09-29-1999 CC Workshop Agenda2999 NE 191~ Street Suite 500 Avo~tura. FL 33180
City Commission
Workshop Meeting
September 29,1999 9:00 A.M.
Executive Conference Room
2.
3.
4.
$.
6.
7.
8.
AGENDA
Library Update
Town Center Meeting Update
Town Center/Comprehensive Plan Concepts
Government Center Update
Telecommunications Ordinance
Termite Report
Dade League Representative (Commissioner Berger)
Florida Municipal Insurance Trust Fund
(Vice Mayor Rogers-Libert)
9. Board Reports
lO. Selection of Vice Mayor
Next Meeting October 29, 1999 · Town Center Redevelopment Update
· Legislative Session Priorities
This meeting is open to the public. In accordance with the Americans with Disabilities Act of 1990, all persons who are disabled
and who need special acxx)mmodations to participate in this meeting because of that disability should contact the Office of the City
Clerk, 305-466-8901, not later than two days prior to such proceeding.
CITY OF AVENTURA
OFFICE OF THE CITY MANAGER
MEMORANDUM
TO:
FROM:
DATE:
SUBJECT:
City Commissio C. ~M~~
Eric M. Soroka,
August 23, 1999
Library Update
BACKGROUND
Over the past several months, since I last repoded to the City' Commission, I have met
with the Assistant to the County Manager and the Library Director to discuss the
transfer of the County library.
As you are aware, the County staff is not supportive of the transfer. Initially, based on
Commissioner Gwen Margolis' assistance, the County proposed a possible lease
arrangement with the City that would still maintain the library in the County's system.
However, several events have occurred since that meeting which has made the County
reconsider the lease arrangement. The significant events that have an impact on our
negotiations are as follows:
The City of Sunny Isles Beach has agreed to construct a 10,000 square
foot library in their new government center if the County will operate the
facility.
The Village of Key Biscayne is in the process of entering into an
Agreement with the County to pay the cost of the County extending the
operating hours at their branch library.
In light of these events and the County Manager's concern about splitting up the
Regional Library System, at our last meeting, the County outlined a plan of action to
improve services at the Northeast Subregional Library and address the City's previous
concerns. The proposal is as follows:
The County would extend operating hours on Sunday during the school
year if the City reimbursed them for the operating costs.
The Library administrative and branch staff will meet with the City
Manager to review and make adjustments to the branch's materials
budget, programming and services. Particular attention will be paid to the
establishment of a business information center and the addition of 20
computer workstations. This process will occur on an annual basis.
The Library will work with the City to establish a citizens advisory group
appointed by the City Commission to work with the City Manager and
branch staff in improving and maintaining quality services.
Based on a consultant's review of the Northeast Library branch, about
$1,250,000 is needed in renovations to the facility. The County is not in a
financial position at this time to fund the improvements. However, if the
City is interested in performing the renovations, the City and County would
enter into an interlocal agreement whereby the City would pay the
construction costs. Library staff would work with the City to identify and
apply for potential supplemental funding services for renovation, such as
state construction grants and appropriations.
The Library Department would propose to the County Commission that
the facility be re-designated the Aventura Branch Library.
The above proposal represents the most significant progress in our ongoing
negotiations with the County regarding the Library.
ALTERNATIVES
Last year, a Tri-City Municipal Library Feasibility Study was presented to the City
Commission. Since that time, Sunny Isles Beach has not decided to participate in a
municipal library. In 1999, the County net library millage collections from Aventura
residents will be $1,072,000 and about $80,000 from Golden F~each.
The 1997 Study indicated it would cost $946,717 to operate the Library at a quality
level. Proposed debt service costs to fund the acquisition of the Library and renovation
were estimated at $383,000.
A proposal to privatize the library operations in the case of the City acquiring and
operating the Library, indicated that it would cost $800,000 to $835,000 annually to
operate the facility. These costs do not include renovation or debt service costs.
As an alternative, the City and Golden Beach could acquire the County library and
operate the municipal library based on the following budget and costs:
Annual Operating Costs
Annual Debt Service Costs
Total Expenditures
Less Revenues Generated From Library Tax
Difference
Hiqh Low
947,000 $ 835,000
383,000 $ 383,000
$1,330,000 $1,218,000
($1,152,000) ($1,152,000)
$ 178,000 $ 66,000
The unfunded difference could be subsidized by the General Fund or a minor tax
increase for Library services only.
It should be pointed out that acquiring the current library from the County will not be an
easy process.
On the other hand, if the City decided to remain in the County Library system and fund
only the capital renovations, the General Fund could subsidize the cost of $1,250,000
over a period of time.
RECOMMENDATION
Until the City finalizes plans relating to the Cultural Center and the proposed Town
Center, both which represent alternative library sites, I would not recommend that we
acquire the Library at this time. However, I would recommend that we press the County
to implement the improvements they have outlined and pursue extending the operating
hours. The renovations should be delayed or phased in to coincide with the City's
stance on acquiring the facility.
EMS/aca
cc01070-99
CITY OF AVENTURA
OFFICE OF THE CITY MANAGER
MEMORANDUM
TO:
FROM:
DATE:
SUBJECT:
City Commission
Eric M. Soroka, City ,MEnage~
September 24, 1999
Town Center Meeting - Update
As per the direction of the City Commission, on September 24, 1999, a meeting was
held with the various property owners involved in the preposed Town Center re-
development area.
The following attended the meeting:
- Owner - Jaffe Office Building
- Property Manager Representative - Loehmann's Plaza
- Owner- Concord Plaza
A representative from our Redevelopment Consultant also attended the meeting.
We briefed the participants on the redevelopment concept and plans, and discussed
various components of the idea and a possible feasibility study.
The representatives of the Jaffe Office Building and Concord Plaza expressed interest
in the concept and commended the City for pursuing the project.
The representative for Loehmann's Plaza indicated they would review the concept with
the owners and report back to the City in about two weeks. He was very conservative
and guarded. He indicated that business has improved recently with the signing of three
new leases. He also believed that the problem was exaggerated by numerous leases
expiring at one time.
Another meeting will be scheduled once we hear back from Loehmann's Shopping
Plaza.
EMS/aca
CC0802-99
CITY OF AVENTURA
OFFICE OFTHEClTY MANAGER
MEMORANDUM
TO:
FROM:
DATE:
SUBJECT:
City CommissiO~c. ,~na~
Eric M. Soroka,
September 28, 1999
Town Center (TC2) District Comprehensive Plan Concepts
BACKGROUND
The Western portion of Thunder Alley currently has a land use designation of Town
Center Marine District (TC2). This district allows marine industrial uses along with
mixed residential office and retail uses allowed in the Town Center District.
Recently, a developer advised the City that they intend to purchase approximately 17
contiguous acres along Thunder Alley. The following properties would be purchased:
- Fort Apache
- Thunder Alley Marina
- Cigarette Boat
- Curry Industrial
- Bobby Moore
On the west ten (10) area of the property, they intent to apply for a land use
amendment to the Comprehensive Plan to utilize the property for Multi-Family High
Density Residential (RMF4). The proposed area would be utilized for 550 condominium
units in two towers at 35 floors in height and 41 townhomes adjacent to the water. The
remaining property would be utilized for mixed-use hotel adult living facility.
Based on the numerous discussions the Commission has held on Comprehensive Plan
and Land Use issues along Thunder Alley, I have placed this matter on the Workshop
Agenda.
In addition, it is important for the Commission to provide direction to staff as to what
alternative land uses would be considered for the area.
Any revisions to the Comprehensive Plan Land Use designations would require a
Comprehensive Plan amendment and two public hearings.
BRAULIO L, BAEZ
JOSEPH A. BELISLE
iLA L. FELD
ALLISON K. HIFT
MATTHEW I. LEIBOWITZ
LEIBOWITZ & ASSOCIATES, P.A.
SUITE 1450
SUNTRUST INTERNATIONAL CENTER
ONE SOUTHEAST THIRD AVENUE
MiAMI~ FLORIDA 33131-1715
TELEPHONE (305) 530-~32~
TELECOP~ER (305) 530-9417
E-mail Broadlaw@aol.com
July 8, 1999
VIA FEDERAL EXPRESS
Mr. Eric M. Soroka
City Manager
City of Aventura
Government Center
2999 NE 191st Street, Suite 500
Aventura, FL 33180
Re: Telecommunications Ordinance Draft for City of Aventura
Dear Mr. Soroka:
Enclosed please find a revised draft of a Telecommunications Ordinance for the City of
Aventura. A redline copy has been provided for your convenience, reflecting changes to the
Ordinance since the last draft dated June 7% 1999. The revised draft reflects changes based on
ongoing discussions and comments from BellSouth, TCG and other providers. Some additional
substantive changes have been made in accordance with recent case law affecting local franchising
authorities in the area of telecommunications.
Most notably, language has been inserted in the sections dealing with the granting and/or
transfers of franchises, in order to establish more definite standards for consideration by the City,
thereby reducing the City's vulnerability to a challenge that the franchising process is arbitrary in
any way.
In addition, a definition of"recurring local services" has been provided in place of the
terms "basic and non-basic" local service, to better clarify what types of services are to be
included in local service revenues.
With this draft, the City will have addressed as many of the concerns of the providers as is
appropriate, given the current state of the law. We would suggest a conference call with the City
staffin order to go over any minor changes that may be necessary prior to the placement on the
Letter to Mr. Soroka
July 8, 1999
Page 2
City Commission's agenda for first reading. Please contact me at your earliest convenience in
order to discuss this matter.
Sincerely,
Braulio L. Baez
cc: David Wolpin, Esq.
Ila L. Feld, Esq.
LEIIIOWITZ & ASSOCIATES, P.A,
SUITE 1450, ONE SOUTHEAST THIRD AVENUE, MIAMI~ FLORIDA 3313J-1715 * TELEPHONE (305) 530-1322
DRAFT-July 7, 1999
CITY OF AVENTURA, FLORIDA
TELECOMMUNICATIONS ORDINANCE
Table of Contents
Section
Section 1. Title ......................................................... 3
Section 2. Definitions .................................................... 3
Section 3. Grant of Franchise .............................................. 7
Section 4. Terms and Limits of Franchise ..................................... 9
Section 5. Franchise Fee Payments .......................................... 9
Section 6. Review and Inspection of Books and Records ........................ 13
Section 7. Underground Installation; Relocation .............................. 16
Section 8. Use of Rights-Of-Way .......................................... 18
Section 9. Written Acceptance by the Franchisee .............................. 20
Section 10. Compliance with Other Laws; Police Power ........................ 20
Section 11. Transfer of Control; Sale or Assignment ........................... 21
Section 12. Insurance; Surety; Indemnification ................................ 22
Section 13. Security Fund ................................................ 25
Section 14. Construction Bond ............................................ 27
Section 15. Enforcement Remedies ......................................... 29
Section 16. Revocation or Termination of Franchise ........................... 31
±
DRAFT-July 7, 1999
Section 17. Renewal of Franchise .......................................... 33
Section ! 8. Municipal Ownership of Telecommunications Facility ................ 35
Section 19. Force Majeure ................................................ 36
Section 20. Repeal of Conflicting Ordinances ................................. 37
Section 21. Savings ..................................................... 37
Section 22. Severability ................................................. 37
Section 23. Reservation of Rights .......................................... 37
Section 24. Effective Date ............................................... 38
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DRAFT- July 7, 1999
ORDINANCE NO. 1999
AN ORDINANCE OF THE CITY OF AVENTURA, FLORIDA,
PROVIDING THE TERMS AND CONDITIONS FOR THE
ERECTING, CONSTRUCTING, MAINTAINING AND
OPERATING OF A TELECOMMUNICATIONS FACILITY IN,
ON, ACROSS, ABOVE OR 1N ANY MANNER WHATSOEVER
USING THE CITY'S PUBLIC RIGHTS OF WAY FOR THE
PROVISION OF TELECOMMUNICATIONS SERVICE;
PROVIDING ASSURANCES THAT THE CITY'S PUBLIC
RIGHTS OF WAY ARE USED IN THE PUBLIC iNTEREST;
PROVIDING FOR CONFORMANCE WITH APPLICABLE LAW;
PROVIDING FOR MUNICIPAL OWNERSHIP OF A
TELECOMMUNICATIONS SYSTEM; PROVIDING A SAVINGS
CLAUSE; PROVIDING FOR CODIFICATION; PROVIDING FOR
REPEAL OF ORDINANCES IN CONFLICT; PROVIDiNG AN
EFFECTIVE DATE.
WHEREAS, the Commission of the City of Aventura has determined it is in the public
interest of the City to permit the placement of one (1) or more Telecommunications Systems or
Facilities in the Public Rights-Of-Way of the City; and
WHEREAS, it is the intent of the Commission to encourage competition by providing access
to the Public Rights-Of-Way to the City on a nondiscriminatory basis; and
WHEREAS, Section 364.0361, Florida Statutes, requires that a local government treat
Telecommunications Companies in a nondiscriminatory manner when exercising the authority to
grant franchises to Telecommunications Companies;
WHEREAS, it is intention of the Commission to recognize the interests of
E:\1999kAventura~ROW OrdinanceXAgreemcntsXDraft ordinmme 0707 wpd ~-
DRAFT- July 7, 1999
Telecommunications Service Providers to install their facilities in Public Rights-Of-Way as a means
of promoting the use of such technology £or the good of the people of the City;
WHEREAS, it is the intent of the Commission to exercise the City's authority over the access
of Telecommunications Service Providers and their occupancy of the Public Rights-Of-Way;
WHEREAS, these policies are in complete accord with both the letter and the spirit of the
Communications Act of 1934, as amended;
WHEREAS, the enactment of the Telecommunications Act of 1996, amendments to
applicable statutes of the State of Florida and developments in telecommunications technology and
services have resulted in an increase in the number of persons certified by the Florida Public Service
Commission to provide Telecommunications Services; and
WHEREAS, the City has received applications for the occupation of the Public Rights-Of-
Way for the purpose of providing Telecommunications Services;
WHEREAS, various Telecommunications Service Providers have requested the right to
occupy the Public Rights-Of-Way of the City for the purpose of installing, maintaining and operating
Telecommunications Systems or Facilities; and
WHEREAS, it is the City's intent to treat each Telecommunications Service Provider on a
competitively neutral and nondiscriminatory basis in granting telecommunications franchises for use
of the City's Public Rights-Of-Way; and
WHEREAS, it is the intent of the City to exercise its authority to impose fees and adopt
reasonable rules and regulations to the fullest extent allowed by federal and state law.
E:\1999LAventuraXROW Ordinance~Agxeements~Drafl ordinm~ce 0707 wpd 2
DRAFT- July 7, 1999
BE IT ORDAiNED BY THE COMMISSION OF THE CITY OF Aventura, FLORIDA, AS
FOLLOWS:
Section 1. Title.
This Ordinance shall be known and may be cited as the City of Aventura
Telecommunications Ordinance.
Section 2. Definitions.
For the purpose of this Ordinance, the following terms, phrases, words and 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 fraaachise agreement that might be
granted hereunder shall be given the meaning set forth in the Communications Act of 1934, 47
U.S.C. § 151 et seq., and as that Act may hereinafter be amended (collectively the "Communications
Act"), and, if not defined therein, as defined by Florida Statute; and, if not defined therein, be
construed to mean the common and ordinary meaning.
(a) "Affiliate" means any person which directly or indirectly owns or controls any part
of a Franchisee, any person which a Grantee or Franchisee directly or indirectly, in whole or in part,
owns or controls, or any person under common ownership or control with a Franchisee.
(b) "City" means the City of Aventura, an incorporated municipality of the State of
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DRAFT- July 7, 1999
Florida, in its present form or in any later reorganized, consolidated, or enlarged form.
(c) "Franchise" means the permission granted by the City to a Franchisee in a Franchise
Agreement to construct, maintain, operate and use Telecommunications Facilities in the Public
Pdghts-O£-Way within the Franchise Area. 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
in the Public Rights-Of-Way.
(d) "Franchise 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.
(e) "Franchisee" means any person granted a franchise pursuant to this Ordinance who
has entered into a Franchise Agreement with the City.
(f) "Grantor" shall mean the City of Aventura
(g) . "Gross Receipts" shall mean all cash, credits or property of any kind or nature
without deductions, reported as revenue items to the Franchisee's audited income statements
arising from, or attributable to the sale, lease, rental, barter or exchange of Telecommunications
Service and equipment by Franchisee within the Franchise Area or in any way derived from the
operation of its Telecommunications Facility including, but not limited to, any interconnection
between the Franchisee's System and any system whatsoever. Unless otherwise expressly
prohibited by applicable law, the sum shall be the minimum basis for computing the gross
receipts on Recurring Local Service Revenues imposed pursuant to any Franchise granted in
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accordance with this Ordinance and the Cio reserves the right to amend the definition contained
herein as permitted by applicable law.
(h) ."Law" means any local, state or federal legislative, judicial or administrative
order, certificate, decision, statute, constitution, Ordinance, resolution, regulation, rule, tariff,
guideline or other requirements, as amended, now in effect or subsequently enacted or issued
including, but not limited to, the Communications Act of 1934, 47 U.S.C. § 151 et seq. as
amended by the Telecommunications Act of 1996, Pub L. No. 104-104 § 101(a), 110 Stat. 70
codified at 47 U.S.C., and all orders, rules, tariffs, guidelines and regulations issued by the
Federal Communications Commission or the governing state authority pursuant thereto.
(i) "Person" means any individual, corporation, partnership, association, joint
venture, organization or legal entity of any kind, and any lawful trustee, successor, assignee,
transferee or personal representative thereof, but shall not mean the City.
"PSC" means the Florida Public Service Commission.
(k) "Public Rights-Of-Way" means the surface, the airspace above the surface and
the area below the surface of any public street, highway, road, boulevard, concourse, driveway,
fi-eeway, thoroughfare, parkway, sidewalk, bridge, tunnel, park, waterway, dock, bulkhead,
wharf, pier, court, lane, path, alley, way, drive, circle, easement, public place, or any other
property in which the City holds any kind of property interest or over which the City exercises
any Ope o£1awful control. "Public Rights-Of-Way" shall not include any real or personal City
property and shall not include City buildings, fixtures, and other structures or improvements,
regardless of whether they are situated in the Public Rights-Of-Way.
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DRAFT- July 7, 1999
(1) "Recurring Local Service Revenues" means revenues from the monthly
recurring charges for local service, including but not limited to (1) recurring basic area revenues
derived from the provision of flat-rated basic area services, (2) recurring optional extended area
revenues derived from the provision of optional extended area services, (3) local private line
revenues derived from local services which provide communication between specific locations,
either through dedicated circuits, private switching arrangements, predefined transmission paths,
whether virtual or physical, or any other method of providing such services; and (4) other local
service revenues from the provision of secondary features that are integrated with the
telecommunications network, including, without limitation, services such as call forwarding, call
waiting, and touchtone line service. Except as provided herein, revenues from all recurring local
services provided by a Franchisee over a Telecommunications Facility or System in the Public
Right-of-Way shall constitute recurring local service revenues subject to this Ordinance.
Recurring local service revenues do not include revenues from (1) toll charges for the
transmission of voice, data, video, or other information; (2) carrier access charges and customer
or subscriber access charges, or both as defined in Section 203.12(1), Florida Statutes, or other
charges authorized or required by the Federal Communications Commission; (3) interstate
service; (4) ancillary services such as directory, advertising, directory assistance, detailed billing
services, inside wire maintenance plans, bad check charges, and non-recurring charges for
installation, move, changes or termination services; (5) cellular mobile telephone or
telecommunications services; or specialized mobile telephone or telecommunications service; or
specialized mobile telephone or telecommunications services; or specialized mobile radio, or
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DR.4FT- July 7, 1999
pagers or paging service, or related ancillary services; (6) public telephone charges collected on
site; (7) typewriter or computer exchange services as defined in Section 203.012(6), Florida
Statutes; or (8) local message rated (message, unit or time basis) and minutes of use charges in
excess of the minimum fiat-rated charges for similar services.
(m) "Telecommunications Company" means every corporation, partnership, and
person and their lessees, trustees, or receivers appointed by any court whatsoever, and every
political subdivision, offering two-way telecommunications service to the public for hire within
the State o£Florida by the use ora Telecommunications Facility. The term
"Telecommunications Company" does not include an entity which provides a
Telecommunications Facility exclusively to a certificated telecommunications company, a
commercial mobile radio service provider, a facsimile transmission service, a private computer
data network company not offering service to the public for hire, or a cable television company
providing cable service as defined in 47 U.S.C.S. 522. The term "Telecommunications
Company" does not include an open video system.
(n) "Telecommunications Service" shall include, without limitation, local sec'vice,
toll service as defined in § 203.012(7), telegram or telegraph service, teletypewriter service,
private communication service as defined in § 203.012(4), or any other provision o£two-way
communications services to the public for hire. "Telecommunications Service", as
contemplated herein, does not include the provision of service via an open video system, which
shall require separate authorizations from the City.
(o) "Telecommunications Service Provider" shall refer to any person providing
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DRAFT- July 7, 1999
Telecommunications Services, as defined herein, through the use of a Telecommunications
Facility.
(p) "Telecommunications Facilities", "Facilities" or "Systems" means cables,
conduits, converters, splice boxes, cabinets, handholds, manholes, vaults, equipment, drains,
surface location markers, appurtenances, and related facilities located, to be located, used, or to
be used, by the telecommunications provider in the Public Rights-Of-Way of the City and used or
useful for the transmission of Telecommunications Services.
Section 3. Grant of Franchise.
(a) Unless otherwise authorized by applicable law, it shall be unlawful for any person
to construct, maintain or operate a Telecommunications System or Facility upon, along, under
and over the Public Rights-Of-Way without having obtained permission in the form of a
Franchise from the City Commission pursuant to this Ordinance or other such Ordinance of the
City as may be applicable.
(b) Application for a Franchise
(1) In order to obtain an initial or renewal franchise, a Telecommunications Service
Provider must apply for a franchise. The application must contain the following information, and
such information as the City may from time to time require.
a. Identity of the applicant; the names of the person or persons authorized to
act on behalf of the applicant with respect to the application, and the Franchise when granted; the
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DRAFT- July 7, 1999
persons who exercise working control over the applicant;
b. A proposal £or constxuction o£ a telecommunications £acility if any, that
sets ~brth at least the following:
1. For purposes of determining the fee structure applicable to the
Applicant under Section 337.401, Florida Statutes, a description of the services that are to be
provided over the Facility.
2. The location of proposed Facility and facility design, including a
description of the miles of plant to be installed, where it is to be located, and the size of Facilities
and equipment that will be located in, on, over, or above the Rights-Of-Way.
3. A description of the manner in which the System will be installed,
the time required to construct the System, and the expected effect on Right-Of-Way usage,
[including information on the ability o£ the Rights-Of-Way to accommodate the proposed
System], including, as appropriate given the System proposed, an estimate of the availability of
space in existing conduits and an estimate of the cost of any necessary rearrangement of existing
Facilities. Such plan shall include the timetable for construction for each phase of the project,
and the areas of the City which will be affected.
4. In the case of a Telecommunications Service Provider converting
its facilities and seeking a new franchise to offer other services, a description, where appropriate,
of how services will be converted from existing Facilities to new Facilities, and what will be
done with existing Facilities.
(c) The City may request such additional information as it finds reasonably necessary
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DI~4FT- July 7, 1999
to review an application, and require such modifications to the system proposed as may be
necessary in the exercise of the City's authority to manage its Rights-of-way. This section does
not authorize the City to exercise authority it does not otherwise have under applicable law. Once
the information required by the City has been provided, the application shall be promptly
reviewed, and shall be granted if the City finds that:
(1) The applicant accepts the modifications required by the City to its proposed
system or facility, if any.
(2) The applicant enters into a franchise agreement with the City, under which
applicant shall agree to comply with the City's reasonable regulations of its Rights-of-Way,
including but not limited to the fees for use of those Rights-of-Way. The Applicant shall comply
with any conditions precedent to the effectiveness of the Franchise Agreement.
(d) Upon execntion and City adoption of a Franchise Agreement, a
Telecommunications Service Provider is granted a non-exclusive Franchise solely to construct,
maintain, and operate Telecommunications Facilities necessary for the provision of
Telecommunications Service upon, along, under, and over the Public Rights-Of-Way of thc City.
For any other use o£the Telecommunications Facility, a Telecommunications Service Provider
must obtain authorization from the City, unless the City is expressly prohibited by applicable law
from requiring such authorization.
(¢) Franchisee shall assist the City in ensuring, to fullest extent allowed by law, that
all entities using the Franchise¢'s Telecommunications Facilities or leasing capacity on the
Franchisee's Telecommunications Facilities have obtained the necessary franchises, as required
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DRAFT- July 7, 1999
by this Ordinance, if applicable. In compliance with this subsection, Franchiser shall, upon
request of the City, furnish the City with the names of those persons using the Franchisee's
facilities or leasing capacity on the Franchiser's Telecommunications Facilities.
(f) Any Franchise Agreement executed pursuant to this Ordinance will incorporate by
reference all the terms and conditions of this Ordinance. A Franchise granted hereunder shall not
be construed to convey title, equitable or legal, in the Rights-Of-Way of the City. The Grant of
rights under a franchise is only the personal right to occupy the Public Rights-Of-Way, for the
purposes and for the period stated therein.
(g) Failure to comply with this Section shall constitute a material violation of the
Ordinance and shall subject the Franchisee to the appropriate Enforcement Remedies including
revocation of the Franchise.
Section 4. Terms and Limits of Franchise.
The Grantor may grant a non-exclusive Franchise for a period not to exceed ten (10)
years. For purposes of this Ordinance, the Franchise Area shall constitute the entire area within
the legal boundaries of the City and such other areas as may hereinafter be annexed or
incorporated by the City during the term of the Franchise.
Section 5. Franchise Fee Payments.
(a) In consideration for the rights, privileges and permission granted herein, a
Telecommunications Company shall pay to the City annually a sum equal to one percent (1%) of
Gross Receipts of the Franchisee on Recurring Local Service Revenues for services provided
within the corporate limits of the City. Included within such one percent (1%) maximum fee or
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consideration are all taxes, licenses, fees, in-kind contributions accepted pursuant to Florida
Statute 337.401 (5), and other impositions except ad valorem taxes and amounts for assessments
for special banefits, such as sidewalks, street parings, and similar improvements, and
occupational license taxes levied or imposed by the City upon a Franchisee. In the event that
applicable law currently permits or is amended to permit the City to collect a Franchise fee
higher than 1%, or permits the City to calculate the Franchise fee on revenues not specified
herein, the Franchisee agrees to automatically increase its Franchise fee payments to the City to
that higher amount on the effective date of such law. All of the aforestated payments shall be
made to the City quarterly, with such payments made within thirty (30) days following the end of
each calendar quarter. Payments received after the 31st day shall be subject to interest and late
charges of 1 ½% per month.
(b) In the event a Telecommunications Company provides Telecommunications
Services defined in F.S. 203.012 (7), as a condition for granting permission to occupy or use the
Public Rights-Of-Way of the City, the Franchisee shall pay to the City annually no less than five
hundred dollars ($500) per linear mile of any cable, fiber optic, or other pathway that makes
physical use of the municipal Rights-Of-Way. Any fee or other consideration imposed by this
subsection in excess of Five Hundred Dollars ($500) per linear mile shall be applied in a
nondiscriminatory manner and shall not exceed the sum of:
(1) Costs directly related to the inconvenience or impairment solely caused by the
disturbance of the municipal Rights-Of-Way;
(2) The reasonable cost of the regulatory activity of the municipality; and
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(3) The proportionate share of cost of land for such street, alley or other public way
attributable to utilization of the Public Rights-Of-Way by a Telecommunications Service
Provider.
The fee or other consideration imposed pursuant to this subsection shall not apply in any
manner to any Telecommunications Company which provides Telecommunications Services as
defined in F.S. 203.012 (3) for any services provided by such Telecommunications Company.
(c) In the event a person provides telecommunications services other than as defined
in F.S. 203.012(3) or (7), as a condition for granting permission to occupy or use the Public
Rights-Of-Way of the City, the Franchisee shall pay to the City annually no less than five percent
(5%) of gross revenues of the Franchisee for services provided within the corporate limits of the
City unless otherwise prohibited by law, in which case, Franchisee shall pay the maximum fee
allowed by law. For purposes of this Subsection, "gross revenues" shall mean all cash credits or
property of any kind or nature without deductions, reported as revenue items to the Franchisee's
audited income statements, arising from, or attributable to the sale, rental, lease, barter or
exchange of Telecommunications Services and equipment by Franchisee within the Franchise
Area or in any way derived from the operation of its Telecommunications Facility including, but
not limited to, any interconnection between the Franchisee's Facility or System and any system
~vhatsoever. This minimum annual Franchise Fee is in addition to any other application fees,
renewal fees, transfer fees, and any state, county or City taxes or assessments. The franchise fee
specified herein is the minimum fair market value for the grant of a franchise for use of the
Public Rights-Of-Way, including all public easements, and other entitlements to use, occupy or
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traverse public property, for the purpose of operating a Telecommunications Facility.
(d) In the event that a Franchisee does not provide telecommunications services
within the corporate limits of the City, a minimum armual Franchisee Fee in the amount of five
hundred dollars ($500.00) per linear mile of any cable, fiber optic, or other pathway installed
within the City's rights-of-way shall be paid to the City on an annual basis. This minimum
annual Franchise Fee is in addition to any other application fees, renewal fees, transfer fees, and
any state, county or City taxes or assessments.
(e) Unless otherwise prohibited by federal or state law, if Franchisee makes payments
to another jurisdictiun in Florida at a higher rate or on a broader base of gross receipts during the
term(s) of agreement entered into with the City, the Franchisee agrees to pay to the City such
higher amount, effective on the date Franchisee makes such payments to another jurisdiction.
(~) Except to the extent prohibited by applicable law: (a) The franchise fee payments
to be made pursuant to this Section shall not be deemed to be in the nature ora tax; (b) Such
franchise fee payments shall be in addition to any and all taxes of a general applicability and not
applicable solely to Telecommunications Services within the City or other fees or charges which
a Franchisee shall be required to pay to the City or to any state or federal agency or authority, as
required herein or by law, all of which shall be separate and distinct obligations of a Franchisee
unless prohibited by applicable Federal, State or local law; (c) A Franchisee shall not have or
make any claim for any deduction or other credit of all or any par~ of the amount of said franchise
fee payments from or against any of said City taxes or other fees or charges of general
applicability which a Franchisee is required to pay to the City, except as required by law; and (d)
DR~FT- July 7, 1999
The franchise fee specified herein is the minimum fair market value for the grant o£a franchise
for use of the Public Rights-Of-Way, including all public easements, for the purpose of operating
a Telecommunications Facility.
(g) Except as prohibited by applicable law, in addition to the aforestated franchise
fee, a Franchisee shall reimburse the City for all reasonable costs including, but not limited to,
consultant costs, a~orney's fees, accounting fees, and engineering fees related to the grant,
modification, transfer, or renewal of any Franchise granted hereunder. Therefore, upon
submission ora request for the grant ora Franchise Agreement or the renewal ora Franchise
Agreement, Grantee shall make a non-refundable payment to the City in the amount often
thousand dollars ($10,000). The Franchisee shall pay the actual cost of these enumerated fees
which exceed ten thousand ($10,000) dollars upon invoice by the City. The purpose of this filing
fee is to defray the City's costs reasonably incurred in processing the request.
Section 6. Review and Inspection of Books and Records.
(a) The City may, at its option, upon ten (10) days notice to the Franchisee, but in no
even more often than once per year, examine the records and accounting files, and such other
books and records, if such records relate to the calculation of Franchisee fee payments or any
other payments due to the City or to proper performance of any terms o£this Franchise. The
examination of such books, accounts, records or other materials necessary for determination o£
compliance with the terms, provisions, and requirements of this Franchise shall be during regular
hours of business of the Franchisee at an office of the Franchisee located within the City. In the
event that the City, pursuant to an audit, determines that there exists a discrepancy in the amount
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DRAFT- July 7, 1999
paid and the amount owed to the City by the Franchisee in excess of 2%, Franchisee shall pay all
reasonable costs, fees and expenses o£ the audit.
(b) No later than June 30th of each year, a Franchisee shall provide the City an annual
report concerning the previous calendar year that includes at minimum the following:
(1) A financial statement, including a statement of income, and a statement of sources
of revenues. The statement shall be audited if Franchisee has audited statements performed in its
normal course of business. If not, the statement shall be certified by the Franchisee's chief
financial officer or other duly authorized financial officer of the Franchisee. The statement shall
include notes that specify all significant accounting policies and practices upon which it is based.
A summary shall be provided comparing the current year with previous years since the beginning
of the Franchise. This requirement shall not apply to TSP's making payments to the City under
Section 5(b) or (d) hereof.
(2) A copy of updated maps depicting the location of the Telecommunications
Facilities, showing areas served, locations of all trunk lines and feeder lines in the City, and an
estimate of the availability of space in conduits. Upon request by the City, such maps shall be
provided to the City in digitized form, at Franchisee's expense.
(3) If the Franchisee is a corporation, a list of officers and members of the board of
directors; the officers and members of the board of directors of any parent corporation; and if the
Franchisee or its parent corporation's stock or ownership interests are publicly traded, a copy of
its most recent annual report.
(4) If the Franchisee is a parmership, a list of the partners, including any limited
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partners, and their addresses; and if the general partner is a corporation, a list of the officers and
members of the board of directors or the corporate general partner, and the officers and directors
of any parent corporation; and where the general partner or its parent corporation's ownership
interests are publicly traded, a copy of its most recent annual report.
(5) A Franchisee shall provide the following documents to the City as received or
filed, ~vithout regard to whether the documents are filed by the Franchisee or an affiliate:
a. Annual report of the Franchisee or its parent or any Affiliate of Franchisee
which controls Franchisee and issues an annual report.
b. Any and all pleadings, petitions, applications, communications, reports
and documents (collectively refen'ed to as "filings") submitted by or on behalf of the Franchisee
to the FCC, SEC, FPSC or any other State or Federal agency, court or regulatory commission
which filings may impact the Franchisee's operation of the Franchisee's Telecommunications
System in the City or that may impact the CiD's fights or obligations under this Ordinance or the
Franchise Agreement issued pursuant to this Ordinance and any and all responses, i£ any, to the
above mentioned filings.
c. Any and all notices of hearings, deficiency, forfeiture, or documents
instituting any investigation, civil or criminal proceeding issued by any state or federal agency
regarding the Franchisee, any Affiliate of the Franchisee, the Franchisee's Telecommunications
Facilities or the Franchisee's use of Telecommunications Facilities; provided, however, that any
such notice or documents relating to an Affiliate of Franchisee need to be provided only to the
extent the same may directly affect or bear on Franchisee's operations in the City.
DRAFT- July 7, 1999
d. Any request for protection under bankruptcy laws, or any judgment related
to a declaration of bankruptcy.
e. Notwithstanding anything to the contrary, the Franchisee agrees to provide
the City, within thirty (30) days of filing or receipt of such, any document that may adversely
impact the construction, operation or maintenance of the Franchisee's Facilities or use of
Facilities.
(c) In addition, the City may, at its option, and upon reasonable notice to the
Franchisee, inspect the Franchisee's Facilities or the Facilities that the Franchisee uses in the City
to ensure the safety of its residents.
(d) The City agrees to keep any documentation, books and records of the Franchisee
confidential to the extent required under Florida Statutes.
Section 7. Underground Installation; Relocation.
(a) Franchisee may install Telecommunications Facilities above ground in areas
where existing utility facilities are above ground and shall install Telecomanunications Facilities
underground in areas where existing utility facilities are or will be installed underground.
(b) Every Telecommunications Service Provider which places or constructs
telecommunications facilities underground shall maintain appropriate participation in the
regional notification center for subsurface installations. A Franchisee shall locate all its
Telecommunications Facilities for the City at no cost to the City.
(c) Any Telecommunications Facilities heretofore or hereafter placed upon, under,
over, or along any Public Rights-of-Way that is found by the City to be unreasonably interfering
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in any way with the convenient, safe or continuous use or the maintenance, improvement,
extension or expansion, of such Public Rights-of-Way, shall, upon thirty (30) days written notice
to the Franchisee or its agent, be removed or relocated by such Franchisee at its o;vn expense
except as explicitly provided under applicable law. The City Manager, may waive or extend the
time within which a Franchisee shall remove or relocate a Telecommunications Facility, for good
cause shown.
(d) Whenever an order of the City requires such removal or change in the location of
any Telecommunications Facility from the Public Rights-of-Way, and the Franchisee thereof fails
to remove or change the same at its own expense to conform to the order within the time stated in
the notice, the City shall proceed to cause the Telecommunications Facility to be removed. The
expense thereby incurred shall be paid out of any money available therefor, and such expense
shall be charged against the owner of the Telecommunications Facility and levied and collected
and paid to the City.
(e) Whenever it shall be necessary for the City to remove or relocate any
Telecommunications Facility, the owner of the Telecommunications Facility, or the owner's
chief agent, shall be given notice of such removal or relocation and an order requiring the
payment of the costs thereof, and shall be given reasonable time, which shall not be less than
twenty (20) nor more than thirty (30) days in which to appear before the City Commission to
contest the reasonableness of the order. Should the owner or the owner's representative not
appear, the determination of the cost to the owner shall be final.
(f) A final order of the City shall constitute a lien on any property of the owner and
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may be enforced by filing an authenticated copy of the order in the office of the Clerk of the
Circuit Court of the County wherein the owner's property is located.
(g) The City retains the right and privilege to cut or move any Facilities located
within the Public Rights-Of-Way of the City, as the City Manager in his/her sole discretion may
determine to be necessary, appropriate or useful in response to any public health or safety
emergency. If circumstances permit, the municipality shall attempt to notify the Franchisee, if
known, prior to cutting or removing a Facility and shall notify the Franchisee, if known, after
cutting or removing a Facility.
(h) Upon abandomment of a Facility within the Public Rights-Of-Way of the City, the
Franchisee shall notify the City within ninety (90) days. Following receipt of such notice the City
may direct the Franchisee to remove all or any portion of the Facility if the City determines that
such removal will be in the best interest of the public health, safety and welfare. In the event that
the City does not direct the Franchisee that abandoned the Facility to remove it, by giving notice
of abandonment to the City, the abandoning Franchisee shall be deemed to consent to the
alteration or removal of all or any portion of the Facility by another utility or person.
Section 8. Use of Rights-Of-Way.
(a) Franchisee agrees at all times to comply with and abide by all applicable
provisions of the state statutes, the County Code and local laws including, but not limited to,
applicable zoning regulations not inconsistent with state and federal laws. No person shall
construct any Facility on, over, above, along, upon, under, across, or within any Public Right-of-
Way which (1) changes the location of the Facility, (2) adds a new Facility, (3) materially
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increases the amount of area or space occupied by the Facility on, over, above, along, under
across or within the Public l~ghts-Of-Way, or otherwise disrupts the Public Rights-of-way
without first filing an application with and obtaining a permit from the City therefor, except as
otherwise provided in this Ordinance. In case of the repair or maintenance of an existing facility,
the City may impose lesser requirements than those set forth herein. Unless otherwise reqaired
by the City Code, no permit shall be required for installation and maintenance of service
connections to customers' premises where there will be no disruption of the Public Rights-Of-
Way.
(b) All of Franchisee's Facilities shall be installed, located and maintained so as not to
unreasonably interfere with the use of the Public Rights-Of-Way by the traveling public and to
cause minimum interference with the rights and convenience of property owners who adjoin any
of the Public Rights-Of-Way. The City may issue such rules and regulations concerning the
installation and maintenance of a Telecommunications Facility in the Public Rights-Of-Way, as
may be consistent with the applicable Law. Such rules and regulations may include, but are not
limited to, reasonable requirements and restrictions with respect to height, width and diameter of
said Facilities.
(c) All safety practices required by applicable Law or accepted industry practices and
standards shall be used during construction, maintenance, and repair of the Telecommunications
Facilities.
(d) In the event that at any time during the term of the rights granted herein the City
shall lawfully elect to alter or change the grade of any Public Rights-Of-Way, a
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21
DRAFT- July 7, 1999
Telecommunications Provider, upon reasonable notice by the City, shall make any necessary
removals, relaying and relocations of its Telecommunications Facilities at its own expense in
accordance with applicable law.
(e) Franchisee shall obtain any and all required permits and pay any and all required
fees before commencing any construction on or otherwise disturbing any Public Rights-Of-Way
as a result of its construction or operations. Franchisee shall, at its own expense, restore such
property to as good a condition as existed prior to Franchisee's commencement of work. If such
restoration is not performed in a reasonable and satisfactory manner within thirty (30) calendar
days after the completion of construction, the City may, after prior written notice to Franchisee,
cause the repairs to be made at Franchisee's expense. A permit from the City authorizes a
Franchisee to undertake only certain activities in accordance with this Ordinance on City Rights-
of-Way, and does not create a property right or grant authority to impinge upon the rights of
others who may have an interest in the Public Rights-Of-Way.
(f) Every Telecommunications Facility located in the Public Rights-Of-Way shall be
subject to the City's periodic inspection, upon no less than three (3) days written notice to
Franchise, for compliance with this Ordinance, any Franchise Agreement, or any applicable
provisions of the City Code.
(g) Franchisee shall not place its facilities so as to interfere unreasonably with any
other person lawfully using the Public Rights-Of-Way serving the residents of the City.
(h) Franchisee shall not permit any facilities to be affixed to any poles or other
facilities owned or otherwise under the control of Franchisee that would, in any manner, effect a
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modification of said Facility including, but not limited to, increasing its height, width or depth,
notwithstanding, whether such equipment is the property of Franchisee or a third party without
prior approval of the City Manager or his/her designee. In no event shall Franchisee permit any
such modification in violafion of City zoning regulations now in effect or as may hereafter be
amended.
Section 9. Written Acceptance by the Franchisee.
A Franchisee shall, within ten (10) days prior to the effective date ora Franchise, provide
an executed acknowledgment of the binding effect of the terms and conditions of this Ordinance
and the Franchise with the City Manager in the form designated by the City. Such
acknowledgment shall be executed by a duly authorized officer of Franchisee and shall represent
the Franchise Agreement between the Franchisee and the City of Aventura.
Section 10. Compliance with Other Laws; Police Power.
Franchisee shall at all times be subject to and shall comply with all applicable federal,
state and local laws. Franchisee shall at all times be subject to all lawful exercises of the police
power of the City, to the extent not inconsistent with applicable laws.
Section 11. Transfer of Control; Sale or Assignment.
(a) Except in the case of a pro forma transfer as described in (b) below, the
Franchisee shall not sell, assign, or otherwise transfer any portion of its Facilities to another, nor
transfer any rights pursuant to a Franchise Agreement to another without the prior written
approval of the City Commission, which shall not be unreasonably withheld or denied. Requests
for transfer shall be filed in the office of the City Manager and shall include: 1) a statement that
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DRAFT-July 7, 1999
the Assignee or the Transferee has accepted this Ordinance and will operate pursuant to a
Franchise Agreement and agrees to be bound by each and every one of the terms and provisions
thereof; 2) proof that the Assignee or Transferee has met the insurance and indemnification
requirements of this Ordinance and any Franchise agreement; and 3) proof that the Assignee or
Transferee has complied with all Federal and state laws with regard to the transfer ora Certificate
of Public Convenience and Necessity. If the rights granted herein are transferred or assigned by
the Franchisee to any third party incident to a transfer, sale or assignment of the Franchisee's
Facilities, the Transferee or Assignee shall be obligated to comply with all of the terms and
conditions of this Ordinance and any applicable Franchise Agreement.
(b) An application for approval of a pro forma Transfer of a Franchise shall be
considered granted on the thirty-first (3 lSt) 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
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. A transfer shall be considered "pro forma" if it involves a Transfer to
a Person, group of Persons or business entity wholly owned or controlled by the Franchisee and
shall not result in a change in the control or ownership of the Franchisee or Franchisee's system.
(c) When considering an application for transfer of a Franchise, in addition to those
determinations set forth in Section 3, the City must also determine that:
(1) there will be no adverse effect on the City's interest in the franchise;
(2) transferee agrees to be bound by all the conditions of the franchise, and to assume
DR~FT- July 7, 1999
all the obligations of its predecessor; and
(3) any outstanding compliance and compensation issues are resolved or preserved to
the satisfaction of the City.
(d) Notwithstanding anything in this Ordinance, pledges in trust or mortgages or other
hypothecations of the assets of the Franchisee to secure the construction operation or repair of its
Telecommunications Facilities may be made without the City's prior consent hereunder, except
that no such pledge, mortgage or other hypothecation may be made if such arrangement would in
any way prevent the Franchisee or its successor from complying with the terms o£a Franchise
granted hereunder, or with this Ordinance or any provision of the City Code. Any mortgage,
pledge, lease or other encumbrance of the Telecommunications Facilities shall be subj¢ct and
subordinate to the rights of the City in this Ordinance or other applicable law.
(e) Requests for approval of a proposed transfer, sale or assignment shall be
accompanied by a payment of $5,000.00 to cover the City's administrative costs in processing
the transfer, sale or assignment.
Section 12. Insurance; Surety; Indemnification.
(a) A Franchisee shall maintain, and by its acceptance o£ 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
requirements o£ Florida law and general comprehensive liability insurance with respect to the
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construction, operation and maintenance of the Telecommunications Facilities, aaad the conduct
of Franchisee's business in the City, in the minimum amounts of:
(1) $250,000 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 orA-1 in Best's Key Rating Guide,
Property/Casualty Edition except as provided in (d) below. The City may require coverage and
amounts in excess of the above minimums 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 officers, boards, Commission, Commission members, agents and employees are
listed as additional insureds. In the event ora 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 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. A Franchisee may self-insure all or a portion of the insurance
DRAFT- July 7, 1999
coverage and limit requirements required by this Section. A Franchisee that self-insures is not
required, to the extent of such self-insurance, to comply with the requirement for the naming of
additional insureds under this Section. A Franchisee that elects to self-insure shall provide to the
City evidence sufficient to demonstrate its financial ability to self-insure the insurance coverage
and limit requirements required under this Section, such as evidence that the Franchisee is a
"private self insurer" under the Workers Compensation Act. For purposes of this Section, "self-
insure" shall also include a Franchise which insures through a "captive insurer".
(e) A Franchisee shall, at its sole cost and expense, indemnify, hold harmless, and
defend the City, its officials, boards, Commission, Commission members, 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 Telecommunications System or Facilities, the conduct of Franchisee's
business in the City, or in any way arising out of the Franchisee's enjoyment or exercise of a
Franchise granted hereunder, 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 extend to any claims caused by the
misconduct or sole negligence of the City, its officials, boards, Commission, Commission
members, agents or employees. In addition, and notwithstanding anything to the contrary, any
Franchisee granted a renewal of a Franchise on or after the effective date of this Ordinance shall
indemnify and hold harmless the City, its officials, boards, Commission, Commission members,
agents or employees from any claim arising by a third party under Federal or State law. This
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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 o£ copyright
infringements or a failure by the Franchisee to secure consents from the owners, authorized
distributors, or providers of telecommunications services, and claims against the Franchisee for
invasion of the right or privacy, defamation of any person, firm or corporation, or the violation or
infringement o£any copyright, trade mark, trade name, service mark or patent, or of any other
right of any person, firm, or corporation. 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 and at its own cost if in the City's reasonable belief there exists or may exist a
conflict, potential conflict or appearance of a conflict.
Section 13. Security Fund.
(a) A Franchise agreement may provide that, prior to the Franchise becoming
effective, the Franchisee shall post with the City a security fund. Such fund may be in the form
of a cash deposit, letter of credit, corporate guarantee, indemnity bond or surety bond as
determined by the City Manager in his/her sole discretion. The security fund will be used 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 shall be no less than Twenty-five Thousand Dollars
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($25,000.00), which is the minimum mount that the City determines 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
amount of the security fund may be increased or decreased in a Franchise Agreement in the
City's sole discretion, based on factors including but not limited to, written recommendations
from other local franchising authorities that regulate the Franchisee and the Franchisee's
compliance and/or noncompliance with the regulations promulgated by other franchising
authorities. The Franchise Agreement shall provide for the procedures to be followed with
respect to the security fund. Neither the posting of the cash deposit or filing of an indemnity
bond or any form of surety bond with the City, nor the receipt of any damages recovered by the
City thereunder, shall be construed 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.
(b) Notwithstanding any of the above, City, upon thirty (30) days advance written
notice clearly stating the reason for, and its intention to exercise withdrawal rights under this
Subsection, may withdraw an amount from the Security Fund, provided that the permittee has not
reimbursed the City for such amount within the thirty (30) days notice period. Withdrawals may
be made if the Franchisee:
(1)
(2)
(3)
Fails to mmke any payment required to be made by the Franchisee hereunder;
Fails to pay any liens relating to the facilities that are due and unpaid;
Fails to reimburse the City for any damages, claims, costs or expenses which the
29
DRAFT- July 7, 1999
City has been compelled to pay or incur by reason of any action or non-performance by the
Franchisee; or
(4) Fails to comply with any provision of this Ordinance or Franchise Agreement,
which failure the City determines can be remedied by an expenditure o£an amount from the
Security Fund.
(c) Within thirty (30) days after receipt of written notice from the City that any
amount has been withdrawn from the Security Fund, the Franchisee shall restore the Security
Fund to the amount specified in this Section.
(d) The rights reserved to the City with respect to the security fund or an indemnity
bond 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 will affect any other right the City may
have.
Section 14. Construction Bond.
(a) A Franchise agreement shall provide that, prior to performing any work in the
Public Right of Way, 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. The
amount of the construction bond shall be no less than Fifty Thousand Dollars ($50,000.00). The
amount of the construction bond may be increased or decreased in a Franchise Agreement, in the
City Manager's sole discretion, based on the amount, the value of the construction to take place
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in the Public Rights- Of-Way, and any previous history of the Franchisee concerning construction
within the Public Rights-of-Way of the City.
(b) In the event a Franchisee subject to such a construction bond fails to complete the
work 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 the work, plus a reasonable allowance for 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 13 hereof where such amount exceeds
that available under the security fund.
(c) A Franchise agreement may specify that no less than six (6) months after the
completion of the construction of the Telecommunications Facility and payment of ail
construction obligations to the satisfaction of the City, the City may eliminate the bond.
However, the City may subsequently require a new bond for any subsequent work in the Public
Rights-Of-Way.
(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, return receipt
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DRAFT-July 7, 1999
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, the Franchise Agreement, or at law or equity.
(f) When the Franchise terminates for reasons including, but not limited to,
revocation, any security will be maintained by the Franchisee for one (1) year from the date of
termination and the remaining fund will be returned to Franchisee one (1) year from the
termination date of the Franchise, provided there is no outstanding default or unpaid amounts
owed to the City by Franchisee.
(g) The rights reserved to the City under this section are in addition to all other rights
of the City, whether reserved in this Ordinance or Franchisee Agreement, or authorized by other
law, and no action, proceeding or exercise of a right with respect to the security fund will affect
any other right the City may have.
Section 15. Enforcement Remedies.
(a) In addition to other remedies available at law or equity or provided in this
Ordinance, or in any Franchise Agreement, failure by the Franchisee to comply with any of the
provisions, terms and conditions of the Franchise granted hereunder may result in a revocation of
the Franchise, or, in the alternative, at the discretion of the City, the City may impose liquidated
damages for any violation by a Franchisee of this Ordinance, a Franchise Agreement, or law
applicable to users and/or occupants of the Public Rights-Of-Way, which damages may be
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DRAFT- July 7, 1999
difficult to quantify but shall be determined in an amount no less than One Hundred Dollars
($100.00) per day per violation.
(b) Before imposing a fine pursuant to this Section, the City shall give Franchisee
written notice of the violation and its imention to assess such damages, which notice shall
contain a description of the alleged violation. Following receipt of such notice, Franchisee shall
have thirty (30) days to cure the violation and the City shall make good faith reasonable efforts to
assist the Franchisee in resolving the violation. If the violation is not cured within that fourteen
(30) day period, the City may collect all fines owed, beginning with the first day of the violation,
either by removing such amount from the Security Fund or through any other means allowed by
la~v.
(c) In addition to any other remedies available at law or equity or provided in this
Ordinance or in any Franchise Agreement, the City may apply any one or combination of the
following remedies in the event a Franchisee violates this Ordinance, its Franchise Agreement,
applicable State or Federal law, or applicable local law or order:
(1) Franchisee's failure to comply with Sections 3(a), (c) and/or (d) herein shall result
in imposition of liquidated damages to be paid by the Franchisee to the City in an amount of not
less than One Thousand Dollars ($1,000.00) per day or part thereof that the violation continues.
(2) Revoke the franchise pursuant to the procedures specified in Section 16
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.
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DRAFT-July 7, 1999
(d) 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 o£ the
violation, the nature o£the remedy required in order to prevent further violations, and such other
matters as the City determines are appropriate to the public interest.
(e) Failure o£ the City to enforce any 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.
(f) In any proceeding wherein there exists an issue with respect to a Franchisee's
performance o£ 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 o£this Ordinance. The City Commission may find a Franchisee that
does not demonstrate compliance with the terms and conditions o£ this Ordinance in default and
apply any one or combination of the remedies otherwise authorized by this Ordinance.
Section 16. Revocation or Termination of Franchise.
(a) A Franchise may be revoked by the City Commission for Franchisee's failure to
construct, operate or maintain the Telecommunications System or Facility 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 or material violation of Federal, State, local law or
Ordinance. 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 material breach of the Franchise Agreement and describe the nature of the
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DRAFT- July 7, 1999
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 has not
been 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 Commission
shall hold a public hearing, upon thirty (30) days' calendar notice, at which time the Franchisee
and the public shall be given an opportunity to be heard. Following the public hearing the City
Commission may determine whether to revoke the Franchise based on evidence presented at the
hearing, and other evidence of record. If the City Commission determines to revoke a Franchise
it shall issue a written decision setting forth the reasons for its decisions. A copy of such
decision shall be transmitted to the Franchisee.
(c) Notwithstanding subsections (a) and (b) hereof, any Franchise may, at the option
o£the City following a public hearing before the City Commission, be revoked 120 calendar days
a~er an assignment for the benefit of creditors or the appointment ora receiver or trustee to take
over the business of the Franchisee, whether a receivership, reorganization, bankruptcy
assignment for the benefit of creditors, or other action or proceeding unless within that 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
Franchise Agreement and has executed an agreement, approved by a court of competent
jurisdiction, to be bound by the terms and conditions o£this Ordinance and the Franchise
E:\ 1999~AventuraLROW Or dinance~Agreement s~Dr al~ ordinmlce 0707 wpd 3 5
Agreement.
(d)
DRAFT- July 7, 1999
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 hearing before
the City Commission, by serving notice upon the Franchisee or the successful bidder at the sale,
in which event the Franchise and all rights and privileges of the Franchisee will be revoked and
will terminate thirty (30) calendar days after serving such notice, unless the successful bidder has
obtained the necessary certificates, and other authorizations pursuant to applicable state, federal
and local laws, and: (1) the City has approved the transfer of the Franchise to the successful
bidder; or (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 the Franchise, or for any other reason a Franchisee abandons,
terminates or fails to operate or maintain its facilities for a period of six (6) months following
Franchisee's decertification as a Telecommunications Company by the FPSC, if applicable, the
following procedures and rights are effective: (1) the City may require the fom~er 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; (2) the City, by resolution of the City Commission,
may acquire ownership or effect the transfer of the Telecomanunications Facility or System
subject to the limitations set forth in Section 18 herein and in any Franchise Agreement; or (3) if
a Telecommunications System is abandoned by a Franchisee the City may sell, assign, or transfer
all or part of the assets of the System subject to the limitations set forth in Section 18 herein or in
E:\1999LAventumLROW Ord/nance~Agreements~Dra~ ordinance 0707.wpd 36
DRAFT-July 7, 1999
any Franchise Agreement. Nothing herein shall be construed to limit the City's right to petition
the FPSC for appropriate relief in the case of a Telecommunications Company which abandons,
terminates or fails to operate or maintain a Facility within the Franchise Area for a period of
twenty-four (24) months.
(f) No adverse action against the Franchisee may be taken by the City, pursuant to
this Section, without notice and a public hearing at which the Franchisee is given an opportunity
to participate.
Section 17. Renewal of Franchise.
(a) Upon receipt of the renewal application within sixty (60) days of the expiration of
an existing Franchise, 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 hearings on the
renewal application.
(b) The City Commission shall consider the renewal application at a public hearing at
which the City Commission will either (1) pass a resolution agreeing to renew the Franchise,
subject to negotiation of a Franchise Agreement satisfactory to the City and a Franchisee; or (2)
pass a resolution that makes an assessment that the Franchise shall not be renewed.
(c) The City reserves the right to consider any and all violations of Federal, State, and
local law and any and all pending violations of this Ordinance or of a Franchise granted pursuant
to such Ordinance in determining whether or not to grant the renewal ora Franchise. The City
shall grant a renewal application upon a finding that:
(1) The City and the Franchisee shall agree on the terms of the Franchise
E:\1999kAventurakROW OrdinancekAgreemenlskDrafl ordinance.0707 wpd 3 7
DRAFT- July 7, 1999
Agreement before such renewal becomes effective.
(2) Any outstanding compliance and compensation issues are resolved or
preserved to the satisfaction of the City.
(d) If a renewal of a Franchise is lawfully denied, the City may acquire ownership of
the Telecommunications System or Facility, or effect the transfer of the ownership of the System
or Facility, or effect the transfer to another person upon approval of the City Commission subject
to the limitations set forth in Section 18 herein and in any Franchise Agreement. The City may
not acquire ownership of the System or Facility, or approve a transfer during an appeal of a
denial for renewal.
(e) If a renewal of a Franchise is lawfully denied and no appeal to a court is pending,
and the City does not purchase the Telecommunications System or Facility, or effect the transfer
of the Telecommunications System or Facility 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 or surety's expense.
Section 18. Municipal Ownership of Telecommunications Facility.
(a) Upon the revocation of the Franchise, or termination thereof where a Franchisee
has not given timely written notice to the City that it will seek renewal of the Franchise pursuant
to Section 17 hereof, the City shall have the right and privilege, at its option, to purchase the
Telecommunications Facility hereby authorized, or other property used under or in connection
with a Franchise granted hereunder, or such part of such property as the City may desire to
E:\1999~Aventura~ROW OrdinanceXAg~reements~Draft ordinance 0707 wpd 3S
DRAFT- July 7, 1999
purchase at a valuation of the property real and personal desired, which valuation shall represent
the fair market value.
(b) A Franchise Agreement may provide that an entity other than the City has the first
option to purchase or to receive in a transfer agreement the Telecommunications Facility in the
event that a Franchise is terminated, revoked, not renewed or transferred. Any such entity
granted a first option to purchase or receive the Telecommunications System or Facility must
agree in writing on or before the effective date of the purchase or transfer that it agrees to be
bound by all terms and conditions of this Ordinance and any Franchise granted pursuant to this
Ordinance and all applicable Federal, State and local laws. Any such entity granted a first option
to purchase or to receive the Telecommunications Facility must obtain all necessary franchises,
permits, certificates, licenses and other authorizations required by applicable Federal, State and
local law prior to purchasing or receiving the Telecommunications Facilities. The first option to
purchase or to receive the Telecommunications Facility shall be null and void if the option holder
does not fulfill all obligations under this Ordinance, a Franchise Agreement, and all laws
applicable to users and occupants of the Public Rights-Of-Way.
(c) The City hereby reserves any and all rights not otherwise expressly prohibited by
applicable law to exercise its authority to establish the terms and conditions including, but not
limited to, fees and taxes, with respect to Franchisee's construction, maintenance, operation, or
provision of any telecommunications equipment, facilities or service not expressly granted
hereunder.
Section 19. Force Majeure.
E:\1999~Aventura~ROW Ordinmme~Agreemenls~Drafi orditmnce.0707.wpd 3 5}
DRAFT- July 7, 1999
In the event a Franchisee's performance o£or compliance with any of the provisions of
this Ordinance or the Franchisee's Franchise Agreement is prevented by a cause or event not
within the Franchisee's control, such inability to perform or comply shall be 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 Franchise Agreement granted or reneYved
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 Franchisee'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 non£easance by any of
Franchisee's directors, officers, employees, contractors or agents.
Section 20. Repeal of Conflicting Ordinances.
All Ordinances or part of Ordinances, and all resolutions or part of resolutions in conflict
herewith be and the same are hereby repealed to the extent of such conflict.
Section 21. Savings.
All fees, charges and financial obligations previously accrued pursuant to any Ordinances
and resolutions repealed pursuant to Section 20 above shall continue to be due and owing until
paid.
Section 22.
Severability.
E:\1999~Aventura~OW Ordinance~Agreements~Drafl ordinance.0707.wpd 4 0
DR~4FT- July 7, 1999
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 shall remain in effect, it being the legislative intent that this
Ordinance shall stand notwithstanding the invalidity of any part.
Section 23. Reservation of Rights.
(a) Both the City and the Franchisee reserve and may seek any and all remedies
available at Law. Neither the City nor the Franchisee shall be deemed to have waived any rights
or remedies at Law by virtue of accepting a Franchise Agreement pursuant to this Ordinance.
(b) The City reserves the right to amend this Ordinance as it shall find necessary in
the lawful exercise of its police powers.
(c) Any additional regulations adopted by the City that are applicable to an entity
erecting, constructing, maintaining or operating facilities in the Public Rights-Of-Way 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 unless imposition of such regulations would
be otherwise prohibited by applicable Law.
Section 24. Effective Date.
This Ordinance shall be effective immediately upon second reading and final adoption
this __ day of ,1999.
E:\1999XAventura~ROW Ordinaace~Agreements~Draft ordimmce.0707.wpd 4 '1
HOLI,AND & KNIGHT LLP
P.O Box 14070 (ZIP 33302-4070)
Fort Laudordnle, Florida 33301
964-535-1000
leA× 9~4-463-2030
FACSIMILE
New York
Eric M. Soroka
City of Aventura
COMPANY/FIRM
CITY STATE
(305) 466-8919 (305} 466-15901
FAX N~BEIT
FROM:
TI.~LEPilONE NUMBER
Janna P, l,hota
954 525-1000
NAME TELEPHONE NUMBER
TOT/iIUMBER OF PACES (Including Cowr
MESSAGE:
FOR THE RECORD:
I)ATE: Augusl 9, 1999
UR(}IINCY: SUPER RUSII RUSII RE GU'I~R
FAXED BY: AMOUNt:
FTT,F, #: CT,TENT NAME;
CONFIRMED; YES NO bIAME:
TIME:
If you did ,tot receive aII of
the pagan or find that they
(954) 468-7891
Thy 6)llowiag facsimile is
inleaded uolely fur the use of
indi~dual ~ wlmm it is addressed
and may con~ia information that
is pri~eged, confidential, or
otherwise exemp~ ~om d~closure
under applicab~ law. If tho
reader of th~ message is m)t the
in~adod x~cipiont or tho
employee or agent msoonsible
deBvehng the melange
invaded recipient, you arc hereby
notffic~ ~at any ~scmination,
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communication ia strictly
pz~hibited. If you have t~ived
this communication in en~r.
pleaoe immediately .v[ify uu by
mlephone and mmrn the ori~nal
addre*e ~a the U.S. Postal
oervi~:o. Th..k you.
FTI,1,9,148085 vi
TN',4 i~TA'O~,I TA:?T RF-,.~,N qNH NCNZCq~TqN¢:fTT IHqTN'~l ~ flNH-I-INH
Law
HOLLAND & KNIGHT LLP
40. &~x 14070 (ZIP ~302-40/0}
R~rl I.~u~er~le. Flolld3 ~1
~4 5~-1~0
FAX ~4-4~-2~
~w hklaw COrn
Nodhcm
ProviCene~,
San ~'r~nci~co
St.
Tampa
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Wes~ Pa~
August 9, 1999
VIA TELECOPY (305) 530-94t7
AND BY U.S. MAIL
Braulio Baez, Esquire
Leibowitz & Associates, P.A.
SunTrust International Cantor
Suite 1450
One Suuthcas~ Third Avenue
Miami, Florida 33131- 17 [5
Re: TCG South Florida - Comment~ to Proposed City el'
Aventura Telecommunications Ordinancc
Dear Braulio:
Thank you for forwarding to our office a copy of the dra~ City of Aventura
Toleconuaunications Ordinance (the "Ordinance"), We have had an opportunity
to. review ~he draft Ordinance dated July 7, 1999 and offer the following
comme/l£s ['or your consideration on behalf of our client, TCG South Florida
CTCG").
t. Section 2(g) - This section contains em definition of "Gt'os~
Receipts". TCG objects to the definition of"Gross Receipts" as it far exceeds that
contemplated by Section 337.401(3), Florida Statutes. Section 337.401(3) allows
thc City to levy a foe which:
[Mlay not exceed t percent of the gross receipts on
recurring local service revenues for services provided
within the corporate limits of the municipality by such
telecommunications company.
~O'd OTO'ON ~O:$T 66,60 9flu 0£0~9~S0£:dI IHgIN~ ? dNUqqOH
Braulio Baez, Esquire
August 9, 1999
Page 2
Fla. Stat. § 337.401(3) (1998) (emphasis added). Wc suggest that tho definition
of Gross Receipts include only those receipts on "recurring local service
revenues" as stated in Section 337.401(3). To assist you, set out below is a
pcoposed revision to the first sentence in Section 2(g)t:
"Gross Receipts" shall mean a!!~_,..,~- crcflits-or
..... ~ ..................... OtTtr e ......... ,
a'ad~:T ~nccmc stationS: receipts arising from
~cal E~qurrin~ Service Revenues ~cr-:!c: and
~m~ ....... within the Franchhe
~ ~ .., any ereonn
.............. System an~g: .,~
This change will conform Section 2(g) to federal and state law.
2. Section 2(k) - This subsection defines the term "Public Rights-o/-
Way''. In the last sentence of this scctiou, ~he City excludes h'om thc definition
of "Public Right-of-Way" any "real or personal City property that is not
specifically described" in that section. Unless this sentence can be further
c[ariiied as to what is specifically excluded, we would suggest its omission from
the Ordinance.
3. Section 2(m) - This subsection includes within tho, definition of
"Telecmmnunications Companf' lessees of a provider. The inclusion of lessees
within tho definition may be objectionable in certain situations as recent case
law ha~ }reid i.hat, a municipality may not levy a fee on a lessee of facilities as
them is ~m "use" or occupation of the public rights.of-way. See AT&T
Communications of the Southwest, Inc. u. City o/Dcdlas, Texas, -. F.Supp.2d --,
l Any language stricken out indicates proposud dele[h~m~, wl~le uaderlmed language
indicates proposed additions.
£O'd OTO'ON EO:EI 66,60 9~U 0£0C£9~fi0£:6I IHglN~ ~ ONUqqOH
Braulio Baez, Esquire
August 9, 1999
Page 3
1999 WL 386168 (ND.Tex., July 7, 1998); Bell Atlantic.Muryh~nd, Inc. v. Prince
George's County, Maryland, -- F.Supp.2d --, 1999 WI, 343646 (D.Md., May 24,
1999).
4. Section 3(I))(1) - This subsection sets out information rcquired
the application for a franchise. Specifically, TCG is concerned that the
information requested concerning the location of the proposed facilities, tho
facility design, area locations, the size of facilities and equipment to be
constructed, availability of space in existing conduits, and timing of construction
,nay be premature at thc application stage. TCG will be better able to provide
this specific information at the permitting stage which would occur later.
Accordingly, to the extent any such information is requested in thc application
lbr a kanchisc, we would appreciate recognition by thc Ci;y that such
intbrmati.on is likely to be preliminary and subject to change.
5. Section 3(c). TCG would app,'eclats it if thc City would specifically
provide a time kamo within which a franchise will be granted by the City once
the application is complete, i.e. thirty (30) days. Additionally, TCG objects to
any provision the; would allow the City to modify its proposed system or facility.
Section 337.401(6) provides that:
A local government entity may not uso its authority over the
placement of facilities in its roads and rights-of-way as a basis
for assorting or exercising regulatory control over a
telecommunications company regarding matters within the
exclusive jurisdiction of the Florida Public Service Commission
or the Federal Communications Commission, including, but not
limited to, the operations, systems, qualifications, services,
service quality, s~rvice territory, and prices ef a
teleconnnunications company.
Fla. Stat. 337.401(6) (1998). Thus. the City is preempted from exercising
any control ever TCG's operations or systems.
6. Section 3(e) - This subsection would require TCG to assist the City
and, upon request, provide the City with the names of any persons or entities
leasing TCG's facilities. As a lessee, a provider would not be "occupying" or
otherwise using the City's rights-of-way. As stated previously, current case law
~0'd 0;0'ON ~0:~I 66,60 gnu 0£0g£g~0£:~I IHgINN ~ ~NUqqQH
Braulio Baez, Esquire
August 9, 1999
Page 4
prohibits the City fi'om levying a fee on a provider that leases 5tcilities. See
AT&T Comm, un, ication.~ of the Southwest, Ir~c. v. City el Dtdlas, Texas,
N
F.Supp.2d -., 1999 WL 386168 ( .D. Iex., July 7, 1998); Bell Atlantic. Maryland,
Inc. v. Prince George~ Creme, Marylan& -. F.Supp.2d --, 1999 WL 343646
(D.Md., May 24, 1999). Accm'dingly, TCG suggosts that fl~is subsection be
deleted.
7. Sections 5(c) and (d) - These subsections provide for tho payment of
an annual fee in the even~ a telecommunications company has thcilitioa within
thc Public Rights-of-Way of the City but is not providing service to customers
within the City or is providing services o~her than those defined in Sections
21)3.012(3) and (7). TCG objects to these provisions as exceeding ~he City's
authority under both federal and state law. Section 364.01(2), Florida Statutes,
expresses the legislative intent to give exclusive jurisdiction to the PSC in all
matters conceruing telecommunications companies. S(:e Fla. Stat. ~ 364.0 l(2)
(1998); Santa ltosa County v. G~dfPowcr Co., 635 So. 2d 96 (Fla. 1~* DCA 1994).
The only grant of authority to levy a fee for occupation of the City's rights.of, way
is found in Section 337.401, Nowhere in Section 337.401 does it grant thc City
tim authoril~y to levy the fees set out in Sections 5(e) and (d).
8. Section 5(e) - TCG objects to this subsection as overreaching and
excessive as this subsection is not related in any manner to thc City's costs to
manage its rights-of-way.
9. Section 5(g) - This section contemplates the payment by TCG of a
non-refundable ~ec to the City in the amount of $ [0,000.00 upon the submission
of a rcqucst tbr a grant of Franchise Agreement or a renewal of a Franchise
Agreement with the City. TCG objects to tho payment of any fee that is in
excess of the actual costs incurred by tlm City to review ;he application
submitted by a telecommunications company. Furthermore, any foe leviad by
~ho. City should be tied to the limitations placed on the City by Section 337A01,
i.e. the fee should be a credit against the ~ees charged irt Section 5(a) of the
proposed Ordinance.
10. Section 6(b) - This subsection requires a provider to submit an
annual report to the City containing information, including but not limited to
the following: (a) a financial statement, including a statement of income and
sources of revenues; (b) a list of officers and directors, limited partners and
$0'd O~O'ON £0:g; 66,60 9nU 0~0g~9~0£:6I IHglN~ ~ gNUqqOH
Braulio Baez, Esquire
August 9, '1999
Page 5
partners of the company; (c) copies of any pleadings, petitions, apl)licatious
and/or other documents submitted by or on behalf of the franchisee to thc FCC,
SEC, PSC; and (d) any and all notices et hearings, deficiency, tbrfeiturc of other
documents instituting any investigation whether civil or criminal by any state or
federal agency regarding the fi'anchisee. TCG would object to the City's
~'equiremeat that this information bs provided as overly broad and excessive and
beyond tho City's authority under both fbderal and state law and as further
clarified by tho. Fi~xal Declaratory Judgment and Omnibus Order on Summary
Judgment entered by the Honorable William P. Dimitrouleas in thc action styled
Belt$o~th Telecommur~£c¢~tior&s, lt~c. o. City of Coral Spri~gs, Florida, Case No.
97-7010-CIV-Dimitrouleas.
11. Section 7(a) - This subsection provides that all facilities shall bo
installed underground in areas where existing facilities are or will be installed
underground. TCG would object to any such rcquiroment as violative of both
federal and state law. Specifically, in Florida Power Corporation vs. Seminole
Count.~, 57~) So 2d 105 (Fla. 1991), the Florida Supreme Court tbund that the
jurisdiction of the PSC to regulate rates and sorvices of u~ilities preempts the
authority of thc City to require a utility to place its facilities underground. As
certain telecommunications companies operating within the City have rates
regulated by the PSC any such requirement is clearly in violation of established
case law.
Furthermore, Section 364.0361, Florida Statutes, specifically provides
that a "local government shall treat each telecommunications company in a
nondiscriminatory manner when establish[lng] conditions or compensatio,~ for
use o~' rights-of-way or other public property by a telecommunication~ company."
As such, if the City ts precluded from requiring certain telecommunications
companies who~o rates arc regulated by the PSC from undergrounding their
facilities, Section 364.0361 similarly prohibits the City from imposing this
obligatio~ on only a segment of the industry. Finally, Sectxon 253(a) of the
Telecommunications Act of 1996 provides that the City may not prohibit or have
the effect of prohibiting the ability of any ~ntity to provide interstate or
intrastate telecommunications service. Certainly any requirement by the City
that would mandate undergrounding of TCG's facilities will significantly
increase its e~ttry costs and directly impact upon its ability to p~'ovido
telecommunications services.
90'80IO'ON ~O:EI 66,60 90U 0£0~£9~S0£:6I IHgIN~ ~ 6NUqqOH
Braulio Baez, Esquire
Augus£ 9, 1999
Pagc 6
12. Sections 7(c) sad 7(d) - These sections contemplate the possible
removal and/or change in location of a providcr's facilities upon thc City'.s
request and payment to thc City in the event thc provider fails ~t, remove and/or
change the facilities. To the extent these sections require the removal or change
in location of facilities by a provider that falls outside ~he scope of Section
337.403 it should be clarified that the cost of any removal or change in location
shall be borne by the City.
13. Section 7(0 - - This subsection provides tha~ any final order of the
City for costs shall constitute a lien on the property of a provider. We would
appreciate it if thc City would outline ~he authority to provide for sad place a
lies on property o~ a tolecommunicatiens company regulated by the PSC and/or
FCC.
14. Section 7(g) - This sect{on should be clarified to more specificaHy
outliae tliose instnnc~s when the City would be allowed to cut and/or remove a
provider'e facilities. As cm'reutly written, the section is somewhat vague and
could lead to situations wherein a provider'e service is uunecessarily
interrupted,
15. Section 8(b) - The last two sentences to this section contemplate thc
City's adoptkm of rules and rogulatious tha~ may include reasonable
"requirements and restrictions with respect to height, width and diameter oi" a
provider's facilities~ TCG objects to this language to the extent that it is
violative of Section 337.401(6) and impeding upon the regulatory authority pre-
erupted to the FPSC.
16. Section 8(h) - TCG ebjecte to this subsection to thc extent that it
would preclude TCG from attaching its facilities to existing poles or to place its
facilities withh~ existing conduik Federal and state law contemplates that
ex{sting utilities shall provide telecommunications carriers non-discriminatory
access to any "pole, duct, conduit or right-of-way owned or controlled by it." See
47 U.S.C. Section 224(0(1). Additionally, to the extent this subsection seeks to
regulate in any manner tho facilities or oporations of TCG, such authority has
been preempted to the PSC~ See Fla. St.aL § 3:17.401(6) (19,q8).
17. Section 9 - This section contemplates the written acceptance of the
Franchise by a provider in the form designated by the City. To the extent the
20'd 010'ON S0:~; 66,60 9flu 0£0~£9~S0£:6I ±HglN~ ~ ~NUDDOH
Braulio Baez, Esquire
August 9, 1999
Page 7
City has drafted any such form documellt, we would appreciate if a copy could be
provided to us for our review and comment.
18. Section 11 - This section deals with transfers of control, sale or
assignment. TCG requests that this section bo amended to permit the
assignment of tho franchise, without the consent of the City, to (a) a suhsidtary,
affiliate or parent company; (b) any firm or corporation which franchisee
controls, is controlled by, et is under common control with; (c) arty partnership in
which it has majority interest; or (d) to any entity which succeeds to all or
substantially all of its assets whether by merger, sale or otherwise, as long as
the suc~mssor entity has tho appropriate authorizations required by the FCC
and/or tim FPSC. Other types of transtbrs we understand may bo subject to
written consent of the City which shall not be unreasom~bly withheld or denied.
19. Settled Il(e) -. This subsection requires the payment of a $5,000 fee
prior to the transfer, sale or assigmnent of any franchise granted by the City.
TCG objects to the payment of any fcc that is in excess of tile actual costs
incurred by the City to review the application submitted by a
teleco~nmunlcatkons company. Furthermore, any application fcc levied by the
City should be tied to tho, limitations placed on the City by Section 337.401, i.e.
the fee should bca credit against the fees charged in Section 5(a) of the proposed
Ordinance.
20. Section 12(e) . This section sets out the indemnification in favor of
the City. TCG ohjects to thc sccona sentence in Section 12(e) as it appe~t's to
indemnify the City against any claim which could be made against the City that
the proposed Ordinance violates federal or state law.
21. Section 13 - This section contemplates the establishment and
maintenance of a security fund by a provider in favor of the City. TCG objects to
thc provisions of this section. A security fund is not necessary as the City is
adequately protected through various enforcement p~ovtsions set out itt thc
proposed Ordinance ~o assux'e co~npliance wiO~ the Ordina
22. Section 14(a) - This section contemplates the posting of a
construction bond in favor of the City prior to performing any work in the Public
Rights-of-Way. In general, TCG does not object to the posting of a construction
bond as long as the bond is tied to the value of the work being performed in the
80'd OIO'ON SO:~I 66,60 9fl~ 0£0~9~S0~:~I IHglN] 3 ON~qqOH
Braulio Baez, Esquire
August 9, 1999
Page 8
City's rights-of-way and provided the bond is released upon the completion
construction.
23. Section 14(b) and (1) and Section 15(b) - In light of TCG's objection
against the establishment of a security fund of any type, it objccts to Section
14(0 and Section 15(b) and thc last ser~tence in Section 14(b).
24. Section 15(a) and Section 15(c)(1) - These sections contemplate thc
payment of liquidated damages to thc City. As s~ated previously, TCG in
general objects to any provision, including liquidated damages, which exceed
wh;~t is reasonably necessary to adequately secure TCG's obliga~ion~ ~o thc City
as required by law.
25.Section 16(e), Section 17(d) and Section 18 - These provisions
contempla£e ~he purchase of TCG's facilities in the event of a revocation or a
termination of ~hc Franchise. TCG objects whole~ale to thcsc provisions as
excessive, overreaching and beyond the City's authority undcr ~bderal and state
law to impose as demonstrated hy the BellSouth decision.
The £oregomg represents thc most significant comments that we wore able
to discern hosed upon our review of the proposed ordinance, We would
appreciate it if you could advise us of any of' the dates et' any workshops and/or
public hearings oa the proposed ordinance.
Again, we thank you for your ~ime and consideration with respect to this
matter.
Very truly yours,
HOLLAND & KNIGHT LLP
By: Janna P. Lhota
For the Firm
c Eric M. Soroka, City Mango. r (Via Tolofax)
David Wolpin, City Attorney (Via %lefax)
60'd OIO'ON 90:~ 66,60 9~U 0~0U£9~90£:6I IHglN~ ~ GNUqqOH
THE CITY OF AVENTURA
OFFICE OF THE CITY MANAGER
TO:
FROM:
DATE:
SUBJECT:
MEMORANDUM
Manager
September 24, 1999
Formosa Termites
Per your request, an information meeting to discuss formosa termites is scheduled for
Wednesday, October 27 at 7:00 PM. The meeting will be held in the recreation hall at
Coronado Condominium.
To:
From:
Date:
Subject:
Eric Soroka
City Manager
Patricia Rogers-Lib~r~
Vice Mayor
/'~9
September 22,
Florida Municipal~rlsurance Trust Meeting
Please place on the September 29~ Workshop Agenda a discussion of the Flor-
ida Municipal Insurance Trust (FMIT), on which I serve as a trustee. The FMIT will
meet in Key West Friday, October 1st, and Saturday, October 2"d.1 Items of in-
terest to Aventura include:
Workers Compensation Managed Care & Fraud Investigations
· Y2K Insurance
· Property/Liability Insurance
Thank you.
Trustee costs are covered bu the FMIT.
CITY OF AVENTURA
OFFICE OF THE CITY CLERK
MEMORANDUM
TO:
FROM:
DATE:
SUBJECT:
City Commission
\
Teresa M. Soroka, CMC/AAE, City CI
August23,1999
Recommendation from the Recreation and Cultural Arts Advisory
Board
At their meeting today, the Recreation and Cultural Arts Advisory Board passed the
following motion:
A motion was offered by Ms. Simmons and seconded by Mr. Gustin to
recommend to the Commission that the Bandshell [proposed for Founders
Park] be enclosed in the back so as to be acoustically feasible and that the
floor be suitable for dancing, The motion passed unanimously.
CCZ
City Manager
Recreation and Cultural Arts Advisory Board
Community Services Director
/tms
Unanticipated Permit Requirements
Sitework
Piling
Concrete
Steel
Plaza deck Waterproofing
Louvers-Pump room/generator mom
Plumbing
Post Tensioning
HVAC - Smoke Evacuation
Subtotal
Finishing
Revisions
Generator roof
Balcony drainage tile revision
Subtotal
Chamber Redesign
Commission Dais
Ceiling baffles
Projection Screen
Projector Lift Screen
Concrete
Subtotal
Deducts
Masonry
Stairway Revisions
Deleted stage
Deleted Garage overhead door
Revise chamber walls
Reduce metal shelving
change structural beams
delete curtain and track
Delete steel for roof parapet
Revisions to roofing
Revision to fueling station
Subtotal
Summary Change Order No. 1
11,814
51,839
294,450
91,716
22,387
5,277
47,749
2,195
44,529
571,956
2,737
4,276
7,013
16,890
27,708
6,119
7,059
86,662
144,438
(7,165.0)
(60,640.0)
(12,381.0)
(4,008.0)
(6,788.o)
(2,604.0)
(4,198.0)
(7,661.0)
(20,701.0)
(4,153.0)
(4,417.0)
(134,616)
Total
Tax Savings
Overhead
Total Change to GMP
588,791
(87,379)
58,879
560,291
Government Center
Summary of Bid Packages Awarded
GMP
ADDENI Bid Overl(under)
Augar Cast Piling
Post Tensioned Concrete Reinforcement
Glazed Aluminum Curtain Wall and Deal Trays
Reinforcing Steel
Electrical
Site Clearing, Earthwork & Utilities
Plumbling
Precast Prestressed Sections
Structural steel
BAT & Blanket Installation Drywall
HVAC
Soil Treatment
Masonary
Roofing
Fire Sprinkler
Waterproofing
Overhead Coil Doors
Accoustical Wall Panals
Granite
Ceramic & Quarry Tile
Painting
Elevators
Stairs
Concrete
140,860.00
55,101.00
1,720,190~00
262,182.00
1,280,680.00
527,691~00
308,350.00
358,750.00
514,080.00
707,388.00
851,430.00
5,341.00
120,785.00
81,780.00
186,660.00
75,90Q00
16,835.00
55,288.00
104,500.00
48,790.00
125,750.00
206,674.00
386,584.00
448,966.00
176,201.00 35,341.00
69,0 ;O.O0 13,899.00
1,687,000.00 (33,190.00)
315,187.00 53,005.00
1,175,000.00 (105,680.00)
525,000.00 (2,691.00)
300,000.00 (8,350.00)
332,073.00 (26,677.00)
428,449.00 (85,631.00)
701,546.00 (5,842.00)
789,843.00 (61,587.00)
6,071.00 730.00
115,785.00 (5,000.00)
87,575.00 5,795.00
153,000.00 (33,660.00)
45,240.00 (30,660.00)
16,342.00 (493.00)
60,266.00 4,978.00
208,105.00 103,605.00
42,680.00 (6,110~00)
122,700.00 (3,05000)
201,339.00 (5,335.00)
396,454.00 9,870.00
448,966.00
Total 8,449,695.00 8,227,621.00 (186,733.00)