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Home My WebLink AboutO-09760ORDINANCE NO. 9 6 0 AN EMERGENCY ORDINANCE AMENDING SECTION 2 OF ORDINANCE N0. 9740, ADOPTED NOVEMBER 16, 1983, WHICH RELATED TO STREET RESTORATION COSTS, BY EXEMPTING FROM SAID ORDTNANCE HOLDERS OF CITY FRANCHISES IN WHICH THE SUBJECT MATTER OF STREET EXCAVATION HAS BEEN ADDRESSED: CON- TAINING A REPEALER PROVISION AND A SEVERABILITY CLAUSE. BE IT ORDAINED BY THE COMMISSION OF THE CITY OF MIAMI, FLORIDA; Section 1. Section 2 of Ordinance No. 9740, adopted November 16, 1983, relating to street restoration costs is here- by amended in the following particulars:l/ "Section 2. The City Manager is hereby instructed to schedule the subject of improper street restora- tion together with a copy of the herein ordinance on a City Commission meeting agenda in November, 1984. Any holder of a City franchise in which the subject matter of street excavation has been addressed shall be exempt from the provisions of th'e herein ordinance; provided that said franchise holder be in full compliance with said franchise agreement." Section 2. All ordinances or parts of ordinances in conflict herewith, insofar as they are in conflict, are hereby repealed. Section 3. If any section, part of section, paragraph, clause, phrase or word of this ordinance is declared invalid, the remaining provisions of this ordinance shall not be affected. Section 4. This ordinance is hereby declared to be an emergency measure on the grounds of urgent public need for the preservation of peace, health, safety, and property of the City of Miami. Section 5. The requirement of reading this ordinance on two separate days is hereby dispensed with by an affirmative vote of not less than four -fifths of the members of the commission. PASSED AND ADOPTED this 8th day of December , 1983. Maurice A. Ferre MAURICE A. FERRE, MAYOR ATTEST; ALPH T,, ONGIE, CITY CLER Underscored words anchor figures shall be added. F Y, r`" 1 ,G .v ORDINANCE NO. 9 6 0 AN EMERGENCY ORDINANCE AMENDING SECTION 2 OF ORDINANCE N0, 9740, ADOPTED NOVEMBER 16, 1983, WHICH RELATED TO STREET RESTORATION COSTS, BY EXEMPTING FROM SAID ORDINANCE HOLDERS OF CITY FRANCHISES IN WHICH THE SUBJECT MATTER OF STREET EXCAVATION HAS BEEN ADDRESSED; CON- TAINING A REPEALER PROVISION AND A SEVERABILITY CLAUSE. BE IT ORDAINED BY THE COMMISSION OF THE CITY OF MIAMI, FLORIDA: Section 1. Section 2 of Ordinance No. 9740, adopted November 16, 1983, relating to street restoration costs is here- by amended in the following particulars:l/ "Section 2. The City Manager is hereby instructed to schedule the subject of improper street restora- tion together with a copy of the herein ordinance on a City Commission meeting agenda in November, 1984. Any holder of a City franchise in which the subject matter of street excavation has been addressed sba,11" be exempt from the provisions of the herein ordinance; provided that said franchise holder be in full compliance with said franchise agreement." Section 2. All ordinances or parts of ordinances in conflict herewith, insofar as they are in conflict, are hereby repealed. Section 3. If any section, part of section, paragraph, clause, phrase or word of this ordinance is declared invalid, the remaining provisions of this ordinance shall not be affected. Section 4. This ordinance is hereby declared to be an emergency measure on the grounds of urgent public need for the preservation of peace, health, safety, and property of the City of Miami, Section 5. The requirement of reading this ordinance on two separate days is hereby dispensed with by an affirmative vote of not less than four -fifths of the members of the commission. PASSED AND ADOPTED this 8th day of December , 1983. <1 Maurice A. Ferre MAURICE A. FERRE, MAYOR ATTEST: 001) ALPH ONGIE, CITY CLER 1/ k Underscored words and/or figures shall be added, �fi Z' 29 PREPARED AND APPROVED BYt 4-4000 Woo 40RRT F. CLARK, DEPUTY CITY ATTORNEY APPROVED AS TO FORM AND CORRECTNESS: J GARCIA—PEDROSA, CITY ATTORNEY 1, Ongle, Clerk of the lCity of Miami, Florida, bQxQby eertlfy that on tile. 0` t♦'ay of... . A, D, full, it u, and correct copy of the.above and fP going ordinance was posted at the South Door or the hack County Court House ;it the P1.1ce provided for notices and publications by attachiag said copy to .tile ,place Provided therefor. W1TN 5 roy hand and the official scat of said ,City. this . ay. ......A./�i.'j/� Clly Clerk — 2 — `48 A, ✓o—xe RECEIVED - Q�c o� ►�s FLORIDA POWER 6 LIGHT COMPANY ici 1 rti �W INTER -OFFICE CORRESPONDENCE D I$ T R I C I: LOCATION General Office TO GUY J. Sanchez GATE November 309 19g.1 FROM Law Department COPIES TO Frank Thompson SUBJECT: CITY 01? MIAMI ORDINANCE - STREET REPAIRS You have requested our legal opinion on the validity of the subject ordinance which was passed by the City Commission of the City of Miami on November )61,41983, and which requires a cash performance bond to be posted prior to performing excavation on public property in the City of Miami. While we have not had an opportunity to conduct an exhaustive research on this question, in my opinion this ordinance is not valid as to Florida Power & Light Company. Our reasons are as follows: The franchise contract between FPL and the City of Miami (Ordinance No. 9472, passed September 9, 1982) requires our Company to construct and maintain our facilities in accordance with established practice in the industry (Section 1) and to restore excavations "within a reasonable time and as early as practicable" and "in a condition as good as it was at the time of such excavation" (Section 3). Also, Section 4 of the franchise ordinance requires our Company to indemnify the City against "any and all liability, loss, costs, damage or expense which may accrue to [the CRA by reason of negligence, default, or misconduct of [FPTJ in the construction, operation, or maintenance of its facilities hereunder." (I note that the subject ordinance refers to a lack of timeliness in making repairs as =L: well as to "financial loss" to the City. Both of these situations were contemplated In and would appear to be proscribed by the provisions of the franchise.) Accordingly, the provisions of this ordinance, as they would apply to Florida Power & Light Company, would appear to alter the remedy portions and to otherwise modify or amend the substance of the franchise contract between FPL and the City of Miami. These provisions, therefore, would constitute an impairment of the franchise contract and would violate Section 10, Article 1, of the Constitution of the State of Florida and the Constitution of the United States, both of which prohibit the passage of any law impairing the obligations of contracts. (City of Miami v. Bus Benches Co., 174 So. 2nd 49 (1965); AGO 078-43, March 9, 1978F 976 PEOPLE... SERVING PEOPLE Form 1008 (Stocked) Rev. AWI,, 1 Guy J. Sanchez Page 2 November 30, 1983 1 might add, even if the subject ordinance were other u der this wise porbi lieveFPL would be entitled to deduct any impositions of costs the franchise fees payable pursuant to Section 6 of the franchise for such impositions under the of Miami. Clearly, FPL would be entitled to credit terms of the franchise agreement. l r � E. P. Ahrens, Jr. Manag�oLaw Department EPA:gmf MIAMI REVIEW AND DAILY RECORD Pubilsb6d Daily oxcept Satufft. Sunday and Lagal Holiday$ Mimi, Dade County, Florida. STATE OF FLORIDA COUM OF DAM I saws *A wkwwpw adhoft psresnaiI appowed n- - SWW, who on wo " Mal do Is do Assistant to ft PubUm of Ow 111111and Rwim and Defy 80004 2 410111 WOMA ashmft, Sumiday and LoW H~ I I P-P publlahsd et Ullmg In Deft County, Florida;OWN* atteolred In " fillatter CITY OF 141AMI Re: ORDINANCE NO. 9760 in ow ...... X. X. A ........................... court, wes Pwm*ad in ula mwspopsr Intheissues of Dec.16, 1983 it *vMnr a"* to dw am mamm a nsrrepapar p*Mftd at NION In- aUtics 'lim own" No r.! 1"flw - of am 001 ym- lob a' go $Whas ownof m~h jw- no"" et 1010 at Lop iiij- W-F-- 6 ON A ebuiev., 11 All'intwested will 'take 'h6titt that On the Sth ddybi,: 1W, t . he CRY CO M(niStion,-. titled ordinances: OAbjNikNcg NO. 6709,,: kN ORDWAN't"EN NQL CM Itft, m 81 "" 'NANCt NO--0 m -ANNUAL *P0A61'A'ATI()N YEAH ENIPI G,-, FPTEMBE 'INOtASINg. 'APPRO R POW Fb"tk INI _6Y wdftoNd ANTOPA, B -AMOU4rmosx. 'Meg RE, Fy -POSE OO-ALWcAtk ' d 0; P - A' *Aj CONTANTA JI i i4' e*' 'ONTM90b 'h&b AN'EMERG bir?taDINANOE�itipili OROINANCE,K0.9M, L L! AIM! 0,M40 fl 01's 4A fN 1ON.H S:BrzE "Ubflt' E If A., I T) A"A A dthft"s), -Poo IRS - A