent to satisfy the auditors' required communication with
management. Information forwarded with this letter included their Management Letter, the
Single Audit Report, the City's Comprehensive Annual Financial Report and the auditors
required communication with management. Attached as Exhibit 1 is LTC 219-2010 dated
August 11, 2010 containing the required reports for communication with the City
Commission.
2. Internal Auditor's Reports
The City's Internal Audit Division, a component of the Office of Budget and Performance
Improvement, is responsible for ensuring:
Compliance with Resort Tax Ordinances by auditing Miami Beach businesses;
Compliance with City policies and procedures and financial integrity and sufficiency
of internal controls by Departments and Not-for-Profits;
Supporting and special projects assisting other City areas; and
Integrity of performance measures reported Citywide.
The Division is comprised of nine full time staff including four auditors, four field agents and
one office associate. Three field agents are responsible for auditing business required to file
resort taxes and one is responsible for sanitation audits of franchise haulers and roll-off
operators. Additionally, resources are shared between resort tax and internal audit functions
for the lnternal Auditor, Assistant lnternal Auditor, and the office associate.
Resort Tax Audits
The majority of resources in the Division are dedicated to auditing the Miami Beach
businesses required to report and remit resort taxes. This effort is supported by
approximately half of the positions in the Division as well as by outside contract auditors.
Resort tax generated for the fiscal year 200911 0 was $41,986,105.
Scheduled audits are based upon the type of business, actual resort tax receipts received,
and the frequency of the last audit. There are approximately 1,749 businesses registered to
collect resort taxes. Our goal is to audit the 686 businesses consisting of hotels,
restaurants, nightclubs, and bars at least once every 4 years, approximately 171 per year.
Newer accounts are to be audited soon after they are opened. The remaining 1,063
accounts representing apartments having less risk are audited much less frequently.
In fiscal year 200911 0 the Division completed 229 resort tax audits (91.6% of our total goal)
of which 153 were hotels, restaurants, nightclubs, and bars. The 229 audits resulted in
additional tax assessments of $423,501. This represented 3.57% of the total resort tax
reported for these 229 entities over the multi-tax year audited and approximately 1 .01% of
the total resort tax generated for fiscal year 200911 0. More importantly, the audits serve as a
deterrent to ensure compliance with the City's resort tax ordinances.
lnternal Audits
For Department and Not-for Profit lnternal Audits, the City's Audit Plan is separated by
different types of reviews. Annually required audits include those mandated by City Code
and State Agreements, as well as providing assistance to the City's external auditors.
lnternal Audit performs the following types of audits in accordance to their audit plan.
Performance audits
Performance audits are defined as engagements that provide assurance or
conclusions based on evaluation of sufficient, appropriate evidence against stated
criteria such as specific requirements, measures or defined business practices.
Attestation Audits
These audit result in an examination, a review, or an agreed upon procedures report
on a subject matter or on an assertion about a subject matter that is the
responsibility of another party. Some examples of these audits would include the
quantity condition or valuation of inventory or assets; incurred final contract costs are
supported with required evidence and in compliance with the contract terms; the
city's compliance with requirements of specified laws regulations, policies contracts
or grants: the accuracy and reliability of performance measurements; entities internal
controls over financial reporting.
Financial Audits
Audits of this type center on providing reasonable assurance about whether financial
statements or information are presented fairly in accordance with recognized criteria.
Reporting on financial audits also include reports on internal controls, compliance
with laws and regulations and provision of contracts and grants. Examples include
reviewing the amounts reported to the State for the State Beachfront Management
Agreement, verifying ending inventories at year end for Public Works, Fleet and
Property management.
While there is distinction between the above audits, lnternal Audit Division for the
most part combines the objectives from each type and performs these in most
audits.
Scheduled audits are those areas targeted by the lnternal Audit Division based on a risk
assessment approach. Audits are classified as to high, medium or low risk. Higher
assigned risk areas are subject to more frequent audits, and lower risk areas are often less
frequent. The Parking Department is considered particularly high risk due to the
considerable revenues received and the manner of collection and therefore has resources
dedicated for ongoing audits. The review of waste franchise contractors and roll-off haulers
for compliance with the City's sanitation ordinance also has been made a priority in the past
three years. In addition, inputs for audits in other Departments are obtained from Directors
and the City Manager. In general, our internal audit goals are as follows:
Audit 90% of the high risk areas approximately once every five years
Audit 75% of the medium risk areas approximately once every seven years
Audit 60% of the low risk areas approximately once every ten years.
However, special circumstances are taken into account which may lengthen or shorten the
period. In addition unplanned projects may impact the schedule in any given year.
At previous Finance and City Wide Projects Committee meetings, the Committee
recommended that the administration present a report annually on the status of Department
and Not-For-Profit lnternal Audits within the City. Attached is our Status of Audit Areas
through Fiscal Year 2009/10 (Exhibit 2). Audits completed in 2010 are shown in bold.
Overall, thirty Department and Not-For-Profit audit areas were completed during fiscal year
200911 0. The represents 85.7% completed out of thirty-five audit areas initially targeted for
the year. Out of the audit areas completed, one audit was added during the year. The
remaining six audits were carried forwarded to next fiscal year. This was accomplished by a
staff of five, including 4 continuous monitoring audits in parking and sanitation by two of the
staff. Attached is Summary of Internal Audit Activities (Exhibit 3) for the past fiscal year.
The Finance and Citywide Projects Committee suggested that Committee members have
the opportunity to review the lnternal Audit Reports on-line. Reports are listed on-line on the
City's website at http://web.miamibeachfl.gov/obpi/scroll.aspx?id=36612.
Fiscal Year 201 011 1 Risk Assessment Areas /Audit Plan
Areas highlighted on the Status of Audit Areas report represent those areas considered for
audits based upon the projected frequency. These highlighted areas are a primarysource in
developing the annual audit plan. However, the comments provided also indicate reasons
why areas may not be audited within the projected frequency.
The Division continues to take on more supporting projects and other activities relating to
OBPl objectives. These areas include coordinating a revision of City-wide policies and
procedures for posting to intranet and developing a coordinated approach for contract
management reviews for all citywide contracts.
UDIT FILES\DOCOS-IOMUD COM\Discussion of Audits Comm of the Whole 10-27-10.doc
Exhibit I - LTC 219-2010
I MIAMIBEACH
OFFICE OF THE CITY MANAGER
No. LTc # 21 9-201 0 2DfCAtfE 12 AR 9: 25
LETTER TQ,&PMMI$?/F;)N L l-,.~~~~5 XI.
TO: Mayor Mattie Herrera Bower and Members of the
SUBJECT: External Auditor's (McGladrey & Pullen) Annual Audit Report on the City of Miami
Beach (the City) for the period ended September 30,2009
Attached for your information is the external auditor's report on the City for the fiscal year ended
September 30, 2009. This package includes the following:
A. The Report to the Mayor and Members of the City Commission, discussing the Auditor's
required communications to the Mayor and City Commission, summary of recorded audit
adjustments, accounting estimates and, recently issued governmental accounting standards.
The Report also includes the following:
0 Exhibit A - Certain written communications between management and the Auditors -
Representation letter;
Exhibit B - McGladrey & Pullen's Independent auditor's report on compliance with
requirements applicable to each major federal program and state project and on internal
controls over compliance in accordance with OMB Circular A-I 33 and Chapter 10.550,
Rules of the Auditor General of the State of Florida and Schedule of Expenditures on
Federal Awards and State Financial Assistance; and
Exhibit B - McGladrey & Pullen's management letter, in accordance with the Rules offhe
Auditor General of the State of Florida, to the Mayor and Members of the City
Commission.
B. The City's Comprehensive Annual Financial Report (CAFR) for the fiscal year ended
September 30,2009.
If you have any questions or need additional information please contact Patricia Walker at 305-673-
7574
The City of Miami Beach, Florida
Report to those charged with Governance
September 30,2009
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The City of Miami Beach, Florida
1700 Convention Center Drive
Miami Beach, Florida 33139
Attention: The Honorable Mayor and Members of the City Commission
We are pleased to present this report related to our audit of the financial statements of The City of Miami
Beach, Florida (the City) for the year ended September 30,2009. In addition to our report on your
financial statements which was modified to refer to the use of other auditors related to the City of Miami
Beach Florida Employees' Retirement Plan, the City of Miami Beach Florida Pension Fund for Firefighters
and Police Officers, the City of Miami Beach Florida Firemen's Relief and Pension Fund, and the Miami
Beach Policemen's Relief and Pension Fund (collectively, the Plans), the Miami Beach Visitor and
Convention Authority and the Miami Beach Convention Center as managed by Global Spectrum, we have
provided, under separate cover, a letter, dated April 26, 201 0, concerning whether there were any
significant deficiencies and material weaknesses in internal control that we noted during our audit of the
City of Miami Beach, Florida's (the "City") basic financial statements for the year ended September 30,
2009. This report summarizes certain matters required by professional standards to be communicated to
you in your oversight responsibility for the City's financial reporting process. Also included is a summary
of recently issued accounting standards that may affect future financial reporting by the City.
This report is intended solely for the information and use of the Mayor and Members of the City
Commission and management and is not intended to be and should not be used by anyone other than
these specified parties. It will be our pleasure to respond to any questions you have regarding this report.
We appreciate the opportunity to continue to be of service to the City.
July 20, 2010
Fort Lauderdale, Florida
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Contents
1-2 Required Communications
Summary of Accounting Estimates 3-4
Summary of Recorded Audit Adjustments 5
Recently Issued Accounting Standards 6
Exhibit A - Certain Written Communications Between Management and Our Firm
Representation, Letter
Exhibit B - Single Audit Reports in Accordance with OMB-Circular A-133 and the Florida
Single Audit Act and Management Letter in Accordance with the Rules of the Auditor
General of the State of Florida
Required Communications
Statement on Auditing Standards No. 114 requires the auditor to communicate certain matters to keep
those charged with governance for the City of Miami Beach, Florida (the "City") adequately informed
about matters related to the financial statement audit that are, in our professional judgment, significant
and relevant to the responsibilities of those charged with governance in overseeing the financial reporting
process. The following summarizes these communications.
Area Comments
Auditor's Responsibility Under
Professional Standards
Accounting Practices
Our responsibility under auditing standards generally
accepted in the United States of America Government
Auditing Standards issued by the Comptroller General
of the United States; the provisions of the Single Audit
Act; OMB Circular A-1 33; OMB's Compliance
Supplement; has been described to you in our
arrangement letter.
Adoption of, or Change in, Accounting Policies
Management has the ultimate responsibility for the
appropriateness of the accounting policies used by the
City.
The City adopted Government Accounting
Standards Board Statement (GASB) No. 49,
Accounting and Financial Reporting for Pollution
Remediation Obligations. This Statement
addresses accounting and financial reporting
standards for pollution (including contamination)
remediation obligations, which are obligations to
address the current or potential detrimental effects of
existing pollution by participating in pollution
remediation activities, such as site assessments and
cleanups. This standard requires the City to estimate
the components of expected pollution remediation
outlays and determine whether the outlays for those
components should be accrued as a liability or, if
appropriate, capitalized when goods and services are
acquired.
The City adopted GASB Statement No. 54, Fund
Balance Reporting and Governmental Fund Type
Definitions. The objective of this Statement is to
enhance the usefulness of fund balance information
by providing clearer fund balance classifications, and
by clarifying the existing governmental fund type
definitions. This standard requires the City to improve
financial reporting by providing fund balance
classifications that comprise a hierarchy based
primarily on the extent to which a government is
bound to observe constraints imposed upon the use of
the resources reported in governmental funds.
Significant or Unusual Transactions
Management's Judgments and
Accounting Estimates
Financial Statement Disclosures
Audit Adjustments
Uncorrected Misstatements
Disagreements with Management
We did not identify any significant or unusual
transactions or significant accounting policies in
controversial or emerging areas for which there is a
lack of authoritative guidance or consensus.
Alternative Treatments Discussed with
Management
We did not discuss with management any alternative
treatments within generally accepted accounting
principles for accounting policies and practices related
to material items during the current audit period.
Summary information about the process used by
management in formulating particularly sensitive
accounting estimates and about our conclusions
regarding the reasonableness of those estimates is in
the attached "Summary of Accounting Estimates."
In our meeting with you, we will discuss the following
items as they relate to the neutrality, consistency and
clarity of the disclosures in the financial statements:
Adoption of accounting standards
Results of the Single Audit
Audit adjustments recorded by the City are attached
with the representation letter included with Exhibit A.
There are no uncorrected misstatements.
We encountered no disagreements with management
over the application of significant accounting
principles, the basis for management's judgments on
any significant matters, the scope of the audit, or
significant disclosures to be included in the financial
statements.
Consultations with Other Accountants We are not aware of consultations management had
with other accountants about accounting or auditing
matters.
Significant Issues Discussed with No significant issues arising from the audit were
Management discussed or were the subject of correspondence with
management.
Difficulties Encountered in Performing the We did not encounter any difficulties in dealing with
Audit management during the audit.
Certain Written Communications Between Copies of certain written communications between our
Management and Our Firm firm and the management of the City are attached as
Exhibit A.
The City of Miami Beach
Summary of Accounting Estimates
Year Ended September 30,2009
Accounting estimates are an integral part of the preparation of financial statements and are based upon
management's current judgment. The process used by management encompasses their knowledge and
experience about past and current events and certain assumptions about future events. You may wish to
monitor throughout the year the process used to compute and record these accounting estimates. The
following describes the significant accounting estimates reflected in the City's September 30, 2009
financial statements:
Area Accounting Policy Estimation Process Comments
Depreciation of Depreciation on capital
Capital Asset assets is provided
using the straight-line
method. Leasehold
improvements are
amortized on a
straight-line basis over
the shorter of the lease
term or estimated
useful life of the
assets.
Capital assets are
recorded at historical
cost or estimated
historical cost and
depreciated using the
straight-line method
over the estimated
useful lives of the
related assets.
Allowance for All trade and other Receivables are
Doubtful Accounts receivables are analyzed for their
reported at net collectability based on
realizable value. the creditors' ability to
pay (i.e, financial
condition, credit
history, and current
economic conditions).
Accounting for Other The City's annual other
Post Employment postemployment
Benefits benefit (OPEB) cost is
calculated based on
the annual required
contribution of the
employer (ARC), an
amount actuarially
determined in
accordance with the
parameters of GASB
45.
We have audited the
underlying data supporting
the estimate and reviewed
management's
methodology which
appears properly and
consistently applied and
have deemed the resulting
estimate to be reasonable.
We have audited the
underlying data supporting
the estimate and reviewed
management's
methodology which
appears properly and
consistently applied and
have deemed the resulting
estimate to be reasonable.
Management with input
from its OPEB actuary
developed the actuarial
assumptions based on
relevant criteria.
Management reviewed
and approved the
financial statement
estimates derived from
the OPEB actuarial
report.
We have audited the
underlying data supporting
the estimate and reviewed
management's
methodology which
appears properly and
consistently applied and
have deemed the resulting
estimate to be reasonable.
The City of Miami Beach
Summary of Accounting Estimates
Year Ended September 30,2009
Actuarial The City is partially
Assumptions Used self-insured for general
for the City's Self- and auto liability,
insurance Program property, workers'
(Risk Management) compensation, and
employees' health and
dental. The accrued
liability for estimated
claims represents an
estimate of the
eventual loss on claims
including claims
incurred but not yet
reported.
Management with input
from its Risk actuary
developed the actuarial
assumptions based on
relevant criteria.
Management reviewed
and approved the
financial statement
estimates derived from
the Risk actuarial
report.
Pension Plans The net pension The City has informed
obligation is calculated as us that they used all the
the difference between relevant facts available
the annual required to determine the
contribution and the assumptions used by
actual contributions made the actuary in
by the City. calculating the City's
Annual Required
Contribution and have
reviewed the results of
the actuarial
determination.
We have audited the
underlying data supporting
the estimate and reviewed
management's
methodology which
appears properly and
consistently applied and
have deemed the resulting
estimate to be reasonable.
We have audited the
underlying data supporting
the estimate and reviewed
management's
methodology which
appears properly and
consistently applied and
have deemed the resulting
estimate to be reasonable.
City of Miami Beach
Summary of Recorded Audit Adjustments
Year Ended September 30,2009
Following entries represents adjustments passed by both client and M&P that were recorded.
Department of Off Street Parking
Recently Issued Accounting Standards
Year Ended September 30,2009
GASB Statement No. 51, Accounting
and Financial Reporting for Intangible
Assets
GASB Statement No. 53, Accounting
and Financial Reporting for Derivative
Instruments
GASB Statement No. 57, OPEB
Measurements by Agent Employers
and Agent Multiple-Employer Plans
GASB Statement No. 58, Accounting
and Financial Reporting for Chapter 9
Bankruptcies
This Statement issued July 2007, will be effective for MDT
beginning with its year ending September 30,2010 and for the
most part, require retroactive application. This Statement
provides guidance regarding how to identify, account for and
report intangible assets. The new standard characterizes an
intangible asset as an asset that lacks physical substance, is
nonfinancial in nature and has an initial useful life extending
beyond a single reporting period.
This Statement, issued June 2008, will be effective for MDT
beginning with its year ending September 30, 2010. This
Statement addresses the recognition, measurement, and
disclosure of information regarding derivative instruments
entered into by state and local governments. Derivative
instruments are often complex financial arrangements used by
governments to manage specific risks or to make investments.
By entering into these arrangements, governments receive and
make payments based on market prices without actually
entering into the related financial or commodity transactions. A
key provision in this Statement is that derivative instruments
covered in its scope, with the exception of synthetic
guaranteed investment contracts (SGICs) that are fully benefit-
responsive, are reported at fair value.
This Statement, issued December 2009, will be effective for
the City beginning with its year ending September 30, 2012.
This Statement addresses issues related to measurement of
OPEB obligations by certain employers participating in agent
multiple-employer OPEB plans. (In agent multiple-employer
plans, separate liabilities are calculated and separate asset
accounts are kept for each participating government, rather
than being administered and accounted for as a single plan as
is done in a cost-sharing plan.) Statement 57 amends
Statement No. 43, Financial Reporting for Postemployment
Benefit Plans Other Than Pension Plans, and Statement No.
45, Accounting and Financial Reporting by Employers for
Postemployment Benefits Other Than Pensions.
This Statement, issued December 2009, will be effective for
the City beginning with its year ending September 30,2010.
This Statement provides guidance for governments that have
petitioned for protection from creditors by filing for bankruptcy
under Chapter 9 of the United States Bankruptcy Code. It
establishes requirements for recognizing and measuring the
effects of the bankruptcy process on assets and liabilities, and
for classifying changes in those items and related costs.
Exhibit A - Certain Written Communications
Between Management and Our Firm
MIAMIBEAG
City of Miami Beach, 1700 Convention Center Drive, Miami Beach, Florida 331 39, www.miamibeuclifl.gov
FINANCE DEPARTMENT
Tel: 305-673-7466, Fax: 305-673-7795
April 26, 201 0
McGladrey & Pullen, LLP
201 Alhambra Circle, Suite 810
Coral Gables, FL 331 34
In connection with your audit of the basic financial statements of the City of Miami Beach, Florida,
(the "City") as of and for the year ended September 30, 2009, we confirm that we are responsible
for the fair presentation in the financial statements of financial position, changes in financial
position, and cash flows in conformity with accounting principles generally accepted in the United
States of America.
We confirm to the best of our knowledge and belief, as of April 26, 2010, the following
representations made to you during your audit.
1. The financial statements referred to above are fairly presented in conformity with
accounting principles generally accepted in the United States of America.
2. We have identified for you all organizations that are part of this reporting entity or with
which we have a relationship, as these organizations are defined in Section 2100 of the
Governmental Accounting Standards Board Codification of Governmental Accounting
and Financial Reporting Standards that are Component units. The City's Blended
Component Units and two Discrete Component Units are properly presented in the
financial statements.
3. We are not a component unit of any other government, as this term is defined in Section
2100 of the Governmental Accounting Standards Board's Codification of Governmental
Accounting and Financial Reporting Standards.
4. We do not meet the definition of another organization, as defined in Section 2100 of the
Governmental Accounting Standards Board's Codification of Governmental Accounting
and Financial Reporting Standards.
5. We do not have a joint venture relationship with any other organization, as defined in
Section 2100 of the Governmental Accounting Standards Board's Codification of
Governmental Accounting and Financial Reporting Standards.
6. We are not a jointly governed organization, as this term is defined in Section 2100 of the
Governmental Accounting Standards Board's Codification of Governmental Accounting
and Financial Reporting Standards.
7. We have identified for you all of our funds, governmental functions, and identifiable
business-type activities.
8. We have properly classified all funds and activities.
9. We have properly determined and reported the major governmental and enterprise funds
based on the required quantitative criteria.
McGladrey & Pullen, LLP
Page 2 of 6
10. We are responsible for compliance with laws and regulations applicable to the City
including adopting, approving, and amending budgets.
11. We have identified and disclosed to you all laws and regulations that have a direct and
material effect on the determination of financial statement amounts including legal and
contractual provisions for reporting specific activities in separate funds.
12. We have made available to you:
a. All financial records and related data of all funds and activities, including those of all
special funds, programs, departments, projects, activities, etc., in existence at any
time during the period covered by your audit.
b. All minutes of the meetings of the governing board and committees of board
members or summaries of actions of recent meetings for which minutes have not yet
been prepared.
c. All communications from grantors, lenders, other funding sources or regulatory
agencies concerning noncompliance with:
(1) Statutory, regulatory or contractual provisions or requirements.
(2) Financial reporting practices that could have a material effect on the financial
statements.
13. We have no knowledge of fraud or suspected fraud affecting the entity involving:
a. Management or employees who have significant roles in the internal control.
b. Others where the fraud could have a material effect on the financial statements.
14. We have no knowledge of any allegations of fraud or suspected fraud affecting the City
received in communications from employees, former employees, regulators, or others
other than what has been communicated to you.
15. We acknowledge our responsibility for the design and implementation of programs and
controls to provide reasonable assurance that fraud is prevented and detected.
16. We are aware of no significant deficiencies, including material weaknesses, in the design
or operation of internal controls that could adversely affect the entity's ability to record,
process, summarize, and report financial data, except as reported in your compliance
and internal control letters.
17. There have been no communications from regulatory agencies concerning
noncompliance with, or deficiencies in, financial reporting practices.
18. We have no plans or intentions to engage in any activity that may materially affect the
carrying value or classification of assets and liabilities.
19. The following have been properly recorded andlor disclosed in the financial statements,
where applicable:
a. Related party transactions, including those as defined in Section 2100 of the
Governmental Accounting Standards Board's Codification of Governmental
Accounting and Financial Reporting Standards, and interfund transactions, including
interfund accounts and advances receivable and payable, sale and purchase
transactions, interfund transfers, long-term loans, leasing arrangements and
guarantees, all of which have been recorded in accordance with the economic
substance of the transaction and appropriately classified and reported.
b. Security agreements in effect under the Uniform Commercial Code.
McGladrey & Pullen, LLP
Page 3 of 6
c. Any other liens or encumbrances on assets or revenues or any assets or revenues
which were pledged as collateral for any liability or which were subordinated in any
way.
d. The fair value of investments.
e. Amounts of contractual obligations for construction and purchase of real property or
equipment not included in the liabilities or encumbrances recorded on the books.
f. Any liabilities which are subordinated in any way to any other actual or possible
liabilities.
g. Debt issue provisions.
h. All leases and material amounts of rental obligations under long-term leases.
i. All significant estimates known to management which are required to be disclosed in
accordance with the AICPA's Statement of Position 94-6, Disclosure of Certain
Significant Risks and Uncertainties. Significant estimates are estimates at the
balance sheet date which could change materially within the next year.
j. Risk financing activities.
k. Deposits and investment securities categories of risk.
I. Pollution remediation obligations as required under GASB Statement No. 49.
m. Defined benefit plans and other post employment benefit plans.
n. Line of credit or similar arrangements.
o. Authorized but unissued bonds and/or notes.
p. We have adopted the following GASB Statements:
- GASB Statement No. 49, "Accounfing and Financial Reporting for Pollution
Remediation Obligations, " and
- GASB Statement No. 54, "'Xccounfing for Fund Balance Reporting and
Governmental Fund Type Definitions".
It is management's decision not to disclose the following GASB Statements which
have been issued, but not yet adopted, due to the fact that these statements will not
have a material effect on the financial statements of the City until fiscal year 2010:
- GAS6 Statement No. 51, "Accounting and Financial Reporting for Intangible
Assets, " and - GASB Statement No. 53, "Accounting and Financial Reporting for Derivative
Instruments"
20. We are responsible for making the accounting estimates included in the financial
statements. Those estimates reflect our judgment based on our knowledge and
experience about past and current events and our assumptions about conditions we
expect to exist and courses of action we expect to take. In that regard, adequate
provisions have been made:
a. To reduce receivables to their estimated net collectable amounts.
b. For risk retention, including uninsured losses or loss retentions (deductibles)
attributable to events occurring through September 30, 2009 andlor for expected
retroactive insurance premium adjustments applicable to periods through September
30, 2009.
McGladrey & Pullen, LLP
Page 4 of 6
c. For pension obligations, post-retirement benefits other than pensions and deferred
compensation agreements attributable to employee services rendered through
September 30,2009.
No provision is required:
a. To reduce obsolete, damaged, or excess inventories to their estimated net realizable
values.
b. To reduce investments, intangibles, and other assets which have permanently
declined in value to their realizable values.
21. There are no:
a. Material transactions that have not been properly recorded in the accounting records
underlying the financial statements. For purposes of this representation, we consider
items to be material, regardless of their size if they involve the misstatement or
omission of accounting information that in light of surrounding circumstances makes
it probable that the judgment of a reasonable person relying on the information would
be changed or influenced by the omission or misstatement.
b. Violations or possible violations of laws or regulations whose effects should be
considered for disclosure in the financial statements or as a basis for recording a loss
contingency. In that regard, we specifically represent that we have not been
designated as, or alleged to be, a "potentially responsible party" by the Federal
Environmental Protection Agency or any equivalent state agencies in connection with
any environmental contamination.
c. Other material liabilities or gain or loss contingencies that are required to be accrued
or disclosed by Statement of Financial Accounting Standards No. 5 andlor GASB
Statement No. 10.
d. Guarantees, whether written or oral, under which the Government is contingently
liable.
e. Arrangements with financial institutions involving compensating balances or other
arrangements involving restrictions on cash balances.
f. Agreements to repurchase assets previously sold.
g. Debt issue repurchase options or agreements, or sinking fund debt repurchase
ordinance requirements.
h. Special and extraordinary items.
i. Impairment of capital assets.
j. Material losses to be sustained in the fulfillment of, or from the inability to fulfill, any
service commitments.
k. Material losses to be sustained as a result of purchase commitments.
I. Arbitrage liabilities.
m. Derivative financial instruments.
n. Material environmental clean-up obligations.
22. In connection with your audit, conducted in accordance with Government Auditing
Standards, we confirm:
a. We are responsible for:
i. Compliance with the laws, regulations, and provisions of contracts and grant
agreements applicable to the City.
McGladrey & Pullen, LLP
Page 5 of 6
ii. Establishing and maintaining effective internal control over financial reporting.
b. We have identified and disclosed to you:
i. All laws, regulations, and provisions of contracts and grant agreements that
have a direct and material effect on the determinations of financial statement
amounts or other financial data significant to audit objectives.
ii. Violations (and possible violations) of laws, regulations, and provisions of
contracts and grant agreements whose effects should be considered for
disclosure in the auditor repository or noncompliance.
c. We have no violations of provisions of contracts or grant agreements that have been
reported.
d. We have a process to track the status of audit findings and recommendations.
e. We have identified for you previous financial audits, performance audits, or other
studies related to the objectives of the audit being undertaken and the corrective
action taken to address significant findings and recommendations.
23. We have no direct or indirect, legal or moral, obligation for any debt of any organization,
public or private or to special assessment bond holders that is not disclosed in the
financial statement.
24. We have satisfactory title to all owned assets.
25. We have complied with all aspects of contractual agreements that would have a material
effect on the financial statements in the event of noncompliance.
26. Net asset components (invested in capital assets, net of related debt; restricted included
and not limited to excess building permit fees; and unrestricted) are properly classified
and, if applicable, approved.
27. GASB 54 establishes fund balance classifications (nonspendable, restricted, committed,
assigned and unassigned) that comprise a hierarchy based primarily on the extent to
which a government is bound to observe constraints imposed upon the use of the
resources reported in governmental funds. Fund balance for governmental funds in each
of the aforementioned categories is properly classified and disclosed in accordance with
GASB 54 and if applicable, approved.
28. Expenses have been appropriately classified in or allocated to functions and programs in
the statement of activities, and allocations have been made on a reasonable basis.
29. Revenues are appropriately classified in the statement of activities within program
revenues and general revenues.
30. Capital assets, including infrastructure assets, are properly capitalized, reported, and
depreciated.
31. Required supplementary information is properly measured and presented.
32. There are no unasserted claims or assessments that our lawyers have advised us are
probable of assertion and must be disclosed in accordance with Statement of Financial
Accounting Standards No. 5 and/or GASB Statement No. 10.
33. We are responsible for and have reviewed and approved the proposed adjustments to the
trial balances identified during the audit and will post all adjustments accordingly.
34. The City has complied with the provisions of Section 21 8.415, Florida Statutes regarding
the investment of public funds.
35. The City is not in a state of emergency based upon the conditions described in Section
218.503(1), Florida Statutes.
McGladrey & Pullen, LLP
Page 6 of 6
36. Management has assessed the financial condition of the City and noted no deteriorating
financial condition.
Except for the issuance of four loans from the City of Gulf Breeze, Florida Local Government
Loan Pool Program on February 17,2010, there are no events or transactions that have occurred
subsequent to the balance sheet date and through the date of this letter that would require
adjustment to, or disclosure in, the financial statements.
During the course of your audit, you may have accumulated records containing data which should
be reflected in our books and records. All such data have been so reflected. Accordingly, copies
of such records in your possession are no longer needed by us.
The City of Miami Beach, Florida
Patricia D. Walker
Chief Financial Officer
7. - .
Allison R. ~illianfis
Chief Accountant
Exhibit B - Single Audit Reports in Accordance with
OMB-Circular A-133 and the Florida Single Audit Act
and Management Letter in Accordance with the
Rules of the Auditor General of the State of Florida
McGladrey & Pullen
Certified Public Accountants
City of Miami Beach, Florida
Single Audit Reports in Accordance With OMB Circular A-133 and
Chapter 10.550, Rules of the Auditor General of the State of Florida
September 30,2009
McGladrey & Pullen, LLP is a member firm of RSM International,
an affiliation of separate and independent legal entities.
Contents
lndependent Auditor's Report
on Internal Control Over Financial Reporting
and on Compliance and Other Matters Based on an Audit
of Financial Statements Performed in Accordance With
Government Auditing Standards 1-2
lndependent Auditor's Report
on Compliance With Requirements Applicable
to Each Major Federal Program and State Project
and on Internal Control Over Compliance in Accordance
with OMB Circular A-133 and Chapter 10.550,
Rules of the Auditor General, State of Florida 3-5
Schedule of Expenditures of Federal Awards and State Financial Assistance 6-7
Notes to Schedule of Expenditures of Federal Awards and State Financial Assistance 8
Schedule of Findings and Questioned Costs 9 - 21
Schedule of Prior Year Audit Findings 22
McGladrey & Pullen
Certified Public Accountants
Independent Auditor's Report
on Internal Control Over Financial Reporting
and on Compliance and Other Matters Based on an Audit
of Financial Statements Performed in Accordance With
Government Auditing Standards
The Honorable Mayor and City Commissioners
City of Miami Beach, Florida
We have audited the financial statements of the governmental activities, the business-type activities, the aggregate
discretely presented component units, each major fund, and the aggregate remaining fund information of the City of
Miami Beach, Florida (the "City") as of and for the year ended September 30, 2009, which collectively comprise the
City's basic financial statements and have issued our report thereon dated April 26,2010. Our report was modified to
include a reference to other auditors and the adoption of the recognition and disclosure requirements of
Governmental Accounting Standards Board Statement No.54, Fund Balance Reporfing and Governmental Fund
Type Definitions, during fiscal year 2009. We conducted our audit in accordance with auditing standards generally
accepted in the United States of America and the standards applicable to financial audits contained in Governmenf
Auditing Sfandards, issued by the Comptroller General of the United States. Other auditors audited the financial
statements of the Miami Beach Visitor and Convention Authority; the Miami Beach Convention Center as managed
by Global Spectrum ("Global Spectrum"); the City of Miami Beach Florida Employees' Retirement Plan; the City of
Miami Beach Florida Pension Fund for Firefighters and Police Officers; the City of Miami Beach Florida Firemen's
Relief and Pension Fund; and the Miami Beach Policemen's Relief and Pension Fund, as described in our report on
the City's financial statements. This report does not include the results of the other auditors' testing of internal
controls over financial reporting or compliance and other matters that are reported on separately by those auditors.
The financial statements of Global Spectrum, the City of Miami Beach Florida Employees' Retirement Plan; the City
of Miami Beach Florida Pension Fund for Firefighters and Police Officers; and the Miami Beach Policemen's Relief
and Pension Fund audited by other auditors were not audited in accordance with Government Auditing Sfandards.
lnternal Control Over Financial Reporting
In planning and performing our audit, we considered the City's internal control over financial reporting as a basis for
designing our auditing procedures for the purpose of expressing our opinions on the financial statements, but not for
the purpose of expressing an opinion on the effectiveness of the City's internal control over financial reporting.
Accordingly, we do not express an opinion on the effectiveness of the City's internal control over financial reporting.
A control deficiency exists when the design or operation of a control does not allow management or employees, in
the normal course of performing their assigned functions, to prevent or detect misstatements on a timely basis. A
significant deficiency is a control deficiency, or combination of control deficiencies, that adversely affects the City's
ability to initiate, authorize, record, process, or report financial data reliably in accordance with generally accepted
accounting principles such that there is more than a remote likelihood that a misstatement of the City's financial
statements that is more than inconsequential will not be prevented or detected by the City's internal control.
McGladrey & Pullen, LLP is a member firm of RSM International,
an affiliation of separate and independent legal entities.
1
A material weakness is a significant deficiency, or combination of significant deficiencies, that results in more than a
remote likelihood that a material misstatement of the financial statements will not be prevented or detected by the
City's internal control.
Our consideration of internal control over financial reporting was for the limited purpose described in the first
paragraph of this section and would not necessarily identify all deficiencies in internal control that might be significant
deficiencies or material weaknesses. We did not identify any deficiencies in internal control over financial reporting
that we consider to be material weaknesses, as defined above.
Compliance and Other Matters
As part of obtaining reasonable assurance about whether the City's financial statements are free of material
misstatement, we performed tests of its compliance with certain provisions of laws, regulations, contracts, and grant
agreements, noncompliance with which could have a direct and material effect on the determination of financial
statement amounts. However, providing an opinion on compliance with those provisions was not an objective of our
audit, and accordingly, we do not express such an opinion. The results of our tests disclosed no instances of
noncompliance or other matters that are required to be reported under Govemmenf Audifing Standards.
We noted certain matters that we reported to management of the City in a separate letter dated April 26,2010.
This report is intended solely for the information and use of the Honorable Mayor, the Members of the City
Commission, management of the City, the Auditor General of the State of Florida, federal and state awarding
agencies and pass-through entities, and is not intended to be, and should not be used by anyone other than these
specified parties.
Miami-Dade County, Florida
April 26,2010.
Certified Public Accountants
Independent Auditor's Report
on Compliance With Requirements Applicable
to Each Major Federal Program and State Project
and on Internal Control Over Compliance in Accordance
With OMB Circular A-133 and Chapter 10.550,
Rules of the Auditor General, State of Florida
The Honorable Mayor and City Commissioners
City of Miami Beach, Florida
Compliance
We have audited the compliance of the City of Miami Beach, Florida (the "City") with the types of compliance
requirements described in the OMB Circular A-133 Compliance Supplemenf and the requirements described in the
Department of Financial Services' State Projects Compliance supplement, that are applicable to each of its major
federal programs and each major state project for the year ended September 30, 2009. The City's major federal
programs and state projects are identified in the summary of auditor's results section of the accompanying schedule
of findings and questioned costs. Compliance with the requirements of laws, regulations, contracts, and grants
applicable to its major federal programs and state projects is the responsibility of the City's management. Our
responsibility is to express an opinion on the City's compliance based on our audit.
We conducted our audit of compliance in accordance with auditing standards generally accepted in the United States
of America; the standards applicable to financial audits contained in Government Auditing Sfandards, issued by the
Comptroller General of the United States; OMB Circular A-133, Audits of Sfafes, Local Governments, and Non-Profit
Organizations; and Chapter 10.550, Rules of the Audifor General, State of Florida. Those standards, OMB Circular
A-133 and Chapter 10.550, Rules of the Audifor General, require that we plan and perform the audit to obtain
reasonable assurance about whether noncompliance with the types of compliance requirements referred to above
that could have a direct and material effect on a major federal program or state project occurred. An audit includes
examining, on a test basis, evidence about the City's compliance with those requirements and performing such other
procedures as we considered necessary in the circumstances. We believe that our audit provides a reasonable
basis for our opinion. Our audit does not provide a legal determination of the City's compliance with those
requirements.
In our opinion, the City complied, in all material respects, with the requirements referred to above that are applicable
to each of its major federal programs and state projects for the year ended September 30, 2009. However, the
results of our auditing procedures disclosed instances of noncompliance with those requirements, which are required
to be reported in accordance with OMB Circular A-133 and Chapter 10.550, Rules of the Audifor General, and which
are described in the accompanying schedule of findings and questioned costs as items CF 2009-01, CF 2009-02, CF
2009-03, CF 2009-04, CF 2009-05, CF 2006-06 and CF 2009-07.
Internal Control Over Compliance
The management of the City is responsible for establishing and maintaining effective internal control over compliance
with the requirements of laws, regulations, contracts, and grants applicable to federal programs and state projects. In
planning and performing our audit, we considered the City's internal control over compliance with requirements that
could have a direct and material effect on a major federal program or state project in order to determine our auditing
procedures for the purpose of expressing our opinion on compliance, but not for the purpose of expressing an
opinion on the effectiveness of internal control over compliance. Accordingly, we do not express an opinion on the
effectiveness of the City's internal control over compliance.
Our consideration of internal control over compliance was for the limited purpose described in the preceding
paragraph of this section and would not necessarily identify all deficiencies in the entity's internal control that might
be significant deficiencies or material weaknesses as defined below. However, as discussed below, we identified
certain deficiencies in internal control over compliance that we consider to be significant deficiencies.
A confrol deficiency in an entity's internal control over compliance exists when the design or operation of a control
does not allow management or employees, in the normal course of performing their assigned functions, to prevent or
detect noncompliance with a type of compliance requirement of a federal program or state project on a timely basis.
A significanf deficiency is a control deficiency, or combination of control deficiencies, that adversely affects the
entity's ability to administer a federal program or state project such that there is more than a remote likelihood that
noncompliance with a type of compliance requirement of a federal program or state project, that is more than
inconsequential, will not be prevented or detected by the entity's internal control. We consider the deficiencies in
internal control over compliance described in the accompanying schedule of findings and questioned costs as items
IC 2009-01 through IC 2009-07 to be significant deficiencies.
A material weakness is a significant deficiency, or combination of significant deficiencies, that results in more than a
remote likelihood that material noncompliance with a type of compliance requirement of a federal program or state
project will not be prevented or detected by any entity's internal control. We did not consider the deficiencies
described in the accompanying schedule of findings and questioned costs to be material weaknesses.
Schedule of Expenditures of Federal Awards and State Financial Assistance
We have audited the financial statements of the governmental activities, the business-type activities, the aggregate
discretely presented component units, each major fund, and the aggregate remaining fund information of the City as
of and for the year ended September 30,2009 and have issued our report thereon dated April 26,2010. Our report
was modified to include a reference to other auditors and the adoption of the recognition and disclosure requirements
of Governmental Accounting Standards Board Statement No.54, Fund Balance Reporting and Governmental Fund
Type Definifions, during fiscal year 2009. Our audit was performed for the purpose of forming our opinions on the
financial statements that collectively comprise the City's basic financial statements. The accompanying schedule of
expenditures of federal awards and state financial assistance is presented for purposes of additional analysis as
required by OMB Circular A-133, and Chapter 10.550, Rules of fhe Auditor General, and is not a required part of the
basic financial statements. Such information has been subjected to the auditing procedures applied in the audit of
the basic financial statements and, in our opinion, is fairly stated, in all material respects, in relation to the basic
financial statements taken as a whole.
The City's responses to the findings identified in our audit are described in the accompanying schedule of findings
and questioned costs. We did not audit the City's response and, accordingly, we express no opinion on it.
This report is intended solely for the information and use of the Honorable Mayor, the Members of the City
Commission, management of the City, the Auditor General of the State of Florida, federal and state awarding
agencies, and pass-through entities, and is not intended to be and should not be used by anyone other than these
specified parties.
Miami-Dade County, Florida
June 22, 2010, except for the Schedule of Expenditures of Federal Awards and State Financial Assistance which is
dated April 26,2010.
City of Miami Beach, Florida
Schedule of Expenditures of Federal Awards and State Financial Assistance
Year Ended September 30,2009
Federalistate GrantoriPass-Through Entity
CFDAl
CSFA GrantlContract
Program Title Number Number Expenditures
Federal Grants:
U.S. Department of Housing and Urban Development:
Direct Programs:
Community Development Block Grant 14.218 B-XX-MC-12-0014 $ 1,744,174
CDBG-Section 108 Loan Guarantees 14.248 B-94-MC-12-0014 35,719
Home Investment Partnership Program 14.239 M-XX-MC-12-0014 747,697
Homeless Prevention and Rapid Rehousing Program
(Recovery Act Funded) 14.257 SO9-MY-12-0007 2,109
Total U.S. Department of Housing and
Urban Development
U.S. Department of Justice:
Direct Program:
Juvenile Justice and Delinquency Prevention -Teen Club
Pass-Through State of Florida:
Office of Attorney General
Crime Victim Assistance - VOCA
Total U.S. Department of Justice
U. S. Department of Transportation:
Pass-Through State of Florida:
Florida Department of Transportation Highway Planning
and Construction-Beachwalk II
U.S. Department of Homeland Security:
Direct Program:
Emergency Food and Shelter National Board Program -
EFS Phase 26
Emergency Food and Shelter National Board Program -
EFS Phase 27
Pass-through State of Florida:
Florida Department of Community Affairs
Pass-through Miami Dade County
Office of Domestic Preparedness Homeland Security
Grant Program
Homeland Security Grant Program - Urban Areas
Security Initiative 2007
Disaster Grants-Public Assistance - FEMA - Disaster
Relief Funding Agreement
Total U.S. Department of Homeland Security
(Continued)
City of Miami Beach, Florida
Schedule of Expenditures of Federal Awards and State Financial Assistance (Continued)
Year Ended September 30,2009
CFDAl
FederaIlState GrantorlPass-Through Entity CSFA Grant/ Contract
Program Title Number Number Expenditures
National Endowment for the Arts
Direct Program:
Promotion of the Arts Sleepless Night 2009 45.024 09-6200-7027 $ 24,780
Total Expenditures of Federal Awards 3,267,804
State Grants:
Florida Department of Health:
Pass-Through Miami-Dade County:
Emergency Medical Services 64.005 C-8013 10,792
Florida Department of State:
Division of Historical Resources:
Historic Preservation Grant-Fire Station No 2 45.031 SC114 15,515
Division of Cultural Affairs:
Cultural Facilities Grant Program-Colony Theatre Renovation 45.014 07-09007 291,789
Florida Department of Environmental Protection:
Water Resource Management-Normandy Shores 37.039 LP605513 500,000
Florida Housing Finance Corporation:
State Housing Initiatives Partnership Program 52.901 N A 544,142
Total Expenditures of State Financial Assistance 1,362,238
Total Expenditures of Federal Awards and
State Financial Assistance $ 4,630,042
NA = Not Available
City of Miami Beach, Florida
Notes to Schedule of Expenditures of Federal Awards and State Financial Assistance
Year Ended September 30,2009
1. General
The accompanying Schedule of Expenditures of Federal Awards and State Financial Assistance presents the
expenditure activity of all federal awards and state projects of the City of Miami Beach, Florida (the "Cityn) for the year
ended September 30, 2009. The City's reporting entity is defined in Note 1 of the City's basic financial statements.
All federal awards and state financial assistance received directly from federal and state agencies, as well as
amounts passed through other government agencies are included in the accompanying Schedule of Expenditures of
Federal Awards and State Financial Assistance.
2. Basis of Accounting
The accompanying Schedule of Expenditures of Federal Awards and State Financial Assistance is presented using
the modified accrual basis of accounting for grants which are accounted for in the governmental fund types and on
the accrual basis of accounting for grants which are accounted for in the proprietary fund types. The information in
the Schedule of Expenditures of Federal Awards and State Financial Assistance is presented in accordance with the
requirements of OMB Circular A-133, Audits of States, Local Governments, and Non-Profif Organizations and
Chapter 10.550, Rules of fhe Audifor General. Therefore, some amounts presented in this schedule may differ from
amounts presented in or used in the preparation of the basic financial statements.
3. Subrecipient Awards
Of the federal awards and state financial assistance presented in the Schedule of Expenditures of Federal Awards
and State Financial Assistance, the City provided the following amounts to subrecipients:
Amount
CFDAICSFA Provided
Name of ProgramlProjects Number to Subrecipient
Federal:
Community Development Block Grant
Home Program
Total Federal
State:
State Housing Initiatives Partnership Program
City of Miami Beach, Florida
Schedule of Findings and Questioned Costs
Federal Awards Proarams and State Projects
Section I -Summary of Auditor's Results
Financial Statements
Type of auditor's report issued:
Internal control over financial reporting:
Material weakness(es) identified?
Significant deficiency(ies) identified that are
not considered to be material weakness(es)?
Noncompliance material to financial statements noted?
Federal Awards
Internal control over major program:
Material weakness(es) identified?
Significant deficiency(ies) identified that are not considered
to be material weakness(es)?
Type of auditor's report issued on compliance for
major programs:
Any audit findings disclosed that are required
to be reported in accordance with Section 51 0(a)
of Circular A-133?
Identification of major program:
Federal CFDA No.
14.218
Dollar threshold used to distinguish between type
A and type B programs:
Auditee qualified as low-risk auditee?
Unqualified
Yes X No
Yes X No
Yes X No
Yes X No
X Yes None reported
Unqualified
X Yes No
Name of Federal Program or Cluster
U.S. Department of Housing and Urban Development:
Community Development Block Grant
U.S. Department of Housing and Urban Development:
Home Investment Partnership Program
U.S. Department of Justice:
Juvenile Justice and Delinquency Prevention -Teen Club
X Yes No
City of Miami Beach, Florida
Schedule of Findings and Questioned Costs (Continued)
Federal Awards Programs and State Projects
State Financial Assistance
lntemal control over major projects:
Material weakness(es) identified?
Significant deficiency(ies) identified that are
Yes X No
not considered to be material weakness(es)? X Yes None reported
Type of auditor's report issued on compliance for
major projects:
Any audit findings disclosed that are required
to be reported in accordance with Chapter 10.550,
Rules of the Auditor General?
Identification of major projects:
State CSFA No.
45.014
Dollar threshold used to distinguish between type
A and type B programs:
Unqualified
X Yes No
Name of State Proiects
Division of Cultural Affairs:
Cultural Facilities Grant Program-Colony Theatre Renovation
Florida Housing Finance Corporation:
State Housing Initiatives Partnership Program
City of Miami Beach, Florida
Schedule of Findings and Questioned Costs (Continued)
Federal Awards Programs and State Projects
Section 11- Financial Statement Findings
A. lnternal Confrol
None reported.
6. Compliance
None reported
Section Ill - Federal Awards and State Financial Assistance Findings and Questioned Costs
A. lnternal Confrol over Compliance
Federal Awards
IC 2009-01 Subrecipient Monitoring
U.S. Department of Housing and Urban Development (HUD) -
Community Development Block Grant (CFDA No. 14.218)
Criteria: OMB Circular A-133 which requires that a pass-through entity is responsible for monitoring
subrecipient activities and that the subrecipient is administering federal awards in compliance with federal
requirements. A control system should be in place to ensure subrecipient monitoring activities occur on a
timely basis.
Condition: Monthly reports were not prepared andlor submitted in a timely manner by the subrecipients to
the City as required by the subrecipient agreements. In addition, no evidence of monitoring visits were
found in several subrecipient's files. It was noted that the following reports were not submitted by the
subrecipients and the following monitoring visits were not documented or evident in subrecipients files:
Miami Beach Community Development Center was missing monthly reports for the entire fiscal
year for the Allen House Apartments, Home Ownership Assistance, Multi- family housing program,
and Tenant services coordinator. Additionally all of the reports for the Meridian Apartments
Fa~ade's were submitted past their due dates.
Unidad of Miami Beach, Inc. North Beach Senior Center's November 2008, December 2008, April
2009, June 2009, and September 2009 were the only reports that were submitted during fiscal year
2009. Additionally, all of the above reports listed were submitted past their due date.
Miami Beach Community Development Corporation - Allen House Apartments, Home Ownership
Assistance, Multi-Family Housing Programs, Tenant Services; Unidad of Miami Beach, Inc.-North
Beach Senior Center, and Project Link, had no evidence of a monitoring visit being performed.
Questioned costs: Undeterminable.
City of Miami Beach, Florida
Schedule of Findings and Questioned Costs (Continued)
Federal Awards Programs and State Proiects
Context: We selected seven of the twenty-four subrecipients who received CDBG funds. During
subrecipient testing we noted the inconsistency of reporting by the subrecipients. In addition, we performed
inquiry and verification from subrecipients' files on the documentation results of monitoring visits. We noted
Miami Beach Community Development Corporation - Allen House Apartments, Home Ownership
Assistance, Multi-Family Housing Programs, Tenant Services; Unidad of Miami Beach, Inc. - North Beach
Senior Center, and Project Link, had no evidence of a monitoring visit being performed.
Effect: Subrecipients may not be administering the activities funded by the program in accordance with the -
provisions of the program requirements and grant agreements which may result in repayment of awards.
Cause: The City has not developed a formal policy and procedures on subrecipient monitoring and site visit -
review.
Recommendation: We recommend the City establish a formal policy and procedure for monitoring and
reviewing the activities of the sub-grantees of the program. A spreadsheet should be maintained for all
subrecipients to track the timely submission of the reports. In addition, each site monitoring should be
clearly documented indicating at a minimum, the name of the monitor, the date the monitoring occurred, the
procedures performed, and if the subrecipient complied with laws, regulations and the provisions of
contracts and grant agreements.
Views of responsible officials and planned corrective action: The City agrees that formal policies and
procedures for monitoring and reviewing activities are necessary. Staff concurs that a formal process must
be implemented for monitoring visits and other program compliance. We are currently undergoing a review
of all files and developing monitoring tools (cover pages) for each subrecipient file which will document
responsibilities, contract deliverables, and deadlines. Staff is also being cross-trained to ensure compliance
with program rules and notifying all subrecipients that failure to file monthly reports is a default under their
contracts.
City of Miami Beach, Florida
Schedule of Findings and Questioned Costs (Continued)
Federal Awards Programs and State Projects
IC 2009-02 Earmarking
U.S. Department of Housing and Urban Development (HUD) -
Community Development Block Grant "CDBG" (CFDA No. 14.218)
Criteria: 24 CFR section 570.201(e) of OMB Circular A-133, stipulates that funds obligated during the -
program year for public services must not exceed fifteen percent of the grant amount it received for that year
plus fifteen percent of the program income it received during the preceding program year. The City must
have an internal control policy in place to review each housing project and ensure compliance with the
earmarking requirements.
Condition: There was no procedure in place to monitor and ensure compliance with the earmarking
requirements of the CDBG Program, therefore, the City exceeded the allotted amount during fiscal year
2009.
Questioned costs: $32,830.
Context: In fiscal year 2009, total public services expenditure amounted to $291,218 while the maximum
funds available to be obligated for public services expenditure (fifteen percent of fiscal year 2009 total
expenditures) amounted to $258,389.
Effect: Failure to review amounts incurred for earmarking could result in prescribed limits not being met and -
not being detected in a timely detection and could thus result in noncompliance.
Cause: The City has not developed sufficient procedures to ensure and monitor compliance. The City did -
not budget appropriately the amount of total public services expenditure allowed based on the fiscal year
2009 award amount.
Recommendation: We recommend that the City establish an appropriate budget for the public service
expenditures and implement a procedure whereby as part of the review process management compares
actual expenditures to budgeted expenditures to ensure adherence to the compliance requirements.
View of responsible officials and planned corrective action: The City exceeded the Public Services cap by
assigning a service category to an affordable housing developer. The developer's tenant services activities
were erroneously labeled as a housing activity, as such, the City exceeded its public services cap. This
error was noted by City staff in the 200812009 CAPER to HUD. HUD has recently informed City staff that an
adjustment may be made in the allocations of CDBG public service funds for the FY201012011 award. The
excess public services funds utilized in FY200812009 will be reduced from the next funding cycle.
City of Miami Beach, Florida
Schedule of Findings and Questioned Costs (Continued)
Federal Awards programs and State Projects
IC 2009-03 Special Test
U.S. Department of Housing and Urban Development (HUD) -
Community Development Block Grant "CDBG" (CFDA No. 14.218)
Criteria: 24 CFR sections 58.1, 58.22, 58.34, 58.35, and 570.604 of OMB Circular A-133 stipulates that
projects must have an environmental review unless they meet criteria specified in the regulations that would
exempt or exclude them from request for release of funds and environmental certification requirements.
Additionally, when CDBG funds are used for rehabilitation, the grantee must ensure that the work is properly
completed. The City must have an internal control policy in place to review each housing project and ensure
compliance with the environmental review requirements.
Condition: An environmental review was not completed for the Miami Beach Community Development
Corporation - Allen House Apartments.
Questioned costs: Undeterminable.
Context: In fiscal year 2009, the City did not have documentation of a completed environmental review for
the Miami Beach Community Development Corporation -Allen House Apartments.
Effect: City's non compliance with grant requirements may result in repayment of award monies. -
Cause: The City has not developed a procedure to ensure compliance requirements are being adhered to -
by subrecipients.
Recommendation: We recommend the City establish a formal policy and procedure for monitoring and
reviewing the activities of the sub-grantees of the program to ensure that the subrecipients are adhering to
all compliance requirements.
View of responsible officials and planned corrective action: Staff concurs that the environmental
assessment was not received prior to the end of the fiscal year. The environmental report has now been
performed and has been submitted for approval to the State of Florida.
City of Miami Beach, Florida
Schedule of Findings and Questioned Costs (Continued)
Federal Awards Programs and State Projects
IC 2009-04-Subrecipient Monitoring
U.S. Department of Housing and Urban Development (HUD) -
HOME Investment Partnership Program (CFDA No. 14.239)
Criteria: OM0 Circular A-133 stipulates that a pass-through entity is responsible for monitoring subrecipient
activities and that the subrecipient is administering federal awards in compliance with federal requirements.
Condition: Monitoring of subrecipent activities was not conducted during fiscal year 2009 for the Miami
Beach Community Development Center - Community Housing Development Organization.
Questioned costs: Undeterminable.
Context: In fiscal year 2009, there was one subrecipient who received HOME funds. M&P tested the one
subrecipient and noted there was no evidence of submission of monthly reports by the subrecipient to the
City. Additionally, we performed inquiry and verification from the subrecipient's file on the documentation
results of monitoring visits and noted no evidence of review of the one monitoring visit conducted on Miami
Beach Community Development Corporation during fiscal year 2009.
Effect: Subrecipients may not be administering the activities funded by the program in accordance with the -
provisions of the program requirements and grant agreements which may result in repayment of awards.
Cause: The City has not developed a formal policy and procedures on subrecipient monitoring and site -
visit review.
Recommendation: We recommend the City establish a formal policy and procedure for monitoring and
reviewing the activities of the sub-grantees of the program. A spreadsheet should be maintained for all
subrecipients to track the timely submission of the reports. In addition, each site monitoring should be
clearly documented indicating at a minimum, the name of the monitor, the date the monitoring occurred, the
procedures performed, and if the subrecipient complied with laws, regulations and the provisions of
contracts and grant agreements.
View of responsible officials and planned corrective action: The City agrees that formal policies and
procedures for monitoring and reviewing activities are necessary. Staff concurs that a formal process must
be implemented for monitoring visits and other program compliance. We are currently undergoing a review
of all files and developing monitoring tools (cover pages) for each subrecipient file which will document
responsibilities, contract deliverables, and deadlines. Staff is also being cross-trained to ensure compliance
with program rules and notifying all subrecipients that failure to file monthly reports is a default under their
contracts.
City of Miami Beach, Florida
Schedule of Findings and Questioned Costs (Continued)
Federal Awards Programs and State Projects
State Awards
IC-2009-05 - Reporting
Florida Department of Environmental Protection
State Housing Initiatives Partnership "SHIP" (CFSA No. 52.901)
Criteria: Each county of eligible municipality shall submit to the Florida Housing Finance Corporation (FHFC)
by September 15 of each year a report of its affordable housing programs and accomplishments through
June 30th. The City must have an internal control policy in place to review each housing project and ensure
compliance with the reporting requirements.
Condition: There was no procedure in place to monitor and ensure compliance with the reporting
requirements of the SHIP Program. As a result, the required report was submitted forty-nine days late by
the City to FHFC.
Questioned costs: Undeterminable.
Context: In fiscal year 2009, the City submitted the Annual Report for fiscal years 2006-2007, 2007-2008,
and 2008-2009 on November 3,2009, forty-nine days past due.
Effect: City's non compliance with grant requirements may result in repayment of award monies. -
Cause: The City has not developed a procedure to ensure compliance requirements are being adhered to. -
Recommendation: We recommend the City establish a formal policy and procedure to notify City
employees on pertinent due dates relating to grant awards. A tracking system'should be developed to track
the timely submission of the reports.
View of responsible officials and planned corrective action: The City will use a tracking system already in
place that required reports are filed in a timely manner.
City of Miami Beach, Florida
Schedule of Findings and Questioned Costs (Continued)
Federal Awards Programs and State Projects
IC 2009-06 - Special Test
Florida Department of Environmental Protection
State Housing Initiatives Partnership "SHIP" (CFSA No. 52.901)
Criteria: The City must have an internal control policy in place to review each housing project and ensure
compliance with the earmarking requirements. Florida statutes, Sections 420.907 through 420.9079 over
the SHlP grant, stipulates the following earmarking requirements:
At least 65 % of the funds made available in each county must be reserved for home
ownership for eligible persons.
At least 75% of funds made available must be reserved for construction, rehabilitation, or
emergency repair of affordable, eligible housing.
At least 30% of funds must be reserved for awards to very low income persons or eligible
sponsors who will serve very low income persons and at least an additional 30% of funds must
be reserved for awards to low-income persons or eligible sponsors who will serve low income
persons.
Administrative Expense (LHAP).
Condition: There was no procedure in place to monitor and ensure compliance with the earmarking
requirements of the SHlP Program. As a result, the City did not meet any of the required earmarking
requirements during fiscal year 2009 for the closing year of fiscal year 2006-2007.
Questioned costs: Undeterminable.
Context: The City did not meet any of the required earmarking requirements during fiscal year 2009 for the
closing year of fiscal year 2006-2007. This is a systemic problem as there was no procedure in place to
ensure and monitor compliance.
Effect: Failure to review amounts incurred for earmarking could result in prescribed limits not being met and -
not being detected in a timely detection and could thus result in noncompliance.
Cause: The City has not developed a procedure to ensure compliance requirements are being adhered to. -
Recommendation: We recommend the City establish a formal policy and procedure to ensure compliance
requirements are met.
View of res~onsible officials and Dlanned corrective action: The City has three years in which to expend
SHlP funds. The original deadline to expend the grant year ending June 30,2007 funds was June 30,2009,
however two six month extensions were requested and granted by the State. The deadline to expend the
funds is currently June 30,2010.
City of Miami Beach, Florida
Schedule of Findings and Questioned Costs (Continued)
Federal Awards Programs and State Projects
IC 2009-07 - Subrecipient Monitoring
Florida Department of Environmental Protection
State Housing Initiatives Partnership "SHIP" (CFSA No. 52.901)
Criteria: Florida statutes, Sections 420.907 through 420.9079 over the SHlP grant and Chapter 67-37.007
Florida Administrative Code, stipulates that a pass-through entity is responsible for monitoring subrecipient
activities and that the subrecipient is administering state awards in compliance with state requirements. A
control system should be in place to ensure subrecipient monitoring activities occur on a timely basis.
Condition: There was no procedure in place to monitor and ensure compliance with the subrecipient
requirements of the SHlP Program. As a result, monthly reports were not prepared and or submitted in a
timely manner by the subrecipient, Miami Beach Community Development Center, to the City as required by
the subrecipient's agreements. Additionally, monitoring of subrecipent activities was not conducted during
fiscal year 2009 by the City.
Questioned costs: Undeterminable.
Context: In fiscal year 2009, there was one subrecipient who received SHlP funds. M&P tested the one
subrecipient and noted there was no evidence of submission of monthly reports by the subrecipient to the
City. Additionally, we performed inquiry and verification from subrecipients' file on the documentation
results of monitoring visits. We noted Miami Beach Community Development Corporation had no evidence
of a monitoring visit being performed.
Effect: Subrecipients may not be administering the activities funded by the program in accordance with the -
provisions of the program requirements and grant agreements which may result in repayment of awards.
Cause: The City has not developed a formal policy and procedures on subrecipient monitoring and site visit -
review.
Recommendation: We recommend the City establish a formal policy and procedure for monitoring and
reviewing the activities of the sub-grantees of the program. A spreadsheet should be maintained for all
subrecipients to track the timely submission of the reports. In addition, each site monitoring should be
clearly documented indicating at a minimum, the name of the monitor, the date the monitoring occurred, the
procedures performed, and if the subrecipient complied with laws, regulations and the provisions of
contracts and grant agreements.
View of responsible officials and planned corrective action: The City agrees that formal policies and
procedures for monitoring and reviewing activities are necessary. Staff concurs that a formal process must
be implemented for monitoring visits and other program compliance. We are currently undergoing a review
of all files and developing monitoring tools (cover pages) for each subrecipient file which will document
responsibilities, contract deliverables, and deadlines. Staff is also being cross-trained to ensure compliance
with program rules and notifying all subrecipients that failure to file monthly reports is a default under their
contracts.
City of Miami Beach, Florida
Schedule of Findings and Questioned Costs (Continued)
Federal Awards Programs and State Projects
B. Compliance Findings
Federal Awards
CF 2009-01 Subrecipient Monitoring
U.S. Department of Housing and Urban Development (HUD) -
Community Development Block Grant (CFDA No. 14.218)
See IC 2009-01
Views of responsible officials and planned corrective actions: See IC 2009-01 for detailed view of
responsible officials and planned corrective action.
CF 2009-02 Earmarking
U.S. Department of Housing and Urban Development (HUD) -
Community Development Block Grant "CDBG" (CFDA No. 14.218)
See IC 2009-02
Views of responsible officials and planned corrective actions: See IC 2009-02 for detailed view of
responsible officials and planned corrective action.
City of Miami Beach, Florida
Schedule of Findings and Questioned Costs (Continued)
Federal Awards programs and State Projects
CF 2009-03 Special Test
U.S. Department of Housing and Urban Development (HUD) -
Community Development Block Grant "CDBG" (CFDA No. 14.218)
See IC 2009-03
Views of resuonsible officials and ulanned corrective actions: See IC 2009-03 for detailed view of
responsible officials and planned corrective action.
CF 2009-04 Subrecipient Monitoring
U.S. Department of Housing and Urban Development (HUD) -
HOME Investment Partnership Program (CFDA No. 14.239)
See IC 2009-04
Views of responsible officials and planned corrective actions: See IC 2009-04 for detailed view of
responsible officials and planned corrective action.
State Financial Assistance
CF 2009-05 Reporting
Florida Department of Environmental Protection
State Housing Initiatives Partnership "SHIP" (CFSA No. 52.901)
See IC 2009-05
Views of responsible officials and ulanned corrective actions: See IC 2009-05 for detailed view of
responsible officials and planned corrective action.
CF 2009-06 Special Test
Florida Department of Environmental Protection
State Housing Initiatives Partnership "SHIP" (CFSA No. 52.901)
See IC 2009-06
Views of resuonsible officials and ulanned corrective actions: See IC 2009-06 for detailed view of
responsible officials and planned corrective action.
City of Miami Beach, Florida
Schedule of Findings and Questioned Costs (Continued)
Federal Awards Programs and State Projects
CF 2009-07 Subrecipient Monitoring
Florida Department of Environmental Protection
State Housing Initiatives Partnership "SHIP" (CFSA No. 52.901)
See IC 2009-07
Views of responsible officials and ~lanned corrective actions: See IC 2009-07 for detailed view of
responsible officials and planned corrective action.
City of Miami Beach, Florida
Schedule of Prior Year Audit Findings
Federal Awards Programs and State Projects
Finding # Finding Title Status Explanation
Findings related to financial statements:
CF 2008-01 Subrecipient Monitoring(CFDA No.14.218)
There was no evidence of monitoring being Not Corrected The City agrees that formal policies and procedures
performed by the City for one of the subrecipients for monitoring and reviewing activities are necessary.
in order to ensure that the subrecipient was in The City concurs that a formal process must be
compliance with the provisions of contracts and implemented for monitoring visits and other program
grant agreements. compliance. The City is currently undergoing a
review of all files and developing monitoring tools for
each subrecipient file which will document
responsibilities, contract deliverables, and deadlines.
Furthermore, The City is in the process of notifying all
subrecipients that failure to file monthly reports is a
default under their contracts.
CF 2008-02 Reporting(CFDA No. 14.248)
The City failed to submit the monthly reports by the Corrected The City corrected the specific finding in fiscal year
15th day of each month. For six of the twelve 2009.
reports selected for testing.
CF 2008-03 Reporting(CFDA No. 16.738)
During our testing we noted of the four reports Corrected The City corrected the specific finding in fiscal year
tested, two reports were not submitted timely. 2009.
McGladrey s( Pullen
Certified Public Accoufitants
City of Miami Beach, Florida
Management Letter in Accordance with the Rules of the
Auditor General of the State of Florida
September 30,2009
McGladrey & Pullen, LLP is a member firm of RSM International,
an affiliation of separate and independent legal entities.
Contents
Management Letter in Accordance with the
Rules of the Auditor General of the State of Florida 1-2
Appendix A - Current Year's Recommendations to lmprove Financial Management,
Accounting Procedures and Internal Controls
Appendix B - Prior Year's Recommendations to lmprove Financial Management,
Accounting Procedures and Internal Controls
McGladrey & Pullen
Certified Public Accountants
Management Letter in Accordance with the
Rules of the Auditor General of the State of Florida
To the Honorable Mayor and City Commissioners
City of Miami Beach, Florida
We have audited the financial statements of the governmental activities, the business-type activities, the aggregate
discretely presented component units, each major fund, and the aggregate remaining fund information of the City of
Miami Beach, Florida (the "City") as of and for the year ended September 30, 2009, and have issued our report
thereon dated April 26, 2010. Our report was modified to include a reference to other auditors and the adoption of
the recognition and disclosure requirements of Governmental Accounting Standards Board Statement No. 54,
Accounting for Fund Balance Reporting and Governmental Fund Type Definitions, as of September 30,2009.
We conducted our audit in accordance with auditing standards generally accepted in the United States of America;
the standards applicable to financial audits contained in Government Auditing Standards, issued by the Comptroller
General of the United States; and OM6 Circular A-133, Audits of States, Local Governments and Non-Profit
Organizations. We have issued our lndependent Auditor's Report on Internal Control over Financial Reporting and
on Compliance and Other Matters Based on an Audit of Financial Statements Performed in Accordance with
Governmenf Audifing Standards dated April 26, 2010, and lndependent Auditor's Report on Compliance with
Requirements Applicable to Each Major Federal Program and State Project and on Internal Control over Compliance
and Schedule of Findings and Questioned Costs dated June 22, 2010. Disclosures in those reports and schedule,
should be considered in conjunction with this management letter.
Additionally, our audit was conducted in accordance with the provisions of Chapter 10.550, Rules of the Auditor
General, which governs the conduct of local governmental entity audits performed in the State of Florida. This letter
includes the following information, which is not included in the aforementioned auditor's reports or schedule:
Section 10.554(1)(i)1., Rules of the Auditor General requires that we determine whether or not corrective actions
have been taken to address findings and recommendations made in the preceding annual financial audit report.
Corrective actions have been taken to address findings and recommendations made in the preceding annual
financial audit report, except for those reported below under the heading "Prior Year's Recommendations to Improve
Financial Management, Accounting Procedures and Internal Controls" listed in Appendix B.
Section 10.554(1)(i)2., Rules of the Auditor General, requires our audit to include a review of the provisions of Section
218.415, Florida Statutes, regarding the investment of public funds. In connection with our audit, we determined that
the City complied with Section 218.415, Florida Statutes, relating to local government investment policies.
Section 10.554(1)(i)3., Rules of the Auditor General, requires that we address in the management letter any
recommendations to improve financial management. The recommendations to improve the City's financial management
have been addressed in Appendix A to this report.
McGladrey & Pullen, LLP is a member firm of RSM International,
an affiliation of separate and independent legal entities.
1
Section 10.554(1)(i)4., Rules of the Auditor General, requires that we address violations of provisions of contracts or
grant agreements, or abuse, that have an effect on the financial statements that is less than material but more than
inconsequential. In connection with our audit, we did not have any such findings.
Section 10.554(1)(i)5., Rules of the Auditor General provides that the auditor may, based on professional judgment,
report the following matters that have an inconsequential effect on financial statements, considering both quantitative
and qualitative factors: (1) violations of provisions of contracts or grant agreements, fraud, illegal acts, or abuse, and
(2) control deficiencies that are not significant deficiencies. In connection with our audit, we did not have any such
findings.
Section 10.554(1)(i)6., Rules of the Auditor General, requires that the name or official title and legal authority for the
primary government and each component unit of the reporting entity be disclosed in this management letter, unless
disclosed in the notes to the financial statements. The information is disclosed in Note 1A to the financial statements.
Section 10.554(l)(i)7.a., Rules of the Auditor General, requires a statement be included as to whether or not the local
governmental entity has met one or more of the conditions described in Section 218.503(1), Florida Statutes, and
identification of the specific condition met. In connection with our audit, we determined that the City did not meet
any of the conditions described in Section 218.503(1), Florida Statutes.
Section 10.554(l)(i)7.b., Rules of the Auditor General, requires that we determine whether the annual financial report
for the City for the fiscal year ended September 30, 2009 filed with the Florida Department of Financial Services
pursuant to Section 218.32(1)(a), Florida Statutes, is in agreement with the annual financial audit report for the fiscal
year ended September 30, 2009. In connection with our audit, we determined that these two reports were in
agreement.
Pursuant to Sections 10.554(l)(i)7.c. and 10.556(7), Rules of the Auditor General, we applied financial condition
assessment procedures. It is management's responsibility to monitor the City's financial condition, and our financial
condition assessment was based in part on representations made by management and the review of financial
information provided by same.
Pursuant to Chapter 119, Florida Statutes this management letter is a public record and its distribution is not limited.
Auditing standards generally accepted in the United States of America require us to indicate that this letter is
intended solely for the information and use of the Honorable Mayor, City Commissioners, management of the City,
the State of Florida Office of the Auditor General, federal and state awarding agencies, and pass-through entities,
and is not intended to be and should not be used by anyone other than these specified parties.
Miami-Dade County, Florida
April 26,2010
City of Miami Beach, Florida
Appendix A
Current Year's Recommendations to Improve Financial Management,
Accounting Procedures and Internal Controls
Year Ended September 30,2009
No. Current Year's Observations
2009-1 Complexity of Passwords
2009-2 Self-Insurance Fund Deficit
2009-3 Budget Compliance
2009-1 Complexity of Passwords
Criteria: Password settings should include complexity to ensure passwords are not easy to guess by others.
Condition: Per inspection of password setting within Active Directory, setting "Password must meet complexity
requirements" is disabled within Active Directory.
Effect: Lack of complexity within password parameters may allow inappropriate or unauthorized access to critical IT -
systems.
Cause: Password encryption is in place and multiple failed attempts lockout. -
Recommendation: The City should consider setting "Password must meet complexity," within Active Directory, to
"Enable". Complexity should include combinations between upper case, lower case, and number.
Views of res~onsible officials and ~lanned corrective actions: The City currently utilizes Kerberos authentication
NTLM 128 bit encryption for all passwords stored within the Active Directory database. This level of encryption is
considered to be adequate within the IT industry to safeguard passwords, even though those passwords may not
meet complex password criteria. Additionally, Active Directory is configured to lock out an account after three failed
log in attempts.
City of Miami Beach, Florida
Appendix A
Current Year's Recommendations to Improve Financial Management,
Accounting Procedures and Internal Controls (Continued)
Year Ended September 30,2009
2009-2 Self-Insurance Fund Deficit
Criteria: Proprietary funds (which include internal service funds) should be accounted for on a cost reimbursement
basis.
Condition: The City's self-insurance fund reported a net asset deficit of approximately $9.0 million, as of
September 30,2009.
Cause: The rates established to charge each participating fund of the City were not adequate enough to reimburse -
the cost of insurance.
Effect: The City's may not have enough resources accumulated to fully liquidate insurable liabilities as they become -
due. In addition, by not properly allocating these charges to the various funds and functions, the City might not
incorporate all of the City's cost that would be applicable in order to accurately establish rates and fees for services
that are charged by the City to external parties.
Recommendation: We recommend that the City evaluate its self-insurance program, to not only help ensure that the
level of amounts charged to user funds are sufficiently balanced to sustain the self-insurance program, but to help
ensure that reserves will be replenished in order to fund the growing deficit. The total charge by the internal service
fund to the other funds should be based on a systematic method and adjusted over a reasonable period of time so
that internal service fund revenue and expenses are approximately equal.
yiews of res~onsible officials and ~lanned corrective actions: The deficit in the Risk Management self insurance fund
increased from $7.704 million at September 30, 2008 to $8.985 million at September 30, 2009, an increase of
$1.281 million. In prior years, the City had been steadily decreasing the deficit in the fund from a high of $1 1.1 million
at September 30, 2005. Of the $1.281 million increase, approximately $.964 million was due to claims incurred but
not reported (IBNR) based on an independent actuarial study. The increase in IBNR represented 75.3% of the
increase in the deficit, which is primarily due to actuarial estimates for IBNR police and workman's compensation
claims that were not received until after the end of the fiscal year, and therefore which are challenging to budget for in
advance. It is important to note that the IBNR estimate was impacted by recent one-time claims related to the FTAA
Police Liability Claims, and as such, it is possible that, in future years, this will be reduced.
As with all other local governments, Fiscal Year 2009 was a difficult budget year, as is Fiscal Year 2010.
Furthermore, Fiscal Year 201 1 is expected to be even more challenging due to continued declines in property values
through January 2010 and increased pension contribution requirements primarily because pension investments have
not met actuarial assumptions in the last two years. As a result, for the short-term, the City has elected to use year-
end surplus in the General Fund as carry-forward to future fiscal years, rather than to fund deficit increases in the self
insurance fund. It is anticipated that property values will stabilize in the coming years and then resume normal
historical increases and that investment returns will return to historical levels, thereby reducing the stress on the
budget. It is therefore anticipated that, in the longer term, the City will once again be in the position to reduce the risk
deficit as it has done in prior years.
City of Miami Beach, Florida
Appendix A
Current Year's Recommendations to Improve Financial Management,
Accounting Procedures and Internal Controls (Continued)
Year Ended September 30,2009
2009-03 - Budget Compliance
Criteria: Pursuant to Section 166.241 (2), Florida Statutes, the budget must regulate expenditures of the
municipality, and it is unlawful for any officer of a municipal government to expend or contract for expenditures in
excess of budgeted appropriations.
Condition: For the fiscal year ended September 30, 2009 Redevelopment Agency General Fund expenditures
exceeded legal appropriations by $38,707 which relate primarily to general government.
Context: During our budget to actual analysis, we noted that Redevelopment Agency General Fund expenditures
exceeded the total legal appropriations for the general fund by $38,707.
Effect: The City is in violation of Section 166.241 (2), of the Florida Statutes. -
Cause: There were additional expenditures which were accrued as of September 30, 2009 after the budget was -
finalized and approved by the City Commission.
Recommendation: We recommend that the City improve their financial reporting process in order to obtain a more
accurate basis of actual revenue and expenditures for budgetary purposes and ensure legal compliance as required
by statute.
View of res~onsible officials and ~lanned corrective action: The Redevelopment Agency (the Agency) General
Fund's net negative expenditure variance of $38,707, resulted from a negative variance in general government
expenditures of $606,923, a positive variance of $569,631 in public safety expenditures and a negative variance of
$1,415 in capital outlay. The negative variance in general government resulted from the unanticipated increase in
property management and repair costs in the City Center areas, which includes Lincoln Road, Collins Park, the
Beachwalk and the beachfront restroom facilities located at 21st Street. This increase was partially offset by a
$569,631 decrease in Community Policing expenditures resulting from a decrease in staffing and overtime. Going
forward, the Agency will improve monitoring and recording of expenditure transactions along with budget
amendments to ensure that it is in compliance with Section 166.241 (2), of the Florida Statutes.
City of Miami Beach, Florida
Appendix B
Prior Year's Recommendations to Improve Financial Management,
Accounting Procedures and Internal Controls
Year Ended September 30,2009
Observation is Comment No
No. Prior Years' Observations Still Relevant Longer Relevant
2008-1 Frequency of Financial-system
and Network Access Validation
2008-2 Lack of Positive Confirmation of
General Network Access Validation
2002-2 Self-Insurance Fund Deficit
see current year's comment at 2009-2
Exhibit 2 - Audit Areas
CITY OF MIAMI BEACH
INTERNAL AUDIT DEPARTMENT
Audit Areas
Fiscal Year Ended 913011 0
Areas highlighted are considered for audit based on projected frequency. Comments provided indicate reasons why area
may not be audited within the projected frequency.
Department - Audit Area
Last Risk
Audit lYeg Comments
Mayor and City Commission 3:3:3;35:vjfi:":i:2
loperations 1 >,.. ,.,.,... .l.,.,.l...l. :.;.:.:.:.:.] - L I I
Administrative Support Services
Budget & Performance improvement
Management & Budget
of their comprehensive financial audit of the city.
While this does not constitute a detailed internal
audit, the controls are being reviewed. The City
has a consultant study underway to update the
basis of determination for management fees.
Finance
Audit Areas 201 1
H
M
H
H
Cashier Functions - Central Cashier
Cashier Functions - Other areas Building, Police,
Parking)
City Payment Processing
Fixed Assets
2008
2008
2009
2009
CITY OF MIAMI BEACH
INTERNAL AUDIT DEPARTMENT
Audit Areas
Fiscal Year Ended 9130110
Areas highlighted are considered for audit based on projected frequency. Comments provided indicate reasons why area
may not be audited within the projected frequency.
Department - Audit Area
Last Risk
Audit Comments
Procurement
Operations :;%@5"iF"&iig4 H l~arious contract and procurement policies are I
I
Public Auctions I Sale of Surplus Property
Information Technology
looerations fAonlications. Su~~ort. Communications I -r-.-..-. ., ,~,~ ~ , .. . I Services) controls over IT functions in their annual audit.
IT Security (contract) recommended
I I ^a^.. I I I \Inventory I I LUUL 1 L I I
Human Resources
City Attorney ,,.. ,*& ....x.;..;**<.s. 1 operations .>t>t::t:;:f;$5c:<:%;, . . ..s L I
City Clerk
Economic Dev. & Cultural Events
L
L
L
L
Operations includes Labor Relations
Review of Benefits Formulas
Pension Time Purchased by Leave Hours
Health, Dental and Life Insurance
Economic Development
Economic Development
Anchor Shop Retail I Garages
RDA - Administrative & Operations
Risk Management
Workers Compensation 1 2005 1 M 1
General Liability Insurance 1 2005 1 L I
~.:,~.~.~.~.:.$.$.$, ,."..,..,.> .%.%. ~.>.", ::::
2005
2008
2010
L
M
L
Operations, Record Retention I Public Requests
Special Masters
Election Invoices
Central Sewices
Inventory 1 2003 1 L I
Operations I Billings for Department Services 1 2009 1 L I
*.~,.~:,*~<,<,>*~,:P 1 .,.*.,%**,%,.-#,..y &.:.:.:.:
2010
2008
Audit Areas 201 1
Asset Management
Beachfront Concession (Boucher Brothers) 1 2005 1 L I
Historic City hall under renovation through 2008. M City Leases, Historic City Hall, 777 Building, etc. 2010
CITY OF MIAMI BEACH
INTERNAL AUDIT DEPARTMENT
Audit Areas
Fiscal Year Ended 9/30/10
Areas highlighted are considered for audit based on projected frequency. Comments provided indicate reasons why area
may not be audited within the projected frequency.
Department - Audit Area
Last Risk
Audit Comments
completed in 2009. Procurement of new permitting
system in 2010
Concurrency Fees
Parking Impact fees 1 2010 L
Building
T
revenues and operations was done in
Outside Consultant completed an organizational
review and operations analysis of the Building
Department in 2009.
Operations
Master Building Permit Fee
Operations
Revenues - Rents & leases, Concessions,
Telephones, Electrical, Services
Convention Center Food & BeveragelCenterplate
Convention Develo p ment Tax
Code Compliance
l~ode Enforcement Violations and Operations 1 2010 1 H ICode Compliance system being procured in 2010.
2009
2008
Community Services
Community Services 2001 L
Homeless Outreach Services
H
H
H
. . 2009
Audit Areas 201 1
M
[ii&@gii$$@ L County audit completed in 2008.
CITY OF MIAMI BEACH
INTERNAL AUDIT DEPARTMENT
Audit Areas
Fiscal Year Ended 9/30/10
Areas highlighted are considered for audit based on projected frequency. Comments provided indicate reasons why area
may not be audited within the projected frequency.
Department -Audit Area
Last Risk
Audit Comments
Overtime (Parks & Recreation)
Recreation fees I Cashier functions
Tennis Centers Agreement
I Improvement Projects
ncial Controls & Operations
Property Management
Audit Areas 201 1
2010
2010
2010
M
M
Maintenance Agreements
Internal Service Charge Billings (Including CAM)
M
M
L
Inventory (Property Management) 2009 L
2008
2010
shared with Internal Audit.
CITY OF MIAMI BEACH
INTERNAL AUDIT DEPARTMENT
Audit Areas
Fiscal Year Ended 9/30/10
Areas highlighted are considered for audit based on projected frequency. Comments provided indicate reasons why area
may not be audited within the projected frequency.
Last Risk
Department - Audit Area Audit Comments
uously monitored throughout year. 24
Parking
FI
Public Safety
Audit Areas 201 1
Completed 4 reviews during the year.
As of 812009 audit required annually.
Completed 4 reviews of coin room during the year.
H
M
M
H
Attended Parking Lots Monitoring
Boat Show Parking
Cashiers & Attendants Agreement (Parking)
Coin Room (Monitoring) Meter Collection
2010
2008
2009
2010
CITY OF MIAMI BEACH
INTERNAL AUDIT DEPARTMENT
Audit Areas
Fiscal Year Ended 9/30/10
Areas highlighted are considered for audit based on projected frequency. Comments provided indicate reasons why area
may not be audited within the projected frequency.
De~artment - Audit Area
Last Risk
Audit Comments
Fi
rnpleted in 2009. Procurement of new permittin
Citywide Projects
apital Projects - Non-CIP, (Public Works, Parks,
RDA, Convention Center, Etc.)
Non-Profif Organizations
Other funding sources:
Friends of the Bass lo 1 2003 1 L I
Police Athletic League lo 1 2009 1 L I
Audit Areas 201 1
Exhibit 3 - Summary of Internal Audit Activities
Summary of lnternal Audit Activities for Fiscal Year 2009110
lnternal Audits - Available On Line
Boys & Girls Club - South Beach
Code Compliance Enforcement
Cultural Arts Council
Election Invoice Review
Fire Department Overtime
Fleet lnventory Processing
Greensquare, Inc. Management Agreement Audit (Tennis Centers)
Landscaping Contracts - Citywide
Parking Impact Fees
Public Works lnventory
Internal Audits - Pendins Final Re~orts
Anchor Shops Retail Space Leasing
Ballet Valet Parking Company, LTD - Contract Compliance regarding parking license rental
fees and lease payments.
City and Employee Funded Core Insurance (Health, Dental, & Life)
City Operated Commercial Leases
Imperial Parking (U.S.), Inc. - Agreement to Provide Cashiers, Attendants and Supervisors -
Operational and Compliance Audit and Performance Evaluation
Miami Beach Marina Lease Agreement - Rental Payment Compliance
Parking In-Car meters
Parks & Recreation Department Cashiering Function and Revenue
Parks & Recreation Department Overtime
Professional Course Management II, Ltd. Management and Concession Agreements
(Miami Beach and Normandy Shores Golf Clubs)
Property Management Division lnternal Service Charge Billings
Public Auctions Sale of Excess and Surplus Property
Public Works Department Overtime
Special Master
State Beachfront Management Agreement
For fiscal year 200911 0 internal audits included the following recommendations:
Additional safeguards over inventory processing for areas of Public Works and Fleet;
Revisions to update several departmental procedures and improve controls for Code
Compliance, Special Master, Property Management lnternal Service Charges, and
Public Auctions;
lmprove controls over Parks and Recreation Revenues;
Changes in procedures to comply to reporting requirements of approved grant funds
distributed by the Cultural Arts Council;
Require better oversight by the agency's Board of funds forwarded to non-profit
agencies to be used for proper agency purposes and recommendations for improvement
in internal controls;
lmprove control processes for Parking Impact Fees.
lmprove documentation processes for overtime paid to Public Works, Fire, and Parks
and Recreations employees;
Enhance procedures for the performance of attended lots; and the Parking Department's
process for parking in-car meters;
Strengthen oversight of compliance to the agreements for Miami Beach Marina, City
Operated Commercial leases, Citywide Landscaping, Ballet Valet Parking and for
providing cashiers and attendants to the City.
Improve monitoring and processing receipts Tennis centers and Golf courses.
Parkinq Monitoring Reviews
In the Parking area, the Division completed twenty-four meter, four attended lot cash operations
and four coin room reviews during the past fiscal year. While our parking meter reviews
identified an improvement in enforcement over the previous fiscal year, areas of enforcement
still fell short of desired benchmarks. Operational procedures for attended lots were found to
comply with the city's guidelines. In addition, coin room operations were functioning in
accordance the city's procedures.
Sanitation Audits
In FY 2006107 our part time position was expanded to a fulltime position dedicated to monitoring
and auditing waste haulers. This effort led to the issuance of eight audit reports in fiscal year
2009110 resulted in $10,632 of audit assessments. Since the inception of our increased
monitoring and auditing of these areas, roll-off fee revenues, net of audit assessment, increased
from $447,338 in fiscal year 2003104 to revenues of $910,794 in fiscal year 2008109. Revenues
for fiscal year 200911 0 have not been finalized.
Other Su~port
Additional support was directed to performing non-audit activities. The Division continued to
provide ongoing staff assistance in verifying all documentation and calculating the building
developing process fees prior to project close-out. In fiscal year 2009110, $305,495 was
collected resulting from our assistance. In addition, working with the Building Department staff,
some key processes have been changed to help ensure fees are collected correctly on an
ongoing basis. During the year, this process was transferred back to the Building Department.
Hurricane related grant monitoring responsibilities for the past fiscal year included:
Assisting FEMA and the State with their ongoing closeout for Hurricane Wilma 2005.
Preparation of Quarterly Reports to FEMA (still ongoing for Hurricane Wilma projects).
Monitoring each open project for completion and requested reimbursement.
Additional monies recovered during the past fiscal year for these claims amounted to $37,688
for Hurricane Wilma. Additional funds are pending as projects are completed. We anticipate
that in fiscal year 2010111 additional time will be spent on completing the request for payments
and final closeouts for the 2005 storms.
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OFFICE OF THE MAYOR AND COMMISSION
TO: Jorge M. Gonzalez, City Manager
FROM: Jorge R. Exposito, Commissioner
DATE: October 7,2010
SUBJECT: A Discussion Item on iPad
MEMORANDUM -- es
Please place on the October 27, 2010 Commission meeting agenda a discussion item
regarding the shift to I pad from printed agenda ask city administration to provide us with
cost to print agendas as well as committee agendas as well as man hours for delivery to
determine if feasibility exists for change to digital format which could not only save money
but provide us with a more sustainable and green approach and be more environmentally
friendly.
We trust that you will find all in good order. Should you have any questions, please feel free to
contact my aide, Barbie Paredes at 6457.
Best regards,
Attachments
I I Date 11-)7-/0
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OFFICE OF THE MAYOR AND COMMISSION
TO: Jorge M. Gonzalez, City Manager
FROM: Jorge R. Exposito, Commission
DATE: October 7,2010 w
MEMORANDUM
. -
7 SUBJECT: A Discussion Item on Revenue generating opportunities/Miami P$ ~h* -,
r-- Ut
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
I Date 11-1 7-10
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OFFICE OF THE MAYOR AND COMMISSION
TO: Jorge M. Gonzalez, City Manager
FROM: Jorge R. Exposito, Commissioner
DATE: October 22,2010
MEMORANDUM
SUBJECT: Discussion Item: City of Miami Beach to sell police vehicles
Please place on the October 27, 2010 Commission meeting agenda a discussion item on the
recommendation to refer to Finance Committee to inquire as to a change in City ordinance to
allow the City of Miami Beach to sell police vehicles to other municipalities, instead of selling
them through the auction process. Resulting in significantly larger salvage recovery on each
vehicle, to the City of Miami Beach and positively impacting our bottom line return.
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,
JRE/bp
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OFFICE OF THE MAYOR AND COMMISSION
TO: Jorge M. Gonzalez, City Manager -
FROM: Jorge R. Exposito, Commission
DATE: November 1,2010
SUBJECT: Discussion Item: Mega Yacht Complex
MEMORANDUM
Please place on the November 17'" 2010 Commission meeting agenda a discussion item
regarding the Mega Yacht Complex. Ask administration for background study as to plans for
complex, potential impact to traffic into Miami Beach.
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,
' Agenda Item R9G \,AntC comr;,iiwd ir? oic>vidinq ci:XCi'//~r;: ,p&fic :e~/;ce a:id b ol vJ:o [he, work, or~d f>bv ii: oczi viq
Date 1 1-17-10
693
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MIAMIBEACH
OFFICE OF THE MAYOR AND COMMISSION MEMORANDUM
TO: Jorge M. Gonzalez, City Manager
FROM: Jonah Wolfson, Commissioner
DATE: November 4'h, 201 0
SUBJECT: Agenda Item
Please place on the November 17'~, 2010, Commission meeting agenda a discussion item
regarding Resolution 2010-27314 (attached) in which the City of Miami Beach Commission
voted against supporting the Miami Dolphins' initiative to get public funding for their stadium.
The purpose of this referral is to ensure the Commission's Resolution referred to above is
maintained in full force and effect.
If you have any questions, please contact Leonor Hernandez at extension 6437
We ore cornmilled lo providing excellenf ~ublic setvice and safety to 011 who live, work, ondploy in 04 I Agenda Item gqo
I
I Date /I-/ 7 -/d
I
RESOLUTION NO. 201 0-27314
A RESOLUTION OF THE MAYOR AND ClTY
, . COMMISSION OF THE CITY OF MIAMI BEACH,
'-, ,:. FLORIDA, OPPOSING THE EXPENDITURE OF '
. ANY PUBLIC FUNDS FOR RENOVATIONS TO .
DOLPHIN STADIUM.
i
WHEREAS, the Mayor and City Commission of the ~ity'of Miami Beach wish td
state their opposition to the expenditure of any public funds for any renovations to
Dolphin Stadium, including, but not limited to, the construction of an enclosed football .
stadium; and
i WHEREAS, any renovations to Dolphin Stadium should be funded solely.froh
i sources. .
I NOW, THEREFORE, BE IT.DULY RESOLVED BY THE MAYOR AND ClTY
COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, that the use of any public .
. fun'ding for renovations to Dolphin Stadium. is hereby opposed, and that any renovations .
to Dolphin Stadium should be funded solely from private sources. . .
. .
1
I *.
.PASSED and ADOPTED this / 3 h day of Tan*urr ,2010.
/',A L4 k 4'uL
' . CITY CLERK
' . APPROVED ASTO
. .
. F:\aHo\TURN\RESOS\Resolution opposing public funding for renovations it Dolphin Sladictm.docx
BEACH
OFFICE OF THE CITY ATTORNEY, Jose Smith, City Attorney
TO: Mayor Matti Herrera Bower
Members of the City Commission
City Manager Jorge Gonzalez
FROM: City Attorney Jose Sm
SUBJECT: Attorney-Client Session
DATE: November 17,2010
Pursuant to Section 286.01 1, Florida Statutes, the City Attorney hereby advises the Mayor
and City Commission that he desires advice concerning the following pending litigation
matter:
Nancv J. Bona. Mary Michel, Robert M. Swedroe, Rita Swedroe and Altos Del Mar
Realtv Corp. v. Citv of Miami Beach
Eleventh Judicial Circuit Court, General Jurisdiction Division
Case No. 07-32876 CA 21
Therefore, a private closed Attorney-Client Session will be held during the lunch recess of
the City Commission on November 17, 2010 in the City Manager's Large Conference
Room, Fourth Floor, City Hall, to discuss settlement negotiations and/or strategy related to
litigation expenditures with regard to the above-referenced litigation matter.
The following individuals will be in attendance: Mayor Matti Herrera Bower; Members of the
City Commission: Jorge Exposito, Michael Gongora, Jerry Libbin, Ed Tobin, Deede
Weithorn, and Jonah Wolfson; City Attorney Jose Smith, City Manager Jorge Gonzalez,
First Assistant City Attorney Gary Held, and Senior Assistant City Attorney Aleksandr
Boksner.
F:\atto\$ALL\LizWtorney - Client SessionsWttorney Client Session Notice (Bona Case I I-17-lO).doc
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Reports and
Informational Items
(see LTC #302-2010)
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Miami Beach Redevelopment Agency
City Hall, Commission Chambers, 3rd Floor, 1700 Convention Center Drive
November 17,2010
Chairperson of the Board Matti Herrera Bower
Member of the Board Jorge Exposito
Member of the Board Michael Gdngora
Member of the Board Jerry Libbin
Member of the Board Edward L. Tobin
Member of the Board Deede Weithorn
Member of the Board Jonah Wolfson
Executive Director Jorge M. Gonzalez
Assistant Director Jorge Gomez
General Counsel Jose Smith
Secretary Robert E. Parcher
AGENDA
1. NEW BUSINESS
A A Resolution Of The Chairperson And Members Of The Miami Beach Redevelopment Agency
(RDA), Setting The Dates For The Year 201 1 Redevelopment Agency Meetings. Joint Citv
Commission Redevelopment Agency (Page 707)
(City Clerk's Office)
B A Resolution Of The Chairperson And Members Of The Miami Beach Redevelopment Agency
(RDA), Approving And Authorizing The Chairperson And Members To Execute A New
Sovereignty Submerged Land Lease (BOT File No. 130765469) For The Miami Beach Marina
By And Among The City And The Miami Beach Redevelopment Agency (RDA), As Lessee,
And The Board Of The Internal Improvement Trust Fund Of The State Of Florida, As Lessor.
Joint Citv Commission Redevelopment Aslency (Page 71 5)
(City Attorney's Office)
End of RDA Agenda
MIAMIBEACH
Miami Beach Redevelopment Agency
City of Miami Beach, 1700 Convention Center Drive, Miami Beach, Florida 33 139, www.miamibeachfl.gov
HOW A PERSON MAY APPEAR BEFORE THE REDEVELOPMENT AGENCY
OF THE CIN OF MIAMI BEACH, FLORIDA
The regularly scheduled meetings of the Redevelopment Agency are established by Resolution and are
generally held on the same day the Miami Beach City Commission holds their regularly scheduled
meetings. The Redevelopment Agency meetings commence at 10:OO a.m.
1 . Jorge M. Gonzalez has been designated as the Agency's Executive Director.
Robert Parcher has been designated as the Agency's Secretary.
Person requesting placement of an item on the agenda must provide a written statement to the
Agency Executive Director, 4th Floor, City Hall, 1700 Convention Center Drive, telephone 673-
7285, outlining the subject matter of the proposed presentation. In order to determine whether or
not the request can be handled administratively, an appointment will be set up to discuss the matter
with a member of the Executive Director's staff. Procedurally, "Request for Agenda Consideration"
will not be placed upon the Agency agenda until after Administrative staff review. Such review will
ensure that the issue has been addressed in sufficient detail so that the Agency members may be fully
apprised of the matter to be presented. Persons will be allowed three (3) minutes to make their
presentation and will be limited to those subjects included in their written request. Such written
requests must be received in the Executive Director's office no later than noon on Tuesday of the
week prior to the scheduled Agency meetinq to allow time for processing and inclusion in the
agenda package.
3. Once an agenda for the Redevelopment Agency meeting is published, and a person wishes to speak
on items listed on the agenda, he/she may call or come to the Agency Secretary's Office, 1 st floor,
City Hall, 1700 Convention Center Drive, telephone 673-741 1, before 5:00 p.m., on the Tuesday
prior to the Agency meeting and give their name, the agenda item to be discussed and, where
known, the agenda item number.
The Agency agenda is available via the City's website, (www.miamibeachfl.gov) on the Friday prior to
the Agency meeting or may be reviewed at the Agency's Secretary Office (City Clerk's Office) on the
Monday prior to the Agency's regular meeting.
4. All persons who have been listed by the Agency Secretary to speak on the agenda item in which
they are specifically interested, will be allowed up to three (3) minutes to present their views.
Robert Parcher
Agency Secretary March 5, 2007
F:\CLER\CLER\CITYCLER\RDA Agenda .V3.doc
F:\CLER\COMMON\2010\2010 Schedule of CMB City Commission & RDA.doc
2010 Schedule of City of Miami Beach
City 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 ALTERNATE MEETINGS
January 13 (Wednesday) January 20 (Wednesday)
February 3 (Wednesday) February 10 (Wednesday)
March 10 (Wednesday) March 17 (Wednesday)
April 14 (Wednesday) April 21 (Wednesday)
May 12 (Wednesday) May 26 (Wednesday)
June 9 (Wednesday) No alternate meeting
July 14 (Wednesday) July 28 (Wednesday)
August - City Commission in recess
September 15 (Wednesday)
October 20 (Wednesday) No alternate meeting
November 10 (Wednesday) November 17 (Wednesday)
December 8 (Wednesday) December 15 (Wednesday)
The “alternate” City Commission meeting dates have been reserved to give the Mayor
and City Commission the flexibility to carry over a Commission Agenda item(s) to the
“alternate” meeting date, if necessary. Any Agenda item(s) carried over will be posted
on the City’s website, aired on MBTV Channel 77, or you may call the City Clerk’s Office
at 305-673-7411.
Dr. Stanley Sutnick Citizens’ Forum will be held during the first Commission meeting each
month. The Forum will be split into two (2) sessions, 1:30 p.m., and 5:30 p.m.
Approximately thirty (30) minutes will be allocated per session for each of the subjects to
be considered, with individuals being limited to no more than three (3) minutes. No
appointment or advance notification is needed in order to speak to the Commission
during the Forum.
REDEVELOPMENT AGENCY ITEM SUMMARY
Condensed Title:
A resolution setting the dates for the year 201 1 Redevelopment Agency (RDA) meetings.
Key Intended Outcome Supported:
Supports multiple KlO's.
Supporting Data (Surveys, Environmental Scan, etc.): NIA
Issue:
Shall the Chairperson and Members of the Redevelopment Agency approve the 201 1 RDA meeting
dates?
Item Summary1Recommendation: I Pursuant to the Miami Beach Redevelopment Agency By-Laws, the Redevelopment Agency (RDA) shall I I meet at such times as prescribed by resolution. I
In preparing the RDA Meeting calendar the Administration takes into consideration events such as the U.S.
Conference of Mayors, Miami-Dade County Days, Art Basel, August recess, September to set the
tentativelfinal millage and the budget approval process, and if an election year then November for
electionlrunoff election meetings, and finally Federal and Religious Holidays. Considering the above it is
difficult to always schedule meetings on the same Wednesday of the month.
In preparing the recommended meeting dates, the Administration set three (3) goals: 1) schedule one (1)
RDA meeting and one (I) alternate meeting a month; 2) schedule RDA meetings on Wednesdays; and 3)
not to schedule RDA meetings during the month of August, while the RDA is in recess.
I The Administration recommends approving the resolution. I
Advisory Board Recommendation:
I NlA I
Financial Information:
I
Source of
Funds:
I I I I
Financial Impact Summary:
OBPl
City Clerk's Ofice Legislative Tracking: I Bob Parcher, City Clerk
AMIBEACH 707
AOEMDA ITEM /A
DATE 11-17-/0.
Approved
1
2
3
4
Total
Amount Account
City of Miami Beach, 1700 Convention Center Drive, Miami Beach, Florida 331 39, www.miamibeachfl.gov
REDEVELOPMENT AGENCY MEMORANDUM
TO: Chairperson Matti Herrera Bower and Members of the Redevelopment Agency
FROM: Jorge M. Gonzalez, Executive Director
DATE: November 17,2010
SUBJECT: A RESOLUTION OF THE CHAIRPERSON AND MEMBERS OF THE MIAMI
BEACH REDEVELOPMENT AGENCY (RDA), SETTING THE DATES FOR
THE YEAR 2011 REDEVELOPMENT AGENCY MEETINGS.
ADMINISTRATION RECOMMENDATION
Adopt the Resolution.
BACKGROUND
The Mayor and City Commission also sit as the Redevelopment Agency Board and
schedule the Redevelopment Agency meetings to coincide with the City Commission
Meetings.
ANALYSIS
Pursuant to the Miami Beach Redevelopment Agency By-Laws, the Redevelopment
Agency (RDA) shall meet at such times as prescribed by resolution.
In preparing the RDA Meeting calendar the Administration takes into consideration
events such as the U.S. Conference of Mayors, Miami-Dade County Days, Art Basel,
August recess, September to set the tentativelfinal millage and the budget approval
process, and if an election year then November for electionlrunoff election meetings, and
finally Federal and Religious Holidays. Considering the above it is difficult to always
schedule meetings on the same Wednesday of the month.
In preparing the recommended meeting dates, the Administration set three (3) goals: 1)
schedule one (1) RDA meeting and one (I) alternate meeting a month; 2) schedule RDA
meetings on Wednesdays; and 3) not to schedule RDA meetings during the month of
August, while the RDA is in recess.
In preparing the recommended meeting dates, the Administration set three (3) goals: I)
schedule one (I) Commission meeting and one (1) alternate meeting a month; 2)
schedule Commission meetings on Wednesdays; and 3) not to schedule Commission
meetings during the month of August, while the City Commission is in recess.
The Administration met the goals with the following exceptions:
Exception I: In June, due to Art Basel beginning on June 15, there is no alternate
meeting scheduled.
Exception 2: In September, due to Budget Hearings that will be scheduled at a later
time, there is no alternate meeting scheduled.
Exception 3: In November, due to Elections, the November 2 meeting is for Election
related items only and the November 16 meeting is for runoff only.
Note: The Miami Beach Annual Boat Show is scheduled for February 17-21 with move-
in scheduled to start on February 10-16 and move-out scheduled on February
22-25, which creates significant parking and traffic challenges for the City Hall
area.
It is recommended that the Redevelopment Agency (RDA) meetings be set as follows:
RDA Meetings Alternate Meetings
January 19 (Wednesday) January 26 (Wednesday)
February 9 (Wednesday) February 16 (Wednesday)
March 9 (Wednesday) March 16 (Wednesday)
April 13 (Wednesday) April 27 (Wednesday)
May 11 (Wednesday) May 18 (Wednesday)
June 1 (Wednesday)
July 13 (Wednesday) July 20 (Wednesday)
August - RDA in recess
September 14 (Wednesday)
October 19* (Wednesday) October 26 (Wednesday)
November 2 (Wednesday) - Election related only.
November 16 (Wednesday) - If Run-off Election only.
December 14 (Wednesday) December 21 (Wednesday)
* At nightfall of October lgh Shemini Atzeret Religious Holiday begins.
The proposed 201 1 calendar calls for 10 regularly scheduled RDA meetings, 8 alternate
meetings, 2 election related meetings, and an additional special budget RDA meeting
will be scheduled at a later time in September.
In preparing the calendar, City-designated holidays and religious holidays have been
taken into consideration. Attachment "A" is a list of City of Miami Beach holidays.
Attachment "9" is a list of Jewish holidays.
CONCLUSION
The Administration recommends that the Chairman and Members of the Redevelopment
Agency approve the proposed RDA meeting dates and alternate meeting dates for the
year 201 1.
Attachment "A"
New Year's Day
Dr. Martin Luther King, Jr. Day
President's Day
Memorial Day
Independence Day
Labor Day
Veterans Day
Thanksgiving Day
Day after Thanksgiving
Christmas
CITY OF MIAMI BEACH
LEGAL HOLIDAYS 201 1
Friday, December 31,201 1
Monday, January 17,201 1
Monday, February 21,201 1
Monday, May 30,201 1
Monday, July 4,201 1
Monday, September 5,201 1
Friday, November 1 1,201 1
Thursday, November 24,201 1
Friday, November 25,201 1
Monday, December 26,201 1
RESOLUTION NO.
A RESOLUTION OF THE CHAIRMAN AND MEMBERS OF THE MlAMl
BEACH REDEVELOPMENT AGENCY (RDA), SETTING THE DATES FOR
THE YEAR 201 1 RDA MEETINGS.
WHEREAS, at the January 12, 2005 Committee of the Whole Meeting, Mayor Dermer
(acting also as the Chairman of the RDA) solicited input regarding the scheduling of one RDA
meeting a month; and
WHEREAS, subsequent to Mayor Dermer's request, this issue was referred to the
NeighborhoodICommunity Affairs Committee for discussion; and
WHEREAS, the NeighborhoodICommunity Affairs Committee met on March 29,2005, and
was presented with the idea of having one RDA meeting a month and an alternate meeting
scheduled the following week; and
WHEREAS, this would allow the RDA to continue the meeting because of the lateness of the
hour or if a particular item(s) may cause the meeting to run very late, to continue the item(s) not
handled to the following Wednesday; and
WHEREAS, because the same RDA agenda will be used, no MemberIExecutive Director
Agenda reviews will be required; and
WHEREAS, it also allows the Chairman and the Members of the RDA, and the
Administration, to reserve the Wednesday following a RDA meeting so that scheduling of a
continued meeting, if necessary, does not result in scheduling problems; and
WHEREAS, this new schedule of one RDA meeting a month and an alternate meeting was
implemented in May 2005; and
WHEREAS, in preparing the recommended meeting dates, the Administration set three (3)
goals: I) schedule one (I) RDA meeting and one (1) alternate meeting a month; 2) schedule RDA
meetings on Wednesdays; and 3) not to schedule RDA meetings during the month of August, while
the RDA is in recess; and
WHEREAS, the proposed 201 1 calendar calls for eleven (10) regularly scheduled RDA
meetings, nine (8) alternate meetings; 2 election related meetings, and an additional special budget
RDA meeting will be scheduled at a later time in September.
NOW, THEREFORE, BE IT DULY RESOLVED BY THE CHAIRMAN AND THE MEMBERS
OF THE MlAMl BEACH REDEVELOPMENT AGENCY, that the Chairman and Members of the
RDA hereby approve the following dates for the year 201 1 RDA Meetings:
Redevelopment Agency Meetings Alternate Meetings
January 19 (Wednesday) January 26 (Wednesday)
February 9 (Wednesday) February 16 (Wednesday)
March 9 (Wednesday) March 16 (Wednesday)
April 13 (Wednesday) April 27 (Wednesday)
May 11 (Wednesday) May 18 (Wednesday)
June 1 (Wednesday)
July 13 (Wednesday) July 20 (Wednesday)
August - Redevelopment Agency in recess
September 14 (Wednesday)
October 19* (Wednesday) October 26 (Wednesday)
November 2 (Wednesday) - Election related only.
November 16 (Wednesday) - If Run-off Election only.
December 14 (Wednesday) December 21 (Wednesday)
PASSED and ADOPTED this 17'~ day of November, 201 1.
CHAIRPERSON
ATTEST:
ROBERT PARCHER, SECRETARY APPROVED AS TO
FORM & LANGUAGE
& FOR EXECUTION
THIS PAGE INTENTIONALLY LEFT BLANK
MIAMI BEACH REDEVELOPMENT AGENCY ITEM SUMMARY I
Condensed Title:
A Resolution approving and authorizing the Mayor and City Clerk to execute a new sovereignty submerged land lease for the Miami
Beach Marina by and among the City and the Miami Beach Redevelopment Agency (RDA), as Lessee, and the Board of the Internal
lmorovement Trust Fund of the State of Florida. as Lessor.
Key Intended Outcome Supported:
1 Increase resident satisfaction with the level of services and facilities. 1
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:
) Should the City Commission approve the lease agreement? I
Item SummarylRecommendation:
As one of its contractual obligations under the Lease Agreement between the City and RDA, as Lessor, and Miami Beach Marina
Associates, Ltd., as Lessee, for the Miami Beach Marina (the Marina Lease), the CityIRDA is required to maintain its Submerged Land
Lease with the State of Florida -for the submerged lands immediately adjacent to the Marina and comprising that portion of the Marina
Leased Premises defined as "Area 2 ( which currently contains the area for the pierslboat slips utilized by the Marina in its daily
operations)-- current and in full force and effect.
Accordingly, on January 21,1986, the City and the Trustees of the Internal Improvement Trust Fund of the State of Florida entered into
Sovereignty Submerged Land Lease No. 130765469, as recorded in Official Record Book 13020, pp. 2520 through 2526, of the Public
Records of Miami-Dade County, Florida, and as subsequently amended thereto (the Existing Submerged Land Lease). The Existing
Submerged Land Lease provided for a term of twenty five years, which will expire on January 20, 201 1.
Since 2008, the Administration and Marina Lessee have been coordinating a new Submerged Land Lease with the State, which is
attached hereto for the City CommissionIRDA's consideration and approval (the New Submerged Land Lease).
The New Submerged Land Lease is also for a term of twenty five (25) years. The substantive terms and conditions are the same as the
Existing Lease, with the exception of the following:
1. Sq. ft. has been revised to reflect the actual SF of the submerged land area-from 1,648,911, to 1,648,937 (an additional 26 sq. ft.).
2. The actual current number of boat slips416 (368 slips and 48 transient slips)-is now referenced.
3. The section of the Lease pertaining to "Use of (the) Property" has been clarified to reflect current uses and now includes liveaboards.
4. Commencing with the first year of the new Lease term, the annual rent is estimated to be between $1 76,000 and $1 78,000.
5. The new Lease now prohibits ANY operation of or entry onto the leased premises of gambling cruise ships or vessels that are used
principally for the purpose of gambling.
6. The new Lease also references Miami Beach Marina Associates, Ltd. as the current Marina Lessee.
In addition to these exceptions, which denote changes from language in the Existing Lease, the State has also added the following
additional section, containing "Special Lease Conditions," as follows:
1. Providing that ninety percent (90%) of all wet slips must be made available for rental to the general public.
2. Allowing the State certain rights with respect to review and modification of Lease terms and conditions, including Lease fees.
3. Reserving its rights to adjust the rent.
4. Extending the City's obligation to remove certain pilings currently situated on the area referred to as "Pelican Island".
5. Requiring State authorization, in the event the CityIRDA seeks to rebuild or restore any "non-water dependent structures".
The CityIRDA Administration and City Attorney's Office have reviewed the proposed New Submerged Land Lease, as submitted by the
State, and would recommend that the Mayor and City Commission approve same. As initially set forth above, the CityIRDA is
contractually obligated under the Marina Lease to maintain a current submerged land lease with the State in full force and effect.
Advisory Board Recommendation:
( n/a I
City Clerk's Office Legislative Tracking:
1 Anna Parekh, extension 71 93
Financial Information:
BEACH
Account
01 1-9322-000353
Source of Funds:
Financial Impact Summary:
I Amount
1 1 $178,000
MIAMIBEACH
OFFICE OF THE ClTY ArrORNEY
JOSE SMITH, CITY ATTORNEY COMMlSSlON MEMORANDUM
TO: Chairperson and Members of the Miami Beach @development Agency (RDA)
FROM: Jose Smith, RDA General Co
cC: Jorge Gonzalez, Executive Di
DATE: November 17,201 0
SUBJECT: A RESOLUTION OF THE CHAIRPERSON AND MEMBERS OF THE MIAMI
BEACH REDEVELOPMENT AGENCY (RDA), APPROVING AND
AUTHORIZING THE CHAIRPERSON AND MEMBERS TO EXECUTE A NEW
SOVEREIGNTY SUBMERGED LAND LEASE (BOT FILE NO. 130765469) FOR
THE MIAMI BEACH MARINA BY AND AMONG THE ClTY AND THE MIAMI
BEACH REDEVELOPMENT AGENCY (RDA), AS LESSEE, AND THE BOARD
OF THE INTERNAL IMPROVEMENT TRUST FUND OF THE STATE OF
FLORIDA, AS LESSOR
As one of its contractual obligations under the Lease Agreement between the City and RDA, as
Lessor, and Miami Beach Marina Associates, Ltd., as Lessee, for the Miami Beach Marina (the
Marina Lease), the CitylRDA is required to maintain its Submerged Land Lease with the State of
Florida -for the submerged lands immediately adjacent to the Marina and comprising that
portion of the Marina Leased Premises defined as "Area 2 ( which currently contains the area
for the pierslboat slips utilized by the Marina in its daily operations)-- current and in full force
and effect.
Accordingly, on January 21, 1986, the City and the Trustees of the Internal Improvement Trust
Fund of the State of Florida entered into Sovereignty Submerged Land Lease No. 130765469,
as recorded in Official Record Book 13020, pp. 2520 through 2526, of the Public Records of
Miami-Dade County, Florida, and as subsequently amended thereto (the Existing Submerged
Land Lease). The Existing Submerged Land Lease provided for a term of twenty five years,
which will expire on January 20, 201 1.
Since 2008, the Administration and Marina Lessee have been coordinating a new Submerged
Land Lease with the State, which is attached hereto for the City CommissionIRDA's
consideration and approval (the New Submerged Land Lease).
The New Submerged Land Lease is also for a term of twenty five (25) years. The substantive
terms and conditions are the same as the Existing Lease, with the exception of the following:
1. The square footage for the leased area has been revised to accurately reflect the actual
square footage of the submerged land area-from 1,648,911 to 1,648,937 (an additional
26 sq. ft.).
2. The actual current number of boat slips416 (368 slips and 48 transient slips)-is now
referenced.
3. The section of the Lease pertaining to "Use of (the) Property" has been clarified to reflect
current uses, and now specifically includes liveaboards (which the Lease continues to
define as any vessel docked at the facility and inhabited by a person or persons for any
five(5) consecutive days or a total of ten(l0) days within a thirty (30) day period, but not
to exceed six(6) months within any twelve (12) month period, nor allowing the use of any
vessel for a legal or primary residence).
4. Commencing with the first year of the New Lease term, the annual rent payable to the
State is estimated to be between $176,000 - $178,000 (Note: The reason for the
approximation is due to the fact that the State's CPI index is not availablelreleased until
late Decemberlearly January). The annual rent for FY 09/10 was $172,509.32,
representing an increase between last year and the first New Lease Year's estimated
rent of approximately 1.9%--3.1%.
5. Language which was previously added through a 2005 Amendment to the Existing
Lease, which permitted an exception to the lease prohibition on gambling vessels to
allow a previously existing sub-lease between the Marina Lessee and Majesty Enterprise
of Florida, LLC for a gambling cruise ship, has been deleted in its entirety. The New
Lease now prohibits ANY operation of or entry onto the leased premises of gambling
cruise ships or vessels that are used principally for the purpose of gambling.
6. The New Lease also references Miami Beach Marina Associates, Ltd. as the current
Marina Lessee.
In addition to the above, which denote changes from language in the Existing Lease, the State
has also added the following additional section, containing "Special Lease Conditions," as
follows:
1. Providing that ninety percent (90%) of all wet slips must be made available for rental to
the general public on a "first come, first served" basis, with no longer than one-year
rental terms and with no automatic renewal rights or conditions.
Allowing the State certain rights with respect to review and modification of Lease terms
and conditions, including Lease fees, for purposes including but not limited to (i)
conformity to adoption or revisions to Florida law; (ii) to ensure compliance with U.S.
Endangered Species Act of 1973 and the Florida Endangered and Threatened Species
Act of 1977; (iii) to conform to adoption or revision of rules regarding the assessment of
Lease fees; (iv) to conform to any modifications to any permits issued by DEP, the
applicable water management district, andlor the Army Corp of Engineers; and (v) to
remove any structure declared to be a public nuisance.
3. Reserving its rights to adjust the rent.
4. Extending the City's obligation, should the State so request during the Lease term, to
remove certain pilings currently situated on the area referred to as "Pelican Island"
(which was deeded to the State in 1990), in the event that the State determines that
such pilings have deteriorated to the point where it deems they're a hazard to public
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safety or navigation (Note: As stated, this obligation also existed under the Existing
Lease, and is carried over here).
5. Requiring authorization by the State, in the event the CitylRDA (as Lessee) seeks to
rebuild or restore any "non-water dependent structures" included in the Lease (which, at
this time, only includes the dockmaster facility).
CONCLUSION
The CitylRDA Administration and City Attorney's Office have reviewed the proposed New
Submerged Land Lease, as submitted by the State, and would recommend that the Mayor and
City Commission (and Chairperson and Members of the RDA) hereby approve and authorize
the Mayor and City Clerk (and Chairperson and Secretary) to execute same. As initially set
forth in this Memorandum, the CitylRDA is contractually obligated under the Marina Lease to
maintain a current submerged land lease with the State in full force and effect.
F:\atto\AGUR\RESOS-ORD\MEMOS\Marina Submerged Land Lease - RDA (I 1-41 O).doc
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LEASE ATTACHMENT
INCLUDED WITH
AGENDA ITEM R7E
RESOLUTIONS TO BE SUBMITTED