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HomeMy WebLinkAboutCC 1984-02-16 MinutesCITY OF MIAMI OF MEETING HELD ON February 16, 1984 (SPECIAL) PREPARED BY THE OFFICE OF THE CITY CLERK CITY HALL RALPH G.. ONGIE CITY CLERK NV 4N` 1Nf,yl &DA TEM NO. FEBRUARY 16/84 SWCC (SPECIAL) I MNCE rsoLMON, PAGE N09 1 PRESENTATION OF OFFICIAL MIAMI GRAND PRIX 1984 POSTER TO THE MAYOR AND CITY COMMISSIONERS BY PROMOTER RALPH SANCHEZ AND ELI FEINBERG. DISCUSSION 1 2 DISCUSSION OF FINES IMPOSED ON MIAMI CABLEVISION. M-84-206 1-53 3 APPROVE STREET CLOSING FOR "CALLO OCHO" FESTIVAL. M-84-207 54 4 ALLOCATE $7,500. PURSUANT TO REQUEST FROM SOUTH FLORIDA EDUCATIONAL CONSORTIUM AND PAN AMERICAN HEALTH ORGANIZATION FOR CHANNEL 2 SATELLITE PROGRAM. M-84-208 55-56 5 DISCUSSION ITEM: CARNIVAL AT FLAGLER DOG TRACK SPONSORED BY MIAMI BEACH JAYCEES. DISCUSSION 57-60 6 DISCUSSION OF WORLD PRESIDENT. DISCUSSION 60-61 MINUTES OF SPECIAL MEETING OF THE CITY COMMISSION OF MIAMI, FLORIDA On the 16th day of February, 1984, the City Commission of Miami, Florida, met at its regular meeting place in the City Hall, 3500 Pan American Drive, Miami, Florida in Spe- cial Session. The meeting was called to order at 2:30 O'Clock P.M. by Mayor Maurice A. Ferre with the following members of the Commission found to be present: Commissioner Miller J. Dawkins Commissioner J. L. Plummer, Jr. Vice -Mayor Demetrio Perez, Jr. Mayor Maurice A. Ferre ABSENT: Commissioner Joe Carollo ALSO PRESENT: Howard V. Gary, City Manager Jose R. Garcia -Pedrosa, City Attorney Ralph G. Ongie, City Clerk Matty Hirai, Assistant City Clerk An invocation was delivered by Mayor Ferre who then led those present in a pledge of allegiance to the Flag of the United States of America. 1. PRESENTATION OF OFFICIAL MIAMI GRAND PRIX 1984 POSTER TO THE MAYOR AND CITY COMMISSIONERS BY PROMOTER RALPH SANCHEZ AND ELI FEINBERG. ------------------------------------------------------------ A PRESENTATION OF THE OFFICIAL MIAMI GRAND PRIX 1984 POSTER BY ARTIST JACK AMOROSO WAS MADE BY Mr. ELI FEINBERG AND Mr. JACK AMOROSO. 2. DISCUSSION OF FIVES IMPOSED ON MIAMI CABLEVISION. Mayor Ferre: Ladies and gentlemen, this is a Special City of Miami Commission Meeting for the purpose of discussion of Cable TV issues. I will now recognize Mr. Ken Myers who represents the Miami Cable Company. Mr. Plummer: Mr. Mayor, before you do, did anybody else receive in their office an opinion by the City Attorney? Mr. Dawkins: I just was handed one, Commissioner Plummer. Mayor Ferre: This was in answer to a memorandum in which I asked, and I would hope it is attached. If not, we did send a copy to each of your offices. Where is the memo? Mr. Plummer: Mr. Mayor, all I can say to you, this 8 page document was just handed to me as I walked in here and I hope that we don't need the benefit of this opinion because HT 1 2/16/84 6 0 I've not read it and I doubt that anybody else has had the opportunity. Mayor Ferre: No, as a matter of fact, it doesn't really much matter because I'm going to do it verbally. Mr. Dawkins: You're going to go through this verbally? Mayor Ferre: No, my question is very simple. I have two questions and they are very simple. Legally, is there anything in any of the documents that refers to the issue of parallel lines and secondly is there anything that legally talks about these two-way communication boxes? It is that simple. I think we're dealing with legal questions and we need to have a legal opinion. That's what we're meeting about. It is in the memorandum. Mr. Plummer: I haven't read it, sir. Mayor Ferre: The memorandum is in the record, a request by Miami Cable Television dated February 14th and I say that there are four issues before us, two we have nothing to do with, two we do and I want legal opinions on both. That's all. Mr. Dawkins: It was my understanding, Mr. Garcia -Pedrosa, when this meeting was asked that a Special Commission Meet- ing be held what was the wording? Mr. Garcia -Pedrosa: Commissioner, I'm not sure I understand your question. Mr. Dawkins: Okay, I'll come back and try to explain it like we do in the ghetto. When we agreed that we would allow the cable company to come before us what did we tell them they could come before us to do? They asked for per- mission to come before this Commission, am I right? Mayor Ferre: Right. Mr. Garcia -Pedrosa: Yes, sir. Mr. Dawkins: I'm just trying to be sure that we're on the same wave length. At that time, I explained to you that I did not think it was proper for the cable company to present its case before us. Is that right or wrong? Senator Ken Myers: We're not going to present what you were concerned about. Mayor Ferre: Senator, please don't interrupt and let the Commissioner finish. Mr. Dawkins: That's all right, forget it. Go ahead, Mr. Myers. Mayor Ferre: No, Commissioner, I think it is a valid ques- tion, I think it ought to be answered and I think it is something that I would respectfully that you not be inter- rupted until this is concluded. Now, did you understand the question? Mr. Garcia -Pedrosa: Yes, sir, I think I do and I think the answer to Commissioner Dawkins' question is that the Com- mission permitted the cable licensee to appear before it for the purpose of challenging the imposition of fines that the Manager has placed on the cable licensee. Mayor Ferre: That was my understanding too. Are we okay on that now? RT 2 2/16/84 Mr. Plummer: Let's get the record clear. Commissioner Dawkins did raise an objection and his objection was in another area and, as I further recall, he did not feel that this matter should be heard before the Commission until the Manager had made his annual report and we agreed, without his vote, as I recall, to address three fines at that time that are different than today because one of them was about the head end where the Mayor could take a microphone and override the entire system, that one has subsequently been resolved and today we are faced with two issues, one is the interacting system and the other is a new issue since that meeting which is the wires running across the street, as I recall. Mayor Ferre: It is not a new issue. Mr. Plummer: It is not a new issue but the fines have been imposed since our last meeting. Senator Myers: No, they were.... Mayor Ferre: Senator, I haven't recognized you yet and I promise you that I will before the end of the day. Mr. Carollo: Mr. Mayor, just one brief question, it won't take more than 30 seconds. Mayor Ferre: Go right ahead. Mr. Carollo: If I may ask, where is our City Manager, please? Mr. Randolph Rosencrantz: He had to leave right after noon, he asked me to sit in, we expect him back probably before 3:00. Mr. Carollo: Well, is there a reason why he would miss a meeting such as this? Mr. Rosencrantz: He did not give me an explanation as to where he was going at this point? Mr. Carollo: Can you please give a written explanation to this Commission why the City Manager has not been able to be here for a meeting? Mr. Rosencrantz: Commissioner, I anticipate that the City Manager will be here before the meeting is over and I'm sure he'd be willing to address that particular question. In the event that he isn't I will transmit your message to him and I am sure he will respond in writing. Mr. Carollo: Okay, can we have it in our office by tomor- row, please, a written explanation if he does not arrive back in time. Mr. Dawkins: I don't need one. Mayor Ferre: Are there any other questions before we get going that are relevant to this issue? Now, let me repeat the call. We are gathered here today to hear the discussion on the part of Miami Cable on penalties that have been assessed by the City Manager. The issues before us, as I understand it, basically are two. One is the two-way commu- nication interphase system and the issue of parallel cross- ings or double crossings or wires across the street issue or whatever it may be called. Now, just so the record is abundantly clear, I since there are legal matters involved in these two questions, asked the City Attorney to be pre- RT 3 2/ 16/84 a 0 pared today to answer legal questions affecting those two areas. Now, as we delve into these things I will be asking the City Attorney legal questions. Now, so that we wouldn't be held up, I asked him the questions ahead of time, I will repeat them on the record and he will be ready to answer them since he has already put them in writing and then we can continue to whatever conclusion we wish. Mr. Dawkins: Mr. Mayor, the only thing I would like to say to that is this. You are right, you have asked the City Attorney for an opinion on issues that are very important to you. You have also asked the City Attorney to reply in writing to us but I have to tell you, sir, that I no way am I ready to take your questions and take my concerns and look at them now and listen to the City Attorney and be able to intelligently respond to his questions. So, therefore, as these questions arise I may ask that they be deferred until I have time to study them and come up with some intelligent questions. Mayor Ferre: Commissioner Dawkins, I think you are correct and I would respect that request on your part after the question has been asked and after the answer has been given on the record so that we can get it on the record. Now, once the question is asked and the answer is delivered, if you wish to deliberate on it you have a perfect right to do that. Mr. Dawkins: Thank you. Mayor Ferre: All right, are we ready to go? Now, counsel- or, I will recognize you. Senator Kenneth M. Myers: Thank you, Mayor. Members of the Commission, Mayor, let me first introduce to you some of the participants in this hearing that you will be hearing from from time to time on our behalf. First of all, let me say that my name is Kenneth M. Myers of the Myers Kenin Law Firm, 1428 Bric:kell Avenue, Miami, Florida, appearing on behalf of Miami Cablevision. Also here appearing as co - counsel with me on behalf of Miami Cablevision at my request is Mr. Bowman Brown and Gail Paine of the law firm of Shutts and Bowen who are ordinarily local counsel for TCI but they are here at this hearing appearing with me on behalf of the entire co -venture - Miami Cablevision, both parties. Here as well is Mr. Larry Carlton who is Vice -President of TCI from Denver who is appearing not on behalf of TCI... Mayor Ferre: Senator, excuse me, as you introduce these people, so that we will know who they are, I would ask that they each, as you... Senator Myers: Well, the lawyers I introduced are Mr. Bow Brown and Gail Paine, they are there. Mr. Larry Carlton, who I am introducing now is Vice -President of TCI out of Denver and he is also appearing here as well today, not on behalf of TCI but on behalf of the joint venture including both partners - Miami Cablevision. We also have today, whom you'll be hearing from extensively later on Dr. Garrard Hannoeman and Ron Wallace of the Elra Group, nationally recognized cable TV consultants for cities as well as cable companies, and you'll see their resume and dossier later, just needless to say at this moment, they have represented among other cities the City of Austin, Texas, Detroit, Sacramento, Houston, the State of Utah, the State of South Carolina, the State of West Virginia and many other govern- ments and municipalities as well as investor owned cable TV companies. Included in their consultant work is extensive consultant work to cities and cable companies in the area of construction, design and interactive services. Mayor, RT 4 2/16/84 0 0 members of the Commission, to clarify what you were evident- ly concerned about in your earlier discussions. We are, indeed, limiting the topics today to only two items. That is the two alleged violations cited by the City Manager and a related issue in connection with construction in connec- tion with those alleged violations. And I might add, Com- missioner Plummer, that both of these cited items were cited alleged violations at the time of the former hearing, the items relating to cross -ovens and the items relating to interactive services, they were both outstanding letters of citations. The first one we want to discuss which I will review very briefly for you at this moment is the alleged failure to construct in accordance with what the City Manag- er interprets are the requirements of Section 605(b) of the Cable Ordinance. 605(b) of the Cable Ordinance says, "All cables and wires shall be installed parallel to existin, telephone and electric wires wherever possible. Now, this is not just a legal question, Mayor, this is a question of factual interpretation as to what that means in the cable TV industry. What that language parallel means, it is a ques- tion of law in fact, but the question is what does parallel mean and you must satisfy yourself today as to what that term parallel, paralleling of lines means as a standard and accepted term in the cable TV industry in this country. The City Manager has interpreted that the parallel requirement means the elimination of all customer drop crossovers throughout the City. We are going to contend today that (1) we are paralleling our wires and cables with the utility wires on the sides of the streets where our approved system design requires the basic plan and distribution system to be, and (2) in the accepted and ordinary meaning of paral- leling in the cable TV industry, customer drops are not included in a paralleling requirement because customer drops are simply not considered a part of the basic plant and distribution system of a cable TV entity. (3) To do what the City Manager now mandates to be done would require a complete double siding of the system, a complete redesign and substantial reconstruction of the system on both sides of the street which (A) has never before been required for an entire system by a City or County anywhere in the Coun- try, simply not accepted as a financially feasible system design (B) if required as part of additional invested capi- tal of this company would mean rates that you would be imposing on customers because the company is entitled to a return on its capital investment, so exorbitant as to make cable TV unacceptable or not affordable by City residents and (C)..... Mayor Ferre: Senator. Senator Myers: Well, go ahead, Mayor, I would hope that I could briefly summarize so then later on we can get into questions.... Mayor Ferre: Yes, but ' brief. I know you at being very thorough and you guys get paid by t really want you to do, language. This is not simple plain picture. then the administration There are two issues an some legal questions, g that's the point, I want you to do it ;torneys are always concerned about complete and all of that and I know he hour and all of that, but what I I want you to talk to us in layman's a court of law. Just draw us a very We can get right to the issue and will have the opportunity to rebut. d they are very simple and there are !t to them. Senator Myers: Mayor, I'm reviewing the first issue because I think it is important that we do get into the record a summary of what our position is. HT 5 2/16/84 0 0 Mayor Ferre: Well, why don't you put it in writing and submit it to the Clerk, if you would, get your legal brief, submit it to the Clerk for the record and then come back and tell us in English what the problem is. Senator Myers: Well, I was trying to make myself clear, I didn't think it was that... Mayor Ferre: Go ahead, make your point (C). Senator Myers: All right, let me make the last point in connection with the construction. Very simply, I'll tell you it will cost 15.2 million dollars in additional money which the company just simply doesn't have and can't get and, you know, I hope that's not legal jargon because the rates are frozen by ordinance for two years after completion of construction and because the loan process by this compa- ny, its borrowings which was approved by the Commission and the City Manager, has already been completed and they can't go back and get any additional moneys. The basic design plan that you approved and the City manager approved on which the borrowings were made is set and it is just simply an impossibility to go back and get an additional 15.2 million dollars, certainly not from the customers because it would mean $40 a month average customer rate which is unsaleable and because we have no place to go and borrow it. And Mr. Hannoeman will go into further detail regarding that. Mayor Ferre: Maybe, maybe not. Senator Myers: Now, Mayor, in connection with this issue, we also want to bring to the attention of the Commission that there is another issue relating to construction that is related to this and that is that there has been required here in the Public Works Department not just a simple Public Works Project like a single fire station or a single police station that really the ordinance speaks to in 204(b) but a city-wide major rehabilitation street improvement and set- back program which has been under way for the last 15 years by the Public Works Department and which the RFP did not originally contemplate. What we are saying is if you are going to require this company to build its designs and relocate its system, even on the one side of the street, forget the cross -over issue, to comply with this city-wide rehabilitation program, that is going to cost this company an additional uncontemplated $7,0009000 which the company doesn't have - even on one side of the street, and we're asking the Commission to consider today, in view of the uniqueness and one time type of city-wide Public Works project that this is, a major city-wide rehabilitation program not contemplated in the RFP and not bid on, that you put some kind of cap, financial cap on the responsibility of this company annually even to do its work, its rehab work that it is required to do in accordance with its system design on one side of the street whether it is $100,000 a year or whatever reasonable cap we can negotiate, but some kind of reasonable financial cap because $7,000,000 is impossible even for continuing on the one side of the street rehab which it is going to be required to do. Okay. Mayor Ferre: No, we're dealing with one issue and then after we finish with that then we'll deal with the other issue. Senator Myers: That's the one issue. All right. Let's go through that issue then and then we'll go to the interac- tive. RT 6 2/16/84 0 0 Mayor Ferre: Senator, I know you've got very important people that have come from afar to make presentations, I'd like to perhaps cut through all of that and rather than have them make full-fledged two hour presentations, just ask a series of questions that will perhaps get to the heart of the issue. Do you mind if I do that with you? Senator Myers: I don't mind at all, I did want to review a little background of the chronological history of this thing so you could get a flavor of where we are, but... Mayor Ferre: After you hear my questions then perhaps you might answer, when you answer if you would just take a piece of paper and a pen and write down. I've just got about 4 or 5 simple questions and then you can go and give us all of the details because you heard Commissioner Dawkins. Senator Myers: Because I'm getting into the facts now, I'm through reciting. Mayor Ferre: You heard Commissioner Dawkins and his state- ment so obsiously this is going to continue into the future from the looks of it. My first question to you is this: When we negotiat- ed this contract or when the ordinance passed, did your company in your opinion at any time think that there was a requirement for the mid -block crossing of CATV wires of City streets and secondly, in your opinion, does Miami Cable TV License Ordinance 9332 of October 1981, Section 605 or anywhere in that public or any other public document specif- ically cover that issue? Senator Myers: Absolutely not to both questions - no, no, and I can tell you why. Mayor Ferre: I'm going to get, as soon as I finish I will, let me go through the series and then I'll recognize others to make points on all of these things. During the awarding of the contract and the final signing of the contract, was there any explicit or implicit document or statement that was made that in any way directed itself to the issue of mid -block crossing of CATV wires across City streets? Senator Myers: Absolutely not, the issue did not directly come up for a year and a half after we started construction. Mayor Ferre: Please, sir. My next question to you is: For the first year of the contract did you begin construction? Senator Myers: Yes, we did, in reliance on an approved system design plan by the City. Mayor Ferre: Does that mean yes? Senator Myers: Yes. Mayor Ferre: Thank you. Mr. Plummer: Would you quite coaching the witness and only answer the question. Senator Myers: Yes, sir. Mayor Ferre: Now, during that first year and after the construction commenced, was there any time that any officer of the City of Miami directly or indirectly, in writing or verbally, did anybody ever tell you that you were to do the mid -block crossing of CATV wires so as not to cross City streets other than along parallels? Senator Myers: Well, let me tell you what happened. RT 7 2/16/84 E Mayor Ferre: Just answer me yes or no. Senator Myers: Well, I can't because you have to understand the flavor. Mayor Ferre: If at any time during the first year did any officer of the City of Miami directly or indirectly inform you that you had to do this parallel street crossing? Yes or no. Senator Myers: That we had to eliminate all cross-overs? No, they did not. Mayor Ferre: Yes or no? I'll repeat the question. At any time during the first year after the signing of the contract and during the first part of the construction, did any officer of the City of Miami directly or indirectly inform you or ask you that the raid -block crossing of CATV wires could not cross City streets? Senator Myers: Approximately 7 months after construction started the Public Works Department began evidencing an intent, some kind of an interest in cutting down the number of cross-overs but no discussions then ensued about elimi- nating cross-overs. Mayor Ferre: So the answer, as I understand it, is no, you were not instructed directly or indirectly by any officer of the City of Miami not to cross -over. Senator Myers: Not during the first year. Mayor Ferre: They asked you questions, they investigated, they discussed it with you, they implied but at no time were you instructed. Senator Myers: Mayor Ferre: Not until... No. Senator,Myers: Okay. Mayor Ferre: When was the first time that you were in- structed by the City of Miami that you were not to build CATV wires crossing City streets other than along parallel lines? Senator Myers: In August of 1983, the Public Works Depart- ment issued a cease and desist letter with respect to cross= overs but said in the letter that you may continue construc- tion of your basic plant and distribution system. So they told us to go on construction but to stop cross-overs which was an impossibility. Mayor Ferre: Was that given to you in writing, those in- structions? Senator Myers: There was a cease and desist letter, yes, August of '83• Mayor Ferre: When that cease and desist letter was written, how much time had elapsed since the signing of the contract? Senator Myers: At least a year and a half and over a year since construction began. Construction began in July. Mayor Ferre: That was my next question. Thank you for thinking of it. My next question is how long after the beginning of construction was that letter received? RT 8 2/16/84 0 to Senator Myers: Over a year, construction begin July 82. Mayor Ferre: During that year when construction had oc- curred, did you start stringing wires across streets from the very beginning or did you start stringing wires across the street toward the end? Senator Myers: It was inherent,as part of the construction you had -to string wires. Mayor Ferre: So in other words the City of Miami was aware that you were crossing the streets with wires from the very beginning of construction, is that correct? Senator Myers: That is correct. Mayor Ferre: Now, I have another question for you on the same issue. How many cable franchises or licenses are there in the United States of America? You might want to get your vice-president up here. And how many major cable crossings are there? Roughly, I'm not going to hold you to the fig- ure. Senator Myers: About 6,000. Mayor Ferre: 6,000 nationally. How many large, and by large let me define large as any cable franchise the size of Miami equal or larger, give or take 10% or 20% are within that? Senator Myers: About 15% of that. Mayor Ferre: 15% of 6,000 that are as large as Miami? Senator Myers: Well, that is max, say 10% to 15%. Mayor Ferre: In other words there are 900 cable TV licenses or franchises that are as large as Miami, is that what you're saying? Senator Myers: No, that doesn't sound right. Mayor Ferre: Let me repeat the question to you. How many cable TV licenses or franchises are there in the United States of America that are similar in size or magnitude when it is completed as Miami's license? Senator Myers: About 50 or 60. Mayor Ferre: 50 or 60. All right. Now, are there any of those 50 or 60 licenses or franchises that are requesting the franchise holder or the licensee to do what the City of Miami is now requesting Miami Cable, TCI and Americable, a joint venture to do? Senator Myers: Absolutely not, nobody would bid on an RFP like that. Mayor Ferre: Let me repeat that over again because I want to make sure, and please consult with your clients because I want this on the record. The question is are there any major licensees or franchisees in the United States of America similar in size to Miami that are being or have been asked to do what the City of Miami is now asking you to do? Senator Myers: No. Now, Mayor, you must understand that even 15% of our system is on two sides of the streets, it is part of the system design. RT 9 2/16/84 0 6 ■ Mayor Ferre: Sir we're going to get into that in a little while. Senator Myers: So there are pockets that are required to be but not an entire system. Mayor Ferre: I understand that. The question is, as I understand it, Mr. Clark Merrill representing the City and Ms. Sue Smoller have in recent times come upon the idea that all cable TV wires must go along easement lines in mid - blocks and that there cannot be any, without any exception, crossings of streets other than those street crossings that connect lines along easement points. Now, have I described it properly? Senator Myers: That's correct. Mayor Ferre: I will rephrase my question. Based on the statement I've just made, I would like to know whether there are any other of the 50 or 60 major licenses or franchises in the United States where that requirement has been specif- ically spelled out by the grantor of the license for the franchise. Senator Myers: No. Mayor Ferre: All right. So this is a unique thing in the United States of America to the best of you knowledge. Senator Myers: Yes. Mayor Ferre: That's not to say that it is not a good idea, it is to say that it is a new idea. Senator Myers: It is a good idea to have an aesthetically perfect city, I think we all agree with that, if it was economically feasible to do so. Mayor Ferre: All right, now let me ask you another ques- tion. It has been stated to me by the Manager, by the administration that Florida Power and Light whose represen- tative . I think I saw here a little while ago, and Southern Bell are required in their franchises to go along easement lines and not to cross any wires across streets other than connecting across streets that connect alleys so that there is no mid -street crossing of wires anywhere in the City of Miami. Senator Myers: Not entirely correct, according to my under- standing. Mayor Ferre: All right, now why don't you explain it. Senator Myers: My understanding is that the authority the public Works Department relies on to control the location of telephone and electric utilities in the public streets is contained in Section 3(1) of the Charter of the City of Miami and that is what Mr. Parks of the Public Works Depart- ment has advised me he has always relied on. Mayor Ferre: Senator, answer my question, please. Senator Myers: That's my answer. Mayor Ferre: Let me repeat my question because I didn't quite understand the answer. Today is Florida Power and Light and Southern Bell, are they required to string their lines along easements so that at no place are they allowed to cross a street at a midway point other than - other than along easement points where by necessity a street must be crossed by a wire over head? RT 10 2/16/84 0 6 Senator Myers: I don't know of any direct law other than the City Charter and the Public Works Department's standards or policies, unwritten standards or policies they may devel- op under it. Mayor Ferre: That's not my question, Senator. I'm not asking you whether there are any laws, I'm not asking you whether the legal ramifications of it are covered or not covered,• I am asking you simply to your knowledge - when I say you I mean your company, your client's knowledge - at this present time is there a requirement by the City of Miami not to cross lines at mid -block points and in the inverse, to cross only along alley easements and not to cut cross at mid -block points? Senator Myers: I really don't know. Mayor Ferre: Okay. How many miles of wire does your compa- ny estimate you will be putting up by the time you complete your system? Senator Myers: Close to 700. Mayor Ferre: 700 miles, this is as you have designed the program. Senator Myers: Correct. Mayor Ferre: Did you submit that design with 700 miles to the City of Miami? Senator Myers: Yes, the initial submittal covered the first five miles of the system which it had inherently and explic- itly on it and in it the basic design of the system. Mayor Ferre: I'm not asking you that question, Senator, would you please answer my question as I'm asking it. Senator Myers: You cannot... Mayor Ferre: Don't elaborate on going into another ques- tion. It is a very simple question. Did you submit a plan with 700 miles, yes or no? Senator Myers: No. Mayor Ferre: All right, did you submit any plan for approv- al? Senator Myers: Of course. Mayor Ferre: What plan did you submit for approval, when, and how many miles did it have? Senator Myers: We submitted, prior to April, 1982, a system design plan to the City's engineering consultants and the City Manager's Office, a couple of changes were made in it at the request of the City's engineering consultants.... Mayor Ferre: When did you submit the plan, Senator, the date? Senator Myers: At approximately February or March of 82. Mayor Ferre: All right. Now, in February or March of 82, when you submitted the plan - this was after August 81, right? Senator Myers: That's correct. RT 11 206/84 Mayor Ferre: You got the contract in August and in February you submitted the plan, is that what you're telling me? Senator Myers: That's correct. There was some litigation initially. Right. Mayor Ferre: In February or March you submitted the plan. Senator'Myers: Right. Mayor Ferre: How many miles did the initial plan contain? Senator Myers: The first construction phase which was 5 miles. Mayor Ferre: Okay. When was the second plan submitted? Senator Myers: I don't know, they were submitted.... Mayor Ferre: Within a year? Senator Myers: Oh, yes. Mayor Ferre: Within six months? Senator Myers: Oh, yes. Mayor Ferre: Within three months? Senator Myers: I don't know. Mayor Ferre: Within six months. Senator Myers: Yes. Mayor Ferre: All right. Now, how many miles did the second plan have? Senator Myers: The next construction phase... Mayor Ferre: Five miles, a hundred miles, twenty miles? Senator Myers: I would have to ask our engineer. Mayor Ferre: Is the engineer here? Senator Myers: Yes. Mayor Ferre: How many miles did the second plan have? We're not going to hold you to any of these figures. Senator Myers: Approximately 45 miles was the second phase. Mayor Ferre: Okay, now, the first plan with the five miles, did it show any crossings across streets at midway points? Senator Myers: Yes, it had to because it showed a system design on one side of the street. Mayor Ferre: Does that mean yes? Senator Myers: Yes. Mayor Ferre: Now, when that plan was submitted, was it approved? Senator Myers: Yes. Mayor Ferre: When was it approved? RT 12 2/16/84 Senator Myers: In April of 82 we received advice from the City Manager's Office that Arnold and Porter and the con- sulting engineers had reviewed and approved the plan and they gave us a notice to proceed. Mayor Ferre: So the plan was approved and you were notified to proceed in writing. Senator*Myers: Correct. Mayor Ferre: Is there a document that so states? Senator Myers: Yes. Mayor Ferre: All right, would you eventually submit that to the Clerk for the record. Senator Myers: Yes, sir. Mayor Ferre: Now, on the second plan that was submitted within six months for 45 miles, was there also crossings at mid points? Come up to the microphone, your name, address, who you are, who you represent. Mr. Joe Brannan: Mr. Mayor, my name is Joe Brannan. I'm the director of engineering for Miami Cablevision. In the sequence of events, what we received was notice to proceed. The notice to proceed is generally accepted as notice for the whole plan in saying that we have submitted more than one plan is not right. We submit to the City a construction report which contained maps of the construction. Mayor Ferre: Did the maps explicitly show mid -street cross- ings, yes or no? Mr. Brannan: Yes, they did. Mayor Ferre: Okay, did the first set of drawings have that? Mr. Brannan: Yes. Mayor Ferre: Did the second? Mr. Brannan: All maps that have subsequently been submitted to the City does show cross-overs. Mayor Ferre: Did you get approval of the second map when you submitted the second group for the 45 miles and the cross -over, was that approved? Mr. Brannan: No, not from the notice to proceed. There was just a construction plan that kept going forward and we kept submitting. Mayor Ferre: Let me start over with the first one. Was the first plan approved in writing? Mr. Brannan: Yes, it was. Mayor Ferre: In writing? Mr. Brannan: Yes, it was. Mayor Ferre: Was the second plan approved in writing? Mr. Brannan: No, not in writing. Mayor Ferre: So we're just talking about the first plan. RT 13 2/16/84 Mr. Brannan: That is correct. Mayor Ferre: Between the first plan and the second plan the City told you to cease and desist because you had to go back to this parallel system. Mr. Brannan: Okay, I'm a little confused because there is no second plan as such. Okay? Mayor Ferre: I was just following the statement that within six months another plan with 45 miles... Mr. Brannan: The only cease and desist was issued in August of 83. Mayor Ferre: Okay, so let me go back to the sequence. In February or March you submit a five mile plan. That was approved in writing. Mr. Brannan: Okay, yes. Mayor Ferre: Then a second plan within six months for another 45 miles, you didn't get an approval in writing, you assumed that you could proceed and you proceeded. Mr. Brannan: Yes. Mayor Ferre: You did not get a cease and desist until 83. Mr. Brannan: That is correct. Mayor Ferre: By the time you had received a notice of cease and desist, how many miles had you submitted in plans? Mr. Brannan: Oh, okay, in submittal of the plans to the City, we were completed of our total system. Okay? The 725 miles of system design. Mayor Ferre: I'm asking you, by the time you received a cease and desist, how many miles of the 700 miles had you submitted to the City? All of it? Half of it? Mr. Brannan: Probably over 400 miles had been submitted to the City. Mayor Ferre: Over 400 miles had been submitted. How many of those 400 miles that you submitted had been actually built by the time you got the plan to cease and desist? Mr. Brannan: In completed plant at the time of cease and desist, I don't have the record in front of me, but I be- lieve. . . Mayor Ferre: Did you have any? Mr. Brannan: Oh yes, we had well over 200, probably close to 300 miles. Mayor Ferre: That you had strung up by that time? Mr. Brannan: Yes, in various stages of completion. Mayor Ferre: Now let me ask you this. If you were to do what the City of Miami, or should I say rather what Mr. Clark Merrill and Sue Smoller and the Manager have asked that you do, how many more miles would you have to put? Mr. Brannan: We would estimate that it would probably be an additional 400 miles if the whole city went through the rehab situation. RT 14 2/16/84 a 0 Mayor Ferre: That's my question. Let me rephrase it so as to make sure we understand each other, I understand you and you understand me. If what Clark Merrill wants you to do now is forced upon you and you have to do it by law, we take you to court and we win and it is done, how many more miles do you estimate will have to be added to the 700 miles? Mr. Brannan: All right, may I do one thing and defer to the consultant here since he has done a study of it? Mayor Ferre: I don't care who answers it as long as it is authorized by the company. Mr. Brannan: He is Mayor Ferre: Your name and address and who you represent. Dr. Garrard Hannoeman: I'm Dr. Garrard Hannoeman, I repre- sent Miami Cablevision in this instance. We re -did all of the financials and we drove through. Mr. Dawkins: May I have the name of your firm you just gave your name and how you get to be an expert, that's what I need. Dr. Hannoeman: Yes, sir, the company name is the Elra Group. Mayor Ferre: Elra, and where are you based? Dr. Hannoeman: I'm based in San Francisco, we also have an engineer from East Lansing. Mayor Ferre: Doctor, I'm trying to keep this in simple layman's language and I have a very simple question and that is you had estimated 700 miles if what the City wants you to do is done how many more miles do you estimate, guesstimate, think you will have to add to the system? Dr. Hannoeman: It is somewhere between 340 and 400 miles additio.nal. Mayor Ferre: 340 to 400 miles. Dr. Hannoeman: That's right. Mayor Ferre: Senator Myers, I think you're going to have to answer this. When you made a bid did you in your bid docu- ments estimate how many miles? Dr. Hannoeman: Yes. Mayor Ferre: How many miles did you put in your bid esti- mate? Senator Myers: 725 miles. Mayor Ferre: So in other words when you bid 725 miles it was then clear that you were going to build a system similar to the one you're building now. Mr. Brannan: Yes. Mayor Ferre: When you signed the document, was there any reference to the fact that you estimated 725? In other words you went through a legal process which the law firm of Arnold of Porter and our own experts went through the proc- ess and then eventually there was a signing of a contract. In that contract document anywhere, is there any reference HT 15 2/16/84 a to approximately the number of miles that you expected to string up? Senator Myers: Again, the technical design plan that was submitted, the plan.... Mayor Ferre: Was that part of the .... Senator Myers: No, it wasn't part of the documents, it was part of, a requirement in the documents that we submit a plan. Mayor Ferre: Okay let me ask the question over again. When the legal document is signed between Americable and the City of Miami, is there any reference at all in any section either by plan, either by specifications, by a section of the contract or anywhere is there any reference to any document that says that we estimate that there will be 700 and some odd miles? Senator Myers: Yes, in the uniform data in the RFP it was estimated and represented.... Mayor Ferre: Is that the City's estimate? Senator Myers: That's right, it was represented by the City and that's what we bid on was that there was approximately 700 miles of system. Mayor Ferre: When you got the order of cease and desist, did you tell the City of Miami by your own figures and, therefore, or by the contract document, here is 700 and some odd miles and now you're asking us to add 400 miles? Did you point that out to the City? Senator Myers: Yes, in our conferences with them. Mr. Plummer: No, he didn't hear the question. Repeat the question. Mayor Ferre: When you were told to cease and desist in August of 1983 by the City of Miami from stringing up your cable TV system the way you were doing it, and by this time had done 300 - 350 - 400 miles of the 700, did you tell the City that the City's own documents in the beginning estimat- ed 700 which was now your estimate, 725, and that by adding their requirements there would have to be another 350- to 400 miles added. Senator Myers: Yes, we did, Mayor, we estimated not only what additional mileage would be required but we told them of the re -work which you haven't covered yet, the restruc- ture which is a very expensive portion of that - tearing out. Mayor Ferre: Now, Senator, how much does your company estimate it will cost to do what Mr. Clark Merrill and others have come up with? Dr. Hannoeman: $15,295,000. Mayor Ferre: Is this, doctor a reasonable estimate or are you kind of making it a worse scenario case? Dr. Hannoeman: No, sir, we believe that is very reasonable and we ran extensive proformas based upon what you've had to rehab, what you've got to wreck out and what you've got to rebuild. HT 16 2/16/84 a 11 Mayor Ferre: When you made your bid and you signed a docu- ment, what was the estimated cost of stringing up this system? I'm talking just about the wiring of the city, that's all. You had an estimate as to how much that was going to cost, I'm sure you gave the City a figure. Mr. Brannan: The total capital must have been in the $55,000,000 range. Mayor Ferre: No, not total capital, I don't care about how many television sets and discs, that's totally irrelevant. I'm talking about wiring the City, that has a fixed cost. What was the cost of wiring the City? Mr. Brannan: It is about $45,000,000. Mayor Ferre: To wire the City? Mr. Brannan: Yes. Mayor Ferre: Now, therefore, when they ask you to add another 350 miles they are asking you to increase it by $15,000,000, is that correct? Mr. Brannan: It's not only the capital, it is also the operating expenses, yes. The total is $15,000,000. Mayor Ferre: But the point is that that is a 33% increase in the capital outlay of wiring. Mr. Brannan: Yes, sir. Mayor Ferre: Okay. Now, the City would have a hard time arguing, as I sense it, that if you put that it was going to be 700 miles and that was going to cost $45,000,000 to wire and all of a sudden in August of 83 you get an order to cease and desist and you are asked to increase by 350 miles and $15,000,000 the wiring of the system, especially, as I understand it, when no other system in the United States has done that and we don't still have a clarification as to whether or not Florida Power and Light and Southern Bell are required to do that if so, how and when. So, I think I don't have any more questions with regard to this issue and will recognize other members of the Commission to ask their questions. Yes, sir. Mr. Dawkins: Mr. Mayor, as I told you before, I'm not prepared to answer this, and when it was put on the agenda it was put on the agenda, in my opinion for the cable tele- vision company to present its case and today, in my opinion, the Mayor presented their case as questions of his own which he has a right to do which I have no problem with. I would like for this to be deferred until May when I can answer these questions, when I can get the minutes from this meet- ing, when I can get with staff and get answers to my ques- tions the same as they have had answers from their people and then we bring it back and then I would 'have some ques- tions I would like to ask. Mayor Ferre: We have a request for a continuation of this, it is a valid request. I, the Chair, will rule, unless otherwise overridden, that this Commission can ask any questions of these people, they can make their presentation, give answers and at that point I think a request for deferral is a valid request after we have had an opportunity to ask questions. Mr. Plummer: For the record, Mayor Ferre's two questions turned into thirty-three. RT 17 2/16/84 a a Mayor Ferre: On just one question, I still have at least fifty other questions on the second issue. Mr. Plummer: Let me, basically, I think that most of the questions answered my questions, but let me just verify. It is my understanding you got the franchise in August of 81, August of 81 you were awarded the franchise. Senator Myers: Approximately, I believe that is correct. Mr. Plummer: You submitted your first plan of 5 miles to the City about February of 82, is that correct? Senator Myers: Correct. Mr. Plummer: At that time, your plans submitted was ap- proved and you received in writing an order from the City to proceed. Is that correct? Senator Myers: Notice to Proceed. Mr. Plummer: Notice to Proceed, all right. You received an order.... Senator Myers: I'm sorry, notice to proceed, Commissioner Plummer, was April 13, 1982. Mr. Plummer: All right, April 13th. In August of 1983, you received an order from the City in writing to stop. Senator Myers: The Public Works Department. Mr. Plummer: From the Public Works Department - well, as a representative, is that correct? Senator Myers: Yes. Mr. Plummer: But you could proceed with other than their objection. Senator Myers: That's what they indicated in their letter, they said continue with your basic system plant and distri- bution. Mr. Plummer: At August of 83 you had completed approximate- ly 400 miles of a 700 mile system, is that correct? Senator Myers: Yes. Mr. Plummer: At any time between April 13, 1982 and August of 83, were you ever informed in writing or officially to stop doing the cross-overs? Senator Myers: No, not, we were not officially informed. Let me tell you what the story was. Along about February 83, approximately 7 months after we had commenced construc- tion and after the basic system design had been established, the Public Works Department in their various rehab areas around the City evidently noticed the cross-overs and at that point they evidenced a concern and interest in getting together with the company to discuss the question of trying to eliminate the multiple number of cross-overs. The ques- tion of eliminating completely all cross-overs never came up at that time. That came up at a much later date, about a year and a half after construction commenced. But there were a series of conferences. The Public Works Department evinced an interest in the multiple number of cross-overs. They said that they had learned for the first time, that they had seen for the first time a multiple number of cross- overs and they indicated that they had never been advised by RT 18 2/16/84 a the City Manager's Office during the RFP stage or otherwise of the pendingness of these RFP proposals, nobody had ever gone over to the Public Works Department from the City's staff standpoint and asked what's in the hopper, what is happening, are there any rehab areas or whatever. Just the rehab areas, the idea of an on -going rehab area was never contemplated in the RFP. The Public Works Department after the fact began to see these cross-overs and began to evince some concern and we started to have conferences with them but never on the question of eliminating completely cross- overs, it was a question of how could we cut down the num- ber. Mr. Plummer: Senator, were you not mandated in the fran- chise to have the City 100% wired within three years? Senator Myers: That is correct. Mr. Plummer: Were you not in the franchise required in the first three years to spend $45,000,000? Senator Myers: That is correct. Mr. Plummer: In the RFP it spoke to a 700 mile system. Senator Myers: That is correct. Mr. Plummer: Was there ever at any time during negotiation before the final signing of the franchise any discussion, either written or oral, relating to the size being larger than what was in the REP? Senator Myers: No. Mr. Plummer: Thank you. Mr. Mayor I have no further ques- tions. Senator Myers: May I, Mayor, with your consent add some- thing to clarify what both you and Commissioner Plummer have said? Mayor Ferre: After all the members of the Commission have had an opportunity to ask whatever questions they have on this issue. Do you have any questions on this issue? Mr. Perez: I think that I have received an answer to all the questions but anyhow, I would like to emphasize some- thing. In accordance with your statement I think that at the time that the RFP was issued they didn't have any speci- fication about this item, that's what you tried to emphasize today. Okay? I would like to listen today to the Manager's explanation and I think that that's all that I have. Mayor Ferre: All right, I'll reserve time for Commissioner Carollo when he returns. Commissioner Dawkins? Mr. Dawkins: I've got one question and a statement. Those of us up here and in here who are accustomed to construc- tion, you know that change orders come in daily. So really and truly it's no amazing feat that you may bid on a con- tract that may go up or under your estimate. Now, I would like to ask, in your main plant construction, how much is it completed - the engineer, whoever he is out there? Senator Myers: In area miles we are 90% stranded, where that means that the strands that hold the cable are in place. Mr. Dawkins: Okay. And how much was budgeted, Senator, for that? RT 19 2/16/84 Senator Myers: I don't know how much at this point, I can find out in a moment. Mr. Dawkins: $43,000,000, I'll tell you. And now you have spent $17,300,000. Senator Myers: No, no. Commissioner Dawkins, we are 90% stranded, those are the routing lines that are established. We are 80% cable lines up. We are 75% spliced which means 75% substantially completed. You know, you construct a cable TV system in phases. We are stranded 90% which is the basic routing of the system having been established. What has been spent to this point I do not know, but there are substantial dollars that have to be spent to finish the splicing. Mr. Dawkins: Okay, well, staff, when you sit down with me have the following information for me, please: What part of their main plant is constructed, what was the budgeted amount for that to be done, what they have spent up to this point, subtract that from the original amount and tell me if that equals $15,000,000 or not where they could very easily string the wire that is in question. That is what I would be looking for from you. Thank you. Mr. Plummer: May I ask another question? Senator, is it correct that as this work progressed that a City inspector or monitor came out and approved it before it was put into operation? Senator Myers: No, I don't think it would be fair to say that they came along along the way, they saw the construc- tion, they knew it was going on but in this instance with the cable TV construction license, once they gave the notice to proceed, that was it. The formal notice to proceed was it. There weren't subsequent periods, Mayor Ferre alluded to that, there were not subsequent formal periods thereafter where we had to submit and get approvals of pieces of the plant. Mr. Plummer: That's not what I'm saying, and maybe I'm mistaken by trying to ally this to construction. When you want to pour concrete, you have an inspector come out and he inspects your foundation, he certifies. Then, before you get a C.O. that this amount is approved and you can proceed further - excuse me, not C.O. but there is inspectors that you call who come out and say Okay, you did what you prom- ised, you're in accordance with the plan submitted. Was that ever done by the City in any way, shape or form? Senator Myers: Okay, I'll let Joe answer that, the engi- neer. There were anchor drop permits given but anchor permits... Mr. Plummer: Kenny, I don't know what an anchor drop is, to me you drop an anchor when you're fishing. Senator Myers: But in fairness to the city, we cannot say that that was, we're not alleging that that was estoppel. There were hundreds of anchor permits that were issued by the City along the way. Mr. Plummer: At any time did any City department come out during this period between April of 82 and August of 83 to inspect the work you were doing was proper? Mr. Brannan: Yes, the CATV committee of the City of Miami responds to complaints and so on and so forth, they now have in place inspectors. I do not know whether the City of HT 20 2/16/84 0 Miami had inspected or now much of the plant that they inspected but they did from time to time call us and ask us to fix certain violations through the year. But there is no set inspection, if that is your question. Mr. Plummer: Thank you. Mayor Ferre: Joe, I reserved time for you if you want to ask questions on this issue. Mr. Carollo: Mr. Mayor, on this particular issue I would like to compliment you on asking such fine questions. In all frankness, I think that all the questions that any of us really had in mind or needed to be asked on this particular issue you have asked. The questions that I have are to staff to see if any of the answers that Mr. Myers has given are incorrect. If that is the case, then I'm going to have further questions for them. So, if we could get someone from our staff.... Mayor Ferre: I'm going to do that right now, but before that, Senator Myers has a moment of discussion. Senator Myers: Would you let me clarify.... Mayor Ferre: I will in a moment, I want to make sure that everybody has now had an opportunity to ask all the ques- tions they wanted of the cable company. Are we finished with questions for now? Mr. Plummer: For now, yes. Mayor Ferre: Well, I'll recognize you for further questions as we go along. Senator Myers. Senator Myers: Mayor, permit me for your benefit and the Commission's benefit to clarify some of the things that have gone along as far as the approval process is concerned. When that first system design plan was submitted, it is not significant that it only covered the initial 5 miles of the phased construction because, as our consultant will confirm to you; inherent on that design plan, implicit in it is shown the basic design, distribution design plan for the entire system. It could be no other way and that was the construction, the distribution lines on the one side of the street. The City's consulting engineers well understood that, they understand that as part of the basis in the industry for looking at a design plan. It didn't make any difference that it was the first five mile stage. Mayor Ferre: All right, Senator, I did think of one more question which I had forgotten to ask dealing with banks and bank loans. You did receive bank loans on this contract, is that correct? Senator Myers: Yes, we did. Mayor Ferre: Was the bank loan, was the loan, I'm sure that the contract and the documentation was in the loan document. Senator Myers: Yes, it was. Mayor Ferre: Are there any references in the bank document other than the City documents that specify the length of the wiring contract or the numerical amount? Senator Myers: Yes, there is. Mayor Ferre: City? It is in the loan document other than the RT 21 2/16/84 0 Senator Myers: The loan agreement, it is alluded to that there will be approximately 700 miles of system. That is in the loan agreement. Mayor Ferre: Did the City of Miami see the loan document? Senator Myers: They absolutely did, they reviewed them all. Mayor Ferre: Did it have anything to do with the approval of it? Senator Myers: Yes, they absolutely did. Mayor Ferre: What did it have to do, please? Senator Myers: The Cable TV Ordinance required us before obtaining the loan, before any bank could acquire security interest in the property to come before the Commission and have all the loan documents approved and the loan approved. We did that. Mayor Ferre: Was the loan document brought before this body? Senator Myers: Absolutely. Mayor Ferre: Did the City Manager recommend the loan docu- ment? Senator Myers: Yes, they did. Mayor Ferre: Did the City Attorney recommend it as to legal form? Senator Myers: I suppose so, I really don't think that was in his jurisdiction, but he did not object to it. Mayor Ferre: Absolutely, it is always within his jurisdic- tion when we vote on issues of major impact, the City Attor- ney has a fiduciary responsibility to object if something is legally wrong. Senator Myers: They did not object to the form of the loan documentation. Mayor Ferre: So did the City of Miami Commission vote on the loan document? Senator Myers: Yes, you did. Mayor Ferre: Was it a unanimous vote? Senator Myers: Yes, it was. Mayor Ferre: Okay, I have no other questions. Mr. Plummer: Let me ask a clarification because I think may be here in an error has been more truth than anything I have heard today. Mr. City Attorney, I've got your copy, do you have another copy? Mr. Garcia -Pedrosa: Yes, sir. Mr. Plummer: Direct your attention to page 13, Article VI, Construction, Operation and Maintenance of System, Part (b). Mayor Ferre: Is that the ordinance? RT 22 2/16/84 Mr. Plummer: Yes, sir. Part (b), would you explain that to me where it states, "...within 60 days after the effective date of this ordinance, the City Manager shall report to the City Commission on the status of the pain required..." Senator Myers: Of the what? Mr. Plummer: I think there is more truth in that error than what is, in fact. Mr. City Attorney, is there an error or is, in fact, it the truth? Mr. Garcia -Pedrosa: I'm being advised to say both. Mr. Plummer: I'm advised to agree with you. Mr. Garcia -Pedrosa: I think the answer to your question is that there is a typographical error or a printing error. Mr. Plummer: I wonder if there is, but I'll accept your answer. Thank you. Mayor Ferre: Senator, I want to give to you and then ask you to put this into the Clerk's file a document dated April 13th and it is a signed contract between, I mean it is a signed document from Paul S. Ryerson to Howard V. Gary, City Manager, City of Miami, April 13, 1982. Miami Cablevision Financial Design and Construction Plan. It reads as fol- lows: "This is to confirm that it is the recommendation of Arnold and Porter and that of our technical consultant, Atlantic Research Corp., that your approval subject to certain conditions to which Miami Cablevision has agreed to orally of the amended plan submitted by Miami Cablevision pursuant to Section 210, 301 and 601 of Ordinance No. 9332 would be consistent with the responsibilities placed upon the City Manager of the Ordinance. We, therefore, recommend approval of the plans." "I will presently provide you with a letter which will describe in detail the conditions for approval to which miami Cablevision has agreed. Approval Granted a per memo- randum: Howard V. Gary, City Manager, 4/13/82." I'm going to give that... You have a copy of it? Senator Myers: Yes, I was going to pass it out. Mayor Ferre: All right, would you give it to the Clerk for the record. Now, in that specific letter of agreement there is mentioned.... The receipt of that, it was signed April 139 1982. Now, is this the document that I previously asked you about that you received approval of? Senator Myers: Yes, sir. Mayor Ferre: Okay, thank you, sir. Mr. Acting City Manag- er. Mr. Rosencrantz: Mr. Mayor and members of the Commission, many of the questions that were raised this morning I think have been answered and there is before each of the Commis- sioners a packet of data which was distributed some time ago which documents those answers and documents many events that have transpired in reference to the Cable Television. Mayor Ferre: Mr. Manager, for the record, is that this black book? Mr. Rosencrantz: Yes, sir. Mayor Ferre: Thank you, sir. RT 23 2/16/84 Mr. Rosencrantz: I think in order to help the process along at this point, it may be appropriate if the administration were to go back through some of the questions that were raised and respond directly to those questions. We can either do that by you restating those questions or, if you care, we will have the Cable Television Coordinator make a general opening statement which I think probably will answer a good many of those questions. We also have today most of the staff people from the administration that have been involved• in Cable Television so I think we should be able to provide most of those answers. So I will ask at this time that Merry Sue Smoller start to respond to your questions and should there be additional information needed as she goes through, we'll attempt to provide that. Mr. Plummer: May I ask one question first? Ms. Smoller, when were you hired by the City? Ms. Merry Sue Smoller: I was hired October 26, 1982. Mr. Plummer: 1982, that was approximately 14 months after the franchise was awarded. Ms. Smoller: That is correct. Mr. Plummer: Thank you. Ms. Smoller: I would like to take this opportunity to start our initial response very briefly. There have been many answers given to the numerous questions that the Commission has posed. I would, first again, like to refer to the report that staff has prepared and was transmitted to you. I think that the chronology, the documentation, the backing for the City's staff recommendation to the Manager is all contained within that report. Basically I would like to introduce to you the team of people who have been working, and as the Manager pointed out, have been involved from the very first although I have not myself. Here to help respond to your questions, and we would very much like the opportu- nity to respond to exactly the same questions, we think we can't wait for writing but we sure would like the opportuni- ty to respond in writing but we're here to respond verbally as well. We have Ms. Stephanie Phillips of Arnold and Porter who was here during the licensing procedure. We have the staff of the Department of Public Works that has been intimately involved from the very very first in this ques- tion - Mr. Parks and Mr. Cather, Clark Merrill is here and Dale Kelchner who you may not know but is the City's CATV Engineer and is part of staff and has had extensive experi- ence for many many years with one of the largest cable companies in the country in construction design and mainte- nance and operation of cable systems, Dale Kelchner. Also, we have.... Mr. Plummer: Excuse me, when did he start with the City? Ms. Smoller: Dale Kelchner started with the City in Novem- ber of last year. Mr. Plummer: 1983? Ms. Smoller: 1983, that's correct. Mr. Plummer: That was after the order was given to stop. Ms. Smoller: That is correct. But in going through and preparing the report for you, sir, Mr. Kelchner has been very much involved and his expertise has been helpful. RT 24 2/16/84 4}^„ �:rF aX.?�":�ltl:... iR.�11�R1eRd1�IRiIgAP 1AR .IIR� � Mr. Plummer: Excuse me, may I ask another question? Did the City at any time prior to the hiring of this gentleman have on staff a position which he is now presently serving? Ms. Smoller: No, the City did not. However, sitting next to Mr. Kelchner is the City's consulting engineer, Mr. Dennis Zimmerman of Warren Brown Associates. Mr. Zimmerman began as consulting engineer in April of 1983 to help with the review of engineering documents and very shortly after that title, in fact, I think it was in April, met with the Department of Public Works personnel regarding this particu- lar issue and that was in April of 1983• Mr. Plummer: Chronologically, Mr. Zimmerman came on approx- imately one year after the first starting to lay of cable, as a consultant. Unless these figures are wrong, the first plan was submitted in April of 82. Ms. Smoller: I believe that the shading of interpretation becomes very important here, sir, and as far as construction of the cable system, construction of the cable system really got under way in a major way in April of 1983• It did start before, there is no question about that and the City's staff would not deny that, but in a major way at that time... Mr. Plummer: I'm sorry. Mr. Myers has stated that the City gave in writing an order to proceed approximately April 13, 1982. Who was on board with the City at that time as an engineer? Ms. Smoller: There was no, other than the Department of Public Works personnel, of course, in the Office of the City Manager there was no engineer. However, the firm of Arnold and Porter that was hired as consultants assisting to the City had an engineer, Mr. John Bowman of Atlantic Research Company that acted as consulting engineer. Mr. Plummer: Did he go through the.... Excuse me. Do you agree at one point, for this round of questions, that the franchise received an order from the City to proceed on April 13, 1982? Ms. Smoller: Yes, that is correct. Mr. Plummer: Okay, then back to my question. On April 13, 1982, when the original plan was approved by the City, who was on City staff of anyone who made that original approval? Ms. Smoller: Do you mean as engineering consultant to review? Mr. Plummer: Yes, I would assume an engineer would review a plan of lines. Ms. Smoller: Yes. It was Mr. John Bowman of the Atlantic Research Corporation which is subcontracted to Arnold and Porter. Mr. Plummer: The question is did he review those plans? Ms. Smoller: He did review the plans, yes, sir. Mr. Plummer: He was giving then input for the City to proceed with giving a letter to proceed, is that correct? Ms. Smoller: That's correct, and he raised a number of questions. I do wish to interject at this point... Mr. Plummer: Please, take all the time you want. RT 25 2/16/84 Ms. Smoller: And I would like to ask our consulting engi- neer and members of the Public Works Department to respond at this point. This is where the question, you know, and there are differentiations of opinion and shading. This is where this really comes in. The question is what was ap- proved, what approval was given in April of 1982. Mr. Plummer: Excuse me, I just asked of you the question. Ms. Smoller: I wasn't here. Mr. Plummer: No, I'm asking right now of you. You agreed that the Cable Franchise received an order to proceed on April 13, 1982. Ms. Smoller: I do, and that is a matter of public record. Mr. Plummer: Okay, fine, we don't have copies of it in front of us. All right. And you are, for the record, stating that a consultant to Arnold and Porter, you are stating for the record that prior to the City giving that order to proceed that Arnold and Porter's consultant did review, did go over it and obviously said to the City, you can tell them to proceed? Ms. Smoller: Based on what he reviewed - and that's very important, what did he review. Mr. Plummer: Yes, and my understanding is what he reviewed, the initial was 5 miles. Ms. Smoller: That's correct, that is my understanding. Mr. Plummer: And in that 5 miles it did show cross-overs. Ms. Smoller: That is not my understanding. Mr. Plummer: Okay, then tell me what is your understanding. Ms. Smoller: There, I'll defer to engineers, if you please. Mr. Plummer: He was not here. Ms. Smoller: They reviewed the same plans that he reviewed, the City has copies of them. Mr. Plummer: All right. Ms. Smoller: Dennis, Dale. Mr. Plummer: I'm assuming that these plans were submitted and are a part of the record. Ms. Smoller: Oh, yes, in fact, they are very much a part of the record and we have them. Mr. Dennis Zimmerman: For the record, my name Dennis Zimmerman with Warren Brown Consulting Engineers, Harrisonburg, Virginia. Mr. Plummer: You are on a contract to the City? Mr. Zimmerman: That's correct. Mr. Plummer: You still are? Mr. Zimmerman: I still am. Mr. Plummer: Even though we have an engineer in house? RT 26 2/16/84 Mr. Zimmerman: That's correct, as a consultant. After reviewing the same plans that were reviewed by Arnold and Porter and Atlantic Research, it is not conclusive that the system, it is a very small section of the system. There is no way that any engineer could conclude that the design of the plan was going to continue from there on in any particular manner. RT 27 2/16/84 Mr. Plummer: Sir, my question, in the initial plan of five miles, was there cross over shown? Mr. Zimmerman: Yes, there was. Mr. Plummer: There were. And you concur that in that plan it was submitted to the consultants of Arnold and Porter that was part of the input to give them a letter to proceed. Mr. Zimmerman: That's correct. Mr. Plummer: The obvious question has to be in all of these 40,000,000 questions, if in fact the City felt that they were doing wrong, why in the hell did they wait until August of '83, after 400 miles had been strung. You know, the obvious to me what the obvious answer here, this City was derelect,if in fact that was the case. Why the hell did they wait until August of '83? Please tell me. Ms. Sue Smoller: Commissioner Plummer, the City didn't wait. There, on a number of occasions, which are documented in the chronology in your workbook prepared by Public Works. On numerous occasions there were meetings with the company, City officials talked to people in the company regarding this question. To go back to the R.F.P... Mayor Ferre: No, Sue, I have to ask the question, when was the first time there was discussion and when was the first time they were given an order to cease and desist and do it the right way? Ms. Smoller: It was first called to the attention of the company on December 30, 1982. Mr. Plummer: That is eight months after they had started construction. Ms. Smoller: At that time the company had five miles of plant that it could market that had been approved and accepted. Mr. Plummer: You know, Father Gibson, God rest his soul, had one statement that obviously you all people never learned, and lawyers make millions off it, Mrs. Smoller, officially Father Gibson used to say, "Black might lie to White and White might lie to Black, but black and white, the written document doesn't lie." Mrs. Smoller, on what date did you give them an official document telling them to cease and desist? Ms. Smoller: Myself? Mr. Plummer: The City. Ms. Smoller: The City, the letter to Miami Cablevision from William E. Parks, regarding utility clean-ups standards of the City contain a map showing the east Allapattah highway improvement.... Mr. Plummer: Mrs. Smoller, on what date...? ' Ms. Smoller: December 30, 1982. Mr. Plummer: Thank you. Mayor Ferre: December what? Mr. Plummer: 30th, 1982, which she is contradicting Senator Meyers, who said it was received on August of 1983. Mayor Ferre: Could we have a copy? 28 2/16/84 sl t Mr. Plummer: So, we need copies then presented to this Commission of who is telling us what, who is doing what to whom. Ms. Smoller: Commissioner Plummer, that was the first notification, official letter. Mr. Plummer: You have a copy? May I have a copy, please. Ms. Smoller: There is a copy in your workbooks, sir. Mayor Ferre: Ms. Smoller, is the letter dated December 30th addressed to Joseph Brannon of Miami Cablevision.... Ms. Smoller: Yes, that is correct. Mayor Ferre: ....signed by Donald W. Cather, and has a JHS signature underneath, and it reads in the first paragraph: "Dear Mr. Brannon, Highway improvement program - utility clean up for our December 21, 1982 meeting...." and it ends: "....we look forward to working with you. If you have any questions, please call Mr. William Mackey, Highway Engineer." Is that the letter? Ms. Smoller: The date on that letter is, sir? Mayor Ferre: I'm going to pass it over to you, so you can look at the letter. Ms. Smoller: There is a chronology.... INAUDIBLE COMMENTS NOT ENTERED INTO THE PUBLIC RECORD. Ms. Smoller: Yes, that is the letter, sir. Mayor Ferre: Sue, the letter I have just read the first to the last paragraph to you is that the letter that you claim is a cease and desist letter? Ms. Smoller: On the official term of the word cease and desist, no, that letter came in August from Don Cather. The Public Works Department tried to avoid and stated on many occasions that they were trying to work something out with the company. Mr. Plummer: The question that Commissioner Plummer asked you is when was the first letter written to cease and desist, as he said in black and white. Your answer was December 30th, 182. Ms. Smoller: I misunderstood your question, sir. I would like to amend, if you take the official term cease and desist, that letter.... Mr. Plummer: Excuse me, let's amend it to the point that my understanding according to the ordinance that you write them such a letter, and they have 30 days to respond from that date; and if not, then the penalties are imposed. Ms. Smoller: No, sir, that letter was written...I was given a copy of that letter by the Department of Public Works. The letter citing a violation, and that letter was written by Public Works in August 1983.... Mr. Plummer: August of 183. Ms. Smoller: Yes. Mr. Plummer: That is the first letter telling them officially to stop. Ms. Smoller: Cease and desist. 29 sl 2/16/84 ' L:.'!, F Mr. Plummer: Because this December 30th, '82 doesn't tell them to stop. Ms. Smoller: No, it says let's try and work something out, so that we don't have to do this. Mayor Ferre: Does the letter specifically mention the mid -street crossing? You have it in front of you. Mr. Randy Rosencrantz: The letter is in the packet which you have there. It is part of attachment 2-b. Mayor Ferre: Yes, I got it out of there and gave it to Sue for identification, and we have now established and she said she wanted to amend her position and correct it, and it does not say cease and desist. Ms. Smoller: Yes. Mayor Ferre: But now I ask a second question, related, does it in any way refer... is there any statement in that letter...? Ms. Smoller: Yes, there is. Mayor Ferre: Why don't you read it into the record, so we have it. Ms. Smoller: "As discussed in our meeting, we expect Miami Cablevision to abide by the utility clean-up standards that the Department of Public Works establishes for rebuilt roadways. In most highway improvements, we require F.P.&L. and S.B.T. to reset the utility poles at the back of the sidewalk, and at the same time achieve a general clean-up of the facilities. Area crossings of our roadways are kept to a minimum. We also take this opportunity to remind you..." Mayor Ferre: To remind you of what? Finish it because we are putting it into the record. "We also take the opportunity to remind you...?" Ms. Smoller: "We also take this opportunity to remind you that the sidewalk curb and gutter pavement improvements required by the City, as part of the remodeling of your headquarters building, has still not been completed. A final certificate of occupancy will not be issued until these improvements are completed to our satis- faction." Mayor Ferre: Well, that is another subject. Ms. Smoller: Yes, at that time also in the first paragraph: "As per our December 21, 1982 meeting, attached is a list of our proposed highway improvement program for the next six fiscal years. I am also attaching sheets showing highway projects that have been completed during the past five years and those that are currently in construction." Then it continues on with the second paragraph that they expect Miami Cablevision to abide by the same standards as the utilities. Mayor Ferre: O.K., you started to make a statement and then we... and Plummer asked you some questions and I jumped in that with some other. So why don't you go ahead and see if we can conclude your statement. 30 sl 2/16/84 Ms. Smoller: In December 1982, the Public Works Department -and Public Works is here and can actually give a better recounting of this procedure than I can, and answer your questions- tried to avoid a cease and desist situation. There were a number of meetings, any number of meetings with the company, until the final cease and desist letter was issued in August 1983. The penalty letter, the violation sequence leading to the penalty letter that you refer to did not occur until recently in that sequence. A number of contentions have been made by the company that we would really like to have the opportunity to respond to. Some contentions have been made that I personally held opinion that I didn't. One of the contentions is that the R.F.P. did not contain a statement. The R.F.P. did have the ordinance in it that contained exactly the same provisions that now the City is contending that they are now in compliance with. INAUDIBLE COMMENT. Ms. Smoller: Yes, the crosswiring, it was in the R.F.P. It was part, it was included in the R.F.P. Mr. Plummer: Excuse me, are you saying for the record that there was a prohibition against crosswiring in the R.F.P. Ms. Smoller: The same ordinance citations that are cited not compliance were a part of the R.F.P., that is correct. Mr. Plummer: That is in this document? Ms. Smoller: Yes. Mr. Plummer: What page? Ms. Smoller: In the ordinance and the R.F.P. I have a copy of the R.F.P. with me. Mr. Plummer: Would you identify the page and forward it to me, please. INAUDIBLE BACKGROUND COMMENTS NOT ENTERED INTO THE PUBLIC RECORD. Ms. Smoller: That is in ordinance 9223, which was the enabling ordinance prior to the license ordinance; then those provisions were incorporated into the license ordinance. A second contention that the City has made is that they were unaware. It's customary practice in the industry, and Mr. Kelchner and Mr. Zimmerman can both testify to it that in a franchise situation -I have been involved in a lot of franchising situations- it is customary for companies to seek out the Public Works Department to make sure that they know if any kind of improvement projects of this sort... If you can get that kind of advantage showing that you know it is an advantage to the City, so this is very unusual that the company did not contact the Public Works Department to find out of any of these projects. Contention has also been made that in no other city exists anything of this kind. I don't know whether or not that is true. I do know that many cities have street improvement programs. For example, Miami Beach, to eliminate utilities and wires going across the streets, require everything to go underground, which is far more costly than anything proposed here. Mayor Ferre: That isn't the question. If you want me, I'll repeat the question to you. Ms. Smoller, do you know of any of the major 50 franchises in the United States of America, that'requires franchisees or licensees to do what you are asking ... you, the City of Miami... are asking this license holder to do? Ms. Smoller: I think it is debatable, Mayor, of what the City is asking Miami Cablevision to do. That is very simple, you know, we go to the heart of it. 31 sl 2/16/84 Mayor Ferre: Madam, I will be more explicit in my question to you, like I was to Senator Meyer. I will be very, very explicit. Do you know of any city in the United States of America where there is any cable licensee or T.V. franchisee that requires or that prohibits mid block crossing of C.A. T.V. wires crossing the street, or that conversely demands that all C.A.T.V. wires go parallel along mid block right-of-ways so as not to cross the street other than at the point where the alley reaches the end. Ms. Smoller: Mr. Mayor, virtually all ordinances and franchises in the United States require the cable system to run parallel to the utility wires. Mayor Ferre: All do. Ms. Smoller: Virtually all. Mayor Ferre: So there is no case anywhere in the country where any cable T.V. is allowed at mid -street? Ms. Smoller: I couldn't... that is not the same question. I couldn't say yes or no to that, sir. I don't have that information. Mayor Ferre: Before we conclude this, I would like to know from you the other 50 cable T.V. crossings are allowed to cross at mid -street, yes or no. Mr. Gary: I'm back, Mr. Mayor, the staff has told you that there are cases where they are not permitted. I'm sure that you can find cases where they are permitted. I think.... Mayor Ferre: I'd like to know of one city where it is not permitted as a general rule and where the cable television crossings have been totally done along mid -property line easements. Mr. Gary: I think the thing you have to look at, Mr. Mayor, is what we are trying to accomplish. I think a good question would probably be in what city, where you don't have all the crosswires. I think we can answer that for you. Mayor Ferre: O.K., I'd like to know what cities do not have mid -block crossings. Ms. Smoller: Mr. Mayor. Mayor Ferre: Just one. Ms. Smoller: Coral Gables. Mr. Plummer: Yes, everything is underground. Ms. Smoller: No, it is in the back of the lot easement. That is how that city decided to clean up its streets. Miami Beach decided to clean up its streets by requiring everything to go underground. Different cities require different things. Mayor Ferre: So your answer is, then, that there are cities where there is no mid -street crossings. Ms. Smoller: That is correct. Mayor Ferre: Coral Gables is one that you cite and Miami Beach is another. Ms. Smoller: That is correct. Mr. Plummer: And my neighborhood. Let me tell you, you don't know this, but in my neighborhood, we have no overhead wires. In my neighborhood everything is underground. I am told by Miami Cablevision, much to my chagrin, that I probably will be the last customer hooked up, because we are underground and don't go overhead. sl 32 2/16/84 0 Mr. Gary: Mr. Mayor, if I can make a few comments. In terms of trying to compare us with other cities, you probably recall that nationally we have been recognized as the firm with the best franchise, in terms of insuring that we get all the quality service and that things are done properly. I think it is also important to note, Mr. Mayor, that this requirement, which is a part of the R.F.P., as well as the ordinance, is something that we are requiring of Florida Power and Light and Southern Bell. To now exclude another utility or another person that utilizes the utility, you in essense -and I am not a lawyer, but I can tell you that- those firms are now saying, "You are not going to discriminate against us either." Which means that what we have cleaned up is going to get worse, and what exists now is going to even get worse. Iad also like to say, Mr. Mayor, members of the Commission, that from my discussion with staff and also my review of what has been happening in the City, it appears that in certain parts of the City, there is really no regard of how you string these wires. I'm talking about some of the poor neighborhoods, as opposed to in some areas, there is some concern. I think we need to have some consistency, as well as some concern about our environment regardless of where or what neighborhood you may be in, in terms of stringing those wires. I think those things ought to be taken into consideration, when we talk about any decision regarding crosswires. Mr. Plummer: Mr. Gary, prior to your arrival, and I would ask you to speak to the issue, it was indicated that in the utility franchise of Florida Power and Light and Souther Bell, that it is called for and clearly spelled out that they are required to do that. Mr. Gary: Required to do what? Mr. Plummer: They are required to comply with the City's demand of the poles. The issue here today is we find nothing in this document of requiring that of the cable company. I don't think there is a discriminatory clause in which the two, Florida Power & Light and Southern Bell can say, "Well, if you don't do it to them, we're not going to do it." That's in their franchise. What we find, or what I find lacking in this franchise is a demand made that it must be in there. That there was no order to stop, after 400 miles of a 700 mile system. That until that point was accomplished, there was no official order from the City to stop. Mr. Gary: If I may, I'd like for Public Works to first to respond to the first part of your question. Let me respond to the second part of your question. If I cited this cable company for all of the violations that have been in existence since they have had their license, Commissioner, I can tell you they would have been here a long time ago complaining about fines. Now, we have made an effort to work with them. We recognize that they are the operators and we are the monitors, but I can tell you right now that in terms of operation, I wonder who is operating and who is the monitor for the mere fact that they can't even do a simple affirmative action plan. They can't give us reports that are accurate, which we had reason enough under your ordinance and the responsibility given to us to fine them then. We have been trying to work with them. Let me just finish. Mr. Plummer: Let me, so I don't get you crosswired with the seat that is empty. He has brought all of that out. He has said that we are going to discuss that in May. The Mayor has asked from the beginning that today we speak to just the two issues. Mr. Gary: Yes, but you are putting me in a Catch-22'situation. You are using a reason for this particular incident, which should be discussed at the next incident, which is the overall evaluation. That is why didn't you cite them earlier. I guess what I'm saying to you is that we've been trying to work with them, and if we had cited them on every violation, it wouldn't be fair to them and it wouldn't be fair to us. We try to be fair. But when it gets to the point where it becomes serious and on -going, we have no alternative but to do that. Let me let Mr. Cather, if I can, to explain the crosswire. 33 2/16/84 sl 0 6 Mr. Donald Cather: My name is Donald Cather, Director of Public Works for the City of Miami, Florida. First of all, I would like to set the stage, we are talking in terms of three major items. First of all, we have the basic installation of the cable T.V., which is one part of their cost. The second part of their cost is the stringing of their actual transmision lines and poles supplied by Southern Bell or by Florida Power & Light. Then we are talking of a third phase, and that is what is called the customer drop. That is similar to when a tele- phone company runs from their telephones wires down to the house or when the Florida Power & Light comes off their power source and goes to the weather head on the building. What we are objecting to principally is the customer drops crossing the streets unnecessarily because of inadequate planning, in my opinion, on the part of the cable T.V. company to provide service cables providing service on both sides of the streets where Southern Bell and Florida Power & Light have poles available. We have also requested that whenever public easements are available in the back of the lots, that they use those in the same manner as is used by Florida Power & Light and Southern Bell to distri- bute power and telephone service to our customers. We have in the City of Miami, over the past four years, spent $40,000,000 in highway improvements. That is at original cost dollars, not at replacement cost dollars. Mayor Ferre: Our money or Florida Power & Light's money? Mr. Cather: No, we are using our money. I'm talking about $40,000,000 on highway improvements to clean up the streets, to better them. We have been actively engaged in what we call a utility clean-up process. Part of this process is to get Florida Power & Light and Southern Bell Company to eliminate as many crossings from intersection to intersection as possible. Mayor Ferre: With their money or our money? Mr. Cather: Wait a minute. The money that is being used for them to relocate the existing utilities is their money. The amount of money that we are spending to improve the streets, the sidewalks, the curb and gutter, is our money. They are required under our franchise, anytime they are.... Mayor Ferre: Mr. Manager, you,aere unfortunately awav for the first hour and fifteen minutes of this discussion. So you missed a series of questions and answers that went on here. The thing that concerns me in this whole process, and I limit it just to the question of CATV mid -street crossings is whether or not...I'm not questioning what is aesthetically right or wrong. Obviously, all cables should be underground and we should have done that a long time ago, and we should be doing it now, and I am for that. My series of questions didn't deal with what I want, because if you...I would be happy to vote for a process in which all cables over the next ten years are put under ground. I'm all for that over the next twenty years or ten or whatever it is. That's not what I'm asking now. What I was trying to establish and the reasons I asked Senator Meyers and the company was whether or not indeed in the R.F.P. in the bid process in the document and in the loan document, there was any clear cut substantiation as to what the City expected the company to do. As they answered the questions, Senator, you will forgive an oversimplification of an hour of questions, as I understood it, one, there is no record that specifically requested them to do this. Two, they did submit plans; we did approve them. Three, the loan document specifically stated this, and we approved that. They came back to us for the loan document, which we negotiated back and forth. Remember that whole crisis bit? That loan document, that's all delineated. The key, point that is delineated is the question of 700 miles of wires. Now what is being requested, is an additional 350 miles of wire. This is what they answer. That instead of $45,000,000, which is what they were prepared to spend, and now have to spend an additional fifteen to comply which brings it up to $60,000,000, that the banks would not permit it. That wasn't part of the bank loan document; that wasn't part of the agreement; that isn't. So the question is this. When did we ask them to do this? Was it based on a written document. When did we stop them from doing what they were doing, which we now say is wrong, but they have already strung 400 of the 700 miles up. At what point did we stop them? At what point did we correct it? These are the questions that we are now looking to the Administration to answer. sl 34 2/16/84 0 sl Mr. Gary: Mr. Mayor, I understand you are trying to understand what we did and why we did it. I think it is important though that I inform you of some of the comments in terms of what they are contending. First of all I think we need to ask the question, did the loan document actually include that statement. Secondly, if it included it, what was the intent of this Commission when it approved that loan document. Secondly, in terms of their contention that $15,000,000 had to be expended additionally on cable to correct the crosswiring, I think the concern needs to be raised as to what is the requirement of the ordinance, which if I recall correctly is up to $45,000,000. You have to take that into consideration, Mr. Mayor, with that they have already expended, what is going*to cost for them to complete the City, and whether or not that equals $45,000,000. Those questions have to be answered by the firm as well as us. Mayor Ferre: You see, in the conclusion to the legal...I asked the department to give me a legal question, which I am going to ask them to put on the record. But here is what they say, Mr. Manager. In short, the enforcement of the requirement of parallel instalation is appropriate, provided the conduct of the City and its communications with the licensee of which I have no first hand knowledge did not amount to a waiver of the requirement of the estoppel of the right to enforce it. So he says, "Yes, you have it, provided" and he has no first hand knowledge that we do not give them a waiver of the requirement or an estoppel of the right to enforce it. Mr. Gary: He's not making a conclusion now. He's asking a question. Mayor Ferre: He says he doesn't see any reason why you can't do what you want, as long as we haven't given them a waiver. Mr. Gary: Exactly. Mayor Ferre: However, he is a good Harvard lawyer. He is a Harvard lawyer on the one hand. On the other hand, I'd like.... Mr. Gary: A good legal opinion. Mayor Ferre: I'd like ... all these Harvard lawyers are all one handed. I'd like to see one of them that only has one hand. It goes like this. He says, on page 2, the request for proposals did not contain a prohibition against cross connections, but it did include a copy of ordinance 9223, whose section 10.553-b states that all cables and wires shall be installed parallel to the existing telephone and electric wires whenever possible. That is my stress. Then it says ordinance number 9332 does not require construction on both sides of the street or the exclusive use the rear easements. But then it goes on in four with questions that are raised and it says whether approval was given to the licensee prior to the commencement of construction for cross connections... these are the questions that are raised... whether the issues of cross connections was first raised by the City more than a year a half after the license was awarded as the licensee contends. So, I'm going to first have to ask the City Attorney to render an opinion as to whether these questions that he himself raises is in fact de facto a waiver of the requirements of rights to enforcement. He goes on to C. whether the aforementioned highway improvement program was discussed with or made known to the licensee, if so the dae of such discussion or communications. These matters are relevant to the issue because under established principles of waiver and estoppel, they be answered favorably to the licensee's position, and the City might be estopped to require the parallel wiring. If on the other hand, the licensee cannot demonstrate, that's them, that the requirements in section 605-b of ordinance 9332 were waived by the City, or that the City through its convict is estopped to enforce them, then I can find no basis for denying enforcement of parallel installation of cables are wires. On the one hand they have to show that you, in fact waived; on the other hand, you have to... Therefore, Mr. City Attorney, your legal, on the one hand and on the other hand answer requires further clarification in that... and it may not be today, it may be in the future, from the information 35 2/16/84 Mayor Ferre (Con't): that is available to the Commission, we need to know whether or not in fact there has been a waiver since it has taken a year and a half to notify the licensee of the matter in _ question. Mr. Plummer: May I go back for a point of clarification. Mrs. Smoller, let me ask you again the question that I asked you before. Ms. Smoller, I asked you before did the R.F.P. contain a prohibition against cross connections. Ms. Smoller: The R.F.P. notified all applicants that the construction of the cable system must be parallel to the utility lines and that cable facilities must be moved at licensee expense to accomodate public improvements. Mr. Plummer: Mrs. Smoller, again, did the R.F.P. contain specific wording that prohibited cross connections. Ms. Smoller: Yes, it is our interpretation that it did. Mr. Plummer: And you are aware of the interpretation of the City Attorney who says you are wrong. Ms. Smoller: I am not aware that he said that we were wrong. Mr. Plummer: Have you ever consulted with the City Attorney? Ms. Smoller: No, I haven't, sir. But the Deputy City Attorney has worked very closely throughout the whole procedings with me, yes. Mr. Plummer: But at no time have you consulted with Mr. Pedrosa or the full time City Attorney as to that clarification. Ms. Smoller: Yes, I have. Mr. Plummer: Did he ever respond to you? Because, excuse me, let me just read it to you here and quit playing a cat & mouse game. Ms. Smoller: Yes, I really haven't had a chance to study the opinion, because I just got it. Mr. Plummer: O.K., let me read it to you. The Request For Proposals, R.F.P., did not contain a prohibition against cross connections, and then it goes on. Mr. Garcia -Pedrosa: No, but read all of it. Mr. Plummer: It did include a copy of the ordinance, the cable enabling ordinance, not to be confused with the aforesaid ordinance, whose section 10553-b states that all cables and wires shall be installed parallel to existing telephone and electrical wires whenever possible. You are saying that your interpretation is that it did contain; his interpretation, who is the legal City Attorney, says it did not. I can see exactly why we have a problem. Obviously, you people are not talking. Excuse me, she is saying that she interpreted and you say she did not. Ms. Smoller: Wait a minute, no, sir, I don't think we are really on disagreement on that point. I want to answer your question and at the same time answer the Mayor's question. sl 36 2/16/84 `J sl Mr. Plummer: Sir, I will recall another famous saying of Father Gibson, God rest his soul. Mr. Dawkins, I don't want to miss you, but I want to tell you, he said the King's English is very clear. Sir, I read to you from your own. It is very clear. It is the King's English. The Request for Proposals did not contain a prohibition against cross connections. Mr. Garcia -Pedrosa: Commissioner Plummer, let me respond, if I might. INAUDIBLE BACKGROUND COMMENTS NOT ENTERED INTO THE PUBLIC RECORD. Mr. Garcia -Pedrosa: Let me ask you a question, Commissioner Plummer, at the same time address myself to the Mayor's question. I don't think the opinion that you have before you is in any way unclear as to the ultimate conclusion that the Mayor read, that in my opinion and contrary -and I say this respectfully- to Senator Myers' argument. I quote: "The key language of section 605-b of ordinance number 9332 is that portion that requires that cable and wires be installed parallel to existing telephone and electric wires whenever possible." My conclu- sion is unmistakable. I think your City Manager is absolutely correct in saying that the enforcement of that requirement is appropriate. That is what my opinion says on page 4. I also think, Mr. Plummer, that the fact that the R.F.P. in and of itself does not contain the prohibition, is not definitive, for the simple reason that R.F.P. incorporated by reference another document which does specifically state that cables and wires shall be installed parallel to existing telephone and electric wires, whenever possible. Now, to address myself to the Mayor's question. Mr. Mayor, I don't think that there is any question in my mind, as to that premise. I hope my conclusion is very clear on that. What I am troubled by is the fact that the City's consulting engineer has stated to you today that the City approved a first plan that was five miles long which contained, if I understood his testimony correctly, which showed cross -ovens. Now I have no difficulty in sitting here, I think I'd like to sit here a lot longer if I were to do that and really acting as a judge, which is really what you are asking me to do, but I don't think that is the proper function of a City Attorney. Mayor Ferre: That is what you are for us. You are the judge to questions that we ask you of legal interpretation. Mr. Garcia -Pedrosa: I accept that, Mr. Mayor. Mayor Ferre: We have no other recourse but to go to you... are the chief legal officer of the City. Mr. Garcia -Pedrosa: Yes, sir. Mayor Ferre: We are asking you to give us a legal opinion. The question now -I understand your very well drafted and written legal opinion. But you, like a good lawyer, say on the one hand this and on the other hand that. This is my conclusion. But in your conclusion you say, my conclusion is yes, but they may have waived. I am asking you if there has been a waiver. Mr. Garcia -Pedrosa: You are asking me, Mr. Mayor, so that we understand the question that you are asking me, you are asking me, in essence, to judge the conduct and the communications of the City. I have to tell you, in all candor, that I don't have the benefit of all of the evidence, if you want to look at it in that fashion, that would be relevant to that determination. In essence, that would be the proper subject of a full fledged evidentiary hearing at which the Administration would have an equal opportunity to present all of its evidence, and I don't know if Senator Myers' side has completed, but.... Mayor Ferre: That is what this is. Let me go through the process so that we understand each other. These people go through an administrative process for recourse. They have completed and depleted that course. They say we no longer, since we are now in disagreement with the Administration, we now request a complete hearing before the Commission on this subject. The Commission set a policy, comes to a conclusion. 37 2/16/84 -_ - --- - A sl Mayor Ferre (Con't): Once the Commission comes to the conclusion, they have the right to go before a court of competent law and ask for a clarification, if that be necessary. But I think a judge would properly say to them, -please forgive me, this is another one of our Dinner Key legal sessions here. Mr. Garcia -Pedrosa: Dinner Key Bar Association. Mayor Ferre: I'm a full fledged member of the Dinner Key Bar Association. I would opine that a judge would say, "Go back to the City and get full administrative, I mean, come to a conclusion administratively before you come and bother this court's time. So that is what we are doing here. What we are doing is, we are either agreeing or disagreeing with the Manager's conclusion, but we need your guidance on it. Mr. Garcia -Pedrosa: Mr. Mayor, I am troubled by three things. One, the testimony with respect to the fact that the five mile plan was approved when it was presented to the City. Secondly, and it is a point of factual disagreement, as I perceive it at this point. I am troubled by the contention of the licensee that it took the City at least eight months to write that December 30, 1982 letter, which in my opinion does not say to the licensee, "Don't do it," and that it took them sometime longer, according to the licensee, it is a year and a half. The Administration, I think, disputes that, to actually issue a more definitive position against the matter of cross connections. I am troubled by the fact that...I want to say this, I am not troubled by the fact that the licensee perceives that it has a financial arrangements that are problems. I think that is at best, as I've said in my opinion, only marginally relevant. But I am concerned with a requirement in an R.F.P. of $45,000,000 expenditure, which if we are to believe the estimates given -and I think that too is a point of contention, because I think I read somewhere in this record that the Administration says that it might take them as little as $280,000 some odd dollars. Ms. Smoller: I think this is a very important point. We see to redo the 75 miles that have been done in contradiction to the Department of Public Works' policy, the estimate that the City has is $2.1 million. Now, I think the important thing also to... and this was based on analysis of information that was furnished by the company itself. The other thing that is important to realize is that this project is a long project. The Department of Public Works estimates only 10 miles per year would need to be modified. City staff would like to respectfully state that they consider a modification, rather than a rebuild, the staff has approached this and said to the company over and over again that it is a block by block situation, not always would it require going down both sides of the street. There are a number of other solutions; and so it is block by block, not a complete total rebuild. The other contention that the company made that I was very surprised at, in looking at the annual report, the company has spent a little less than $15 million on its plant when -and I'm just talking of the distribution plan, I'm not talking about heading and lease vehicles or that kind of thing- and it makes the contention that it's 90% complete. This raises some questions. You know, we don't have enough information. We'd like more information to verify this. It's not been forthcoming. Mr. Garcia -Pedrosa: To continue, then, Mr. Mayor.... Mayor Ferre: Hold on. Ms. Smoller: Just one more thing. Mayor Ferre: No, no, hold on, I think we have solved the problem. I want to thank you for coming up with the solution, Sue. We are going to take a five minute recess and I'm going to ask the following question to you, Senator Myers, to your clients. If what they are asking, since their estimate might be so accurate, with regard to the two pole question and the street rehab and all that is limited to $2.1 million? Ms. Smoller: That is the estimate. 38 2/16/84 t t Mayor Ferre: O.K. Ms. Smoller: Worst case. Mayor Ferre: On a worse case, so we put $2.1 as a top basis, and see if the company is willing to expend another $2.1 million to meet this. When the $2.1 million runs out, it runs out. If you are so accurate and so proper, then we have solved the problem. If they are accurate and there is $13 million to go, then it is going to be our problem, isn't it. We'll take a five minute recess while the company talks this over. WHEREUPON, THE CITY COMMISSION WENT INTO A BRIEF RECESS AT: 4:40 P.M., RECONVENING AT: 4:50 P.M., WITH ALL MEMBERS OF THE COMMISSION FOUND TO BE PRESENT. Mayor Ferre: It is ten minutes to five, we have taken ten minutes in our five minute break. Would you all take your seats. Marie, that includes you. Everybody sit down. Senator Myers: Mayor, if I understood your question, our answer is as follows. The company would accept an expenditure requirement of $2.1 million of additional expenditures for the entire plant relating to highway beautification, rehabilitation, highway improvement districts, and cross-overs. In other words, everything involved in the highway improvement district and highway beautification project that will run throughout the entire City of Miami, whether the rehab is required on one side of the street or both sides of the street. Mayor Ferre: Mr. Manager, throughyou to Ms. Smoller, is that what you were talking about? Ms. Smoller: Mr. Mayor, I think it would be unfair to limit it to a certain dollar figure. What City staff attempted to do was to give a staff estimate just as the cable company has given a cable company estimate. They widely differ. There is a second question. The second question is regarding the estimated ten miles per year. You know, there is thirteen years left to go on the franchise. We are talking about an estimated 130 miles, plus the 75. We're not talking about 700 miles here. That is an estimate. Mayor Ferre: Ms. Smoller, I realize it is an estimate. The fact is that the company got up and said, we estimate that what the City is asking for is going to cost $15 million. You got up and you said, that is absolutely not so, it's going to cost $2.1 million. I then asked the company, she says it costs $2.1 million. You accept that? The company now says, yes, we'll accept that. Now you are saying no, well, you know, that's my estimate and that's your estimate, whose estimate —well, you know, you can't have it both ways. Ms. Smoller: Mr. Mayor, respectfully, that estimate was for the 75 miles that the company has built to this point. Mayor Ferre: You didn't say that. Ms. Smoller: I'm sorry, I wasn't able to continue. The estimated ten miles a month thereafter is about $160,000 additional a year thereafter the 75 miles. So we are talking about two things. We're talking about what has been done, approximately 75 miles and what is to come in the future. Mayor Ferre: I got you. So in other words, it's $2.1 million plus $160,000 a year for 13 years. Ms. Smoller: That is based on... let me give you the formula. It's based on the company's figures of $12,000 per aerial mile. The estimate that it would cost... the $12,000 per mile is taken from their reports furnished to the City. Then an estimated 33% above that. sl 39 2/16/84 t t Mayor Ferre: Sue, I think the point of this is really very simple, as I see it, as I sense what is going on here. We are in the touchy legal areas. I'd like to see if we can settle this. If we can settle it, then everybody is ahead. You are happy, they are happy. If you can't settle it, I don't see anything but we are going to have to get either a legal opinion from Garcia -Pedrosa, and he's going to have to put some staff go through a whole lot of legal interpretation and judgement, or if he can't do that for some reason or another because he says you are asking me to become a judge instead of a State Attorney, and I don't want to be a judge, I could have been a judge, and turned that one down. I'm not going to be a judge. If he says that to us, he says you are asking us to come to a judicial conclusion, which might create a legal problem for the City should this ever end up in court and therefore my legal advice for you is that leave this with a court of proper competency rule on it, then we may have to go to court and get a legal clarification. That's going to cost the City a lot of money and it's going to cost the cable company a lot of money, plus it creates all kinds of problems. If we can avoid it, I'd like to avoid it. Rather than, Mr. Manager, push anybody into this, perhaps what we ought to do is let you and the cable company get together and see if you can come with an agreement. Do you think that is proper, Mr. Manager? I'm just saying, do you want to try to negotiate this one out? Or do you want to keep on fighting on it? You tell us what you want to do, then this Commission will have to make a policy decision. Mr. Gary: Mr. Mayor, I think the City Administration is right in this regard. I would suggest that we keep on fighting it out and talking about it. Mayor Ferre: You don't want to talk about it, all right. Then I'm willing to vote on it today. Mr. Garcia -Pedrosa: Mr. Mayor, I also studied economics and I want to point out to the Commission that $160,000 a year for 13 years is another, almost exactly, another $2.1 million, which reduced to present value is really not much more than the offer, and as I understand it, I was out of the room, acceptance that was made. So, if we were to deal with this, and I know that Senator Myers, as I have, have been down this road of litigation before. I think the parties are really closer than they realize. Mr. Gary: Mr. Mayor, if I may, I'll take your offer. Mayor Ferre: You know, on the one hand you say yes and then two seconds later, you change your mind. Mr. Plummer: Mr. Mayor, I'm not defending Mr. Gary, I've always made the statement and I will continue to make the statement, as long as you have communications I think you have an open door and you haven't locked it. I don't see anything that would be lost by another week of discussions, if that is the case, we are no more or more less than we are here today. Mr. Carollo: Well, I think what you are saying, J.L., is absolutely correct, but let's not kid ourselves. I personally don't perceive any compromise between the Manager's point of view on this particular issue and the cablevision people's point of view in theirs. Mr. Plummer: But neither one of them vote, Joe. We do. Mr. Carollo: I would be more than willing to let this go another week, so they can discuss it, hug themselves to death, anything they would like to do, but what I...maybe I'm wrong and I hope that I'm wrong, but I just perceive that this is going come right back to us. The final decision is going to be made by this Commission. Mr. Plummer: That is always the case. 40 sl 2/16/84 t t Mayor Ferre: Unless I am otherwise outvoted, the chair will rule as follows, Mr. City Manager, you are instructed to continue negotiations. Mr. Plummer: Excuse me, Mr. Mayor, a very important question I feel, Mr. Myers, on behalf of your client, are you willing to sit down, talk, and negotiate? Because if you are not, then Joe is right. Senator Myers: Yes, we are provided the fines are recinded and stopped. Mr. Plummer: That will be decided after. Senator Myers: In the meantime they are running every day, $5,000 a day. Mr. Plummer: This Commission can wipe them out. Am I correct? Senator Myers: I've not talked to Mr. Hermanowski and I will in a minute, but I do believe that his attitude would be that he'd be willing to discuss it. Mr. Plummer: Then I say we stop right now and you discuss it with your client, because if his attitude is no, I'm not going to discuss it, then we are out of ball park. Senator Myers: I believe that his attitude would be that he'd be willing to discuss it. Mayor Ferre: Wait a moment. The chair is going to make a ruling here. You can go discuss it with your client after, because we need to talk about these little boxes, which that one I really have strong...this one I have an open mind on, the little boxes I really have strong opinions on. Mr. Carollo: Mr. Mayor, if I may make a suggestion if the chair permits. That we assign a week's time, ten days' time for the Manager and his staff to sit with the cable company and after that time they come to no agreement, no compromise, then it immediately comes back to this Commission in another special meeting called by the Mayor for this Commission to make a final decision. During those seven days to ten days, whichever the case may be, that we put a temporary freeze during that period of time, on the fines that have been imposed on the company until a decision is made. Mr. Dawkins: Mr. Mayor, what does that do to my request? Mayor Ferre: I'm complying with your request. Here is what I would like to do. Let me tell you where I'm at. This matter is continued. Mr. Dawkins: But I asked that it be continued until May so that I could also get me an answer to some questions like this. That was my request. Is that the request you are referring to? Mayor Ferre: I'm sorry. I misunderstood. You did say May. I stand corrected. I remember your saying it now. I overlooked that. The issue is whether or not we continue this until the next meeting or continue it until May. You are going to have to do that in a motion. Mr. Dawkins: I have no problems with that, Mr. Mayor. I have no problems being on the losing side of a four -one motion. Mayor Ferre: I will recognize. I'll tell you. I will recognize you before I rule on this thing for that motion. I think it is a fair and valid motion to be made on this particular issue. That is that this hearing be continued until the first meeting of May. Is that right? 41 sl 2/16/84 Mr. Dawkins: My motion is that since I have in my hand a document where the City Attorney was asked questions that were important to the Mayor and I have not studied it, and since I have questions I too want to ask the City Attorney and want the City Attorney to respond to, I would like time where my colleagues would not be given this the same day of the hearing, but be given it five days prior to the meeting, so that if they have some questions, they too could get in touch with the City Attorney; therefore, I ask that this be continued until the second meeting in April, which will give me the time I need to get that done. Mayor Ferre: That will be April 26th. Mr. Carollo: Two and a half months from now, in other words. Mayor Ferre: Is there a second to that motion? Is there a second to that motion? Lastly, is there a second to that motion? For lack of a second, that motion dies. Now, the chair will rule as follows, and if somebody wants to make a motion to override it, I will recognize that one. The chair rules that this Commission hearing on this issue will be continued until the next meeting, which is the 28th of February. Number two, the chair, interpreting the wishes of the Commission, instructs the Manager to sit down with the appropriate staff he wishes to try to resolve this particular issue with Miami Cable between the interim period. Number three, the City Attorney, having heard the testimony as presented today, give us a little bit more clarification on the legal posture that it took in its memo dated February 16th, so that, if possible, we can get a clear —if there is any change that he might see after sitting in on this, should there be no conclusion to the negotiations so we can get a clearer legal position. Mr. Dawkins: Mr. Mayor, may I add one thing to that, sir? Mayor Ferre: Yes, sir. Mr. Dawkins: And with the staff, Mr. Gary, since those who were here provide me with the chronological events that led to the awarding of this contract so that I can see if we are following a chronological as we overlook the recommendations that are being made here regarding this franchise. I mean, am I clear? Is there anybody over there who doesn't understand what I want? Mr. Plummer: Ask it in reverse: is there anybody there who understands what you want. Mr. Dawkins: I would like that before the next two meetings. INAUDIBLE BACKGROUND COMMENTS NOT ENTERED INTO THE PUBLIC RECORD. Mr. Dawkins: He's the only friend I have on the Commission. We can bet on that now. Because I sense here.... Mr. Carollo: Come on, Miller, you didn't mean the last statement, did you? Mr. Dawkins: Just as sure as I'm Black. Mr. Carollo: Well, that is one thing I can say, you're not color blind. Senator Myers: Mayor, may I ask your indulgence for just one minute? Mayor Ferre: Yes, sir. Senator Myers: To clearly state in the record that our contention here today has been more than just a waiver. Our contention is that 605-b, which is the sole point under which they are citing us for fines, does not require the elimination of crossovers, because the word 'parallel' does not include crossovers and we did not get an opportunity to throw that in, but we can do that at a later time. sl 42 2/16/84 t t Mayor Ferre: Counselor, there is the City Attorney. He's ruled; his rulings differ from what you have told us. Senator Myers: That is a factual question, however. Mayor Ferre: So I tell you what, you sit down with the City Attorney and you get him to put in legal writing what you say is right. If you can convince him and he puts it in legal writing, then we deal with it. But I can't deal with something that contradicts our City Attorney. The City Attorney concluded, as I see it here very clearly, he says in short, the enforcement of the requirement of parallel installation is appropriate. Senator Myers: I believe the City Attorney would not object to supplementing that by explaining to the Commission that there is a justified area of difference as to what the word parallel means as far as crossovers are concerned. Mayor Ferre: The chair further instructs the City Attorney to meet with counsel for the company to see if they can come to an agreement as to what parallel means and inform the Commission of your legal conclusions. With all due respects to you, counselor, I'm not interested in your legal conclusions. Senator Myers: It is not a legal conclusion. It is a factual question - as to what parallel means in the industry. Mayor Ferre: All right, you are going to sit down and negotiate with the Manager on that issue. I'm also asking the City Attorney if in fact he can conclude what the word parallel means. If he says that he cannot, then that is something that we will have to let the court decide, if it gets to that point. Otherwise, we will have to deal with it administra- tively. So what I'm asking for is a two barrel solution. One is an administrative solution, if it is possible. Another one is a legal solution if it is possible. Then we'll take it from there. Mr. Plummer: Let me ask for clarification, and is there much discrepancy here? It is my understanding that the Administration is claiming that it would be approximately $160,000 to correct the problem. Is that in the ball park? Ms. Smoller: That's the ball park estimate, after the initial 75 miles that have already been done. Mr. Plummer: Well, what is the estimate by the Administration for the original? Mr. Garcia -Pedrosa: $2.1 million. Mayor Ferre: $2.1 million. Ms. Smoller: $2.1. Mayor Ferre: That is why I asked that question. Ms. Smoller: 75 miles, yes. Mr. Garcia -Pedrosa: They have already accepted $2.1. Mayor Ferre: Now can we move on to our second question? Is everybody ready? Tell us about.... Mr. Plummer: When you say the second question are you speaking to the other issue? Mayor Ferre: The other issue is the two-way cube, if you will, or communications, whatever it is called. Mr. Plummer: Christine Heffner is waiting outside to discuss her.... Mayor Ferre: I have already turned her down once. 43 2/16/84 sl Mr. Carollo: H e might be slow, but he's not dumb, and he'll deny every bit of it. Mayor Ferre: I told you not to believe everything you read; and you corrected me and said you can believe only what you see. I agree to that. Mr. Carollo: No, no, I said in pictures. Mayor Ferre: Are you ready? Senator Myers: Yes. Mayor Ferre: Counselor, you saw what's going on around here in the last two hours, and I would like very much instead of a dog and pony show, we can get right to the heart of the issue. Tell us what the issue is without giving us a lot of charts and mark-ups and all that. Just tell us.... Senator Myers: No charts, I'm just showing you some pictures.... Mr. Plummer: I just want to know why all of this is not on video. Senator Myers: ....of some newspaper articles. Mayor Ferre: What is the issue and what is your solution? Senator Myers: The issue is whether the Commission is going to require this company to have in place right now a two way interactive system. Consultants are going to have to explain to you what that implies, what technically that would do, and what it would make available. I want to tell you that there is no requirement specifically in the ordinance itself to have in place right now an interactive system. Where the question takes place is that in the technical plans, the Miami Cablevision filed they did say initially that they would put in place immediately in designing, constructing the system a two-way interactive system. What we are now telling you is that after two years of experience in the industry, not only us, but every cable T.V. in this T.V. company in this country, after gaining two years of knowledge and experience as to what is happening in the industry with the State of the Interactive Art, that this company cannot now be required to have available and ineffective, customer -expensive, and financially infeasible interactive system whose primary purpose is to poll customer preferences and which has been a financial disaster in the rest of the country. Our consultant will now review with you... would you pass this out? Contained in here is not only a synopsis of the consultants' qualifications, Mayor, but also a complete analysis of the what is available in the country today in the way of two-way interactive systems that Dr. Hannoeman has completed. Let me tell you something, there is nothing that is financially feasible that is workable in the country today. It has been proven to be a financial disaster. Mayor, all we are asking the Commission to do is, look, we have an active two-way operating system now. The system is capable of it. All I am saying, Mayor, is I am asking that we be allowed to put on the shelf the requirement for interactive until such future time as is economically feasible. Mayor Ferre: Mr. Clark Merrill ... Mr. Manager, may I? Would you get on the microphone because I'm going to read you the following. This is April 1, 1982 and this is 23-a, discussion of the issues hereinbelow. It says: "Commission stipulations, stipulated and goes on record with T.C.I. The City of Miami does not want the -community polling feature of cable service to be offered in the contract." I would like to read from you verbatim what happened. The motion that I made and seconded by Commissioner Demetrio Perez goes like this: "I would like to preclude that from being done unless it is put up to the people of Miami in a referendum and let them vote for it." I am talking about this two-way communications. _ sl 44 2/16/84 Mayor Ferre (Con't): "I am not going to asume that responsibility. I think it is a terrible thing, and I want to tell you that I will vote against it and I want to memorialize that and I will pass the chair to you, Mr. Plummer and make a motion." Mr. Plummer takes the chair. "I want to make the motion that we go on record with T.C.I. and we do not want that mind to control machine, called the open box or whatever it is called, referal system, and if we must put it on, 1 would like to take it to the electorate and let them vote upon it, so that the only way that can ever be instituted in Miami is by a vote of the people of Miami. Now, if they want to submit themselves to in 1984...." and I was -talking about the book, " ...that is fine with me, and I so move. 'Plummer: Is there a second?' 'Perez: I second.' 'Under discussion...." and it continues. I say further on under discussion... Mr. Gary says: "It is used for police emergency only." I say to Mr. Gary: "Oh, I have no problem when you improve police and fire and all that, I just don't want there ever to be instituted an opinion poll operation." and later on I say: "So I just want to put that on the record and I want you and the Law Department to come back to you, Mr. Manager, I am instructing you, if this motion passes, you come back and give us all of the legal ways and I am willing to go to the electorate. In fact, I want to go to the electorate to make sure that it is chiselled in stone." Now, the motion was as follows: "A motion stipulating that the City of Miami go record that the City Commission does not want the community polling feature to be a part of the cable services offered in the contract for a cable television, which pursuant to agreement, is proposed to kick in the fourth year of the contract; further stipulating that if necessary, the City Commission is ready to let the electorate decide at a referendum, whether they want to be subject to this kind of technology and further directing the City Administration and the Law Department to come back with their final recommendations." It was seconded by Perez and the vote was: "Ayes: Miller Dawkins, Demetrio Perez, J.L. Plummer, and Ferre." There were no noes. Carollo was absent at that vote. Later on, there was on July 2, 1982, providing for a special election on September 7, 1982 for instant polling through use of cable T.V. At that time, there was a motion. A resolution calling and providing for a special municipal election to be held on the 7th day of September, 1982 for the purposes of submitting to the qualified electorate of the City of Miami for their approval or disapproval the cable television City license offering subscribers the services of instant public opinion polling through the use of the cable system. It was voted upon unanimously by all members of this Commission. I made the motion. Perez seconded it, unanimous vote. Then further on on July 29th, the Commission decided to rescind that, because it was not necessary since, the way we had left it, back going to this motion, unless the people voted for it, we weren't going to put it in. I ask, Mr. City Attorney, that you... Clark, take away the right to vote. I know that you are strongly for this box, O.K.? I want you to know that so far as I know you are not the policy maker of the City of Miami Commission. I know that you have been trying every which way under God's earth to circumvent the policy, as established by the City of Miami Commission, and as long as I'm here I want you to know there is one vote that is not going to let you do something that this Commission has gone on record as a policy matter opposed to. I don't care how bad you want 1984 to be here, and how bad you want polling to take place. I am unalterably opposed to any mechanism, and have been, that will in any way today or in the future be a mind control device, where people can be controlled by whomever owns that little machine and whomever owns the cable franchise. I might remind Commissioner Carollo that in those 45 2/16/84 sl Mayor Ferre (Con't): there was a consultant to one of these companies that you were worried about that he was going to be doing polling on an instant kind of a basis and controlling the future of this City based on instant communications with 50,000 or 100,000 television sets in this town. I tell you that the record is replete and full and that you have been under instructions not to pursue this and that you have been pursuing this contrary to the will of this Commission and contrary to the record as established on April 1, 1982 and that has not been rescinded at this time. You are acting illegally. You are acting without permission. You are acting against the will of this Commission. Mr. Clark Merrill: You Honor, if I may respond, respectfully. The ordinance that the R.F.P. that this Commission placed before all of the companies in the country to respond to requested for cable television services clearly required the interactive services. In the response from each of the cable companies, they all responded positively on providing interactive services to the City of Miami. In the ordinance that this City Commission passed, 9332, it said that the system design plan that was presented by the cable company would become an appendage to the ordinance. That part, that plan now is part of the ordinance. That plan calls for interactive services. We are administrators. We are administrating an ordinance passed.... Mayor Ferre: Precisely. Mr. Merrill: And that is exactly what we are doing. We are administering an ordinance that requires the interactive services by the company about a plan that they submitted on December 10, 1981. Mayor Ferre: Clark, let me for the record state, I happen to think that you are one of the best public servants that the City of Miami is fortunate to have. I happen to think that you are also stubborn as a mule. Mr. Merrill: That's two of us. Mayor Ferre: O.K., and I also happen to think ... yes, between you and I is, I told you, I may be stubborn as the Mayor. I have one vote on this Commission and you that I know of. Mr. Merrill: That's right. but the difference a mule, but I'm don't have any Mayor Ferre: So, therefore, you have to follow the mandate of this Commission or get three votes to override what the policy of this City is. The policy of this City is established on April 1, 1982 and further- more I would refer to you that on April 13, 1982 there is a letter to Mr. Howard Gary signed by Mr. Paul Alden of Miami Telecommunications and Charles Hermanowski of Americable, sworn before a notary public -and I want to read it into the record so we understand it ourselves: "Dear Mr. Gary, The undersigned are the grantees of a cable television license for the City of Miami. We understand that the City plans to hold a referendum in respect to certain aspects to the cable T.V. license, namely, whether or not opinion polling should be part of the activities of the licensee and to determine community standards on the issue of obscenity. Depending the results of such referendum Miami Telecommunications and Americable of Greater Miami Limited voluntarily agree as follows: (a) with respect to opinion polling we will not offer opinion polling. We will at such time as the referendum refered to above has been held, comply with the results of such referendum...." Then he goes on (b) to talk about obscenity. "(c) We will not knowingly diseminate or permit disemination of obscenity." (d) also deals with obscenity. But the main point is item number (a), in which they specifically say that they will not, at such time as the referendum is required... now, the reason why I pulled the referendum, and I was the author of that and this Commission voted with me, was, if it ain't broken, don't fix it. Plummer was the one that told me. 46 2/16/84 sl Mayor Ferre (Con't): He said, "Why are you putting this on a referendum for, when in effect the Commission has already gone on record that it is opposed to it, and it can only be implemented by a referendum, so why are you going into a referendum? You know, you are looking at this backwards." As I recall, I said, "Plummer, by God, you are right." So we pulled the matter from the referendum. We let the other thing go through for the referendum, the obscenity thing, but we pulled this one from the referendum because there is no need to. Now I submit to you, the Administration, and specifically to you, Clark, that this City Commission has gone on record and you are mandated, and if that little box that you are tampering with... you can write checks with it, and you can call the police and you can call the Fire Department and with a flick, like that, you can also ask questions because it is a two way interactive system. I submit to you as long as that particular possibility exists, the probability also exists. I am going to do everything I can, as long as I can, to hold that from happening. Mr. Gary: Mr. Mayor, I apologize for the flippant remarks that the Administration gave you that got you a little upset. Mayor Ferre: No, no, that's all right. Mr. Gary: Mr. Mayor, it is, regardless of Clarks personal views in terms of voting, I think we are talking... this Administration has been adhering to this City Commission's policy. I think where the confusion comes in, Mr. Mayor, is that this City Commission, and also that letter, addresses the issue that there will be no opinion polling. There has never been the issue, Mr. Mayor, which is the second issue, of having the vehicle by which you do that; because that vehicle can be utilized to do other things. I'm serious, Mr. Mayor, this is our interpretation. It is prohibited to have the opinion polling and they cannot poll. We never talked about eliminating the two-way interactive system, which can be used for other purposes, which include, which we agreed to emergency kinds of things which Commissioner Plummer also put in as a requirement for this company to contribute money. Now, I'm pretty sure that once you agree not to even have the box, they are probably going to ask not to put in the security money which they have already asked them not to do anyway. So this is going to be sort of like a.... Mr. Plummer: Mr. Gary, be damned careful when you talk about Plummer and boxes. Mr. Carollo: So long as they don't take it on Plummer vehicles. Mayor Ferre: Wait, Mr. Manager, that's like telling me, "I'm going to give you a gun, and I'm going to load it full of bullets and it holds six bullets, and I'm going to put the gun in your hand, and you are going to tell me that, 'Mr. Mayor, I'm the Manager, I want you to know that this gun is to shoot chickens and it is for target practice, and I'm going to shoot turkeys with it, and I am going to do, I'm going to use it on the 4th of July to make noise, but I promise you I'm not going to use it to shoot anybody, but I'd like to have it next to me, loaded, just in case I see turkeys fly by so I can shoot at them."' And what you are telling me is you, Clark Merrill, want this little box so that you can write checks and you can buy your things from Sears and you can order football tickets and you can subscribe to View-a-tron and you can do all the wonderful things that are going to be available in modern society. once you have that little box in each television set you can also on Channel B ask questions, and people can telephone them in or they can type them into the little box, yes or no, or you can do a lot of little things, once that box is in. All I'm telling you is as long as I have one vote here, and it has nothing to do with John Lasserville, as long as there is one vote here, I am opposed to anybody...1 do not want Mr. Hermanowski to have the power. Where is Mr. Hermanowski? Mr. Hermanowski, with all due respect to you and your family, I just don't want the Hermanowski family or the T.C.I. family up in Denver to have the power to turn opinions in Miami and confront this...I won't be here, you know, somebody else will be the Mayor, either Demetrio or Joe or J.L. or Miller or somebody will be the Mayor of Miami and there will be another Commission here, because we are talking about five or ten years. sl 47 2/16/84 4 4 Mr. Dawkins: It may be a whole Commission. It may be five new members. Mr. Plummer: Watch your tongue. Mayor Ferre: I'm talking about ten years from now. I do not want a future Mr. Hermanowski to be coming down here and saying "On that Orange Bowl issue that you are discussing, Mr. City Manager, because you will still be around, with regards to this Orange Bowl question, we asked the viewers of Miami yesterday, and there were 80,000 homes that answered our question and 75,000 of them do not want you to put this matter on the ballot." Well, you know, at that point, you don't need elections and you don't need, I would submit, at that point we get rid of all government. If we institute something like this in the country, we don't need a president. All we need to do is say, "Do we put up a fight in Lebanon or not? Do we fight acid rain or not? Do we deregulate air fares or not?" All these questions, "Do you want a volunteer army?" Then, 80,000,000 sets in America answer the question. Is that in the best interest of the United States? You see, we don't live in that kind of a government. We live in a republican form of a democracy, which means that people get elected to make decisions. I don't want somebody owning a box where they can take the elected officials of this country, whether it be the City or the County, the State or the Country, and telling us what to do on a day to day basis. Mr. Carollo: I knew sooner or later the Mayor would see the light and want to be a republican. Mr. Gary: Mr. Mayor, on that analogy of the gun and the bullets, you could apply that to every citizen, wherein they don't have the right to kill anybody arbitrarily, but then again we give them the right to have that gun. If they use it improperly, there are some stiff penalties. I think the same thing in terms of the cable company. They have that right, but they are prohibited from doing such. By giving them that right there are some other benefits associated with those rights. As an example, senior citizens will be able in the future to shop by the cable. Homes will be able to have burglar alarms at a cheap rate through the cable. The Fire Department will be able to have fire alarms. Mayor Ferre: You will also be able to poll. Mr. Gary: Exactly, I think the bottom line becomes taking all the benefits on one side and looking at the consequences of opinion polling on the other side, the City Commission has to make that decision, whether they want to forego those benefits for its consequence. Mayor Ferre: Mr. Manager, the point I'm trying to make to you is the City Commission has already made that decision. Mr. Gary: No, it didn't, not for the box. Mayor Ferre: This City Commission made that decision. Mr. Gary: No, it didn't. Mayor Ferre: Now, I tell you what, so we get it even clearer, I'm going to make the motion so that there is absolutely no question as to what the April 1, 1982 motion meant. Now let me put it to you, since we are still on the gun analogy, Mr. Manager. On the gun analogy, the difference between this and guns is this, Carollo and I differ. He happens to believe that we should not have any kind of gun control and that is a right in the constitution. It is no secret, since I have said it for the last 15 years, I am on the total.opposite side. I am for total gun control. If I could, I'd take guns away from everybody. But we can't do that. Mr. Carollo: Mr. Mayor, do you still own those two hand guns? 48 al 2 /16 /84 Mayor Ferre: Yes, I own guns and my kids own guns and we all have guns, but that is not the point. The point I'm trying to say is as long as it's not illegal to guns, I'll own guns. If I could, I would take guns away from everybody that has guns unless they absolutely need it. The fact is that the police agencies around the United States of America and the international police association, including the former Police Chief Harms and many others are for gun control. We are not arguing gun control here, but the difference is this. That there is no laws for gun control because the governmental bodies that have jurisdiction have not wanted to make gun control laws. The difference is this, that this here City Commission wants to have control of this little box. I'm more afraid of that little box than I am of guns! If you give me a choice as to whether everybody is going to have a gun or everybody•is going to have that little T.V. box, you can have the guns and I want the boxes, because that is the most dangerous thing that this democracy can possibly have. As long as I have a voice, whether 1 am on this Commission or not this Commission, I will be opposed to that thing as long as God gives me a voice to oppose it. Mr. Carollo: At least the Mayor has confirmed certain parts of memos of the files. Mayor Ferre: You must have read more into the files than I did. Mr. Plummer: I'm glad that Ferre has reached a point where he is more scared of the boxes of Hermanowski than he is of Plummer. Mayor Ferre: I am more scared of those little boxes than guns, you are right, absolutely. I'll tell you just to clarify it, I pass the gavel over to the Vice Mayor and I will.... Mr. Dawkins: Mr. Mayor, may I ask a question, point of information, before you do that? If this Commission is already on file for being against the box, if the voters have voted against the box, what is the point of us passing another motion now to compound a motion that we already made? I mean, before we get into it, I'd just like the clarification before the motion is made. Mr. Plummer: Mr. Dawkins, it is very simple. Obviously the motion that this Commission made back then was not understood by the Administration very clearly. He is now going to make a motion that he says they cannot misunderstand. Mr. Dawkins: Thank you. Mr. Plummer: I doubt that he can do that, but he's going to try. Mayor Ferre: I would like to move an aclaratory motion that the motion of April 1, 1982 that the intention of that motion is that this Administration not do anything that would in any way enhance, simplify, accelerate, or put into effect any mechanism that could in and of and by itself at any time in the future be utilized for polling, unless it is put first on a referendum and the people of Miami vote for such a machine. I so move. Mr. Carollo: I will second that motion. In seconding it, I would like to say, Mr. Mayor, that I'm not concerned with guns. I'm really not even concerned with the box, what concerns me is that Jack or John inside the box. As you mentioned before, that was one of my concerns. Mr. Perez: We have a motion and a second. Do you have any discussion? Mayor Ferre: Mr. City Attorney, I have a question. Is this explicit and implicit enough? Is this sufficiently clear? Do you think that perhaps a year or two from now there could be any legal questions as to what the intent of this motion might be? Can you figure a way to strengthen it, to make it stronger? Mr. Plummer: Shoot Clark Merrill, Mr. Garcia -Pedrosa: With no gun? 49 2/16/84 sl Mr. Plummer: Put Clark Merrill in the box. Mr. Garcia -Pedrosa: Mr. Mayor, I'm thinking because I think your motion, to borrow a phrase from Commissioner Plummer who borrowed it from Reverend Gibson, is in black and white and clear and all that, but I am thinking of what it is that you might also be eliminating as a result of the motion. 1 don't know that I have enough technical expertise, but I think I'm concerned about that. Mayor Ferre: Look, I want to put it to you this way, I am not interested in paying a price for the convenience of uptown shopping by downtown or viceversa with this little box to simplefy life for anybody. We've lived in this world for thousands and thousands of years without that little box and I'm sure that man, humankind will survive another couple of years without it. I'm sure they will be implemented sooner or later, but the longer I can keep those things from being a part of our daily world, the happier I am going to be. I am willing to give up the convenience of view-a-tron connections, with all due respects to Knight-Ridder, and give up the connections to instant shopping so that there will never be a temptation to use those little boxes for the purposes of instantaneous polling by entities that in my opinion could lead to a dangerous situation in this republican democracy of ours. It may be a drop in the bucket, but this little City is going to say to the world that we don't want that kind of a mechanism in our society as long as we can avoid it, and for somebody to have that, we have to go through a referendum. If three members of this Commission, at any time in the future, wish to vote to have a referendum and the people of Miami want that mind control box put in, then it is their decision; let them live with it. I'm not going to do it unilaterally here. All I'm asking you is, is the motion... this is a motion of intent, I want you to bring it back in legal form in an ordinance form, if you wish. I don't care how you do it. You bring it back in the strongest, legally -binding way that you can after you research it properly. Mr. Garcia -Pedrosa: Do I understand your motion, Mr. Mayor, to address itself to any instrument that in and of itself is capable, as opposed to any instrument that could be used with something else. For instance, if they flash on the television screen, call 333-2495 with your views on this subject. Mayor Ferre: I will amend my motion to say any instrument other than the television itself that is added to any viewing mechanism or related to cable television that through.... Mr. Garcia -Pedrosa: That's going to wipe out the telephone. Mayor Ferre: ....and in the future could be used for the purposes of polling. Mr. Carollo: Mr. Mayor, I think what you are trying to say is inter- active services. Mayor Ferre: That's fine, but you see, what he's saying is that may preclude televisions themselves from being put up, because somebody could ask the question, do you agree with Mr. Plummer's idea about how to run funeral homes? Mr. Plummer: Well, they do that now. They have a 900 line. Mayor Ferre: Do you think J.L. Plummer should be recalled? If you believe so, please call 579-6003. Mr. Plummer: That's my number and I'll tell them how to vote. Mayor Ferre: In other words, would you like to have Mr. Plummer recalled? Please call him and tell him that you want him recalled. Mr. Plummer: That's correct, and I'll give the results. Mayor Ferre: You don't want anybody else to give the results. Mr. PLummer: I think what we are really saying, or what you are really saying is that which we control, the City Commission. You know, I can imagine Knight-Ridder right now has taken your idea and they have 43 engineers in the basement of the Miami Herald for View-a-tron figuring out how they are going to give you instant polling on replacing the Mayor tomorrow morning. We can't control that. That is not under our control. But I think that which we control, we have the right to express what we feel is right and what is wrong. Your motion today, even as Commissioner Dawkins says, it may be suverfluos but obviously your original motion was not clearly understood and today you are fortifying that motion. I think really the next question is for you to ask the Administration if they fully understand what your motion is by intent, what it implies, and what the final analysis is, because if they don't understand it, they didn't understand it the first go -round, if they don't understand this one, then we're going to be back here again tomorrow or next year or next month. So I think it would be behooving of you to ask of the Administration to ask if they understand your motion clearly. Mayor Ferre: O.K., I ask the question. Does anybody have any doubts as to what...? It is a valid question, Mr. Manager. Mr. Dawkins: You didn't vote on the motion. There is no motion. Mr. Plummer: There is a motion and a second. Mr. Dawkins: But it hasn't been ... well, move it. Mr. Gary: No polling; you don't want the box at all? Mayor Ferre: That is a valid question of Commissioner PLummer, Mr. Manager, on the record, is the intent of the motion absolutely clear to the Administration? That is a valid question. Mr. Gary: The intent of the motion is that we will not have two-way inter -active system or any mechanism that will allow a two-way inter- active system. Mayor Ferre: Thank you, sir. Mr. Gary: That is what I understand. Mayor Ferre: Yes, sir, thank you. Mr. Chairman? Mr. Perez: That all? We don't have any other discussion to the aclaratoty motion presented by the Mayor and seconded by Commissioner Carollo is understood. Call the roll. The following motion was introduced by Mayor Ferre, who moved its adoption. MOTION 84-206 AN ACLARATORY MOTION OF THE CITY COMMISSION RE- AFFIRMING A MOTION PASSED AND ADOPTED AT THE MEETING OF APRIL 1, 1982 EXPRESSING THE POLICY OF THE CITY COMMISSION THAT THE CITY ADMINISTRATION NOT DO ANYTHING OR IMPLEMENT ANY TECHNOLOGY THAT IN ANY WAY ENHANCES, SIMPLIFIES, ACCELERATES OR PUTS INTO EFFECT ANY MECHANISM OR INSTRUMENT WHICH IS ADDED TO ANY VIEWING DEVICE OR IS IN ANY WAY RELATED TO CABLE TELEVISION WHICH, IN THE FUTURE, COULD BE USED FOR PURPOSES OF INSTANTANEOUS POLLING; FURTHER STIPULATING THAT IF SUCH A DEVICE WERE INTENDED TO BE USED SAID MATTER WOULD FIRST HAVE TO BE THE SUBJECT OF A REFERENDUM SO THAT THE VOTERS IN MIAMI WOULD VOTE THEIR WILL ON THIS ISSUE; AND FINALLY, INSTRUCTING THE CITY ATTORNEY TO DRAFT THIS POLICY IN A LEGALLY BINDING INSTRUMENT FOR ADOPTION BY THE CITY COMMISSION. sl 51 2/16/84 (ib 6 Upon being seconded by Commissioner Carollo, the motion was passed and adopted by the following vote: AYES: Commissioner Miller J. Dawkins Commissioner Joe Carollo Commissioner J.L. Plummer, Jr. Vice Mayor Demetrio Perez, Jr. Mayor Maurice A. Ferre NOES: None. ABSENT: None. ON ROLL CALL: Mr. Dawkins: Yes, as the intent is to clear a motion that we have already passed, I vote yes. Mayor Ferre: What else is there to come before this Commission? Unidentified Speaker: The fine that is related to that issue. Mr. Garcia -Pedrosa: Wait a minute, it's in the ordinance now. Mayor Ferre: Obviously, if the Commission has clarified the issue and there is no issue, there is no fine. Senator Myers: We would like some kind of expression.... Mayor Ferre: With that issue, on the other issue, there may be a fine. Senator Myers: We understand that, but there should be some kind of an expression, I respectfully ask record that the fine is rescinded retroactively. Mayor Ferre: I turn that to you, sir. Mr. Garcia-Pedorsa: I'm sorry, Mr. Mayor. Mayor Ferre: They are saying where does that leave the fine. I say that is a legal question; I don't know. Mr. Garcia -Pedrosa: Well, Mr. Mayor, the requirement of the two-way interactive system is in ordinance 9332. So, I think the imposition of the penalty is proper. You have instructed the Administration today.... Mr. Plummer: Even though the motion of the Mayor was prior to the enactment? Mayor Ferre: Yes, let me tell you what happened. Howard, please don't take this wrong or even you, Clark, I'm not attacking your integrity or anything like that. We passed a motion of intent. And do you know what you did? You completely disregarded it. Yes, you know, you know exactly what I mean. What I mean is that the motion of intent was there and it was left. You know what this is, J.L.? This is a motion, and look at what I say in the motion. The preamble, which is the legislative intent, I ask the City Attorney...I guess it wasn't you then to come back ... so I just want to put that on the record and I want you, the Law Department to come back and you, Mr. Manager, I'm expecting you, if this motion passes, you come back and give us all of the legal ways. I'm willing to go to the electorate. In fact I want to go to the electorate to make sure that it is chiselled in stone. I submit to you, you didn't bring that back. Mr. Gary: No, you changed your mind from going to the electorate. Mayor Ferre: No, sir, but I didn't change my mind on that position, and what happened was, let's say that it was an honest misunderstanding and you thought that I wanted the little box in, Clark, and you thought that I didn't mind having the little box in, and I really didn't feel so strongly about it, even though every time I saw you I must have told you 50 times in the last two years, "Don't you put that little box in. I'm going to keep my eye on you. I know you are going to try to get that sl 52 2/16/84 Mayor Ferre (Can't): little box in and I'm not going to let you do it." Mr. Garcia -Pedrosa: Mr. Mayor, the Manager has been instructed, as I have, to meet with the representatives of the licensee, and I think it might be appropriate for the Commission to consider giving the Manager as much room in which to bargain and perhaps this matter might also be included in those negotiations. Mayor Ferre: Let it go. I think that is appropriate. We'll be dealing with this issue on the 28th. Senator Myers: What about the question of the fines. Mr. Plummer: That's what he just said. Mayor Ferre: That's what I just said, Senator. Mr. Plummer: The fine becomes a part of the negotiations. Mayor Ferre: You have a hearing problem. Senator Myers: No, I want to make clear what is part of the negotiations. I don't have a hearing problem. I just want to make sure that the monetary part is the only question that is part of the negotiations. Mr. Gary: That's not the only part. Mayor Ferre: No, sir. Mr. Gary: The cross wiring. Senator Myers: I mean the monetary question of settling the cross wire and the construction issues, but not the question of the two-way inter active. Mayor Ferre: Look, Senator, you've done all right today, all right? Senator Myers: Yes, sir. Mayor Ferre: So, you let the Manager have a little leeway. Let him negotiate. You negotiate in good faith. We'll talk again. Senator Myers: I'm satisfied to negotiate with the Manager. Mr. Plummer: In good faith. Mayor Ferre: Mr. Manager, is our good faith negotiator. Mr. Gary: I would suggest that one of our biggest problems is that the person who does the talking for the cable company is not the one who does the management, is not the management person. These negotiations are going to be successful, and what we agree on is actually implemented, the person who actually gives all the orders ought to be there. Mayor Ferre: I agree with that. Mr. Myers, I think two principles are T.C.I. and the General Manager and General Partner is Mr. Hermanowski, and I really think that they both should be present, at least in the conclusion of whatever the negotiations are made. I think that is a proper request of the Manager. Mr. Manager, that is a two-way street. That means that I don't mind Clark Merrill and Sue Smoller doing the preliminary stuff, but when it comes time to the cutting time.... Mr. Gary: Mr. Mayor, in all important things up to now, I've always been to the meetings. I've talked to him more than I've talked so some of my staff folks. Hermanowski has never been to a meeting or T.C.I. Mayor Ferre: I just want to make sure that it is clearly understood that Mr. Hermanowski and the Vice President of T.C.I. and the Manager be the ones to finally conclude whatever agreements you come to. Is that acceptable to everybody? 53 sl 2/16/84 3. APPROVE STREET CLOSING FOR "CALLE OCHO" FESTIVAL. Mr. Carollo: Mr. Mayor, I have a pocket item I want to bring up. It deals with Calle Ocho, Carnival Miami. It has been expressed to me that we have not approved the street closings yet. Mr. Plummer: Sure we did. Mr. Carollo: The closings will be the same as last year. So I would like to make a motion that we approve the street closings for Calle Ocho Carnival Miami, the same as we have done in prior years. Mr. Plummer: I second the motion. Mayor Ferre: Further discussion? Mr. Garcia -Pedrosa: Mr. Mayor, you need to call a special meeting. Mayor Ferre: I am calling a special meeting for the purposes of dealing with the closing of Calle Ocho. There has been a motion and a second made. Further discussion? Call the roll. The following motion was introduced by Commissioner Carollo, who moved its adoption. MOTION 84-207 A MOTION OF THE CITY COMMISSION GRANTING A REQUEST BY REPRESENTATIVES OF THE "CALLE 8 FESTIVAL" AND AUTHORIZING THE NECESSARY CLOSURE OF STREETS AS HAS BEEN GRANTED IN PRIOR YEARS. Upon being seconded by Commissioner Plummer, the motion was passed and adopted by the following vote: AYES: Commissioner Miller J. Dawkins Commissioner Joe Carollo Commissioner J.L. Plummer, Jr. Vice Mayor Demetrio Perez, Jr. Mayor Maurice A. Ferre NOES: None. ABSENT: None. sl 54 2/16/84 0 46 4. ALLOCATE $7,500 PURSUANT TO REQUEST FROM SOUTH FLORIDA EDUCATIONAL CONSORTIUM & PAN AMERICAN HEALTH ORGANIZATION FOR CHANNEL 2 SATELLITE PROGRAM. Mayor Ferre: Now Mrs. Torano, I have an item here. Would you please step forward and explain what this is all about? You and is the father still around? Father, come on up and explain what this is all about. Ms. Maria Elena Torano: I'm Maria Elena Torano, Co -chairperson of the International Health Care Committee of Greater Miami. Father Messik is representing Sister Jean O'Laughlin, who is Chairing the South Florida Educational Consortium. Last year you gave us $5,000 to bring the ministers of health that belong to the Pan-American Health Organization It was a most successful visit, and thanks to you, in three weeks we brought fifteen ministers and as a result, two requests for proposals have been received from Honduras and Ecuador. They will be provided —those countries have asked for services and products from the Greater Miami area, at least three hospitals and two educational institutions have responded. The system is that they would go to Paho, in Washington, and then the country who will make the decision.... Mayor Ferre: How is the Pan American Health Organization, is it part of the United Nations Health Organization? Ms. Torano: As a result of this very successful venture last October, which Miami really still doesn't realize the coup that we made or that we had. The Pan American Health Organization has received requests from other cities to take those ministers after the general assembly in September to visit, for example, the National Institute of Health in Washington and to visit the center for disease control which is in another state in the Union, Atlanta, Georgia. The only way, and I talked to the Director of the Pan American Health Organization yesterday, and the only way that he can instruct, convince, suggest for the ministers to come here again and what that would mean to Miami is that we have a very unique project that these people would be interested in. The thing that is happening is that Channel 2 has a concept which needs further I guess, consideration for telecommunications, hooking satelites that would distribute the signal, all kinds of medical programs and medical education, health education, not only to universities, colleges and hospitals, but also to the population in the area of nutrition, health prevention, etc. What we would need from you, there is a proposal for $15,000 to start this project going. What we would need from you is half of that amount so that we can go to Metro and we are ready to do so as soon as possible and come up with the $15,000 so that we have a viable project to offer to these people to bring them back to Miami. Mr. Carollo: Maria Elena, have you gone through the Administration yet? Ms. Torano: Joe, Commissioner Carollo, this happened yesterday. I came in. The Manager has been real, real busy. I have a copy there. No, the answer is no, I have not. Mr. Carollo: Let me tell you the problem that we have. We have a resolution that specifies that any request has to be channeled through the Administration beforehand. My concern is that if we go against this now, what do we tell everybody else? Ms. Torano: I agree. Mr. Carollo: What kind of a deadline are you working at? Ms. Torano: We need to get back to them within Monday or Tuesday of next week. Mr. Carollo: Mr. Mayor, you are chairing the meeting. sl 55 2/16/84 Mayor Ferre: I would recommend, Maria Elena, that we obviously, you have a time constraint on this. I think it has to be subject to the Manager's approval, but I would in principle, because of the time problem, aprove that we would go along with half of it, provided Metropolitan Dade County pays the other half. Our half doesn't go in until Metro puts in theirs. If you can get them to put up theirs, then you come and speak to the Manager. Ms. Torano: Well, I'd like to speak to the Manager first, so that he knows about it. Mayor Ferre: Why take his time up if you can't get the other half? 01k, Ms. Toranb: May I work that out with the Manager? Mayor Ferre: That's up to you and the Manager. What is the will of this Commission? Mr. Plummer: So move. Mayor Ferre: Is there a second? Mr. Perez: Second. Mayor Ferre: This is approval in principle paying half of that, provided that it's worked out with Metro, first of all to put up half, and then you work it out with the Manager and get his approval, subject to his approval. Ms. Torano: That's fine. Mr. Perez: But I think, Mr. Manager, that it would be important to all members of this Commission to have the opportunity to know more details about this project, because I am surprised I think I received some information today in my office, but I think it would be better to have a better commu- nication about this kind of project. Ms. Torano: Mr. Mayor, may I respond to Commissioner Perez? I have an appointment, I think, with you next week. It is in your calendar. I plan to be there. The reason that this came up today was that because I talked to those people last night at 5:00 o'clock and I was very worried. I really don't think that we should lose that. I went by your office today and you were busy. Mr. Plummer: Call the roll. Mayor Ferre: Call the roll. The following motion was introduced by Commissioner Plummer, who moved its adoption. MOTION 84-208 A MOTION APPROVING IN PRINCIPLE A REQUEST FOR FUNDS MADE BY MARIA ELENA TORANO REPRESENTING THE SOUTH FLORIDA EDUCATIONAL CONSORTIUM FOR THE "PAN AMERICAN HEALTH ORGANIZATION" IN CONNECTION WITH A PROPOSED TELEVISION HOOKUP INVOLVING CHANNEL 2 FOR THE SATELLITE TRANSMISSION OF MEDICAL PROGRAMS; FURTHER AUTHORIZING THE CITY MANAGER TO SIT WITH REPRESENTATIVES OF THE ABOVE -NAMED ORGANIZATIONS AND TO ALLOCATE AN AMOUNT NOT TO EXCEED $7,500.00 PROVIDED, HOWEVER, THAT A LIKE AMOUNT BE OBTAINED FROM METROPOLITAN DADE COUNTY. 56 2/16/84 sl 0 0 Upon being seconded by Commissioner Perez, the motion was passed and adopted by the following vote: AYES: Commissioner Miller J. Dawkins Commissioner Joe Carollo Commissioner J.L. Plummer, Jr. Vice Mayor Demetrio Perez, Jr. Mayor Maurice A. Ferre NOES: None. ABSENT: None. 5. DISCUSSION ITEM: CARNIVAL AT FLAGLER DOG TRACK SPONSORED BY MIAMI BEACH JAYCEES. Mayor Ferre: Now we have this gentleman from the carnival. State your name and tell us what your problem is. Mr. Tom Nimkin: My name is Tom Nimkin, manager of the James E. Strait Shows, the carnival that plays Flagler Race Way. We've been playing the Flagler Race Way for the past five years. We came down, our representative, Mr. Bronstein came down to Miami about a month ago to get the permit. He requested our date, which was February 17th through the 27th. At that time he was told that there was.... Mayor Ferre: Excuse me, where is Clark Merrill. Mr. Manager, through you, may I ask Clark Merrill to come back? Mr. Gary: What's wrong now? Mayor Ferre: He ain't through yet. Mr. Gary: Wait a second, Maurice. Mayor Ferre: Hey, this guy is just destroying our bond issues. I'd like to tell him to his face. Mr. Plummer: Well, can you do it in private? Mr. Gary: Maurice, do it in private. Mayor Ferre: O.K., go ahead. Mr. Nimkin: There hadn't been an amendment that carnivals were only allowed to be playing on three days on Friday, Saturday, and Sunday and then close and then reopen. But our agent was asured that this had nothing to do with the Flagler Race Way because it was private property. We went ahead and went through the expense of bringing our show down from Orlando. We have a railroad show and advertise on T.V., radio, and Pepsi Cola promoting our wrist bands which•we give to the kids. They ride all day for $5.00, all rides as many times as they want to. That's Monday and Tuesday. We're supposed to open tomorrow and we were given this today that it's only a three day at a time fair. We're in trouble. We're in serious trouble. I'd like to ask the Commission if there is any way they can help us this year, if we have to abide by it next year, we'd be prepared for it. sl 57 2/16/84 0 4 Mr. Plummer: Sir, it's going to be extremely rough for this Commission because we have just addressed that issue on two other carnivals. What we did in a carnival very similar to yours for a charitable institution, which you are not, we made them, sir, break it up into two week -ends. We did not allow them to run straight through. So, sir, I would have to say, I can't speak for others, but I would have to say that if we deny the right to a charitable institution of this community, I don't know how this Commission could turn around in good faith and give it to you, which is a profit -making organization. Mr. _Nimkin: If we were told at the time. Mr. Commissioner, that we could only play three days, there is no way we would have come down to play it. That's what I'm trying to say. Had we known, before we put in for the permit... Mr. Plummer: Sir, don't they have to take out a permit. Mr. Gary: First of all, we told him ahead of time that it was only three days. Mr. Nimkin: Nn, Sir Mr. Gary: Excuse me, I let you finish. According to staff, we told him ahead of time they were looking at three days. More importantly, this City Commission has a policy. Thirdly, this is the Jaycees in Miami Beach coming over here to have a carnival in Miami. My opinion is they can live with our policy or they should have it in Miami Beach, probably should have had it there first. Mr. Plummer: Sir, unless some member of this Commission is willing to make a motion, you'll have to abide by the policy. I'm telling you for one, the rest can speak for themselves, I am not willing to offer such a motion. Mr. Nimkin: CAn T se,, one other thing? Mr. Plummer: You can say anything you want, sir. Mr. Nimkin: When we applied for the permit, Cesar Noro was the one who told my representative, Mr. Ben Bronstein, that it would not affect us at the Flagler Race Way. Mr. Plummer: Sir, you have to go back to the man who told you that and get a clarification because he told you wrong. Mr. Nimkin: We've been trying to reach him. This is the gentleman, Mr. Bronstein. INAUDIBLE BACKGROUND COMMENTS NOT ENTERED INTO THE PUBLIC RECORD. Mr. Plummer: Sir, if you wish to speak, your name and address. Mr. Benjamin Bronstein: My name is Benjamin Bronstein. I'm in marketing and sales at the James E. Strait Shows. I would just like to explain this situation. When they gave us the ruling, that's a month ago we are talking of, I met Mr. Odio and he told me that he didn't think that this would apply to the Flagler Dog Track, the Kennel Club. Had he instructed me as such, we would not have gone into the expense of coming in here. We have been here for five consecutive years and abided by all rules and regulations. The situation as it is now, sir, it is an imposition on our part to a great deal of expense. We move on 50 railroad cars. It is an organization that travels from the State of Florida to the Canadian border, presenting nothing but the most outstanding thrill rides of the country, and we are proud of the fact that we were able to come in here. The only thing we are asking now is if it is posible that the Commission could see it fit to let us operate from now till the time we close. I'll asure you the state will be forgotten. I mean, it's one of them things that had Mr. Odio said that we would come under the same resolution, I would not have gone through the preparation of expending advertisements, radio, television, newspapers and prepare. We have a big promotion coming up on Monday and Tuesday sponsored by the Pepsi Cola Company. It's rather sl 58 2/16/84 4 sl Mr. Bronstein (Con't): see, by allowing us at misunderstanding. a predicament. I plead, if you fellows can this time. It's 100% truthful mistake and a Mr. Plummer: Sir, once again, I can speak for myself. Unless some member of this Commission is willing to make a motion to give you a waiver, you must adhere to the policy. Mr. Dawkins: I can only ask you, sir, that you go to Miami Beach and ask them to make available some space around the Miami Convention Hall. There is a lot of parking space there that those Jaycees who vote in Miami Beach will be able to put some pressure on those Commissioners and get the use of it. Mr. Bronstein: Commissioner Dawkins, I appreciate that. We are in a predicament right now. Mr. Dawkins: We can't help you, sir. If we give you the variance that you want, sir, tomorrow, I mean next week we'll have four more people, plus we may open ourselves up to a court suit for having denied two previous groups this same right. It's just something we can't do, sir, even if we wanted to. Mr. Bronstein: It isn't the question of going from one city to another city. Mr. Dawkins: I understand what you are saying. I'm just trying to help you find a solution. See, I'm just trying to tell you that we can't do anything. I was just offering an alternative that might be a solution, that's all. Mr. Bronstein: I don't think there is anything. The only thing is we... I don't know. We are pleading at the sympathy of this council. I think that when somebody who represents this City of Miami in a position specifically said that the track didn't come under that, that's why we went ahead and made all these plans. Now we are in the predicament now. Mr. Dawkins: But you see, you are saying the same thing over, just like this gentleman gave you the wrong information and you made a mistake and brought your material down here, it can't be corrected. So every- body makes mistakes. Mr. Bronstein: With that, I agree. Mr. Dawkins: But now, I don't know what he told you, sir. I'm hoping that he gave you better information than that, I'm hoping. But even if he didn't, they only work as administrators. Mr. Bronstein: Yes. Mr. Dawkins: This is a legislative body and we pass legislation that no carnival could be held in the City of Miami over three days and that had to be the week -end. So, that's it. Mr. Bronstein: I'm not here to argue. I'm here to do it gently, because I've never been confronted with any city and I've traveled all over the country. *fir. Nitnkin: Thank you for your titre. Mr. Dawkins: Thank you, sir. 59 2/16/84 sl norm �w � mi�mru r�imrr^=------------------------------------------------------------------------- 6. DISCUSSION OF WORLD PRESIDENT. Mr. Emile Mettallik: I sent 7,000 letters around the world in about 20 years and I haven't received one answer. I sent about 300 letters a month. 'I think it is the best information in the world and I challenge anybody to dispute it. Mr. Plummer: I'm sorry, I missed your name. Mr. Mettallik: Emile Mettallik, I'm the world U.S. presidential voluntary candidate for 21 years almost. Mayor Ferre: Candidate for what? Mr. Mettallik: For the world of the United States. Mayor Ferre: For the what? Mr. Mettallik: For the United States. Mayor Ferre: For president? Mr. Plummer: Are you a Miami resident, sir? City of Miami? Mr. Mettallik: I certainly am. Mr. Plummer: And your mailing address? Mr. Mettallik: 1910 N. Bayshore Drive, which is a nice place to have conventions. Mr. Plummer: I don't disagree with that, sir, but you say you are the president of the world? Mr. Mettallik: I didn't say I was the president. I said I was a candidate. Mr. Plummer: You are a candidate for the world? Mr. Mettallik: And the United States for almost 21 years. Mr. Plummer: Who is presently the president? Who are you running against, sir? Mr. Mettallik: I'm after his impeachment. Mr. Plummer: And whaL is his name? Mr. Mettallik: Ronald Reagan. Mr. Plummer: I thought he was only the President of the United States. Mr. Mettallik: Don't have the experience to have the -job. Mr. Plummer: Oh, all right, sir, and what is it that you are asking of this Commission? Mr. Mettallik: Well, I want to make copies of this letter and hopefully see if these people get these letters or what their answers are, because I'm not getting any answers out of 7,020 years. I put out a couple of self-addressed letters and they haven't even come back, the same thing I'm doing now. 60 2/16/84 Mayor Ferre: Somebody is tampering with the mail. Mr. Mettallik: O.K., I want to find out who it is. Maybe this is what Harms and Gary dispute is all about. Mayor Ferre: I think Plummer has something to do with it myself. Mr. Mettallik: O.K., that's all I wanted to say. Mayor Ferre: Have you looked around your neighborhood to see who your neighbors are? Thank you, sir. The world and U.S. presidential candidate, O.K. ADJOURNMENT: There being no further business to come before the City Commission, on motion duly made and seconded, the meeting was adjourned at 6:10 P.M. ATTEST: RALPH G. ONGIE City Clerk MATTY HIRAI Assistant City Clerk MAURICE A. FERRE Mayor qL I 61 2/16/84