09-02-1997 CC Meeting AgendaCITY OF AVENTURA
COUNCIL AGENDA
September 2, 1997 - 7:00 P.M.
City Council
Arthur I. Snyder, Mayor
Jeffrey M. Perlow, Vice Mayor
Arthur Berger, Councilmember
Jay R. Beskin, Councilmember
Ken Cohen, Councilmember
Harry Holzberg, Councilmember
Patricia Rogers-Libert, Councilmember
Edc M. Soroka, City Manager
Teresa M. Smith, City Clerk
Weiss Serota & Helfman, City Attorney
City of Aventura
Arthur L Snyder, Mayor
Jeffrey M. Periow, Vice Mayor
Councilmembers
Arthur Berger
Jay R. Beskin
Ken Cohen
Harry HoLzberg
Patricia Rogers-Libert
Council Meeting
September 2, 1997 7:00 P.M.
Columbia Ave~:um Medical Arts Building
21110 Biscayne Boulevard Suite 101
Aventura, Florida 33180
AGENDA
1. CALL TO ORDER~ROLL CALL
2. PLEDGE OF ALLEGIANCE
3. APPROVAL OF MINUTES: Council Meeting - July 30, 1997
Council Meeting - August 5, 1997
AGENDA: Request for Deletions/Emergency Additions
SPECIAL PRESENTATIONS: Certificate of Appointment
Stuart Schulman to Beautification Advisory Board
6. CONSENT AGENDA:
A RESOLUTION OF THE CITY COUNCIL OF THE
CITY OF AVENTURA, FLORIDA, ENDORSING
AND SUPPORTING DESIGNATION OF AN
HISTORIC SITE AND CREATION OF A MUSEUM
AND MEMORIAL AT THE RICHMOND NAVAL
September 2, 1997 Council Meeting
7. PUBLIC
AIR STATION IN DADE COUNTY, FLORIDA; AND
PROVIDING AN EFFECTIVE DATE.
(Supports designation of Richmond Naval Air Station in
South Dade County as an Historic Site)
A RESOLUTION OF THE CITY COUNCIL OF THE
CITY OF AVENTURA, FLORIDA AMENDING
RESOLUTION 96-39 WHICH PROVIDES A FEE
SCHEDULE FOR ENGINEERING AND PUBLIC
WORKS INSPECTION PERMIT AND REVIEW
FEES BY AMENDING SECTION A(16) OF SAID
FEE SCHEDULE ATTACHED THERETO AS
EXHIBIT "A"; AUTHORIZING THE CITY
MANAGER TO DO ALL TILINGS NECESSARY TO
CARRY OUT THE AIMS OF THIS RESOLUTION;
AND PROVIDING AN EFFECTIVE DATE.
(Amends fee schedule for resurfacing, water proofing or
seal coating inspections)
HEARINGS: ORDINANCES - FIRST READING:
AN ORDINANCE OF THE CITY OF AVENTURA,
FLORIDA, (TItE "CITY"), PROVIDING FOR A
BUILDING MORATORIUM ON ISSUANCE OF
DEVELOPMENT ORDERS AND DEVELOPMENT
PERMITS WITHIN THE MARINA AREA, WHICH
INCLUDES ALL INDUSTRIALLY ZONED 0U-1 AND
1U-2) PROPERTY, (EXCEPT FOR: THAT CERTAIN
INDUSTRIALLY ZONED PROPERTY LOCATED
NORTH OF NE 187TH STREET, WEST OF NE 29TH
AVENUE, SOUTH OF NE 191ST STREET, AND EAST
OF BISCAYNE BOULEVARD, AND THE
INDUSTRI~I,I,Y ZONED PORTIONS OF TRACTS
"D" AND "E" OF THE PLAT OF BISCAYNE
COMMERCIAL [PB 143, P ~8]), AS DEPICTED ON
EXItlBIT "A", AND THE HOSPITAL AREA, WHICH
INCLUDES THE AREA BOUNDED ON THE NORTH
BY THE NORTHERN 1,1NE OF THE CITY LIMITS,
ON THE SOUTH BY NE 203RD STREET/IVES DAIRY
ROAD, ON THE WEST BY THE WESTERN LINE OF
THE CITY LIMITS, AND ON THE EAST BY
BISCAYNE BOULEVARD RIGHT-OF-WAY, AS
DEPICTED ON EXHIBIT "B", WITHIN THE CITY OF
AVENTURA; PROVIDING FOR SEVERABH,ITY;
September 2, 1997 Council Meeting
PROVIDING FOR REPLACEMENT OF MORATORIA
PROVISIONS OF SECTION 33-319, ET SEQ. OF THE
METROPOLITAN DADE COUNTY CODE FOR THE
SPECIFIC MATTERS ADDRESSED HEREIN.
8. PUBLIC HEARINGS: ORDINANCES - SECOND READING:
AN ORDINANCE OF THE CITY OF AVENTURA,
FLORIDA, REPEALING ORDINANCE NO. 96-15;
PROVIDING THE TERMS AND CONDITIONS FOR
THE OPERATION OF CABLE TELEVISION
SYSTEMS AND THE APPLICATION,
PROCEDURES AND REQUIREMENTS RELATING
TO THE GRANT OF FRANCHISES FOR THE
CONSTRUCTION, INSTALLATION, OPERATION
AND MAINTENANCE OF CABLE TELEVISION
SYSTEMS, EQUIPMENT AND FACILITIES IN, ON,
ACROSS, ABOVE OR THAT IN ANY MANNER
WHATSOEVER USE THE CITY'S PUBLIC RIGHTS
OF WAYS AND TO ENSURE THAT USE OF THE
CITY'S PUBLIC RIGHTS OF WAYS IS IN THE
PUBLIC INTEREST AND IN CONFORMANCE
WITH APPLICABLE LAW; PROVIDING FOR
CONFLICTS; PROVIDING FOR SEVERABILITY;
PROVIDING A SAVINGS CLAUSE AND
EFFECTIVE DATE.
AN ORDINANCE OF THE CITY OF AVENTURA,
FLORIDA; ESTABLLqHING A CODE OF ETHICS;
PROVIDING A PENALTY; PROVIDING FOR
SEVERABILITY, INCLUSION IN THE CODE, AND
AN EFFECTIVE DATE.
AN ORDINANCE OF THE CITY OF AVENURA,
FLORIDA, ADOPTING ORDINANCE
CONCERNING ZONING; PROVIDING FOR
ADOPTION OF POLICY AND PROCEDURE
CONCERNING NON-CONFORMITIES CREATED
BY GOVERNMENTAL ACQUISITION OF PRIVATE
PROPERTY; PROVIDING FOR DEFINITIONS;
PROVIDING VARIANCE MECHANISM FOR CURE
OF NON-CONFORMITIES; PROVIDING FOR
EXPEDITED pRELIMINARY REVIEW;
REPLACING PROVISIONS OF SECTION $~-35(E)
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September 2, 1997 Council Meeting
OF METROPOLITAN DADE COUNTY ZONING
CODE CONCERNING THE SAME SUBJECT
MATTER; PROVIDING FOR SEVERABILITY;
PROVIDING FOR AN EFFECTIVE DATE.
9. RESOLUTIONS:None
q 0. OTHER BUSINESS:
MOTION TO APPROVE FOUNDERS DAY
PROGRAM AS OUTLINED IN THE CITY
MANAGER'S MEMORANDUM AND ESTABLISH
NOVEMBER 15, 1997 AS THE DATE OF
CELEBRATION.
DISCUSSION AND POSSIBLE MOTION TO
DIRECT THE CITY ATTORNEY TO PREPARE AN
ORDINANCE ESTABLISHING SEWAGE AND
GARBAGE DISPOSAL REGULATIONS FOR LIVE-
ABOARD VESSELS IN THE CITY AND CREATING
A REGISTRATION PROCESS. (Councilmember Beskin)
11. REPORTS
~ 2. PUBLIC COMMENTS
~ 3. ADJOURNMENT
SCHEDULE OF FUTURE MEETINGS/EVENTS:
1~t BUDGET PUBLIC HEARING
COUNCIL MEETING
2"a BUDGET PUBLIC HEARING
September 9, 1997
September 16, 1997
September 23, 1997
7P.M.
6 P.M.
7P.M.
This meeting is open to the publi~ In acoordance with tho Am~qc~ms with D~sabil~s Act of 1990, all pexsons who are disabled and who need spccaa
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COUNCIL MEETING
JULY 30, 1997 - 3 P.M.
TURNBERRY ISLE RESORT & CLUB
19999 West Country Club Drive
AVENTURA, FLORIDA
CALL TO ORDER/ROLL CALL: The meeting wes called to order by Mayor
Arthur I. Snyder at 3 p.m. Present were Councilmembers Arthur Berger, Jay R. Beskin,
Ken Cohen, Harry Holzberg, Patricia Rogers-Libert, Vice Mayor Jeffrey M. Perlow,
Mayor Arthur I. Snyder, City Manager Eric M. Soroka, City Attorney Stephen Jay
Helfman and City Clerk Teresa M. Smith. As a quorum was determined to be present,
the meeting commenced.
Mr. Soroka explained that this meeting wes a visioning session to discuss
formulation of the City's Comprehensive Development Master Plan. He then turned the
meeting over to Ed Preston, Ed Preston & Associates, Inc. and Gary Dickens, of Ivey,
Harris & Walls who presented various scenarios relating to the future of the City of
Aventura. Council discussed the strengths and weaknesses of the City and their ideas
for the future, including key issues that need to be addressed in the formulation of the
City's Comprehensive Development Master Plan.
There being no other business, after motion made, seconded and unanimously
passed, the meeting adjourned at 6 p.m.
Teresa M. Smith, CMC, City Clerk
Approved by Council on
Anyone wishing to appeal any decision made by the City Council with respect to any matter considered st a
meeting or hearing will need a record of the proceedings and, for such purpose, may need to ensure that a
verbatim record of the proceedings if made, which record includes the testimony and evidence upon which
the appeal is to be based.
MINUTES
CITY COUNCIL MEETING
CITY OF AVENTURA, FLORIDA
TUESDAY, AUGUST 5, 1997 6:00 P.M.
COLUMBIA AVENTURA MEDICAL ARTS BUILDING
21110 BISCAYNE BOULEVARD SUITE 101
AVENTURA, FLORIDA
CALL TO ORDER/ROLL CALL: The meeting was called to order at 6:00 p.m. by
Vice Mayor Jeffrey M. Perlow. Present were Councilmembers Arthur Berger, Jay R.
Beskin, Ken Cohen, Harry Holzberg, Patricia Rogers-Libert, Vice Mayor Jeffrey M.
Perlow, City Manager Eric M. Soroka, City Clerk Teresa M. Smith, and City
Attorneys Stephen J. Helfman and David M. Wolpin. Mayor Snyder was absent. As
a quorum was determined to be present, the meeting commenced.
2. PLEDGE OF ALLEGIANCE: George Berlin led the pledge of allegiance.
3. ZONING HEARINGS - SPECIALLY SET BY COUNCIL FOR 6 P.M.
Vice Mayor Perlow noted that the following zoning hearings were quasi-judicial in
nature and ex parte communications made by Council were disclosed and
appropriately filed in writing with the City Clerk in accordance with Ordinance No. 96-
09.
A. APPLICANT: AVENTURA MALL VENTURE
A RESOLUTION OF THE CITY COUNCIL OF THE
CITY OF AVENTURA, FLORIDA GRANTING A
SIGN VARIANCE FOR TEMPORARY SIGNS TO
ANNOUNCE FUTURE TENANTS AT THE
AVENTURA MALL LOCATED AT 19501 BISCAYNE
BOULEVARD; AND PROVIDING AN EFFECTIVE
DATE.
Vice Mayor Perlow opened the public hearing. All witnesses giving testimony were
sworn in by the City Clerk. The following individuals addressed Council: Jaye
Epstein, Community Development Director; Phil Ward, 2525 SW 3rd Avenue;
George Berlin, Turnberry and Associates; Donald Brody, Williams Island; and Lionel
Socolov, 3530 Mystic Point Drive. There being no further speakers, the public
hearing was closed. A motion for approval was offered by Councilmember Cohen,
and seconded by Councilmember Holzberg. An amendment wes offered by
Councilmember Berger and seconded by Councilmember Holzberg that the signs be
removed upon the issuance of the Certificate of Occupancy or six months from the
date of adoption of the Resolution, whichever shall occur first. The amendment
passed unanimously. An amendment was offered by Councilmember Rogers-Libert
and seconded by Councilmember Cohen to amend the third VVhereas clause to add
"due to the substantial and unique nature of its expansion". The amendment passed
5-1, with Councilmember Beskin voting no. The motion for approval, as amended,
passed 5-1, by roll call vote, with Councilmember Beskin voting no, and Resolution
No. 97-47 was adopted.
B. APPLICANT:
AVENTURA'S FINEST HAND CAR WASH, INC.
A RESOLUTION OF THE CITY COUNCIL OF THE
CITY OF AVENTURA, FLORIDA DENYING A USE
VARIANCE FOR PROPERTY LOCATED AT 2890
NE 187TM STREET TO PERMIT AN OUTSIDE CAR
WASH IN A PARKING LOT; DENYING A NON-USE
VARIANCE TO WAIVE EIGHTEEN FEET (18') OF
THE MINIMUM REQUIRED TWENTY FOOT
SETBACK BETWEEN BUILDINGS WHERE A
PROVISION OF TWO FOOT (2') SETBACK
BETWEEN BUILDINGS IS PROPOSED; DENYING
A NON-USE VARIANCE TO WAIVE THIRTY-FIVE
(38) OF THE MINIMUM REQUIRED SIXTY-EIGHT
PARKING SPACES WHERE A PROVISION OF
THIRTY-THREE PARKING SPACES IS
PROPOSED; AND PROVIDING AN EFFECTIVE
DATE.
Vice Mayor Perlow opened the public hearing. All witnesses giving testimony were
sworn in by the City Clerk. The following individuals addressed Council: Mr. Epstein;
Michael Snyder, Esq., 20803 Biscayne Blvd.; Robert Ellis, 2890 NE 187th Street;
Guillermo Freile, 19195 Mystic Point; Tommy Sanders, 125 - 6th Avenue; David
Amovitz, 3700 Island Blvd; and Leonard Geller, Commodore Plaza. There being no
further speakers, the public hearing was closed. A motion to approve the application,
subject to the condition that the variance will expire when the property to the
immediate east is no longer utilized as a marina was offered by Councilmember
Beskin and seconded by Councilmember Holzberg. An amendment wes offered by
Councilmember Cohen and seconded by Councilmember Rogers-Libert that the
owner of the business obtain a valid written lease from the owner of the property, to
be delivered to and filed with the City within 30 days from date hereof. The
amendment passed, 5-1, with Councilmember Beskin voting no. An amendment
wes offered by Vice Mayor Perlow and seconded by Councilmember Holzberg that
the approval be personal to the applicant, Aventura's Finest Car Wash, that
landscaping be installed by the Applicants within 90 days, that DERM improvements
be completed by the Applicants within 180 days and that the maximum term of the
lease and variance shall be 5 years and 30 days. The amendment passed 4-2, with
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Councilmembers Beskin and Rogers-Libert voting no. The motion for approval, as
amended, passed unanimously and Resolution No. 97-48 was adopted.
The meeting recessed for 5 minutes at this time.
4. APPROVAL OF MINUTES: A motion to approve the minutes of the July 1, 1997
Council Meeting was offered by Councilmember Rogers-Libert, seconded by
Councilmember Holzberg and unanimously passed. A motion to approve the
minutes of the July 7, 1997 Workshop Meeting was offered by Councilmember
Rogers-Libert, seconded by Councilmember Holzberg and unanimously passed. A
motion to approve the minutes of the July 21, 1997 Council Meeting, as corrected,
was offered by Councilmember Rogers-Libert, seconded by Councilmember
Holzberg and unanimously passed.
5. AGENDA: REQUESTS FOR DELETIONS/EMERGENCY ADDITIONS:
Councilmember Rogers-Libert moved that items 10.A-B-C be moved to the Consent
Agenda. The motion was seconded by Councilmember Cohen and unanimously
passed. Councilmember Berger requested removal of Agenda Item 7.H. from the
Consent Agenda.
6. SPECIAL PRESENTATIONS: None
7. CONSENT AGENDA: Mr. Soroka explained each item on the Consent Agenda. A
motion for approval was offered by Councilmember Beskin, seconded by
Councilmember Cohen, and unanimously passed, thus the following action was
taken:
Mr. Wolpin read the following ordinance by title which was passed on first
reading:
AN ORDINANCE OF THE CITY OF AVENTURA,
FLORIDA; ESTABLISHING A CODE OF ETHICS;
PROVIDING A PENALTY; PROVIDING FOR
SEVERABILITY, INCLUSION IN THE CODE, AND
AN EFFECTIVE DATE.
B. Resolution No. 97-49 was adopted as follows:
A RESOLUTION OF THE CITY COUNCIL OF THE
CITY OF AVENTURA, FLORIDA, APPROVING THE
APPOINTMENT OF STUART SCHULMAN TO THE
CITY OF AVENTURA BEAUTIFICATION
ADVISORY BOARD IN ORDER TO FILL A
VACANCY; AND PROVIDING AN EFFECTIVE
DATE.
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Resolution No. 97-50 was adopted as follows:
A RESOLUTION OF THE CITY COUNCIL OF THE
CITY OF AVENTURA, FLORIDA, REQUESTING
THE BOARD OF COUNTY COMMISSIONERS OF
METROPOLITAN DADE COUNTY TO ABOLISH
AND DISCONTINUE THE "BISCAYNE LAKE
GARDENS STREET LIGHTING IMPROVEMENT
SPECIAL TAXING DISTRICT" AND THE
"AVENTURA JEWISH CENTER STREET LIGHTING
SPECIAL TAXING DISTRICT," TO ENABLE THE
CITY OF AVENTURA TO PROVIDE STREET
MGHTING SERVICES WITHIN SUCH SPECIAL
TAXING DISTRICTS; AUTHORZING THE CITY
MANAGER TO TAKE ALL ACTION REASONABLY
NECESSARY TO IMPLEMENT THE PROVISIONS
OF THIS RESOLUTION; AND PROVIDING AN
EFFECTIVE DATE.
Resolution No. 97-51 was adopted as follows:
A RESOLUTION OF THE CITY COUNCIL OF THE
CITY OF AVENTURA, FLORIDA, AUTHORIZING
THE CITY MANAGER TO EXECUTE THE
ATTACHED WORK AUTHORIZATION NO.
15414.30 ENTITLED "USER FEE PROGRAM
PHASE II IMPLEMENTATION" FOR
PROFESSIONAL ENGINEERING SERVICES BY
AND BETWEEN THE CITY OF AVENTURA AND
KEITH AND SCHNARS, P.A.; AND PROVIDING AN
EFFECTIVE DATE.
Mr. Wolpin read the following ordinance by title which was passed on first
reading:
AN ORDINANCE OF THE CITY OF AVENURA,
FLORIDA, ADOPTING ORDINANCE CONCERNING
ZONING; PROVIDING FOR ADOPTION OF POLICY
AND PROCEDURE CONCERNING NON-
CONFORMITIES CREATED BY GOVERNMENTAL
ACQUISITION OF PRIVATE PROPERTY;
PROVIDING FOR DEFINITIONS; PROVIDING
VARIANCE MECHANISM FOR CURE OF NON-
CONFORMITIES; PROVIDING FOR EXPEDITED
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PRELIMINARY REVIEW; REPLACING
PROVISIONS OF SECTION 33-35(E) OF
METROPOLITAN DADE COUNTY ZONING CODE
CONCERNING THE SAME SUBJECT MATTER;
PROVIDING FOR SEVERABILITY; PROVIDING
FOR AN EFFECTIVE DATE.
Resolution No. 97-52 was adopted as follows:
A RESOLUTION OF THE CITY COUNCIL OF THE
CITY OF AVENTURA, FLORIDA, AUTHORIZING
THE CITY MANAGER TO EXECUTE THE
ATTACHED WORK AUTHORIZATION NO.
15414.31 ENTITLED "AVENTURA FOUNDERS
PARK PREPARATION OF FINAL CONSTRUCTION
PLANS AND BID DOCUMENTS" BY AND
BETWEEN THE CITY OF AVENTURA AND KEITH
AND SCHNARS, P.A.; AND PROVIDING AN
EFFECTIVE DATE.
Resolution No. 97-53 was adopted as follows:
A RESOLUTION OF THE CITY COUNCIL OF THE
CITY OF AVENTURA, FLORIDA APPROVING AND
AUTHORIZING THE CITY MANAGER TO EXECUTE
THE ATTACHED DEVELOPMENT AGREEMENT
BETWEEN THE CITY OF AVENTURA AND
TRAFALGAR ASSOCIATES OF AVENTURA, LTD.,
CONCERNING ROAD AND DRAINAGE RIGHT-OF-
WAY AND IMPROVEMENTS; AND PROVIDING AN
EFFECTIVE DATE.
Resolution No. 97-54 was adopted as follows:
A RESOLUTION OF THE CITY COUNCIL OF THE
CITY OF AVENTURA, FLORIDA ENDORSING
METROPOLITAN DADE COUNTY'S WAGES
COALITION; AND PROVIDING AN EFFECTIVE
DATE.
Resolution No. 97-55 was adopted as follows:
A RESOLUTION OF THE CITY COUNCIL OF THE
CITY OF AVENTURA, FLORIDA ENDORSING THE
CANDIDACY OF NORTH MIAMI BEACH VICE
5
MAYOR JOHN KURZ. MAN FOR THE POSITION OF
2ND VICE PRESIDENT OF THE FLORIDA LEAGUE
OF CITIES; AND PROVIDING AN EFFECTIVE
DATE.
K. Resolution No. 97-56 was adopted as follows:
A RESOLUTION OF THE CITY COUNCIL OF THE
CITY OF AVENTURA, FLORIDA SUPPORTING
DADE COUNTY PUBLIC SCHOOLS AND CALLING
UPON THE STATE OF FLORIDA LEGISLATURE TO
HOLD A SPECIAL SESSION IN THE FALL OF 1997
TO DEVELOP AND PROVIDE THE FLEXIBILITY
NEEDED BY ALL SCHOOL BOARDS IN THE
STATE; AND PROVIDING AN EFFECTIVE DATE.
MOTION TO AUTHORIZE THE CITY MANAGER TO
IMPLEMENT THE PROCESS TO SELECT AN
ARCHITECT FOR THE DESIGN OF GOVERNMENT
CENTER, POLICE, AND CULTURAL FACILITIES.
A motion for approval was offered by Councilmember Beskin, seconded
Councilmember Rogers-Libert and unanimously passed.
8. PUBLIC HEARINGS: ORDINANCES- FIRST READING:
Mr. Wolpin read the following ordinance by title:
AN ORDINANCE OF THE CITY OF AVENTURA,
FLORIDA, REPEALING ORDINANCE NO. 96-15;
PROVIDING THE TERMS AND CONDITIONS FOR
THE OPERATION OF CABLE TELEVISION
SYSTEMS AND THE APPLICATION,
PROCEDURES AND REQUIREMENTS RELATING
TO THE GRANT OF FRANCHISES FOR THE
CONSTRUCTION, INSTALLATION, OPERATION
AND MAINTENANCE OF CABLE TELEVISION
SYSTEMS, EQUIPMENT AND FACILITIES IN, ON,
ACROSS, ABOVE OR THAT IN ANY MANNER
WHATSOEVER USE THE CITY'S PUBLIC RIGHTS
OF WAYS AND TO ENSURE THAT USE OF THE
CITY'S PUBLIC RIGHTS OF WAYS IS IN THE
PUBLIC INTEREST AND IN CONFORMANCE WITH
APPLICABLE LAW; PROVIDING FOR CONFLICTS;
by
6
PROVIDING FOR SEVERABILITY; PROVIDING A
SAVINGS CLAUSE AND EFFECTIVE DATE.
Vice Mayor Perlow opened the public hearing. The following individual addressed
Council: Ila Feld, Esq., Leibowitz & Associates. There being no further speakers,
the public hearing was closed. A motion for approval was offered by Councilmember
Rogers-Libert and seconded by Councilmember Cohen. The motion passed
unanimously by roll call vote.
PUBLIC HEARINGS - ORDINANCES - SECOND READING:
A. Mr. Wolpin read the following ordinance by title:
AN ORDINANCE OF THE CITY OF AVENTURA,
FLORIDA, ESTABLISHING A STORMWATER
UTILITY SYSTEM FOR THE CITY; PROVIDING
FOR DEFINITIONS; MAKING CERTAIN FINDINGS
AND DETERMINATIONS; ESTABLISHING A
STORMWATER UTILITY FEE; ESTABLISHING A
METHOD AND PROCEDURE FOR THE
COLLECTION OF STORMWATER UTILITY FEES;
DIRECTING THE CITY MANAGER TO MAINTAIN
CERTAIN RECORDS; PROVIDING FOR REPEAL
OF CONFLICTING ORDINANCES; PROVIDING
FOR SEVERABILITY, INCLUSION IN THE CODE
AND AN EFFECTIVE DATE.
Vice Mayor Perlow opened the public hearing. Richard Ivers, Esq., representing
Gulfstream Racetrack, addressed Council. There being no further speakers, the
public hearing was closed. A motion for approval was offered by Councilmember
Beskin, seconded by Councilmember Rogers-Libert, unanimously passed by roll
cell vote and Ordinance No. 97-18 was enacted.
B. Mr. Wolpin read the following ordinance by title:
AN ORDINANCE OF THE CITY OF AVENTURA,
FLORIDA, AMENDING THE CODE OF THE CITY
OF AVENTURA BY ADDING A NEW ORDINANCE
ENTITLED "FLOOD DAMAGE PREVENTION";
PROVIDING FOR STATUTORY AUTHORITY AND
LEGISLATIVE FINDINGS; PROVIDING AN INTENT
AND PURPOSE; PROVIDING OBJECTIVES;
PROVIDING DEFINITIONS; PROVIDING GENERAL
PROVISIONS; PROVIDING ADMINISTRATIVE
PROCEDURES AND STANDARDS; PROVIDING
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FOR FLOOD HAZARD REDUCTION; PROVIDING
FOR VARIANCES AND APPEALS; PROVIDING
FOR THE REPEAL OF CONFLICTING
PROVISIONS; PROVIDING FOR SEVERABILITY;
INCLUSION IN THE CODE AND AN EFFECTIVE
DATE.
Vice Mayor Pedow opened the public hearing. There being no speakers, the public
hearing was closed. A motion for approval was offered by Councitmember Rogers-
Libert, seconded by Councilmember Beskin, unanimously passed by roll call vote
and Ordinance No. 97-19 was enacted.
10. RESOLUTIONS: Moved to Consent Agenda.
11.OTHER BUSINESS: DISCUSSION AND POSSIBLE MOTION - BILLBOARDS.
Councilmember Berger requested that Council consider possible action in an effort
to amend state law which presently prohibits the removal of billboards without just
payment. Harry Crook, Commodore Plaza; Ruby Steiner, 20301 West Country
Club Drive; Mr. Brody; and George Feffer, Admirals Port, spoke to Council relative
to this matter. It was the consensus of Council to address this matter at the next
scheduled Workshop Meeting and authorized the City Attorney to research the
issue of federal funding relating thereto.
12. REPORTS: As submitted. The City Attorney requested the scheduling of an
Executive Session to discuss pending eminent domain action.
'I3. PUBLIC COMMENTS: The following individuals addressed Council: Mr. Steiner;
Dan Eichmann, 2780 NE 183 Street; Albert Zemlock, Del Vista; and Shidey Silver.
14. ADJOURNMENT. There being no further business to come before Council at this
time, after motion made, seconded and unanimously passed, the meeting adjourned
at 9:40 p.m.
Approved by Council on
Teresa M. Smith, CMC, City Clerk
Anyone wishing to appeal any decision made by the City Council with respect to any matter considered at a
meeting or hearing will need a record of the proceedings and, for such purpose, m ay need to enaure that a
verbatim record of the proceedings if made, which record includes the testimony and evidence upon which
the appeal is to be based.
8
RESOLUTION NO. 97-__
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF AVENTURA, FLORIDA, ENDORSING AND
SUPPORTING DESIGNATION OF AN HISTORIC SITE
AND CREATION OF A MUSEUM AND MEMORIAL AT THE
RICHMOND NAVAL AIR STATION IN DADE COUNTY,
FLORIDA; AND PROVIDING AN EFFECTIVE DATE.
WHEREAS, the geographic location of South Florida has played an interesting
and important role in the history of our nation in terms of the military service of our
citizens; and
WHEREAS, the citizens of South Florida serving in the armed forces have
demonstrated honorable dedication and made heroic contributions to our nation in the
name of freedom and democracy; and
WHEREAS, the Richmond Naval Air Station, having served as the Navy's
Airship headquarters during World War II, and other facilities in South Florida have
been sites of historical significance; and
WHEREAS, it would be in the public interest for the federal government to
designate the Richmond Naval Air Station as an historic site and a museum and
memorial be placed at that location.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF AVENTURA, FLORIDA, THAT:
Section !. The City Council hereby endorses and supports the designation of
historic site and creation of a museum and memorial at the Richmond Naval Air Station
in Dade County, Florida.
Resolution No.
Page 2
Section2. This Resolution shall become effective immediately upon its
adoption.
The foregoing Resolution was offered by Councilmember
moved its adoption. The motion was seconded by Councilmember
, and
upon being put to a vote, the vote was as follows:
Councilmember Arthur Berger
Councilmember Jay R. Beskin
Councilmember Ken Cohen
Councilmember Harry Holzberg
Councilmember Patricia Rogers-Libert
Vice Mayor Jeffrey M. Perlow
Mayor Arthur I. Snyder
PASSED AND ADOPTED this 2~a day of September, 1997.
ATTEST:
ARTHURI. SNYDER, MAYOR
TERESA M. SMITH, CMC
CITY CLERK
APPROVED AS TO LEGAL
SUFFICIENCY:
ClTY ATTORNEY
PAUL D. NOVACK
Mayor
TOWN OF SURFSIDE
MUNICIPAL BUILDING
9293 HARDING AVENUE
SURFSIDE, FLORIDA 33154
July 21, 1997
The Honorable Arthur Snyder
Mayor, City of Aventura
2999 N. E. 191 Street, Suite 500
Aventura, FL 33180
Telephone: (305) 861-4863
Facsimile: (305) 861-1302
Web Site: www. town.surfside.fl.us
tclerk @town.suffside.fl.us
Dear Mayor Snyder:
I recently had an opportunity to learn about the history and
current status of the Richmond Naval Air Station. Since then, I
have had the privilege of discussing the potential future of the
Richmond Naval Air Station with both active and former officers of
the United States Navy and other branches of the armed services.
It seems that it would be appropriate for the federal government
to establish a military memorial and museum at the site of the old
Naval Air Station. In that way, the South Florida community could
recognize the service of so many area residents as members of our
nation's armed forces, preserve the site for an important public
purpose, and establish a means by which present and future
generations can learn about the military history of our area.
The Surfside Town Commission has unanimously passed a resolution
endorsing the concept of creating a military memorial and museum
at the site. I am enclosing a copy of our Resolution and some
background information for your review. If you would be interested
in having a presentation made to your City Commission concerning
this project, I am sure that Chief Anthony Atwood, Youth Programs
Coordination of the Navy Recruiting Command would be pleased to
appear and make a brief informational presentation. Chief Atwood
can be reached in Miami at 591-8696.
Please feel free to call upon me if I can be of any service in
regard to this matter. Please also accept my very best wishes for
a pleasant and enjoyable summer.
MAYOR
PDN/rm
(b:nas)
.Rlchmorid Nav:~l Air
',,V':iE'i~A.S, th,, P.i~hracnd Naval Air Suction ii currently thc ~it~ or ~¢ Cold
Coas~'F,~miiroad '~lu.icu.m; and
W7-1~$, the ~ckrncnd Naval Air S~a~iort Ms played ~ ~mpor~a.n~ r~le in
locaJ, and United $~ams history ~s ~hc Nsvy's ,-L[rship h~adqua~'tcrs du.,'ing Wcrtd
W~II; ~d
historic naval si~¢ will be
BE iT KE~OLVED uha~ d~e DA.DE HEK1TAGE TI{UST BOPd%D OF
T"AUS"FE-r.S $upim~,.~ ~rid ¢l:cmu.ra~e..i ~¢ [~:caI ~.nd na~i~:naf hi~ric dc~i~adon of'
lh~ .Richmond Nav~l Air
Nor'~ X. Sc.~ef~r~
Dad¢ Hcgt3~¢
In 1945 Naval Ail Station
(NAS), Richmond. Fla., was
the gem of thc C~rlbbean-,-an
airship station wid~ thc Navy's
largest con*Jplcmcm of llghtcr-
than-air squ.~rons, next Io
LakchursL, ]',lJ. h was home to
Airship Squadron (ZP) 21. thc
largesl t,~uadron of airships in thc
Navy. Five Inore squadrons and a
dozen smaller K-class aiTship
bases r~poMed Io NAS Richmond.
lis overhaul facilitlcs wcr~ srst¢ of
the art; its three hangars were
among gte largos[ wooden build-
ings ever built. Thc Navy's new
and larger ~'l-cla'~s airships were
· assigned to I',I^S Richmond for
anlisubmarin¢ war of Ibc Batlle of
the Atlantic in the Gulf Sea
Frontier, which had command
responsibility for the Ca6hb¢.an
operational ar~a_
Suddenly. NAS Richmond dis-
apr, cared.
OvemlghL
It went up in smoke.
The smD, b~gins when WW 11
broke out. Th~ naval defenses of
our shores were simply not pre-
pared. Wolf packs of enemy sub-
marines were quick to bring Iht
war to Aracfica. Nazi U-boats
simply waited offshore and ~nk
our shipping. Ffx)m Ilalifax, Nova
~emy submariners called il 'q'he
Httppy Time."
Thc Navy's lighter-than-air
command. Airship P·tml Cnoup I,
mci the crisis head on.
'~vo hundred K-sh~ps were
aulhori~d and · string of coastal
·irship bases began to ernc~gc. One
Of' the first was NAS Richmond.
Set in · pinewood forest IS miles
south of Mieml and named for the
Ri,:hmond sawmill on site, its
location was strategic. Ils 2.100
ao:s were only five miles ·way
from thc coast and from on~ of the
favorile hunting grounds of the
enqm)'; the Florida Straits.
Ships northbound frnm thc Gulf
Canal and Iht Pacific passed
through the straits and the rest of
the Caribhean channels, including
Windward Passage, Mona Passage
and Yucatan Channel; thes~
became shooting gallerlcs when
the U-boats appeared in Fcbmary
1942. The approaches were soon
Htte~-d with dozens of sunken
merchantmen.
Navy planners, weighing just
such a wartime possibility, had
visited south Florida In 1940. By
April 1942 construction of NAS
Richmond began in earnest, and
I.~O0 civilian workers were going
full blast to se! up the Caribbean
lighter-than-air hcadqanncrs.
Railroad llncs were fed to the site,
hauling in trainloads of tough
Dougl~ fir lumber from Oregon
for the hangars, each of which
stretched 1,0~0 feet long by 270
feet wide. A colony of naval and
civilian specialists from Akron,
Ohio, set up the Assembly and
Repair Division in Hangar I.
Airships soon tilled the skies.
The first touched down on rough
pads that summer. On 14
September NAS Richmond was
established. For the next three
yea~s, the air
slation opera{cd
aro~md the clock
to recover the sea
lanes and keep
them open.
As part of
Fleet Air~hip
Wing 2, detach-
mcnts of NAS
Richmond-based
ZP-2I flew from
various locations,
including Key
West and Banana
River (Daytona
Beach) on the
Flodda coast; San
"Juan. ER.; and
three ai~clds In .
Cuba. ZPs 5 I. 41
tal and even a bowling alley for
the thousands of personnel
assigned to Richmond m' pa~sing
through. PBY Catalina patn~
planes, righters and other bc:ltvJer-
than-air craft routinely landed at
NAS Richmond's airs~p.
The naval battle for the
Caribbean was hard foughL
hands worked antisubrnarlne
wa{fare convoy duty. including
lighter-than-air cra~ escort
destroyers and the Coast Outmd.
Airship Wing 2 alone logged
I 14,649 hours flying 7.750 mis-
sions, suffering six blimp losses
during operations and one blimp
lost in combaL
On 7 May 1943 Nazi Admiral
Karl Doenitz surrendered the beat-
cn remains of }he once-mighty
Third Reich. On 2 Septembe~ the
Japanese Empire surrendered The
war was over. Thc Navy begta to
stand down.
It was the dawn of pea..--e. Ilut
the red dusk over Nagasaki fete-
Brazil, all counted
on NAS Richmond {'Of support. Its
16-story hangar{ looked down on
acres of tarmac launch pads.
Nestled in the pine forest left
standing for camouflage were bar-
racks, warehouses, bachelor ol]].
cer~ quarters, a fire station, hospi.
and 42. based A G;umman J4F Widgeon assigned to NAS Richmond ties -
The vzlal alrlhlp hangarl could I'~old nurneroul blimps, with room to spire,
naval air force~ were direclcd Io
NAS Richmond for safe~y.
At the time, south Florida was
an armed camp Because of its
stralegic location, the region was a
training and transhipmenl depot for
much of the personne{ and materi-
als of the war effort. Its excellent
climate made it especially suitable
for Naval Aviation. From F}orida-
based naval air ~tations at Fort
Lauderdale, Opa Locks and Key
West, a stream of TBM At'ertger$.
F6F tlellcats and patro} and cargo
aircraft converged on NAS
Richmond. ZP-21 made ready to
host Ii, em.
Fourteeo K-ships stood moored
in tile cavernous ilangars. Another
I I airships inside were deflated
and crated to provide more space.
The heavier-Ih:m-air crab were
broughl in aruund them--213
naval aircraft in all. But Ihese were
nol tile onl3 hoarders
shadowed a similaz dawn in the
Caribbean. "Red sky at morning,
sailor take warning." Nature pro-
duced its own storm wilh which to
close out the books on NAS
Richmond. A hurricane was com-
ing. In those days hurricanes wire
not named, bul no one stalioned at
Richmond would ever forget the
hurricane of September 1945.
The base had been built with
hun ;canes in mind. The three
mighty hangars had been con-
stcucted to withstand winds of I ~'0
mph. The four pillars at the cor-
ners of each hangar were poured
in concrete; the hangar doors were
iron.
From ./th Naval District head-
quarters in Miami. Ha., the huni-
cane warnings went out. On 14
September the storm skirted the
northern coast of Cuba. heading
due west. The naval installation!;
of south Florida were ordered to a
condition of storm readiness and
Naval Air Transport Service
requested hanga~ sp~ce for his air-
craft. Embry-Riddle Aviation
School al Daytona Beach, which
had trained thousands of milJtasy
aviator~, also appealed for safe
haven for its tle~t of Slcarman
biplanes. The air stmlon ~lnted
permission and 1:50 tnore planes
joined the Navy airslfips and air°
crsfl in the hangars, liven the '/th
Districl Commandant's Beech alr-
crsfl took shelrer there.
This astounding &,lsembly of
flying machines was joined by 100
automobiles and tnscks belonging
to base personnel. NAS Richmond
w~ full. Around noon on 14
September the hangar' doors were
slld shut.
The 137 officers a,~d 830 enlist-
ed men rigged for th~ tempest.
About 50 Sailors, mostly Junior
aM unmanned, were Itationed in
each bangmr for damtge conuol
watch. The rest of the: garrison fell
back to the barracks. Some mar-
tied men who lived off base with
their families w~:re given special
liberty to fide out the storm al
their homes.
About mldaftern¢~n the hurri-
cane came ashore. N/tS Richmond
was directly in its path. By 1'700
the base was being la,thed by 94-
.mph winds. Condition Yoke was
set. and all hatches w,.'re battened
down tightly. The ~big bang" that
came nexl made history.
The wind began peeling the
tamp&per from the roof of Hangas
I. At .I ?30 walchstanders reported
roof planks blowing off into the
wind. A minute later the fire alarm
in the hangar went oHL As Sailors
searched vainly among the blimps,
aircraft and cars for ~e cause, the
automatic sprinkler system over-
head engaged. Power went dead at
1736, plunging the crowded
hangars imo eerie darhness.
Ifangar I burst iuto flames at
1742.
One curious aspect of thc storm
was the absence of torte:ms of rain
tongues of flame. Within minures
all three hangars wen: blazing.
Helpless Sailors ti~.'d themselves
together with linc and Iled from
side doors into the bl,,:sting wind.
Iighling their way do,,vn the sides
of ~he burning hangars ro take
refuge in thc inner st~tir'~CllS of
OUtSide got wo~e. l,lo~ only thc
lumber of thc largest wooden
buildings was ablaze, but the con-
tents as wcl|---hundp.'ds of air-
craft, blimps, cars. paint lockers,
vats of henzine, fuels and ferrous
metals--all packed together and
its fire tracks, but the roads were
blocked with fallen trees, delaying
help until dawn. The fiery glow of
Richmond burning lit up ihe hori-
zon and was clearly visible 20
miles away.
Air station personnel fought a
good fight. Twenty-six were
inju~d in the inferno; one hero's
life was sacrificed. NAS Richmond
Fire Chief Ilamj Shulze. a refined
Chicago fireman and bIAS civilian.
lcd a doomed charge into ftangar
l, Thc roof collapsed, killing him.
The fire burned otlt of control
throughout the night.
With daybreak, the hurricane
was gone and so was NAS
Richmond. The smoldering
hangars and their contents were a
total loss· It was the largest fire of
1945. assessed at $30 million. The
damage constitutes the biggest
peacetime Ios~ of federal property,
Perhaps a raof ~e.am falling 16
stories to ibc hangar bay crashed
through a fuselage, shooting a
spark into a gas tank--or trigger-
ing a round mistakenly left in a
p~ane's machine gun magazine.
sending a ti'acer ricocheting
through the packed bay, Did
frayed widag in thc hangar short
out'! The cause v, dl! probably
never b¢ kttown.
NAS Richmond was gone. ·
FLORIDA NEWS, 7s
WEATHER, 3B
DEATHS, 4B
LOCAL
SECTIC
SATURDA'
MAY 17,19~-
That question haunts N~krd S I SEARCHING: Metro-Dado Fire Rescueworkerslo0k for victimsin the rubble.
PLEASESEE STABBING, 5B
I
At last, honors for WWII hero who died off Keys
By ARNOLD MARKOWITZ
Herald Staff Walter
Isadore StesseI, bombardier on a
Navy blimp, died at sea near the Flor-
ida Keys in 1943 -- his life the only
one lost in a fight with a German sub-
marine that shot the aimhip down.
Today, Stessel's family will receive
the medals he earned: a Purple Heart
for 'dying in action and thc Navy
Commendation, American Cam-
paign and World War II Victory med-
als for the long-unknown defeat &the
enemy on that night 54 years ago.
The ceremony will be staged as
part of Armed Forces Day and
National Heritage Preservation Day
at the site of thc former Richmond
Naval Air Station in South Dado. It
was the base for blimps that patrolled
thc Florida coast during World War
II, looking for enemy submarines and
escorting merchant ship convoys.
Why it took this long to honor the
· lost bombardier is a strange and
quirky story.
The Purple Heart apparently wgs
mailed in 1944 to Stessel's parents m
Brooklyn, N.Y., but never was deliv-
ered, possibly because they had
moved to Forest Hills.
All the information the Stessels
received was the telegram reporting
his death, plus the particularly terri-
ble detail that he survived the down-
ing of the blimp only to be killed by a
shark. His remains were not recov-
ered. He Was 28 years old, the son of
Saul and Rose Stessel. He had studied
cng nearing in college but left to
lears the furrier's trade in his father s
shop.
Saul Stessel, a second cousin who
lives in Doyle,' was a teenager when
Isadom enlisted in the Navy, eager to
serve his country. At 68. he recalls the
impact of the family's loss as vividly
as if be were still 15.
"Sara and Rose were walking
death. They just didn't want to live
PLEASESEE MEDALS, 6B
Isadore
Stessel
A Halt-century later :. lorloa
horrible death. They did a burial
Park, N.Y. It ~a/a horror. Sam
There were 11 men aboard the
/he Keys. Near michaight on July
The blimp, deflated, fell onto the
he and his mates fought on the
night o£July 18, 1943. How suc-
Mucffsf what the N~y knows
Isadom Stessel's cousin will be giVen ~ls Wodd War g med-
als at noon to~ay as part of Armed Forco~ Day, Dade Heritage
Days and National Hedtage Preservation Day proceedings.
A variety of public events are planned from 10 a.m. to 5 p.m.
where Richmond Naval Air Station blimp base was located. The
site is next to Metrozoo and the Gold Coast Railroad Museum.
From Florida's Turnpike extan~on, take Southvmst 152nd
Street west to 124th Avenue, the road to Metrozoo. Just before
the zoo's main parking tots, turn right. Signs will point the mst of
me submarine," Atwood sa~d. Stesscl dropped. The cha,~ges did
Vt/ W 11 Hero tO De nonorea
ba~bed the sub on the ,way down:
"A 300-pound bomb fallins
from 200 feet up would knock
quite a hole in iL We'll nev/r
know if it was that or maehini
gun fire," he said. "The Navy did
learn in 1960 that thc attack
inflicted damage, so posthu-
mously, they authorized-the
medals. By this time the Stes.sel
family was flown on the winds,
and they never got a/l. ything until
Atwood wrote a~ arti~l~ about
the sea fight, without the voic~ of
a single StesseA. He had no idea
where a~y of th~m were. Tropic,
the Herald's Sunday magazine,
published Atwood's story on
Maroh 9. Saul Stessel didn't see
it, but a few days later the man
who takes c~re of his spa men-
tioned it to him. Stessel retrieved ~
the paper from the recycling bin,
called Atwood and started
another chapter of the szory.
Atwood put Stessel in touch
with Navy authorities. Today's
ceremony is the result. He also
inv/ted Saul Stessel to visit
what's left· 'of the Richmond
Naval Air Station. Its thottsand-
· acre.~proparty has been divided
up between Metrozco, a federal
prison, housing for Coast Guard
personnel and a railroad
- A few remnants of the old ba~e
are left, including a colleaion of
artifam in a tiny blocld~ouse that
serves as a museum. Atwood is
boosting a project to grow it into
a real museum, and St~ssel is'
pitching in as a volunteer fundl
ra/ser. 2. musenm like that would,-
be just the place to perpetuate his
cousin's memory and his deeds.
"I'll present the medals hack to
the muieum," he said. "If I jus/~
stick them in a drawer, wha!
good are they? r: : : 7
Friends of
?fiends of Naval Air
Station Ric~u~ond
Gold Coast Railroad Museum
12450 SW 152 Street
Miami, FL 33177
NAVAL AIR STATION
VOLUME ONE - ISSUE FOUR
R I CHMOND
JAN-APR 1997
ARMED FORCES
DAY
SATURDAY
ISADORE STESS~L
Petty Officer
Isadore Stessel
1915-1943
Navy blimp K-7¢ took off from NAS
Richmond on July 18, 1943 to hunt for
enemy submarines. Right off Key Largo
they found one, enemy sub U-134.
Our blimp went to battle stations
and attacked. In the battle K-74 was
shot down. The crew spent the next
nine hours in the water before being
Except for MM2 IssUers Stessel,
USN, who was killed in action. The
Friends of NAS Richmond have located
his next of kin, Mr. and Mrs. Saul and
Stephante Btessel. This Armed Forces
Day, Saturday, May 17th they will be
at NAS Richmond for a special
wartime medals will be presented to
them; the Purple Heart, Commendation
Join us at 12 noon sharp for it.
DADE HERITAGE ~RUST
JOINS FORCES
The Dads Heritage Trust, together
with the Goldcoaet Railroad Museum
will co-host the updoming Armed Forces
Day Open House as the finale for the
Dads Heritage Days events. This year
Armed Forces Day also happens to fall
on the same day as National Historic
Preservation Dayl
MAY 17TH
Get ready for Armed Forces Day[
The Museum and NAS Exhibit will be
open with free admission. Slide shows
will be presented and some of the
military units which have'been invited
to attend are:
--Coast Guard Blackhawk helicopter.
--Marine Corps TOW artillery.
--Army Reserve Center HL~VEES.
--SOUTHCOM personnel.
--Navy aircraft carrier display.
--13th Army National Guard Band.
Hours are 10-5 pm. Bring the family~
and come and enjoy.
Base Paint-a-thonl
Under the direction of Mr. Jim
Peck, and in honor of the occasion, we
will take another step towards
restoring the NAS Richmond site. The
present office, which was once the
base laundry, will get a fresh coat of
paint. Gold Coast colors, which
incidentally are the same ss Navy
colors --blue and gold-- will be on
hand in plenty, along with rollers and
brushes. Help swing a lick towards
this great historic project.
-- NAS policy is that all young people
(cadets, etc.) helping on NAS will
have their names, as well as their
unit, recorded as part of the
permanent exhibit.
The Navy will have Job openings for
60,000 young men and women next year.
The NaVy is hiring. Pass the word~
The Friends of NAS Richmond is an
informal non-profit association of
aviation buffs, veterans, patriotic
community-minded citizens, servicemen
& women dedicated to presez-ving for
future generations the rich military
heritage of historic south Florida.
CITY OF AVENTURA
OFFICE OF THE CITY MANAGER
MEMORANDUM
TO:
FROM:
DATE:
SUBJECT:
City Council
Eric M, Soroka, City/~
August 29, 1997
Resolution Amending the Engineering, Public Works Review and
Inspection Fee Schedule to Revise Fees for Resurfacing,
Waterproofing or Sealcoating
September 2, 1997 City Council Meeting Agenda Item
RECOMMENDATION
It is recommended that the City Council approve the attached Resolution revising the
Inspection Fees to amend and reduce the fee for resurfacing, waterproofing, or
sealcoating on public or private property. The new fee would be 3% of total project
cost.
BACKGROUND
The City Council adopted Resolution 96-39. Said Resolution established a fee
schedule for engineering, public works review and inspection permits. This fee
schedule is, to a large extent, identical to the Dade County fee schedule. This was
done primarily to reduce confusion during the transitional period from County to the
City.
During a recent parking lot resurfacing project at Del Vista Condominium, a permit fee
of $5,000 was dictated as a result of the present fee of $20.00 per 1,000 square feet.
When it was brought to our attention that the total cost of the job was $20,000 (not
including permits), the inequity of this fee was realized.
Subsequently, we have surveyed the adjacent municipalities. We have found that
Hallandale charges $35.00 for the first 1,000 square feet and $10.00 for each additional
1,000 square feet or fraction. North Miami Beach charges 2% of the cost of the project.
Memo to City Council
Page 2
Them Del Vista project involved roughly 200,000 square feet of resurfacing, at a cost of
$20,000. Therefore, for the same job in Hallandale, the cost would be $2,025, while in
North Miami Beach the cost would be $400.00.
Following discussions with our Community Development Director, Building Official and
inspectors, we believe that the existing fees, as well as Hallandale's fees are too high.
However, we also believe that North Miami Beach's fee is a little too Iow. Therefore, we
propose a fee of 3% of project cost. As a comparison, the fee under the new proposal
would be $600.00.
If you have any questions, please feel free to contact me.
EMS/aca
Attachment
CC0362-97
RESOLUTION NO.
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF AVENTURA, FLORIDA AMENDING RESOLUTION 96-
39 WHICH PROVIDES A FEE SCHEDULE FOR
ENGINEERING AND PUBLIC WORKS INSPECTION
PERMIT AND REVIEW FEES BY AMENDING SECTION
A(16) OF SAID FEE SCHEDULE ATTACHED THERETO
AS EXHIBIT "A"; AUTHORIZING THE CITY MANAGER
TO DO ALL THINGS NECESSARY TO CARRY OUT THE
AIMS OF THIS RESOLUTION; AND PROVIDING AN
EFFECTIVE DATE.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF AVENTURA, FLORIDA, THAT:
Section1. Section A(16) of Exhibit "A" to Resolution 96-39, entitled
Engineering and Public Works Inspection Permit and Review Fee Schedule, is hereby
amended to read as follows:
(16) For resurfacing, water proofing or seal coating:
Percentage of total project cost 3% I
Section 2. The City Manager is hereby authorized to do alt things necessary
to carry out the aims of this Resolution.
Section 3. This Resolution shall become effective immediately upon its
adoption.
Resolution No.
Page 2
The foregoing Resolution was offered by Councilmember
its adoption. The motion was seconded by Councilmember
being put to a vote, the vote was as follows:
Councilmember Arthur Berger
Counciimember Jay R. Beskin
Councilmember Ken Cohen
Councilmember Harry Holzberg
Councilmember Patricia Rogers-Libert
Vice Mayor Jeffrey M. Perlow
Mayor Arthur I. Snyder
PASSED AND ADOPTED this 2"d day of September, 1997.
, who moved
, and upon
ATTEST:
ARTHURI. SNYDER, MAYOR
TERESA M. SMITH, CMC
CITY CLERK
APPROVED AS TO LEGAL SUFFICIENCY:
CITY ATTORNEY
/tms
CITY OF AVENTURA
OFFICE OF THE CITY MANAGER
MEMORANDUM
TO:
FROM:
DATE:
SUBJECT:
City Council ~
Eric M. Soroka, Ci
August 29, 1997
Proposed Ordinance Providing Moratorium in Marina and
Hospital Area
1st Reading September 2, 1997 City Council Meeting Agenda Item
2nd Reading September 16, 1997 City Council Meeting Agenda Item
RECOMMENDATION,
As per the City Council's request, attached is an Ordinance which establishes a building
moratorium in two areas in the City pending the completion of the Comprehensive Plan.
The area surrounding the hospital in the northwest portion of the City, and the area
adjacent to Thunder Alley Marina area are included in the Ordinance.
BACKGROUND
The two areas described above are recognized as areas of critical concem because of
the transition of land use patterns. It is important to control and guide the transition of
these areas to avoid a mix of incompatible and adverse land uses. The City Council
has expressed their desire to adopt policies that would change the character of the two
areas. This process normally takes place during the preparation of the Comprehensive
Plan.
In order to ensure that development does not take place pending the formulation of the
Comprehensive Plan that would not be compatible with the policies of the City Council,
a development moratorium is needed. The Ordinance provides for a waiver and appeal
process.
If you have any questions, please feel free to contact me.
EMS/aca
Attachment
CC0358-97
ORDINANCE NO. 97-
AN ORDINANCE OF THE CITY OF AVENTURA, FLORIDA,
(THE "CITY"), PROVIDING FOR A BUILDING
MORATORIUM ON ISSUANCE OF DEVELOPMENT
ORDERS AND DEVELOPMENT PERMITS WITHIN THE
MARINA AREA, WHICH INCLUDES ALL INDUSTRIALLY
ZONED (IU-1 AND IU-2) PROPERTY, (EXCEPT FOR: THAT
CERTAIN INDUSTRIALLY ZONED PROPERTY LOCATED
NORTH OF NE 187TH STREET, WEST OF NE 29TH
AVENUE, SOUTH OF NE 1915T STREET, AND EAST OF
BISCAYNE BOULEVARD, AND THE INDUSTRIALLY
ZONED PORTIONS OF TRACTS "D" AND "E" OF THE
PLAT OF BISCAYNE COMMERCIAL [PB 143, P 38]), AS
DEPICTED ON EXHIBIT "A", AND THE HOSPITAL AREA,
WHICH INCLUDES THE AREA BOUNDED ON THE NORTH
BY THE NORTHERN MNE OF THE CITY MMITS, ON THE
SOUTH BY NE 203RD STREET/IVES DAIRY ROAD, ON THE
WEST BY THE WESTERN UNE OF THE CITY MMITS, AND
ON THE EAST BY BISCAYNE BOULEVARD RIGHT-OF-
WAY, AS DEPICTED ON EXHIBIT "B", WITHIN THE CITY
OF AVENTURA; PROVIDING FOR SEVERABIMTY;
PROVIDING FOR REPLACEMENT OF MORATORIA
PROVISIONS OF SECTION 33-319, ET SEQ. OF THE
METROPOMTAN DADE COUNTY CODE FOR THE
SPECIFIC MATTERS ADDRESSED HEREIN.
WHEREAS, pursuant to Section 8.03 of the Charter of the City of Aventura (the
"City"), and Section 163.3167(4), Fla. Stat., there is presently in effect within the City the
provisions of the Comprehensive Plan of Metropolitan Dade County (the "County Plan");
and
WHEREAS, the City Council is presently working through its consultants and staff
on the preparation of a Comprehensive Plan for the City in accordance with Section
163.3177, Fla. Stat. (the "City Plan") which, upon implementation, shall serve to guide,
Ordinance No. 97-
Page 2
control and determine land use, development and growth, so that the public health, welfare
and safety is protected and the aesthetic and visual qualities of the City are further
enhanced and are protected from impairment by incompatible uses; and
WHEREAS, the Marina Area and Hospital Area respectively described in Exhibits
"A" and "B" are recognized as areas of critical concern because of the transition of land use
patterns, and are recognized as areas in which it is necessary to carefully control and guide
development in order to enhance and preserve the quality of life in the City; and
WHEREAS, in the Hospital Area a trend is emerging in which land use is being
transformed from residential to medical and office use; and
WHEREAS, the Hospital Area is a prime situs for the important medical industry
located within the City, and it is necessary to encourage careful planning of medical and
related facilities to assure that available land resources are used and projects are designed
so that piecemeal development is avoided, and the health and employment benefits of the
medical industry are optimized, while meeting aesthetic concems of the City; and
WHEREAS, in the Marina Area a trend for land use change is reflected by several
applications in which it is proposed to convert industrial uses to residential uses; and
WHEREAS, it is necessary to control and guide the transition of the Marina Area to
avoid a mix of incompatible and adverse land uses as independent residential and
industrial users seek to develop in that area; and
WHEREAS, the City Council desires to insure that during the pendency of the
necessary study activity, presently underway, for the formulation and implementation of the
Ordinance No. 97-
Page 3
City Plan, that additional development orders and development permits are not issued in
the Marina Area and Hospital Area, so that once the City Plan is prepared and
implemented it will be fully effective in accomplishing its purposes.
NOW THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
AVENTURA, FLORIDA, AS FOLLOWS:
Section 1. Moratorium Imposed. Dudng the time that this Ordinance is in effect as
specified in Section 8 below, there shall be a moratorium upon the issuance of
Development Orders and Development Permits, as those terms are defined in Section
163.3164, Fla. Stat. (collectively "Development Orders") concerning development within the
Madna Area and Hospital Area within the City.
Section 2. Waivers. The City Council, after a public hearing, may grant a waiver to
the moratorium provided above and authorize the issuance of Development Orders in the
Madna Area and Hospital Area, where the City Council determines, based upon substantial
competent evidence, that the specific use or activity requested by the waiver application will
not detrimentally effect the preparation and implementation of the City Plan and will be
compatible with surrounding land uses.
Section 3. Vested Ri;ihts.
(A) Nothing in this ordinance shall be construed or applied to abrogate the
vested right of a property owner to complete development where the property owner can
demonstrate each of the following:
(1) A govemmental act of development approval was obtained prior to the
Ordinance No. 97-
Page 4
effective date of this Ordinance; and
(2) Upon which the property owner has detrimentally relied, in good faith, by
making substantial expenditures; and
(3) That it would be highly inequitable to deny the property owner the right to
complete the development.
(B) Except as provided in paragraph (C) of this Section, any property owner
claiming to have vested rights under this Section 3 must file an application with the City
Council for a vested rights determination within 90 days after the effective date of this
Ordinance. The application shall be accompanied by a fee of $1,500.00 and contain a
sworn statement as to the basis upon which the vested rights are asserted, together with
documentation required by the City and other documentary evidence supporting the claim.
The City Council shall hold a public hearing on the application pursuant to Ordinance 96-09
and Ordinance 97-15 and based upon the evidence submitted shall make a determination
as to whether the property owner has established vested rights.
(C) Any property owner claiming to have vested rights under this Section 3, by
virtue of a governmental act of development approval which was obtained after the date of
incorporation of the City, may follow the procedure authorized by this paragraph (C) in lieu
of the procedure provided by paragraph (B). The procedure under this paragraph (C), shall
be as follows:
(1)
The property owner claiming such vested dghts shall file an
application with the City Manager for a vested rights determination
Ordinance No. 97-
Page 5
within 90 days after the effective date of this Ordinance. The
application shall be accompanied by a fee of $50.00 and contain a
sworn statement as to the basis upon which the vested rights are
asserted, together with documentation required by the City and other
documentary evidence supporting the claim. The City Manager or his
designee shall review the application and based upon the evidence
submitted shall make a determination as to whether the property
owner has established vested rights.
(2) The City Manager's decision shall be subject to appeal to the City
Council by notice of appeal filed with the City Clerk within ten (10)
days of the City Manager's written decision.
Section 4. Appeals. Appeals from final decisions by the Council under Section 2 or
Section 3 of this Ordinance shall be by the filing of a Petition for Certiorari in the Circuit
Court of the Eleventh Judicial Circuit in and for Dade County in accordance with the Florida
Rules of Appellate Procedure for the review of the quasi-judicial rulings of municipal
agencies.
Section 5. Modification. to Vested Development. Within 120 days of a final
determination of vested dghts under Section 3, a property owner shall have the right to file
an application requesting a modification to the vested development, notwithstanding the
moratorium imposed by this Ordinance. In considering the application, the City Council (or
City Manager under Section 3 (C)) shall apply all established criteria and land development
Ordinance No. 97-
Page 6
regulations then in effect, including applicable concurrency regulations, and zoning in
progress. This right to apply for modification does not in any manner vest any rights, and
such application shall be considered a new application subject to de novo proceedings.
Section 6. Exhaustion of Administrative Remedies. No property owner claiming that
this Ordinance as applied constitutes or would constitute a temporary or permanent taking
of private property or an abrogation of vested rights may pursue such claim in court unless
he or she has first exhausted the administrative remedies provided in this Ordinance.
Section 7. Replacement of County Code Moratoria Provisions for Specific Matter.
Pursuant to City Charter Section 8.03, this Ordinance shall raplaca the provisions of
Section 33-319 et seq. of the County Code concerning building and zoning moratoria,
solely as related to the specific matter of this Ordinance pertaining to the Marina Area and
Hospital Area described herein.
Section 8~ Term. The moratorium imposed by this Ordinance is temporary and shall
be effective for a period of 180 days from adoption hereof, unless dissolved earlier by the
City Council. Further, the moratorium shall automatically dissolve upon the adoption of the
City Plan, the formulation and adoption of which shall be expeditiously pursued. The
moratorium may be reasonably extended, if necessary.
Section 9. Effective Date. This Ordinance shall be effective immediately upon
adoption on second reading.
The foregoing Ordinance was offered by Councilmember , who
moved its adoption on first reading. The motion was seconded by Councilmember
, and upon being put to a vote, the vote was as follows:
Ordinance No. 97-
Page 7
Councilmember Arthur Berger
Councilmember Jay R. Beskin
Councilmember Ken Cohen
Councilmember Harry Holzberg
Councilmember Patricia Rogers-Libert
Vice Mayor Jeffrey M. Pedow
Mayor Arthur I. Snyder
The foregoing Ordinance was offered by Councilmember , , who
moved its adoption on second reading. The motion was seconded by Councilmember
, and upon being put to a vote, the vote was as follows:
Councilmember Arthur Berger
Councilmember Jay R. Beskin
Councilmember Ken Cohen
Councilmember Harry Holzberg
Councilmember Patricia Rogers-Libert
Vice Mayor Jeffrey M. Perlow
Mayor Arthur I. Snyder
PASSED AND ADOPTED on first reading this 2"d day of September, 1997.
PASSED AND ADOPTED on second reading this 16th day of September, 1997.
ATTEST:
ARTHURI. SNYDER, MAYOR
TERESA M. SMITH, CMC
CITY CLERK
APPROVED AS TO FORM AND LEGAL SUFFICIENCY:
CITY ATTORNEY
TRACT
TR B
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EXHIBIT A
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MARINA AREA
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0A
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30539?6222 BERCOW ~ RADELL PA. 8?2 P02 AUG 2? ~97 16:42
BERCOW ~, F~ADELL
August 27, 1997
VIA FASCIMILE AND HAND DELIVERY
Mi'. Edc Soroka
City Manager
City of Aventura
2999 N.E. 191 Strcct, Suite 500
Aventura, FL 33180
Re: Proposgd Moratorium Ordinance Relatimz to "Marina" and "Hosoital" Areas
Dear Eric:
As we discussed with you, this law lmm represents AvenRRa Bay Villas
Corporation, the owner of approximately 4.5 acres of land located on the north side of
N.E. 185 Street, on the site of the present Florida Wire Products facility. The Aventura
Bay Villas property is presently proposed to be included within the "Marina" area that
would be subject to the permitting moratorium imposed by the ordinance sebeduled for
public hearing on September 2, 1997.
Aventura Bay Villas submitted an application to rezone its property to a
residential zoning district on March 6, 1997. Our client has paid all required filing fees
for this application (Case File 02-MA-97), and has hired our finn and an architect to
process the application and obtain favorable staff recommendations for the application
and the proposed site plan. At present, we have submitted a site plan for the Aventura
Bay Villas property which proposes 36 residential units, for a density of 8.39 units per
acre. Please note that this density is less than the density approved by the City Council
on July 1, 1997 for the Aventura Bay Townhomes property, immediately south of the
subject property. Our development team is reacting to a detailed list ofissnes and
concerns raised by Community Development staffun April 30, 1997, and our architect is
revising the plans in an attempt to address most of the staffs concerns.
Under the cireumstaneas, we believe that it is extremely unfair and
counterproductive for the Aventura Bay Villas property to be subject to a permi~ng
moratorium. The "Waiver" section of the ordinance does not provide comfort, since it
requires another time consuming process, the outcome of which is uncertain.
305577~222 BERCO~ & RADELL PA. 8?2 P03 AUG 27
Mr. Eric Soroka
Page 2
August 27, 1997
Accordingly, we would suggest that the following sentence be added to
Section 1 of the proposed ordinance:
Notwithstanding the foregoing, such moratorium shall not
apply to any property within *.he Marina Area for which an
application for a district boundary change to a residential
zoning district has been filed prior to August 1, 1997.
I would appreciate hearing your thoughts on this proposal. On behalf for
inclusion of such language in the Ordinanee.
JB:lm
Mr. Carlos Cacciamani
Mr. David B.C. Martins
David Wolpin, Esq.
BE:RCOW 5. RADELL
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LAW OFFICES
BEECOW ~x RADELL
RROFESSIONAL A~SOCIATION
FIRST UNION ~INANCIAL CENTER, SUITE 850
200 SOUTH BISCAYNE BOULEVARD
MIAMI, FLORIDA 33131
DIRECT LINE: (305) 377-6220
August 27, 1997
VIA FASCIMILE AND HAND DELIVERY
Mr. Eric Soroka
City Manager
City of Aventura
2999 N.E. 191 Street, Suite 500
Aventura, FL 33180
Re: Proposed Moratorium Ordinance Relating to "Manna' ' .... and Hospital" Arene
Dear Eric:
As we discussed with you, this law fLrm represents Aventura Bay Villas
Corporation, the owner of approximately 4.5 acres of land located on the north side of
N.E. 185 Street, on the site of the present Florida Wire Products facility. The Aventura
Bay Villas property is presently proposed to be included within the "Marina" area that
would be subject to the permitting moratorium imposed by the ordinance scheduled for
public hearing on September 2, 1997.
Aventura Bay Villas submitted an application to rezone its property to a
residential zoning district on March 6, 1997. Our client has paid all required filing fees
for this application (Case File 02-MA-97), and has hired our firm and an architect to
process the application and obtain favorable staff recommendations for the application
and the proposed site plan. At present, we have submitted a site plan for the Aventura
Bay Villas property which proposes 36 residential units, for a density of 8.39 units per
acre. Please note that this density is less than the density approved by the City Council
on July I, 1997 for the Aventura Bay Townhomes property, immediately south of the
subject property. Our development team is reacting to a detailed list of issues and
concerns raised by Community Development staffon April 30, 1997, and our architect is
revising the plans in an attempt to address most of the staff's concerns.
Under the circumstances, we believe that it is extremely unfair and
counterproductive for the Aventura Bay Villas property to be subject to a permitting
moratorium. The "Waiver" section of the ordinance does not provide comfort, since it
requires another time consuming process, the outcome of which is uncertain.
Mr. Eric Soroka
Page 2
August27,1997
Accordingly, we would suggest that the following sentence be added to
Section I of the proposed ordinance:
Notwithstanding the foregoing, such moratorium shall not
apply to any property within the Marina Area for which an
application for a district boundary change to a residential
zoning district has been filed prior to August 1, 1997.
I would appreciate hearing your thoughts on this proposal. On behalf for
inclusion of such language in the Ordinance. ~
Mr. Carlos Cacciamani
Mr. David B.C. Martins
David Wolpin, Esq.
BE~COW & RAD£-L
05/29/97 FRI 15:18 FAX 305 3738933 FX 2 ~002
August 29, 1997
Mr. Eric M- $oroka
City Manager
City of Avent'ura
2999 N.E. 191 Street, Sth
Concourse Center 2
Aventura, FL 331g0
Declaration of Restrictions; Dural?foundling Bay, Ltd.
and Glendale Federal Bank
Dear Eric:
In furtherance of my recent letters m the City, as well as my conversations with
Jaye Epst~q-n, 1 am enclosing herewith proposed Declaration of Restrictions which 1 plan
to proffer to the City Cormmssion on Tuesday; September 2, 1997. Please be so kind
as to have these documents reviewed prior to the hearing and we will, of course, be more
than happy m entertain any suggestions you may have in regard to this matter.
Thank you for your usual courtesy and cooperation.
SBP:cm
Very truly yours.
Stanley B. Price
David Wolpin, Esq.
Sheldon Miller
Lester Goldstein, Esq.
Ellen Goldman, Esq.
Suzanne Weiss
STANLEY B. PP, ICI~
305/347-3816
,08,'29,'97
FRI 15:18 FAX 305 3738933
FX 2
~]003
This insttumem w~S prepared by:
I,ester L. Golds~in, Esq.
Eckert Seamans Chcrin & Mellott
701 Brickel[ Ave., #1850
Miami, Florid~ 33131
Space Regrved for Clerk
DECLARATION OF RESTRICTIONS
The undersigned, as Owner(s) of the following described real property (the "Property"),
lying, being and situated in Dade County, Florida, and legally described as:
SEE EXIIIBIT "A"
IN ORDER TO ASSURE the City Council of the City of Aventura, Dade County, Florida that
the representations made to them by the Owner, during consideration of the proposed Building
Moratorium Ordinance, Public Hearing No. 97- will be abided by the Owner, its successors
or assigns freely, voluntarily and without duress makes the following Declaration of Restrictions
covering and running with the Propexty:
(1)
That, notwithstanding the current land use designation and zoning category for
the Property, the development of the Property during that period of time that the
Building Moratorium Ordinance shall be in effect, shall be limited to non-
industrial uses, including, but not limited to, office buildings and/or restaurantS.
~ As further pan of this Declaration, it is hereby understood and agreed
that any official inspector of the Aventura Community Development Depamnent, or its
agents duly authorized, may have the privilege at any time during normal workiag hoars
of entering and impectmg the use of the premises to determine whether or not the
requirements of the building and zoning regulations and the conditions herein agreed to
are being complied with.
Cov_onanst ]~nnlng w/th the Land. This Declaration on the pan of the Owner shall
constitute a covenant lmnning with the land and may be recorded in the public records
of Dade County, Florida and shall remain in full force and effect and be binding upon
the Owner. and their heirs, successors and assigns until such time as the same is
modified or released, these restrictions during their hfetime shall be for the benefit of,
and limitation upon, all present and future owners of the real property and for the public
welfare.
Term. This Declaration is to run with the land and shall be binding on all parties and
all persons claiming under it for a period of time that the Building Moratorium Ordinance
(enumerated above) shall be in effect, unless an instrument signed by a majority of the,
then, owner(s) of the Property has been recorded agreeing to change the covenant in
.08<'29/97 FRI 15:19 FAX 305 ~73893~ FX 2 ~004
Declaration of Restrictions
Page 2
then, owner(s) of the Property has been recorded agreeing to change the covenant in
whole, or in part, provided that the Declaration Ires first been modified or released by
the City of Aventura.
Mgdificatiom Amendment, Release. This Declaration may be modified, amended or
released as to tbe land hereto described, or any portion thereof, by a written instrmncnt
executed by the, then, owner of the Property provided that the same is also approved by
the City Council of the City of Aventura, Dare County, Florida.
Should this Declaration be so modified, amended or released, the City Manager, or in
the absence of the City Manager, by his assistant in charge of the office in lxis absence,
shall forthwith execute a written insu~ument effectuating and acknowledging such
modification, amendment or release.
Enforcement. Enforcement shall be by action against any parties or person violating,
or a~tempting to violate, any covenantS, the prevailing party in any action or suit,
pertaining to or arising out of this Declaration, shall be entitled to recover, in addition
to costS and disbursements allowed by law, such sum as the Court may adjudge to be
reasonable for the services of his attorney. This enforcemem provision shall be in
addition to any other remedies availablg at law or in equity or both.
Auh'~of.z~tlon for Com~.!mitv Devel0nm~nt l)epm~;~ont to Withhold Per~iF~ and
Ins_.s9_~0.O~. tn the event improvements are not made in accordance with the terms of
chis Declarafon, in addition to any other remedies available, the Aventura Community
Development Depax~ment is hereby authorized to withhold any further perraits, and
refuse to make any inspections or grant any approvals, until such time as this Declaration
is complied with,
Election~ All rightS, remedies and privileges granted herein shall be
deemed to be cumulative ~nd the exercise of any one or more shall neither be deemed
to constitute an election of remedies, nor shall it preclude thc party exercising the same
from exe~ising such other additional rightS, remedies or privileges.
Presumption of Comoliance. Where consmlction has occurred on the Property or any
portion thereof, pursuant to a lawful permit issued by the County, and inspections made
and approval of occupancy given by the City, then such construction, inspection and
approval shall create a rebutXable presumption that the buildings or slxuctures thus
constructed comply with the intent and spirit of this Declaration.
.08/29,'9? FRI 15:19 FAX 305 3?38933 FX 2 ~005
Declaration of P. estric~ons
Page ~
Severability. Invalidation of any one of these covenams, by judgment of Court, in no
way shall affec! any of the o~her provisions which shall remain in full force and effect.
~ This Declaration shall b~ filed of record in thc public records of Dade
County, Florida at the cost of the Owner following the adoption by thc City of Aventura
City Couacil of the appropriate waiver, which excmp~ the Property from the
requirements of the proposed Building Moratorium ordinance.
Signed, witnessed, executed and acknowledged this day of _, 1997.
DUMBFOUNDLING BAY, LTD., a Florida
Witnesses: limited partnership
By Its C~n~ral pm. met-s:
Print Name:
Olympian Investments, Inc.
a Florida Corporation
Print Name: By:
David L. Rozen, l~esident
Print Name:
Miloma, Inc.
a Florida Corporation
Print Name:
By:__
Sheldon B. Miller, President
08/29/97 FRI 15:19 FAX 305 3738933 FX 2 ~006
Declaration of Restrictions
Page 4
STATE OF FLORIDA )
COUNTY OF DADE )
The foregoiug insmmaent was acknowledged before me this day of ,
1997 by David L. Rozen, President, Olympian Investments, Inc., a Florida corporation, who
is personally known to me or has produced as identification.
My Commission Expires:
Notary Public
Name:
Commission Number:
STATE OF FLORIDA )
:$$
COUNTY OF DADE )
The foregoing insmnnent was acknowledged before me this d?y ef .,
1997 by Sheldon B. Miller, President, Miloma, Inc., a Florida co~poration, who is personally
known to me or has produced as identification.
My Commission Expires:
Notary Public
Name:
Commission Number:
08,'29/97 FRI 15:19 FAX 305 3738933 FX 2 [~007
This instrument was prepared by:
Lester L. Gold,rein, Esq.
Eckert Seam~n~ Chain & Mello~
701 Bri~ Ava., ~lg~0
Mi~, ~orid~ 33131
Space Reserved for Clerk
DECLARATION OF RESTRICTIONS
The undersigned, as Owner(s) of the following described real property (the "Property"),
lying, being and situated in Dade County, Florida, and legally described as:
SEE EXHIBIT "A"
IN ORDER TO ASSURE the City Council of the City of Aventura, Dade County, Florida tl~t
the representations made to them by the Owner, during consideration of the proposed Building
Moratorium Ordinance, Public Hearing No. pT- will be abided by the Owner, its successors
or assigns freely, voluntarily and without duress makes thc following Declaration of Restrictions
covering and vmning with the Property:
That, notwithstanding the current land use designation and zoning category for
the Property, the development of the Property during that per/od of time that the
Building Moratorium Ordinance shall be in effect, shall b¢ limited to non-
industrial uses, including, but not limited to, office buildings and/or restaurants.
City Insnection. As further part of this Declaration, it is hereby understood and agreed
that any official inspector of the Aventura Community Development Department, or its
agents duly authorized, may have the privilege at any time during normal worldng hours
of entering and inspecting the use of the premises to determine whether or not the
requirements of the building and zoning regulations and the conditions herein agreed to
are being complied with.
~gvon~m Rnnnin~ with the La~d. This Declaration on the part of the Owner shall
constitute a cove~nt running with the land and may be recorded in the public records
of Dade County, Florida and shall remain in full force and effect and be binding upon
the Owner, and their heirs, successors and assigns until such time as the same is
modified or released, these restrictions during their lifetime shall be for the benefit of,
and )imltation upon, all present and future owners of the real property and for the public
welfare.
Tenn. This Declaration is to nm with the land and shall be binding on all parties and
all persons claiming lmdel' it for a period of time that thc Building Moratorium Ordinance
(enumerated above) shall be in effect, unless an insmmaent signed by a majority of the,
then, owner(s) of the Property has been x~corded a~eeing to change the covenant in
08/29~97 FRI 15:20 F.~ 305 3738933 FX 2 ~008
Declaration o[Restricflons
Page 2
whole, or in part, provided that the Declaration has first been modified or released by
the City of Aventura.
Moditlcatinn, Amendment, Release. This Declaration may be modified, mended or
released as to the land hereto described, or any portion thereof, by a written immanent
executed by the, then, owner of the Property provided that the same is also approved by
the City Council of the City of Aventura, Dade County, Florida.
Should this Declaration be so modified, amended or released, the City Manager, or in
the absence of the City Manager, by his assistant m charge of thc office in his absence,
shall forthwith execute a written instrument effectuating and acknowledging tach
modification, amendment or release.
Enforcement. Enforcement shall be by action against any parties or person violating,
or attempting to violate, any covenants, the prevailing party in any action or suit,
pertaining to or arising out of this Declaration, shall be entitled to recover, m addition
to costs and disbursements allowed by law, such sum as the Coua may adjudge to be
reasonable for the services of his attorney. This e~forcement provision shall be in
addition to any otb_er remedies available at law or in equity or both.
~llthor~z_~.~'an for Cornm*mltv Development De_Darlmpnt to Withhold Permits and
Insnections. In the event improvemems arc not made in accordance with the terms of
this Declaration, in addition to any other remedies available, the Aventura Community
Development Depat~tent is hereby authorized to withhold any further permits, and
refu~e to make any inspections or gram any approvals, until such time as this Declaration
is complied with.
Election o! Reme~[~. All rights, remedies and privileges granted herein shall be
deemed to be cumulative and the exercise of any one or more shall neither be deemed
to comtimte an election 0f remedies, nor shall it preclude the party exercising the same
from exercising such other additional right~, remedies or privileges.
Presumntion of Com011ance- Where construction has occurred on the Property or any
portion thereof, pursuant to a lawful permit issued by the County, and impections made
and approval of occupancy given by the City, then such construction, inspection and
approval shall create a rebuttable presumption that the buildings or structures thus
constructed comply with the intent and spirit of this Declaration.
~ Invalidation of any one of these covenantS, by judgment of Court, in no
08/29/97 FRI 15:20 FAX 305 3738933 FX 2 ~009
Declaration of R~lction~
Pagc 3
way shall affi:ct any of the other provisions which shall remain m full force and effect.
~ This Declaration shall be filed of record in the public records of Dade
County, Florida at thc cost of thc Owner following the adoption by thc City of Aventura
City Council of thc appropriate waiver, which exempts the Property from the
requirements of the proposed Building Moratorium ordinance.
Sigaed, witnessed, executed and acknowledged this __ day of
1997.
Witnesses:
GLENDALE FEDERAL BANK, F.S.B,
Ih:mt Name:
BY:
Print Nm:
STATE OF
COUNTY OF _
The foregoing instrument was acknowledged before me by
, of
a corporation, on behalf of the corporation and who is personally
knOWn to me or has produced , as identification.
witness my signature and official seal this __ day of_
County and State aforesaid, the date and year last aforesaid.
,199~ in the
[ ] took an oath
[ ] did not take an oath
My Commission Expires:
Notary Public - State of
ML~,qI :F:\IXIC g\LLG\ILE~65513.1:8t29t97 (2:51 gn0
CITY OF AVENTURA
OFFICE OF THE CITY MANAGER
MEMORANDUM
TO:
FROM:
DATE:
SUBJECT:
City Council
Eric M Soroka, Oil
July 17, 1997
Cable Television Ordinance
Ist Reading August 5, 1997 City Council Meeting Agenda Item ~'
2nd Reading September 2, 1997 City Council Meeting Agenda Item
Recommendation
It is recommended that the City Council enact the attached Cable Television Ordinance
which replaces the interim Ordinance enacted in September 1996. The Ordinance
establishes procedures for applications for cable television franchises, customer service
requirements and provides the City with certain protection with respect to insurance,
indemnification and bonding.
Background
At the recommendation of the City's Cable legal advisor, Leibowitz & Associates, P.A.,
the City Council enacted an interim Cable Television Ordinance. The Ordinance was
expedited to insure the City's rights with regard to cable franchises and fees.
The City is responsible for the management and preservation of the City's rights-of-way.
The primary purpose of the interim Ordinance was to provide a mechanism by which
cable operators could continue to have, on an interim basis, "franchise" type rights of
access to the public rights-of-way to operate cable systems and the City could collect
franchise fees. In addition, the interim Ordinance sets forth applicable proc~tures and
requirements for cable franchises.
The attached letter dated July 7, 1997 from Ila Feld, of Leibowitz & Associates, P.A.,
outlines the meetings we have had with the 3 cable operators; Gold Coast, TCI and
Comcast. We have attempted to resolve many of the issues that were outstanding.
The next step is to award franchise agreements to the various cable companies. All
operators currently utilizing the City's rights-of-way would be required to complete an
City Council
Page 2
July 17, 1997
application and be granted a franchise by the City. Each operator is also required to
obtain a franchise from Dade County.
We are in the process of reviewing and negotiating the franchise agreement for
Comcast. TCI and Gold Coast will probably file once the final Cable Television
ordinance is enacted.
If you have any questions, please feel free to contact me.
EMS/tms
attachment
CC0336-97
MATTHEW I. LEIBOWITZ
JOSEPH A. BELISLE
JLA L* FELD
EDWARD S, HAMMERMAN'
LEIBOWITZ ~ ASSOCIATES, P.A.
SUNTRUST INTERNATiONAl CENTER
ONE SOUTHEAST THIRD AVENUE
SUITE 200
2000 I. STREeT~ N.W.
WASHINGTON, D.C. 20036
July 7, 1997
PTa Federal Express
Eric M. Soroka
City Manager
City of Aventura, Florida
Government Center
2999 N.E 191st Street, Suite 500
Aventura, FL 33180
Re: Cable Television Ordinance
Dear Eric:
Enclosed please find the revised proposed draft Cable Television Ordinance for the City of
Aventura (one marked and one unmarked copy).
As of this date, we have had a dialogue with three cable operators. Gold Coast, TCI and
Comcast. We have not received any comments from Gold Coast beyond tlc c6..pany's previous
memorandum with respect to its position that it does not require a franchise from the City. TCI
provided comments during our meeting in January, but has not provided any additional written
comments, specifically with respect to the City of Aventura. Comcast has provided input most
recently pursuant to your meeting of June 4~.
Having reviewed the input from the three above-referenced cable operators, the Law Firm has
revised the proposed Ordinance. As indicated below, we have accommodated certain of the
operators' comments; however, in a number of instances including, but not limited to, the definition
of gross revenues, cost recovery and customer service, we are not in agreement with the operators.
Other significant items that will need to be negotiated in a franchise agreement include, but are not
limited to, provision of an I-NET, equipment for the new City Hall and other PEG support.
Section 3. Definitions
B. Access Channel
We have modified certain definitions. However, we have not incorporated the request from
Comcast to mandate that all use of access channels be expressly non-commercial. Federal law clearly
encourages the use of access channels for non-commercial purposes, but it does not expressly prohibit
commercial use. This is a policy matter we need to further discuss. R£C£I¥£E)
O~FIC£ OF
CFIY MANAG£~
Eric M. Soroka
July 7, 1997
Page 2
O. Fair Market Value
We have not reflected Comcast's modification to delete "but with no value allocated to the
franchise itself'. The definition contained in the Ordinance tracks Federal law.
U. Gross Revenues
We have modified the definition of gross revenues to exclude "affiliates, subsidiaries or parent
of the Franchisee" and to limit the sources of revenues to those generated from the operation of the
cable system to provide cable services. This modification is in conformance with Federal law.
However, we have not deleted from the definition of gross revenues certain sources of revenue that
the cable operators, including TCI and Comcast, have objected to including, but not limited tr, late
fees, lease of excess capacity and home shopping. In addition, we have modified the language in
connection with the inclusion of franchise fees in the gross revenues definition to provide that at such
time as a court allows the inclusion of fees in the gross revenues definition, the operators will be
obligated to do so retroactive to the date of the Ordinance.
CC. State of the Art
We have modified the definition to limit the standard to technology and services available to
any community in the state of Florida.
FF. Subscriber Base
Both TCI and Comcast have requested that we delete the prohibition against using
equivalency measures for subscriber bases. In light of the high proportion of MDU's within the City,
we have not deleted this provision. However, we have modified the definition to allow use of
equivalency measures where expressly required by applicable law. At this time, we would expect this
issue to arise primarily with respect to rate regulation.
GG System Malfunction
This had initially been defined as any malfunction that affected 10 or more subscribers. We
have modified this provision to define a malfunction as one that affects 25 or more subscribers or a
multiple dwelling unit consisting of 25 or more units. ~
Section 5. Grant of Authority; Franchise Required
The Ordinance continues to be limited to cable television and requires a franchisee to submit
an application to the City for the privilege of providing non-cable telecommunications services unless
the City is otherwise prohibited by applicable law. Both operators have requested that the language
be revised to require such applications only where the City is required to impose this application
obligation by applicable law. We would strongly recommend to the City to preserve its rights unless
otherwise prohibited by law. Accordingly, we have not modified this provision.
Eric M. Soroka
July 7, 1997
Page 3
Section 6. Franchise Characteristics
E. Both operators have requested deletion of the requirements that a franchise agreement
incorporate the franchisee's application and that all relevant representations made by the franchisee
in its application or public hearing be deemed material. We would agree to waive incorporation of
the actual application since all relevant terms and conditions can be expressly provided for in the
franchise agreement itsel£ However, we would recommend maintaining the provision wherein all
representations made before the Council or at public hearings are deemed material.
In addition, the operators have requested deletion of the provision requiring that the
franchisee remain subject to all terms and conditions of the cable television franchise in the event the
franchisee offers alternative video programming services. At this time, the FCC's "open video
system" (OVS Order) appears to indicate that the City has this right. Thus, we should maintain the
language as drafted in the Ordinance. However, please be aware that challenges to the FCC's OVS
Order are now pending and a judicial decision may preempt this provision.
Section 9. Applications for Grant, Renewal, Modification or Transfer of Franchise
F.7. Comcast objects to providing information with respect to pending Federal and state litigation.
The request requires only a description of the litigation and only that litigation to which the applicant
is a party. Therefore, we do not believe that this overly burdensome and the obligation should be
maintained.
F. 14. This subsection provides that the operator provide copies of franchisee's contracts with any
and all residential and/or commercial complexes including, but limitea to condominiums,
homeowner's associations and apartment buildings. Both TCI and Comcast have objected to this
provision. We have inserted "Upon written request," to allow the issue to be decided on a case by
case basis.
J. Comcast has stated an objection to the non-refundable fees for all requests other than a new
or initial franchise. We have maintained the requirement that applications be accompanied by non-
refundable filing fees.
Section 10. Franchise
F. Both operators object to providing the City with cost recovery with respect to ou'~-of-pocket
costs incurred in considering franchise applications. Comcast has reduced the cap from $75,000 to
$5,000. We have reduced to it $50,000, but need to discuss this matter further with the operators.
Section 13. Construction Bond
Comcast has deleted the entire section. The Ordinance states that a franchise agreement "may
provide" for a construction bond. It is not mandatory; therefore, we would recommend maintaining
this provision in the Ordinance. The need to require a construction bond can then be evaluated by
the City on a case-by-case basis and negotiated in the context of the franchise agreement.
EdcM. Soroka
July 7, 1997
Page 4
Section 14. Minimum Facilities and Services
A. We have modified the state of the art requirement to be limited to the state of Florida.
A. 1. Both Comcast and TCI object to the requirement that cable systems in the City have a
minimum capacity of at least 750 MHZ This currently represents the industry standard for state of
the art. We would be extremely concerned with respect to any cable system planning to build a
system with a lower capacity. Thus, we have not modified this requirement.
Section 15. Technical Standards
A. This subsection requires that a franchisee make available equipment capable of decoding
closed circuit captioning for the hearing impaired. There seems to be a qtiestion as to whether or not
Comcast offers this equipment.
G. Comcast has deleted the requirement that a franchisee agree to comply with the start of the
art definition. We have maintained this obligation. As technology continues to advance at an
increasingly rapid rate, it is critical that the City maintain its authority to require that cable operators
keep pace with the new products and services available to subscribers.
Section 16. Public, Education and Government Support
F. Comcast and TCI object to the requirement that the operators provide the City with an I-Net.
Clearly, the City may need one 1-Net, but it will not need an I-Net from each operator. Thus, we
need to discuss the pro-rata allocation for the cost or' an I-Net to be negotiated in the context of a
franchise agreement. Notwithstanding this, we have maintained the provision that a franchise shall
provide an I-Net to the City at the request of the City. Note the Ordinance also allows for a financial
grant in lieu of certain items including but not limited to an I-NET
Section 17. Franchise Fee
A. The operators object to the City's right to increase the franchise fee should applicable law so
allow. The Ordinance provides for notice and a public heating. Thus, at such time as applicable law
allows an increase in the franchise fee, the operator wilt have an opportunity to comment on the
impact of the higher fee, at which time the City may choose not to implement the increase~ However,
we have modified the provision that required a franchisee to conclude any such agreement with the
City prior to initiating negotiations with Dade County to provide that the franchisee must complete
an agreement with the City no later than such time at which it completes an agreement with Dade
County.
G. Comcast requested that the right to audit be limited to once every two years. We have
inserted "but not more frequently than once per year". In addition, Comcast objects to making
available all books and records in Dade County and for paying costs for the City to perform such
audit outside of Dade County. We have maintained this provision.
Eric M. Soroka
.... July 7, 1997
Page 5
Section 18. Customer Service Requirements
Comcast states in its comments "We will agree to comply with FCC customer service
standards. To the extent Section 18 is inconsistent, it must be modified." In fact, the FCC standards
represent minimum guidelines and the City has the right to implement more stringent standards, as
well as enforcement mechanisms. It is the City's intent to ensure that subscribers in the City receive
superior customer service. However, it is also the City's intent to work with the cable operators to
recognize their existing business practices and the economic ramifications of implementing certain
standards. Thus, we have made some modifications. However, we would suggest that all applicants
be prepared to advise the City as to reasons why they cannot satisfy certain standards expressly set
forth in the Ordinance.
In addition, Comcast has objected to the consumer protection provision in subsection P. This
would appear to be consistent with FCC Rule 76.981 as cited by Comcast which prohibits negative
option billing. Thus, we have not modified this provision.
If you are in agreement with the revised Ordinance, we would propose that the City move
forward with issuing the document to the operators with notice of the date, time and place of the City
Council meeting at which the Ordinance will be considered for first reading.
Please call me to discuss this matter ~at your earliest convenience.
ely, )
Ila L. Feld
ILF/jde
Enclosure
ORDINANCE NO. 97-
AN ORDINANCE OF THE CITY OF AVENTURA,
FLORIDA, REPEALING ORDINANCE NO. 96-15;
PROVIDING THE TERMS AND CONDITIONS FOR THE
OPERATION OF CABLE TELEVISION SYSTEMS AND
THE APPLICATION, PROCEDURES AND
REQUIREMENTS RELATING TO THE GRANT OF
FRANCHISES FOR THE CONSTRUCTION,
INSTALLATION, OPERATION AND MAINTENANCE OF
CABLE TELEVISION SYSTEMS, EQUIPMENT AND
FACILITIES IN, ON, ACROSS, ABOVE OR THAT IN ANY
MANNER WHATSOEVER USE THE CITY'S PUBLIC
RIGHTS OF WAYS AND TO ENSURE THAT USE OF THE
CITY'S PUBLIC RIGHTS OF WAYS IS IN THE PUBLIC
INTEREST AND IN CONFORMANCE WITH APPLICABLE
LAW; PROVIDING FOR CONFLICTS; PROVIDING FOR
SEVERABILITY; PROVIDING A SAVINGS CLAUSE AND
EFFECTIVE DATE.
WHEREAS, effective with the adoption of the Charter of the City of Aventura (the
"Charter") on November 7, 1995, the City of Aventura, Florida was created as a municipal
corporation pursuant to the Constitution of the State of Florida and the Home Rule Charter of
Metropolitan Dade County; and
WHEREAS, the City Council has determined it is in the public interest of the City of
Aventura (hereinafter referred to as the "City of Aventura" or the "City") to permit the operation
of one or more cable television systems in the City; and
WHEREAS, one or more cable operators are occupying the City's public rights of ways
and operating cable systems pursuant to licenses granted by Metropolitan Dade County; and
Ordinance No. 97-
Page 2
WHEREAS, pursuant to Chapter 8AA-16 of the Code of Metropolitan Dade County,
cable operators operating in unincorporated areas of the County pay to the county a fee of 5% of
the gross revenues and operators in the incorporated areas pay to the County a fee of 3%; and
WHEREAS, under Federal law, the maximum franchise fee that may be imposed on a
cable operator is 5% of the operator's gross revenues; and
WHEREAS, the City of Aventura, as now incorporated, is entitled to collect the
maximum fee permitted by applicable law less only that amount due to Dade County; and
WHEREAS, it is the intent of the City of Aventura to exercise its authority as a local
franchising authority to the fullest extent allowed by law; and
WHEREAS, pursuant to Section 621 of the Communications Act of 1934, as amended,
47 U.S.C. § 541, a cable operator may not provide cable service without obtaining a franchise
from the franchising authority; and
WHEREAS, pursuant to Section 4.03 of the Charter, the City Council shall take action to
grant, renew, or extend a franchise only by Ordinance; and
WHEREAS, the City of Aventura had adopted an Interim Ordinance providing terms and
conditions relating to cable television systems; and
WHEREAS, cable operator(s) have submitted applications for cable television franchises
to the City; and
WltEREAS, the City Council has determined that adoption of a comprehensive
Ordinance is in the interests of the citizens of the City of Aventura.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE
CITY OF AVENTURA, FLORIDA, THAT:
Ordinance No. 97-
Page 3
Section 1. Short Tire.
This Ordinance shall be known and may be cited as City of Aventura, Florida Cable
Television Ordinance.
Section2. Creation of Ordinance The City of Aventura, Florida, Cable
Television Ordinance is hereby created to read as follows:
Section 3. Definitions.
For the purpose of this Ordinance and any application made pursuant hereto, the following
terms, phrases, words and their derivations shall have the meanings 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 words "shall" and "will" are mandatory, and "may" is permissive. Words not
otherwise defined herein or in any franchise agreement that might be granted hereunder shall be
given the meaning set forth in the Communications Act of 1934, 47 U.S.C § 521 et seq., and the
Telecommunications Act of 1996, and as those Acts have and may hereinafter be amended
(collectively the "Communications Act"), and, if not defined therein, their common and ordinary
meaning.
A. "Activated Channel" means those channels engineered at the headend of a cable
system for the provision of services generally available to residential subscribers of the cable
system, regardless of whether such services actually are provided, including any channel
designated for public, educational, or governmental use. Channels on which signals flow in the
direction from the headend to the subscriber are referred to as "downstream channels". Where
the signal flows to the headend for re-distribution, it shall be referred to as an 'hapstream channel".
Ordinance No. 97-
Page 4
B. "Access Channel" means any channel on a cable system set aside without charge
by the cable operator for public, educational and/or local governmental use.
C. "Affiliate" means any person who owns or controls, is owned or controlled by, or
is under common ownership or control with a franchisee.
D. "Applicant" means any person submitting an application within the meaning of
this Ordinance.
E. "Application" means any proposal, submission or request to (1) operate a cable
system within the City; (2) construct and install a cable system within the City; (3) transfer a
franchise or control of the franchisee; (4) renew a franchise; (5) modify a franchise; or (6) seek
any other relief from the City pursuant to this Ordinance, a franchise agreement, the
Communications Act, or other applicable law. An application includes an applicant's initial
proposal, submission or request, as well as any and all subsequent amendments or supplements to
the proposal and relevant correspondence.
F. "Basic Cable Service" or Basic Service" means any service tier which includes
the retransmission of local television broadcast signals, and public, educational, or governmental
access channels.
G. "Business Day" or "Working Day" shall mean any Monday through Saturday,
52 weeks per year, except that such definition shall not include holidays.
H. "Communications Act" means the Communications Act of 1934, 47 U.S.C §
151 ~ se_fl., as that Act has and may hereinafter be amended.
I. "Cable Operator" means any person who operates or otherwise controls a cable
system within the City.
Ordinance No. 97-__
Page 5
"Cable service" means (i) the one way transmission to subscribers of video or
other programming services; and (ii) subscriber interaction, if any, which is required for the
selection or use of such video programming or other services.
K. "Cable System," "Cable Television System," or "System," means any facility
consisting of a set of closed transmission paths and associated signal generation, reception and
control equipment that is designed to provide cable service which includes video programming
and which is provided to multiple subscribers within the City. Such term does not include (a) a
facility that serves only to retransmit the television signals of one (1) or more television broadcast
stations; (b) a facility that serves subscribers without using any public right of way; (c) a facility of
a common carder that is subject, in whole or in part, to the provisions of Title II of the
Communications Act of 1934, 47 U.S.C. § 201 et seq., except that such facility will be considered
a Cable System to the extent it is used in the transmission of video programming directly to
subscribers, unless the extent of such use is solely to provide interactive on demand services; (d)
an open video system that complies with Section 653 of the Telecommunications Act of 1996; or
(e) any facilities of any electric utility used solely for operating its electric utility systems. Subject
to applicable law, the foregoing definition of "Cable System" shall not be deemed to circumscribe
the valid authority of the City to regulate the activities of any other communications system or
provider of communications services, including but not limited to telephony and open video
systems.
L.
Florida, in its present incorporated form or in any later reorganized, consolidated, enlarged or
reincorporated form.
"City" means the City of Aventura, a municipal corporation of the State of
Ordinance No. 97-
Page 6
M. "Control of a Franchisee or Applicant" means possession of the ability to
direct or cause the direction of the management or policies of a Franchisee or Applicant, or the
operation of a Franehisee's system, whether through operational control in whatever manner
exercised or ownership of voting securities, by contract or understanding, or in any other manner.
N. "County" means Metropolitan Dade County.
O. "Fair Market Value" means the price that a willing buyer would pay to a willing
seller for a going concern but with no value allocated to the franchise itsel£
P. "FCC" means the Federal Communications Commission, or any successor
governmental entity thereto.
Q. "Franchise" means the right granted by the City to a franchisee in a Franchise
agreement to construct, maintain and operate a Cable System under, on, and over Streets, roads
and any other public ways, rights-of-ways, or easements within aH or specified areas of the City.
The term does not include any license or permit that may be required by this Ordinance or other
laws, ordinances or regulations of the City for the privilege of transacting and carrying on a
business within the City or for disturbing or carrying out any work on any Street.
R. "Franchise agreeme~ Agreement" means a contract entered into in accordance
with the provisions of this Ordinance between the City and a franchisee that sets forth the terms
and conditions under which the Franchise will be exercised.
S. "Franchisee" means any person granted a Franchise pursuant to this Ordinance
who has entered into a Franchise agreement with the City.
T. "Gross Revenues" means all revenues recognized in accordance with Generally
Accepted Accounting Procedures (GAAP) generated directly or indirectly by the Franchisee from
Ordinance No. 97-__
Page 7
any source whatsoever arising from, attributable to, or in any way derived from the operation of
the Cable System in the City to provide cable services. Gross revenues includes, but is not limited
to, fees charged subscribers for basic service; fees charged subscribers for any optional, premium,
per-channel or per-program service; fees charged subscribers for any tier of service other than
basic service; installation, disconnection, reconnection and change-in-service fees; late fees; leased
access fees; fees, payments or other consideration from programmers for carriage of programming
on the system (excluding marketing support provided for the launch of new services on the system
to the extent such funds are not considered revenue under GAAP); revenue from converter,
remote, modem or any other equipment rentals or sales; revenues from studio and studio
equipment rental; revenues from leases of cable or fiber optic lines and other transmission devices
and equipment; revenues from transmission of data; revenues from consumer products including
but not limited to cable guides; advertising revenues allocable to the City based on a percentage of
subscriber base in the City divided by the subscriber base of the system. Such percentage will
then be multiplied by the systems' total advertising revenue to determine the allocable gross
revenue stemming from advertising; revenues from home shopping channels or other sources
allocable to the City, provided that where certain home shopping channel or other such revenue is
allocable to more than one franchise area due to common zip codes, the Franchisee will allocate
the percentage of revenue to the City which is equivalent to the percentage of the City's
population divided by the total population for the allocable franchise areas in question; and the
sale, exchange or cablecast by the Franchisee of any programming developed on or for access
channels or institutional users. Gross revenues shall be the basis for computing the franchise fee
imposed pursuant to Section 10 hereof. Gross revenues shall not include any taxes on services
Ordinance No. 97-
Page 8
furnished by the Franchisee which are imposed upon any subscriber or user by the State, County,
City or other governmental unit and collected by the Franchisee on behalf of said govermnental
unit and which the Franchisee passes on in full to the applicable tax authority or authorities.
However, the Franchise fee shall not be considered such a tax and shall be included within the
definition of gross unless n~.4 .... 11 n~l:~l.l~ ! ...... .-1..*~1~.4 I-.., glen1 --~
~. .....:..~...^ ,~.. ^~:c~.:..- ,~... ~-~^^v,~,honx,;<~, nrnhihit~d by applicable law. Notwithstanding
an~hing to the contrary, gross revenues nhall not include bad debt, interest, returned check
charges, late fees and promotional payments from programmers unless and until any or all of the
above-listed items are included within the definition of Gross Revenues used to calculate franchise
fee payments to Dade County. At such time as any revenue items not included herein are
incorporated into the Gross Revenues definition used by Dade County, such items shall
automatically be included in the definition of Gross Revenues herein without any further action by
the City.
U. "Institutional Network" means a voice, data and/or video communications
network constructed and/or operated and/or maintained by the Franchisee for the City, the
transmissions on which are generally available only to, and intended to be sent and received by,
persons other than cable subscribers generally.
V. "Interconnection" means the electronic connection of two or more Cable
Systems for the purpose of sharing access channel programming or other services.
Ordinance No. 97-
Page 9
"Law" means all duly enacted and applicable federal, state, county and City laws,
ordinances, codes, roles, regulations and orders.
X. "Leased Access Channel" means a channel designated in accordance with
Section 612 of the Communications Act, 47 U.S.C. § 532, for commercial use by persons
unaffiliated with the Franchisee.
Y. "Overbuild" means a Cable System constructed to serve subscribers in an area of
the City served by an existing Cable System.
Z. "Person" means any individual, corporation, partnership, association and any
lawful trustee, successor, assignee, transferee or personal representative thereof, but shall not
mean the City unless applicable law so requires.
AA. "Service Tier" means a category of cable service provided by a Franchisee and
for which a separate charge is made by the Franchisee.
BB. "State of the Art" means that level of production facilities, technical
performance, capacity, equipment, components and serdce equal to that which has been
developed and demonstrated to be more modern than generally accepted and used in the cable
industry for comparable areas of equivalent population. The Cable System shall have, at
minimum, the capability of providing the channel capacity, products, services and technology
available from a Cable System controlled by a franchisee or a parent, subsidiary or affiliate of a
franchisee to any other community in the state of Florlda.
CC. "Street or Streets" means the surface, the air space above the surface and the
area below the surface of any public street, highway, road, boulevard, concourse, driveway,
freeway, thoroughfare, parkway, sidewalk, bridge, tunnel, park, waterway, dock, bulkhead,
Ordinance No. 97-
Page 10
wharf, pier, court, lane, path, alley, way, drive, circle, easement, or any other public right-of-way
or public place, including public utility easements dedicated for compatible uses, or any other
property in which the City holds any kind of property interest or over which the City exercises any
type of lawful control, and any temporary or permanent fixtures or improvements located thereon,
as may be ordinarily necessary and pertinent to construct and operate a cable system.
DD. "Subscriber" means any person who lawfully receives cable service delivered
over the Cable System with the Franchisee's express permission.
EE. "Subscriber Base" means the total number of residential and commercial
subscribers within the City. For purposes of calculating subscribers under bulk or multi-user
contracts, the Franchisee shall count each unit included within a contract for service as one
subscriber. Franchisee shall not use any equivalency measures including calculation based on
market rate, except as expressly required by applicable law.
FF. "System malfunction" means any Cable System equipment, facility or signal
failure or malfunction that results in the loss of satisfactory service on one or more channels to
one or more subscribers. A malfunction is major if it affects twenty-five (25) or more subscribers,
or a multiple dwelling unit consisting of more than 25 or more units.
GG. "Transfer of a Franchise" means any transaction in which (1) an ownership or
other interest in a Franchisee or its Cable System is transferred from one person or group of
persons to another person or group of persons so that control of a Franchisee is transferred; or (2)
the rights and/or obligations held by a Franchisee under a Franchise agreement are transferred or
assigned to another person, group of persons or business entity.
Ordinance No. 97-
Page 11
HH. "Two-Way Capability" means the incorporation into a Cable System of all
appropriate design and engineering characteristics and features so that two-way interactive
transmission, including but not limited to addressability, over the system can be implemented and
activated.
II. "Video Channel or Channel" means a portion of the electromagnetic frequency
spectrum which is used in a Cable System and which is capable of delivering a television channel,
including the associated audio signal, as television channel is defined by the FCC by regulation or
otherwise.
Section 4. Intent and Purposes.
A. It is the intent of the City and the purpose of this Ordinance to promote the public
health, safety, and general welfare by providing an application procedure for the grant of one or
more Franchises for the operation and/or construction of a Cable System within the City; to
provide for the regulation to the extent permitted by applicable law, of each Cable System within
the City in the public interest; to provide for the payment of fees and other valuable consideration
by cable operators to the City for the use of Streets by its Cable System; to promote the
widespread availability of quality cable service to City residents and businesses, the City, and
other public institutions; to encourage the development of cable and other communications
technologies and Cable Systems as a means of communication between and among members of
the public, City businesses, the City, and other public institutions; to promote competitive cable
rates and services; to promote the safe and efficient use of City Streets; to enhance and maximize
the communicative potential of Streets used by Cable Systems; and to encourage the provision of
Ordinance No. 97-
Page 12
a diversity of information sources to City residents, businesses, the community, the City, and
other public institutions by cable technology.
B. Recognizing the continuing development of communications technology and uses,
it is the policy of the City to encourage competition, experimentation and innovation in the
development of Cable System uses, services, programming and techniques that will be of general
benefit to the community to the extent consistent with applicable laws.
Section 5. Grant of Authority; Franchise Required.
A. The City may grant one or more Franchises in accordance with this Ordinance.
B. No person may operate or construct a Cable System or any other communications
transmission facilities over, on, or under public streets in the City without a Franchise granted by
the City unless otherwise expressly authorized by law, and no person may be granted a Franchise
without having entered into a Franchise agreement with the CiV/pursuant to this Ordinance.
C. Unless otherwise authorized by law, any Franchise granted pursuant to this
Ordinance is solely for the provision of Cable Service and shall not be construed to authorize the
provision of telephone, non-cable video or other telecommul~cations service. However, any
person including but not limited to a Franchisee shall, unless otherwise prohibited by applicable
law, submit an application to the City for the privilege of providing other telecommunications
services including, but not limited to telephone service and/or non-cable video programming
services.
Section 6. Franchise Characteristics.
A. A Franchise authorizes use of City Streets for installing cables, wires, lines, optical
fiber, underground conduit, ducts, conductors, amplifiers, vaults, and other facilities as necessary
Ordinance No. 97-
Page 13
and pertinent to operate a Cable System within a specified area of the City, but does not expressly
or implicitly authorize the Franchisee to provide service to, or install cables, wires, lines,
underground conduit, or any other equipment or facilities upon private property without owner
consent (except for use of compatible easements pursuant to Section 621 of the Communications
Act, 47 U.S.C. § 541(a)(2)), or to use publicly or privately owned conduits without a separate
agreement with the owners.
B. A Franchise is nonexclusive, and will not expressly or implicitly preclude the
issuance of other Franchises to operate Cable Systems within the City, or affect the City's right to
authorize use of City Streets to other persons to operate cable systems or for other purposes as it
determines appropriate.
C. The City reserves the right to reasonably designate where a Franchisee's facilities
are to be placed within the Streets.
D. A Franchise shall be a privilege which is in the public trust. No transfer of a
Franchise shall occur without the prior consent of the City and unless application is made by the
Franchisee and City approval obtained pursuant to this Ordinance and applicable Federal law.
E. A Franchise granted to an applicant pursuant to an application submitted pursuant
this Ordinance to construct, operate and maintain a cable television system within a specified
Franchise territory, shall be deemed to constitute both a right and an obligation on the part of the
Franchisee to provide the services and facilities of a cable television system as required by the
provisions of this Ordinance, of the City of Aventura, and the Franchise. All relevant
representations made by the Franchisee in its application and/or public hearings before the City
Ordinance No. 97-
Page 14
Council shall be deemed to be material and made for the purpose of inducing the City to grant the
Franchise in the form accepted.
F. Notwithstanding anything to the contrary, in the event that Franchisee, its parent,
affiliate or subsidiary elects to offer to subscribers video programming services through any means
or method not included within the definition of a Cable System, including hut not limited to an
"open video system", Franchisee shall remain subject to all terms and conditions of the cable
television Franchise granted by the City.
Section 7. Subiect to Other Laws~ Police Power.
A. Any person operating a cable system in the City shall, at all times, be subject to and
shall comply with all applicable Federal, state, county and local laws, rules and regulations, and
shall at all times be subject to ail lawful exercise of the police power of the City.
B. Subject to applicable law, except as may be specifically provided in this Ordinance
or under the terms of a Franchise agreement and subject to the Communications Act, the failure
of the City, upon one or more occasions, to exercise a right or to require compliance or
performance under this Ordinance, a Franchise agreement or a license granted by the County shall
not be deemed to constitute a waiver of such right or a waiver of compliance or performance.
Section 8. Interpretation of Franchise Terms; Conflicts.
A. The provisions of this Ordinance shall apply to a Franchise agreement as if fully set
forth in the Franchise agreement, and the express terms of this Ordinance will prevail over
conflicting or inconsistent provisions in a Franchise agreement unless such Franchise agreement
expresses an explicit intent to waive a requirement of this Ordinance.
Ordinance No. 97-
Page 15
B. Except as to matters which are governed by Federal law or regulation, a Franchise
agreement will be governed by and construed in accordance with the laws of the State of Florida.
C. If any part, section, subsection of other portion of this Ordinance conflicts or
subsequently comes into conflict with any Federal, state, county or local law, the prevailing law
will apply, to the extent expressly permitted by applicable law.
Section9. Applications for Grant~ Renewal~ Modification or Transfer of
Franchise.
A written application shall be filed with the City for (a) grant of a new Franchise;
inspection.
(b) renewal of a Franchise in accordance with Section 626 of the Communications Act, 47 U.S.C.
546; (c) modification of a Franchise agreement; (d) transfer of a Franchise; or (e) any other relief
from the city pursuant to this Ordinance or a Franchise agreement.
B. To be acceptable for filing, a signed original of the application shall be submitted
together with five (5) copies, be accompanied by the required non-refundable application filing fee
in the amount of $7,500, conform to any application forms, applicable requests for proposals, and
contain all reasonably required information. The purpose of the filing fee is to defray a portion of
the City's cost in processing an application. The filing fee is therefore intended to be a charge
incidental to the awarding or enforcing of a fi-anchise within the meaning of Section 622(g)(2) (D)
of the Communications Act, 47 U.S.C. § 542(g)(2)(D), and may not be deducted from the
franchise fee imposed in a franchise agreement. All applications shall include the names and
addresses of persons authorized to act on behalf of the applicant with respect to the application.
C. All applications accepted for filing shall be made available by the City for public
Ordinance No. 97-
Page 16
D. An application for the grant of a franchise shall be submitted by any person
desirous of operating a cable system in the City notwithstanding whether any such person is
operating a system pursuant to a County license on the effective date hereo£
E. An application for the grant of a new Franchise may be filed pursuant to a request
for proposals issued by the City or on an unsolicited basis. The City, upon receipt of an
unsolicited application, may issue a request for proposals. If the City elects to issue a request for
proposals upon receipt of an unsolicited application, the applicant may submit an amended
application in response to the request for proposals, or may inform the City that its unsolicited
application should be considered in response to the request for proposals, or may withdraw its
unsolicited application. An application which does not conform to the reasonable requirements of
a request for proposals may be considered non-responsive and denied on that basis.
F. An application for the grant of an initial Franchise shall contain, at minimum, the
following information:
1. Name and address of the applicant and identification of the ownership and
control of the applicant, including: the names and addresses of all persons with five percent (5%)
or more ownership interest in the applicant, including the names and addresses of parents or
subsidiaries holding such ownership interests directly or indirectly; the persons who control the
applicant; all officers and directors of the applicant; and any other Cable System ownership or
other communication ownership interest of each named person;
2. An indication of whether the applicant, or any person controlling the
applicant, or any officer, or director or person with five percent (5%) or more ownership interest
in the applicant, has been adjudged bankrupt, had a cable Franchise or license revoked, or been
Ordinance No. 97-
Page 17
found by any court or administrative agency to have violated a security or antitrust law, or to have
committed a felony, or any crime involving moral turpitude; and, if so, identification of any such
person and a full explanation of the circumstances;
3. A demonstration of the applicant's technical, legal and financial ability to
construct and/or operate the proposed Cable System, including identification of key personnel;
4. Copies of all Federal, state, county and city licenses, permits and
registrations in regard to any part of the applicant's facilities located in the City.
5. A statement prepared by a certified public accountant or duly authorized
financial officer of the applicant regarding the applicant's financial ability to complete the
construction and operation of the Cable System proposed;
6. A description of the applicant's prior experience in Cable System
ownership, construction and operation, and identification of communities in which the applicant
or any person controlling the applicant or having more than a five percent (5%) ownership interest
in the applicant has or has had, a cable Franchise or license or any interest therein;
7. A description of any and all pending Federal and State litigation, whether
judicial or administrative, that in any manner relates to the operation of a cable television system
or the provision of a cable television ser¢ice to which the applicant is currently a party;
8. Identification of the area of the City to be served by the proposed Cable
System, including a description of the service area's boundaries;
9. A description of the physical facilities proposed, including channel capacity,
performance characteristics, headend, and access facilities; upon request, the applicant shall make
information on technical design available for inspection;
Ordinance No. 97-
Page 18
10. Where applicable, a description of the construction of the proposed system,
including an estimate of plant mileage and its location, the proposed construction schedule, a
description, where appropriate, of how services will be converted from existing facilities to new
facilities, and information on the availability of space in conduits including, where appropriate, an
estimate of the cost of any necessary rearrangement of existing facilities;
11. If applicant is currently operating a Cable System within the City, a
description of the existing System and capacity and the operator's plans to upgrade the system.
12. If applicant or applicant's parent, or any subsidimy or affiliate of applicant
is currently operating a SMATV system within the City, a list of all such locations;
13. For informational purposes, the proposed rate structure, including
projected charges for each service tier, installation, converters, and other equipment or services,
and the applicant's ownership interest in any proposed program sendces to be delivered over the
Cable System;
14. Upon written request, a schedule and description of Franchisee's contracts
with any and all residential and or commercial complexes including but not limited to
condominiums, homeowner's associations and apartment buildings.
15. A demonstration of how the applicant's proposal will reasonably meet the
future cable-related needs and interests of the community, including a description of how the
proposal will meet the needs described in any recent community needs assessment conducted by
or for the City;
Ordinance No. 97-
Page 19
16. A description of any non-cable telecommunications services offered or
proposed to be offered by the applicant or its parent, affiliate or subsidiary and Franchisee's plan
with respect to the availability of such services to subscribers in the City.
17. Pro forma financial projections for the first five (5) years of the Franchise
term, including a statement of projected income, and a schedule of planned capital additions, with
all significant assumptions explained in notes or supporting schedules;
18. If an applicant proposed to provide cable service to an area already served
by an existing cable operator, or SMATV, the identification of the area where the overbuild
would occur, the potential subscriber density in the area which would encompass the overbuild,
and the ability of the Streets to accommodate an additional system;
19. Any other information as may be reasonably necessary to demonstrate
compliance with the requirements of this Ordinance and information that the City may request of
the applicant that is relevant to the City's consideration of the application; and
20. An affidavit or declaration of the applicant or authorized officer certifying
the truth and accuracy of the information in the application, acknowledging the enforceability of
application commitments, and certifying that the proposal meets all Federal and state law
requirements.
G.
minimum, the following information:
1. The specific modification requested;
An application for modification of a Franchise agreement shall include, at
Ordinance No. 97-
Page 20
2. The justification for the requested modification, including the impact of the
requested modification on subscribers and others, and the financial impact on the applicant if the
modification is approved or disapproved;
3. A statement whether the modification is sought pursuant to Section 625 of
the Communications Act, 47 U.S.C. § 545, and, if so, a demonstration that the requested
modification meets the standards set forth in 47 U.S.C. § 545.
4. Any other reasonable information necessary for the City to make an
informed determination on the application for modification; and
5. An affidavit or declaration of the applicant or authorized officer certifying
the truth and accuracy of the information in the application, and certifying that the application is
consistent with all Federal and state law requirements.
H. An application for renewal of a Franchise shall comply with the requirements of
~ Section -24 22 hereof
I. An application for approval of a transfer of a Franchise shall comply with the
requirements of Section 9(E and I) and Section 24 hereof.
J. To be acceptable for filing, an application shall be accompanied by a non-
refundable filing fee in the following amount, as appropriate:
1) For a new or initial Franchise: $7,500
2) For renewal of a Franchise: $5,000
3) For a transfer of a Franchise (other than
a pro forma transfer): $2,500
4) For a pro forma transfer of a Franchise: $1,000
5) For modification of a Franchise
Ordinance No. 97-
Page 21
agreement pursuant to 47 U.S.C.§545: $2,500
6) For any other relief: $1,000
The purpose of the filing fee is to defray a portion of the City's cost in processing an
application. The filing fee is therefore intended to be a charge incidental to the awarding or
enforcing of a Franchise within the meaning of Section 622(g)(2)(D) of the Communications Act,
47 USC. § 542(g)(2)(D), and may not be deducted from the Franchise fee imposed in a
Franchise agreement.
Section 10. Grant of Franchise.
A. In evaluating an application for a Franchise, City shall consider among other things
the following factors:
1.
2.
3.
4.
Cable System
5.
The economic impact upon private property within the Franchise area;
Public need for such Franchise, if any;
The capacity of public fights of way to accommodate the Cable System;
The present and future use of the public's rights of way to be used by the
The potential disruption to existing users of the public's rights of way to be
used by the Cable System and the resulting inconvenience which may occur to the public
6. The legal, technical and financial ability of the Franchise applicant to
perform;
7. Other societal interests as are generally considered in cable television
franchising; and
Ordinance No. 97-__
Page 22
8. Such other additional matters, both procedural and substantive, as the City
may in its sole discretion determine to be relevant, including but not limited to the extent to which
the proposal of the applicant will meet the anticipated cable related needs and interests of the
community and serve the public interest. Evaluation by the City shall not be based on the content
of the programming the applicant proposes to provide.
B. The City may grant a Franchise for a period not to exceed fifteen (15) years.
C. The City may make the grant of a Franchise conditioned upon the completion of
construction within a reasonably prescribed time or upon the performance and fulfillment of
specific terms, which are to be set forth in the Franchise agreement specifying that failure to
comply with the conditions will cause the Franchise to become null and void without further
action by the City.
D. Following at least ten (10) days notice to the applicant, the City shall hold a public
hearing to consider an application or applications. The applicant(s) shall be notified of the hearing
and shall be given an opportunity to be heard. Based upon the application(s), the testimony
presented at the public heating, any recommendations of the City Manager or staff, and any other
information relevant to the application(s), the City shall decide by Resolution whether to grant or
deny a Franchise application(s) and decide the terms and conditions of any Franchise(s) granted.
E. If the City grants a franchise the Franchisee shall file an acceptance of the
Franchise accompanied by any and all bonds, certificates of insurance or other obligations as
required in a Franchise agreement within forty-five (45) calendar days from the date of the City
Resolution approving the Franchise Agreement. This period may be extended for good cause by
the City. If the acceptance is not filed with the City within forty-five (45) calendar days from the
Ordinance No. 97-
Page 23
date of the City Resolution, or if the period is not extended by the City, the Franchise grant will
be null and void without further action by the City. The City may, at its option, grant Franchisee
a short term extension(s).. The grant of such a short term extension(s) will not confer on
Franchisee the right to an automatic acceptance, transfer, modification or renewal.
F. The grant, renewal, modification, or transfer of a Franchise may be subject to a
processing fee in an amount not to exceed the reasonable and justifiable out-of-pocket costs
incurred by the City in considering the application, including but not limited to consulting,
advertising and legal costs and fees, less the amount of the filing fee set pursuant to Section 9 up
to an amount not to exceed Fifty Thousand Dollars ($50,000). Within thirty (30) calendar days
from the date of the Resolution approving or denying the Franchise agreement by the City
Council, the City shall notify the Franchisee of the amount of any processing fee and its method of
calculation. If the processing fee is not paid to the City within sixty (60) calendar days of the date
of the City Council Resolution approving or denying the Franchise agreement, any approval
granted by such Resolution will be null and void. This processing fee is therefore intended to be a
charge incidental to the awarding or enforcing of a Franchise within the meaning of Section 622
(g)(2)(D) of the Cable Act, 47 U.S.C. § 542 (g)(2)(D), and may not be deducted from the
Franchise fee imposed in a Franchise agreement and shall not be passed through to subscribers.
Section 11. Insurance~ Surety; Indemnification.
A. A Franchisee shall maintain, and by its acceptance of the Franchise specifically
agrees that it will maintain, throughout the entire term of the Franchise including any renewals
thereof, the following liability insurance coverage insuring the Franchisee and naming the City as
an additional insured: worker's compensation and employer liability insurance to meet all
Ordinance No. 97-
Page 24
requirements of Florida State law and general comprehensive liability insurance with respect to
the construction, operation and maintenance of the Cable System, and the conduct of Franchisee's
business in the City, in the minimum amounts of:
1. $500,000 for property damage in any one accident;
2. $500,000 for personal bodily injury to any one person; and
3. $1,000,000 for personal bodily injury in any one accident.
B. All insurance policies shall be with sureties qualified to do business in the State of
Florida; shall be with sureties with a minimum rating of A-1 in Best's Key Rating Guide,
Property/Casualty Edition. The City may require coverage and amounts in excess of the above
minimum where necessary to reflect changing liability exposure and limits or where required by
law.
C. A Franchisee shall keep on file with the City certificates of insurance which
certificates shall indicate evidence of payment of the required premiums and shall indicate that the
City, its Councilmembers, officers, boards, commission, commissioners, agents and employees are
listed as additional insureds. In the event of a potential claim such that the City claims insurance
coverage, Franchisee shall immediately respond to all reasonable requests by the City for
information with respect to the scope of the insurance coverage.
D. All insurance policies shall name the City, as additional insureds and shall further
provide that any cancellation or reduction in coverage shall not be effective unless thirty (30) days
prior written notice thereof has been given to the City. A Franchisee shall not cancel any required
insurance policy without submission of proof that the Franchisee has obtained alternative
insurance satisfactory to the City which complies with this Ordinance.
Ordinance No. 97-__
Page 25
E. A Franchisee shall, at its sole cost and expense, indemnify, hold harmless, and
defend the City, its officials, boards, commissions, commissioners, agents, and employees, against
any and all claims, suits, causes of action, proceedings, judgments for damages or equitable relief,
and costs and expenses arising out of the construction, maintenance or operation of its Cable
System, the conduct of Franchisee's business in the City, regardless of whether the act or
omission complained of is authorized, allowed or prohibited by this Ordinance or a Franchise
agreement, provided, however, that Franchisee's obligation hereunder shall not emend to any
claims caused by the misconduct or sole gross negligence of the City, its officials, boards,
commissions, commissioners, agents, or employees. This provision includes, but is not limited to,
the City's reasonable attorneys' fees incurred in defending against any such claim, suit or
proceedings; and claims arising out of copyright infringements or a failure by the Franchisee to
secure consents from the owners, authorized distributors, or providers of programs to be
delivered by the Cable System, claims arising out of Section 638 of the Communications Act, 47
U.S.C. 558, and claims against the Franchisee for invasion of the right of privacy, defamation of
any person, firm or corporation, or the violation or infringement of any copyright, trade mark,
trade name, service mark or patent, or of any other right of any person, firm or corporation.
Notwithstanding the foregoing, Franchisee may select counsel to represent the City. City agrees
to notify Franchisee, in writing, within ten (10) days of City receiving notice, of any issue it
determines may require indemnification. Nothing in this section shall prohibit the City from
participating in the defense of any litigation by its own counsel if in the City's reasonable belief
there exists or may exist a conflict, potential conflict or appearance of a conflict.
Section 12. Security Fund/Corporate Guarantee.
Ordinance No. 97-__
Page 26
A. A Franchise agreement may provide that, prior to the Franchise becoming
effective, the Franchisee shall post with the City a cash security deposit or in the alternative at the
City's discretion a bond, letter of credit, or corporate guarantee in a form acceptable to the City
to be used as a security fund to ensure the Franchisee's faithful performance of and compliance
with all provisions of this Ordinance, the Franchise agreement, and other applicable law, and
compliance with all orders, permits and directions of the City, and the payment by the Franchisee
of any claims, liens, fees, or taxes due the City which arise by reason of the construction,
operation or maintenance of the system. The amount of the security fund or corporate guarantee
shall be the amount that the City determines, under circumstances existing at the time, that is
necessary to protect the public, to provide adequate incentive to the Franchisee to comply with
this Ordinance and the franchise agreement, and to enable the City to effectively enforce
compliance therewith. The Franchise agreement shall provide for the procedures to be followed
with respect to the security fund or corporate guarantee.
B. Any bond or letter of credit shall be obtained at the sole expense of the Franchisee
and shall be renewed for the full term of the Franchise plus an additional twelve (12) months
thereafter. The Franchisee and its surety shall be jointly and severally liable under the terms of the
bond or letter of credit for any damages or loss suffered by the City as a result of the Franchisee's
nonperformance, including the full amount of any compensation, indemnification or cost of
removal of any property of the Franchisee in the event of default, a reasonable allowance for
attorneys' fees and costs, up to the full amount of the bond or letter of credit. The bond or letter
of credit shall provide for thirty (30) days' prior written notice to the City of any intention on the
part of the Franchisee to cancel, fail to renew, or otherwise materially alter its terms. Neither the
Ordinance No. 97-__
Page 27
filing of an indemnity bond or letter of credit with the City, nor the receipt of any damages
recovered by the City thereunder, shall be constmed to excuse faithful performance by the
Franchisee or limit the liability of the Franchisee under the terms of its franchise for damages,
either to the full amount of the bond or otherwise.
C. The rights reserved to the City with respect to the security fund or an indemnity
bond or letter of credit are in addition to all other rights of the City, whether reserved by this
Ordinance or authorized by other law or the Franchise agreement, and no action, proceeding or
exercise of a right with respect to such security fund or indemnity bond or letter of credit will
affect any other right the City may have.
Section 13. Construction Bond.
A. A Franchise agreement may provide that, prior to any Cable System construction,
upgrade, rebuild or other significant work in the Streets a Franchisee shall establish in the City's
favor a construction bond in an amount specified in the Franchise agreement or other
authorization as necessary to ensure the Franchisee's faithful performance of the construction,
upgrade, rebuild or other work.
B. In the event a Franchisee subject to such a construction bond fails to complete the
Cable System construction, upgrade or other work in the Streets in a safe, timely and competent
manner in accord with the provisions of the Franchise agreement, there shall be recoverable,
jointly and severally from the principal and surety of the bond, any damages or loss suffered by the
City as a result, including the full amount of any compensation, indemnification or cost of removal
or abandonment of any property of the Franchisee, or the cost of completing or repairing the
system construction, upgrade or other work in the Streets, plus a reasonable allowance for
Ordinance No. 97-__
Page 28
attorneys' fees, up to the full amount of the bond. The City may also recover against the bond
any amount recoverable against the security fund pursuant to Section 12 hereof where such
amount exceeds that available under the security fund.
C. The Franchise agreement may specify that upon completion of the system
construction, upgrade, rebuild or other work in the Streets and payment of all construction
obligations of the Cable System to the satisfaction of the City, the City may eliminate the bond or
reduce its amount. However, the City may subsequently require an increase in the bond amount
for any subsequent construction, upgrade, rebuild or other work in the Streets.
D. The construction bond shall be issued by a surety having a minimum rating of A- 1
in Best's Key Rating Guide, Property/Casualty Edition; shall be subject to the approval of the City
Attorney; and shall provide that:
"This bond may not be canceled, or allowed to lapse, until sixty
(60) days after receipt by the City, by certified mail, remm receipt
requested, of a written notice from the issuer of the bond of intent
to cancel or not to renew."
E. The rights reserved by the City with respect to any construction bond established
pursuant to this section are in addition to all other rights and remedies the City may have under
this Ordinance, a Franchise agreement, or at law or equity.
Section 14. Minimum Facilities and Services.
A. The following minimum requirements for facilities and services apply to all
Franchises granted by the City. The City may require in a Franchise agreement that a Franchisee
exceed these minimum requirements where it determines, under circumstances existing at the time
of the application, that the additional requirements are reasonable to meet the City's fnture cable
related needs and interests or to serve the public interest. Notwithstanding anything to the
Ordinance No. 97-
Page 29
contrary, a Franchisee shall make available facilities, services, products, benefits, and a level of
technology to all subscribers in the City no less than that offered by the Franchisee, its parent,
affiliate, or subsidiary to any community in the state of Florida.
1. Any Cable System that commences construction, including but not limited
to initial construction, rebuild, upgrade or reconstruction after the effective date of this Ordinance
shall have a minimum capacity of at least 750 MHZ providing no less than seventy eight (78)
video channels available for immediate use. A Franchise agreement may provide for a larger
minimum channel capacity requirement.
2. The City may require in a Franchise agreement that a Franchisee provide
Access Channels, facilities and other support for public, educational and/or governmental use.
3. At the City's request, a Franchisee shall provide eablecasting of City
Council meetings live to all subscribers located within the City.
4. A Cable System shall provide leased Access Channels as required by
Federal law.
5. A Franchisee shall, upon request, provide at least one cable television
service outlet and when technically feasible, at least one additional outlet equipped for on-line
access to all City buildings and all public schools within its Franchise area that are passed by its
Cable System at no cost to the City or schools involved, and shall charge no more than its time
and material costs for any additional service outlets to such facilities.
6. A Franchise shall, upon request, provide all facilities, equipment, cabling,
personnel and such other support as may be required to allow production of programming and
Ordinance No. 97-
Page 30
live cablecasting from Government Center. Such support may be allocated among all Franchisees
granted a Franchise within thirty six (36) months of the effective date hereof on a pro-rata basis.
7. A Franchisee shall design its system to allow the City or other appropriate
government body, to interrupt cable service in an emergency to deliver necessary information to
subscribers.
8. A Franchisee shall make available to its subscribers equipment capable of
decoding closed circuit captioning information for the hearing impaired. A Franchisee may
impose a reasonable charge for such equipment.
9. Standard installation shall consist of a drop, not exceeding one hundred
twenty five (125) feet from the cable plant to the nearest part of a subscriber's residence.
Residential drops in excess of one hundred twenty five (125) feet may be charged according to the
Franchisee's rate schedule.
B. Unless a Franchise agreement provides otherwise, a Franchisee shall make cable
service available to every dwelling and every building within the Franchise service area or the
Franchisee's designated services area as defined in a Franchise agreement unless prohibited by a
private property owner from doing so.
C. Applications for an initial or renewed Franchise shall include a proposal for the
interconnection of Franchisee's system to any or all other Cable Syst~nns operating within the
City.
Section 15. Technical Standards.
A. Any Cable System within the City shall at minimum meet the technical standards of
the FCC or other applicable Federal or state technical standards, including any such standards as
Ordinance No. 97-
Page 31
hereinat~er may be amended or adopted including but not limited to digital transmission, HDTV
or other advanced technologies. All television signals transmitted on a Cable System shall include
any closed circuit captioning information for the hearing impaired. Antennas, supporting
structures, and outside plants used in the system shall be designed to comply with all generally
accepted industry practices and standards and with all Federal, state, county, and City ~,~d~r
...... j laws, ordinances, rules and regulations.
B. All construction, installation and maintenance shall comply with the National
Electrical Safety Code, the National Electric Code, the South Florida Building Code, and all laws
and accepted industry practices, and as hereinafter may be amended or changed.
C. As required by FCC rules, the Franchisee shall perform at its expense proof of
performance tests designed to demonstrate compliance with FCC requirements. The Franchisee
shall provide, upon written request, the proof of performance test results to the City within thirty
(30) days after completion. The City shall have the fight to inspect the Cable System facilities
during and after their construction to ensure compliance with the requirements of the Franchise
agreement, this Ordinance and FCC standards.
D. The City may require any other tests as specified in a Franchise agreement or
applicable law or regulation, to be performed at the expense of the Franchisee. The Franchisee
shall provide the test results to the City within thirty (30) days of completion of the proof of
performance or other tests.
E. The Franchisee shall provide the City ten (10) days advance written notice when a
proof of performance test required in subsections (C) and (D) above is scheduled so that the City
may have an observer present.
Ordinance No. 97-
Page 32
F. A Franchisee shall not design, install or operate its facilities in a manner that will
interfere with the signals of any broadcast station, the facilities of any public utility, the Cable
System of another Franchisee, or individual or master antennas used for receiving television or
other broadcast signals.
G. In any Franchise granted pursuant to this Ordinance, a Franchisee shall agree to
maintain that level of technology to satisfy the state of the art as defined in Section 2(CC) herein.
H. Franchisee shall provide Access Channels, equipment and facilities, and financial
support in accordance with this Sections 14, 15, and 16, as well as such other benefits and
services as provided in a Franchise agreement.
Section 16. Public~ Education and Government Support.
A. It is the purpose and intent of the City to require that all Franchisees provide
Access Channels, facilities, equipment and support sufficient to meet the community's needs and
interests with respect to public, education and government activities.
A Franchise shall provide, at the request of the City, cable television services
including installation and basic service to all municipal offices and schools within the City.
C. A Franchisee shall provide, at the request of the City and as designated in a
Franchise Agreement, Access Channels to be allocated to public, education and government use
at the sole discretion of the City.
D. During the term of a Franchise, a Franchisee shall provide at the request of the
City and as designated in a franchise agreement, such equipment, facilities and technical support
as the City Council may determine is useful for the production and cablecasting of programming
Ordinance No. 97-
Page 33
on the public, education and government channels. Applications for an initial or renewed
Franchise shall include a proposal to provide such support.
E. A Franchisee shall provide for live and repeat eablecasting of all City Council
meetings to all subscribers within the City.
F. At the request of the City and as designated in a franchise agreement, a Franchisee
shall provide the City with a dedicated I-NET, or such equivalent PEG support as may be
designated in a franchise agreement for the exclusive use of the City.
G. A Franchise may provide for a financial grant in lieu of or in addition to some or all
of the facilities, equipment, and services referenced in this Section 16.
H. A Franchisee shall agree that the facilities, equipment, monetary grant, and all
other support to be provided by Franchisee pursuant to this Section 16 Constitute capital costs
which are required by the Franchise to be incurred by Franchisee for public, educational, or
government access facilities within the meaning of Section 622(g)(2)(C) of the Cable Act, 47
U.S.C. § 542(g)(2)(C); that such grant does not constitute a Franchise fee or tax within the
meaning of Cable Act, state, law, Chapter of the City Code, or a franchise agreement and that the
Franchisee shall waive, and will not assert in any proceeding, any claim to the contrary.
Section 17. Franchise Fee.
A. A Franchisee, as compensation for the privilege of the use of the City's ~trcet~
Streets to construct and/or operate a Cable System, shall pay to the City a Franchise fee in an
amount up to a maximum of either (1) five percent (5%) of the Franchisee's Gross Revenues
derived directly or indirectly from the operation of its cable system within the City during the term
of its Franchise less only that amount due to Dade County; or (2) in the event the
Ordinance No. 97-
Page 34
Communications Act or other applicable law is amended to permit the City to assess a Franchise
fee of a greater amount than that specified in (1) above, the Franchise agrees to pay to the City
the new amount after a public hearing in which the public and Franchisee are given an opportunity
to comment on the impact of the higher fee. Moreover, Franchisee shall conclude an agreement
with respect to a fee increase with the City no later than it concludes an agreement with Dade
County.
B. Franchisee's payment of the Franchise fee to the City shall be reduced only by that
amount the Franchisee is expressly required to pay to Dade County pursuant to any applicable
cable license, Franchise or Ordinance of the County.
C. A Franchisee shall pay the Franchise fee due to the City on a quarterly basis.
Payment for each quarter shall be made to the City not later than thirty (30) calendar days after
the end of each calendar quarter, provided, however, that payment for the fourth quarter
December) shall not be due until seventy five (75) days after the end of the
(October, November,
quarter.
D.
A Franchisee shall file with the City, on a quarterly basis with the payment of the
Franchise fee, a financial statement setting forth the computation of gross revenues used to
calculate the Franchise fee for the preceding quarter and a detailed explanation of the method of
computation. The statement shall be certified by a certified public accountant or the Franchisee's
Ordinance No. 97-
Page 35
chief financial or other duly authorized officer. The Franchisee will bear the cost of the
preparation of such financial statements.
E. Subject to applicable law, no acceptance by the City of any Franchise fee payment
shall be construed as an accord that the amount paid is in fact the correct amount, nor shall such
acceptance of payment be construed as a release of any claim the City may have for additional
sums payable.
F. The Franchise fee payment is not a payment in lieu of any other tax, fee or
assessment.
G. The City may, from time to time, but not more frequently than once per year, and
upon reasonable notice, inspect, copy and audit any and all books and records of the Franchisee
relevant to the determination of gross revenues and the computation of Franchise fees due, and
may recompute any amounts determined to be payable under the Franchise. The cost of the audit
will be borne by the Franchisee if, as a result of the audit, the City determines that the Franchisee
has underpaid the Franchise fees owed in an amount equal to or exceeding three and a half
percent (3.5%) of the franchise fees actually paid. A Franchisee shall make all books and records
necessary to satisfactorily perform the audit readily available to the auditors in Dade County, for
inspection and copying or in the alternative, Franchisee shall pay all costs necessary for the City to
perform the audit at a location outside of Dade County.
H. In the event that a Franchise fee payment is not received by the City on or before
the due date set forth in subsection B above, or is underpaid, the Franchisee will pay a late charge
of eighteen (18%) percent annually of the amount of the unpaid or underpaid Franchise fee
payment, provided however, that such rate does not exceed the maximum amount allowed under
Ordinance No. 97-
Page 36
Florida law. Any interest and/or late charges paid by Franchisee is intended to be a charge
incidental to the enforcing of a Franchise within the meaning of Section 622 (g)(2)(D) of the
Communications Act, 47 U.S.C § 542 (g)(2)(D), and may not be deducted from the Franchise fee
imposed by this Ordinance or any Franchise agreement.
I. When Franc~2:cc a franchise terminates for whatever reason, the Franchisee shall
file with the City within ninety (90) calendar days of the date its operations in the City cease a
financial statement, certified by a certified public accountant or the Franchisee's chief financial
officer, showing the gross revenues received by the Franchisee since the end of the previous
quarterly payment. Adjustments will be made at that time for Franchise fees due to the date that
the Franchisee's operations ceased.
Section 18. Customer Service Requirements.
A. Any person operating a Cable System shall maintain all parts of its system in good
condition and in accordance with standards generally observed by the cable television industry.
Sufficient employees shall be retained to provide safe, adequate, and prompt service for all of its
customers and facilities.
B. Franchisee shall maintain at least one conveniently located business office and
service center within five (5) miles from the City limits to which subscribers may telephone
without incurring added message units or toll charges. This business office shall be open at
minimum from 8:00 a.m. to 6:00 p.m., Monday through Friday, and some weekend and evening
hours.
C. Franchisee shall maintain a listed local, toll-free telephone number and employ a
sufficient number of telephone lines, personnel and answering equipment or service to allow
Ordinance No. 97-
Page 37
reasonable access by subscribers and members of the public to contact the Franchisee on a full-
time basis, twenty-four (24) hours per day, seven (7) days per week including holidays.
Knowledgeable, qualified Franchisee representatives will be available to respond to customer
telephone inquiries, twenty-four (24) hours per day, seven (7) days per week including holidays.
D. Franchisee shall answer all customer service and repair telephone calls made under
normal operating conditions within thirty (30) seconds, including wait time and within an
additional thirty (30) seconds to transfer the call. Customers shall receive a busy signal less than
three (3) percent of the time. These standards shall be met no less than ninety (90) percent of the
time under normal operating conditions, measured on a quarterly basis.
E. A Franchisee shall employ and maintain sufficient qualified personnel and
equipment to be available (I) to accept payments; (ii) to exchange or accept converters or other
equipment; (iii) to receive subscriber complaints or requests for service or repairs on a full-time
basis, twenty-four (24) hours per day, seven (7) days per week; (iv) to initiate service
installations, undertake normal repairs, initiate action with respect to any subscriber service
complaints within twenty-four (24) hours; (v) to enable a service technician to respond to service
calls twenty-four (24) hours per day, seven (7) days a week including holidays when more than 5
subscribers served from the same nearest active electronic device, such as an amplifier or node,
call with the same complaint.
F. Franchisee must meet each of the following standards no less than ninety-five (95)
percent of the time under normal operating conditions as measured on a quarterly basis:
1. Standard installation work shall be performed within seven (7) business
days after an order has been placed except in those instances where a subscriber specifically
Ordinance No. 97-
Page 38
requests an installation date beyond the seven (7) business day period. "Standard" installations
are up to one hundred and fifty (150) feet from the existing distribution system. If scheduled
installation is neither started nor completed as scheduled, the subscriber will be telephoned by an
employee of the Franchisee the same day. Evening personnel shall also attempt to call subscribers
at their homes between the hours of 5:30 and 8:00 p.m. If the call to the subscriber is not
answered, an employee of the Franchisee shall telephone the subscriber the next day;
2. Franchisee will respond to service interruptions promptly and in no event
later than twenty-four (24) hours after the interruption becomes known. Other service problems
will be responded to promptly and in no event later than forty-eight (48) hours after the problem
becomes known. All service interruptions, and service problems within the control of Franchisee,
shall be corrected within seventy-two (72) hours after receipt of a complaint;
3. The appointment window alternatives made available for installations,
service calls, repairs, and other installation activities will be either a specific time, a four-hour time
block during normal business hours, or at the election and discretion of the subscriber, "all day";
4. Franchisee may not cancel an appointment with a subscriber after the dose
of business on the business day prior to the scheduled appointment; and
5. If at any time an installer or technician is running late for a scheduled
appointment, an attempt to contact the customer will be made and the appointment rescheduled as
necessary at a time which is convenient for the customer.
Subscribers who have experienced a missed installation or service appointments due to the
shall receive ms .................. ~, a credit of not less than twenty dollars
fault of Franchisee . -
($20.00). If the installation was to have been provided free of charge or if the appointment was
Ordinance No. 97-
Page 39
for service or repair, the subscriber shall receive a credit on its bill of not less than twenty dollars
($20.00).
G. Disconnection.
1. Voluntary Disconnection.
(a) A subscriber may terminate service at any time.
(b) Franchisee shall promptly disconnect any subscriber who so
requests from the Franchisee's Cable System. No period of notice prior to voluntary termination
of service may be required of subscribers by any Franchisee. So long as the subscriber returns
equipment within three (3) business days of the disconnection, no charge may be imposed by any
Franchisee for such voluntary disconnection, or for any cable services delivered after the date of
disconnect request.
(c) A subscriber may be asked, but not required, to disconnect the
Franchisee's equipment and return it to the business office.
(d) Any security deposit and/or other funds due the subscriber shall be
refunded on disconnected accounts after the converter has been recovered by the Franchisee. The
refund process shall take a maximum of thirty (30) days from the date that the converter or other
equipment was returned to franchisee or made available to Franchisee for pickup to the date the
customer receives the refund.
2. Involuntary Disconnection. If a subscriber fails to pay a monthly subscriber
or other fee or charge, the Franchisee may disconnect the subscriber's service outlet; however,
such disconnection shall not be effected until thirty-five 05) days after the due date of the
monthly subscriber fee or other charge, and ten (10) days advance written notice of intent to
Ordinance No. 97-
Page 40
disconnect to the subscriber in question. If the subscriber pays within thirty-five (35) days of the
due date and after notice of disconnection has been given, the Franchisee shall not disconnect.
After disconnection, upon payment by the subscriber in full of all proper fees or charges, including
the payment of the reconnection charge, if any, the Franchisee shall promptly reinstate service.
3. Nothing in this Ordinance shall be construed to prevent the Franchisee
from removing its property from a subscriber's premises upon the termination of service consistent
with FCC rules and regulations and any other applicable law. At the subscriber's request, a
Franchisee shall remove all of its facilities and equipment from the subscriber's premises within
thirty (30) calendar days of the subscriber's request. Where removal is impractical, such as with
buried cable or internal wiring, facilities and equipment may be disconnected and abandoned
rather than removed, unless there is a written agreement stating otherwise, provided, however,
that such agreement must be consistent with applicable law and FCC roles.
H. Franchisee shall intentionally interrupt service only for good cause and for the
shortest time possible and where feasible shall provide 48 hours notice to the City Manager and to
all subscribers. Notice to multiple dwelling units may be provided to the property manager in lieu
of to each individual unit owner.
I. Franchisee shall notify the City Manager immediately if a service interruption
affects fifty (50) or more individual subscribers for a time period greater than four hours.
J. Franchisee shall cause all its field employees to wear a picture identification badge
indicating their employment by Franchisee. This badge shall be clearly visible to the public.
K. A Franchisee shall develop written procedures for the investigation and resolution
of all subscriber or City resident complaints, including, but not limited to, those regarding the
Ordinance No. 97-
Page 41
quality of service and equipment malfunction, which procedures shall be subject to the review and
approval by the City Manager. A subscriber or City resident who has not been satisfied by
following the Franehisee's procedures may file a written complaint with the City Manager, who
will investigate the matter and, in consultation with the Franchisee as appropriate, attempt to
resolve the matter. A Franchisee's good faith or lack thereof in attempting to resolve subscriber
and resident complaints in a fair and equitable manner will be considered in connection with the
Franchisee's renewal application. Franchisee shall maintain a complete list of all complaints not
resolved within seven (7) days of receipt and the measures taken to resolve them. This list shall
be compiled in a form to be approved by the City Manager. It shall be compiled on a quarterly
basis. The list for each calendar quarter shall be supplied to the City Manager no later than the
15th day following the last day of the preceding quarter. Franchisee shall also maintain a list of all
complaints received, which list will be available to the City.
L. To the extent reasonably required to monitor enforcement of this Ordinance or a
franchise agreement, a Franchisee shall permit the City designee to inspect and test the system's
technical equipment and facilities upon reasonable notice not to be less than forty-eight (48)
hours. Such inspection shall not be performed between the hours of 12 midnight and 6:00am
unless the City or its designee offers a specific reason for requiring an inspection during said
hours.
M. Franchisee shall abide by the following requirements governing communications
with customers, bills and refunds:
Ordinance No. 97-
Page 42
1. Each Franchisee shall provide to subscribers written information in each of
the following areas at the time of installation, at least once annually, and at any future time upon
request by the Subscriber:
(a)
(b)
(c)
(d)
(e)
(1)
How to use the cable service;
Installation and service policies;
The products and services offered;
Prices and service options;
Channel positions of programming carded on the system;
The Franchisee's procedures for the receipt and resolution of customer
complaints, the Franchisee's address and telephone number to which
complaints may be reported, and the hours of operation;
(g) The telephone number and address of the City's office and the County's office
designated to handle cable television complaints and inquiries;
(h) The availability of a "lock-out" device;
(i) The Franchisee's information, collection, and disclosure policies for
the protection ora subscriber's privacy.
2. In addition, each Franchisee shall provide written notice either in its
monthly billing or through two (2) advertisements no smaller than 1/4 page in the newspaper with
the largest general circulation in the City, at the request of the City, of any City meeting regarding
requests or applications by the Franchisee for renewal, transfer or modification of its license or
change in service, rates or charges to subscribers. If agreed by the City, notice may be provided
over the cable system in certain instances. The City shall make such a request in writing, no less
than forty-five (45) days prior to the mailing of any billing by Franchisee of ~ fifteen (15) days
Ordinance No. 97-
Page 43
prior to the date that such advertising shall appear. Said notices shall be made at Franchisee's
expense and said expense shall not be considered part of the franchise fee assessed pursuant to
this Ordinance and shall not be regarded as a franchise fee, as the term is defined in Section 622
of the Communications Act, 47 U.S.C. Section 542.
3. Franchisee's bills will be dear, concise and understandable.
4. Refund checks will be issued promptly, but no later than the earlier of thirty
(30) days or the customer's next billing cycle following the resolution of a refund request, or the
return of the equipment supplied by the Franchisee if service is terminated.
5. Credits for service will be issued no later than the customer's next billing
cycle following the determination that a credit is warranted.
6. A Franchisee shall provide subscribers, the City Manager, and the City
Council with at least thirty (30) days advance written notice of any changes in rates, charges,
channel lineup, or initiations or discontinuations or changes of service or services offered over the
Cable System.
N. A Franchisee shall provide a pro-rated 24-hour credit to the subscriber's account
for any period of four hours or more within a 24-hour period during which a subscriber
experienced an outage of service or substantial impairment of service, whether due to a system
malfunction or other cause.
O. Billing.
1. The Franchisee's first billing statement after a new installation or service
change shall be pro-rated as appropriate and shall reflect any security deposit.
Ordinance No. 97-
Page 44
2. The Franchisee's billing statement must be fully itemized, with itemizations
including, but not limited to, basic and premium service charges and equipment charges. Bills will
also clearly delineate all activity during the billing period, including optional charges, rebates and
credits.
3. The Franchisee's billing statement must show a specific due date not earlier
than ten (10) days after the date of the beginning of the service period. Any balance not received
within ten (10) days after the due date may be assessed an administrative charge. The charge will
appear on the following month's billing statement.
(a) Any administrative charge applied to unpaid bills shall be subject to
regulation by the City consistent with applicable law.
(b) Subscribers shall not be charged an administrative fee, a late fee or
otherwise penalized for any failure by the Franchisee, its employees, or contractors, including
failure to timely or correctly bill the subscriber, or failure to properly credit the subscriber for a
payment timely made.
4. The Franchisee must notify the subscriber that he or she can remit payment
in person at the Franchisee's office or at such other locations within the City and inform the
subscriber of the address of that office.
P. A Franchisee may not substantially alter the service being provided to a subscriber
(including by re-tiering, restructuring a tier or otherwise) without the express permission of such
subscriber, unless it complies with this subsection.
1. If a Franchisee wishes to alter the service being provided to a subscriber
(including by re-tiering, restructuring a tier or otherwise) in such a way that the subscriber will no
Ordinance No. 97-
Page 45
longer be able to obtain the same package of services, then the Franchisee must provide the
subscriber with thirty (30) days notice of such alteration, explain the substance and the full effect
of the alteration, and provide the subscriber the right within the thirty (30) day period following
notice, to opt to receive any combination of services offered by the Franchisee.
2. Except as provided herein, no charge may be made for any service or
product which the subscriber has not affirmatively indicated, in a manner separate and apart from
payment of the regular monthly bill, that he or she wishes to receive.
Q. Franchisee shall certify in writing to the City on January 1 and July 1 of each year
based upon internal due diligence by the Franchisee that to the best of Franchisee's knowledge it is
in substantial compliance with the standards set forth in this Section 18. At the request of the
City, the Franchisee shall submit such documentation, as may be required, to demonstrate
Franchisee's compliance with this Section 18. This documentation shall be submitted within forty
five (45) days of the Franchisee's receipt of the City's request.
R. Responsibility for the administration of this Ordinance and any franchise granted
hereunder and for the resolution of all complaints against a Franchisee regarding the quality of
service, equipment malfunctions, and related matters, including the authority to order refunds or
fees, is hereby delegated to the City Manager, which is empowered, among other things, to settle,
or compromise any controversy arising from operations of the Franchisee, in accordance with the
best interests of the public. In cases where requests for service have been ignored or in cases
where the service provided is unsatisfactory for whatever reason, the City Manager shall have the
power to require the Franchisee to provide service if in the opinion of the City Manager such
request for service is reasonable. Provided, that any person aggrieved by a decision of the City
Ordinance No. 97-
Page 46
Single Violation of:
Manager, including the Franchisee, may appeal the matter to the City Council for heating and
determination. The City Council may accept, reject or modify the decision of the City Manager.
No adjustment, settlement, or compromise, whether instituted by the City Manager or by the City
Council shall be contrary to the provisions of this Ordinance or any Franchise agreement issued
pursuant to this Ordinance, and neither the City Manager nor the City Council, in the adjustment,
settlement, or compromise of any controversy shall have the right or authority to add to, modify
or delete any provision of this Ordinance or of the Franchisee.
S. 1. In addition to the powers delegated in subsection 44 (R) above, the City
Manager shall have the authority to order refunds from a Franchisee to individual cable television
subscribers who have submitted a written complaint to the City and to assess fines against a
Franchisee for any violation of this Ordinance or any franchise issued pursuant to this Ordinance,
which fines will be paid to the City.
2. In ordering refunds to cable television subscribers, the City Manager shall
be governed by the schedule set out below in which the refund indicated is expressed as a
percentage of the subscriber's monthly bill. The refunds listed are to be made on a per violation
basis with each day of a continuing violation constituting a separate violation. The refund ordered
by the City Manager pursuant to this Section 18 shall not exceed 100 percent of a subscriber's
monthly bill, unless a violation has continued at least 30 days fi.om the date first reported to the
Franchisee.
SCIt~EDULE OF REFUNDS TO SUBSCRIBERS
Maximum Refund
(a) Failure to comply with 10%
Ordinance No. 97-
Page 47
~'-J .............. v-J ...... the telephone 10%
availability requirements of
Section 441~8(C) and 11 (D), hereof
(cb_) Failure to comply with the repair 50%
and installation requirements of
Section -14-18(F), hereo£
3. In assessing fines against a Franchisee, the City Manager shall be governed
by the schedule set out below. The fines listed are to be assessed on a per violation basis with
each day of a continuing violation constituting a separate violation.
SCHEDULE OF FINES
Single Violation Of:
(a) Section A, hereo£
(b) Section B, hereof.
(c) Section C, hereof.
(d) Section D, hereof.
(e) Section E a.*:~ F, hereof.
(f) Section G a.':~ H, F_ hereof.
(g) Section tG, hereof.
(h) Section ~d_, hereof.
(i) Section I, hereof
(j) Section J, hereof
0)
Maximum Fines
$100.00
$300.00
$300.00
$300.00
$300.00
$100.00
$50O.OO
$299.995100.00
$200.O0
$200.00
Section K, hereof.
Section L, hereof.
$100.00
$ ......200.00
Ordinance No. 97-
Page 48
(m) Section M(1)(a)-(i) hereof
Section M(2), hereof
Sectopm M(3)-M(6), hereof
x--~ .......... ,~. l .\,~,, .... eof
(n) Section N, hereof
(o) Section O, hereof.
(p) Section P ,..,, .<, hereof.
(q) Section Q hereof
4.
$100.00
$500.00
$200.00
$500.00
$500.00
$300.00
$300.O0
For the purpose of assessing and calculating refunds and fines for violations
of this Section with respect to multiple dwelling units, each individual unit shall be counted as a
subscriber. However, any and all refunds with respect to services provided pursuant to a bulk
agreement :hzu!~ shall be remitted by the Franchisee to the party to the bulk agreement, rather
than to individual subscribers. Refunds due to subscribers for service purchased on an individual
basis shall be remitted directly by the Company to each individual subscriber.
5. Prior to ordering a refund and/or assessing a fine, the City Manager shall
mail the Franchisee written notice by certified or registered mall of the proposed refund and/or
fine, specifying the violation at issue. The Franchisee shall have thirty (30) days from the date of
receipt of the written notice to file a written response to the City Manager's notice. Franchisee's
Ordinance No. 97-
Page 49
written response shall be signed by management level personnel of Franchisee and ail statements
contained therein will be regarded as materiai representations to the City.
6. Prior to ordering a refund and/or assessing a fine, the City Manager shail
consider any justification or mitigating factor advanced in Franchisee's written response, including
but not limited to rebates or credits to the subscriber or a cure of the violation. The City Manager
may, after consideration of the response of the Franchisee, waive or reduce any proposed refund
or fine.
7. Subsequent to the notice of proposed refund and/or fine to Franchisee and
consideration of the Franchisee's response, if any, the City Manager may issue an assessment of
refund or fine. The refund and/or fine shall be paid within thirty (30) days of written notice to the
Franchisee. This refund and/or fine shall constitute liquidated damages to the subscriber and City
for the violation and the City may enforce payment of the refund or fmc in any court having
jurisdiction. It is the intent of the City to determine fines/refunds as a reasonable estimate of the
damages suffered by the City and/or its subscribers, whether actuai or potentiai, and may include
without limitation, increased costs of administration and other damages difficult to measure.
8. Franchisee may appeai any decision of the City Manager directly to the
City Council within thirty (30) days of notice of the decision to the Franchisee.
9. Any person who intentionaily files a raise complaint against a Franchisee
shall be subject to a fine in the amount of $50 for the first violation and $100 for each subsequent
violation.
10. Intentional misrepresentation by a Franchisee in any response to a notice of
proposed refund and/or fine shall be grounds for license revocation of the franchise.
Ordinance No. 97-
Page 50
U. In addition to complying with the customer service standards set forth in this
Ordinance or in any franchise issued pursuant to this Ordinance, a Franchisee shall comply with all
customer service standards applicable to Cable Systems of the FCC and any other applicable
federal, state or county law concerning customer service standards, consumer protection, and
unfair or deceptive trade practices.
V. The City expressly reserves the fight to consider violations of the customer service
requirements by a Franchisee in deciding whether to enter into a franchise agreement, grant a
franchise renewal, modification or consent to a transfer.
Section !9. Subscriber Privacy.
A Franchisee shall at all times protect the privacy of all subscribers to the full extent
required by Section 631 of the Communications Act, 47 U.S.C. § 551 and state law.
Section 20. Discrimination Prohibited.
A. No Franchisee may in its rates or charges, or in the availability of the services or
facilities of its system, or in any other respect, make or grant undue preferences or advantages to
any subscriber, potential subscriber, or group of subscribers or potential subscribers, nor subject
any such persons or group of persons to any undue prejudice or any disadvantage. A Franchisee
shall not deny, delay or otherwise burden service or discriminate against subscribers or users on
the basis of age, race, creed, religion, color, sex, handicap, national origin, marital status, or
political affiliation, except for discounts for senior citizens, the economically disadvantaged or
handicapped that are applied in a uniform and consistent manner. A Franchisee may also offer
bulk discounts to multiple dwelling buildings to the extent such discounts are otherwise
permissible by law.
Ordinance No. 97-
Page 51
B. A Franchisee shall not deny cable service to any potential subscriber because of the
income of the residents of the area in which the subscriber resides.
C. A Franchisee shall not refuse to employ, nor discharge from employment, nor
discriminate against any person in compensation or in terms, conditions or privileges of
employment because of age, race, creed, religion, color, sex, disability, national origin, marital
status, or political affiliation. The Franchisee shall comply with Federal, state and local laws and
regulations governing equal employment opportunities, as the same may from time to time
amended.
Section 21.
Use of Streets.
A. Any pavements, sidewalks, curbing or other paved area taken up or any
excavations made by a Franchisee shall be done under thco,,~,~, ......
uader pursuant to permits issued for work by the proper officials of the City, and shall be done in
such manner as to give the least inconvenience to the inhabitants of the City. A Franchisee shall,
at its own cost and expense, and in a manner approved by the City, replace and restore any such
pavements, sidewalks, curbing or other paved areas in as good a condition as before the work
involving such disturbance was done, and shall also prepare, maintain and provide to the City
Manager or his designee, full and complete plats, maps and records showing the exact locations
of its physical facilities used in connection with the Cable System located within the public
Streets, ways, and easements of the City. These maps shall be available in any form requested by
the City Manager or his designee.
B. Except to the extent required by law, a Franchisee shall, at its expense, protect,
support, temporarily disconnect, relocate, or remove, any of its property when required by the
Ordinance No. 97-
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City by reason of traffic conditions, public safety, Street construction, Street resurfacing or
widening, change of Street grade, installation or sewers, drains, water pipes, power lines, signal
lines, tracks, or any other type of municipal or public utility improvements; provided, however,
that the Franchisee shall, in all such cases, have the privilege of abandoning any property in place.
C. A Franchisee shall, on the request of any person holding a building moving permit
issued by the City, temporarily raise or lower its wires to permit the moving of buildings. The
expense of such temporary removal or raising or lowering of wires shall be paid by the person
requesting same, and the Franchisee shall have the authority to require such payment in advance,
except in the case where the requesting person is the City, in which case no such payment shall be
required. The Franchisee shall be given not less than five calendar (5) days advance notice to
arrange for such temporary wire changes.
D. A Franchisee shall upon notice to the City of not less than seven (7) days, have the
authority to trim the trees or other natural growth upon and overhanging the Streets so as to
prevent the branches of such trees from coming in contact with the wires, cables and other
equipment of the Franchisee, except that, at the option of the City, such trimming may be done by
it or under its supervision and direction at the expense of the Franchisee.
E. A Franchisee shall use, with the owner's permission, existing underground conduits
(if applicable) or overhead utility facilities whenever feasible. Copies of agreements between a
Franchisee and third party for use of conduits or other facilities shall be filed with the City
provided that the Franchisee shall have the right to redact proprietaw and confidential information
in such agreements as it pertains to financial arrangements between the parties.
Ordinance No. 97-
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F. All wires, cable lines, and other transmission lines, equipment and structures shall
be installed and located to cause minimum interference with the rights and convenience of
property owners. The City may issue such rules and regulations concerning the installation and
maintenance of a cable system installed in, on, or over the Streets, as may be consistent with this
Ordinance and the franchise agreement.
G. All safety practices required by law shall be used during construction, maintenance
and repair of a Cable System. A Franchisee shall not place facilities, equipment or fixtures where
they will interfere with any gas, electric, telephone, water, sewer or other utility facilities, or
obstruct or hinder in any manner the various utilities serving the residents of the City of their use
of any Street or any other public right of way.
A Franchisee shall, at all times:
1. Install and maintain its wires, cables, fixtures and other equipment in
accordance with the requirements of the City's Building Code and Electrical Safety Ordinances
and any other applicable Building or Electrical Safety Code, and in such manner that they will not
interfere with any installations of the City.
2. Keep and maintain in a safe, suitable, substantial condition, and in good
order and repair, all structures, lines, equipment, and connections in, over, under, and upon the
Streets, sidewalks, alleys, and public ways or places of the City, wherever situated or located.
I. On Streets where electrical or telephone utility wiring is located underground,
eithe~Franchisee's cable shall also be located underground at the Franchisee's expense. Between
a Street and a subscriber's residence, a Franchisee's cable must be located underground if both
electrical and telephone utility wiring are located underground. The City shall encourage, to the
Ordinance No. 97-
Page 54
extent feasible, that the public utility and the Franchisee cooperate in opening up trenches and
making such trenches available to all parties with the understanding that the costs of opening and
refilling of such trenches would be shared equally by all users of such trenches. Franchisee shall at
all times comply with the requirements of the Trench Safety Act.
J. In the event the use of any part of a Cable System is discontinued for any reason
for a continuous period of six (6) months, or in the event such system or property has been
installed in any Street without complying with the requirements of this Ordinance or a Franchisee
agreement, or the Franc?&cc Franchise has been terminated, canceled or expired, the Franchisee,
within thirty (30) days alter written notice by the City, shall commence removal from the Streets
of all such property as the City may require.
K. The City may extend the time for the removal of Franchisee equipment and
facilities for a period not to exceed one hundred eighty (180) days, and thereafter such equipment
and facilities may be deemed abandoned.
L. In the event of such removal or abandonment, the Franchisee shall restore the area
to as good a condition as prior to such removal or abandonment.
Section 22. Renewal of Franchise.
Renewal shall be conducted in a manner consistent with Section 626 of the
Communications Act, 47 U.S.C. 546. To the extent such additional requirements are consistent
with applicable law, the following requirements shall apply.
A. Upon completion of the review and evaluation process set forth in Section
626(a)(1)(2) of the Communications Act, 47 U.S.C. 546, should that process be invoked, the City
shall notify the Franchisee, by certified or registered mail that it may file a renewal application
Ordinance No. 97-
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including a renewal proposal. The notice shall specify the information to be included in the
renewal application and the deadline for filing the application, which shall be no earlier than thirty
(30) calendar days following the date of the notice.
1. The application shall comply with the requirements of Section 9 hereof and
provide the specific information requested in the notice. If the Franchisee does not submit a
renewal application by the date specified in the City's notice to the Franchisee given pursuant to
this subsection, the Franchisee will be deemed not to be seeking renewal of its Franchise.
2. Upon receipt of the renewal application, the City shall publish notice of its
receipt and make copies available to the public. The City, following prior public notice, may hold
one or more public heatings on the renewal application.
B. In the event a public hearing on the renewal application is held, or in the event that
the City Council considers the renewal application without a public hearing, the City Council will
either:
1. Pass a resolution agreeing to renew the Franchise, subject to the
negotiation of a Franchise agreement satisfactory to the City and the Franchisee; or
2. Pass a resolution that makes a preliminary assessment that the Franchise
should not be renewed.
C. If a preliminary assessment is made that a Franchise should not be renewed, at the
request of the Franchisee or on its own initiative, the City will commence a proceeding in
accordance with Section 626(c) of the Communications Act, 47 U.S.C. § 546(c) to address the
issues set forth in Section 626(c)(1)(A)-(D) of the Communications Act, 47 U.S.C.§
546(e)(1)(A)-(D). Any denial of a proposal for renewal that has been submitted in compliance
Ordinance No. 97-
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with subsection (b) of § 546 shall be based on one or more adverse findings made with respect to
the factors described in § 546(c)(1)(A)-(D), pursuant to the record of proceedings under §
546(c). The City shall not base a denial of renewal on a failure to substantially comply with the
material terms of the Franchise under § 546(c)(1)(A) or on events considered under §
546(c)(1)(B) unless the City has provided the Franchisee with notice and opportunity to cure, or
in any case in which it is documented that the City has waived its right to object, or the Franchisee
gives written notice of a failure or inability to cure and the City fails to object within a reasonable
time after receipt of such notice.
D. Any request to initiate a renewal process or proposal for renewal not submitted
within the time period set forth in Section 626(a) of the Communications Act, 47 U.S.C. § 546(a),
shall be deemed an informal proposal for renewal and shall be governed in accordance with
Section 626(h) of the Communications Act, 47 U.S.C.§ 546(h). The City may hold one or more
public hearings or implement other procedures under which comments from the public on an
informal proposal for renewal may be received. Following such public hearings or other
procedures, the City Council shall determine whether the Franchise should be renewed and the
terms and conditions of any renewal.
E. If the City Council grants a renewal application, the City and the Franchisee shall
agree on the terms of a Franchise agreement, pursuant to the procedures specified in subsection
9(E)-(H) of this Ordinance, before such renewal becomes effective.
F. If renewal of a Franchise is lawfully denied, the City may acquire ownership of the
Cable System or effect a transfer of ownership of the system to another person upon approval of
the City Council. Any such acquisition or transfer shall be at fair market value, determined on the
Ordinance No. 97-
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basis of the Cable System valued as a going concern but with no value allocated to the franchise
itsel£ The City may not acquire ownership of the system while an appeal of a denial for renewal
is pending in any court pursuant to § 546(e).
G. If renewal of Franchise is lawfully denied and no appeal to a court is pending, and
the City does not purchase the Cable System or approve or effect a transfer of the Cable System
to another person, the City may require the former Franchisee to remove its facilities and
equipment at the former Franchisee's expense. If the former Franchisee fails to do so within a
reasonable period of time, the City may have the removal done at the former Franchisee's and/or
surety's expense.
Section 23. Transfer/Sale/Assignment.
A. No transfer ora Franchise shall occur without prior approval of the City.
B. An application for a transfer of a Franchise shall meet the requirements of Section
9 hereof, and provide complete information on the proposed transaction, including details on the
legal, financial, technical and other qualifications of the transferee, and on the potential impact of
the transfer on subscriber rates and service. Except in the case of a pro forma transfer, the
application shall provide, at a minimum, the information required in subsection ~
(~xO4) Section 9(F)(1MF)(5) and (F)(14) with respect to the proposed transferee. The
information required in subsections 9(E0(6)-(Lr~ 9(F)(6)-(F)(13) shall also be provided
whenever the proposed transferee expects material changes to occur in those areas.
C. An application for approval of a pro forma transfer of a Franchise shall be
considered granted on the sixty first (61~) calendar day following the filing of such application
with the City unless, prior to that date, the City notifies the Franchisee to the contrary. An
Ordinance No. 97-
Page 58
application for approval of a pro forma transfer of a franchise shall clearly identify the application
as such, describe the proposed transaction, and explain why the applicant believes the transfer is
pro forma. Unless otherwise requested by the City within thirty (30) calendar days of the filing of
an application for a pro forma transfer, the applicant shall be required only to provide the
information required in subsections am~t
~,~,9)(F)(1),(3) and (14) with respect to the proposed
transferee.
D. In making a determination on whether to grant an application for a transfer of a
Franchise, the City Council shall consider the legal, financial, and technical and other
qualifications of the transferee to operate the system; whether the incumbent cable operator is in
substantial compliance with the material terms of its Franchise agreement and this Ordinance and,
if not, the proposed transferee's commitment to cure such noncompliance; and whether operation
by the transferee would adversely affect cable services to subscribers, or otherwise be contrary to
the public interest.
E. No application for a transfer of a Franchise shall be granted unless the transferee
agrees in writing that it will abide by and accept all terms of this Ordinance and the Franchise
agreement, and that it will assume the obligations and liabilities of the previous Franchisee under
this Ordinance and the Franchise agreement.
F. Approval by the City of a transfer of a Franchise does not constitute a waiver or
release of any of the rights of the City under this Ordinance or the Franchise agreement, whether
arising before or after the date of the transfer.
Section 24. Revocation or Termination of Franchise.
Ordinance No. 97-__
Page 59
A. A Franchise may be revoked by the City Council for a Franchisee's failure to
construct, operate or maintain the Cable System as required by this Ordinance or the Franchise
agreement, or for any other material violation of this Ordinance or material breach of the
Franchise agreement. To invoke the provisions of this subsection (A), the City shall give the
Franchisee written notice, by certified mail at the last known address, that Franchisee is in material
violation of this Ordinance or in material breach of the Franchise agreement and describing the
nature of the alleged violation or breach with specificity. If within thirty (30) calendar days
following receipt of such written notice from the City to the Franchisee, the Franchisee has not
cured such violation or breach, or has not commenced corrective action and such corrective
action is not being actively and expeditiously pursued, the City may give written notice to the
Franchisee of its intent to revoke the Franchise, stating its reasons.
B. Prior to revoking a Franchise under subsection (A) hereof, the City Council shall
hold a public hearing, upon thirty (30) calendar days notice, at which time the Franchisee and the
public shall be given an opportunity to be heard. Following the public hearing the City Council
may determine whether to revoke the Franchise based on the evidence presented at the hearing,
and other evidence of record. If the City Council determines to revoke a Franchise, it shall issue a
written decision setting forth the reasons for its decision. A copy of such decision shall be
transmitted to the Franchisee.
C. Notwithstanding subsections (A) and (B) hereof, any Franchise may, at the option
of the City following a public hearing before the City Council, be revoked one hundred twenty
(120) calendar days atter an assignment for the benefit of creditors or the appointment of a
receiver or trustee to take over the business of the Franchisee, whether in a receivership,
Ordinance No. 97-__
Page 60
reorganization, bankruptcy assignment for the benefit of creditors, or other action or proceeding,
unless within that one hundred twenty (120) day period:
1. Such assignment, receivership or trusteeship has been vacated; or
2. Such assignee, receiver or trustee has fully complied with the terms and
conditions of this Ordinance and the Franchise agreement and has executed an agreement,
approved by a court having jurisdiction, assuming and agreeing to be bound by the terms and
conditions of this Ordinance and the Franchise agreement.
D. In the event of foreclosure or other judicial sale of any of the facilities, equipment
or property of a Franchisee, the City may revoke the Franchise, following a public heating before
the City Council, by serving notice upon the fi-anchise and the successful bidder at the sale, in
which event the Franchise and all rights and privileges of the Franchise will be revoked and will
terminate thirty (30) calendar days after serving such notice, unless:
The City has approved the transfer of the Franchise to the successful
bidder; and
2.
The successful bidder has covenanted and agreed with the City to assume
and be bound by the terms and conditions of the Franchise agreement and this Ordinance.
E. If the City revokes a Franchise, or if for any other reason a Franchisee abandons,
terminates or fails to operate or maintain service to its subscribers for a period of six months, the
following procedures and rights are effective:
1. The City may require the former Franchisee to remove its facilities and
equipment at the former Franchisee's expense. If the former Franchisee fails to do so within a
Ordinance No. 97-
Page 61
reasonable period of time, the City may have the removal done at the former Franchisee's and/or
surety's expense.
2. The City, by resolution of the City Council, may acquire ownership, or
effect a transfer, of the Cable System at an equitable price.
3. If a Cable System is abandoned by a Franchisee, the City may sell, assign or
transfer all or part of the assets of the system.
F. Where the City has issued a Franchise specifically conditioned in the Franchise
agreement upon the completion of construction, system upgrade or other specific obligation by a
specified date, failure of the Franchisee to complete such construction or upgrade, will result in
the automatic forfeiture of the Franchise without further action by the City where it is so provided
in the Franchise agreement, unless the City, at its discretion and for good cause demonstrated by
the Franchisee, grants an extension of time.
G. No Franchisee will construct or activate a system upgrade in any community
served by the same system prior to activating the upgrade for all subscribers within the City,
without prior authorization from the City.
H. Except as provided in subsection (F), no adverse action against a Franchisee may
be taken by the City pursuant to this section except after a noticed public heating at which the
Franchisee is given an opportunity to participate.
Section 25. Continuity of Service Mandatory.
A. It is the right of all subscribers to receive all available services requested from the
Franchisee as long as their financial and other obligations to the Franchisee are satisfied.
Ordinance No. 97-
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B. In the event of a termination or transfer of a Franchise for whatever reason, the
Franchisee shall ensure that all subscribers receive continuous, uninterrupted service regardless of
the circumstances. The Franchisee shall cooperate with the City to operate the system for a
temporary period following termination or transfer as necessary to maintain continuity of service
to all subscribers. The temporary period will not exceed six (6) months without the Franchisee's
written consent. During such period the Cable System shall be operated under such terms and
conditions as the City and the Franchisee may agree, or such other terms and conditions that will
continue, to the extent possible, the same level of service to subscribers and that will provide
reasonable compensation to the cable operator.
C. In the event a Franchisee fails to operate the system for seven (7) consecutive days
without prior approval of the City or without just cause, the City may, at its option, operate the
system or designate an operator until such time as the Franchisee restores service under
conditions acceptable to the City or until a permanent operator is selected. If the City is required
to fulfill this obligation for the Franchisee, the Franchisee shall reimburse the City for all costs or
damages resulting form the Franchisee's failure to perform that are in excess of the revenues from
the system received by the City. Additionally, the Franchisee will cooperate with the City to
allow City employees and/or City agents free access to the Franchisees' facilities and premises for
purposes of continuing system operation.
Section 26. Rates.
A. Nothing in this Ordinance shall prohibit the City from regulating rates for cable
services to the full extent permitted by law.
Ordinance No. 97-
Page 63
B. Any rate or charge established for cable television service, equipment, repair and
installation shall be reasonable to the public. Upon written request from the City or its agent,
Franchisee shall provide all requested data, records and documentation to show the
reasonableness of the rates or to comply with FCC guidelines. Where such information is
designated proprietary and confidential, it shall not be copied or removed or otherwise subject to
public inspection, to the extent the City is permitted to protect such information from public
inspection under applicable law.
C. Subject to the City's regulation of rates as permitted under applicable Federal and
state law, should a Franchisee desire to change any rate or charge, it shall submit a written
proposal for the amounts and effective date of such change to the City Manager who shall
evaluate the proposal in a manner consistent with FCC cable television rate regulation standards
or other applicable law in effect at the time and report this evaluation to the City Council. The
City Manager's report shall be placed before the City Council at a duly noticed public hearing.
The City will provide written notice of the public hearing to the Franchisee no later than five (5)
days prior to the public heating. The City may require the Franchisee to notify each subscriber, by
placing an announcement of not less than one quarter page in a newspaper of general circulation
and/or via the Cable System, of the proposed rate change and the date and time of the public
hearing, with such notice commencing no later than forty-eight (48) hours prior to time of the
public heating. At such hearing, the Franchisee and members of the public will be given an
opportunity to present their respective views on the proposed rates. Upon conclusion of the
public hearing, the City Council shall decide the matter by majority vote and adopt a Resolution
approving, disapproving, or modifying the proposed rate changes and providing such further relief
Ordinance No. 97-
Page 64
as is appropriate and authorized by FCC rate regulation standards. The resolution shall set forth
complete findings of fact and conclusions regarding all of the basic elements considered in the
City Council's determination.
Section 27. Performance Evaluation.
The City will conduct periodic performance evaluations of a Franchisee as the City
determines is necessary. A Franchisee shall cooperate with these evaluations reasonably and in
good faith. If the City implements a survey of cable subscribers in connection with a performance
evaluation, the City may require a Franchisee to distribute the City's questionnaire to its
subscribers at the City's expense. Upon request and upon reimbursement of the City's copying
costs, the Franchisee may receive copies of all responses.
Section 28. Administration.
A. The City Manager, either directly or through a duly appointed designee, shall have
the responsibility for overseeing the day-to-day administration of this Ordinance and Franchise
agreements. The City Manager shall be empowered to take all administrative actions on behalf of
the City, except for those actions specified in this Ordinance that are reserved to the City
Council. The City Manager may recommend that the City Council take certain actions with
respect to the Franchise. The City Manager shall keep the City Council apprised of developmems
provide the City Council with assistance, advice and recommendations as
in cable and
appropriate.
B.
Subject to Federal and state law, the City Council shall have the sole authority to
regulate rates for cable services, grant Franchises, authorize the entering into of franchise
Ordinance No. 97-
Page 65
agreements, modify Franchise agreements, renew or deny renewal of Franchise, revoke Franchise
and, authorize the transfer of a Franchise.
Section 29. Force Majeure.
In the event a Franchisee's performance of or compliance with any of the provisions of
this Ordinance or the Franchisee's Franchise agreement is prevented by a cause or event not
if .......... J v ....... shall be
within the Franchisee's control, such inability to perform or comply' ~ ...... ~'~ ...... :~'~
deemed excused and no penalties or sanctions shall be imposed as a result thereof, provided,
however, that Franchisee uses all practicable means to expeditiously cure or correct any such
inability to perform or comply. For purposes of this Ordinance and any Franchisee agreement
granted or renewed hereunder, causes or events not within a Franchisee's control shall include,
without limitation, acts of God, floods, earthquakes, landslides, hurricanes, fires and other natural
disasters, acts of public enemies, riots or civil disturbances, sabotage, strikes and restraints
imposed by order of a governmental agency or court . Causes or events within Franehisee's
control, and thus not falling within this section, shall include, without limitation, Franchisee's
financial inability to perform or comply, economic hardship, and misfeasance, malfeasance or
nonfeasance by any of Franehisee's directors, officers, employees, contractors or agents.
Section 30.
A. This Ordinance shall be applicable to all cable systems now existing in the City on
the date hereof and to all applicants for cable franchises, to the full extent permitted by Federal
and state law.
B. Any person shall notify the City in writing within thirty (30) calendar days of the
passage of this Ordinance, or any subsequent amendment thereof,
Ordinance No. 97-__
Page 66
1. any provision which it believes should not be applicable to it.
2. the reason for each such claim of non-applicability.
C. Failure to notifiy the City as provided in subsection (B) of this Section shall
constitute a waiver of any right to object.
Section 31. Municipal Cable System Ownership Authorized.
A. To the full extent permitted by law, the City may acquire, construct, own, and/or
operate a Cable System.
B. Nothing in this Ordinance shall be construed to limit in any way the ability or
authority of the City to acquire, construct, own, and/or operate a Cable System to the full extent
permitted by law.
Section 32. Violations of Ordinance.
A. Whenever the City finds that a person has allegedly violated any provision of this
Ordinance, not otherwise described in Section 18 herein, such person shall have thirty (30) days
subsequent to receipt of notice to correct the violation. If after 30 days, the recipient has failed to
correct the alleged violation, or commence curing to a substantial extent and to the satisfaction of
the City, the City shall determine if the person has committed a violation and shall make written
findings of fact. If a violation is found, the person shall pay to the City Five Hundred Dollars
($500) per day, or any part thereof for each day each violation occurs or continues. The City
reserves the right to withdraw said payments from the security fund upon 3 days written notice to
Franchisee. It is the intent of the City to impose the above discussed fines as a reasonable
estimate of the damages suffered by the City and/or its subscribers, whether actual or potential,
Ordinance No. 97-
Page 67
and may include without limitation, increased costs of administration and other damages difficult
to measure.
B. The City hereby reserves any and all rights to require that a person remove its
equipment and facilities from the City's public rights of way where the City has determined and
issued a written decision finding that the damages suffered by the City or its residents can not be
remedied by any reasonable means other than by termination or revocation of a person's rights to
use the City's rights of ways.
Section 33. Enforcement Remedies.
A. In addition to any other remedies available at law or equity or provided herein
under Section 18, the City may apply any one or combination of the following remedies in the
event a Franchisee violates this Ordinance, its Franchise agreement, applicable Federal or state
law, or applicable local law or order:
1. Impose liquidated damages in such amount, whether on a per-diem, per-
incident, or other measure of violation, as provided in the franchise agreement. Payment of
liquidated damages by the Franchisee will not relieve the Franchisee of its obligation to comply
with the Franchise agreement and the requirements of this Ordinance.
Revoke the Franchise pursuant to the procedures specified in Section 2-5 24
hereof.
3.
In addition to or instead of any other remedy, the City may seek legal or
equitable relief from any court of competent jurisdiction.
B. In determining which remedy or remedies are appropriate, the City shall take into
consideration the nature of the violation, the person or persons bearing the impact of the
Ordinance No. 97-
Page 68
violation, the nature of the remedy required in order to prevent further violations, and such other
matters as the City determines are appropriate to the public interest.
C. Failure of the City to enforce requirements of a Franchise agreement or this
Ordinance shall not constitute a waiver of the City's right to enforce that violation or subsequent
violations of the same type or to seek appropriate enforcement remedies.
D. In any proceeding wherein there exists an issue with respect to a Franchisee's
performance of its obligations pursuant to this Ordinance, the Franchisee has, throughout any
such proceedings and appeals thereof, the burden of proving that said Franchisee is in compliance
with the terms of the Ordinance. The City Council may find a Franchisee that does not
demonstrate compliance with the terms and conditions of this Ordinance in default and apply any
one or combination of the remedies otherwise authorized by this Ordinance.
Section 34. Reservation of Rights.
A. The City reserves the right to amend this Ordinance as it shall find necessary in the
lawful exercise of its police powers.
B. Any additional regulations adopted by the City shall be incorporated into this
Ordinance and complied with by all Franchisees within thirty (30) days of the date of adoption of
such additional regulations.
C. The City reserves the right to exercise the power of eminent domain to acquire the
property of Franchisee's Cable System, consistent with applicable Federal and state law.
Notwithstanding anything to the contrary, this Section shall not enlarge or restrict the City's
exercise of eminent domain except to the extent provided by applicable law.
Ordinance No. 97-
Page 69
D. The City shall at all times have the right, upon reasonable notice and during normal
business hours, to examine and copy a Franchisee's records and to inspect a Franehisee's facilities
to the extent needed to monitor a Franchisee's compliance with and performance under this
Ordinance and the Franchisee's Franchise agreement.
Section 35. Repeal of Confficting Ordinances.
That zr~:,nancc: er Ordinance No. 96-15 providing an Interim Ordinance on the same
subject and all parts of ordinances, and all resolutions or parts of resolutions in conflict herewith
be and the same are hereby repealed to the extent of such conflict.
Section 36. Savings.
All rates, fees, charges and financial obligations previously accrued pursuant to the
ordinances and resolutions repealed pursuant to Section 35 above shall continue to be due and
owing until paid.
Section 37. Severabilit¥.
If any part, section, subsection, or other portion of this Ordinance or any application
thereof to any person or circumstance is declared void, unconstitutional or invalid for any reason,
such part, section, subsection, or other portion, or the prescribed application thereof, shall be
severable, and the remaining provisions of this Ordinance, and all applications thereof not having
been declared void, unconstitutional or invalid, shall remain in full force and effect. The City
declares that no invalid or prescribed provision or application was an inducement to the enactment
of this Ordinance, and that it would have enacted this Ordinance regardless of the invalid or
prescribed provision or application.
Ordinance No. 97-
Page 70
Section 38. Effective Date. This Ordinance shall take effect and be in force
immediately upon its passage and adoption on second reading.
The foregoing Ordinance was offered by Councilmember Rogers-Libert, who moved its
adoption on first reading. The motion was seconded by Councilmember Cohen, and upon being
put to a vote, the vote was as follows:
Councilmember Arthur Berger
Councilmember Jay Beskin
Councilmember Ken Cohen
Councilmember Harry Holzberg
Councilmember Patricia Rogers-Libert
Vice Mayor Jeffrey M. Peflow
Mayor Arthur I. Snyder
yes
yes
yes
yes
yes
yes
absent.
The foregoing Ordinance was offered by Councilmember
, who
moved its adoption on second reading. The motion was seconded by Councilmember
, and upon being put to a vote, the vote was as follows:
Couneilmember Arthur Berger
Councilmember Jay Beskin
Councilmember Ken Cohen
Councilmember Harry Holzberg
Councilmember Patficia Rogers-Libert
Vice Mayor Jeffrey M. Perlow
Mayor Arthur I. Snyder
PASSED AND ADOPTED on first reading this 5th day of August, 1997.
PASSED AND ADOPTED on second reading 2na day of September, 1997.
ATTEST:
ARTHUR I. SNYDER, MAYOR
TERESA M. SMITH, CMC
CITY CLERK
Ordinance No. 97-
Page 71
APPROVED AS TO FORM AND
LEGAL SUFFICIENCY
CITY ATTORNEY
CITY OF AVENTURA
OFFICEOFTHECITYMANAGER
MEMORANDUM
TO:
FROM:
DATE:
SUBJECT:
City Council ty~~
Eric M. Soroka, Ci
July 15, 1997
Proposed Code of Ethics Ordinance
Ist Reading August 5, 1997 City Council Meeting Agenda Item ._.~_-/~
2nd Reading September 2, 1997 City Council Meeting Agenda .Item
Attached please find the proposed Ethics Ordinance. The Ordinance contains the
revisions requested by the City Council at the Workshop Meeting.
If you have any questions, please feel free to contact me.
EMS/aca
Attachment
CC0332-97
WEISS SEROTA
ATTOF~N~-YS AT LAW
July 8, 1997
PALM BEACH OFFICE
187~ SOUTHWEST I7TM STREET
BOCA RATON~ fLORiDA 33486
TELEPHONE {561) 39~--876~
Teresa M. Smith, CMC
City of Aventura
2999 Northeast 191st Street
Suite S00
Aventura, FL 33180
Re: Ordinance Providinq City of Aventura Ethics Code
Dear Teresa:
Pursuant to City Council action at the workshop meeting of
July 7, 1997, enclosed is the revised proposed Ethics Code
Ordinance for inclusion on the agenda of the next regular meeting
of the City Council.
Also enclosed is a disk of the Ordinance.
Yours truly,/ /~ ,~
David M. Wolpin
RJW/cmb
Enclosure
328001
Eric M. Soroka, City Manager
Richard Jay Weiss, Esq.
RECEIVED
J U [ O 1996
CiTf MANAGER
ORDINANCE NO.
AN ORDINANCE OF THE CITY OF AVENTURA, FLORIDA;
ESTABLISHING A CODE OF ETHICS; PROVIDING A
PENALTY; PROVIDING FOR SEVERABILITY, INCLUSION
IN THE CODE, AND AN EFFECTIVE DATE.
WHEREAS, the State of Florida and Metropolitan Dade County have recognized the
need to establish standards of ethical conduct for their public officers and employees by
adopting a "Code of Ethics" applicable to the public officers and employees of the State, the
County and municipalities, including the City of Aventura; and
WHEREAS, the City Council finds it in the public interest to establish standards of
ethical conduct for its public officers and employees by adopting a City "Code of Ethics" in
order to protect the integrity of every level of government and to insure that government will
be respected and trusted by the people.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY
OF AVENTURA, FLORIDA, AS FOLLOWS:
Section 1. Le.qislative Intent.
(1) It is essential to the proper conduct and operation of government that
public officials be independent and impartial and that public office not be used for
private gain other than the remuneration provided by law. The public interest,
therefore, requires that the law protect against any conflict of interest and establish
standards for the conduct of elected officials and government employees in
situations where conflicts may exist.
(2) It is the policy of the City of Aventura that no officer or employee of the
City, shall have any interest, financial or otherwise, direct or indirect; engage in any
business transaction or professional activity; or incur any obligation of any nature
which is in substantial conflict with the proper discharge of his or her duties in the
public interest. To implement this policy and strengthen the faith and confidence of
the City's residents in their government, the City of Aventura will enact a Code of
Ethics setting forth standards of conduct required of the City's public officers and
employees, in the performance of their official duties. It is the intent of the City that
Ordinance No. 97-___
Page 2
this code shall serve as a guide for the official conduct of the public officers and
employees of the City.
Section 2. Code of Ethics.
The conduct of the public officers and employees of the City of Aventura shall
be governed by the Code of Ethics of the City of Aventura which shall include:
(1) The State of Florida "Code of Ethics for Public Officers and
Employees", codified in Chapter 112, Florida Statutes, as may be amended from
time to time, and
(2) The "Dade County Conflict of Interest And Code of Ethics Ordinance",
codified at Section 2-11.1 et. seq., Dade County Code, as may be amended from
time to time, and
(3) Any provisions that the City Council may adopt from time to time in
addition to those set forth in subsections (1) and (2) above.
Section 3.
Additional Conflict of Interest Restriction Concerning Advisory Board
Members.
(1) No member of any City Advisory Board shall vote on or participate in
any way in any matter presented to the Board if said person is an officer, board
member, or director of an organization which would be or might be indirectly or
directly affected by any action of the Board or, if in any instance, the matter would
affect the member in a manner distinct from the manner in which it would affect the
public generally.
(2) Any Board Member who has any of the above relationships or who
would or might, directly or indirectly, profit or be enhanced by the action of the Board
shall absent himself or herself from the Board meeting during the discussion of the
subject item and shall not vote on or participate in any way in said matter.
(3) VVhenever any Board member is in doubt as to the interpretation or
application of this section to his~her particular situation, the Board member may
submit to the City Attorney a written request for an opinion. The City Attorney shall
review the facts of the particular matter and shall provide an opinion to the Board
Member.
(4) For purposes of this Section, the term "Advisory Board" shall refer to
Ordinance No. 97-~
Page 3
the members of those City Advisory Board's whose primary responsibility is to
provide recommendations or advice to the City Council.
(5) For purposes of this Section, the term "organization" means a
corporation for profit or not-for-profit, and includes a political committee or committee
of continuous existence as defined in Chapter 106, F.S.
Section 4. Penalty. In addition to any penalties that may be prescribed by
the State of Florida or Metropolitan Dade County in their Codes of Ethics, a violation of any
provision of this Code shall additionally be punishable by a fine not to exceed $500.00.
Section 5. Severability. The provisions of this Ordinance are declared to be
severable and if any section, sentence, clause or phrase of this Ordinance shall for any
reason be held to be invalid or unconstitutional, such decision shall not affect the validity of
the remaining sections, sentences, clauses, and phrases of this Ordinance but they shall
remain in effect, it being the legislative intent that this Ordinance shall stand
notwithstanding the invalidity of any par-[.
Section 6. Inclusion in the Code. It is the intention of the City Council, and it is
hereby ordained that the provisions of this Ordinance shall become and made a part of the
Code of the City of Aventura; that the sections of this Ordinance may be renumbered or
relettered to accomplish such intentions; and that the word "Ordinance" shall be changed to
"Section" or other appropriate word.
Section 7. Effective Date. This Ordinance shall be effective immediately
upon adoption on second reading.
The foregoing Ordinance was offered by Councilmember Beskin, who moved its
adoption on first reading. The motion was seconded by Councilmember Cohen, and upon
Ordinance No. 97-__
Page 4
being put to a vote, the vote was as follows:
Councilmember Arthur Berger
Councilmember Jay R. Beskin
Councilmember Ken Cohen
Councilmember Harry Holzberg
Councilmember Patricia Rogers-Libert
Vice-Mayor Jeffrey M. Perlow
Mayor Arthur I. Snyder
yes
yes
yes
yes
yes
yes
absent
The foregoing Ordinance was offered by Councilmember , who moved its
adoption on second reading. The motion was seconded by Councilmember , and
upon being put to a vote, the vote was as follows:
Councilmember Arthur Berger
Councilmember Jay R. Beskin
Coun¢ilmember Ken Cohen
Councilmember Harry Holzberg
Councilmember Patricia Rogers-Libert
Vice-Mayor Jeffrey M. Perlow
Mayor Arthur I. Snyder
PASSED AND ADOPTED on first reading this 5th day of August, 1997.
PASSED AND ADOPTED on second reading this 2r~ day of September, 1997.
A'I-rEST
ARTHUR I. SNYDER, MAYOR
TERESA M. SMITH, CMC
CITY CLERK
APPROVED AS TO FORM AND
LEGAL SUFFICIENCY:
CITY ATTORNEY
CITY OF AVENTURA
OFFICE OF THE CITY MANAGER
MEMORANDUM
TO:
FROM:
DATE:
SUBJECT:
City Council ~
Eric M. Soroka, Ci/t~
August 19, 1997 ~,
Ordinance Concernin(
By Governmental Ac(
~ l~Conformities Created or Increased
uisition of Private Property
1st Reading August 5, 1997 City _C..ouncil Meeting Agenda Item ~
2nd Reading September 2, 1997 City Council Meeting Agenda Item
In accordance with the City Council's direction at the Workshop Meeting, attached is
the proposed Ordinance prepared by the City Attorney which establishes a variance
mechanism for the cure of non-conformities which arise from the acquisition of private
property by governmental entities.
Sections 6, 8 and 9 of the Ordinance have been amended by the City Attorney to
address concems expressed by FDOT and the attorney representing several property
owners.
If you have any questions, please feel free to contact me.
EMS/aca
Attachment
CC0356~97
ORDINANCE NO. 97-
AN ORDINANCE OF THE CITY OF AVENTURA, FLORIDA,
ADOPTING ORDINANCE CONCERNING ZONING;
PROVIDING FOR ADOPTION OF POMCY AND
PROCEDURE CONCERNING NON-CONFORMITIES
CREATED BY GOVERNMENTAL ACQUISITION OF
PRIVATE PROPERTY; PROVIDING FOR DEFINITIONS;
PROVIDING VARIANCE MECHANISM FOR CURE OF NON-
CONFORMITIES; PROVIDING FOR EXPEDITED
PREUMINARY REVIEW; REPLACING PROVISIONS OF
SECTION 33~35(E) OF METROPOLITAN DADE COUNTY
ZONING CODE CONCERNING THE SAME SUBJECT
MATTER; PROVIDING FOR SEVERABIMTY; PROVIDING
FOR AN EFFECTIVE DATE.
WHEREAS, the City Council desires to adopt a policy to deal with land use non-
conformities (the "Non-Conformities") which are created by the acquisition of pdvate
property for transportation facilities or other public purposes by governmental entities (the
"Governmental Acquisitions"), so as to provide a means to cure Non-Conformities, mitigate
the impact of Governmental Acquisitions upon continued operations of businesses, and
reduce the expenditure of public funds for severance damages and other costs of
Governmental Acquisitions, while preserving traffic and pedestrian safety and enhancing
the aesthetic characteristics of the City.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY
OF AVENTURA, FLORIDA, AS FOLLOWS:
Section 1. Intent~ The purpose of this Ordinance is to provide a
mechanism for the City to grant variances from the requirements of Chapter 33, "Zoning", of
the County Code, as made applicable to the City pursuant to the provisions of Section 8.03
of the City Charter and Ordinance No. 97-15 of the City, in those situations in which private
Ordinance No. 97-
Page 2
property has been subjected to the eminent domain process either through acquisition by
formal eminent domain proceedings or negotiation, as a viable and fair means of mitigating
adverse impact to such property as a result of the acquisition process, and to allow the
continued use of property in a manner similar to its pre-acquisition condition. By providing
a method for the Acquiring Authority and/or property owner to obtain a determination of the
remaining allowable uses of the property, the cost of acquisitions of real property needed
for public facility improvements may be reduced.
Section 2. Definitions. The following terms shall have the meaning indicated herein,
when used in this Ordinance.
(a) Acquirin.q Authority - means the governmental entity proposing to acquire
private property for public transportation or other public purposes pursuant to
eminent domain proceedings or pursuant to negotiation in lieu of or under
threat of the power of eminent domain. Acquiring Authorities include, but are
not limited to, the City, the County, the FDOT or successor entity.
(b) City - means the City of Aventura.
(c) County - means Metropolitan Dade County.
(d) Cure - means a variance granted pursuant to this Ordinance which
authorizes the continued use and enjoyment of private property, as a lawful
use, subsequent to the creation of a Non-Conformity by an Acquiring
Authority
Ordinance No. 97-
Page 3
(e) FDOT - means the Florida Department of Transportation or successor entity.
(f) Non-Conformity - means the failure of a lot, parcel, structure or use to comply
with the requirements of the Zoning Code including, but not limited to, motor
vehicle parking, landscaping, setbacks, lot size or other criteria, which failure
is caused or increased by acquisition of private property by an Acquiring
Authority.
(g) Zoning Code - means the City's Zoning Code as provided by the City Charter
Section 8.03 and Ordinance 97-15.
Section 3. Structures, Lot Size and Land Use Made Ille.qal as a Result of
Governmental Acquisition.. In the event that an Acquiring Authority acquires private
property for a public transportation facility or other public purpose or facility and the
acquisition results in the increase of or the creation of a Non-Conformity, such private
property shall constitute an illegal non-conforming use unless a variance is granted in
accordance with this Ordinance.
Section 4. Authority to Apply for Variance. The Acquiring Authority and/or the
property owner are each hereby granted the authority to apply for a variance from the
Zoning Code to cure Non-Conformities, pursuant to this Ordinance. Application may be
made prior to or after the creation of the Non-Conformity.
Section 5. Authority to Grant Variances. The City Council shall have the authority
to grant variances to Cure Non-Conformities pursuant to this Ordinance.
Ordinance No. 97-
Page 4
Section 6. Standard for Grant or Denial of Variance; Conditions.
(1) Existing lots, parcels, structures or uses which become or will become Non-
Conforming or increase in Non-Conformity as a result of governmental acquisition by an
Acquiring Authority, and constitute a deviation from the standards of the Zoning Code, may
be granted a variance by the City Council, provided a determination is made by the City
Council, after public hearing, thet:
A. The requested vadance will not adversely affect visual, safety,
aesthetic or environmental characteristics of the community; and
B. The requested variance will not adversely affect the safety of
pedestrians or the safe operation of motor vehicles.
C. The requested variance will not cause motor vehicle parking
shortages which adversely impact the community.
D. The requested variance will not encourage or promote the
continuation of existing uses of the property which have been or will
be rendered unfeasible or impractical due to the impacts of the
acquisition and/or construction of the roadway or other public facility
including, but not limited to, aesthetic, visual, noise, dust, vibration,
safety, land use compatibility and environmental impacts.
(2) The Council may impose conditions upon any variance granted so as to assure
compliance with the above listed criteria.
altcm=t!v~ Cur~s m:y b~ =pprc':cd, ',;~;th =pprcpd~t~ conditJcns.
(3) Alternative plans submitted by the Acquiring Authority and/or propart¥ owner
may all be approved, with appropriate conditions. The Council shall require conformance
with whichever approved plan is implemented,
Ordinance No. 97-
Page 5
.Section 7. Status of Lots, Parcels, Structures or Uses After Grantin,q of a Variance.
The granting of a variance pursuant to Section 6 of this Ordinance shall serve to Cure the
Non-Conformity, subject to implementation of the variance in accordance with the specific
approval granted and in accordance with any conditions imposed upon the grant of such
variance.
Section 8. Procedure for Application for Variance.
(1) The Acquiring Authority and/or property owner may apply in writing to the City
Manager or his designee for a variance pursuant to Section 4 of this Ordinance. The
application may request alternative Cures. The applicable fee established for review and
processing of the application shall be submitted with the application.
(2) If an application for a variance is submitted by the Acquiring Authority, the
property owner shall be notified via certified mail, return receipt requested, of the
application by the City Manager or his designee.
(3) If an application for a variance is submitted by the property, owner, the
Acquiring Authority shall be notified via certified mail, return receipt requested, of the
application by the City Manager or his designee.
If the Acquiring Authority desires to submit an application for a Cure in addition to
the plan proposed by the property owner, it shall do so within fifteen days of such
notification, so that the applications of both the property owner and Acquiring Authority may
be considered at the same time. If such application is not timely submitted by the Acquiring
Authority, the application shall not be heard by the City Council unless the Council finds
5
Ordinance No. 97-
Page 6
.qood cause for the delay by the Acquirin,q Authority.
(3~_) Hearings before the City Council shall be conducted in accordance with
Ordinance No. 96-09, which provides the procedure for quasi judicial hearings. Public
notice shall be provided in accordance with Ordinance No. 97-15.
(4_5) Within fourteen (14) days of the determination of the variance application by the
City Council, the City Manager or his designee will notify the Acquiring Authority and the
property owner via certified mail, return receipt requested, of the final determination.
Section 9. Expedited Review Preliminary Decision.
(1) The Acquiring Authority or property owner may request, and the City Council
may grant an expedited review of an application in those situations in which aR-a~Aaal
CC ............ ~ r ........... ~' ~r'~' '-t ......................... ·
ant4e, ipatedand-the primary purpose of the application is to facilitate the property acquisition
crtc ...... '--;*;'"'~_.v s3.:~mncc '~ ...... .... ~..,,"o by providin_a input eady in the Acquirin,q Authority's
appraisal process.
(2) Under an expedited review, the application may be advanced for placement
on a Council agenda and any determination made by the Council shall be preliminary and
non-binding
(3) Thereafter, the applicant may request the application to be processed for final
binding consideration pursuant to Section 8 above.
(3~_) The application fee for an expedited review shall be the same as the fee for a
regular variance application under this Ordinance.
Ordinance No. 97-
Page 7
Section 10. Code Violations.
(1) The provisions of this Ordinance shall not be interpreted to allow for the
continued existence of building or safety code violations that are determined to be an
immediate threat to the public health, safety or welfare.
(2) The appropriate building officials and inspectors of the City are hereby
authorized to take any all necessary steps to enforce all applicable building and safety
codes even though the subject property is part of a pending governmental acquisition.
Section 11. Judicial Review. Decisions of the City Council under this Ordinance
shall .be subject to judicial review pursuant to Petition for Writ of Certiorari in accordance
with the Florida Rules of Appellate Procedure, as provided by law.
Section 12. Severability. The provisions of this Ordinance are declared to be
severable and if any section, sentence, clause or phrase of this Ordinance shall for any
reason be held to be invalid or unconstitutional, such decision shall not affect the validity of
the remaining sections, sentences, clauses, and phrases of this Ordinance but they shall
remain in effect, it being the legislative intent that this Ordinance shall stand
notwithstanding the invalidity of any part.
Section 13. Inclusion in the Code. It is the intention of the City Council, and it is
hereby ordained that the provisions of this Ordinance shall become and made a part of the
Code of Aventura, Florida; that the sections of this Ordinance may be mnumbered or
relettered to accomplish such intentions; and that the word "Ordinance" shall be changed to
"Section" or other appropriate word.
Ordinance No. 97-
Page 8
Section 14. Effective Date. This Ordinance shall be effective upon adoption on
second reading.
Section 15. Replacement of Conflictin,q Provisions. Pursuant to City Charter
Section 8.03, to the fullest extent authorized by law, this Ordinance shall replace the
provisions of Section 33-35(e) of the County Code concerning non-conforming uses, solely
as pertaining to the subject matter of this Ordinance.
The foregoing Ordinance was offered by Councilmember Beskin, who moved its
adoption on first reading. The motion was seconded by Councilmember Cohen, and upon
being put to a vote, the vote was as follows:
Councilmember Jay R. Beskin
Councilmember Arthur Berger
Counoilmember Ken Cohen
Councilmember Harry Holzberg
Councilmember Patricia Rogers-Libert
Vice-Mayor Jeffrey M. Perlow
Mayor Arthur I, Snyder
yes
yes
yes
yes
yes
yes
absent
The foregoing Ordinance was offered by Councilmember
adoption on second reading. The motion was seconded by Councilmember
, who moved its
, and
upon being put to a vote, the vote was as follows:
Councilmember Jay R. Beskin
Councilmember Arthur Berger
Councilmember Ken Cohen
Councilmember Harry Hol7_berg
Councilmember Patricia Rogers-Libert
Vice-Mayor Jeffrey M. Pertow
Mayor Arthur I. Snyder
8
Ordinance No. 97-
Page 9
PASSED AND ADOPTED on first reading this 5th day of August, 1997.
PASSED AND ADOPTED on second reading this 2r~ day of September, 1997.
ATTEST:
ARTHURI. SNYDER, MAYOR
TERESA M. SMITH, CMC
CITY CLERK
APPROVED AS TO FORM AND
LEGAL SUFFICIENCY:
CITY A'I-FORNEY
9
FLORIDA DEPARTMENT OF TRANSPORTATION
I//~I'LY IU: Legal UHlce
Room6219
._---"x~'~ 1000 N.W. 111 Avenue
Miami, Florida 33172
Tel: (305) 470-5435
Fax: (305) 470-5552
August 13, 1997
David M. Wolpin, Esq.
Weiss Serota & Helfman, P.A.
Suite 420
Miami, Florida 33133
SENT VIA TELECOPIER TO:
(305) 854-2323
Ordinance Concerning Non-Conformities Created By Governmental Acquisition of Private
Property (the "proposed Ordinance")
Dear David:
Per Mr. Helfman's suggestion at the August 5th City Council Meeting, I am providing comments
on behalf of the Department of Transportation ("Department") to the City of Aventura's
proposed ordinance concerning non-conformities created by governmental acquisition of private
property (the "proposed Ordinance"). We are pleased that the proposed Ordinance is geared to
address our major concern, by providing standing to the Department to obtain binding site plan
approval from the City, regarding private properties from which we will be acquiring the parcels
for our upcoming Biscayne Boulevard widening. In the absence of such an ordinance, we face
great uncertainty in determining the compensation to be paid to property owners for the parcels
acquired.
If the Department is unable to settle the property owner's compensation, then the matter proceeds
to litigation. The property owner is entitled to a twelve person jury trial on the issue of
compensation. The Department pays all reasonable fees and costs associated with the litigation,
including but not limited to the fees of the owner's appraisers, accountants, planners, engineers,
and attorneys. Typically, the owner will claim that the property is severely damaged, because the
governing zoning authority will require that the property be brought into strict compliance with
the zoning code. Strict compliance with the code could mean that building structures would have
to be removed to restore the required building setback, or that parking would have to be
sacrificed to restore the full width of a required landscape buffer. Such strict application of the
code could unnecessarily destroy the utility ora property as improved. The owner is not at risk in
taking such an extreme position at trial, because he is free to collect the verdict amount, and to
subsequently request variances, and implement a cure similar to that proposed by the
Department. Thus, if an owner litigates the case under a scenario that there will be no variances,
and subsequently obtains variances, he will receive a windfall, at the expense of the taxpayers.
Under current law (See Broward County v. Patel, 641 So.2d 40 (Fla. 1994)), without standing to
seek a variance, the Department's only defense to such exorbitant damage claims is to present
AHF
OFF~CE OF THE
CITY MANAGER
David M. Wolpin, Esq.
August 13, 1997
Page 2.
evidence of the probability that variances would be granted. This is done through the testimony
of planning experts, who arrive at an opinion by researching the historical outcome of similar
variance requests before the applicable zoning authority. The owners' attorneys counter with
hired experts who opine that there is not a probability of a variance. In addition, members of the
zoning authority are often called upon by both sides to testify in deposition and at trial regarding
the probability ora variance. The waste of taxpayer dollars associated with developing such
testimony could be avoided by providing a vehicle whereby the matter can be decided by
the zoning authority prior to trial, i.e. by providing standing to the Department.
The current process is also inadequate, because it forces the parties to go to trial with uncertainty
regarding whether a variance will be granted. The uncertainty is even greater within the City of
Aventura, because the available history of variances is very limited, due to the recency of its
incorporation as a city. Affording the Department standing to obtain binding site plan
approval from the City regarding proposed redesigns of the properties affected, eliminates
that uncertainty. This could be a benefit for the property owner as well as the Department.
Furthermore, we believe that allowing us standing to have the variance issue decided prior to trial
would result in tremendous savings in taxpayer dollars, because it would reduce our exposure to
pay unrealistic damages, and because it would promote settlement of claims, thereby greatly
reducing our overall liability for litigation fees and costs unnecessarily incurred by the owners and
by the Department. These savings would ensure the continued viability of the Department's
road improvement projects, to the benefit of the public.
I have received a copy ora letter to you from Judith A. Burke, Esq, from the law firm of Shutts &
Bowen LLP, with comments regarding the proposed Ordinance. She states that her major
concern relates to the timing for submission of the various cure plans by the acquiring authority
and by the property owner. She wants to require that the acquiring authority present its proposed
plan concurrently with the owner. Although, such a limitation would not be an unsurmountable
impediment to our objectives, I believe that it is an unnecessary obstacle and that the justifications
given for imposing the limitation are unfounded for the reasons detailed below.
First, Ms. Burke suggests that a property owner should have the right to rely upon the City's
approval in making its financial commitments to implement the cure. Ms. Burke appears to ~vant
to make the City Council the ultimate arbiter of full compensation in eminent domain. Under our
system of justice, this issue is to be decided by the jury. Furthermore, eminent domain trials have
statutory precedence over other civil actions (See F.S. §73.071), which enables a property owner
to go to trial expeditiously, if necessary.
Ms. Burke's stated objection is that the acquiring authority should not be able to obtain a
variance, after the owner has an approved variance. The crux of her argument, however, goes to
whether there has been implementation of a plan, not merely approval of a plan. The issue of
whether it is unfair for the acquiring authority to propose an alternative cure, after the owner has
David M. Wolpin, Esq.
August 13, 1997
Page 3.
implemented a cure, should be decided by the jury based upon the facts. For example, the jury
would be able to consider whether the owner was aware of the potential alternative, prior to the
implementation of his own cure, or the jury may elect to frame its award in light of the acquiring
authority's cure, but providing an additional award to the owner for reimbursement of the
amounts already expended.
Furthermore, contrary to Ms. Burke's second argument, there is no reason that the review of the
acquiring authority's alternative cure plan would ever delay the approval of the owner's proposed
plan. Under the system, as proposed, the two plans should be reviewed on their own merit, and
conceivably each should obtain approval, if acceptable to the City. The City would not be called
upon to decide which plan is the better plan, but rather it would merely decide whether the
variances requested should be granted under the standards provided by the zoning code. Toward
this end, we believe that the language of Section 6(3) of the proposed Ordinance, should he
further clarified so that there will be no ambiguity as to the Council's ability to approve multiple
site plans. We suggest that the currently proposed language be replaced with the following:
Alternative plans submitted by the Acquiring Authority and/or property owner may be
approved, with appropriate conditions. The Council shall require conformance with
whichever approved plan is implemented.
The acquiring authority and the property owner would be able to go to trial, each with its own
approved plan, and the jury would decide the compensation due to the owner, based upon the
plan that it finds will make the owner whole. The approval or denial of the Department's
proposed plan should be based upon objective standards set by the City, and applied
evenhandedly. Such approval or denial should not depend upon whether the owner is proposing
an alternative plan requiring less variances, the demolition of existing improvements and
potentially, the replacement of the existing improvements with construction of the Taj Mahal at
the expense of the taxpayers.
Ms. Burke's third argument in favor of consolidating the review of the two plans is that a
hardship will be created for the property owner, if he must hire counsel to represent him at two
separate variance application hearings. However, this is nonsensical, because all reasonable fees
and costs incurred by the property owner, in connection with the acquisition of his property, are
paid for by the acquiring authority. In other words, the Department foots the bill for the litany of
experts and attorneys hired by the property owners from the inception of the acquisition process
through the final settlement or trial. Therefore, the claim of hardship on this basis is completely
misleading.
Additionally, Ms. Burke claims that multiple hearings ~vill create hardship for interested property
owners who wish to voice their concerns regarding a specific cure, and that two hearings on the
exact same issue adds complexity to the process. The fallacy of this reasoning is that the two
hearings should not be on the exact same issue. The two plans must be reviewed, and approved,
on their own merit. Ifa neighboring property owner only wishes to speak to one of the plans, it
may not be more inconvenient to have the two proposals reviewed separately. Furthermore,
David M. Wolpin, Esq.
August 13, 1997
pace 4.
concurrent review of the two plans, may create confusion instead of simplification, because the
public comments are likely to be directed to a comparison of the two plans, rather than to the
individual worth of each proposal. For example, in evaluating a request for a building setback
variance allowing a building to remain with a 15 foot setback in lieu of a required 20 foot setback,
it should be granted or denied on its own merit, and it should be irrelevant that the owner could
be proposing an alternative cure requiring demolition and complete reconstruction of the
property. The hearing should not become a public vote as to which plan the Department should
pay for. This would unfairly permit property owners to trample the Department's right to a jury
trial and would further invite a hearing on the compensation issue at the zoning hearing. The
litigants would be forced to "compete for site plan approval" in a biased forum, comprised of
neighbors and friends motivated by their allegiance to the property owner and by their desire to
personally benefit by obtaining redevelopment of their neighboring properties at the expense of
the taxpayers.
It must be understood and emphasized that the City's approval of the Department's
proposed cure does not in any way prevent the property owner from ultimately
implementing his own cure.
Ms. Burke's final comment relates to Section 9 of the Ordinance. We also believe that this
provision needs to be further defined and clarified.
I thank you for your time, and I look forward to further dialogue with you on this matter. I
would appreciate if you provide me copies of all correspondence received regarding the proposed
Ordinance.
Sincerely,
Alicia Trujitlo
Assistant General Counsel
Jose Abreu, District Secretary for FDOT District Six
John Martinez, District Director of Production for FDOT District Six
D. Michael Schloss, District General Counsel for FDOT District Six
Eric Soroka, Aventura City Manager (Fax: 305466-8919)
Jaye M. Epstein, Aventura Community Development Director (Fax: 305-466-8949)
SHUTTS & BOWEN LLP
August 4, 1997
~IA TELKCOPV ~8S4-Z32..i)
David M. Wotpin,
Weiss Semta& Hdfrna~ P.A.
2665 South Bayshote Drive
Suite 420
Miami, Florida 33133
RE:
De~r Dav~d:
Ordinance Ceeceming Non-Cenformiliea Created er increaaed By
Gevornmeetal Aequisifiafl of Private Proper~y (the "Ordinm~e")
Thank you for taking the time to disct~s the above.capboned Ordinance w~ me ~s
afternoon. Rs you know, ! represent the owners of the Loehmann's PashJon Island shopping center,
whxch is subject to a fiRe. e. (1:5) ~ ts~g a]ona Biscayne 9ouleva;d. ~a that ~rmection, we are
anxious to see ~bat the City's posidun r~dmg ~e approve] of cure plans be clarkqe~ Howe~er, we
have a cumber ot'quest~em and concerns regardm$ the language of the OtdL,~qce.
Our main concern involves the ~mia& of the venous secltons of the Ordinance. On its face,
the Ordinance does not require that I~e acquJhng authm~y and/or the proper~ owner submit an
ahem~ve cure pla~ wkhm a specLfied period of tram. For example, it* the pmparW ovmer files an
~plicafion with the City :rot a vattaace and that va~.ance is 8ranted by the City Council, that should
be the end of it. The acquL~g .utho~ty ,itodd not have the fi~. at some unsped~ed time in the
future, m present a different cute plan. Once a cure plat is approved by ~ City Council the prope~:y
owner should have a fight to rely ,pen that appnwai and m~e she 5aaaci~ commitments aeceemy
to begin' implamantatioa of the cure. The Kq,,irbt8 authority shouJd be req,.ired to submit an
altema~ve cure plan. if any, at such time a~ to enable that plan to be ~nsidere~ by the City Council
together w~ the property owner's applica~or~
This process could be e,ily accomplish~ by requi~tg the ~ar p~e~ o~ ~ ~e
~q~g ~fi~ of ~ ~plic~ fil~ in a m~ s~ m ~m ~w ~o~ m s~n a.(2).
Thereat, ~e ~q~g ~ohw ~uld have a pe~od of ~me (~n ~ ~d s~m m be
appmp~ate in ~s ~e) m ~ich m pre~ ~ dt~ c~e, It c~ ~d ~ ~ ~p
for t~ ~quifing au~o~ ~e it ~r~ hu ~ of ~ cme pl~ ~1~ ~d rely m be
sub~e~ Un~ ~s sc~, ~e p~ ~er ~d nm be ~ dd~ ~ ~ quit for
~prov~ md dl issum could ~ r~lv~ ~ ~ ~ time.
David M. Welphi, F~sq.
August 4, 19~7
Pa~e 2
As you and I discussed, this cla~cation would allcviarc a 8ood deal of the hardship which
the property owner misht be subjected to tmde~ this Ordinance. As it is, the property owce~ has to
hke counsel to represent them at the hearin§ on their valance application. If required to hire
counsel to represent them at an additional hennas requested by the acquiring authority, the hardship
is increasad substantially. Further, those intm*ested property owners who w~sh to voice their
concern9 regardln8 the specie cure ~r a piece of property would bc required to attend two separate
hearings rather than jt~st one, Lastly, ! understand this Ordinance was originally proposed as a
simptification of the process, ffthe City Council is required to hold two sepa~te hearings mt the
exact same issue, the process is not simplified.
As we also discussed, my client and I are concerned about what effect this Ordinance will
have on our existing variance application. Art application for the Loehmann's Fashion bland
property was 5led a number of weeks ago and is hopefully scheduled £or bearln& in September. We
want to bc sure that our application is not delayed by virtue of this Ordinance and, it'this Ordinance
is adopted, that the acqu~n8 authority would he required to submit their cure plan, it'any, in time
for that September hearing.
Our last con~n bwolves Section 9 of the Ordinance, which relates to the expedited review.
! read tl~s section a number of times and was unable to dctermble the type o:r situation to which this
section was meant m apply. ! would assume that the acquiring authority, or the prope~7 owner,
would not he permitted to utilize such an expedited review if in flit an application under Section
4 of the Ordinance had been filed by the other party. If that is correct, I think it would be helpful
to clar~ that Fact in the Ordinance.
.4~a~n, thank you for taken8 the time to discuss this Ordinance with me and I look forward
to seeing you at tomorrow's hearing,
Judith ,L Budge
cc: Erik Se;oka, City Mate&er (via telecopy)
Jaye Epstein, Community Development Director (via te.]ecopy)
]Vd'. Robert Melzer (via telecopy)
Margaret A. golando, Esq.
,allan M. Rubb, Esq
CITY OF AVENTURA
OFFICE OF THE CITY MANAGER
MEMORANDUM
TO:
FROM:
DATE:
SUBJECT:
City Council _~,~
Eric M. Soroka, Ci~lV~na~er
August 27, 1997 ~
Founders Day 1997 Proposed Program
/O~A
RECOMMENDATION
It is recommended that the City Council adopt a motion to approve the 1997 Founders
Day program in order to retain the entertainment, logistics, and caterer and to start to
advertise the event to our residents.
BACKGROUND
The City Council originally established the second weekend in November to celebrate
Founders Day. However, November 8 is the same day as Bloomingdales' Grand
Opening. Therefore, we have moved the Founders Day celebration to November 15,
1997. This year's program concept originated from Recreation and Cultural Advisory
Board Chair Ruth Demming. The Board thereafter developed this program at the June
meeting. In order to determine menu and entertainment preferences, forty-two surveys
were mailed to Board members and the Condominium Social Club President's Forum.
Subsequently, a program was developed based upon the data received. Attached
hereto are the survey results for your review. Although the Recreation and Cultural
Advisory Board did not have a quorum to formally vote at their last meeting on August
7, the program was thoroughly discussed and the three Board members attending
signified their approval for the program.
PROGRAM
The following represents the proposed schedule:
Date:
Time:
Location:
Saturday, November 15, 1997
Noon - 4 PM
West Country Club Drive, between Mall entrance and Turnberry Country
Club Service Entrance. The stage will be located on the east swale facing
west.
Activities:
Free Picnic: (one time through the served buffet line) 12:15 - 3 PM.
Free Live Entertainment: (All acts are pending availability and City
Council approval). We have engaged "Rendition", a local band to open
for "The Original Drifters" to head our 50's/60's concert, as well as a
performance from the "Little Theatre of the Performing Arts", an Aventura
children's theatre group. Games, activities, and crafts complete our
entertainment for the afternoon.
We plan to have a City informational booth. Please see the attached
proposed program schedule for details.
BUDGET AND SPONSORSHIP The overall cost is projected to be over $28,000. To
date, Bloomingdales and Turnberry Associates have offered sponsorship of $2,000 and
$4,000, respectively. We are working to secure more corporate sponsorships that
could defray up to $20,000 of the cost of this event. Please see the attached budget for
more details. We plan to publicize this event extensively in the community.
If you need any additional information, please contact me.
EMS/aca
Attach ment
CCO359-97
City of Aventura Community Services Department
1997 Founders Day Celebration Survey Results
Music/Entertainment Responses Percentages
50's-60's 19 70%
Jazz 2 7%
Latin 4 15%
Broadway I 4%
Rock I 4%
Total 27 100%
Menu Responses Percentages
Picnic Style 27 93%
Finger Sandwiches 2 7%
Total 29 100%
Time Responses Percentages
Noon-3PM 7 24%
1-4 PM 13 45%
3-6 PM 9 31%
Total 29 100%
Proposed 1997 Founders Day Program
Saturday, November 15, 1997
12:00 - 4:00PM
West Country Club Drive
Proposed Program
(Based on 500 people)
1. Food
Complimentary Picnic Style Served Buffet
(First time only through buffet line)
$6,000
2. Entertainment
(Pending availability)
"Rendition" and "The Original Drifters"
50's and 60's music
"Little Theater of the Performing Arts"
Children's Theatre
$6,000
3. Activities, Games~ and Crafts $1,800
A. Games available: Chess, Checkers, Chinese
Checkers, Backgammon, Scrabble, Dominoes,
Monopoly, Jenga, Trivial Pursiut, Win, Lose or
Draw, Outburst, Scattergories, Connect Four,
Pictionary, Clue, Taboo and Gender Bender. Also
available: frisbees, Hula hoops, trac ball sets, and
other games. BINGO will be played during the music
break with prizes awarded. Bocce ball and
horseshoes will also be set up.
"Cool Crafts" for guests to make and take home.
Crafts include bead necklaces and bracelets; sand
designs with line-art designs; button art for guests to
color and create.
C. Clown
4. Lo.qistics:
A.
B.
C.
D.
E.
Tent, table, and chair rental
Sound and Stage equipment rental
Sanitation & clean up
Photographer
Marketing, advertising & signage
$4,000
$6,000
$2,500
$ 500
$1,500
Logistics Sub-total
Total Proposed Program Budget:
$15,500
$28,300
Ci~ of Aventura
Foundem Day1997
Proposed Budget
Projected Revenues
Sponsorships $20,000
Total Revenues $20,000
Projected Expenditures
Activities $1,800
Advertising and Signage 1,500
Entertainment 6,000
Food 6,000
Photographer 500
Sanitation 2,500
Stage and Sound System Rental 6,000
Tent, chair, and table rental 4,000
Total Expenditures $28,300
Net Cost to City $8,300
AVENTURA MALL
CITY OF AVENTURA
OFFICE OF THE CITY COUNCIL
MEMORANDUM
TO:
FROM:
DATE:
SUBJECT:
Eric M. Soroka, City Manager
Jay R. Beskin, Councilmembe~"~
August 28, 1997
Live-Aboard Vessel Legislation
Over the past months, we have received information regarding the process to establish
a City Ordinance prohibiting live-aboard vessels, and the fact is only 15 live-aboard
vessels exist in the City
Based on the small number of live-aboard vessels, I do not feel we need legislation to
prohibit live-aboards in the City. However, I do feel we should address the sewage and
garbage disposal issues to protect our waterways.
Therefore, please place on the agenda a motion to authorize the City Attorney to
prepare an Ordinance addressing the environmental issues and a registration process.
JRB/tms
cc: City Council
CITY OF AVENTURA
OFFICE OF THE CITY MANAGER
MEMORANDUM
TO:
FROM:
DATE:
SUBJECT:
Eric M. Soroka, Ci
July 8, 1997
Live-Aboard Vessel Legislation
Attached hereto, is an outline prepared by the City Attorney's Office of the proposed
provisions for a City Ordinance prohibiting live-aboard vessels. Also enclosed is
correspondence from Don Brodey outlining his concerns regarding the adoption of such
an Ordinance prohibiting live-aboards.
Based on the concerns expressed by Mr. Brodey, possible compliance difficulties and
the limited success the City of Fort Lauderdale has had in this area, the Council may
wish to move cautiously on this matter. Perhaps we should deal with the sewage and
garbage disposal issues initially before addressing the prohibition of live-aboards.
Please review and advise what action should be pursued next.
EMS/aca
Enclosure
cc;
Teresa M. Smith, City Clerk (w/ enclosure)
Richard J. Weiss, City Attorney (w/ enclosure)
CCO325-97
June
Mr. Eric M. Soroka
City Manager
City of Aventura
2999 Northeast 191s~ Street
suite 500
Aventura, Florida 33180
Re: pro~hltiom of Live-Aboard Vessels by Citv of
Aventura (the ,,Cit¥"~
Dear Eric:
Pursuant to City Council direction at the June 3, 1997 City
Council meeting, this shall serve as an outline of the proposed
provisions for a City ordinance prohibiting live-aboard vessels.
Once this outline is approved by the City Council, we may proceed
to prepare an ordinance reflecting the ordinance provisions
outlined.
We would envision that the chief components of the! proposed
ordinance would be as follows:
1. The ordinance would be enacted as a zoning measure
prohibi~in9 live-aboard veszels within the City.
2. Those live-aboard vessels which are currently tawiully
moored or anchored within the City would be treated as lawful non-
conforming uses for zoning purposes, subject to the amdrtization
provision outlined in paragraph 3, below.
3. Lawful non-conforming live-aboard vessels ~:would be
subject to amortization, termination of lawful non-conforming
status and removal within a period of two years from adoption of
the ordinance.
4. In accordance with Section 327.02(16), Fla. Stat., the
ordinance would define a live-aboard vessel as follows:
Mr. Eric Soroka
June 6, 1997
Page 2
(1). Any vessel used solely as a residence;
(2). Any vessel represented as a place of business, a
professional or other commercial enterprise, or a legal residence.
· ce with Section 327.02(16), Fla. St~t-, the
5. In accorda~ ' - -~at commercial fishing boats are
ordinance would recogn~z~ u~ ~'-- aboard vessels.
excluded from the regulation upon ~v~-
6. The ordinance would contain legislative findings
recognizing that the purposes of the ordinance are as follows:
(1) To avoid potential hazards to navigation;i
To reduce hazards to public health caused by waste
(2] ....... s from live-aboard vessels;
water and ot~er ~lscnu£~=
(3) To prevent visual obstructions and the intrusions
which live-aboard vessels represent and which interfere with the
tranquility otherwise enjoyed by adjacent residential property.
7. - ormin live-
period, lawfully non ~n~ ~g.-~ .=~.tv recnlirements xncludxng
sttbject to compliance Wlt~ nea~un~ ..... ~ --
the following:
(1) utilization of approved marine sanitatioh device;
(2) inspection for other sanitary, safety and
habitability requirementS, including trash disposal.
· acquired would ~e tied
to a specific live-anoar~ v= .... a loss of such
would not allow replacement o~ the vessel, without
sta~uS-
9. The variance mechanism provided may be based upon a
strict ,,unnecessary hardship" standard rather than the more
lenient, ,compatibility" standard-
10. If desired by the City Council and not an impairment to
the validity of the ordinance, an exemption would be created for
those live-aboard vessels occupied by a professional ~rew which
maintain and live-aboard the vemsel so as to be available for
occasional u~e of ~he non-resident owner. To justify such
exemption, it would have to be shown that such use does not
Mr. Eric Soroka
Jtu-le ~, 1997
pa~e 3
circumvent or offend the purposes of the ordinance which are
recited in paragraph 6 above.
Please review and advise if you have any comments on any of
the above outlined components of the proposed ordinance or
a~ything further is required at this time.
Very tl-~ly yourS,
David M. Wolpin
DMW/dj k
cc: Richard Jay weiss, Esquire
Teresa M. Smith, CiSy Clerk
Jaye Epm~ein, Community Development Director
FPO~ : LILY BROODY LILY R~AL ~C~qT~ PHONE NO. : 5~S9321956 Jun. ~] 1997 ~8129A~4 P2
IqtONE (305) 932-8110
Donald Brodey
4000 Island Blvd., ApL 906
Aventura, Florida 33160
June 19,1997
FAX (305) 932-1956
Mr. Eric M. Soroka
City of Aventura
Government Center
Aventura
Dear Sir:
I would like to give to you the following reformation on the future "live aboard"
ordinance and have this general material for your conslderatinn.
There are marinas at Waterways, Williams Island, Mystic Point, Maule Lake
Two Islands and East Country Club Drive plus other mar/nas to be opened
at Williams Island and Hidden Bay.
b)
Williams Island has approXmaately 3 boats identified as "live aboard" and there
would be no major dollar impact in the passing ora prohibition by the ordinance
However, this may not be true of Tumbeny where there is a substantial number
of boats classified as "live aboards" for 5-6 months of a year and this, I believe,
would have a financial impact on the marina and on the general area.
c)
The definition of"live aboard" has a variety of possibilities; i.e. 3 or 6 months,
or yearly. Teclmically, "live aboard" boats are a problem no matter what the
term of time is involved.
d) The size of the boat is also a key factor as well as the number of peoplc revolved,
family, friends, relatives, etc.
e) The wording of "non-residents" and "residents" m dealing with the "live-aboard"
question is a problem due to the mobility of the boats, which spend the winter
in Florida and the summers m the North.
f) It should also be noted that boat slips are being sold to boat owners with land and
water rights (Williams Island and in some areas, slips may be leased on a long-
-' term basis; i.e.-99 years, which will require tax bills to be generated by Dade
County, all on an individual basis).
FROM : LILY BRODE',' LILY REAL r '~TE PHOt4E NO. : .5059321q56 .Tun. 20 1997 08:2~AM P3
g) The most urgent part of the by-law would appear to me to deal with the question
of sewage and garbage disposal, beanng in mind that there is little or no ins-
pection of boats or hcensmg generally. It is a simple matter to discharge sewage
overboard.
h) There is also some question as to the pumping-out stations m the marinas and
the lack of use of them by the boating population, although, this is a regulation
covered by the Coast Guard.
i)
There should be some mechanisms for dock side inspections, without prior
notice. Unfortunately, with notice, the owners will lock off their thru-hall
flings to conform with regulations, when they have knowledge of the
inspections.
j) I am informed that Fort Laudexdale has tried for the past 30 years to deal with
the '"live aboard" problem with limited success.
k) The following is a regulation that deals with inspections derived from the
rules of Williams Island.
"Each vessel must have sanitary equipment on board as is required by all
state, federal and local laws and regulations. No vessel shall be deemed in
compliance with this section if the equipment is not fully functional or if the
system has been altered or by-passed contrary to such requirements. The
City of Aventura shall have the fight to board any vessel to inspect for such
compliance with this secfon. The owner shall be responsible for pumping
out and/or discharging all sewage contained in the holding tanks when
needed. In no event shall an owner discharge or pump over the side any
sewage, offs or any type of refuse into the water, except as prescribed by
rules and laws of the State of Florida, the U.S. Coast Guard and any other
governing body."
I hope this information will be of assistance to you, as there are several areas
revolved in the subject of"sleep aboards".
With b~_st person~gards,
THE CITY OF AVENTURA
OFFICE OF THE CITY MANAGER
TO:
FROM:
DATE:
SUBJECT:
Eric M. Soroka, City
Amy Erez, Adminis'
July 28, 1997
aRANDUM
nt to the City Manage~
Marinas located within the Corporate Limits of the City of Aventura
As per your request, attached please find a listing of the various marinas located within
the city. I have noted the number of boat slips as well as the number of "live-aboards."
There are some marinas which are not listed and a few in the process of being created
so I will update the information as soon as it becomes available.
MARINAS
Located within the City of Aventura
Marina Boat Slips Live-Aboard
Ft. Apache Marina 0
3025 NE 188~ Street t70 (Lease Prohibits)
(305) 933-8853
Hidden Bay Marina 0
3370 NE 190th Street 67 (Lease Prohibits)
(305) 918-9988
Hi-Lift Marina 180
2890 NE 187~ Street Storage Wracks Not Applicable
(305) 931-2550
Mystic Pointe Marina 0
3575 Mystic Pointe Drive 120 (Lease Prohibits)
(305) 933-7036
Summit Aventura Marina 34 0
3100 NE 190~ Street (Residents only) (Lease Prohibits)
(305) 933-3375
Turnberry Isle Marina
t9755 Turnberry Way 117 Approximately 10%
(305) 932-6200
Waterways Marina 0
3601 NE 207~h Street 99 (Lease Prohibits)
(305) 935-4295
Williams Island Marina
7100 Island Boulevard 99 4
(305) 937-7813
(305) 936-5713 Fax
MIAMI DALLY BUSINESS REVIEW
Published Daily except Saturday, Sunday and
Legal Hciidays
Miami, Dada County, Florida.
STATE OF FLORIDA
COUNTY OF DADE:
Before the undersigned authority personally appeared
Octelma v. Ferbeyre, who on oath says that she is the
Supervisor, Legal Notices of the Miami Dally Business
Review f/k/a Miami Review, a daily (except Saturday, Sunday
and Legal Holidays) newspapar, publlsl~d at Miami In Dada
County, Florida; that the attached copy of advertisement,
being a Legal Advertisement of Notice in the matter of
CITY OF AVENTURA
PUBLIC NOTICE OF PROPOSED ORDINANCES
SEPTEMBER 2, 1997
in the ....................... ~[~.~ ~ ~. ...................................... Court,
was published in said newspaper In the Issues of
Aug 11, 1997
Affiant further says that the said Miami Dally Business
Review is a newspaper published at Miami in said Dada
County, Florida, and that the said newspaper has heretofore
been continuously published in said Dada County, Florida,
each day (except Saturday, Sunday and Legal Holidays) and
has been entered as second class mail matter at the post
office in Miami in said Dasa County, Florida, for a period of
one year next preceding the first publication of the attached
copy of ;dvertisament; and affiant further says that she has
neitherter pam~ne;paid r promised any person, firm or corporation
~of se In is advertisei.~~n In the said
........ d of .......................................... 9 ...... ,
Om,ma V.
CITY OF AVENTUR
PUBLIC NOTICE OF PROI
ORDINANCES
NOTICE IS HEREBY GIVEN that on Tuesday
SEPTEMBER. 1997. at a meeting of the City Ct
Aventura. to be held at 7:00 p.m. in the Council N
Columbia Aventura Hospital and Medical Cent;
Boulevard. Suite 101, Aventura, Florida, the City ¢
the adoption of the following Ordinances on secon¢
AN ORDINANCE OF THE CITY OF AVENT[
ESTABLISHING A CODE OF ETHICS:
:'OSED
the 2ND DAY OF
uncil of the City of
~ing Room at the
r. 21110 Biscayne
ouncil witl consider
reading, entitled:
RA, FLORIDA;
~ROVIDING A
PENALTY; PROVIDING FOR SEVERABILITY. INCLUSION
IN THE CODE. AND AN EFFECTIVE DATE.
AN ORDINANCE OF THE CITY OF AVENTURA, FLORIDA,
ADOPTING ORDINANCE CONCERNING ZONING; PROVID-
NG FOR ADOPTION OF POLICY AND PROCEDURE CON-
CERNING NON-CONFORMITiES CREATED BY GOVERN-
MENTAL ACQUISITION OF PRIVATE PROPERTY: PRO-
ViDiNG FOR DEFINITIONS: PROVIDING VARIANCE ME-
CHANISM FOR CURE OF NON-CONFORMITIES; PROVID-
ING FOR EXPEDITED PRELIMINARY REVIEW; REPLAC-
ING PROVISIONS OF SECTION 33-35(E) OF METROPOLI-
TAN DADE COUNTY ZONING CODE CONCERNING THE-
SAME SUBJECT MA'Fi'ER; PROVIDING FOR SEVERABIL-
lTV: PROVIDING FOR AN EFFECTIVE DATE.
AN ORDINANCE OF THE CITY OF AVENTURA. FLORIDA,
REPEALING ORDINANCE NO. 96-15: PROVIDING THE
TERMS AND CONDITIONS FOR THE OPERATION OF
CABLE TELEVISION SYSTEMS AND THE APPLICATION.
PROCEDURES ~ND REQUIREMENTS~RELATING TC THE
GRANT OF FRANCHISES FOR THE CONSTRUCTION.
INSTALLATION. OPERATION AND MAINTENANCE OF
CABLE TELEVISION SYSTEMS, EQUIPMENT AND FACI-
LITIES IN. ON. ACROSS, ABOVE OR THAT IN ANY MAN-
NER WHATSOEVER USE THE CITY'S PUBLIC RIGHTS OF
WAYS AND TO ENSURE THAT USE OF THE CF;'Y'S
PUBLIC RIGHTS OF WAYS IS iN THE PUBLIC INTEREST
AND IN CONFORMANCE WITH APPLICABLE LAW; PRO-
VIDING FOR CONFLICTS: PROVIDING FOR SEVERA-
BILITY: PROVIDING A SAVINGS CLAUSE AND EFFECTIVE
DATE~
The proposed Ordinances may be nsDected by the 15ublic at the Of-
fice'of the City Clerk, 2999 N.E. 191st Street, Suit~ 500, Aventura,
Florida. Interested parties may appear at the Pub~ Headng and be
heard with respect to the proposed Ordinance. Any person wishing to
address the City Council on any item at this Public He;qing s asked to
register with the City Clerk prior to that item being nea~
n accordance w h the Americans with Disabi[ities,~ct of 1990, all
oe sons who are d sab ed and who need special a~mmodations to
3articipate in this proceeding because of that disab~lii~ should contact
zne Office of the City Clerk, 466-8901, not later than.two business days
or,or to such proceedings
If a person decides to appeal any decision made by the City Council
with respect to any matter considered at a meeting~ or neanng, that
oerson wi[ 3eed a record of the proceedings an~. for such purcose.
may need to ensure that a verbatim record of me proceedings is
made, which racom includes the testimony and evidence uoon which
the appeal is to be based.
Dated August 11, 1997.
Teresa M. Smith. CMC, City Clerk
8/11 97-4-081122M
~USLISHEO OAmV TheMiami Herald PublishingCompany
MIAMI-DADE-FLORIDA
STATE OF FLORIDA
COUNTY OF DADE
Before the undersigned authority personally
appeared:
JANEY ANDERSON
who on oath says that he/she is"
CUSTODIAN OF RECORDS
of The Miami Herald, a daily newspaper published at
Miami in Dade County, Florida; that the attached
copy of advertisement was published in said
newspaper in the issues of:
Affiant further says that the said The Miami Herald
is a newspaper published at Miami, in the said Dade
County, Florida and that the said newspaper has
heretofore been continuously published in said Dade
County, Florida each day and has been entered as
second class mail matter at 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 he has neither paid nor promised any
person, firm or corporation any discount, rebate,
commission or refund for the purpose of securing
this advertisement for publication in the said
newspapers(s).
My.Commission
Expires: __October 17, 2001
()ne t terald Plaza, Miami, Florida 33132-1693 (305) 350 21 I1
CITY OF AVENTURA
PUBLIC.NOTICE
NOTICE OF ADOPTION OF BUILDING MORATORIUM
IN THE HOSPITAL AND MARINA AREAS DESCRIBED BELOW
The City of Aventura proposes to adopt the following Ordinance:
AN ORDINANCE OF THE CITY OF AVENTURA,
FLORIDA, (THE "CITY"), PROVIDING FOR A BUILDING
MORATORIUM ON ISSUANCE OF DEVELOPMENT
ORDERS AND DEVELOPMENT PERMITS WITHIN THE
MARINA AREA, WHICH INCLUDES ALL INDUSTRIALLY
ZONED (lU-1 AND lU-2) PROPERTY, (EXCEPT FOR:
THAT CERTAIN INDUSTRIALLY ZONED PROPERTY
LOCATED NORTH OF NE 187TH STREET, WEST OF NE
29TH AVENUE, SOUTH OF NE 191ST STREET, AND
EAST OF BISCAYNE BOULEVARD, AND THE
INDUSTRIALLY ZONED PORTIONS OF TRACTS "D"
AND "E" OF THE PLAT OF BISCAYNE COMMERCIAL
[PB 143, P38]), AS DEPICTED ON EXHIBIT "A", AND
THE HOSPITAL AREA, WHICH INCLUDES THE AREA
BOUNDED ON THE NORTH BY THE NORTHERN LINE
OF THE CITY LIMITS, ON THE SOUTH BY NE 203RD
STREET/IVES DAIRY ROAD, ON THE WEST BY THE
WESTERN UNE OF THE CITY LIMITS, AND ON TI'~E
EAST BY BISCAYNE BOU,L,,E,VA, RD RIGHT.OF-WAY, AS
DEPICTED ON EXHIBIT B , WITHIN THE CITY OF
AVENTURA; PROVIDING FOR SEVERABIMTY;
PROVIDING FOR REPLACEMENT OF MORATORIA
PROVISIONS OF SECTION 33-319, ET SEQ. OF THE
METROPOLITAN DADE COUNTY CODE FOR THE
SPECIFIC MATTERS ADDRESSED HEREIN.
A Public Hearing on the Ordinance will be held on Tuesday,
September 2, 1997, at
7 p.m; at the Columbia Aventura Medical Center, located at
21110 Biscayne Boulevard, Suite 101, Aventura, Fiodda. The
proposed Ordinance may be inspected by the public at the Office
of the City Clerk, 2999 N.E. 191st Street, Suite 500, Aventura,
Florida. Interested parties ~may appear at the Public Hearing and
be heard with respect to the proposed Ordinance. Any person
wishing to address the City Coun.cil on any ~tem at this Public
Hearing is asked to register with the City Clerk prior to that item
being heard.
In accordance with the Americans with Disabilities Act of 1990,
all persons who are disabled and who need special
accommodations to participate in this proceeding because of
that disability should contact the Office of the City Clerk, 466-
8901, not later than two business days prior to such proceedings.
If a person decides to appeal any decision made by the City
Council with respect to any matter considered at a meeting or
hearing, that person will need a record of the proceedings and,
for such purpose, may need to ensure that a verbatim record of
the proceedings is made, which record includes the testimony
and evidence upon which the appeal is to be based.
Dated this 22nd day of August, 1997. Teresa M. Smith CMC
City Clerk