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HomeMy WebLinkAboutO-09064I I ORDINANCE NO. n 0 6 4 3 AN ORDINANCE GRANTING TO SOUTHERN BELL TELEPHONE AND TELEGRAPH COMPANY, ITS SUCCESSORS AND ASSIGNS A FRANCHISE GRANTING THE RIGHT TO THE USE OF PUBLIC RIGHT OF WAY TO INSTALL NECESSARY TELEPHONE EQUIPMENT; PROVIDING FOR ONE PERCENT FRANCHISE FEE, TO BE AUGMENTED BY ONE PERCENT ON JANUARY 1, 1981 ?AND ACAIr ON JANUARY 1, 1982; PROVIDING FOR ALL PAYMENTS IN EXCESS OF ONE PER- CENT TO BE DEPOSITED IN A SPECIAL ACCOUNT TO BE USED FOR FUNDING EMERGENCY MEDICAL RESCUE SERVICES AND EQUIPMENT; IMPOSING PROVISIONS AND CONDITIONS; REPEALING ALL ORDINANCES IN CONFLICT AND CONTAINING A SEVERABILITY PROVISION; AND DISPENSING WITH THE REQUIREMENT OF READING SAME ON TWO SEPARATE DAYS BY A VOTE OF NOT LESS THAN FOUR -FIFTHS OF THE MEMBERS OF THE COMMISSION. BE IT ORDAINED BY THE COMMISSION OF THE CITY OF MIAMI, FLORIDA: Section 1. Definitions. For the purposes of this Ordinance, the following terms, phrases, words, and their derivations shall have the meaning given herein. When not inconsistent with the context, words used in the present tense include the future, words in the plural number include the singular number, and words in the singular number include the plural number. The word "shall" is always mandatory and not merely directory. (a) "City" is the grantor City of Miami, Florida. (b) "Commission" is the City Commission of the City of Miami, Florida. (c) "Company" is the grantee of rights under this Franchise, Southern Bell Telephone and Telegraph Company. (d) "Person" is any person, firm, partnership, association, corporation, company or organization of any kind. Section 2. Grant. (a) Grant. The City hereby grants to the Company, its successors and assigns, a Franchise for permission to construct, operate and maintain lines and equipment of telephone and telegraph, including poles, fixtures, conduits, cables, electrical conductors and subways for electrical conductors, together with the necessary manholes upon, along, over and under the public roads, streets, highways, alleys and rights of way of the City as its business may from time to time require. This Franchise shall cover the territory embraced within the City limits of the City as they now exist or as they may hereafter be extended. This Franchise shall be subject, however, to all the provisions, conditions and restrictions hereinafter set out. (b) Non -Exclusive Grant. The right to use and occupy said streets, alleys, public ways and places for the purposes herein set forth shall not be exclusive. (c) Term. This Franchise shall remain in effect from and after August 12, 1976, and shall expire at midnight on August 11, 2006. (d) Approval of Transfer. The Company shall not sell or transfer its plant or system to another, nor transfer any rights under this Franchise to another without prior Commission approval. No sale or transfer shall be effective until the vendee, assignee, or lessee has filed in the Office of the City Clerk an instrument, duly executed, reciting the fact of such sale, assignment or lease, accepting the terms of the Franchise and agreeing to perform all the conditions thereof. The City will not unreasonably withhold its consent to the transfer of this Franchise. (e) Renegotiation. Not later than September 15, 2004, there shall be a Special Meeting of the City Commission called to initiate negotiations leading to a new Franchise with the Company and for the purpose of scheduling any referendum as may be required for the execution thereof. Section 3. Supervision by the City. (a) Restoration. In case of any disturbance by the Company of pavement, sidewalk, driveway or other surfacing, the Company shall, at its own cost and expense and in a manner approved by the City Manager or his designated representa- tive, replace and restore all paving, sidewalk, driveway or surface of any street or alley disturbed, in as good condition as before said work was commenced, and shall maintain the restoration in an approved condition for a period of one (1) year except for damages due to actions of others subsequent to the restoration. However, should the Company fail to commence restoration after seven days notice, in writing, to said Company by the City Manager or his designee, the City may repair and replace such portions of the sidewalk or street or other public place that may have been disturbed by said Company and the cost of the same shall be paid by the Company. 9064 11 (b) Conditions of Street Occupancy. All poles, wires, cables, underground conduits, manholes and other telephone fixtures erected by the Company in, upon, along, across, above, over and under the streets, alleys and public ways within the City shall be su located as to cause minimum interference with the common use of said streets, alleys, and other public ways. (c) Removal. The Company, its successors or assigns, shall, at its own expense, at the direction of the governing authority of the City, move such poles, underground cables or wires, including changing the height of such wires, as may at any time unreasonably interfere with, hamper or restrict the common use of any street, avenue or alley in the City. Section 4. Consideration. (a) Payment to the City. The streets and other facilities of the City to be used by the Company in the operation of the telephone system within and beyond the corporate limits of the City are valuable public properties acquired and maintained by the City at great expense to municipal taxpayers, and the right to use said streets and facilities is a valuable property right without which the Company would be required to invest wxbstantial capital in right of way costs and acquisition; therefore, as consideration for the use of said streets and other facilities of the City for the Company's purposes herein provided, the Company shall pay to the City an amount equal to the percentages below listed for the periods shown, of the local recurring revenues taken in and received by it from all subscribers within the City for the transmission of sound and signals or other means of communication: (1) 1% - January 1, 1976, through December 31, 1976 February 1, 1977. (2) 1% - January 1, 1977, through December 31, 1977 February 1, 1978. (3) 1% - January 1, 19/8, through December 31, 1978 February 1, 1979. (4) 1% - January 1, 1979, through December 31, 1979 February 1, 1980. (5) 1% - January 1, 1980, through December 31, 1980, February 1, 1981. (6) 2% - January 1, 1981, through December 31 beginning February 25, 1981, subject Section 4 (c). (7) 3% - January 1, 1982, through August 11, beginning February 25, 1982, subject Section 4 (c). -3- paid annually on paid annually on , paid annually on , paid annually on paid annually on , 1981, paid monthly to the provisions of 2006, paid monthly to the provisions of 9064 Such percentage changes to coincide with the decreasing Federal Telephone Excise Tax which said tax will decrease by one percent (1%) in January, 1981, and one percent (1%) per year until such Federal Excise Tax is eliminated in 1982. All payments in excess of one percent (1%) shall be deposited in a special account to be used for funding Emergency Medical Rescue Services and Equipment as provided for by Resolution of the Commission of the City of Miami, Florida. (b) Base. The Franchise Revenue Base shall be: (1) Monthly charges for local exchange service including: (a) Charges for additional listings and joint users; (b) The recurring portion of the charge for semi-public pay station service and the local message charges for such stations; (c) Charges for private branch exchange and business local message rate service, including mobile service local messages; (d) Subscriber station revenue from teletypewriter exchange services or equivalent or substituted service (2) All charges for local private line services including audio and video program transmission services where both terminals of the private line are within the City limits. (3) Charges for Morse transmissions, signaling, data transmission, remote metering and supervisory control, where both terminal points are within the City limits. (4) If the Company in the future changes its method of billing from a local recurring basis to a measured rate basis for local exchange service and such change results in a reduction of the franchise revenue base, then the City and Company will jointly agree to adjust the revenue base to make up for any loss of revenue. Such changed base will have the same growth potential as those items contained in the original Franchise Revenue Base. In the event the Company and City cannot agree on how this reduction should be made up, it is agreed that this matter shall be resolved by the Florida Public Service Commission. If the Florida Public Service Commission refuses to act then the parties agree to refer the matter to established American Arbitration Association proceedings. (c) Increase in Payments. If in the future, during the term of this Franchise, the Company makes or agrees to make a franchise payment to another political sub- division or local governmental authority within the Company's operating area, of over • 50,000 population, that is equivalent to more than three percent (3%) bf Local = Recurring Revenues, as defined hereinabove, of such other subdivision or authority, -4- °064 yii regardless of the items included in the Revenue Base of such other sub -division or authority, the Company shall expand the City Revenue Base, on a mutually acceptable basis, or increase the City percentage of Local Recurring Revenues to provide an equivalent percentage return to the City. The Company agrees to furnish to the City within 60 days from the effective date of any such franchise or agreement, a copy of such franchise or agreement. The City shall within 60 days from receipt of a copy of such franchise or agreement approve the same by a four -fifths (4/5) vote of the City Commission. In the absence of approval by the City Commission aforesaid within 60 days of receipt of a copy of said franchise or agreement the City will have waived its rights to additional franchise fees. (d) Use of Company Facilities. The Company, when requested by the City, shall designate and provide without cost to the City for municipal purposes only: (1) 0n any pole, where such pole is of sufficient size and height, owned by the Company and located within the City, space for an operable light fixture and (2) in each underground conduit owned by the Company and located within the City, provided, however, that no use shall be made by the City of said space on such poles or of said ducts which will result in interfering with or impairing the operation or use of the Company's property or service, or which will endanger, damage or injure the person or property of the public or employees of the Company or City. (e) Payments Inverval - First Payment. Notwithstanding the provisions of sub- section (a) of Section 4 hereinabove, the Company will make payments to the City as hereinafter provided: (1) On or before February 1, 1977, one percent (1%) of its Local Recurring Revenues for the period commencing January 1, 1976, through December 31, 1976 (2) 0n or before February 1, 1978, one percent (1%) of its Local Recurring Revenues for the period commencing January 1, 1977, through December 31, 1977 (3) On or before February 1, 1979, one percent (1%) of its Local Recurring Revenues for the period commencing January 1, 1978, through December 31, 1978 (4) On or before February 1, 1980, one percent (1%) of its Local Recurring Revenues for the period commencing January 1, 1979, through December 31, 1979 (5) On or before February 1, 1981, one percent (1%) of its Local Recurring Revenues for the period commencing January 1, 1980, through December 31, 1980 (6) On or before February 25, 1981, the Company will begin making monthly payments based on two percent (2%) of its Local Recurring Revenues for the prrceding month beginning January 1, 1981 (7) On or before February 25, 1982, the Company will make monthly pay- ments based on three percent (3%) of its Local Recurring Revenues for the preceding month beginning January 1, 1982, and such pay- ments shall continue throughout the term of this agreement unless -5- 9064 w changed under the provisions of Section 4 Paragraph (c) as here- inabove provided. (f) CATV Prohibition. The Company agrees that it will not provide distribu- tion facilities for a CATV or pay television system to any person who does not have the necessary authority from the City to operate same. Section 5. Indemnification. The Company, its successors and assigns, shall indemnify and hold the City harmless against and shall assume all liability for damages which may arise or accrue to the City by reason of any injury to person or to property from the doing of any work herein authorized, for from the neglect of failure of the Company or any of its employees to comply with the provisions of any ordinance of the City applicable to such work; and the acceptance by the Company of the rights and privileges granted to it by this Ordinance shall constitute an agree- ment by the Company to pay to the City any sum of money for which the City shall become liable by reason of any such injury and any sum incurred by the City as costs in its defense against said claim of injury; provided, however, that in the event the City is presented with a claim for which it claims indemnity from the Company, it shall, as soon as practicable, notify the Company and tender said claim to the Company and the Company shall, within 20 days, accept such tender and provide a defense or otherwise dispose of said claim. Section 6. Acceptance and Enactment. (a) Acceptance. The Company shall file with the City Clerk of the City its written acceptance and approval of this Ordinance within thirty (30) days from and after the date on which this Ordinance shall become effective, and upon said accep- tance by the Company of the grant herein, the terms and conditions hereof shall be binding on both the Company and the City. (b) Enactment. The Ordinance shall be in force and effect from and after its passage and adoption by the City Commission of the City, and compliance by the Com- pany with the provisions of subsection (a) hereof, and upon the subsequent approval hereof by a majority of the qualified voters of the City voting at an election held therefore. Section 7. Use of Streets. (a) Governmental Control. The Company its successors and assigns, shall be subject at all times to the City Charter and any amendments thereto, which do not change the essential terms of this Franchise, heretofore or hereinafter adopted, re- gulating excavations in public highways, or governing the issuance of permits for -6- 9064 such excavations, or regulating or prohibiting the maintenance of poles and wires and lines, and all other valid ordinances heretofore or hereafter adopted relative to the use of the public streets and highways of the City. (b) Non -Surrender. Nothing in this Ordinance shall be construed as a surren- der by the City of its right or power to pass ordinances regulating the use of its streets. Section 8. Accounting and Record Keeping. (a) Accounting. The Company shall furnish a monthly report and breakdown of the elements that make up ment hereunder is made. (b) Availability of Records. Such records as are required under subsection (a) hereof shall be kept counting principles. All the Franchise Revenue Base upon which each Franchise pay - and maintained in accordance with generally accepted ac- of the said records shall, on written request of the City, be open for examination and audit in Dade County, Florida by the City's Internal and External Auditors and their staff during ordinary business hours, and such records shall be retained by the Company for a minimum of three (3) years. (c) Annual Audit. The Company shall provide the City annually with a copy of a certified audit of the books and records from which the elements contained in subsection 4 (a) and 4 (b) are obtained. Such audit shall be conducted by the same auditing firm which prepares the audit required of the Company by the Florida Public Service Commission and be accompanied by a statement similar to that shown in Exhibit No. 1 attached hereto and made a part hereof. (d) Underground Installation Records. The Company shall provide the City with as built records of its underground installation on sheets provided by the Company within 60 days of the completion of the installation. Section 9. Reservation of rights. The Ordinance shall not affect or invalidate any valid Franchise rights which the Company or the City may now have under and by virtue of any valid Franchise previously granted to the Company or its predecessors. Section 10. Acquisition. The City Company, as a condition precedent to the herein granted, to give and grant to the term of thirty (30) years for which this hereby reserves the right and requires the taking effect of the right of the Franchise City the right upon the expiration of the Franchise is granted, to purchase the tele- phone plant and other property located upon, along, over and under the public roads, streets, alleys and rights of way within the corporate limits of the City, which is used under or in connection with the Franchise or right hereby granted, or such part of such property as the City may desire to purchase at the current reproduction -7- nO64 cost new less depreciation value of such property, real and personal. If the City desires to exercise its option to acquire any portion of the Company property, it shall give the Company notice of its intention to purchase at or before the expira- tion of the thirty (30) year term of this Franchise and it shall have no more than two (2) years following the expiration of said term to consummate the purchase of such property; provided, however, that during said two (2) year period the terms and conditions herein shall pertain. The City and the Company also hereby reserve all powers of eminent domain which the City may have under its present Charter or the City or the Company may have under the General Laws or the Constitution of the State of Florida. Section 11. All ordinances, or parts of ordinance, insofar as they are incon- sistent or in conflict with the provisions of this Ordinance, are hereby repealed. Section 12. If any section, part of section, paragraph, clause, phrase or word of this Ordinance is declared invalid, the remaining provisions of the Ordinance shall not be affected. Section 13. The requirement of reading this Ordinance on two separate days is hereby dispensed with by a vote of not less than four -fifths of the members of the Commission. PASSED AND ADOPTED this 24th ATTES Ralp G. Ongie, City Clerk PREPARED AND APPROVED BY: G. Miriam Maer Assistant City Attorney City AS TO FORM AND CORRECTNESS: -8- day of Jaguary , 1980. Maurice A. Ferre Maurice A. Ferre, MAYOR °064 SOUTHERN BELL FRANCHISE ORDINANCE - EXHIBIT 1 City Commission City of Miami We have examined the accompanying statement of franchise revenues of the Southern Bell Telephone and Telegraph Company which are subject to the franchise fee, as defined under the terms of the franchise agreement, Ordinance No. , dated with the City of Miami, Florida, for the year ended December 31, 19 . Our examination was made in accordance with generally accepted auditing standards, and accordingly included such tests of the accounting records and other such auditing procedures as we considered necessary in the circumstances. In our opinion, the accompanying statement presents fairly the franchise revenues of the Southern Bell Telephone Company which are subject to the franchise fee, as defined, for the year ended December 31, 19 , under the terms of the aforementioned franchise agreement. r 9064 MIAMI REVIEW AND DAILY RECORD Published Daily except Saturday, Sunday ant. Legal Holidays Miami, Dade County, Florida. STATE OF FLORIDA COUNTY OF DADE: Before the undersigned authority personally appeared Octelma V. Ferbeyre, who on oath says that she is Supervisor, Legal Advertising of the Miami Review and Daily Record, a daily (except Saturday, Sunday and Legal Holidays) newspaper, published at Miami in Dade County, Florida; that the attached copy of advertisement, being a Legal Advertisement or Notice In the matter of ..CITY Q.F MIAMI Ordinance No. 9064 in the X X X Court, was published in said newspaper in the issues of aanilary 28, 1980 Affiant further says that the said Miami Review and Daily Record is a newspaper published at Miami, in said Dade County, Florida, and that the said newspaper has heretofore been continuously published in said Dade County, Florida, each day (except Saturday, Sunday and Legal Holidays) and has been entered as second class mail matter et the post office in Miami, in said Dade County, Florida, for a period of one year next preceding the first publication of the attached copy of advertisement; and affiant further says that she has neither paid nor promised any person, firm or torpor Lion any discount commission or refund for a purpose NsieEll :. vertisement for pu icption in t s -), horn tcllbot14sibscriged bifore me this y,• ar NotarVI • MiA,,Stdteof Florida at arge My Co ission expires July 17, 2. (SEAL) M R -93 City CIts.01, MIAMI, City of IlbppirhielrilY: FLORIDA LEGAL NOTICE All interested persons will take notice that on the 24th day of January, 1980, the City Commission of Miami, Florida, adopted the fol- lowing titled ordinance: ORDINANCE NO. 9064 • AN ORDINANCE GRANTING TO SOUTHERN BELL TELEPHONE AND TELEGRAPH COMPANY, ITS SUCCESSORS AND ASSIGNS A FRANCHISE GRANTING THE RIGHT TO THE USE OF PUBLIC RIGHT OF WAY TO INSTALL NECESSARY TELEPHONE EQUIPMENT; PROVIDING-FORONE Pf ecektritANotts 'PrEBi Ttrtir AUGMENTED BY ONE PERCENT ON JANUARY' 1,.1981 AND AGAIN ON JANUARY 1, 1982; PROVIDING FO-R ALL PAYMENTS IN EXCESS OF ONE PERCENT TO BE DEPOSITED IN A SPECIAL ACCOUNT TO BE USED FOR FUNDING EMERGENCY MEDICAL RESCUE SERVICES AND EQUIPMENT; IMPOSING PROVISIONS AND CONDI- TIONS; REPEALING ALL ORDINANCES IN CONFLICT AND CONTAINING A SEVERABILITY PROVISION; AND DISPENSING WITH THE REQUIREMENT OF READING SAME ON TWO SEPARATE DAYS BY A VOTE OF NOT LESS THAN FOUR -FIFTHS OF THE MEMBERS OF THE COMMIS- SION. RALPH G. ONGIE CITY CLERK CITY OF MIAMI, FLORIDA Publication of this Notice on the 28 day of January 1980 1/28 M80-012862