96-26 ORDINANCE NO. 96-26
AN ORDINANCE OF THE CITY OF AVENTURA, FLORIDA; GRANTING
TO BELLSOUTH TELECOMMUNICATIONS, INC. A NON-EXCLUSIVE
FRANCHISE IN THE CITY OF AVENTURA; AUTHORIZING BELLSOUTH
TELECOMMUNICATIONS, INC. TO USE THE PUBLIC RIGHTS-OF-WAY
AND STREETS OF THE CITY, FOR THE PURPOSE OF ERECTING,
CONSTRUCTING, MAINTAINING AND OPERATING LINES OF
TELEPHONE EQUIPMENT THEREON AND THEREUNDER; PROVIDING
FOR A FRANCHISE FEE; PROVIDING THE TERMS AND CONDITIONS
OF SUCH GRANT; PROVIDING FOR SEVERABILITY; PROVIDING FOR
INCLUSION IN THE CODE; AND PROVIDING FOR AN EFFECTIVE
DATE.
WHEREAS, the City of Aventura finds it in the public interest to retain control over
the use of public rights-of-way by providers of Telephone Services to ensure against
interference with the public convenience, to promote aesthetic considerations, to promote
planned and efficient use of limited right-of-way space, and to protect the public authority
over right-of-way property; and
WHEREAS, the City of Aventura finds that the granting of nonexclusive franchises
is the best means of assuring that the interests of the City of Aventura are promoted.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY
OF AVENTURA, FLORIDA THAT:
Section 1. Grant of Franchise. Permission is hereby granted to BellSouth
Telecommunications, Inc, its successors and assigns (the "Company") to construct,
maintain and operate lines of telephone and telegraph equipment, including the
necessary conduits, poles, cables, electrical conductors, fiber optics and digital
technology fixtures upon, along, under and over the public roads, streets, and rights-of-
way of the City of Aventura, Florida as its telephone and telegraph business may from
time to time require.
Section 2. Term and Limits of Franchise. This non-exclusive franchise granted
by this Ordinance, if accepted by the Company, shall be in force and effect for a period of
five (5) years and covers the following geographical area: The corporate limits of the City
of Aventura as set forth in the Charter of the City of Aventura, as amended from time to
time. Company agrees that the limits of the franchise are subject to expansion or
reduction by annexation and contraction of municipal boundaries and that the Company
has no vested right in a specific area. The City shall notify the Company of any
annexation or contraction of municipal boundaries and provide the Company a map of the
new boundaries in a timely manner. The Company shall take prompt action to implement
computations and corresponding payments to annexation or contraction and notify City of
effective date of same.
Section 3. Franchise Fee; Payments. In consideration of the rights and
privileges herein granted, and to defray the cost of regulating the Company's activities
under this franchise, the Company shall pay to the City annually a sum equal to one
percent (1%) of the gross receipts of the Company on recurring local service revenues
for services provided within the corporate limits of the City by the Company. Included
within such one percent (1%) maximum fee or consideration are all taxes, licenses, fees,
and other impositions except ad valorem taxes and amounts for assessments for special
benefits, such as sidewalks, street pavings, and similar improvements and occupational
license taxes levied or imposed by the City upon the Company. The annual payment
shall be made to the City for each year that the permission granted herein is in effect and
shall be made to the City in four installments. The first, second and third installments of
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the annual payment shall be based upon the gross receipts for the first, second and third
quarters, respectively, of the fiscal year and shall be made no later than sixty (60) days
following the end of these periods. The fourth installment of the annual payment shall be
made no later than sixty (60) days following the end of such fiscal year, and shall be
based upon such gross receipts for the fiscal year but shall be adjusted to reflect payment
of the first three installments and any credits not previously taken. For purposes of this
payment, such fiscal year shall end on September 30. The first such payment shall be
based upon receipts for the quarter of October, November and December 1996, and shall
be made on or before January 31, 1997. Payments shall be payable to the City of
Aventura, Attention: Finance Support Services Department, during regular business
hours of the City.
Section 4. Review of billing records. If the City wishes to verify the payments to
the City under this Ordinance, the Company shall permit the City or a designated
representative of the City, upon reasonable advance written notice, to review the
Company's billing and payment records, upon which the payments were based, during
normal business hours at the location of the Company where such records are
maintained. However, no Company records may be taken from the Company's premises,
and the City shall maintain the confidentiality of the information disclosed in these
records and use the information solely for the purposes of verifying payments by the
Company. Such Company records shall be maintained by the Company for the period
prescribed by the Federal Communications Commission and/or the Florida Public Service
Commission.
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Section 5. Transferability. If the rights granted herein to the Company are
transferred or assigned by the Company to any third party incident to a sale or other
transfer of the Company's system or plant, the transferee or assignee shall be obligated
to comply with all of the terms and conditions of this Ordinance.
Section $. Forfeiture. Failure on the part of the Company to comply in any
substantial respect with any of the material provisions of this agreement shall be grounds
for a forfeiture of the permission granted herein, but no such forfeiture shall take effect if
the reasonableness or propriety thereof is protested by the Company, until a court of
competent jurisdiction (with right of appeal in either party) shall have found that the
Company failed to comply in a substantial respect with any of the material provisions of
this Ordinance. The Company shall have six (6) months after the final determination of
the question to make good the default, before a forfeiture shall result, with the right in the
City at its discretion to grant such additional time to the Company for compliance as
necessities in the case require.
Section 7. Hold Harmless. The Company shall indemnify the City against and
assume all liabilities for damages which may arise or accrue to the City for any injury to
persons or damage to property from the doing of any work herein authorized, or the
neglect of the Company or any of its employees to comply with any ordinance regulating
the use of the streets of the City, and the acceptance by the Company of this Ordinance
shall be an agreement by it to pay to the City any sum of money for which the City may
become liable from or by any reason of such injury or damage, including reasonable
attorneys' fees incurred by City.
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Section 8. Under.qround Installation. The Company shall install underground
extensions of telephone distribution lines in new residential subdivisions over five units or
new multiple occupancy buildings where all other utilities will also be installed
underground. Such installation shall be provided in accordance with and subject to the
requirements of applicable statutes, and the Florida Public Service Commission Rules
and Regulations, including any requirements applicable to the applicant for such services,
such as the provision of necessary rights-of-way or easements.
Section 9. Excavation Maintenance and Restoration. The work under this
Ordinance shall be done subject to the supervision of the City. The Company shall
replace or properly relay and repair any sidewalk, street, lawn, landscaping or swale that
may be displaced by reason of such work. Except where law requires the cost to be
borne by City, whenever the Company shall cause any opening or alteration to be made
in any of the streets or public places within the City for the purpose of installing,
maintaining, operating or repairing its equipment, such work shall be completed at the
Company's expense within a reasonable time and the Company shall upon the
completion of such work restore such portion of the streets or other public places to
substantially the same condition as it was before the opening or alteration was so made
and will promptly remove any debris. Upon failure of the Company to perform said repair
or restoration, after twenty (20) days' notice provided in writing by the City to the
Company, the City may repair such portions of the sidewalk, street, lawn, landscaping or
swale that may have been disturbed by the Company and collect the cost so incurred
from the Company. The City shall promptly provide to the Company all permits, licenses
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and other authorizations reasonably necessary for the purpose of installing, maintaining,
operating and repairing the system and facilities.
Section 10. Use of Streets and Rights-of-Way. All poles, wires, cables,
underground conduits, manholes and other fixtures erected by the Company in, upon,
along, across, above, over and under the public roads, streets and rights-of-way within
the corporate limits of the City shall be so located as not to unreasonably interfere with
the use of the streets, avenues, alleys, and public rights-of-way by the traveling public
and to cause minimum interference with the rights or reasonable convenience of property
owners who adjoin any of the said roads, streets and public rights-of-way.
Section '11. Complaints. All complaints shall be addressed or resolved by the
Company in accordance with the Florida Public Service Commission rules and
regulations if applicable.
Section 12. Surrender of Rights. As a further consideration for the granting of
the rights, privileges and franchises granted hereby, the Company surrenders all rights,
privileges and franchises heretofore granted by Dade County in the franchise area for any
of the purposes stated in this Ordinance and now enjoyed by the Company in the
franchise area; provided, however, that such surrender shall not be effective unless and
until this Ordinance shall be finally adopted and in effect and the rights, privileges and
franchises granted hereby shall be validly in force and effect. In lieu of acceptance of this
provision, Company may certify to City that it disclaims such rights, privileges, and
franchises by, through, or under Dade County.
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Section 13. Successors and Assigns. Whenever in this Ordinance either the
City or the Company is named or referred to, it shall be deemed to include the respective
successor, successors or assigns of either, and all rights, privileges and obligations
herein conferred shall bind and inure to the benefit of such successor, successors or
assigns of the City or the Company.
Section 14. City's Right to Regulate Use of Streets not Abroqated Nothing in
this Ordinance shall be construed as a surrender by the City of its right or power to pass
ordinances regulating the use of its streets in accordance with City's police powers or
property rights, provided, however, that such regulation shall not be inconsistent with the
rights granted herein.
Section 15. Written Acceptance by the Company. The Company shall, within
forty-five (45) days after this Ordinance takes effect, file a written acceptance of the
Ordinance with the City Manager.
Section 16. Reservation of Ri.qhts. Except as otherwise specified herein, the
City hereby reserves any and all rights not otherwise expressly prohibited by applicable
law.
Section 17. 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.
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Section 18. Effective Date. This Ordinance shall be effective immediately upon
adoption on second reading.
The foregoing Ordinance was offered by Vice Mayor Rogers-Libert, who moved
its adoption on first reading. This motion was seconded by Councilmember Beskin, and
upon being put to a vote, the vote was as follows:
Councilmember Arthur Berger absent
Councilmember Jay R. Beskin yes
Councilmember Ken Cohen yes
Councilmember Harry Holzberg yes
Councilmember Jeffrey M. Perlow yes
Vice Mayor Patricia Rogers-Libert yes
Mayor Arthur I. Snyder yes
The foregoing Ordinance was offered by Vice Mayor Rogers-Libert, who moved
its adoption on second reading. This motion was seconded by Councilmember Cohen,
and upon being put to a vote, the vote was as follows:
Councilmember Arthur Berger yes
Councilmember Jay R. Beskin yes
Councilmember Ken Cohen yes
Councilmember Harry Holzberg yes
Councilmember Jeffrey M. Perlow yes
Vice Mayor Patricia Rogers-Libert yes
Mayor Arthur I. Snyder yes
PASSED AND ADOPTED on first reading this 4th day of ~3eptember, 1996.
PASSED AND ADOPTED on second readin~~ber, 1996.
ATTEST:
TERESA M. SMITH, CMC
CITY CLERK
APPROV~ LEGAL SUFFICIENCY:
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CITY OF AVENTURA
GOVERNMENT CENTER
2999 N.E. 191ST STREET
SUITE 500
AVENTURA~ FLORIDA 33180
OFFICE OF THE CITY MANAGER
October 17, 1996
Mr. Wilbert T. Holloway
BellSouth Telecommunications, Inc.
150 West Flagler Street
Suite 1820
Miami, FL 33130
Re: BellSouth Telephone Service Franchise Ordinance
Dear Tee:
Attached hereto is the BellSouth Telephone Service Franchise Ordinance as approved by
the City Council at the October 16, 1996 meeting. In accordance with Section 15 of the
Agreement, you have within 45 days after the Ordinance takes effect to file a written
acceptance of the Ordinance. In addition, please make the necessary arrangements to
expedite the payment franchise fees to the City in accordance with Section 3 of the
Ordinance.
If you have any questions, please feel free to contact me. Thank you for your assistance
and cooperation in this matter.
EMS/ne
Enclosure
cc: City Council
Harry M. Kilgore, Director of Finance Support Services
David M. Wolpin, Esq., Weiss Serota & Helfman, P.A.
CM0122-96
PHONE: 305-466-89 I0 · FAx: 305-466-8939