Loading...
HomeMy WebLinkAboutOrdinance 98-11 ORDINANCE NO. 98- 11 AN ORDINANCE OF THE CITY OF SUNNY ISLES BEACH, FLORIDA GRANTING TO BELLSOUTH TELECOMMUNICATIONS, INC., A NON- EXCLUSIVE PERMISSION OF THE CITY OF SUNNY ISLES BEACH; 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 FORA PERMISSION FEE; PROVIDING THE TERMS AND CONDmONS OF SUCH GRANT; PROVIDING FOR SEVERABILITY; PROVIDING FOR INCLUSION IN THE CODE; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the City of Sunny Isles Beach 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 Sunny Isles Beach finds that the granting of non-exclusive permissions is the best means of assuring that the interests of the City of Sunny Isles Beach are promoted; NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF SUNNY ISLES BEACH, FLORIDA, AS FOLLOWS: Section 1. Grant of Permission. 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 Sunny Isles Beach, Florida as its 0RD98-11 business may from time to time require. Section 2. Term and Limits of Permission. This non-exclusive permission granted by this Ordinance, ifaccepted by the Company, shall be in force and effect for a period offifteen (15) years from and after its passage provided, however, by written notice within ninety (90) days prior to the fifth and tenth anniversaries hereof, either party may commence negotiations for modification of the consideration paid by the Company to the City set forth in Section 3 herein. If new terms cannot thereafter be agreed upon, either party may terminate this Ordinance upon an additional ninety (90) days notice to the other party. The permission granted by this Ordinance covers the following geographic area: The corporate limits of the City of Sunny Isles Beach as set forth in the Charter of the City of Sunny Isles Beach, as amended from time to time. Company agrees that the limits of the permission 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 reflect annexation or contraction and notify the City of effective date of same. Section 3. Permission Fee Pavrnents. In consideration of the rights and privileges herein granted, and to defray the cost of regulating the Company's activities under this permission, 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 0RD9S-11 -2- 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 ftrst, second and third installments of 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 the anruversary of the last day of the month in which the ordinance becomes effective. The first such payment shall be based upon receipts for the first quarter of the fiscal year and shall be made within sixty (60) days following the end of the first quarter. Payments shall be payable to the City of Sunny Isles Beach, Attention: Finance 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. 0RD9S-11 -3- 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 6. 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 grant of permission hereunder, including 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. Section 8. Underground Installation. The Company shall install underground extensions of telephone distribution lines in new residential subdivisions over five units or new 0RD9S-11 -4- 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 which may be performed by the Company under this Ordinance shall be done subject to the right, but not the obligation of, supervision of the City. The Company shall replace or properly relay and repair any sidewalk, street, lawn, landscaping or swale that may be displaced or damaged by reason of such work. Except where law requires the cost to be borne by City or where the work performed is at the request of a developer, in which case the cost shall be borne by such developer rather than the City or the Company, 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 in compliance with street specifications of the City and 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 and other authorizations reasonably necessary for the purpose of installing, maintaining, operating and repairing the system and facilities. -5- aRD9S-11 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. Successors and Assisms. 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 successors, successors or assigns of the City or the Company. Section 13. City's Right to Regulate Use of Streets not Abro~ated. 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 14. Written ACceJ>tance by the Company. The Company shall, within sixty (60) days after this Ordinance takes effect, file a written acceptance ofthe Ordinance with the City Clerk of the City. Section 15. 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 ORD9S-11 -6- intent that this Ordinance shall stand notwithstanding the invalidity of any part. Section 16. Effective Date. This Ordinance shall take effect ten days after adoption on second reading. PASSED AND ADOPTED on first reading on the 20lh day ofN PASSED AND ADOPTED on second reading this 8th day of J ATTEST: 1Z'~~-- ~~",.. Richard Brown-Morilla, City Clerk APPROVED AS TO FORM AND LEGAL SUFFICIENCY: ~ _ .--R.., .... , Lynn M. Dannheisser, City Attorney Moved By: Commissioner Kauffman, Seconded By: C:ommissioner Morrow. The motion was approved by a vote of 5-0 in favor: Mayor David Samson (yes) ." Vice Mayor Irving Turetsky (yes) ." Commissioner Lila Kauffman (yes) ." Commissioner Daniel Iglesias (yes) ." Commissioner Connie Morrow (yes) ." (no)_ (no)_ (no)_ (no)_ (no)_ 1''' " , \~.'-.,,~ ~ ~......._' '--, (., ill. ,.~-\. '''I , ..I '- . /. ... ~ " \. '. 0" ........~ ".t.... Z. , \ :..... .f' ,~\- 1 .. t - ~ 1.... - ~ " j' ~ - .-~-.. ,~ \, \ c.".J :', ....~, '. '," ,,"_... if......:"':,':::",...,., .It \ #>~ ~'. .~.~.. ,"::,::" ~"'-,,, ,.... . ~ , ~ ~... \ . J .. w .-" -7- 0RD9S-11