HomeMy WebLinkAboutO-08819ORDINANCE NO, 8 Pi .1_...
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, INCREASING BY ONE PERCENT IN EACH OF TWO
SUCCEEDING YEARS AT THE SAME TIME AND RATE THE
FEDERAL EXCISE TAX IS REDUCED; PROVIDING FOR
ALL PAYMENTS IN EXCESS OF ONE PERCENT TO at
DEPOSITt0 IN A TELEPHONE FRANCHISE PUBLIC
CONTRUCTION RESERVE ACCOUNT, IMPOSING PROVISIONS
AND CONDITIONS, REPEALING ALL ORDINANCES IN
CONFLICT AND CONTAINING A SEVERABILITY PROVISION,
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
Oity 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-Exc usl,ve 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 unreasonable 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 representative, 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 period of
one (1) year except for damages due to actions of others subsequent
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to the restoration. However, should the Company fail to COMMON
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►
(b) Cbnditjons.bf street,pccupancy► 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 so 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 facilties
is a valuable property right without which the Company would be required
to invest substantial capital in right of way costs and acquisitions;
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;
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(1) 1% - January I, 1976s through December 31, 1976,
paid annually on February 1, 1977
(2) 1% - January 1, 1977, through December 31, 1977s
paid annually on February 1, 1978
(3) 1% - January 1, 1978, through December 31, 1978s
paid annually on February 1, 1979
(4) 2% - January 1, 1979, through December 31, 1979s
paid monthly beginning February 25, 1979,
subject to the provisions of Section 4 (c)
(5) 3% = January 1, 1980 through August 11, 2006s
paid monthly beginning February 25, 1980,
subject to the provisions of Section 4 (e)
Such percentage changes to coincide with the decreasing Federal
Telephone Excise Tax which said tax will decrease by one percent (1%)
in January 1979, and will be reduced at the rate of 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
Telephone Franchise Public Construction Reserve Fund to be expended
as determined by resolution of the City Commission for capital
project and project feasability funding.
(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
8819
(c)
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.
lngreate,A#n?Ay entt. 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 50000
population, that is equivalent to more than three percent (3%) of
Local Recurring Revenues, as defined hereinabove, of such other
subdivision or authority, 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, where space is available, one duct for the cables of 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,
88 9
(e) Payment_.,Interva1_ .__ irkt Payment. Notwithstanding the
provision of subsection (a) of Section 4 hereinabove, the Company
will make payments to the City as hereinafter provided:
(I) on or before February 14 10 7, one percent (1%)
of its Local Recurring Revenues for the period
commencing January 1, 1906s through December 31, 1976
(2) on or before February 1, 1978, one percent (1%)
of its Local Recurring Revenues for the period
commencing January Is 1074 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 25, 1979, the Company will
begin making monthly payments based on two percent
(2%) of its Local Recurring Revenues for the
preceding month beginning January 1, 1979
(5) On or before February 25, 1980, the Company will
make monthly payments based on three percent (3%)
of its Local Recurring Revenues for the preceding
month beginning January 1, 1980, and such payments
shall continue throughout the term of this agreement
unless changed under the provisions of Section 4
Paragraph (c) as hereinabove provided.
(f) CATV Prohibition. The Company agrees that it will not
provide distribution facilities for a CATV or pay television system
to any person who does not have the necessary Franchise 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, or from the neglect or
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 agreement 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;
8819
provided, however, that in the event the City it presented with
a maim for which it claims indemnity from the Company, it tha1l,
as soon as practicable, notify the Company and tender said claim
to the Company and the Company shad, within 20 days, accept such
tender and provide a defense or otherwise dispose of said claim.
Section 6. {acceptance_ and Cnactment.
(a) Acceptance. The Company shall file with the City Clerk of the
City its written acceptance and approval of this Ordinance within
fifteen (15) days from the date of the second reading hereof, and
upon said acceptance by the Company of the grant herein, the terms
and conditions hereof shall be binding on both the Company and the
City.
(b) Enactment. This 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 Company 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 hereafter adopted, regulating excavations in public
highways, or governing the issuance of permits for 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 surrender by the City of its right or power to pass ordinances
regulating the use of its streets.
Section 8, Accountin9 and Record Keepj n9.
(a) Accountin9, The Company shall furnish a monthly report and
8819
and breakdown of the elements that make up the Franchise Revenue
Base upon which each Nranchite payment hereunder is made
(b) Ayai labipi # ty f ._Re brd , Such records as are required
under subsection (a) hereof shall be kept and maintained in
accordance with generally accepted accounting principles. All
of the said records shall, on written request of the City, be open
for examination and audit in bade County, Florida, by the City`s
Internal and bxternal 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. This 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 hereby reserves the right
and requires the Company, as a condition precedent to the taking
effect of the right of the Franchise herein granted, to give and
grant to the City the right upon the expiration of the term of
thirty (30) years for which this Franchise is granted, to purchase
the telephone plant and other property located upon, along, over
and under the public roads, streets, alleys and rights of way
8$i9
Within the corporate lifitS of the City, Whidh is used under
or in dbhhedtion With the Franchise or right hereby granted, or
such part of such property as the City May desire to purdhase
at the current teproduction dtst new 1eee 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 expiration 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 ordinances, insofar
as they are inconsistent or in conflict with the provisions of this
Ordinance, are hereby repealed.
Section 12. If any section, part of section, paragraph, clause,
phrase or work of this Ordinance is declared invalid, the remaining
provisions of this Ordinance shall not be affected.
PASSED ON FIRST READING BY TITLE ONLY this 13th day of
June 1978.
PASSED AND ADOPTED ON SECOND AND FINAL READING BY TITLE ONLY
this 22nd day of June , 1978.
MAYOR
6:37
L4'B G, ONGIR, CITY CLRRK
#'RRRRD AND A 'PROVR BY;
ei f
ROB - F ....CL1 RK,. ASS
!Ig?(ATTORNRY
ND •`RRRCTNRRS;
F+m.-KNOX J of T!RN
8f3'19 =�
01.1111ERN. BELL PRANCHISE JAMPANa,
City COMMittibh
City of Miami
We have examined the accompanying statement of franchise revenues
of the Southern gell Telephone and Telegraph Company which are
subject to the franchise fee, at 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.
MIAMI RtVIEW
ANb bAtLy kttoilb
p„hi.chr.ri bark n1 cvnt SaliirdaV Sunday and
Leila! 1-IntitlitYc
Miami Dade County rlorich
stATe ov rt op;nt.
C011taY OF naoz-:
Before the tinctorcrind authority prirsonally au.
reared Rer t rac‘r-, who on oath says that she is the
D,tnt'f,r of I Pita! Advectisinit of the Mta,t-i iew and
Dahl PP: Ord a daily ie,cript SaturdaySunday and
rioal Holidays newspaper published at Miami in
Da;in Cnonty Florida that thn attached torof advnr-
tisomort hem* lnctal Advertisement or Notice in the
rr•attr,r
CITY or MIAMI
Re: Ordinance No. 8819
xxxx
in the Court,
was put:fished in Wind rtnvspianer fl fhP ISSUE'S Of
June 27, 1978
Afftant 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
hnrritnfore been continuously published in said
Oacin County. Florida each day (e)cept Saturday Sun-
day and Legal Holidays) and has boon entered as
sncond clacs "lad matter at thn post office in .o.tiarni in
sid Dap" county F tor icta for a porlcd nl onr year nett
rcricirdina the first renliration :;f the attached roPs of
advertisement and affiant furthec says that she has
neither paid nor promised any person, firm nr rorpora•
!inn any discount robatn commission or refund for the
purpose r*f securilw this ad,. eriii:nment
tr,r, said neNstlaner
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S.vorn*drid:usbscrihrsi befor
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P..S7lei5Pitry of Florid4•31A.ari,re
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1,0 DE CO lirrY, OLORIbik
LEGAL NOTICE
MI interested will take notice that on the 22nd day of June, 1978 the
City Commission of Miami, Florida pasted and adopted the following
titled ordinance;
ORDINANCE NO. 8819
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,
INCREASING BY ONE PERCENT IN EACH OF TWO SUC-
CEEDING YEARS AT THE SAME TIME AND RATE THE
FEDERAL EXCISE TAX IS REDUCED; PROVIDING FOR
ALL PAYMENTS IN EXCESS OF ONE PERCENT TO BE
DEPOSITED IN A TELEPHONE FRANCHISE PUBLIC
CONSTRUCTION RESERVE ACCOUNT, IMPOSING PROVI-
SIONS AND CONDITIONS, REPEALING ALL ORDINANCES
IN CONFLICT. AND CONTAINING :A SEVERABILITY
PROVISION.
RALPH G. ONGIE
CITY CLERK
Publication cif this notice on the 27 day of June, 1978.
,6/27 M 062730 „
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Rftlph C. Ongid. C►c.!A t11} tVie City ut x ttii, h'1f)rtl•,
hcrct'y Ct ii v 1::ai :1 t`; %/ t:ay if,
A. 1). 1'1'rr :1 tut;. tru:: cortec
anti i,1ret: suit ttrlitrwflce V•85 no,teki :;t 1:1, ;oiio; 1i ,,,t
tt the h.iJe Count} C",,eit Ilot.•e at the pl:r.
for nti,tic .s and rub ica.ioas h} attaching Dui;; t: , ; to
Ilse place provided thcrciur.
WITNESS NESS my h., _ and the otritaal seat of said
City this,A5 day 01
Mr, Richard L, Fosmoen
Assistant City Manager
7
Gl ark Merril l
Assistant to the City Manager
June 75 1578
Southern Bell Franchise Ordinance
for first reading
The attached ordinance providing Southern Bell Telephone Company
with a non-exclusive franchise to use the public rights of way in
the City of Miami has been negotiated with Southern Bell and is
presented for Commission approval.
This ordinance makes provisions for the gradual increase of percentage
increments in such a way that no adverse effect will occur in the
telephone customer's payments. It also provides that revenues that
accrue as a result of payments in excess of one percent be deposited
in a Public Construction Reserve Account. These funds will generate
from 10 to 11 times the amount in the Reserve Account when used as
a Revenue Bond Reserve guarantee. Funds from this source could also
be used to provide feaseability reports on proposed revenue bond
projects as well as providing funding for revenue shortfalls on
needed public construction projects.
The City Charter requires that the City voters approve this Franchise
Ordinance. The election will be held in October of 1978. Early
passage of this ordinance is needed in order to make the necessary
preparations for this election.
We believe that the new ordinance will be much more acceptable to the
electorate as the proceeds from the franchise will be directly
identifiable with projects that provide benefits to the public and
that there will not be an increase in subscriber telephone bills.
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