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01-04-2000 CC Meeting Agenda Ar hut Snyder, Mayor Aventm Jay R, Beskin Ken Cohen Harry Holzberg Jeffrey M. Perlow Patricia Rogers-Libert AGENDA January 2000 G PF4 CALL TO ORDERhROLL CALL 2. PLEDGE OF ALLEGIANCE 3. ZONING HEARINGS - SPECIALLY SET BY COMMISSION FOR 6 P.M. QUASI-JUDICIAL PUBLIC HEARINGS - Please be advised that the following items on the Commission's agenda are quasi-judicial in nature. If you wish to object or comment upon these items, please indicate the item number you would llke to address when the announcement regarding the quasi-judicial item is made. You must be sworn before addressing the Commission, and if you wish to address the Commission, you may be subject to cross-examinatiom if you refuse to submit to cross-examination, the Commission will not consider what you have said in its final deliberations. DISCLOSURE OF ANY EX-PARTE COMMUNICATIONS A MOTION OF THE CITY COMMISSION OF THE CITY OF AVENTURA APPROVING A MODIFICATION TO PARAGRAPH I(C) OF RESOLUTION NO. 99-52 TO ALLOW AN ADDITIONAL 90 DAYS. 4. APPROVAL OF MINUTES: Commission Workshop Commission Meeting Commission Meeting Commission Workshop October 29, 1999 November 2, 1999 November 23, 1999 November 23, 1999 5. AGENDA: Request for Deletions/Emergency Additions 6. SPECIAL PRESENTATIONS: Certificate of Appreciation to Noel Sturtz 7. CONSENT AGENDA: Matters included under the Consent Agenda are self-explanatory and are not expected to require discussion or review. Items will be enacted by one motion. If dlscussion is desired by any member of the Conunission, that item must be removed fi.om the Consent Agenda and considered separately. A. A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF AVENTURA, FLORIDA AUTHORIZING THE CITY MANAGER TO EXECUTE THE ATTACHED TRAFFIC CONTROL JURISDICTION AGREEMENT BETWEEN COMMODORE PLAZA CONDOMINIUM ASSOCIATION AND THE CITY OF AVENTURA; AUTHORIZING THE CITY MANAGER TO DO ALL THINGS NECESSARY TO CARRY OUT THE AIMS OF THIS RESOLUTION; AND PROVIDING AN EFFECTIVE DATE. (Authorizes City Manager to execute agre~:~ent for traffic enforcemem at the Commodore Plaza Condominium) B. MOTION ADOPTING THE YEAR 2000 LEGISLATIVE PROGRAM AND PRIORITIES IN ACCORDANCE WITH THE CITY MANAGER'S MEMORANDUM DATED NOVEMBER 30, 1999 (Approves Legislative Program for Year 2000) C. A RESOLUTION OF THE CITY COMMSSION OF THE CITY OF AVENTURA, FLORIDA REQUESTING CONGRESS TO ADOPT LEGISLATION PROVIDING FOR SALES AND USE TAX FAIRNESS AMONG ALL RETAIL MERCHANTS; AND PROVIDING AN EFFECTIVE DATE. (Addresses Internet Commerce Sales Tax issue) D. A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF AVENTURA, FLORIDA~ APPROVING THE APPOINTMENT OF MEMBERS TO THE CITY OF AVENTURA BEAUTIFICATION ADVISORY BOARD; AND PROVIDING AN EFFECTIVE DATE. (Provides for reappointment of members to tl~ Beauthfcation Adv'mory Board) E. A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF AVENTURA, FLORIDA APPROVING THE "AVENTURA LAKES PHASE II" FINAL PLAT SECTION 34, TOWNSHIP 51 SOUTH, RANGE 42 EAST CITY OF AVENTURA, MIAMI-DADE COUNTY~ FLORIDA; PROVIDING FOR RECORDATION; PROVIDING AN EFFECTIVE DATE. (Approves Final Plat for Aventura Lakes Phase II) F. A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF AVENTURA, FLORIDA APPROVING THE "AVENTURA WALGREENS SUBDIVISION" FINAL PLAT SECTION 3, 2 TOWNSHIP 52 SOUTH, RANGE 42 EAST CITY OF AVENTURA, MIAM1-DADE COUNTY, FLORIDA; PROVIDING FOR RECORDATION; PROVIDING AN EFFECTIVE DATE. (Approves Final Plat for Aventura Walgreens Subdivison) 8. PUBLIC HEARING: ORDINANCES - FIRST READING: 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 IN 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. AN ORDINANCE OF THE CITY OF AVENTURA, FLORIDA, AMENDING CHAPTER 30 '*ENVIRONMENT" BY CREATING ARTICLE V "TERMITE DAMAGE PREVENTION" CONSISTING OF SECTION 30-180 "TERMITES; DEVELOPMENT OF LAND; ANNUAL INSPECTION;" PROVIDING FOR INCLUSION IN THE CODE; PROVIDING FOR SEVERABILITY; PROVIDING FOR PENALTY; PROVIDING FOR EFFECTIVE DATE. 9. PUBLIC HEARINGS: ORDINANCES- SECOND READING: AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF AVENTURA, FLORIDA, AMENDING ORDINANCE NO. 99-13, WHICH ORDINANCE ADOPTED A BUDGET FOR THE 1999/2000 FISCAL YEAR BY REVISING THE 1999/2000 FISCAL YEAR OPERATING AND CAPITAL BUDGET AS OUTLINED IN EXHIBIT "A" ATTACHED HERETO; AUTHORIZING THE CITY MANAGER TO DO ALL THINGS NECESSARY TO CARRY OUT THE AlMS OF THIS ORDINANCE; PROVIDING FOR AN EFFECTIVE DATE. AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF AVENTURA, FLORIDA, AMENDING ORDINANCE NO. 98-22, WHICH ORDINANCE ADOPTED A BUDGET FOR THE 1998/99 FISCAL YEAR BY REVISING THE 1998/99 FISCAL YEAR OPERATING AND CAPITAL BUDGET AS OUTLINED IN EXHIBIT "A' ATTACHED HERETO; AUTHORIZING THE CITY MANAGER TO DO ALL THINGS NECESSARY TO CARRY OUT THE AIMS OF THIS ORDINANCE; PROVIDING FOR AN EFFECTIVE DATE. 10. RESOLUTIONS: None. OTHER BUSINESS: None. ~2. REPORTS 13. PUBLIC COMMENTS ~4. ADJOURNMENT SCHEDULE OF FUTURE MEETINGS/EVENTS: Commission Workshop Commission Meeting Commission Workshop January 25, 2000 February 1, 2000 February 25, 2000 6 p.rc~ * * 9 a.m.* 4 CITY OF AVENTURA COMMUNITY DEVELOPMENT DEPARTMENT MEMORANDUM TO: FROM: BY: DATE: City Commission ~ ~ Eric M. Soroka, Cit, yqvlana~l'el~ Brenda Kelley, C~n~un~ De~opment Direct~.~ December 17, 1999 ~ ~ SUBJECT: Request of Aventura Land Holding, Ltd. for modification of a condition of Resolution No. 99-52 which approved a sales office and model home trailer at the Hamptons South site at 20201 East Country Club Drive, Aventura January 4, 2000 City Commission Meeting Agenda Item RECOMMENDATION It is recommended that the City Commission approve a modification to Paragraph 1 (c) of Resolution No. 99-52 to allow an additional 90 days. THE REQUEST The applicant, Aventura Land Holding, Ltd., requests additional time in which to obtain site plan approval for the permanent residential development of the property. (See Exhibit #1 for Letter of Intent) DESCRIPTION OF LAND OWNER OF PROPERTY Aventura Land Holding, Ltd. LOCATION OF PROPERTY East Country Club Drive (see Exhibit #2 for Location Map) SIZE OF PROPERTY Approximately 4.386 acres LEGAL DESCRIPTION A portion of the F-3 site being a portion of Aventura Fifth Addition, as recorded in Plat Book 116 at Page 39 of the Public Records of Miami-Dade County, Florida BACKGROUND On October 5, 1999, the applicant received variance approval to permit a temporary sales office and model home trailer on this property without an approved site plan for the permanent use, which it is intended to serve. Condition 1. (c) of Resolution No. 99-52 states that the applicant shall provide all necessary plans and information to enable the City to issue final site plan approval within 90 days of the date of the Resolution (see Exhibit #3 for resolution) The applicant has been working diligently since the passage of the Resolution to provide a site plan that conforms to the City's Land Development Regulations, however, due to site constraints, several submissions have been necessary to date. City staff and the applicant continue to work together toward site plan approval but this approval has not been granted to date. It is anticipated that the next site plan submission will be reviewed at the regularly scheduled Development Review Committee meeting of January 26, 2000, Depending upon the submission made, variance approval may be required. The applicant is therefore requesting additional time to obtain final site plan approval. Staff believes that the granting of a further 90 day period maintains the original intent of City Commission, which was to ensure that no occupation of the sales office and model home trailer occurs until site plan approval has been obtained. It is therefore recommended that Paragraph 1. (c) of Resolution 99-52 be changed from: "the Applicant shall take any and all action necessary and provide ail necessary plans, data and information, so as to be ready for final site plan approval by City within 90 days after the date of adoption of this resolution. If Applicant has not taken all steps necessary to enable City to approve the final site plan for the permanent residential development and use of the property within such 90 day period, the Facilities shall be subject to removal" "the Applicant shall take any and all action necessary and provide all necessary plans, data and information, so as to be ready for final site plan approval by City within 180 days after the date of adoption of this resolution. If 2 Applicant has not taken all steps necessary to enable City to approve the final site plan for the permanent residential development and use of the property within such 180 day period, the Facilities shall be subject to removal" 3 RESOLUTION NO. 99-52 A RESOLUTION OF THE CITY COMMISSION OF THE CiTY OF AVENTURA, FLORJDA APPROVING A REQUEST FOR VARIANCE FROM SECTION 605.2.1 OF THE CITY'S LAND DEVELOPMENT REGULATIONS WHICH PROHIBITS TEMPORARY SALES OFFICES AND MODEL HOMES AT THE PROPERTY WITHOUT AN APPROVED SITE PLAN FOR THE PERMANENT USE WHICH IT IS INTENDED TO SERVE; PROVIDING AN EFFECTIVE DATE, WHEREAS, the property described herein is zoned RMF4, Multi-Family High Density Residential District; and WHEREAS, the Applicant, Aventura Land Holding. Inc., through/~opiicatio~ No. 09-VAR-99, has requested a variance fi.em Sectio~ 505,2.1 of fl~e City's Land Development Regulations prohibiting temporary sales offices and model homes at sites w~thout an approved site plan for the permar~nt use which it is intended to serve in order to permit a temporary sales office and model home on the site prior to approvat of a site plan for the permar~nt use; and WHEREAS a vested rights determination request is presently pending for the development and use of the property; and WHEREAS, follow~ng proper notice, the City Commission has hsid a public hearing as provided by law;, and WHEREAS, the City Commission finds that the Application meets the criteria of the applicable codes and ordinances to the extent the application is granted herein. Resolution No. 99-52 Page 2 NOW, THEREFORE, BE IT RESOLVED BY THE CiTY COMMISSION OF THE CITY OF AVENTURA, FLORIDA, THAT: Section 1. Application No. 09-VAR-99 for a variance from Section 505.2.1 of the City's Land Development Regulations prohibiting temporary sales offices and model homes at sites without an approved site plan for the permanent use whic~ it is intended to serve, on property legally described as: A po~on of the F-3 site, being a portion of Aventura Fifth Addition, as recorded in Plat Book 116, Page 39, Official Records of Miami-Dade County, Florida, aka Hamptons F-3 site is hereby granted exclusively to Aventura Land Holding, thc. su~ect to the following terms and conditions: CONDITION 1. The applicant shall execute a Sales Office and Model Home Installation and Removal Agreement (the 'Agreement') in a form approved by the City Afforney. The Agreement shall include, but not be limited to, provisions requiring: (a) a sure~3j bend in the amount of $50,000.00 shall be posted by Applicant assuring removal of the sales office end models (the 'Facilities') within the time limit specified by the City Menage, (b) the Facilities shall not be open and a certificate of use or occupancy shall not be issued for the Facilities unleSS and until the final site plan is approved by the City for the permanent residential development and use of the property; (c) the Applicant shall take any end all action necessary and provide all necessary plans, date and information, so as to be ready for final site plan approval by City within 90 days after Resolution No. 99*52 Page 3 the date of adoption of this resolution. If Applicant has not taken all steps necessary to enable City to approve the final site plan for the permanent residential development and use of the property within such 90 day period, the Facilities shall be subject to removal; (d) the Applicant shall install the Facilities and landscape the area of the Facilities in such manner as to avoid or reduce visibility from outside of the property; (e) the Applicant shall acknowledge that app,'oval of this variance shall not be construed as any evidence of the establishment of vested rights and shall not affect the pending vested rights determination application. Section 2. This Resolution shall become effective immediately upon its adoption. The foregoing Resolution was offered by Commissioner Holzberg, who rnovad its adoption. The motion was seconded by Commissioner Cohen, and upon being put to a vote, the vote was as follows: Commissioner Arthur Berger no Commissioner Jay R. Bssldn yes Commissioner Ken Cohen yes Commissioner Harry Holzberg yes Commissioner Jeffrey M. Pertow yes Vice Mayor Patdcia Rogers4_ibert yes Mayor Arthur L Snyder no PA~'SED AN D ADOPTED this 5'~ day of Oct°ber/~/~_~., '~ ~, ~.4. ATTEST: ~Teresa M Soreka, CMC/AAE, City Clerk Resolution No. 99-52 Page 4 APPROVED AS TO LEGAL SUFFICIENCY: CiTY A'~'ORN EY This ResolutiOn was filed in the Office of the City Clerk this . CITY CLERK , .' day of October, 1999. BILZIN SUMBgRO DUNN PRICr & AX£LROD LLP December 20, 1999 Mr. Eric Soroka City Manager Brenda Kelley Director of Community Development City of Avell[ura, Coeoonrse Center 2999 N.E. 191 Street, 5~ Floor Aventura, FL 33180 Re: Modification to City Resolution No: 99-52 Dear Mr. City Manager and Ms. Kelley: On behalf of my clients, Aventura Land Holding, Inc., we are respectfully requesting an appearance before the City Commission to seek to moctify the Resolution No. 99-52 m extend the ninety (90) day period for securing site plan approval. As you are both well aware, we have diligently sought site plan approval and we are in the process of resolving the last of several issues which ht,~e~been raised by the City's professional staff. We sincerely appreciate the courtesy'you have extended to us and we ask that we be permitted to appear before the City Commission to ask for an extension of time to comply with the mrms and conditions of Resolution No. 99-52. Please advise us at your earliest convenience as to an appropriate date in which rite hearing will be conducted. Respectfully yours, SBP:cm cc: Brian Street Fabio Perez-Polo A ntc. MINUTES CITY COMMISSION WORKSHOP MEETING OCTOBER 29, '1999 9 AM Aventura Government Center 2999 NE 191~ Street Suite 500 Aventura, Florida 33180 The meeting was called to order at 9:00 a.m. by Mayor Arthur I. Snyder. Present were Commissioners Jay R. Beskin, Ken Cohen, Harry Holzberg, Jeffrey M Perlow, Patricia Rogers-Libert, Vice Mayor Arthur Berger, Mayor Snyder, City Manager Eric M Soroka, City Clerk Teresa M Soroka, and City Attorney David M. Wolpin. As a quorum was determined to be present, the meeting commenced. LIBRARY COMMrl-rEE UPDATE: Minutes from the Library sub-Committee were provided to the Commission and discussed by Commissioner Beskin. Consensus to proceed as suggested by the Committee. In addition, surveys to be placed on website and in newsletter to obtain additional public input. TOWN CENTER MEETING UPDATE: Mr. Soroka discussed the response received from Loehmann's Propery Manager. Consensus of Commission to discuss concept further with owners of Loehmann's property prior to proceeding with feasibility study. 10. BOARD REPORTS. Janet Laine, Chair of the Recreation and Cultural Arts Advisory Board, updated the Commission on the Board's activities. AVENTURA BLVD. ENTRANCE FEATURE. Mr. Soroka provided an amended rendering prepared by the City's Landscape Architect, in accordance with suggestions made by the Beautification Committee. Consensus to proceed with design in accordance with rendering. Landscape Architect to provide alternatives using different materials. WATERWAYS PARK IMPROVEMENTS. Mr. Soroka and Mr. Sherman outlined proposed improvements to the park area. TELECOMMUNICATIONS ORDINANCE. Comparisons, as requested, submitted to the Commission. Further discussion deferred to next Workshop Meeting. CULTURAL ARTS CENTER FEASIBILITY STUDY UPDATE. Mr. Soroka noted that staff interviewed firms to conduct feasibility study. He outlined what information the feasibility study would provide. Consensus to proceed with feasibility study. City Manager to determine if subject firms could include library in feasibility study. 7. HOSPITAL DISTRICT PROPERTY. Commission discussed request from owner of 14 lots in this distdct that the City purchase these lots. Commission directed 10. 11. staff to advise owner of City's interest to purchase only if the purchase price is deemed to be economically feasible to the City. DEFIBRILLATORS (Commissioner Cohen). Commissioner Cohen provided videotape of a national news story regarding defibrillators and encouraged the use thereof by in public places within the City. Commission requested Police Chief attend November Workshop meeting for further discussion, DADE LEAGUE REPRESENTATIVE.(Comm|ssioner Cohen). Mayor to make appointment and advise Commission. BOARD REPORTS. Marian Nesbitt reported as to the Beautification Advisory Board's recent meeting. ADJOURNMENT: There being no further business to come before the Commission at this time, after motion made, seconded and unanimously passed, the meeting adjourned at 10:50 a.m. Teresa M. Soreka, CMC/AAE City Clerk Approved by the Commission on Anyone wishing to appeal any decision made by the City Commission with respect to any matter considered at a meeting or hearing w~l[ need a record of the proceedings and, for such purpose, may need to ensure that a verbatim record of the proceedings is made, which record includes the testimony and evidence upon which the appeal is to be based. 2 CITY COMMISSION MEETING Bisceyne Medical Arts Center Aventura, Flodda 1. CALL TO ORDER/ROLL CALL: The meeting was called to order at 6:00 p.m by Vice Mayor Arthur Berger. Present were Commissioners Jay R. Beskin, Ken Cohen, Harry Holzberg, Jeffrey M. Pedow, Patricia Rogers-Libert, Vice Mayor Berger, Mayor Arthur I. Snyder, City Manager Edc M. Soroka, City Clerk Teresa M. Soroka, and City Attorney Richard Jay Weiss. As a quorum was determined to be present, the meeting commenced. 2, PLEDGE OF ALLEGIANCE. Mr. Geller led the pledge of allegiance. 3. ZONING HEARINGS - SPECIALLY SET BY COMMISSION FOR 6 P.M. Ex-parte communications by Commissioners, if any, were disclosed and filed with the City Clerk in accordance with Ordinance 96-09. All witnesses giving testimony in these hearings were sworn in by the City Clerk. A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF AVENTURA, FLORIDA APPROVING A SIGN VARIANCE FOR CITY NATIONAL BANK OF FLORIDA, LOCATED AT 2875 NE '191 STREET, TO ALLOW TWO WALL SIGNS, EACH 666 SQUARE FEET IN AREA ON THE NORTH AND SOUTH ELEVATIONS WHERE ONLY ONE WALL SIGN OF 160 SQUARE FEET IN AREA IS ALLOWED; APPROVING A SIGN VARIANCE TO PERMIT TWO WALL SIGNS TO BE LOCATED MORE THAN 80% ABOVE THE BUILDING'S ROOFLINE; PROVIDING AN EFFECTIVE DATE. At the request of the applicant, a motion to continue this matter to the January 4, 2000 Commission meeting was offered by Commissioner Rogers-Libert, seconded by Commissioner Perlow and unanimously passed, 6-0, with Mayor Snyder disclosing his conflict of interest, filing the appropriate disclosure form and abstaining from the vote. APPROVAL OF MINUTES: A motion to approve the minutes of the October 5, 1999 Commission Meeting was offered by Commissioner Rogers-Libert, seconded by Vice Mayor Berger and unanimously passed. 5. AGENDA: REQUESTS FOR DELETIONS/EMERGENCY ADDITIONS: None. SPECIAL PRESENTATIONS: Mayor Snyder presented a Certificete of Appointment to newly-appointed Recreation and Cultural Arts Advisory Board member Barbara Brighton. Commissioners Cohen and Rogers-Libert presented a flag flown over the US Capitol on September 14, 1999 at the request of Senator Bob Graham for the City of Aventura. 7. CONSENTAGENDA: Vice Mayor Berger requested removal of items 7D, 7E and 7J, Commissioner Perlow requested removal of items 7H and 7K, and Commissioner Holzberg requested removal of items 7A, 7C, 7F and 7G, all from the Consent Agenda. A motion to approve the remainder of the Consent Agenda was offered by Commissioner Rogers-Liber[, seconded by Commissioner Holzberg, unanimously passed and the following action was taken: B. Resolution No. 99-59 was adopted as follows: A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF AVENTURA, FLORIDA PROVIDING FOR ACCEPTANCE OF DEDICATION OF PUBLIC ROAD RIGHT OF WAY FOR NORTHEAST 34TM AVENUE: AUTHORIZING THE CITY MANAGER TO OBTAIN AND EXECUTE INSTRUMENTS CONCERNING DEDICATION; AUTHORIZING ACCEPTANCE OF DEDICATION; PROVIDING FOR EFFECTIVE DATE. I, Resolution No. 99-60 was adopted as follows: A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF AVENTURA, FLORIDA, AUTHORIZING THE CITY MANAGER TO EXECUTE THE A'I-FACHED WORK AUTHORIZATION NO. '1999-10-13- 01 FOR PROFESSIONAL DESIGN SERVICES FOR NE 34TM AVENUE STREET LIGHTING IMPROVEMENTS BY AND BETWEEN THE CITY OF AVENTURA AND C.A.P. ENGINEERING CONSULTANTS, INC.; AUTHORIZING CITY MANAGER TO DO ALL THINGS NECESSARY TO CARRY OUT THE AIMS OF THIS RESOLUTION; AND PROVIDING AN EFFECTIVE DATE. The following items ware removed from the Consent Agenda and addressed separately: A. Mr. Weiss read the following resolution by title: A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF AVENTURA, FLORIDA AWARDING AND LE'I-FING A BID/CONTRACT FOR BID NO. 99-9-28-2, BISCAYNE FOUR MEDIANSIIRIGHT-OF-WAY 2 MAINTENANCE, TO LUKES' LANDSCAPING, INC., AT THE BID PRICE OF $77,000; AUTHORIZING THE CITY MANAGER TO EXECUTE ASSOCIATED CONTRACTS; AUTHORIZING THE CITY MANAGER TO TAKE NECESSARY AND EXPEDIENT ACTION TO CARRY OUT THE AIMS OF THIS RESOLUTION; PROVIDING FOR THE APPROPRIATION AND ALLOCATION OF FUNDS FOR SAID BID AWARD; AND PROVIDING FOR AN EFFECTIVE DATE. A motion for approval was offered by Commissioner Pedow, seconded by Commissioner Rogers-Libert, unanimously passed and Reeolution No. 99-61 was adopted. Mr. Weiss read the following resolution by title: A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF AVENTURA, FLORIDA AWARDING AND LETTING A BID/CONTRACT FOR BID NO. 99-5-21-2, NE 191 ST/NE 29 AVE/NE 187 ST LANDSCAPE IMPROVEMENTS, TO VILA & SON LANDSCAPING CORPORATION AT THE BID PRICE OF $119,897.75. AUTHORIZING THE CITY MANAGER TO EXECUTE ASSOCIATED CONTRACTS; AUTHORIZING THE CITY MANAGER TO TAKE NECESSARY AND EXPEDIENT ACTION TO CARRY OUT THE AIMS OF THIS RESOLUTION; PROVIDING FOR THE APPROPRIATION AND ALLOCATION OF FUNDS FOR SAID BID AWARD; AND PROVIDING FOR AN EFFECTIVE DATE. A motion for approval was offered by Commissioner Rogers-Libert, seconded by Commissioner Cohen, unanimously passed and Resolution No. 99-62 was adopted. D. Mr. Weiss read the following resolution by title: A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF AVENTURA, FLORIDA, AUTHORIZING THE CITY MANAGER TO EXECUTE THE ATTACHED WORK AUTHORIZATION NO. 15414.62 FOR PROFESSIONAL ENGINEERING SERVICES FOR DESIGN AND CONSTRUCTION OF THE FOUNDERS PARK OUTDOOR STAGE/BANDSTAND BY AND BETWEEN THE CITY OF AVENTURA AND KEITH AND SCHNARS, P.A. FOR THE AMOUNT OF $31,820; AND PROVIDING FOR AN EFFECTIVE DATE. A motion for approval was offered by Commissioner Cohen, seconded by Commissioner Rogers-Libert, unanimously passed and Resolution No. 99-63 was adopted. 3 Mr. Weiss read the following ordinance by title: AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF AVENTURA, FLORIDA, AMENDING ORDINANCE NO. 99-13, WHICH ORDINANCE ADOPTED A BUDGET FOR THE 1999/2000 FISCAL YEAR BY REVISING THE 1999/2000 FISCAL YEAR OPERATING AND CAPITAL BUDGET AS OUTLINED IN EXHIBIT "A" A'I-FACHED HERETO; AUTHORIZING THE CITY MANAGER TO DO ALL THINGS NECESSARY TO CARRY OUT THE AIMS OF THIS ORDINANCE; PROVIDING FOR AN EFFECTIVE DATE. Mr. Soroka noted a typographical error in the spreadsheet attachment which would be revised prior to second reading. A motion for approval was offered by Commissioner Beskin, seconded by Commissioner Rogers-Libed and unanimously passed by roll call vote. Mr. Weiss read the following resolution by title: A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF AVENTURA, FLORIDA, AUTHORIZING THE CITY MANAGER TO EXECUTE THE ATTACHED WORK AUTHORIZATION NO. 15414.65 FOR PROFESSIONAL ENGINEERING SERVICES FOR DESIGN AND CONSTRUCTION OF WATERWAYS PARK IMPROVEMENTS BY AND BETWEEN THE CITY OF AVENTURA AND KEITH AND SCHNARS, P.A. FOR THE AMOUNT OF $25,300; AND PROVIDING FOR AN EFFECTIVE DATE. A motion for approval was offered by Commissioner Rogers-Libert, seconded by Commissioner Perlow, unanimously passed and Resolution No. 99-64 was adopted. Mr. Weiss read the following motion: MOTION TO REJECT ALL BIDS TENDERED FOR BID NO. 99-9-24-2 - COLORED FILTER LENSES FOR UPMGHTS ON AVENTURA BLVD. A motion for approval was offered by Commissioner Rogers-Libert, seconded by Vice Mayor Berger and unanimously passed. Mr. Weiss read the following resolution by title: A RESOLUTION OF THE AVENTURA, FLORIDA, CITY COMMISSION OF THE CITY OF PROVIDING FOR ACCEPTANCE OF 4 DEDICATION OF PRIVATE ROAD RIGHT OF WAY FOR YACHT CLUB WAY IN THE CITY OF AVENTURA; AUTHORIZING CITY MANAGER TO OBTAIN DEDICATION; AUTHORIZING ACCEPTANCE OF DEDICATION; PROVIDING FOR EFFECTIVE DATE. A motion for approval was offered by Commissioner Rogers-Libert, seconded by Commissioner Beskin. Ted LeSavoy, Mystic Point, addressed the Commission. The motion was unanimously passed and Resolution No. 99-65 was adopted. Mr. Weiss read the following resolution by title: A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF AVENTURA, FLORIDA, AUTHORIZING THE A'n'ACHED SAFE NEIGHBORHOOD PARKS INTEREST EARNINGS GRANT APPLICATION AS DESCRIBED IN EXHIBIT "A" BETWEEN THE CITY OF AVENTURA AND MIAMI-DADE COUNTY FOR A GRANT IN THE AMOUNT OF NINETY EIGHT THOUSAND SEVEN HUNDRED TEN DOLLARS ($98,710.00) FROM THE MIAMI-DADE COUNTY SAFE NEIGHBORHOOD PARKS BOND PROGRAM; AND AUTHORIZING THE CITY MANAGER TO DO ALL THINGS NECESSARY TO CARRY OUT THE AIMS OF THIS RESOLUTION; AND PROVIDING AN EFFECTIVE DATE. A motion for approval was offered by Commissioner Rogers-Liber[, seconded by Commissioner Cohen, unanimously passed and Resolution No. 99-66 was adopted. Mr. Weiss read the following ordinance by title: AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF AVENTURA, FLORIDA, AMENDING ORDINANCE NO. 98-22, WHICH ORDINANCE ADOPTED A BUDGET FOR THE 1998/99 FISCAL YEAR BY REVISING THE 1998/99 FISCAL YEAR OPERATING AND CAPITAL BUDGET AS OUTLINED IN EXHIBIT "A" ATTACHED HERETO; AUTHORIZING THE CITY MANAGER TO DO ALL THINGS NECESSARY TO CARRY OUT THE AIMS OF THIS ORDINANCE; PROVIDING FOR AN EFFECTIVE DATE. Mr. Soroka noted a typographical error in the spreadsheet attachment which would be revised prior to second reading. A motion for approval Was offered by Commissioner Rogers-Libert, seconded by Commissioner Cohen, and unanimously passed by roll call vote. 5 9. 10. 11. 12. 13. 14. PUBLIC HEARING: ORDINANCES- FIRST READING: None. PUBLIC HEARINGS: ORDINANCES - SECOND READING: None RESOLUTIONS: Mr. Weiss read the following resolution by title: A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF AVENTURA, FLORIDA, EXPRESSING OPPOSITION TO THE INTERNET TAX FREEDOM ACT AND ANY ENACTMENTS WHICH WOULD PRE-EMPT LOCAL TAXES AND/OR FEES ON INTERNET COMMERCE; AND PROVIDING AN EFFECTIVE DATE. (Commissioner Rogers-Libert) A motion for approval was offered by Commissioner Holzberg and seconded by Commissioner Rogers-Libert. An amendment was offered by Vice Mayor Berger, seconded by Commissioner Rogers-Libert and unanimously passed to amend section 1 to read "No federal legislation be enacted whose effect would be to preempt local and state taxes." A motion to defer this matter to November 23, 1999 was offered by Vice Mayor Berger, seconded by Commissioner Beskin and unanimously passed. OTHER BUSINESS: None. REPORTS: None. PUBLIC COMMENTS: None. ADJOURNMENT: There being no further business to come before the Commission at this time, after motion made, seconded and unanimously passed, the meeting adjourned at 7:25 p.m. Approved by the Commission on Teresa M Soroka, CMC/AAE City Clerk Anyone wishing to appeal any decision made by the City Commission w~th respect to any matter considered at a meeting or headng will need a record of the proceedings and, for such purpose, may need to ensure that a verbatim record of the proceedings is made, which record includes the testimony and evidence upon which the appeal is to be based 6 Aventura 2999 NE 191st ~r~ Suite 5~ Av~tura, Fledda 33180 CALL TO ORDER/ROLL CALL: The meeting was called to order at 9:00 a.m. by Mayor Arthur I. Snyder. Present were Commissioners Jay R. Beskin, Ken Cohen, Harry Holzberg, Jeffrey M. Perlow (arrived at 9:06 a.m.), Patricia Rogers- Libert, Vice Mayor Arthur Berger, Mayor Snyder, City Manager Eric M. Soroka, City Clerk Teresa M. Soreka, and City Attorney David M. Wolpin. As a quorum was determined to be present, the meeting commenced. RESOLUTION: Mr. Wotpin read the following resolution by title: A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF AVENTURA, FLORIDA, SELECTING THE FIRM OF R. J. HEISENBOTTLE ARCHITECTS, P.A. TO PROVIDE CONSULTING SERVICES ASSOCIATED WITH I.S.Q. NO. 99-9-24-10, CULTURAL ARTS CENTER FACILITY FEASIBILITY STUDY; AUTHORIZING THE CITY MANAGER TO EXECUTE THE ATTACHED AGREEMENT; AUTHORIZING CITY MANAGER TO DO ALL THINGS NECESSARY TO CARRY OUT THE AIMS OF THIS RESOLUTIONS; AND PROVIDING AN EFFECTIVE DATE. A motion for approval was offered by Commissioner Beskin and seconded by Commissioner Cohen. Commissioner Rogers-Libert requested that the Agreement be clarified to provide that should the study be extended, at the request of the City, longer than as currently provided for, the Consultant shall be entitled to additional fees for said additional period. The motion for approval passed unanimously by roll call vote and Resolution No. 99-67 was adopted. City Manager to reiterate to Consultant that the study should not be limited to a performing arts center, and amend the agreement to emphasize a Cultural Arts Facility. ADJOURNMENT: There being no further business to come before the Commission at this time, after motion made, seconded and unanimously passed, the meeting adjourned at 9:20 a.m. Teresa M. Soroka, CMC/AAE City Clerk Approved by the Commission on Anyone wishing to appeal any decision made by the City Commission with respect to any matter considered at a meeting or hearing will need a record of the proceedings and, for such purpose, may need to ensure that a verbatim record of the proceedings is made, which record includes the testimony and evidence upon which the appeal is to be based. MINUTES CITY COMMISSION WORKSHOP MEETING NOVEMBER 23, 1999 9 AM Aventura Government Center 2999 NE 191'~ Street Suite 500 Aventura, Florida 33180 The meeting was called to order at 9:20 a.m. by Mayor Arthur I. Snyder. Present were Commissioners Jay R. Beskin, Ken Cohen, Harry Holzberg, Jeffrey M Perlow, Patricia Rogers-Libert, Vice Mayor Arthur Berger, Mayor Snyder, City Manager Eric M. Soroka, City Clerk Teresa M. Soroka, and City Attorney David M. Wolpin. As a quorum was determined to be present, the meeting commenced. LEGISLATIVE SESSION PRIORITIES: Mr. Soroka explained the draft legislative priorities. Commissioner Rogers-Libert requested that funding for electric vehicles be expanded to include alternative fuels. Ronald L. Book, Esq., the City's Lobbyist, addressed the Commission relative to the proposed priorities. Mr. Book suggested, and the Commission concurred, adding to the priorities the City's opposition to the Statewide Building Code provision for privatizing of building inspectors by developers. INTERNET TAX FREEDOM ACT (Commissioner Rogers-Libert): North Miami Councilwoman Jeanette Carr spoke to the Commission relative to this matter. Consensus of Commission to address an amended resolution at the January Commission meeting. TELECOMMUNICATIONS ORDINANCE: At the request of the Commission, Braulio Baez, Esq., Liebowitz & Associates, the City's cable counsel, provided a comparison between the proposed ordinance and the City's existing agreement with BellSouth. Consensus to address proposed ordinance on first reading at January Commission meeting. FORMOSAN TERMITE UPDATE: Mr. Soroka distributed the results of the survey conducted to determine if, when and how properties within the City had addressed this matter. City Attorney to prepare legislation addressing termite prevention and include therein requirement that Homeowners Association provide the City with inspection reports of homes within their association. EXPANSION OF BUS SERVICE: Mr. Soroka provided Commission with a recommendation to expand bus service to Saturday based on user survey. Consensus to proceed commencing December 11, 1999 thru end of March 2000, at which time expansion to be re-evaluated. PARK WATER FEATURE STUDY UPDATE: Consensus to obtain additional information relative to operational costs. GUN FREE ZONE (Commissioner Beskin): At the suggestion of Commissioner Beskin, Commission requested City Attorney research City's implementation of the following: 1) Gun buy-back program; 2) Requesting businesses to designate their properties as gun4ree zones; and 3) Declaring City a gun~free zone and posting signs. 8. VOLUNTEER PROGRAM (Vice Mayor Berger): Withdrawn. OFFICE BUILDING SIGNAGE (Commissioner Perlow): At the request of Commissioner Perlow and consensus of Commission, staff to prepare legislation amending LDRs providing separate criteria for office building signage. 10. BOARD REPORTS. None, Mr. Wolpin requested and Commission approved scheduling of Executive Session to discuss pending litigation. ADJOURNMENT: There being no further business to come before the Commission at this time, after motion made, seconded and unanimously passed, the meeting adjourned at 12 noon. Teresa M. Soroka, CMC/AAE City Clerk Approved by the Commission on Anyone wishing to appeal any deCision made by the City Commission with respect to any matter considered at a meeting or headng will need a record of the proceedings and, for such purpose, may need to ensure that a verbatim record of the prcceedings is made, which record includes the testimony and evidence upon which the appeal is to be based 2 TO: FROM: DATE: SUBJECT: CITY OF AVENTURA OFFICE OF THE CITY MANAGER MEMORANDUM City Commission /~ Eric M. Soroka, Cit~,Tvj~1ageI December 7, 1999 ~\ Traffic Control Jurisdiction Agreement Condominium Association Commodore Plaza January 4, 2000 City Commission Meeting Agenda Item RECOMMENDATION It is recommended that the City Commission authorize the execution of the attached Traffic Control Jurisdiction Agreement with Commodore Plaza Condominium Association to provide traffic control jurisdiction by our Police Depadment over the private roads within the condominium. The Agreement will increase the visibility of the police force and enhance traffic enforcement. BACKGROUND In our continued efforts to provide improved police services to the community, we have initiated a program that allows a condominium or homeowners associations to enter into an Agreement with the City to provide traffic control jurisdiction over a private roadway within the development. This permits the Police Department to conduct traffic enforcement activities on private property at the request of the owner. Florida State Statute 316.006 allows municipalities to enter into such agreements provided they are reimbursed for the actual costs of traffic control and enforcement, the owner agrees to indemnify the City and provide liability insurance. The City will bill the owner $25.00 per hour for each officer required to perform the traffic enforcement detail when requested by the owner. Whenever possible, traffic complaints made by the occupants of the property will be responded to and handled as a call for service, without charge to the owner. Memo to City Commission Page 2 The program has been received well by the community. If you have any questions, please feel free to contact me. EMS/aca Attachment CC0826-99 RESOLUTION NO. 2000-._ A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF AVENTURA, FLORIDA AUTHORIZING THE CITY MANAGER TO EXECUTE THE ATTACHED TRAFFIC CONTROL JURISDICTION AGREEMENT BETWEEN COMMODORE PLAZA CONDOMINIUM ASSOCIATION AND THE CITY OF AVENTURA; AUTHORIZING THE CITY MANAGER TO DO ALL THINGS NECESSARY TO CARRY OUT THE AIMS OF THIS RESOLUTION; AND PROVIDING AN EFFECTIVE DATE. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF AVENTURA, FLORIDA, THAT: Section 1. The City Manager is hereby authorized to execute the attached Traffic Control Jurisdiction Agreement between Commodore Plaza Condominium Association and the City of Aventura. Section 2. The City Manager is hereby authorized to do all things necessary to carry out the aims of this Resolution. Section 3. This Resolution shall become effec[ive immediately upon its adoption. The foregoing Resolution was offered by Commissioner who moved [ts adoption. The motion was seconded by Commissioner , and upon being put to a vote, the vote was as follows: Commissioner Jay R. Beskin Commissioner Ken Cohen Commissioner Harry Holzberg Commissioner Jeffrey M. Perlow Resolution No. 2000-__. Page 2 Commissioner Patricia Rogers-Libert Vice Mayor Arthur Berger Mayor Arthur I. Snyder PASSED AND ADOPTED this 4th day of January, 2000. A~FEST: ARTHURI. SNYDER, MAYQR TERESA M SOROKA, CMC/AAE CITY CLERK APPROVED AS TO LEGAL SUFFICIENCY: CiTY ATTORNEY by TRAFFIC CONTROL JURISDICTION AGREEMENT THIS AGREEMENT is made and entered into this1 2 day of November and behveen Commodore Plaza Condominium Association · 199_9, (the "Owner") and the City of Aventura, Florida, a Florida municipal corporation (the "City"). RECITALS A. Owner owns fee simple title to all the private roadways within the area described as follows: Williams Island Blvd. (183rd St.) - Little Maule Lake - Del Prado fence - Washington Mutual fence. of Dade County, Florida, and commonly known as Commodore Plaza, it ' s parking lots, garage and roadways. (the "Private Roads"). B. Owner desires the City to exercise traffic control jurisdiction over the Private Roads, and City desires to exercise such traffic control jurisdiction, pursuant to FIodda State Statutes 316.006. NOW, THEREFORE, for Ten and No/100 Dollars ($10.00) and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Owner and City agree as follows: 1. Recitals. The foregoing Recitals are true and correct and are incorporated herein by this reference. 2. Traffic Control Jurisdiction Services. The City agrees to exercise traffic control jurisdiction over the Private Roads in accordance with the following terms and conditions. (a) City shall provide for Police Off~cers of its Police Department to patrol, by motor vehicle, the Private Roads, in accordance with the schedule and manpower indicated on Exhibit "A" attached hereto, subject to availability. (b) In exercising such traffic control jurisdiction, the City shall enforce the traffic laws generally applicable to streets and highways under the City's original jurisdiction which are similar in nature to the Private Roads, except only that the City shall enforce the speed limit established by Owner, in Owner's sole discretion, for the Private Roads, which speed limit Owner shall post along the Private Roads by appropriate signage. (c) The City's exercise of traffic control jurisdiction pursuant to this Agreement shall be in addition to the jurisdictional authority presently exercised by the City over the Private Roads under law, and nothing herein shall be construed to limit or remove any such jurisdictional authority, the City agreeing to continue to provide such other police services as are otherwise provided under law. (d) In addition to exercising traffic control jurisdiction over the Private Roads as indicated on Exhibit "A", the City shall be entitled to exercise traffic control jurisdiction, even when not requested by Owner; provided, however, the City shall not be entitled to any compensation fram Owner pursuant to Paragraph 3 below for exemising such discretionary additional traffic control jurisdiction, although the City shall 2 © be entitled to retain all revenues from traffic citations issued by the City for violations of traffic laws along the Private Roads, in accordance with law. (e) Nothing in this Agreement shall require, authorize or permit the City to exercise any control or responsibility concerning the installation or maintenance of traffic control devices. 3. Compensation. Owner shall compensate City for the services performed by the City under this Agreement at the rate indicated on Exhibit "B" attached hereto, so as to assure full reimbursement for costs incurred by City, as determined by City, on the 15th day of each month for service provided in the prior month, upon invoice from City. In addition, the City shall be entitled to retain all revenues from traffic citations issued by the City for violation of traffic laws along the Private Roads as provided by law. Except as provided in the first sentence of this Paragraph 3, Owner shall not be responsible to pay the City any compensation for performing police services pursuant to this Agreement. This shall not preclude the assessment of impact fees or other fees provided by law. 4. Liability Not Increased. Neither the existence of this Agreement nor anything contained herein shall give rise to any greater liability on the part of the City than the City would ordinarily be subjected to when providing its normal police services as routinely provided throughout the City. 5. Term. The term of this Agreement shall be one (1) year commencing on the date hereof and ending one (1) year following the date hereof, and shall thereafter automatically continue for successive one (1) year terms, unless terminated by either 3 O party upon written notice to the other party given at least thirty (30) days prior to the expiration of the then-applicable one (1) year term. 6. Entire Aqreement. This Agreement constitutes the entire understanding and agreement of the parties with respect to the subject matter hereof and may not be changed, altered or modified except by an instrument in writing signed by the party against whom enforcement of such change would be sought. 7. Goveminq Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida. Venue for any litigation between the patties for any controversy arising from or related to this Agreement shall be in the 11th Judicial Circuit in and for Dade County, Florida. 8. Indemnification and Insurance. Owner agrees to defend, indemnify and hold the City harmless from any claim, demand, suit, loss, cost, expense or damage which may be asserted, claimed or recovered against or from the City by reason of any property damage or bodily injury, including death, sustained by any person whomsoever, which said claim, demand, suit, loss, cost, expense or damage arises out of or is incidental to or in any way connected with this Agreement, and regard]ess of whether such claim, demand, suit, loss, damage, cost or expense is caused in whole or in part by City's negligence, or by the negrigence of City's agents, servants or employees. In support, but not in limitation of this indemnification provision, Owner hereby agrees to maintain and pay all premiums for a policy of comprehensive general liability insurance in an amount of not less then $300,000 combined single limit insurance covering any occurrence on or adjacent to the Private Roads described above, resulting in properly damage or bodily injury or death to person or persons. 4 O Such insurance policy shall name the City and City's officers, agents and employees as additional insured with respect to traffic control or enforcement of the Private Roads and shall prov;de for 30 days prior written notice of any cancellation 2r change in scope or amount of coverage of such policy. Owner shall furnish City with a Certificate of Insurance evidencing compliance with the provisions of this section. EXECUTED as of the date first above written in several counterparts, each of which shall be deemed an original, but all constituting one Agreement. Signed, sealed and delivered In the presence of: OWNER: Commodore Plaza Condominium Daniel Eichmann ~/~-~-~ A%I-EST: CITY OF AVENTURA, a Florida Municipal corporation Teresa M. Soroka, CMC/AAE City Clerk By_ Eric M. Soroka City Manager Approved as to Legal Sufficiency: City Attorney 5 Exhibit A Aventura Police Officers in marked police vehicles or motorcycles will patrol the private roads of the Comr~oc]oz:e t~].az~ Condor~±n±ur~ Asso¢±at. io[~ on a random basis 24 hours per day. Whenever possible, Traffic complaints made by occupants of the property, will be responded to and handled as a call for service, without charge to the Owner. Traffic complaints that require extended patrol, where the cost of service will be billed to the Owner, will only be conducted with prior approval of the Owner. When requested by the Owner to perform specific traffic enforcement duties, the Owner will be billed in accordance with Exhibit B. 6 Exhibit B Compensation The City will bill the Owner $25.00 per hour for each officer required to perform the requested traffic enforcement detail. 7 © CITY OF AVENTURA OFFICE OF THE CITY MANAGER MEMORANDUM TO: FROM: DATE: SUBJECT: City Commission Eric M. Soroka, Cid~ November 30, 1999 2000 Legislative Programs and Priorities January 4, 2000 City Commission Meeting Agenda Item '7'~ RECOMMENDATION It is recommended that the City Commission adopt by motion the attached Legislative Programs and Priorities for the upcoming 2000 Legislative Session. The document includes the issues discussed at the November 1999 Workshop Meeting. If you have any questions, please feel free to contact me. EMS/aca Attachment CC0823-99 CITY OF AVENTURA LEGISLATIVE PROGRAM AND PRIORITIES ¢'z?y of Exce 2000 Mayor Arthur I, Snyder Vice Mayor Ken Cohen Commissioner Arthur Berger Commissioner Jay R, Beskin Commissioner Harry Holzberg Commissioner Jeffrey M. Perlow Commissioner Patricia Rogers-Libert City Manager Eric M. Soroka City Clerk Teresa M. Soroka City Attorney Weiss Serota Helfman Pastoriza & Guedes, P.A. CITY OF AVENTURA LEGISLATIVE PROGRAMS AND PRIORITIES 2000 This document is intended to provide direction to the City Manager, City Attorney and Legislative Lobbyist as to the official City position regarding issues and pending legislation which would affect the operation of local government. This document further provides priorities for the acquisition of supplemental funding (grants) for various programs. The City of Aventura will endorse and support legislation that will: Revise subsection (11) of Section 166.411, Florida Statues to add lands to be conveyed by a City to a School Board to the list of public purposes to utilize eminent domain proceedings. Will not create revisions in municipal pension plans or State Statues that will impose additional mandated financial obligations for municipalities. Revise current State Statues to provide for standing for Cities to contest proper~y assessment amounts assigned by the Dade County Property Appraiser. 4. Adopt the 2000 Policy Statement of the Florida League of Cities. Maintain the current hurricane protection provisions of the South Florida Building Code. The City of Aventura will seek financial assistance and grants for the following projects: 1. Funding for Stormwater drainage improvements. 2. Transportation funding for the operation of the Aventura shuttle bus transportation system.. Funding for emergency operations center in new Government Center. Park development or acquisition of land for-park purposes. Funding for electric vehicles and alternative fuels for vehicles, 2000 REGULAR SESSION AN ACT RELATING TO MUNICIPALITIES; AMENDING SECTION 166.411 ENTITLED "EMINENT DOMAIN; USES OR PURPOSES" CREATING SUBSECTION (11); PROVIDING THAT ACQUISITION OF PROPERTY FOR CONVEYANCE TO SCHOOL BOARD CONSTITUTES A MUNICIPAL PUBLIC PURPOSE; PROVIDING AN EFFECIIVE DATE. BE IT ENACTED by the Legislature of the State of Florida: Section 1. Subsection (11) of Section 166411, Florida Statutes, is created to read as follows:1 166.411 Eminent domain; uses or purposes.--Municipalities are authorized to exercise the power of eminent domain for the following uses or purposes: (1) For the proper and efficient carrying into effect of m~y proposed scheme or plan of drainage, ditching, grading, filling, or other public improvement deemed necessary or expedient for the preservation of the public health, or for other good reason connected in anywise with the public welfare or the interests of the municipality and the peqple thereof; (2) Over railroads, traction and streetcar lines, telephone and telegraph lines, all public and private streets and highways, drainage districts, bridge districts, school districts, or any other public or private lands whatsoever necessary to enable the accomplishment of purposes listed in s. (3) For streets, lanes, alleys, and ways; (4) For public parks, squares, and grounds; (5) For drainage, for raising or filling in land in order to promote sanitation and healthfillness, and for the taking of easements for the drainage of the land of one person over and through the land of another; (6) For reclaiming and filling when lands are low and wet, or overflowed altogether or at times, or entirely or partly; (7) For the abatement of any nuisance; Additions are indicated by underline; deletions by :~r:kct~rcug!: (8) For the use of water pipes and for sewerage and drainage purposes; (9) For laying wires and conduits underground; (lO) For city buildings, waterworks, ponds, and other municipal purposes which shall be coextensive with the powers of the municipality exercising the right of eminent domain; and (Il) For obtaining lands to be conveyed by the municipality to the school board of the school district for the County within which the municipality is located, if the school board requests, in writing, that the municipality obtain such lands for conveyance to the school board and promises to use its best efforts to establish a public school thereon Fulfilling the purpose of subsection (11) hereof is hereby recognized as constituting a valid municipal public purpose Section 2. This act shall take effect upon becoming law. Approved by the Governor Filed in Office Secretary of State 2 RESOLUTION NO. 2000~ A RESOLUTION OF THE CITY COMMSSION OF THE CITY OF AVENTURA, FLORIDA REQUESTING CONGRESS TO ADOPT LEGISLATION PROVIDING FOR SALES AND USE TAX FAIRNESS AMONG ALL RETAIL MERCHANTS; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City of Aventura ("City") believes that it is in the nation's interest for Congress to ensure a level playing field among online, mail order, and main street businesses; and WHEREAS, the use of new communications technologies, including the Intemet, as a way to conduct sales of goods and services is accelerating; and WHEREAS, out-of-state sales of goods conducted via the Internet, mail order and phone, under many circumstances, are not subject to collect existing sales and use taxes imposed by the states and local governments in which the purchaser of such goods resides; and WHEREAS, the inequity in price experienced by not requiring the collection of taxes on the sales of such goods creates a competitive disadvantage and unequal treatment between local merchants and those who sell from electronics stores; and WHEREAS, Congress has the ability to change federal laws to provide for a fair and equitable tax system for all retailers by requiring out-of-state mail order and electronic vendors to collect and remit state and local sales taxes; and WHEREAS, the state of Florida and its local governments depend upon existing sales and excise taxes to generate much needed state and local tax revenue, and out- of-state sales that are not taxed have an adverse impact on local infrastructure and on Resolution No. 2000-__ Page 2 the continued survival of local retail businesses in our cities, villages and towns; and WHEREAS, these revenues support crucial public services, such as police protection, fire protection, education, transportation services, public infrastructure, park and recreation services, community services and other services; and WHEREAS, out-of-state vendors utilize some of the most advanced technology available to conduct their business electronically or from remote locations; and WHEREAS, ninety-nine percent of the goods and services purchased over the Internet are bought using electronics money transfers, such as through the use of credit cards, which pre-establishes the ability to identify and collect taxes in an non- discriminatory ands efficient manner; and WHEREAS, without congressional action, the Internet and catalog sales will remain substantially a tax-free zone, thereby depriving state and local government of revenues required to provide essential public services; and WHEREAS, the Advisory Commission on Electronics Commerce, empanelled to draft legislation for consideration by Congress, and to propose a simplified system of state and local taxation, will soon conclude their work; and WHEREAS, the City of Aventura believes that any proposal adopted by Congress must provide for the following principals: (1)equal treatment of all sales transactions, irrespective of the transaction method used, and Resolution No. 2000-__ Page 3 (2) a federal law authorizing state and local governments to require out-of-state sales be subject to sales and use taxes, collection and remittance, and (3) protection from federal preemption of state and local authority to determine their own tax policies, and (4) cooperative efforts to simplify state and local sales and use tax systems and the compliance burdens those place on out-of-state sales. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF AVENTURA, FLORIDA, THAT: Section 1. The City of Aventura opposes any federal legislation which would continue the current sales and use tax inequities by making permanent the current moratorium or other limitation on state and local authority to tax Internet sales transactions. Section 2. The City of Aventura supports federal legislation that would simplify the tax systems of state and local governments to facilitate the collection of required state and local sales and use taxes from mail order, Internet and on-line sales transactions. Section 3. The City of Aventura joins with the National League of Cities in urging the Advisory Commission on Electronic Commerce and members of Congress to enact legislation authorizing state and local governments to establish and collect legally due sales and use taxes on goods and services sold through any transactional electronics medium, regardless of the actual or transient location of the business Resolution No. 2000-__ Page 4 transaction location, and to remit those taxes to the purchaser's state, and require states to distribute tax revenues to cities, villages and towns or other unit of local government pursuant to precedent and applicable state law. Section 4. A copy of this resolution shall be provided to the National League of Cites, the Advisory Commission on Electronic Commerce, Florida Congressional Delegation, Florida Governor Jeb Bush, and interested parties. Section 5. This Resolution shall become effective immediately upon its adoption. The foregoing Resolution was offered by Commissioner who moved its adoption. The motion was seconded by Commissioner and upon being put to a vote, the vote was as follows: Commissioner Jay R. Beskin Commissioner Ken Cohen Commissioner Harry Holzberg Commissioner Jeffrey M. Perlow Commissioner Patricia Rogers-Libert Vice Mayor Arthur Berger Mayor Arthur L Snyder PASSED AND ADOPTED this 4~h day of January, 2000. ATTEST: ARTHURI. SNYDER, MAYOR TERESA M. SOROKA, CMC/AAE CITY CLERK APPROVED AS TO LEGAL SUFFICIENCY: CITY ATTORNEY RESOLUTION NO. 2000-__ A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF AVENTURA, FLORIDA, APPROVING THE APPOINTMENT OF MEMBERS TO THE CITY OF AVENTURA BEAUTIFICATION ADVISORY BOARD; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, by Ordinance No. 96-24, the City Commission of the City of Aventura provided for the creation of the Beautification Advisory Board; and WHEREAS, the term of office for current Board members expired on December 16, 1999; and WHEREAS, in accordance with the provisions of Section 3.11 of the City Charter of the City of Aventura, the City Commission wishes to provide for approval of the Mayor's appointment of members to the Beautification Advisory Board. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF AVENTURA, FLORIDA, THAT: Section 1. The City Commission hereby approves the appointment by the Mayor of the following individuals to serve as members of the Beautification Advisory Board for a term of one year: Janice Albin Robert Diamond Fanny Fraynd Manny Grossman Marian Nesbitt Stuart Schulman Rubin Steiner Section 2. This Resolution shall become effective immediately upon its adoption, Resolution No. 2000-__ Page 2 The foregoing Resolution was offered by Commissioner who moved its adoption. The motion was seconded by Commissioner and upon being put to a vote, the vote was as follows: Commissioner Jay R. Beskin Commissioner Ken Cohen Commissioner Harry Holzberg Commissioner Jeffrey M Perlow Commissioner Patricia Rogers-Libert Vice Mayor Arthur Berger Mayor Arthur I. Snyder PASSED AND ADOPTED this 4th day of January, 2000. ATTEST: ARTHURLSNYDER, MAYOR TERESA M SOROKA, CMC/AAE CITY CLERK APPROVED AS TO LEGAL SUFFICIENCY: CITY ATTORNEY /tms CITY OF AVENTURA COMMUNITY DEVELOPMENT DEPARTMENT MEMORANDUM TO: FROM: BY: DATE: SUBJECT: City Commission ....~ ( Eric M. Soroka, C/~r~ .~lopment Direct~ Request of Trafalgar Associates of Aventura, Ltd. for Final Plat Approval Aventura Lakes Phase II Subdivision (01-SUB-00) NE 213th Street, Aventura January 4, 2000 City Commission Meeting Agenda Item ~'~' RECOMMENDATION It is recommended that the City Commission approve the "Aventura Lakes - Phase I1" Final Plat. THE REQUEST The applicant, Trafalgar Associates of Aventura. Ltd., is requesting Final Plat approval of the subject property with the intent of creating 219 lots for single family residential homes. (See Exhibit #1 for Letter of Intent) BACKGROUND OWNER OFPROPERTY LOCATION OFPROPERTY SIZE OFPROPERTY Trafalgar Associates of Aventura, Ltd. NE 213TM Street (see Exhibit #2 for Location Map) Approximately 29.81acres LEGAL DESCRIPTION A portion of Tracts A, B and C of"Donn Acres" according to the plat thereof as recorded in Plat Book 76 at Page 30 of the Public Records of Miami-Dade County, Florida and a portion of Tract "K" of Aventura Lakes - Phase I as recorded in Plat Book 153 at Page 8 of the Public Records of Miami-Dade County, Florida, lying and being in the NE ¼ of Section 34, Township 51 South, Range 42 East, City of Aventura, Florida DESCRIPTION The applicant proposes to create the second phase of the Aventura Lakes Subdivision, comprising 219 single family residential lots, private roadways, lakes, common areas and recreation area on land bounded by NE 213th Street on the north, NE 207th Street on the south, NE 30th Avenue to the west and NE 34th Avenue to the east. On September 27, 1999, the City granted Administrative Site Plan Approval to the Aventura Lakes Master Site Plan for Phases I and II of the development. The final plat submitted conforms to the approved master site plan. On June 22, 1999, the City approved the tentative plat for the site. The tentative plat was approved, with standard conditions, by Miami-Dade County on July 12, 1999. The development criteria for this site is governed by a Vested Rights Determination Agreement entered into by the owner and the City on July 9, 1999. ANALYSIS Site Plan- A master site plan for the two phases of this subdivision was approved by the City on September 27, 1999. This approved plan lays out 200 single family residential lots in Phase I and 219 similar lots in Phase I1. The final prat submitted for approval conforms with the approved master site plan. Zoning - The site is zoned RS2, Residential Single Family District, according to the City of Aventura Zoning Map. Future Land Use Designation - The adopted City of Aventura Comprehensive Plan designates the site as Medium High Density Residential. Access - The site may be accessed from two open public roads, those being th th NE 207 Street and NE 213 Street. The subdivision lots are accessed by an internal private roadway system. 2 FORD, ARMENTEROS G MANiJCY, INC, November 5, 1999 Ms. Brenda Kelly, Director City of Aventura Community Development Department 2999 NE 191st Street, Suite 500 Aventura, FL 33180 Re: AVENTURA LAKES PHASEII Dear. Ms. Kelly: This firm has been retained by Trafalgar Associates of Aventura, Ltd., to prepare and submit the attached application for Final Plat for the second phase of their highly successful Aventura Lakes project. The proposed Final Plat consists of 219 lots for sing[e-family residential homes. The proposed Final Plat complies with all City of Aventura and Miami-Dade County platting regulations and is consistent with the approved site plans for the subject property. The proposed lots are similar in size to those in the area and shall allow for the development of homes of a similar character to existing homes Based on the foregoing, we respectfully request your department's favorable review and recommendation of this application. Should you have any questions or require additional information, do not hesitate to contact me. Thank you for your department's usual courtesy and consideration. Sincerely, Development Consultant For The Firm cc: Trafalgar Associates of Aventura, Etd. EXHIBIT #1 01-SUB-O0 1950 NW 94"~ Avenue · 2"d Floor · Miami, FI 33172 · Phone: 305.477,6472 · Fax 305.470.2805 http://~Nvcvv, fordco.conl SITE LEGEND 01-SUB-O0 RESOLUTION NO. A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF AVENTURA, FLORIDA APPROVING THE "AVENTURA LAKES - PHASE I1" FINAL PLAT SECTION 34, TOWNSHIP $1 SOUTH, RANGE 42 EAST CITY OF AVENTURA, MIAMI=DADE COUNTY, FLORIDA; PROVIDING FOR RECORDATION; PROVIDING AN EFFECTIVE DATE. WHEREAS, Trafalgar Associates of Aventura, Ltd., by and through Application No. 01-SUB-00, has requested Final Plat approval for Aventura Lakes - Phase II, Section 34, Township 51 South, Range 42 East City of Aventura, Miami-Dade County, Florida, the Final Plat being incorporated herein by reference and made a part of this Resolution as Exhibit #1; and WHEREAS, the City Commission heard, reviewed and duly considered the reports, findings and recommendations of the City Administration, and finds that Final Plat approval is in the best interests of the citizens of the City of Aventura. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF AVENTURA, FLORIDA, THAT: Section 1. The final plat for Aventura Lakes - Phase 11, Section 34, Township 51S, Range 42E, of the Public Records of Miami-Dade County, Florida as more particularly described as: A REPLAT OF A PORTION OF TRACTS "A", "B" AND "C" OF "DONN ACRES", AS RECORDED IN PLAT BOOK 76 AT PAGE 30 OF THE PUBLIC RECORDS OF DADE COUNTY, FLORIDA AND A PORTION OF TRACT "K' OF AVENTURA LAKES - PHASE I, AS RECORDED IN PLAT BOOK 153 AT PAGE 8 OF THE PUBLIC RECORDS OF Resolution No. Page 2 MIAMI-DADE COUNTY, FLORIDA, LYING AND BEING IN THE N.E. % OF SECTION 34, TOWNSHIP 51 SOUTH, RANGE 42 EAST, CITY OF AVENTURA, MIAMI-DADE COUNTY, FLORIDA. is hereby granted exclusively to the Applicant. Section 2. face of the Plat. Section 3. Dade County, Florida, with the petitioner to pay the costs thereof. Section 4. This Resorution shall become effective immediately adoption. The foregoing Resolution was offered by its adoption. The motion was seconded by put to a vote, the vote was as follows: Commissioner Jay R. Beskin Commissioner Ken Cohen Commissioner Harry Holzberg Commissioner Jeffrey M. Perlow Commissioner Patricia Rogers-Libert Vice Mayor Ar'[hut Berger Mayor Arthur I. Snyder PASSED AND ADOPTED this 4th day of January, 2000. The City Manager and City Clerk are hereby authorized to sign the This Resolution shall be recorded in the Public Records of Miami- upon its , who moved and upon being ATFEST: Teresa M. Soroka, CMC/AAE, City Clerk Arthur I. Snyder, Mayor Resolution No. Page 3 APPROVED AS TO LEGAL SUFFICIENCY: CITY ATTORNEY This Resolution was filed in the Office of the City Clerk this day of ,2000. CITY CLERK CITY OF A VENTURA COMMUNITY DEVELOPMENT DEPARTMENT MEMORANDUM FROM: Eric M. Soroka, City opment Dire~t~ l TO: City Commission BY: Brenda Kelley, Co DATE: December 16, 1999 SUBJECT: Request of HenningfTrion Ventures for Final Plat Approval Aventura Walgreens Subdivision (02-SUB-OO) SE corner of NE 18th Street and Biscayne Boulevard January 4, 2000 City Commission Meeting Agenda Item '7 r RECOMMENDATION It is recommended that the City Commission approve the Aventura Walgreens Subdivision Final Plat. THE REQUEST The applicant, HenningfTrion Ventures I, Limited, is requesting Final Plat approval of the subject property with the intent of constructing two retail buildings to house a Pier 1 Imports and a Walgreen's store. (See Exhibit #1 for Letter of Intent) BACKGROUND OWNER OF PROPERTY HenningfTrion Ventures I, Limited LOCATION OF PROPERTY SE corner of NE 18th Street and Biscayne Boulevard (see Exhibit #2 for Location Map) SIZE OF PROPERTY Approximately 3.944 acres LEGAL DESCRIPTION all of Tracts D and E of "Biscayne Commerical" according to the plat thereof as recorded in Plat Book 143, Page 38, Public Records of Miami-Dade County together with a portion of Tract A of "Knippers Subdivision", according to a plat thereof as recorded in Plat Book 106, Page 99, Public Records of Miami-Dade County together with a portion of the northeast ¼ of the southwest ¼ of the southwest ¼ of Section 3, Township 52 South, Range 42 East, Miami-Dade County, Florida DESCRIPTION The applicant proposes to construct a 9,282 square foot Pier 1 Imports retail building on proposed Lot #1 and a 17,145 square foot Walgreens retail building on proposed Lot #3. Lot #2 is reserved for future development not specified at this time. The applicant has conveyed to the City, a thirteen foot piece of land along Miami Gardens Drive for future road improvements. On July 22, 1999, the City granted Administrative Site Plan Approval for the construction of the two retail buildings. On August 13, 1999, the City approved the tentative plat for the site. The tentative plat was approved, with standard conditions, by Miami-Dade County on October 6, 1999. ANALYSIS Site Plan - A site plan for the two retail buildings was approved by the City on August 13, 1999. Zoning - The site is zoned B2, Community Business District, according to the City of Aventura Zoning Map. Future Land Use Designation - The adopted City of Aventura Comprehensive Plan designates the site as Business and Office. Access- The site is bounded by three open public roads, those being Biscayne Boulevard, NE 186 Street (Miami Gardens Drive) and NE 187th Street. The approved site plan permits one driveway access from Miami Gardens Drive and one driveway access from NE 187th Street. 2 Henning/Trion Ventures I, Ltd. 5310 N.W. 33rd Avenue - Suite 219 · For~ [audcrdale, Flor/da 33309 · (954) 731-0666 - Fax (954) 731-5699 December 14, i999 City Commissioners City of Aventura Government Center 2999 NE 191~t Street, Suite 500 RE: Application for Final Plat Dear Connnissioners: This letter shall serve as our notification to you that we are applying for "Final Plat" approval for our Walgreens/Pier 1 Imports project at 18681 and 18665 Biscayne Boulevard, Aventura, Florida. The Walgreens' building will consist of 17,145 square feet and Pier 1 Imports' building will consist of 9,282 square feet. If you have any questions, please give me a call. Very Tmly Yours, Henning/Trion Ventures I, Ltd., a Florida limited parlnership Trioyl/Ventureg']II, Inc., By: al/~o~rida co~tjon, its general partner Kenneth T. Barb?, President 02-SUB-O0 EXHIBIT #1 SITE 33' LEGEND 02-SUB-O0 ~31T #2 Location Plan RESOLUTION NO. A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF AVENTURA, FLORIDA APPROVING THE "AVENTURA WALGREENS SUBDIVISION" FINAL PLAT SECTION 3, TOWNSHIP 52 SOUTH, RANGE 42 EAST CITY OF AVENTURA, MIAMI-DADE COUNTY, FLORIDA; PROVIDING FOR RECORDATION; PROVIDING AN EFFECTIVE DATE. WHEREAS, Henning/Trion Ventures I, Limited, by and through Application No. 02-SUB-00, has requested Final Plat approval for Aventura Walgreens Subdivision, Section 3, Township 52 South, Range 42 East City of Aventura, Miami-Dade County, Florida, the Final Plat being incorporated herein by reference and made a part of this Resolution as Exhibit #1; and WHEREAS, the City Commission heard, reviewed and duly considered the reports, findings and recommendations of the City Administration, and finds that Final Plat approval is in the best interests of the citizens of the City of Aventura. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF AVENTURA, FLORIDA, THAT: Section '1. The final plat for Aventura Walgreen Subdivision, Section 3, Township 52S, Range 42E, of the Public Records of Miami-Dade County, Florida as more particularly described as: Resolution No. Page 2 A REPLAT OF TRACTS D AND E OF "BISCAYNE COMMERCIAL" P.B. 143 PG. 38 D.C.R. AND A REPLAT OF TRACT A OF "KNIPPERS SUBDIVISION" P.B. 106 PG. 99 D.C.R. AND A PORTION OF SECTION 3, TOWNSHIP 52 SOUTH, RANGE 42 EAST, CITY OF AVENTURA, DADE COUNTY, FLORIDA is hereby granted exclusively to the Applicant. Section 2. face of the Plat. Section 3. The City Manager and City Clerk are hereby authorized to sign the This Resolution shall be recorded in the Public Records of Miami- Dade County, Florida, with the petitioner to pay the costs thereof. Section4. This Resolution shall become effective immediately upon its adoption. The foregoing Resolution was offered by its adoption. The motion was seconded by put to a vote, the vote was as follows: Commissioner Jay R. Beskin Commissioner Ken Cohen Commissioner Harry Holzberg Commissioner Jeffrey M. Perlow Commissioner Patricia Rogers-Libert Vice Mayor Arthur Berger Mayor Arthur I. Snyder PASSED AND ADOPTED this 4th day of January, 2000. , who moved ., and upon being Arthurl. Snyder, Mayor Resolution No, Page 3 ATTEST: Teresa M. Somka, CMC/AAE, City Clerk APPROVED AS TO LEGAL SUFFICIENCY: CITY ATTORNEY This Resolution was filed in the Office of the City Clerk this day of ,2000. CITY CLERK CITY OF AVENTURA OFFICE OF THE CITY MANAGER MEMORANDUM TO: FROM: DATE: SUBJECT: City Commission .~'"/~ Eric M. Soroka, November 30, 191)_9 Proposed Telecommunications Ordinance Reading January 4, 2000 City Commission Meeting Agenda Item ~' nd Reading February 1, 2000 City Commission Meeting Agenda Item Attached Leibowitz Meeting. please find the Proposed Telecommunications Ordinance prepared by & Associates, P.A. and as discussed at the November 1999 Workshop If you have any questions, please feel free to contact me. EMS/aca Attachment C00824-99 ORDINANCENO. 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 IN 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 CONFUCT; PROVIDING AN EFFECTIVE DATE. WHEREAS, the City 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 City 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; and WHEREAS, it is the intention of the City Commission to recognize the interests of Telecommunications Service Providers to install their facilities in Public Rights-Of-Way as a means of promoting the use of such technology for the good of the people of the City; and WHEREAS, it is the intent of the City Commission to exercise the City's authority over the access of Telecommunications Service Providers and their occupancy of the Public Rights-Of-Way; and WHEREAS, these policies are in complete accord with both the letter and the spirit of the Communications Act of 1934, as amended; and WHEREAS, the enactment of the Telecommunications Act of 1996, amendments to applicable statutes of the State of Florida and developments in telecemmunicatiens 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, 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. NOW THEREFORE, BE IT ORDAINED BY THE CITY 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. 2 pai'~, owns Franchisee. B. 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 tense, 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 otherv~se defined herein or in any franchise agreement that might be granted hereunder shall be given the meaning set fodh 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 who directly or indirectly ovv~s or controls any part of a Franchisee, any person which a Franchisee directly or indirectly, in whole or in or controls, or any person under common ownership or control with a "City" means the City of Aventura, an incorporated municipality of the State of 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 Rights-Of-Way within the Franchise Area. The term dces 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 accordance with this Ordinance and the City 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, padnerehip, 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. J. "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, freeway, 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 type of lawful control, "Public Rights-Of-Way'~ shall not include any real or personal City property except as described above and shall not include City buildings, fixtures, and other structures or improvements, regardless of whether they are situated in the Public Rights-Of-Way. L. "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 fiat-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 5 method of providing such services; (4) revenues derived from charges for access to local exchange facilities, except as provided herein; and (5) 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 Rights-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) access charges paid by carriers for origination and/or termination of toll telephone service as defined in Section 203.012(7), Florida Statutes, or other charges required by the Federal Communications Commission which are directly passed through to end users; (3) interstate service; (4) ancillary services such as directory adverlising, 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 pagers or paging service, or related ancillary services; (6) public telephone charges collected on site; (7) teletypewriter 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 flat-rated charges for similar services. 6 M. "Telecommunications Company" has the meaning set forth in Section 364.02(12), Florida Statutes, as emended. The term "Telecommunications Company" does not include an open video system. N. "Telecommunications Service" shall include, without limitation, local service, toll service as defined in Section 203.012(7) Florida Statutes, telegram or teregraph service, teletypewriter service, private cemmunication service as defined in Section 203.012(4) Florida Statutes, or any other provision of 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 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 7 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. 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. (1) 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 persons who exercise working control over the applicant; (2) A proposal for construction of a telecommunications facility if any, that sets forth at least the following: (a) For purposes of determining the fee structure applicable to the Applicant under Section 337.401, Florida Statutes, and this ordinance a description of the services that are to be provided over the Facility. (b) 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. (c) A description of the manner in which the System will be installed, the time required to construct the System, and the expected effect on Rights-Of- Way usage, including information on the ability of the Rights-Of-Way to accommodate the proposed Systems, if available. Also, if 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 shall be included. Such plan shall include the timetable for construction for each phase of the projec-ff, and the areas of the City which will be affected. (d) In the case of a Telecommunications Service Provider conver~ing 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 to review an application, and require such modifice[ions 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 app[icent accepts the modifications required by the City to its proposed system or facility, if any. (2) The applicent 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. (3) The Applicant shall comply with any conditions precedent to the effectiveness of the Franchise Agreement. D. Upon execution and City adoption of a Franchise Agreement, a 9 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 the City. For any other use of the Telecommunications Facility, a Telecommunications Service Provider must obtain authorization from the City, unless the City is expressly ~rohibited by applicable law from requiring such authorization. E. Any Franchise Agreement executed pursuant to this Ordinance will ~ncorporate 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 dght to occupy the Public Rights-Of-Way for the purposes and for the period stated therein. F. 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 (1 O) 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 $. Franchise Fee Payments, A. In consideration for the rights, privileges and permission granted herein, a Telecommunications Company subject to a franchise granted hereunder shall pay to the 10 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 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 benefits, 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 dateofsuch law. Intheevent applicablelawisamendedto require the City to collect a Franchise fee lower than the current statutory limit, the City shall take all necessary steps to conform the requirements hereof to applicable law. All of the aforestated payments shall be made to the City quarterly or as may otherwise be set forth in a Franchise Agreement, 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 []% per month. In the event a Telecommunications Company provides Telecommunications Services defined as toll services in Section 203.012 (7), Florida Statutes, 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- 11 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 (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 Section 203.012 (3), Florida Statutes for any services provided by such Telecommunications Company. C. In the event a person provides Telecommunications Services other than as defined in Section 203.012(3) or (7), Florida Statutes, 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[3 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 12 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 whatsoever. This minimum annual Franchise Fee is in addition to any other application fees, renewal fees, transfer fees, and any State, county or City taxes orassessments. 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 traverse public property, for the purpose of operating a Telecommunications Facility. D. Unless otherwise prohibited by Federal or State law, if Franchisee makes payments to another jurisdiction 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. E. 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 of a 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 la,,,4, (c) a Franchisee shall not have or make any claim for any deduction or other credit of all or any part 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) 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, for the purpose of operating a Telecommunications Facility. F. Except as prohibited by applicable law, in addition to the aforestated franchise fee, a Franchisee shall reimburse the City for alt reasonable costs including, but not limited to, consultant costs, attorney's fees, accounting fees, and engineering fees related to the grant, modification, transfer, or renewal of any Franchise granted hereunder. Therefore, upon submission of a request for the grant of a Franchise Agreement or the renewal of a Franchise Agreement, Grantee shall make a non-refundable payment to the City in the amount of ten thousand dollars ($10,O00). The Franchisee shall pay the actual cost of these enumerated fees wflich 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 event 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 of a Franchise. The examination of such books, accounts, records or other materials necessary 3.4 for determination of compliance with the terms, provisions, and requirements cfa Franchise shall be during regular hours of business of the Franchisee at an office of the Franchisee located within the City, or at another location satisfactory to the City. In the event that the City, pursuant to an audit, determines that there exists a discrepancy in the amount paid and the amount owed to the City by the Franchisee in excess of 2%, Franchisee shall pay all reasonable costs, fees and expenses of the audit, B. No later than June 30th of each year, a Franchisee shall provide the City an annual report concaming the previous calendar year that includes at minimum the following: (f) A financial stmement, 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 the previous two (2) years of the Franchise. This requirement shall not apply to Telecommunications Service Providers 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. 15 (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 partnership, a list of the partners, including any limited 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. C. Upon reasonable request, a Franchisee shall provide the following documents to the City as received or filed, without regard to whether the documents are filed by the Franchisee or an Affiliate: (1) Annual report of the Franchisee or its parent or any Affiliate of Franchisee which controls Franchisee and issues an annual report. (2) Any and all pleadings, petitions, applications, communications, reports and documents (collectively referred to as Ufilingsr3) submitted by or on behalf of the Franchisee to the Federal Communications Commission, Securities and Exchange Commission, Florida Public Service Commission 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 City's rights or obligations under this Ordinance or the Franchise Agreement issued pursuant to this Ordinance and any and all responses, if any, to the above mentioned filings. (3) Any and all notices of hearing, 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 Telecemmunicetions 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. (4) Any request for protection under bankruptcy laws, or any judgment related to a declaration of bankruptcy. D. 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. E. A Franchisee under Section 5A or B hereof shall annually cerfify to the City that it is not leasing excess capacity on the Telecommunications System or Facilities, or leasing dark fiber on the System. F. 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. G. 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. Consistent with applicable law, a Franchisee may install Telecommunications Facilities above ground in areas where existing utility facilities are above ground and shall install Telecammunications Facilities underground in areas where existing utility facilities are or will be installed underground. B. Every Telecommunications Service Provider that places or constructs telecommunications facilities underground shall maintain appropriate participation in the regional notification center for subsurface installations. A Franchisee shall provide locate for the City at no cost to the City, to the extent consistent with applicable law. 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 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 own 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 falls 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 ov~er 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 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 abandonment 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 removal of the abandoned Facility by the Franchisee, the Franchisee, by its notice of abandonment to the City, shall be deemed to consent to the alteration or removal of all or any porfion 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, 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, alang, 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 increases the amount of area or space occupied by the Facility on, over, above, along, under across or within the Public Rights-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 required by the City Code, no permit shall be required for ir~tallation 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 Teleoommunicetions Facility in the Public Rights-Of-Way, as may be consistent with the applicable Law. Such rules and regulations may include, but ere 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 Telecommunications Provider, upon reasonable notice by the City, shall make any necessary removals, relaying and relocations of its Telecommunications Facilities at its 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 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. In no event shall Franchisee permit any such modification in violation 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 of a Franchise, provide an executed acknowledgment of the binding effect of the terms and conditions of this Ordinance and the Franchise to 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 shatl 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 22 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 the Assignee or the Transferee has accepted this Ordinanca 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 of a 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 (31a) 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 forrna" if it 23 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 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 of 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 subject 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. 2zJ A. A Franchisee shall maintain, and by its acceptance of the Franchise specifically agrees that it will maintain throughout the entire term of the Franchise including any renewals thereof, the following liability insurance coverage insudng the Franchisee and naming the City as an additional insured; worker's compensation and employer liability insurance to meet all requirements of Florida law and general comprehensive liability insurance with respect to the construction, operation and maintenance of the Telecommunications Facilities, and 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 of A-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 of a potential claim such that the City claims insurance coverage, Franchisee shall immediately respond to all reasonable requests by the City for information with respect to the scope of the insurance coverage. D. All insurance policies shall further provide that any cancellation or reduction in 25 coverage shall not be effective unless thirty (30) days prior witten 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 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 insure(' under the Workers Compensation Act. For purposes of this Section, "private self insurer~' shall also include a Franchisee that insures through a "captive insurer" as defined in Section 628.901, Florida Statutes. E. A Franchisee shall, at its sole cost and expense, indemnify, ho~d 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, maintenan~ 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 negligence of the City, its officials, boards, 26 Commission, Commission members, agents or employees. In addition, and notwithstanding anything to the contrary, any Franchisee granted a ranewal of a Franchise on or affer 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 provision includes, but is not limited to, the City's reasonable attorneys' fees incurred in defending against any such claim, suit or proceedings; and claims arising out of copyright infringements or a failure by the Franchisee to secure consents from the owners, authorized distributors, or providers of 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 of 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 per[ormance of and compliance with all provisions of this Ordinance, the Franchise agreement, and other applicable law, and compliance with 2¥ alt 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 ($25,000.00), which is the minimum amount 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 modified 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, the 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 Franchisee has not reimbursed the City for such amount within the thirty (30) days notice period. Withdrawals may be made if the Franchisee: (1) Fails to make any payment required to be made by the Franchisee 28 hereunder; (2) Fails to pay any liens relating to the facilities that are due and unpaid; (3) Fails to reimburse the City for any damages, claims, costs or expenses which the 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 of 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 Rights-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 modified in a Franchise 29 Agreement, in the City Manager's sole discretion, based on the amount, the value of the construction to take place 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 ~oss 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 all 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 mai[, return receipt requested, of a written notice from the issuer of the 3O 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 thera 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 construction bond 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 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 31 written notice of the violation and its intention to assess such damages, which notice shall contain a description ofthealleged violation. Following receipt ofsuch 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 thirty (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 law. 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 3A, D and/or E 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 coud of competent jurisdiction. 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 of the violation, the nature of the remedy required in order to prevent further violations, and such other matters as the City determines are appropriate to the public interest. 32 E. Failure of 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 of its obligations pursuant to this Ordinance, the Franchisee has, throughout any such proceedings and appeals thereof, the burden of proving that said Franchisee is in compliance with the terms of this Ordinance. The City Commission may find a Franchisee that does not demonstrate compliance with the terms and conditions of this Ordinance in default and apply any one or combination of the remedies otherwise authorized by this Ordinance. Section 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, or local law. 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 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 33 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. Franchisee. C. A copy of such decision shall be transmitted to the Notwithstanding subsections A and B hereof, any Franchise may, at the option of the City following a public hearing before the City Commission, be revoked 120 calendar days after an assignment for the benefit of creditors or the appointment of a 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 of this Ordinance and the Franchise Agreement. D. In the event of foreclosure or other judicial sale of any of the facilities, equipment, or property of a Franchisee, the City may revoke the Franchise, following a public 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 34 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 PSC, if applicable, the following procedures and rights are effective: (1) the City may require the former Franchisee to remove its facilities and equipment at the former Franchisee's expense; if the former Franchisee fails to do so within a 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 Telecommunications 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 any Franchise Agreement Nothing herein shall be construed to limit the City's right to petition the PSC 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 35 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 renewthe 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 Federel, Sta~e, 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 of a Franchise. D. 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 Agreement before such renewal becomes effective. (2) Any outstanding compliance and compensation issues are resolved or preserved to the satisfaction of the City. E. 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 36 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. F. 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 affect 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 properly as the City may desire to 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 lawprior 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. Section 19, Force Majeure, In the event a Franchisee's performance of or compliance with any of the provisions of this Ordinance or the Franchisee's Franchise Agreement is prevented by a cause or event not 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 renewed hereunder, causes or events not within a Franchisee's control shall include, without limitation, acts of God, floods, earthquakes, landslides, hurricanes, fires and other natural disasters, acts of public enemies, dots 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 nonfeasance by any of Franchisee's directors, officers, employees, contractors or agents. 38 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. 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) 39 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 adoption on second reading. The foregoing Ordinance was offered by Commissioner , who moved its adoption on first reading. This motion was seconded by Commissioner , and upon being put to a vote, the vote was as follows: Commissioner Jay R. Beskin Commissioner Ken Cohen Commissioner Harry Holzberg Commissioner Jeffrey M. Perlow Commissioner Patricia Rogers-Libert Vice Mayor Arthur Berger Mayor Arthur I. Snyder The foregoing Ordinance was offered by Commissioner , who moved its adoption on second reading. This motion was seconded by Commissioner and upon being put to a vote, the vote was as follows: Commissioner Jay R. Beskin Commissioner Ken Cohen Commissioner Harry Holzberg Commissioner Jeffrey M. Perlow Commissioner Patricia Rogers-Libert Vice Mayor Arthur Berger Mayor Arthur I. Snyder PASSED AND ADOPTED on first reading this 4th day of January, 2000. PASSED AND ADOPTED on second reading this 1~t day of February, 2000. ATTEST: TERESA M. SOROKA, CMC/AAE CITY CLERK APPROVED AS TO LEGAL SUFFICIENCY: ARTHURI. SNYDER, MAYOR CITY ATTORNEY 4O CITY OF AVENTURA OFFICE OF THE CITY MANAGER MEMORANDUM TO: FROM: DATE: City Commission ~/~ SUBJECT: Formosan Termites Damage Prevention Ordinance Ist Reading January 4, 2000 City Commission Meeting Agenda Item ~ 2nd Reading February 1, 2000 City Commission Meeting Agenda Item As discussed at the November Workshop Meeting, attached is an Ordinance that addresses inspection and repor[ing requirements relating to Formosan termites, This Ordinance has been amended to reflect the revisions discussed at the meeting. If you have any questions, please feel free to contact me. EMS/aca Attachment CC0830-99 ORDINANCE NO. 2000-._ AN ORDINANCE OF THE CITY OF AVENTURA, FLORIDA, AMENDING CHAPTER 30 "ENVIRONMENT" BY CREATING ARTICLE V "TERMITE DAMAGE PREVENTION" CONSISTING OF SECTION 30-180 "TERMITES; DEVELOPMENT OF LAND; ANNUAL INSPECTION;" PROVIDING FOR INCLUSION IN THE CODE; PROVIDING FOR SEVERABILITY; PROVIDING FOR PENALTY; PROVIDING FOR EFFECTIVE DATE. WHEREAS, the City Commission finds that termites, including Formosan termites, have the potential to cause great damage to property; and WHEREAS, the City Commission finds that the land development regulations provided by this Ordinance will serve to mitigate the potential for damage to be inflicted by termites, including Formosan termites; and WHEREAS, the City Commission finds that this Ordinance is consistent with the Comprehensive Plan of the City of Aventura. NOW, THEREFORE, IT IS HEREBY ORDAINED BY THE CITY COMMISSION OF THE CITY OF AVENTURA, FLORIDA AS FOLLOWS: Section 1. That the City Code of the City of Aventura is hereby amended by amending Chapter 30 "Environment" by creating Article V "Termite Damage Prevention" consisting of Section 30-180 "Termites; Development of Land; Annual Inspection" to read as follows: Section 30-180. Termites; Development of Land; Annual Inspection. (a) Upon commencement of residential or commercial development upon any vacant parcel of land in the City, the owner of such parcel shall cause the property to be treated for the prevention of termite damage (including Formosan termites) and shall O~inance No. 2000-__ Page 2 provide a certification of treatment at slab inspection to the Building Official of the City, on a form provided by City. The certification of treatment shall specifically identify the treatment system which was applied. (b) Commencing from and after January 1, 2000, each residentially developed building in the City consisting of more than ten units and each commercially developed building in the City consisting of more than 10,000 square feet of floor area shall be required to have an annual inspection of the building for termite activity or damage (include activity or damage from Formosan termites). The owner of such building shall be responsible for providing for the inspection by a State licensed pest control professional. In the case of cooperative buildings, the cooperative owners association shall be the party responsible for providing for such inspection. In the case of condominiums, the condominium association shall be the party responsible for providing for such inspection. As to buildings for which it has the authority to provide termite treatment, the homeowners association shall be jointly responsible with the owner for providing such inspection, The annual inspection shall be conducted at any time between the period of May to July of each year. Within ten days of completion of the annual inspection a copy of the report thereof shall be provided by the responsible party to the City's Community Development Department on a form provided by City. (c) The Community Development Department shall periodically compile the results of termite inspection reports furnished to it pursuant to this Section, Section 2. Inclusion in the Code. it is the intention of the City Commission, and it is hereby ordained that the provisions of this Ordinance shall become and made a part of the Code of the City of Aventura; that the sections of this Ordinance may be renumbered or relettered to accomplish such intentions; and that the word "Ordinance" shall be changed to "Section" or other appropriate word. 2 Ordinance No. 2000-__ Page 3 Section 3. Severability. The provisions of this Ordinance are declared to be severable and if any section, sentence, clause or phrase of this Ordinance shall for any reason be held to be invalid or unconstitutional, such decision shall not affect the validity of the remaining sections, sentences, clauses, and phrases of this Ordinance but they shall remain in effect, it being the legislative intent that this Ordinance shall stand notwithstanding the invalidity of any part. Section 4. Penalty. Any person who violates any provisions of this Ordinance shall, upon conviction, be punished by a fine not to exceed $500.00 or imprisonment in the County jail not to exceed sixty (60) days or both such fine and imprisonment. Each day that a violation continues shall be deemed a separate violation. This Ordinance shall also be subject to enforcement under the Local Govemment Code Enforcement Act, Chapter 162, F,S., as amended, and City Code Section 2-331, et, seq., as amended. Enforcement may also be by suit for declaratory, injunctive or other appropriate relief in a court of competent jurisdiction. Section 5. Effective Date. This Ordinance shall be effective immediately upon adoption on second reading. The foregoing Ordinance was offered by Commissioner , who moved its adoption on first reading. The motion was seconded by Commissioner , and upon being put to a vote, the vote was as follows: Commissioner Jay R. Beskin Commissioner Ken Cohen Commissioner Harry Holzberg Commissioner Jeffrey M. Perlow Commissioner Patricia Rogers-Libert Vice Mayor Adhur Berger Mayor Arthur I. Snyder 3 O~inance No. 2000-__ Page 4 The foregoing Ordinance was offered by Commissioner who moved its adoption on second reading. The motion was seconded by Commissioner , and upon being put to a vote, the vote was as follows: Commissioner Jay R, Beskin Commissioner Ken Cohen Commissioner Harry Holzberg Commissioner Jeffrey M. Pedow Commissioner Patricia Rogers-Libert Vice Mayor Arthur Berger Mayor Arthur I. Snyder PASSED AND ADOPTED on first reading this 4th day of January, 2000. PASSED AND ADOPTED on second reading this 1~ day of February, 2000. A~I-EST: ARTHUR I. SNYDER, MAYOR TERESA M. SOROKA, CMC/AAE CITY CLERK APPROVED AS TO FORM AND LEGAL SUFFICIENCY: CITY A'I-FORNEY 4 CITY OF AVENTURA OFFICE OFTHECITYMANAGER MEMORANDUM TO: FROM: DATE: SUBJECT: City Commission [/~' Eric M. Soroka, City/l~',~~ October 14, 1999 '~ ~ Ordinance Amending 1999/00 Budget Reading November 2, 1999 City Commission Meeting Agenda Item '?~ Reading January 4, 2000 City Commission Meeting Agenda Item ~'/~ RECOMMENDATION It is recommended that the City Commission adopt the attached Ordinance amending the 1999/2000 Budget by reappropriating ongoing capital projects from the prior fiscal year and including grant positions for the Police Department. BACKGROUND The attached Budget Amendment was prepared to reappropriate the following capital projects not completed during the 1998/99 fiscal year. GENERALFUND Beautification Proiects - $310,000 - This project includes $125 000 for landscape improvements to N.E. 191 Street and 30 Avenue at the completion of the drainage improvements. Completion is scheduled for January 2000. In addition, funds have been reappropriated to complete the Biscayne Boulevard Phase 4 improvements ($185,000}. N.E. 190th Street Improvements - $205,000 - This project consists of reappropriating $205,000 to complete the landscape and lighting improvements. This project is scheduled for completion in November 1999. Memo to City Commission Page 2 N.E. 185th Street and N.E. 28th Avenue - $1~011~430 - This project was bid and awarded in the prior fiscal year. Due to utility relocations by FPL this project was rescheduled during this fiscal year. Completion is scheduled for March 2000. 4 Safety Improvements- $600,000 -This project consists of providing safety improvements along Country Club Drive, ground lighting along the Country Club Exercise / Walking Path and drinking fountains. Due to third party construction projects (FDQT and Turnberry Country Club), this project was delayed. This project is scheduled for completion in March 2000. STORMWATER UTILITY FUND Drainaqe Improvements - $658~000 - This amendment includes $300,000 for the N.E. 185~n Street proect and $358,000 to complete the Drainage Improvements project on 191st Street and 29th Avenue. The latter project is scheduled for completion on November 15, 1999. POLICE CAPITAL OUTLAY IMPACT FEE FUND Equipment - $30~000 - Reappropriates amount from prior year to completion equipment purchase program. The Amendment also includes the addition of the following positions that are partially funded by Federal and State grants. Three Police Officer Positions - Funded by a Federal grant that pays $105,000 of the $132,000 total cost. The grant pays $35,000 for three years for each officer. Victim Advocate Position - Funded by a State grant that pays $34,259 (80%) of the $42,824 total cost. The grant is renewable on an annual basis. Serqeant Reclassification - Another sergeant position is required to maintain span of control and organization requirements with the growth of the patrol force, This involves upgrading an existing police officer position. Memo to City Commission Page 3 The Amendment is funded from the following soumes: increased General Fund carry over amount of $1,682,685. This is comprised of unspent funds from the various capital projects that were reappropriated in the new fiscal year. 2. Additional revenues from the following sources: Police position grants - $139,259 · FDOT payment for Biscayne Boulevard landscape improvements - $292,880 Developer contributions for utility line installation at N.E. 185th Street - $186,430. · Increased Stormwater Utility Fund carry over amount by $658,000 and the Police Capital Outlay impact Fee by $30,000. If you have any questions, please feel free to contact me. EMS/aca Attachment CC0810-99 ORDINANCE NO. 2000- AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF AVENTURA, FLORIDA, AMENDING ORDINANCE NO. 99-13, WHICH ORDINANCE ADOPTED A BUDGET FOR THE 199912000 FISCAL YEAR BY REVISING THE 1999/2000 FISCAL YEAR OPERATING AND CAPITAL BUDGET AS OUTLINED IN EXHIBIT '~A" ATTACHED HERETO; AUTHORIZING THE CITY MANAGER TO DO ALL THINGS NECESSARY TO CARRY OUT THE AIMS OF THIS ORDINANCE; PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, upon the periodic review and analysis of current budgetary commitments and obligations, and based upon the projected needs and requirements of the City and upon the recommendations of the City Manager (and the concurrence of the Finance Support Services Director as to Accounting Principles), it is deemed necessary to adjust, amend and implement the 1999/2000 Operating and Capital Budget as set forth in Exhibit "A~' attached hereto and made a part hereof. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF AVENTURA, FLORIDA, AS FOLLOWS: Section 1. The recitals contained in the preamble to this Ordinance are incorporated by reference herein. Section2. The City Commission hereby authorizes the amendment of Ordinance No. 99-13, which Ordinance adopted a budget for the 1999/2000 fiscal year, by revising the 1999/2000 budget as set forth on the attached Exhibit "A', which exhibit is deemed incorporated by reference as though set forth in full herein. Ordinance No. 2000-__ Page 2 Section 3. The City Manager is hereby authorized to do all things necessary to carry out the aims of this Ordinance. Section 4. Effective Date. This Ordinance shall be effective immediately upon adoption on second reading. The foregoing Ordinance was offered by Commissioner Beskin, who moved its adoption on first reading. This motion was seconded by Commissioner Rogers-Libed, and upon being put to a vote, the vote was as follows: who Commissioner Commissioner Jay R. Beskin yes Commissioner Ken Cohen yes Commissioner Harry Holzberg yes Commissioner Jeffrey M. Perlow yes Commissioner Patricia Rogers-Libert yes Vice Mayor Arthur Berger yes Mayor Arthur I. Snyder yes The foregoing Ordinance was offered by Commissioner moved its adoption on second reading. This motion was seconded by , and upon being put to a vote, the vote was as follows: Commissioner Jay R. Beskin Commissioner Ken Cohen Commissioner Harry Holzberg Commissioner Jeffrey M. Perlow Commissioner Patricia Rogers-Libert Vice Mayor Arthur Berger Mayor Arthur 1. Snyder PASSED AND ADOPTED on first reading this 2"d day of November, 1999. 2 Ordinance No. 2000-~ Page 3 PASSED AND ADOPTED on second reading this 4th day of January, 2000. ARTHURI. SNYDER, MAYOR Al-rEST: TERESA M. SOROKA, CMC/AAE CITY CLERK APPROVED AS TO LEGAL SUFFICIENCY: CITY ATTORNEY tms 3 EXHIBIT A Budget Amendment OBJECT CODE CATEGORY REVENUES t999/00 1999/00 1999/00 ADOPTED AMENDED REVISED BUDGET AMOUNT BUDGET General Fund - 001 3374000 FDOT Victims of Crime Act 331220 COPS Federal Grant SUBTOTAL 3999000 Carryover SUBTOTAL Total Amendments-Revenues EXPENDITURES OBJECT CODE CATEGORY PERSONAL SERVICES 1201 Employee Salaries 186,430 186,430 3,}'60,000 1,682,685 3,442,685 PUBLIC SAFETY 1999~0 BUDGETARYACCOUNTSUMMARY 001-2001-521 EXPENDITURES 1999/00 1999/00 1999~0 ADOPTED AMENDED REVISED BUDGET AMOUNT BUDGET 2,791,581 174,824 2,966,405 Position - Revisions Number Description Action 2045-2047 Police Officers add 3302 Victim Advocate add 2045 Police Officer delete 2306 Se~gent add EXHIBIT A CAPITAL BUDGET PROJECT APPRORPIATION 80-XXX Subtotal Total Amendments-Expenditures Stormwater Utility Fund - 410 REVENUES 3599~10 CaTryover SUBTOTAL Total Amendments-Revenues EXPENDITURES 167,073 658=000 825~075 CAPITAL BUDGET PROJECT APPRORPIATION Total Amendments-Expenditures 25,000 658,000 EXHIBIT A Police Capital Outlay Impact Fee Fund - 140 REVENUES 3gggo00 Carryover SUBTOTAL Total Amendments-Revenues EXPENDITURES Public Safety-S21 6450 Vehicles SUBTOTAL Total Amendments-Expenditures 0 30,000 30,000 CAPITAL BUDGET PROJECT APPRORPIATION 30,000 30,000 TO: FROM: BY: DATE: SUBJECT: CITY OF AVENTURA FINANCE SUPPORT SERVICES DEPARTMENT MEMORANDUM City Commission ~gore, FTnanc;9-~4~oort Services Director October 28, 1999 End of Year Budget Amending Ordinance Ist Reading November 2, 1999 City Commission Meeting Agenda Item rT~ , 2nd Reading January 4, 2000 City Commission Meeting Agenda Item Recommendation It is recommended that the City Commission approve the attached ordinance amending the 1998/1999 budget. Background As you are aware, we are in the process of closing the books for the 1998/99 fiscal year. We are now to the point where we can formally amend the budget so that the adopted budget contains appropriations sufficient to cover all actual expenditures. The process is called the end of year "clean up" amendment and is done as a matter of course each year. The necessity of an end of year amendment has been discussed when we have issued monthly reports. Therefore, the amendment should not be a surprise to the Commission. However, the dollar value of the adjustments are somewhat larger than originally anticipated. The need for a budget amendment for Legal, Community Development and Community Services has been noted in the past few budget reports. The necessity for amendments to those and other departments are discussed below. For the City Manager's office, we miscalculated salary and benefits costs when we originally prepared the 1998/99 budget. Newsletter costs were the result of the update of the web page and increased promotional activity. The additional funds for Legal are due to higher than anticipated legal costs, a significant portion dealing with adoption and implementation of Land Development Regulations (LDR). The City Clerk budget requires additional funds for Legal Advertising. This was also due in great part to the LDR adoption process. Page (2) End of Year Amending Ordinance Community Development is over in those line items dealing with building related inspection costs. Additional revenues more than offset these expenditures. The need for additional appropriations for Community Services has been noted since very early in the fiscal year. The primary reason is that the 1998/99 budget did not anticipate that we would take over previously private functions or complete beautification projects as quickly as actually occurred. The transfer to the Debt Service Fund is necessitated by the Flodda Municipal Loan Council financing requiring a transfer to cover bond interest costs, as opposed to utility taxes being deposited directly to the Debt Service Fund. However the General Fund was able to recognize an additional $1,037,000 of utility taxes which would otherwise have been deposited directly to the Debt Service Fund. The amount included in the ordinance for the General Fund as additional revenues is only the amount needed to cover the additional expenditures (a total of $1,377,000). Although we are still posting revenue accruals, I estimate that total General Fund revenues (including carryover) will be approximately $2.7 million greater than was originally budgeted. Unspent and unencumbered appropriations will total approximately $3.4 million more than originally budgeted. Therefore, the total General Fund carryover will be around $6.1 million. This compares to the $5,442,685 which will be included in the 1999/00 budget (after the budget amendment from 7E on this agenda). The amendments to the Debt Service Fund and Capital Construction Fund were required by the financing with the Florida Municipal Loan Council. We borrowed $21,000,000 of which $14,100,000 was deposited to the Capital Construction Fund and $6,900,000 was deposited to the Debt Service Fund. We also had a $900,000 draw on the letter of credit early in the year. This $14,100,000 plus the $900,000 from the draw on the letter of credit makes the total bond/note proceeds $15,000,000. The remaining budget changes were the result of differences caused by the issuance of debt in 1998/99 versus 1997/98 as was assumed when we originally prepared the 1998/99 budget. The additional amounts in the Police Off Duty Services Fund is the result of heavy usage of these services. All costs are borne by the requestor of these services. Therefore, the additional appropriations of $107,000 is exactly offset by additional revenues. While the budget amendment includes several large dollar value adjustments, most were anticipated for several months. Therefore, the budget amendment has no negative impact upon the 1999/00 budget or programs for any future years. I, therefore, recommend approval of the ordinance to accomplish the end of year budget clean up. If you have any questions please feel free to call or stop by my office. HMK/mn FSS429-99 ORDINANCE NO. 2000- AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF AVENTURA, FLORIDA, AMENDING ORDINANCE NO. 98-22, WHICH ORDINANCE ADOPTED A BUDGET FOR THE 1998/99 FISCAL YEAR BY REVISING THE 1998/99 FISCAL YEAR OPERATING AND CAPITAL BUDGET AS OUTLINED IN EXHIBIT "A" ATTACHED HERETO; AUTHORIZING THE CITY MANAGER TO DO ALL THINGS NECESSARY TO CARRY OUT THE AIMS OF THIS ORDINANCE; PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, upon the periodic review and analysis of current budgetary commitments and obligations, and based upon the projected needs and requirements of the City and upon the recommendations of the City Manager (and the concurrence of the Finance Support Services Director as to Accounting Principles), it is deemed necessary to adjust, amend and implement the 1998/99 Operating and Capital Budget as set forth in Exhibit "A" attached hereto and made a part hereof. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF AVENTURA, FLORIDA, AS FOLLOWS: Section 1. The recitals contained in the preamble to this Ordinance are incorporated by reference herein. Section2. The City Commission hereby authorizes the amendment of Ordinance No. 98-22, which Ordinance adopted a budget for the 1998/99 fiscal year, by revising the '1998~99 budget as set forth on the attached Exhibit "A", which exhibit is deemed incorporated by reference as though set forth in full herein. Ordinance No. 2000-~ Page 2 Section $, The City Manager is hereby authorized to do all things necessary to carry out the aims of this Ordinance. Section 4. Effective Date. This Ordinance shall be effective immediately upon adoption on second reading. The foregoing Ordinance was offered by Commissioner Rogers-Libert, who moved its adoption on first reading. This motion was seconded by Commissioner Cohen, and upon being put to a vote, the vote was as follows: Commissioner Jay R. Beskin yes Commissioner Ken Cohen yes Commissioner Harry Holzberg yes Commissioner Jeffrey M. Perlow yes Commissioner Patricia Rogers-Libert yes Vice Mayor Adhur Berger yes Mayor Arthur I. Snyder yes The foregoing Ordinance was offered by Commissioner who moved its adoption on second reading. This motion was seconded by Commissioner , and upon being put to a vote, the vote was as follows: Commissioner Jay R. Beskin Commissioner Ken Cohen Commissioner Harry Holzberg Commissioner Jeffrey M. Perlow Commissioner Patricia Rogers-Libert Vice Mayor Arthur Berger Mayor Arthur I. Snyder PASSED AND ADOPTED on first reading this 2"4 day of November, 1999. 2 Ordinance No. 2000-__ Page 3 PASSED AND ADOPTED on second reading this 4th day of January, 2000. ATTEST: ARTHURI. SNYDER, MAYOR TERESA M. SOROKA, CMC/AAE CITY CLERK APPROVED AS TO LEGAL SUFFICIENCY: CITY A~I-ORNEY tms 3 Exhibit A General Fund - 001 1998/99 19~8/99 OBJECT ADOPTED AMENDED CODE CATEGORY BUDGET AMOUNT REVENUES 1998199 RErdlSED BUDGET Locally Levied Taxes 3141000 Utility Tax-Electric 1,037,000 1,037,000 2,074,000 SUBTOTAL SUBTOTAL Total Amendment Revenues EXPENDITURES city Manaqer 1201 Salaries & Wages $ 272,348 13,000 285,348 2301 Life & Health Ins $ 16~81 4,000 20,281 3120 Legal Fees Subtotal 4911 Page 1 of 3 Exhibit A SUBTOTAL Total Amendment-Expenditures 140,000 162,000 302,000 320,064} ~69,000 689,000 0 34,000 34,000 OBJECT cODE CATEGORY REVENUES Locally Levied Taxes 3141000 Utility Tax-Elect tic SUBTOTAL Non4~evenue Total Amendment Revenues EXPENDITURES Total Amendment-Expenditures Debt Service Fund - 230 1995/99 1998/99 1998/99 ADOPTED AMENDED REVI~ED BUDGET AMOUNT BUDGET 0 6,900,000 6,900,000 0 430~000 430,000 412,000 6,488,000 6,900~000 1,038,000 (195,000) 843,000 Page 2 of 3 Exhibit A Capital Construction Fund - 320 199~/99 t998199 1998/99 OBJEcT ADOPTED ~DED REVISED CODE CATEGORY B~ET AMOUNT BUDGET REVENUES Total Amendment Revenues EXPENDITURES 10,500,000 525,000 525,000 920,000 920,000 3~368,458 13,868,458 OBJECT CODE CATEGORY REVENUES EXPENDITURES Police Off Duty Services Fund 19~8199 1998/99 ADOPTED AMENDED BU~T AMOUNT 1998/99 REVISED BUDGET 464,120 Page 3 of 3 CITY OF AVENTURA GOVERNMENT CENTER '"' AVENTURA, FLORIDA :33180 OFFICE OF THE CITY MANAGER January 3,2000 To: Waterview Condominium Flamenco Condominium Hamptons Condominium Landmark Condominium Dear Resident: This letter is to inform you that item three (3) on the January 4, 2000 Commission Agenda, "a motion of the City Commission of the City of Aventura approving a modification to paragraph 1 (C) of Resolution No. 99-52 to allow an additional 90 Days", has been withdrawn. This item was a request for modification of a condition of Resolution No 99-52, which approved a sales office and model home trailer at the Hamptons South site located at 20201 East Country Club Drive and would allow for additional time in which to obtain site plan approval for the permanent residential development. The developer met the original time schedule imposed by the City Commission and, therefore, no longer needs an extension. Please post this letter on your bulletin board and/or distribute to residents so that they may be informed of the withdrawal of this item. Should you have any questions regarding this fax, please contact the Community Development Depar[ment at (305) 466-8940. Eric M S~'oka/ City Mana~ cc: City Commission PHONE: 305-466-a910 · FAX: 305-466-S9 I 9 DATE: J~muar~ 4, ~ PLF.,A~ DELIVER TI-W, FOLLOWING PAGES A~ ~OON AS PO~IBLE TO: ADDRESS: FAX NO. PHONE NO. Tem~ M. Soroka City Clerk, City ~f Avemm, Flor~ (30~ 4~919 COMMENTS: TOTAL NUMBER OF PAGF~ INCLUDING THIS COVF. R SHEET: ~ ~IPORTANT MES~GE TIllS TR~Sb, u-rz AL IS IN'I~NDED ONLy FOR THE USI$ OF THE ~IIMVIIRJAL OR ENTITY TO WHICH IT IS APp,uv-~.-gED~ ~ MAY CONTAIN INF~nU~'TION THAT IS PRIV!J_ F~',-gn~ CONFII)~NTIAL ANi~ ~ FROM ~C!/'m~'R~ UNDER AI~q~CABLE LAW. ~F THE P.F~}ER OF THIS TRANSMII~fAL l; NOT THE INTRNDED RECIPIENT, YOU ~ HFJtr~Y NOTIHF..D THAT ANY DISSEMINATION, DISTRIBUTION OR COPYING OF Tiffs COMMUNICATION I$ STRICTLY pROHIBITED. IF YOU HAVE !~EC£1VED THIS COMMUNICATION IN ~,ROR, PLIiASE NOTIFY US IMMEDIATELY BY TELEPHONE, AND RETLrP. N THE ORIGINAL TRANSMITTAL TO US AT THE ABOVE ADDRESS VIA THE UNITED STATES PO$1'AL SERVICE. WE WILL REIMBURSIi YOU FOR POSTAGE. THAI'OI YOU. NOT~;: PLEASE CALL ViCMe Suar~ .¥r ~s.14~-55~ IMMEDIATELY W/iLL P~,GF~g ~ NOT RECI!IVE1} BELLSOUTH City of Av~uta January 3, 2000 VIA FACSIMILE AND U.S. MAIL Mr, Branlio Leibowitz & Associates. Suite 1450 Suatmst Intema~iarml Coster Re: BetlSeuth's Comments Regarding ~h¢ Cily of Aven~unt's Proposed Teleconununicatians Ordi~mce Dear Braulio: BellSouth T¢lccommuninatinns, l~c. ("BellSouth") appreciates the opportunity to provide (the '+O~dinance"). a draR (~ated 11/29/99) of which we received from you on December 20. Pan (I) of this letter provides BellSouth's general commeats regarding the Ordinance, and Part (:2) of this letter pmvtdes more specific comments reg'axtia8 paflicul~ O~'dmaace provisions based upoa those general comments. (I) Gcueral Commen~L BellSouth objects to certsia pmvlsians ia t~ Ordiaance because they (a) exceed the City's autho:.ity under its police power ~:o manage its public rights-of-way. 0)) am pre-empted by s~ate or federal law or (c) encroach upon the jurisdiction and authority oi'the Pubtfc Service Commission ("psc") and the Federal Communications Commissina ("FCC"). A telecommunicatio~s ordinance enactgd by a municipality ia Florida is iavaEd to the extent that it includes other than wasonablc mica or regulations to manage City fights-of-way and Mr. B~aulio Baez Janua~ 3, 2000 Thc City may impose rca~onabl= r~les and regulations, collect such f~s and a~rop~niely ex~e i~ ~lice ~w~ wi~out ~nac~i~ ~ otd~ ~ueh aS ~e O~a~ which is i~onsistent ~ applicable law. A ~roWmg number of ca~s suppo~ thc principles refetunced above a~. eccoixlingly, strike down municipal ordinance provisions that exce~.d the subject municipality's authority. Palm Beach and Coral sprm~s (citad above); Bell Atlantic-Matyla~. Inc. v. Prince George's County, 49 F.Supp. 2d 805 (D.Md. May 24, 19991; AT&T Commun~catiot~ of the Southwe~t~ Inc. v. CMy of Dallas. 52 F.Supp. 2d 263 (ND. Tex. May 1'/, 19991; AT&T Cotumtlmcations of the Southwest, Inc. v. City of Dallas, 8 F.$upp.2d 582 (N.D. Tex. lune 8, 19981; City of Chattanooga v. BellSouth Telecommunkations, Inc. et aL I F.Supp.2d 809 (E.D. Tm* Jan. 26, ]998); AT&T Comrattnicatio~ of the Southwest, Inc. v. City of Au~tin~ 975 F.Supp. 928 (W.D. Tex. Aug. 21, 19971; Cily of Hawarden v. US West Conuonnications, Ittc., 5~0 N.W.2d 504 (la. Sup. Ct. 19~9). The FCC has expressed concern that local regulation slmuld net reach beyond traditioaa~ rights-of-way matt~s and s~ek to impose a "redundant third-tier of teleconununications regulation" aspiring to govern relationshiln among tele~ommumeatio~ provide~ or the rates, terms and condition~ of service or impose requit~n~ts that constitute a bamer to entry inconsistetu with Section 253 of the Federal Telecommunications A~t of 1996 (the "FTA'). TCI Cablevision of Oakland County, Inc., Memoraa~ Opfngo~ and Or,er, FCC 97-331 (Sept. ~9, 19971. Commmts re~ding particular Ora~,,~,,ce provisions based UT)On these get~eral comme~ta follow. (21 Commen~ Re~erdle~ Partknlnr Ordinance (#) Whereas Clausea. The FiRh Whereas clause is inconsistent wit~ Section 253(a) of the FTA and Section 337.401(61, ]:la. Stat, as it effectively provides that the City has authority over access of providers to the City service territory (Secdon 253(8) provides that a local government regulation may not prohibit or have the effect of proh~ifin$ the ability of an entity to prow~e telecommunications service). The Sixth Whereas clau~ is incorrect, as the Ordinance policies ate not i~ a~ord with the FTA. Refen~nce in the Eighth Wherea~ niause to, m~d other n:fcrcncec in the Ordionnso to, "oporat~on$' ora telecommunications provider (thcluding in the definition of "Franchise") which sugg~t City tegulation over operations of "F~chise~s' sbeulci be deleted: the PSC has exolusive juri~iction over operations, A Iota] government can only impo~ reasonable rules for managing righu-of-way and collecl lawful charges imm telecommtimcations providers. The Ninth Wb.e~as clanse is objectionable based upon the commcn~s ia patt {eX 1 ) below. (b) Section 2. (I) the definition of "Affdta~" should be deleted, as it has no relevance tu managing Nghts,.of. way or collection of fees; (2) the definitions a~l us~ of "Franchise," Mr. Braulio Baez Page 3 of 7 .lanuary ]. 2000 "Franchise Agreement" and "Franchisee" ~re ieappropriete for the reasons discussed in pan (c)(I) below; (3) the definition nf "Gross Receipts~' exceeds thc approp~ate tee base set forth in Section 33?.40 I, Fla. Stat. (it st:ems that the term is used only in Section 5(A) in the phr~e "one percent (1%) of Gross Receipts of the Franchise~ on Rccuning Local Sc~ica Revenues." such that Gross Receipts should be dcfned, if at all, me,ely a~ receipts from Recurnng Local Service R~,,enues); (4) by inclusion of ~ferences to PSC, federa~ and s~ate laws in the definition of"Law," thc City impermissibly puq~orts to extend its jurisdiction to require compliance with these laws and punish for non-compliance; (5) itc defiinima of "Public Rights-of-Way'* should not include "easements," as this term includes private and utility casements that are not designed for the traveling public or the appreptiate subject of City regulation regarding use of rights.of*way; (6) the definition of"Recumng Local Service Revenues" differs from the definition previously ab, r~d upon by BellSouth and other thdos~O' members; and (~) the definition of '"Tetecoraraumcetions Facilities" differs siguificantly ~rom Section 364.02(13), Florida Statu~:s. (c) Secdon 3, (1) This section regarding the ~-ant ora "franchise" is inconsistent with applicable law, including Section 337.4OI, F~a. Stet., existing City Ordioancc 97-02 and the P~nce Gen~ge!s, DaL~, Palm Beach a,~ Coral spnn~s cases. The law PrmOdes that Beo$oath has the continuing Hgh! to use City rights-of, way under Scctinn 337401(7), Fla. Stat. and that the City he~ no authority beyond requiting a tele~muincations prowder to comply with r~so~able ~les and regulations to m~Rge rights-of-way and collect fees in accordance with Section 337.401, Fla. S~at. (as discussed in Pa~ (I) of this in,er above). We aze not certain of the in~-nt oftbe language "[u]nle~ othetwlse authorized by applicable law" which modifies itc franchise requiremont. T~s language should contemplate Section 3:37.401(7), Fla. Stat. such that ix exempls companies that fail within the language in that sub~ion from all franchise-retched requirements. Case law has held invalid "franchise" and releted ordinance provisions similar to those m the Orchennce.I Further, any such roles rega~liag use would be, it s~ms, more appropriately set forth in public work~ department permits/policin~ (2) The application reqinrernants are invalid for the ~sons discussed in pan immedlamly above. Also, the mqalremeros d~ thc prov~ion of information ' For example, Prince George's held thet "fi-anchise' requirements including a burdensome application process and reporting require'meres c~eate~i a subeta~ial and un~awful bartiot imz the telecommunications market in violation of Seclion 253(a) of the FIA. The case fu~her held that the ordinance provisions improperly imposed t~quu~ments umelated to prov~de~' use of rights-of-way. The court objected to requirements for pmvidotx to include in applicatin~ and reports information ufa'elated to such usc (such as financial ~nfonnation and technical information) and ordinance ptox4sions graesins the local government e~tity the power to grant or deny a "fr4nchise" based upon a wide range of d~scrctionwy factors. Thc Ordinance sui'fe~ from the same problems. Coral Spr'n~ held that the grant nfs "&anchise" may be conditioned only on a prov~der's agreement to comply with reasonable rules to manage rights-of-way and fees for use of rights-of-way (and then proceeded to str~ke down provisions such aa those in the Ordinance). not make sense For example, Section 3(I~)(2}(¢) asks lot"aa es~mam of any nccgsaa~ proprietary ~out public ~or~ ~n (s~ Palm B~h whi~ ~ld ~ the wh~ or ~t pm~y relat~ to m~ng ~ts~f-~y (~c ~e ~e's ~c, 3(C) ~ah~ s~t~ ~t &e a~li~t must "ac~l [~y] ~fi~ons ~u~ by ~ su~ (e) of su~ (E}. ~y ~ms im~s~ ~n a ~om~ ~der su~ (F), Mc Brautin Baez .ranun~ 3, 2000 object to pa+..aneot of audit expenses a~ specified in the Ordinance. The Ordinanc~ r~quires annual reports from providers that (!) include infonuation nol needed for managing ~ghts-of- way, relate to subjects exclusively within PSC or FCC ju~isdictinn and is proprim~'y and (2) discussed in foomore l, Prince Oeor~e's held similar reporting requirements invalid. Requiring ~n estimare of the availability of space in conduits in annual rc, po~ is invalid for the reasons discussed in p~t tcX2) above. Based upon informotinn provided to the City in connection with p~ittmg pr0c~, tho City will already have information mgartiing locution of facilities, such that requiring such information in maps in annual reports is hardefl~ome and unn~cessa~. Sections 6(C) and 6(D) include overbroed provisions that way and/or ~re cxclusividy within the jurisdiction of the PSC. Section 6(£) asks for an leasing dark fiber on the System; this information is not hOOded for the City to manage rights- of-way, is proprietY/and/or is within the exclusive jmisdictinn of t~ PSC. (g) S~ctlom ?. Suhpast (A) contains imdergtounding requirements in violation of applicable law, mchiding PSC Rules and Florida power Coqx~stion v. Seminole County, 579 Sa. 2d 105 (Fla. 1991 ) (providing ~ the ex¢luaive jtu~sdiction of tho PSC to r~ulai¢ nt~ and of I~blic utili6¢s preempt~ the authority of a city to mlinr~ a company to place ita lines underground and, ascordingly, is iaeonsisteot with a city exercising ils discretion to require under~otmchng in certain instanaes). Subpn~ (B) which inquiries that ~ company provide locates for the CiP/ at no Co-~ to the City r~qtlires in-kind compensation in violation of S~:tion 337.401(5), Fla. Stat. (the fi~ shot such language is modified by "to the extent law, it should be d¢loted in full). Subpa~Is (D) and (E) need to be qualified by the following proviso: "except as explicitly provided under applicable la~v, for cxanlpleo ~ 337.403. Fin Stat." Section 337.~03 ~'~$ forth limited circumstances whom a company mu~, at exp~, relocate i~s ta~iliries upon request by a city; subparts (D) and (E) ar~ incomLd~m with ch¢ ~tatusc. Subi]afl (I0 should he revi~d to clal~fy chat any ulreration or r~moval by the City as scl forth in the final lin~ of the secrion will ~ot b~ at the providef's (h) ScrOll 8, Seh~afl (A) should not refer fA zoning regulations, as choy are not epplicable to "minimal disruption" instead of"no disruption" (we believe this is consistent with the City'~ intent, and the "no disruption" s~andard is impossibl~ to salisfy). The last ~nt~mce of sublmJ1 (B) and second ~o las~ s~ltmce in subpa~ (H) muS~ be deleted, as they purpo~ to ~gulaie the height, width and diamoter of a provider's fucilirics, maitcn exclusively within PSC jurisdiction under applicable law. Fu~hor, subpan (H) is inconsistent with 47 U.S.C. 22~(D(1) regarding pole aitachmeots and exceeds the CiVy's police power (it seems desig~d to control aesthetics not to manage fights.of-way) and it presents practical problems, as it requires City Commission approval for thc referenced at~.Amlents. Subpa~ (F) allowing for provider's oper~ticms (~ee palm Beach mvahdetmg requ,,,~,,mta for mspeotma of op~ntuons due ~o confliot with Sec~n 337.40[(6), Fla. St~. providing that op~mtioas ate exclusively within PSC jurisdiction). We request that subpaA (E) be revlaed to providu for m exception Page 6 of 7 .!anuary 3, 2000 to the 30-day pos! completion restoration rcqinrements in the event of special circumstances, as may be approved by the City Manager or public works depanmcm. (I) S_.ection 9, This section regarding wdtten acc~ptsnce by "franchisee" is invalid for the same S~tlou I1. The trnifer requirements in this section are invalid for the same reasons thc grant of "~atschise" ami app~icaiinn requirements arc invalid, as discussed above. (k) Section 12. Subpan (E) must be revised to include in the second sentence the same "provided however" clause (limiting indemnity obligations) as is included in the t'tts~ sentence. See Weeds v. City of Pala~ka, 63 So. 2d 636 (Fla. 1953). Ftulher, indemnification should nol extend to "operations" of a provider in the Cdy but should relate only lo claims arising from work in right,-of-way. (1) Seettons 13 and 14. The secuhty fund end beading requirements impose a cost upon providers in excess of the 1% maximum allowed under Florida law. [f the requirements are ~tained despite this comm~llt, Section 13 ~ho~ld be ~evised to clad~ that the C~ty Ma~ag~ fund requiremems). In this regard, reference to f'manciall¥ slability as a factor to be standanl). $cclinn 14(A) ref~ to mnd/fication of the bond amount by thc City Manager (m) Seetfun 15, Th~ enforcement remedies in this Sex:tiott exceed the City's police power to impose reasoenble rules ~egarding uSe of nfl, bis-of-way. Lawful remedies ate provided by Sections ~66,0415 and 162.09, Finzlda St~llutas. The liquidated damages previsio~s in subpa~s (A) and (CXI) arc, in particular, imp~mtlssibb. Revocation as an enforce~ent remedy is impermissible as discussed in pe~ (n) below. (n) Set'tiens 16 and 17. Sectio~ 16 regarding revocation or termination ora '~hisc" sb~ld ~ ~c~n. ~e City ~ not ~ve ~e au~fity to ~ize ~d sell a pwv~r's p~, t~ Ci~ ~t revoke from ~U~u~ its s~o~ fig~ ~ Finfi~ law to usc CiW of-way. Rev~ti~ ~ by a vio~fi~ of the ~m~e ~ a "~c~ a~em" is invalid ba~ upon for ex.pie. Co~l So~ ~d P~c~ G~'s, w~cb hold inv~ Mr. Braulio Baez Page 7 of 7 Sa~uaty 3, 2000 (o) Section 18. Municipal ownership prOv s oas such as hose m his s~c mn excc~l he C ty police power to reasonably regulate use of righi$-of-way and are invalid. See Coral Springs, 42 F.Supp. at 13 ] I In light of our (and, we expect, other indust~ members') concerns regarding the Ordinance, we r~quest that the Ci~, at a mir, i~um, hold · workshop for indusm/members snci Sharon Liebman David Wolpin, Weiss Scrota Helfman Pastonza & Guedes, P.A. W. Tee Holloway, Manager, BellSouth Corporate & External Affairs HOLLAND & KNIGHT LLP FACSIMILE David Wolpin, Esquire (305) 854O800 Janna P. I,ho~a 954 525-1000 NAME TgL~PIIONE NUMBER (954) 468-7891 HOLLAND & KNIGHT LLP January 3, 2000 V~A TELECOP¥ (305) 530-9417 Braulio gaez, Esqui~o Leibowitz &Associatos, P.A. SunTrust International Center Suite 1450 One Southeast Third Avenue Mia mi, Florida 3313 £- 1715 TCG South Florida - Co'smears to Proposed City of Aventura Telecommunications Ordinance Dear Braulio: Thank you for forwarding to our office a copy of the most recent draft City of Aventura Telecommunications Ordinance (the "Ordinance"). We have had an your consideration on behalf of our client, TCG Sou~h Florida ('"I'CG"). I. Page 4, Section 2(G) - This subsection contains t~e definition of ~Gross R~e~iptz." TCG objects to thiR definition aa it exceed~ that contemplated by Section 337,401(3), Florida Statutes. We suggest that tho dsiinitioa of Gro~ Raeoipts include only thoze receipts on "R~curring Local Servlc~ Revenues" as provided by Seotion 337,401($), Florida Statutes, and as provided in the Ordinance, 2. Page~ 5 through 7, Section 2(L) - This subsection ~m~ins the de£mition of '~cur~ng LO~I Se~ice ~venues". We no~ that ~he definition has changed zllghtly from t~t used ~ other &~s prepar~ by yo~ office an6 would appoints it if you would explain tho reason for the revisions. Braulio Base, Esquire January 8, 2000 Page 2 3. Pages 8 and 10, Section 3(A) and (D) - Throughout these anbsections, as well as in other provisions of thc Ordinance, the City appears to assert authority over the operations of a provider within the City. S~tion 337.401(6), Florida Statutes, explicitly provides that the City may not use its attthority aver the placemea~ of facilities in the right-of-way as a means of exercising regxdatory authority over the operations of telecommunication companies such as TCG. Rather, oversight over operations and certification of telecommunications eempanies is within the solo jurisdiction of the Florida Public Service Commission ("Fi'SC"). As such, any @ro~,ision in the Ordinance which purports to ansett authority over a certificated telecommunications company should be deleted. 4. Pages 8 through 9, Section 3(B) This subsection roquirsm that certain information be provided to the City as part of a~ty application [or a kanc~se, Sp~iacally, TCG ts concecned chat ;he ~format~n reques~ conce~ing tho l~ation of ~he proposed facilities, the facility dssi~ area l~ationz, ~he size of facilitie~ ~d eq~pmeng to be construct, availability of space in exL*ting conduit, and fim~g of eonstru~mn may be premature at application s~ge. TCC will be be~ar able ~ p~de tMs sp~ifi¢ ingormafion at the permitting stage whi& wo~d oce~ late~. F~hermore, TCG is ~ncerncd that if it weze reqt~ ~ pro.de ouch informatlon a~ this stoa it will lead the disclosure of proprietary information. 5. Page 9, Section 3(C) - TCG would appreciate it it' the City would specifically provide a time frame within which a franchise will he granted by the City once the application is complete, i.e. thirty (30} days. Additionally, TCG objects t~ any proviaion that would allow the City to modify its proposed system or facility, Section 337.401(6) provides Ghat: A local government entity may not uso its authority over ti~e placement of facilities in its roads and fights-of-way as a beats for asserting or exercising regmlatory control oyes a tsleeommunication~ company regarding matters within the exclnsive jurlsdictioa of the ?torino Public Service Commission or the Federal Communications Commission, including, but not limited to, the operations, systems, quahficatmns, services, setwice quality, service t~rritory, and p~i~ea of a telecommunieatinna company. Braullo Ba~'z, Esqnir. Janu/try 3, 2000 Page 3 Fla. Stat. 337.401(6) (1999). Thus, the City ia preempted from 6. Pages 12 through 13, Section 5(C) - This subsection providoe for payment of an annual foe in tho event a telecommunications company is not prnviding servic~ as dotlned in Sect/on 203.012(3) or (7), Florida Statutes. TCG obj~ct~ to this provision as exceeding the City's authority under both federal and .qtate law and as further clarified in the Final Declaratory Judgment and Omnibus Order on Summary Judgment entered by the Honorable William P. Dimi~rouleae in the action styled BellSouth Telecommunications. Inc. v, City of C01'al 8unn~s. Flor/da. Case Ne. 97-7010~CIV-DIMITROULEAS. Section 337.401 docs not provide the City a legal basis for levying tko f~e set out in this subsection. 7, Page 13, 8~tion 5(0) TCG objects to this suh~ction as overreaching and exoeesive. 8. Page 14, Section 5C~ . This su~st~etion contemplates the payment by TCG of a non-refundable foe to the City in th~ amount of $10,000.00 upon the submission of a ~equest for a grant of Franchise ~ecment or a renewal of a Fr~nchioe A~eemont with the City. TCG obj~t~ m the payment of any ~e that is in excess of the a~ual ~t~ inched by tho City to ~ew ~he application submitted by a telccommu~cation8 company, ~hermore, any fee l~isd by th~ City sho~d b~ tied to the l~i~tions plac~ on th~ City by Section 337.401, i,e. the fcc should be a crc~t against the foes charged in S~on 5(A) of the pro. sod Ordinance. 9. P~goe 15 through 17, Section 6(B) - This subsection roquiroe a provider to ~ubmit an annual r~port to the City containing information, including but not limited to the following: (a) a list of officers and directors, limiled partners and partner9 of th~ company, Co) copies of any pleadings, petitions, applications and/or other documents submitted by or on behalf of the [ranchi~e~ to the FCC, SEC, FPSC, and (c) any and all notiee8 of hearings, deficiency, fm~'eiture of other documents instituting any investigative whether civil or criminal by any state or federal agensy regarding the fra~chisee. TCG would object tc tbs City's reqn/rement tha~ this information be or~vided as cxcesslvc and overreaching and beyond th~ City's authority under both federal and sta~c law and as further clarified by the Cour~ ilx the ~ de~i~ion. Braulio Baas, Esquire January 3, 2000 Page 4 10. Page 17, Section 6(D) .- This suhse~tion requlre~ a ]:'~anchisce to provide to the City "any dacu~nent that may adversely impact the construction, operation or ma~nance of the ~chis~'s Pacifies". TCG obj~ to ~his language n~ it ~ overly broad and va~e. 11. Page 17, Section 6(E) - This subsection would require TCG to annually certify that it not leasing excess capacity or dark fiber to third parties. As a le~see, a provider would not be "occupying' or otherwise using the City's rights-of-way. Current case law prohibits the City from levying a fee ca a provider that leases facilities, See AT&T Communications of the Southwest, Inc. v. City of Dallas, Texas, .. F.Supp.2d -.. 1999 WL 386168 (N.D.Tox.. Jul), 7, 1998); ]Jell Atlantic-Maryland, lac, v, Prince Oeorge's County, Maryland, -- P.Supp.2d --, 1999 WL 343646 (D.Md, May 24, 1999). Accordingly, TCG suggests that this subeection be deleted. 12. Page 18, Section 7(B) - We would appreciate, it if you could clarify what is meant by the last sentence in this su)~section. 13. Page 18, Section 7(I)) - This subsection should be cisxified ~o provide that relocation or removal expenses are to be paid by the Franchisee only as provided by applicable law. 14, Page t9. Section 7(G) - Th/s subsection should be clarified tn more ~pecifically outline those inetances when the City wou~d be a~lowed to cut and/or remove a provider's facilities. As currently written, ~e ~ubsection ~ ~omewhat vague and could lead ~ situations wherein a p~dcr'~ se~ce is unnecessarily ~terrupt~. 15. Page 20, Section 8(B) - Tho last two sentancee to ~ subsection contemplate the City's adoption of rules and regulations that may include reasonable "requiremente and restrictions with respect to height, width and diameter of' a prov/der'e facilities. TCG object~ to this language as it violates the express language found in Section ~37.401(6) and impedes upon the regulatory authority preempted to the FPSC. 16. Page 21, Sec'~ion 8(E) - The first sentence of' this subsection seems to be duplicative of language contained in Section 8(A), Additionally, to comply Braulio Bacu, Esquire January 8, 2000 ]['ago § with the provi~ions of Suction ,q37.401, any permit from should be creditM ~ainst the tee paid by TCC pursuant ~ ~c~ion ~(~ of the Ordinance. 17. Page ~2, S~ion 8(H) - TCG objects to t~s subsection to ~he extent that it wo~d pr~ude TCO from attacMng itt facilities to ~ting paise or to p~c~ i~s facilities wi~m exi9ting ~nduit. F~ral ~d stare Law con~mplates that exisfng ut~ea ~a~ provide ~l~mmunications e~riors non- dia~iminatory access to ~y "pole, duet, conduit or nght-ogway ownM or eon~rolled by ;~." Sa~ 47 U.8.C, S~on 18. Page 22, 8ecfon S - ~is a~tion contemplate the written a<eptanc¢ of cha ~anchiss by a pm aer in the form d~ignato4 l~y the City. To ~he extant the City h~ dra&~ m~y such form d~ument, wa wo~d apprecia~ if a copy could be providad to us for our review ~d comment. 19. Pages 22 t~ough ia, S~on Il(A) - Thio attbaoction desto ~th transfers of control, sma or a$signmcnt. TCG requeat~ Chat this aubs~o6on he ~ended to permit tho aa~i~mont of tho f~aneh~a, without the consent of tho City, ~ {a) a subsid~ry, affilia~ or D~ont company; (b) ~y firm or corporation which framh~ee eontroh, ia coat.lied by, or ia under common ce.frei ~h; (c) any partnership in which it has majority intarest; or (d) to m~y entity which su~e~s to all or substanti~y ali of its aaso~ whether by merger, sale or othe~miss, as long as tho sucees~r entry has She appropriate au~hofizat~na ~u~od by th~ FCC an~or the ~SO. O~her tyD~ of transfers wa understand may be aubjee~ to ~tt~ ~nsent of the Ci~ ~hich ~kaa not he unm~onably wit~sld nr armed. 20, Pages 25 through 26, Sections il(B) and (D) . These subsections recognize the insurance polioi~s made be procured through "captive insuz, ea.d'. Wv would appreciate it if the laot sentence of ~ubsoction (D) was amended to provide "as defined in Suction 628.901, Florida Statutes, or as otherwise l~rovidad by law". 21. Page 25, Section I~(C) - TCG objects ~ the requirement that it docummlt or provide evidence of the payment of insurance premiums. We assume that the City if r~qu~rmg this documentation to ensure ~ha~ the policies of insurance r~quired by the proposed Ordinance are raaintainecl. This Braalio Baez, Esquire January .3, 2000 Page 6 required to be maintained with the City, 22, Pages 2g through 26, Section 12(E) This snbaectlon sets out the iademni~cation in favor of the City. TCG objects to the secolld sentence in attbsectinn t2(E) as it appears to indemnify the City against any claim which t;ould he made against tho City that it violates federal or atate law. 23. Pages 27 through 29. Section 13 - This section contemplates thc establishment and maintenance of a security fund by a provider in favor of the City. TCG objects to the provisions of thin, section. A escurity fund is not necc~ary as the City is adequately protected through various enforcement provisions not out in the proposed OrcUnance to assure compliance with thc Ordinance. 24. Page 29, Section 14(A) - This subsection contemplates the posting of a construction bond in favor of the City l?ior to per,brining any work in the Public lt, ights-o5Way. In general, TCG does not objecl; to the po~ting of a construction bond as long a~ the bond is ti~ to the value of the work being performed in the Citfs rights-of-way and provided the bond is released upon the completion of construction, 25. Pages ,30 and 31. Section 14(B) and Section ]4(F) - In light of TCG's objection against the establishment el~ a security fund of any type, it objecta to subsection 14(F) and the last sentence in aubsection 1.4(t~). 26. Pages 81 and 32, Section lg(A) and Section lS(C)(t) - These subsections contemplate the payment of liquidated damages to the City. As statat in Paragraph 23 of this letter, TCG in general objects to any provi~ien, including liquidated damages, which exceed what is reasonably neceasary to adequately ~ecure TCG's obligations to the City as required by law. 27. Pages 81 tbxough 32, Section 150q) - To the extent the City allows a cure per/od, TGG suggests provision should be made that allows a longer period than the thirty ($0) days provided in the Ordinance in the event circumstances warrant. 28. Page 35 and Pages 37 through 38, Section 16(E) and Section 18 - These provisions contemplate the purchase of TCG's facilities in the event of a Braullo Baez, Esquire January 3, 2000 Page 7 revocation or a ~ermfl~ation of the Franchise. TCG objects whole~alo to th~se provisions as excessive, overreaching and beyond the City', authority unde~ fedcral and ~tnte law to impose ae ~omor~tratcd by tile _BclISouth dccision. to discern based upol:, our review cf tho Ordinance. A~ there are still signi_qcant further workshop be held where the City and industry can £urther discuss this V~y truly yours, HOLLAND & KNIGHT LLP By: c City Attorney David Wolpin (via fax) l~fLl #467895 vi Jamxa P. Lhota For the Firm