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Ordinance 1438ORDINANCE NO. 1438 AN ORDINANCE GRANTING TO MALL TRANSPORT, INC., A FLORIDA CORPORATION, AND TO ITS SUCCESSORS AND ASSIGNS, THE RIGHT TO USE THAT PORTION OF LINCOLN ROAD LYING WEST OF THE WESTERLY LINE OF WASHINGTON AVENUE TO THE EASTERLY LINE OF ALTON ROAD, OTHERWISE KNOWN AS THE LINCOLN ROAD MALL, AND ANY FUTURE EASTERLY AND/OR WESTERLY EXTENSION OF SAID MALL ON SAID LINCOLN ROAD, IN THE CITY OF MIAMI BEACH, AND ITS SUCCESSORS FOR AND DURING A PERIOD OF TWENTY (20) YEARS, FOR THE PURPOSE OF ESTABLISHING, OPERATING AND MAINTAINING A VEHICULAR TRANSPORTATION SYSTEM FOR TRANS- PORTING PASSENGERS FOR COMPENSATION, IN CONFORMITY WITH AND SUBJECT TO ALL PROVISIONS, TERMS AND CONDITIONS HEREIN RECITED. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF MIAMI BEACH, FLORIDA: SECTION 1. GRANT - That, for the purpose of providing all persons in the City of Miami Beach (herein called the "City") with the benefits and advantages of a public transportation service, there is hereby granted to Mall Transport, Inc. (Herein called the "Grantee"), a Florida corporation with its office and place of business in the City of Miami Beach and to its successors and assigns, the right to use that portion of Lincoln Road lying west of the westerly line of Washington Avenue to the easterly line of Alton Road, otherwise known as the Lincoln Road Mall and any future easterly and/or westerly extension of said Mall on said Lincoln Road in the City of Miami Beach, and its successors for and during a period of twenty (20) years, for the purpose of establishing, operating and maintaining a vehicular transportation system for transporting passengers for compensation, in conformity with and subject to all provisions, terms and conditions herein recited. The term "vehicular transportation system" shall mean the organized and coordinated vehicular transportation service provided for hereby, and all property owned, operated and maintained in the rendition thereof, for transporting passengers for compensation, the enjoyment and exercise of the right hereby granted to be at all times subject and subordinate to the dominant right of the public to use that portion of Lincoln Road lying west of the westerly line of Washington Avenue to the easterly line of Alton Road, otherwise known as the Lincoln Road Mali and any future easterly and/or westerly extension of said Mall on said Lincoln Road in the City of Miami Beach, and to the lawful exercise of control by the City of Miami Beach over the use thereof and in conformity with and subject to all provisions, terms and conditions hereinafter recited. That the City hereby reserves the right at and after the expiration of this grant, as provided by the Laws of Florida in effect at the time of Grantee's acceptance hereof, including Section 167.22 of the Florida Statutes 1959, and as a condition precedent to the taking effect of this grant, Grantee shall give and grant to the City the right to purchase so reserved. Grantee shall be deemed to have agreed to all of the provisions of this ordinance and to have given and granted such right of purchase so reserved by Grantee's acceptance hereof, which shall be filed with the City Clerk within ten (10) days after this ordinance takes effect. SECTION 2. CONSIDERATION FOR GRANT - That, for and in consideration of the grant by the City of all the several rights set forth in this ordinance, and in consideration further of the enjoyment and exercise of such rights by the Grantee, the Grantee agrees and obligates itself to pay unto the City the following sums and amounts, subject to the terms and conditions herein stated: -1- In full payment by the Grantee of any and all excise taxes which are or shall be levied by the City under existing or future ordinances for the privilege of using that portion of Lincoln Road lying west of the westerly line of Washington Avenue to the easterly line of Alton Road, otherwise known as the Lincoln Road Mall and any future easterly and/or westerly extension or contraction of said Mall on said Lincoln Road, in the City of Miami Beach, the Grantee shall pay annually to the City, in lawful money of the United States, a sum equal to one per cent (1%) of the first One Hundred Thousand Dollars ($100,000.00) of the gross annual receipts of the Grantee, and an additional sum equal to an additional one per cent (1%) of the gross annual receipts of the Grantee in excess of the said first One Hundred Thousand Dollars ($100,000000) gross annual receipts, provided, however, that in no event shall such annual payment by the Grantee to the City be less than One Thousand Dollars ($1,000,00). Gross annual receipts are hereby defined to mean the gross receipts from the transportation of passengers, and including all revenue derived from advertising of any kind or character in connection with the operation of said vehicles, The Grantee shall, on or before the 15th day of February of the year 1963 and each subsequent year during the term of this franchise, file with the City Clerk of said City an original and one copy of a statement of said gross annual receipts verified by the oath of the general manager, chief fiscal officer or other executive officer of said Grantee, in such form and detail as will inform the City of the amount of said gross annual receipts received by said Grantee during the twelve months preceding the first day of January of the year in which said statement is filed. Within ten (10) days after the filing of said statement said Grantee shall pay to the City the sum or sums herein specified. The City, by its City Manager, or any certified public accountant designated by the City Manager, may at any reasonable time during business hours make examinations at the Grantee's office or offices of any and all of its books and records, for the purpose of verifying the statement of any of the receipts herein provided for. SECTION 3. RATES OF FARE - That, subject at all times to the provisions of this ordinance and such changes or modifications as the City Council or such other governmental regula- tory or governing authority, commission, body or agency in which rate regulatory power over the Grantee may be vested by law may make through the exercise of its rate regulatory authority, the following rates of fare shall govern and control the rendition of vehicular transportation system service hereunder° (a) Cash fare for a single trip in the same general direction between any two (2) points on said routes shall be ten cents (10). SECTION 4. BASE ROUTES - CHANGES IN - NEW ROUTES - OTHER ROUTES AND SERVICES - That, for the purpose of the Grantee maintaining and operating during the effective period hereof a unified vehicular transportation system and providing adequate service at all times throughout the effective period of this ordi- nance, any base route now established by the Grantee may be changed or discontinued at the initiation of either the City or the Grantee. No such change, discontinuance or addition shall be effected, however, until thirty (30) days after the party desiring the same shall have served written notice thereof upon the other, unless both parties shall mutually agree that said thirty (30) days' notice shall be waived or modified. In the event that the party receiving such notice shall not approve of the change, discontinuance or addition of route as proposed therein, such party shall forthwith file its written objections thereto with the party giving such notice. Thereupon, both parties shall make every effort to adjust their differences of opinion relative to such proposed change, discontinu- ance or addition of route and upon their failure to reach an amicable agreement within five (5) days from the filing of said written objections, either party shall have the right to submit all matters in dispute to the governing body of the City which shall act in the matter by resolution. While any and all such matters in dispute are before the governing body of the City and until it so acts in the -2- matter the status existing prior to the occurrence of such dispute shall be maintained by both the City and the Grantee. Provided, however, that the change or discontinuance of base routes or the action of the City under this ordinance shall not defeat, impair or otherwise adversely affect this grant or the purpose thereof. SECTION 5. VEHICLE STOPS AND LOADING ZONES - That vehicles operated under the provisions of this ordinance shall stop, upon signal, at stops designated by the City. SECTION 6o VEHICLE REQUIREMENTS - That the following general requirements shall apply to all vehicles operated hereunder (a) No vehicles shall be operated for the rendition of any service hereunder (1) If the condition of such vehicles, in the opinion of a duly authorized representative of the City renders it unfit for such service. (2) Each vehicle, (tractor and trailer) shall have a minimum seating capacity of eleven (11) passengers and a maximum seating capacity of seventeen (17) passengers and shall be of modern design, transit type, and propelled only by power electrically generated within the vehicle itself. (3) The equipment of each vehicle shall fulfill such specifications as may be required by the City. (4) All vehicles shall be painted alike according to a design and in a color or colors approved by the City. (5) On the outside of each vehicle there shall be painted in letters sufficiently large to be clearly visible from a distance of ten (10) feet. (aa) The name of the Grantee. (bb) The identification number assigned to such vehicle by the Grantee, such number to be painted on all sides thereof. SECTION 7e CITY INSPECTION OF VEHICLES - That all vehicles operated hereunder shall be maintained in good repair so that they will be suitable and safe at all times for operation in public service. The Grantee shall permit the City to make such inspections of vehicles as the City shall deem necessary in the public interest, and shall comply in every respect with the provisions of all ordi- nances relating to the inspection of motor vehicles by the City. No vehicles shall be placed in service prior to inspection and approval of the condition thereof by the City. At the time of the first inspection and approval, the City shall adopt for each vehicle the same identification number assigned thereto by the Grantee, and such identification number shall not thereafter be changed so long as such vehicle is operated by the Grantee. Any vehicle which, upon inspection, shall be found to be unfit for operation hereunder shall immediately be withdrawn from service, and the Grantee shall not return such vehicle to service until all defects shall have been corrected and the vehicle shall have been inspected and approved by the City. SECTION 8. STANDARD OF EQUIPMENT AND SERVICE - MANAGEMENT - That the Grantee shall maintain at a high standard of operating efficiency all property comprising the vehicle system provided for hereby, and shall also maintain a standard and quality of vehicle transportation service adequate to meet all reasonable demands, when measured by the value and convenience thereof to the traveling public. In the event that the Grantee and the City shall at any time be unable to reach an agreement relative to any question of failure by the -3- Grantee to maintain proper standards of service hereunder, or relative to any question of misuse of any right granted hereby, all matters in dispute shall be submitted to the governing body of the City, which shall act in the matter by resolution. SECTION 9. INDEMNITY TO CITY - PUBLIC LIABILITY - The City shall in no way be liable or responsible for any accident or damage that may occur in the operation and maintenance of Grantee's vehicular transportation system or vehicle service hereunder, and the acceptance of this ordinance by Grantee shall be deemed an agree - menu on the part of Grantee to indemnify City and hold it harmless against any and all liability, loss, cost, damage or expense, which may accrue to City by reason of the neglect, default or misconduct of Grantee in the operation and maintenance of Grantee's vehicular transportation system or vehicle service hereunder. That the Grantee shall file with the City Clerk and keep in full force and effect at all times during the period of this grant adequate cash deposits, or bonds or insurance policies or a combi- nation of same to protect the public for injury, loss or damage to person or property by reason of the operation of any motor vehicle employed as part of the vehicular transportation system provided for hereby. The Grantee shall be permitted to be self -insurer in an amount not to exceed $20,000.00, providing that excess coverage over the amount shall be maintained with an insurance company acceptable to the City in the penal sum of not less than $100,000/300,000 for any one accident resulting in the death or injury to a person or persons or in damage to property. SECTION 10. CITY TO HAVE REFUSAL - That in the event the Grantee at any time prior to the expiration of the franchise granted hereby desires and decides to dispose of said franchise and its other assets it shall upon receipt of a valid and firm offer therefor submit the same to the City which shall have the privilege and first right and opportunity to purchase the franchise granted hereby and such other assets at the same price and on the same terms as shall have been fixed and agreed upon by and between the Grantee and the other offeror to the end that the City shall to the exclusion of every other person have the option, right and privilege of purchasing said franchise granted hereby and the other assets of the Grantee at the price and upon the terms validly and bonafidely offered by any other; provided, however, that the City must exercise such option within sixty (60) days after receipt by the City of the terms and conditions of such proposed sale and if the option is exercised then the City will enter into a contract of purchase with the Grantee within such sixty-day period which will bind the City to consummate such purchase within an additional period of thirty (30) days unless bonds have to be validated for such purpose, in which event the City will use its best efforts to validate such bonds with all reasonable dispatch,. If the court, after the City has used its best efforts to accomplish the same, shall refuse to validate such bonds then the City will be absolved from all liability to purchase. In the event that the best offer of another for the purchase of the property hereinabove referred to shall be met by the City, the City shall have the right to prepay any part of the purchase price without penalty or premium and its decision so to do shall not be deemed a variance between the offer made by another and the actual purchase contract made by the City. SECTION 11. FORFEITURE OR REVOCATION OF GRANT - That failure on the part of Grantee to comply in any substantial respect with any of the provisions of this ordinance shall be grounds for a forfeiture of this grant; but no such forfeiture shall take effect if the reasonableness or propriety thereof is protested by Grantee until a court of competent jurisdiction (with right of appeal in either party) shall have found that Grantee has failed to comply in a substantial respect with any of the provisions of this franchise, and the Grantee shall have a reasonable period of time (which shall be fixed by such court in its decree) after the final determination -4- 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 Grantee for compliance as necessities in the case require; provided, however, that the provisions of this section shall not be construed as impairing any alternative right or rights which the City may have with respect to the forfeiture of franchises under the Constitution or the general laws of Florida or the Charter of the City. Provided further that any violation or default resulting from a strike, a lockout, an act of God or any other cause beyond the control of the Grantee shall not constitute grounds for revoking and cancelling any rights hereunder, In the event that the Grantee, upon receipt of written notice from the City, should dispute or deny the existence of the violation or default therein asserted, the Grantee shall have the right, within said five-day period following the receipt of said notice, to submit all matters in dispute to the governing body of the City, which shall determine the matter and evidence such determination by resolution. SECTION 12. TERMINATION OF GRANT BY INSOLVENCY OR BANKRUPTCY OF GRANTEE OR DISCONTINUANCE OF MALL - That, in the event of the insolvency or bankruptcy of the Grantee, the City shall have full power and authority to terminate, revoke and cancel any and all rights granted under the provisions of this ordinance. That, upon discontinuance of the Mall as a pedestrian way, all Grantee's rights shall terminate. SECTION 13. That the right is reserved to the City to question by judicial review in any court having jurisdiction in the matter the reasonableness and propriety of any of the Grantee's actions under any provision of this grant and similar right is so reserved to the Grantee to so question any of the City's actions under any provision of this grant. SECTION 14. NOTICES - That all notices which may be required hereunder shall be sufficient if sent by registered mail or by telegram to the then Presidentdof the Grantee at the address given as the place where its registered office is located, or to the then City Clerk of the City of Miami Beach, Florida. SECTION 15. EFFECTIVE DATE - That this ordinance shall take effect as soon as it has been approved by a majority of the qualified voters of the City of Miami Beach voting thereon at an election for such purpose; but the effective date thereof shall not be less than forty (40) days after the final passage hereof. SECTION 16. REPEALING SECTION - That all ordinances or parts of ordinances, insofar as they are inconsistent with or in conflict with the provisions of this ordinance, be and the same are hereby repealed. SECTION 17. SAVING PROVISION - That, if any section, part of sections, paragraph, sentence or clause of this ordinance shall be adjudged by a court of competent jurisdiction to be invalid, such decision shall not affect the validity of any other portion hereof, but shall be restricted and limited in its operation and effect to that specific portion hereof involved in the contro- versy in which such decision shall have been rendered. PASSED and ADOPTED this 21st day of March, ATTk,ST: (SEAL) 1st reading 2nd reading 3rd reading POSTED - February 21, 1962 - February 21, 1962 - March 21, 1962 - March 21, 1962 -5- 1962. (-04/-1 ayor STATE OF FLORIDA COUNTY OF DADE: I, R. WM. L. JOHNSON, City Clerk in and for the City of Miami Beach, Florida, do hereby certify that Ordinance No. 1438 entitled: "AN ORDINANCE GRANTING TO MALL TRANSPORT, INC., A FLORIDA CORPORATION, AND TO ITS SUCCESSORS AND ASSIGNS, THE RIGHT TO USE THAT PORTION OF LINCOLN ROAD LYING WEST OF THE WESTERLY LINE OF WASHINGTON AVENUE TO THE EASTERLY LINE OF ALTON ROAD, OTHERWISE KNOWN AS THE LINCOLN ROAD MALL, AND ANY FUTURE EASTERLY AND/OR WESTERLY EXTENSION OF SAID MALL ON SAID LINCOLN ROAD, IN THE CITY OF MIAMI BEACH, AND ITS SUCCESSORS FOR AND DURING A PERIOD OF TWENTY (20) YEARS, FOR THE PURPOSE OF ESTABLISHING, OPERATING AND MAINTAINING A VEHICULAR TRANSPORTATION SYSTEM FOR TRANSPORTING PASSENGERS FOR COMPENSATION, IN CONFORMITY WITH AND SUBJECT TO ALL PROVISIONS, TERMS AND CONDITIONS HEREIN RECITED" having been passed and adopted by the City Council of the City of Miami Beach, Florida, has been posted by me in three conspicuous places in the City of Miami Beach, one of which was at the door of the City Hall in said City on the 21st day of March, 1962, and that said Ordinance remained posted for a period of at least thirty days in accordance with the requirements of the City Charter of the said City of Miami Beach. IN WITNESS WHEREOF I have hereunto set my hand and affixed the official seal of the City of Miami Beach, Florida, on this the 2nd day of May, 1962. zda 7 FRANCHISE) 00 • 01 0 z ,--I H OE -7z z c4 H 0 o w a H i U c1) O E-' P a 0