HomeMy WebLinkAboutR-84-0538J-84-459`
5/11 /84
rr/D7
RESOLUTION NO. 84 k5i 3 6
A RESOLUTTON Ali THnRT7TNG THE CTTY MANAGER
TO EXECHTF= TNTFRTM AGRFFHF=NT5. IN
5UBSTANTTA1_LY T11F FIRM A.TTACHF_D. VITTH
PRIVATF T"'101VTDIIA15, PARTNERSFtIPS,
C0MPANIF; nR COCPnRATTnN(5 F(TR THE USE OF
Pl1RLTC R T G H T --nF-:°`AY TO CONDUCT THE
PRIVATF (TII IIN) ES`i of FURNI5HING
COMMUNTCATTnN FRVTCES.
WHEREAS, Section 3(hh) of the Charter of the City of
Miami expressly provides for the license, control, tax and
regulation for the use of space in public places within the
City of Miami; and
WHEREAS, the right to use the streets and highways of a
Florida municipality for the conduct of a strictly private
business can be acquired by permission of the municipality
and the form of such acquisition can he an agreement between
the commercial enterprise and the municipality, according to
the Supreme Court of Florida; and
WHEREAS, in the past, the City of Miami has given such
permission in the form of a permit license, and agreement
with the latter form being designated usually as a
"franchise" when the permittee has been a public utility; and
WHEREAS, the recent divestiture of the American
Telephone & Telegraph Company (AT&T) has resulted in the
restructuring of said Company and in the formation of
numerous private communication firms throuqhout the United
States, and several of these new and restructured
communication firms desire to use public rights -of -way
and public places for the installation of communication
systems to provide communication services to consumers in the
"open" marketplace which was formerly a "closed" marketplace;
and
V1t x L;UM.MISSION
MEETING OF
MAY 10 t94
kESOLU i i6i i„ S 4�-.1
'� �as�, j-off.. �� �`• . r . , ..�
WHEREAS, past revenues over the yearn from rights -of -way
permittees have all -owed the City an oppnrtunit.y to help fund
the cost of lnr_nl anvernment. inclitrtinn i-hp,cnst, of puhl.i.c
capital i mprnvrmrnI.- and t.hrrr-hv pnr( l v recoup t.hr piihl i C
monies exprnOnd in Ihr. pn�-J, for t:hry nr.rpuir:i!-.ino. cnnstrrrct.ion
and maintenance of t-he puhl. i.c r i aht, n f-w iy; an�i
WHEREA5 a for half n century the fai_rnc.ss of this policy
of securinq comprnsatIon for pri_vni,r use of the public
rights-of-wny tins served t:he puhl.i.c interest while also
permittino the private sector t.o earn a fair profit and
provide soci-ety with the most sophisticated telecommunication
system in the arorld; and
WHEREAS, with the advent of competitive systems there
still remains a need for the public interest to be served
while preserving the profit element in the area of private
enterprise; and
WHEREAS, the absence of a Comprehensive City
Administrative Policy, in place, to govern the use of City
streets, including the permission to install subsurface
systems, ought not to delay action unreasonably on several
pending requests for permission to install the underground
corridor which the new and restructured firms will need for
the conduct of their business enterprises; and
WHEREAS, it is imperative that the new and restructured
firms benefitting so greatly from divestiture and
deregulation shoulder some of the burden to reimburse the
public for losses in revenue which would otherwise be used to
recoup the public monies expended for the acquisition,
construction and maintenance of the public rights -of -way and
the assumption of the burden ouqht to be considered as a
fixed cost of doing business to be borne by the new and
restructured companies; and
W Z
•
WHEREAS, only by controlling the corridor through which
these new communjrat, ion services must. [low cnn the City'a
future edmininLrn|ive mechnnism for pertly rrcnvpinq these
public mnninn hr mndc n[[icieot or opornhle: eod
KH[K[AS, nL lnnni onr nf ihc nnw nr ron|,rorLured
communication [irmf7 hon ogreeJ ihn| it will nccPpt Uin City^n
future dmtnrmjnotinn of rrnnonnhln cnmpennr-_11,jnn in exchange
for the immediotp qronL of permission to use the public
rights -of -way in install the corridor:
NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE
CITY OF MIAMI' FLORIDA:
Section 1. The City Manager is hereby authorized to
execute Interim Agreements, in oubntontially tho form
attached, with private individuals, partnerships, companies
or corporations for the use of public rights -of -way to
conduct the private business of furnishing of communication
services.
PASSED AND ADOPTED thi day of may , 1984.
Maurice A. Ferre
'
PR
)Coza ;07 "
~ROB[RT F. rLARk-
APP OVED AS TO FORM AND CORRECTNESS:
?PSE GARClA-P[0ROSA, CITY ATTORNEY
i���m—���_���
^�����
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INTERIM AGREEMENT FOR USE OF RIGHTS -OF -WAY
THIS AGREEMENT made an.
� 19R/i, by
municipal r_orF prat ion of th
Dade, hereinafter r.all.ed C:T1Y,
ereinafter called 115ER;
d entered into this day of
and between the CITY OF MIAMI, a
a Stnt.e of' Florida, in the County of
and
WJTNESSETH:
9
WHERFAS,the CITY exercises control over the following
described land for the benefit of the public:
(see attached Appendix A);
and
WHEREAS, the USER has requested permission from the CITY to
construct, operate, and maintain a duct system under and/or
along the dedicated public rights -of -way as set forth below,
such system hereinafter referred to as "DUCT BANK"; and
WHEREAS,the rights -of -way of the CITY to be used by the USER
in the operation of the USER'S business enterprise are valuable
public properties acquired and maintained by the CITY at great
expense to municipal taxpaycr5, and the right: to use said
rights-of-rlay is a volur_-able property right without which the USER
would be requi rcci to invc.sirrh:: t< ni..ia1 capital. in property
acquisition
N0W Tlil:k1_1PlNi
, in COW; Idc°r•; t.ioil
of the
bc>nefit-, which will
accrue for the
II';IJ; 1,1,orn i_hc= r,ons;t ruct..ion
cafe
said "DUCT BANK
under and/or,
r cc of`
c_ec3 1
21 reds in the CITY
as herein,,0ir-r
the Il`lER,
which
tern, if)( -lodes its
principal or prinr.i(ial%;,
urr c or's
in intr•rr•i:,t
rind/o, assigns,
does herchv covc(irant.
r.)rrcl with the
f I TY a,�
1.a. The IJSCR ncl:nowledaes that. this Ae�reement is an
Interim Agree=ment and that. the CITY is in the process of
developing a Comprehensive City Administrative Policy to govern
the use of CITY streets which will include the installation of
subsurface structures and the determination of compensation for
the use of CITY streets for private businesses. At such time as
the CITY establishes such a Pal icy, this Agreement shall
terminate within 90 days of the adoption of this Policy. Upon
adoption of said Policy, the use of CITY rights -of -way, including
streets, for the "DCJC1 BANK", shall be the subject of
renegotiation between the USER and the. CITY. In the event that
the USER shall fail to reach an agreement with the City, within
said 90 days, providing for the operation and maintenance of
said "DUCT BANK" and for the pavment of compensation to the CITY,
then the USER shall remove the DUCT BANK.
1.b. The USER, prior to the issuance of a permit for the
construction of' tire - Itereirr facility, shall subrr1it to the
Department of Public Works Flans and specifications for approval
prior to the construction of said "DOC1 BANK" and a complete set
of 11AS-111-1IL1" I)lans after construction of this "DUCT BANK" has
been complt_ted; said plans and specifications to he prepared by a
professional e,ndineer, rer7istered in the State of Florida; and
shall meet all City (:'ode provisions and regulations and those
applicable reclulatioeis, if any, as promulgated by any Federal
Regulatory Agency and the NatlOnel Electric Safety Code.
1.c. lhe- m[R will not assert the existence of any vested
rights if the CITY issues the aforementioned permit for the
installation of this "DUCT BANK" and upon termination of this
Agreement requires the removal of said "DUCT BANK".
84-S3F
40
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INTERIM AGREEMENT FOR USE OF RIGHTS -OF -WAY
THIS AGREEMENT made an
} 1a,8h, by
municipal corporation of th
Dade, hereinaft,ei rnlled CITY,
he rei.nafter ral.le
d entered into this day of
and betu:een the CITY Of' MIAMI, a
e 59:,at.e of Florida, in the County of
and
11T TNESSE TN :
WHEREAS the CITY exercises control over the following
described land for the benefit of the public:
(see attached Appendix A);
and
WHEREAS, the USER has requested permission from the CITY to
construct, operate, and maintain a duct system under and/or
along the dedicated public rights -of -way as set forth below,
such system hereinafter referred to as "DUCT BANK"; and
WHEREAS,the rights -of -way of the CITY to be used by the USER
in the operation of the USER'S business enterprise are valuable
public properties acgr_iired and maintained by the CITY at great
expense to municipal taxpayers, and t:he right. to use said
rights-of-a,ay is valuable property right: without which the USER
would be required to invest suhs',Lnntial capital in property
acquisition casts;
td01ti'
, iii con:,idcrotion of the
henefit:,; a;hich
will
accrue for th
111 the construction of
said "D1)C1 BANK",
under and/or
:+] nnu t:1le surface of cert ciin
st.reet.i in the
CITY
as he rein;?ff:r>r
dr r;jaIA trod, the IjSE-R, which
term includes
its
principal or
principal;;, 3uccc>ssors; in intrrest
;end; ni nssigns,
does herchv rnvr-nrfn1
r>nd noree v,,ith thr f11Y ar,
fol loF,s:
1,a. The USF_R acknowlednes that. this Agreement is an
Interim Agreement. and that: the CITY is in the process of
developinn a Comprehensive City Administrative Policy to govern
the use of CITY streets which will include the installation of
subsurface structures and the determination of compensation for
the use of CITY streets for private businesses. At such time as
the CITY establishes such a Policy, this Agreement shall
terminate within 90 days of the adoption of this Policy. Upon
adoption of said Policy, the use of CITY rights -of -way, including
streets, for the "DUCT BANG:", shall be ttie subject of
renegotiation between the USER and the CITY. In the event that
the USER shall fail to reach an agreement with the City, within
said 90 days, providing for the operation and maintenance of
said "DUCT BANK" and for the payment of compensation to the CITY,
then the USER shall remove the DUCT BANK,
1.b. The USER, prior to the issuance of' a permit for the
construction of the herein facility, shall submit to the
Department of' Public Works plans and specifications for approval
prior to the construction of said "DUCT F')�ANK" and a complete set
of "AS -BUILT" plans after construction of this "DUCT BANE:" has
been completed; said plans and specifications to be prepared by a
professional engineer, renistered in the State of Florida; and
shall meet all City Code provision: and regulations and those
applicable r•equl at ions , if any, as promulgated by any Federal
Requlatory Agency and the National Electric Safety Code,
1 .c, The gill not assert the existence of any vested
rights if the C11Y issues the aforementioned permit for the
installation of this "DUCT BANK" and upon termination of this
Agreement requires the removal of said "DUCT BANK",
1.d. The USER agrees to pay the CITY upon the execution
hereof, the foll.owi.ng fee which is assessed for the i.ssun-nce of
the construction permit: I _ Further and Priditi.onal
fees and compensation for i:he operation and maintenance of the
"DUCT BANK" which are to be paid prior to the commencement of
said ope.rai;_i.on and maintenance shall_ lip determined in accordance
with the provisions of si_ihparagraph 1cn her.eof�
2. After a permit for this specific faciJ ity has been
issued by CITY the USER may cause to be constructed or installed
a "DUCT BANK" under the surface, and/or along the following
specified route:
(see attached Appendix B)
3. The USER shall submit to the Department of Public Works
certified survey notes of initial staking and final measurements,
to be done by a .land surveyor regiatered in the State of Florida,
said certified survey notes will show sufficient ties with the
various survey points established by the CITY to enable the said
"DUCT BANK" to be accurately located in plan, and to show ground
elevation and also show the elevation of the top of the "DUCT
BANK" at each change of vertical direction, and the elevation and
location of all existing underground utilities uncovered during
the construction of said "DUCT BANK".
4. The USER shall 'agree
all responsibility, hold the CITY
harmless forever and agree to pay for any damage or claim of
damage which may be against the CITY which results directly or
indirectly from the construction, operation, maintenance, repair
and/or removal of said "DUCT BANK" or any part thereof. In the
event of damage to the "DUCT BANK" requiring the making of
repairs, from any cause whatsoever during the life of this
Covenant, the USER shall cause such repair to be made forthwith,
at User's expense whether in any way responsible for the damage
or not. However, the USER reserves the right to seek
reimbursement of such expense from third parties so long as the
CITY incurs no economic loss whatsoever.
5. The USER shall restore the surface of the public right-
of-way to its original condition, insofar as practical in the
opinion of the CITY's Director of the Department of Public Works,
and shall. furnish the CITY with a maintenance bond having an
effective date coinciding with the effective date of this
Agreement 111 the amiou[IL of $ to guarantee the
maintenance and repair of any faults or settled or sunken areas
that may develop in any area above or adjacent to the trench of
said "DUCT BANK" to the satisfaction of the Department of Public
Works, said bond shall continue to remain in effect in perpetuity
following the satisfactory completion of the described "DUCT
BANK".
6.'In an emergency, when USER or his representative is
immediately unavailable and/or unable to provide the. necessary
immediate repairs to a damaged or malfunctioning "DUCT BANK"
heretofore installed by USER, or to any faults or settled or
sunken areas that may develop in any area over, around or
adjacent to the said "DUCT BANK", the CITY, when apprised of such
an emergency, shall have the right to make the necessary repairs
with the total cost of same being charged to USER. It shall be
the responsibility of the present and all future USERS to notify
immediately by written notice, the City of Miami Department of
Public Works , P.O. Box 330708, Coconut Grove Station, Miami,
Florida 33233-0708, of the name, address and phone number of a
legal representative (and any replacement thereof) with whom
contact can be made in the event of such emergency at any time.
2
q
84- 538
7. The USER shall adjust or alter, at its own cost
and
expense, said "DUCT BANK" when and if the CITY's Director of
the
Department of Public Works determines that it is necessary
for
the CITY's use of its property. inch a determination will not
be
unreasonably made. In the event such a contingency occurs
and
USER shall fail, to cause the aforementioned adjustment
or
alteration within 120 days, after receipt of written notice
from
said Director to USER then the City Manager of the CITY shall
act
as agent USER which agency is hereby specifically created,
and
said CITY Hanager shall cause the aforesaid adjustment
or
alteration of the DUCT BANK, and the total cost and expense,
therefore, shall be charged to the USER.
8. The USER shall obtain from all other governmental agencies
the required and necessary permits and approval for the
construction and connection of said "DUCT BANK".
9. In addition to the requirements recited in Paragraph 4
the USER shall indemnify, defend and save the CITY harmless from
and against any all claims, liabilities , losses and causes of
action, which may arise out of USER'S activities under this
covenant, including all other acts of the City, its officers or
employees or failure to act on the- part of the USER or any of
them, including iny person acting for or on his or their behalf,
and from and against any orders, judgments or decrees which may
be entered .:end fron a,nd aF,oin:at all costs, attorn�yIs fee,
expenses <-nd 1 i 5bi_1.it ie, inourrcd in the defense of any such
claims or ir) t.hr: thcrcof,
10. ThcCr..n�{,r�cl�en.�ivc General Liability
- Policy c;ar, i t'n cQui valent. of 1 caasi. $.1 , 000, 000 combined single
limit for Lodli ly injury <<nd propc r-ty damage This
coverage ::-hr,ll, i n c I rack C'01)trr.c,turrl. Lia,bi 1 i ty coverage and
Products and Comp) cted Up er at.i on cc-vera ge of .t 1 cart w, 1 , 000, 000
combined sing3.c 1im,it. I y.plo.�ion, Co11,ap5e, and Underground
Liability coverage will be provided unI_ess no exposure exists as
determined by the CITY The CITY shell be named as an
Additional Insured on such policies. Proof of insurance shall be
submitted to the CITY prior to execution of this Agreement and
shall be subject to the approval of the Risk Management Division.
All insurance policies required above, shall be issued by
companies authorized to do business under the laws of the State
of Florida. The minimum qualifications as to management and
financial strength of the Insurance Companies are as follows:
The Company must be rated no less than "A" as to
management, and no less than Class "V as to strength, by
the latest edition of Best's Insurance Guide, published by
Alfred M. Best Company, Inc., 75 Fulton Street, New York,
N.Y. Loss or repairs of damage by -any cause whatsoever
shall be the responsibility of the USER throughout the life
of this Agreement. The USER shall maintain such required
insurance in force during the life of this Agreement.
84-538
3
No modification or change in insurance shall. he made without
thirty (3) days written advance not i.re to the CITY'S Risk
Management Division. Compl.i_snce wi th thiP; re(piirement shall
in no way rel.ieve USER of per formi.nq respnnsihi1,iti.es agreed
to in any other paragraph of this Agr+,emnr,t.
11. -The USER and the CITY ngree that the right to use the
CITY's streets herein designated for the installation of said
"DUCT RANK" shall be assignablr,, in whole or in part. however,
the USER shahh remain responsible for full compliance with this
Agreement. The USER agrees that no assignments for the iise of
said streets will be made without prior written notice to the
CITY and that any asignees shall. be governed by the terms of this
Agreement..
12. Prior to the termination of this Agreement, the USER
reserves the right to apply for a permit to remove its "DUCT
BANK" and to restore' the CITY'S streets to their original
condition in conformance with CITY standards and specifications,
in which case the CITY shall execute a release of Agreement
whereby the USER shall be relieved of all of is obligations
hereunder. The bond for street restoration shall be held for two
(2) years after all work is completed to assure the complete and
satisfactory restoration of the street surface.
IN WITNESS WHEREOF, the parties hereto have caused these
presents to be executed by the respective officials thereunto
duly authorized, the day and year first above written.
USER :
WITNESSES:
ATTEST:
RALPH G. ONGIE
City Clerk
APPROVED AS TO FORM AND CORRECTNESS:
DOSE GARCIA-PEDROSA
City Attorney
4
(a corporation of the State
of )
By
President
Secretary
(Corporate Seal)
CITY OF MIAMI, a munici-
pal Corporation of the
State of Florida
By
HOWARD V. GARY
CIty Manager
84-5319
W
93
CITY OF 114Ih."?1.
INTER-OFPIC R 9 Mr�f? n R.ir a.tRn
To Honorable Mayor and Members
of the City Commission
a
-441e
A (00�10'4a--
fRC
;. Jose Garcia -Pedrosa
City Attorney
[DATE May 10, 1984 FILE J-84-459
SUBJECT City Commission Agenda, 5/10/84
REFERENCES Item # 8 2
(Use of Public Right-of-way)
ENCLOSURES ( 1 )
After a review of the proposed Resolution on this item which
was distributed earlier today by Mr.. Clark of this Office,
the City Manager requested that we modify the Resolution and
agreement form to provide for an enabling type of resolution.
Accordingly, the attached approved Resolution incorporates an
agreement form that may be executed by the City Manager with
the only initial payment required by the user of the right-of-
way under the agreement being the fee assessed by the Department
of Public Works in accordance with the City Code provisions.
JGP/RFC/f1
cc: City Manager
City Clerk
84853E
C
21
CITY OF MIAMI. FLORIDA
INTER -OFFICE MEMORANDUM
TO Honorable Mayor and Members
of the City Commission
'
rr r ore Gar.c.ia-Pedrosa
City Attorney
D.4TF
May 10,1 984 F,LE.J-84-459
SUBJECT: City Commission Agenda, 5/10/84
REFEPF�'CE I. Item 1182
ENCLOSUF°_Z
(1 )
This item deals with the AT&T divestiture and requests for
the use of rights -of -way. On Monday morning, May 7, 1984, at
the request of Assistant City Manager Walter Pierce, Deputy
City Attorneys, Clark and Copelan, met with Mr. Pierce in his
Office along with Messrs. Clark Merrill and William Parkes.
On Tuesday, May 8th, we received a preliminary draft of an
Interim Aqreement for the use of riqhts-of-way incorporating
several points of agreement reached by representatives of
several firms that are r.equestinq permission to use
rights -of -way in the City of Miami.
Late last night we completed the final draft of an Interim
Agreement. Ivhi.ch we are attaching. The City Manager has not
vet seen the document in final form.
A r.esolut.or1 is attached a,hich authorizes the execution of
said Interim Agreement th,i only permit.,: the construction of
the ut10,(11'0Fr:,und 11000I PAN1,'" t I d p r o v i d c s for the City
Comm ie,:;ioII to e�;tabI ic;h the fee fc,1, ::1.1)c1) permit,. Nei.ther
company narrle., nor fee:, hr)vU i ed i,v 0ur (If five.
After t -iit City ComIII on cctahli,-,1) a Compre11ensive
Administrn1,ive Pa.licy ,iddresr;in(I thrl use of rights,_of-wny and
the payment of compensation to the City for such use, any
firm executing the attached Interim Agreement has 90 days
within which to neUotiate an Agreement for permission to
operate and maintains the "DUCT BANK". Failure to reach such
agreement. will require that the "DUCT BANK" be removed.
Our office is forwarding Darrey Davis,Esq. of the firm of
Steel Hector & Davis, counsel to one of the companies
requesting such use, an information copy of the resolution
and agreement.
JGP/RFC/rr
cc: City Manager
City Clerk
84-53F
L,
21
CITY OF MIAMI. FLORID?
INTER -OFFICE MEMORANDIL-IM
To Honorable Mayor and Members
of the City Commission
F� ose Garcia -Pedrosa
City Attorney
DOTE May 10, 1984 FILE:`7-84-459
SUBJECT:
City Commission Agenda, S 1Q 84
REFEPENCF F-Item #82
ENCLOSUF-S
(1 )
This item deals with the AT&T divestiture and requests for
the use of rights -of -way. On Monday morning, May 7, 1984, at
the request of Assistant City Manager Walter Pierce, Deputy
City Attorneys, Clark and Copelan, met with Mr. Pierce in his
Office alonq with Messrs. Clark Merrill and William Parkes.
On Tuesday, May 8th, we received a preliminary draft of an
Interim Agreement for the use of rights -of -way incorporating
several points of agreement reached by representatives of
several firms that are requesting permission to use
rights -of -way in the City of Miami.
_ Late last night we completed the final draft of an Interim
- Agreement which we are attaching. The City Manager has not
yet seen the document in final form.
A resolution is attached Ivhich authorizes the execution of
said Interim Aarecrnerlt th,<i only germ; is the con c;trI ct i on o f
the undcroro(111d "DUCT UAN1111 grid proV i de,, for t he City
Commission to c..;t.ahIisII t 11 Ij fI) for suC11 peIIII it_, Nei_tlie r.
company rlo(-,Iers nor f ecs IIr_!vc> I)ecn upp] icd I y our c)i i icr�,
After t.hc Cii_v Commi s:>ion r t ,l l i ;hc:, rl Comp rche..nsive
Administrative Policy 'id(iIu, ;inr) the use ref rirtlits--of -Tray and
the payment. of compensation to the City: for ,ucl! Use, any
firm executing the nti..ached Interim Agreement has 90 days
within which to negotial:.e an Agreement. for permission to
operate and maintains the "DUCT BANE:". Failure to reach such
agreement will require that the "DUCT BANK" be removed.
Our office is forwarding Darrey Davis,�Esq. of the firm of
Steel Hector & Davis, counsel to one of the companies
requesting such use, an information copy of the resolution
and agreement.
JGP/RFC/rr
cc: City Manager
City Clerk
84-53F
•
Walter Pierce
Assistsnt City Manager
Donald W• Cather, Director
Public Works Department
Clark Merrill
84-53 r