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Ordinance 79-2152ORDINANCE NO. 79-2152 AN ORDINANCE OF THE CITY OF MIAMI BEACH, FLORIDA, AUTHORIZING THE SOUTHERN BELL TELEPHONE AND TELEGRAPH COMPANY TO USE THE PUBLIC STREETS AND OTHER PUBLIC PROPERTY OF THE CITY OF MIAMI BEACH, FLORIDA, FOR THE PURPOSE OF ERECTING, CONSTRUCT- ING, MAINTAINING, AND OPERATING LINES, POLES, CONDUITS, CABLES AND OTHER FIXTURES OF TELEPHONE AND TELEGRAPH THEREON AND THEREUNDER: PROVIDING FOR COMPENSATION TO BE PAYABLE TO THE CITY OF MIAMI BEACH, FLORIDA FOR SAID PURPOSES, PROVIDING FOR A TERM OF 25 YEARS, RETROACTIVE TO JANUARY 11, 1978, AND PROVIDING AN EFFECTIVE DATE. BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA: Section 1. That there is hereby granted to the Southern Bell Telephone and Telegraph Company, (herein called the "Grantee" or "Company") its successors and assigns, the non-exclusive right, privilege, and franchise to construct, operate and maintain lines and equipment of telephone and telegraph, including necessary poles, fixtures, conduits, cables, manholes and electrical con- ductors upon, along, under and over the present or future public roads, streets, alleys, highways, waterways, bridges, easements or other public places of the City of Miami Beach, as its business may from time to time require, provided that all poles shall be neat and symmetrical. This non-exclusive right, privilege and franchise is substantially for the providing of telecommunications services. Section 2. The work of erecting poles and constructing underground conduits under this ordinance shall be done subject to the supervision of the City, and the Company shall replace or properly repave and repair any sidewalk or street that may be dis- placed by reason of such work, and upon failure of the Company to do so, after twenty (20) days' notice in writing shall have been given by the City Manager of the City of Miami Beach to the Com- pany, the City may repair such portions of the sidewalk or street that may have been disturbed by the Company, and collect from the Company the direct cost plus a sum equal to twenty percent (207.) of said cost to defray administrative and engineering costs so incurred. Section 3. That in consideration of the rights and privi- leges herein granted, the Company, when requested by the City, will designate and provide without cost to the City, for municipal purposes only (1) on each pole owned and used by the Company here- under and during its ownership and use thereof, where space is available and where such poles are of sufficient size and height, either (a) space for a fixture for, or (b) space for a crossarm for, wires of police, fire and local government alarm signalling system of the City, and (2) in each underground conduit owned and used by the Company hereunder and during its ownership and use thereof, where space is available, one duct for the cables of the police, fire and local government alarm signalling system of the City; provided, however, that no use shall be made by the City of said space on such poles or of said duct which will result in the interfering with or impairing of the operation or use of the Com- pany's property or service, or which will endanger, damage or injure the person or property of the public or employees of the Company or City. Section 4. 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. -1- Section 5. The Company, its successors and assigns, shall indemnify and hold the City harmless against and shall assume all liability for damages which may arise or accrue to the City by reason of any injury to person or property from the doing of any work herein authorized, or from the neglect or failure of the Company or any of its employees to comply with the provisions of any ordinance of the City applicable to such work; and the accept- ance by the Company of the rights and privileges granted to it by this ordinance shall constitute an agreement by the Company to pay to the City any sum of money for which the City shall become liable by reason of any such injury and any sum incurred by the City as costs in its defense against said claim of injury; pro- vided, however, that in the event the City is presented with a claim for which it claims indemnity from the Company, it shall, as soon as practicable, notify the Company and tender said claim to the Company and the Company shall within twenty (20) days accept such tender and provide a defense or otherwise dispose of said claim. Section 6. This ordinance shall be in force and effect for a term of twenty-five (25) years from and after January 11, 1978. Section 7. In consideration of the rights and privileges herein granted, the Company shall pay to the City annually a sum equal to one percent (1%) of the gross receipts received from monthly recurring service and regular residential and business measured service charges for the use of telephones for local ex- change services from telephones in use within the corporate limits of the City provided, however, that should the Company, after the date of acceptance of this ordinance, agree to pay, or be legally compelled to pay any municipality in the State of Florida, having a population in excess of 25,000, for similar privileges, (1) a greater percentage of the gross receipts of the Company from rentals derived from telephones in use within the corporate limits of such municipality, or (2) a payment computed on a broader gross receipts base than defined above, or both, and the tariff or tar- iffs on file with the Public Service Commission be changed or amended so as to provide that such greater sum is not to be billed directly to the customers of the Company within limits of the municipality, then, in that event, the City reserves the right to amend this ordinance to require the Company to pay the City an amount computed on such greater percentage or such broader defini- tion of gross receipts as is paid to such other municipality, effective sixty (60) days after notice to the Company. In the event that the City chooses to so amend this ordinance, the Com- pany shall provide necessary financial and technical public rela- tions support, for the educating and disseminating of information to the City electorate, as mutually agreed to by both parties. Further, if the Company in the future changes its method of bill- ing from a local recurring basis to a measured rate basis for local exchange service and such change results in a reduction of the franchise revenue base, then the City and Company will jointly agree to adjust the revenue base to make up for any loss of reve- nue. Such changed base will have the same growth potential as those items contained in this franchise revenue base. In the event the Company and City cannot agree on how this reduction should be made up, it is agreed that this matter shall be resolved by the Florida Public Service Commission. If the Florida Public Service Commission refuses to act, then the parties agree to refer the matter to established American Arbitration Association proceedings. Payment shall be made to the City for each of the years that this ordinance is in effect and shall be due and payable in advance in the month of October of each year and shall be based on the receipts of the Company for the twelve (12) month period ending August 31 of the year of payment. Any portion of the annual fran- chise fee not paid within thirty (30) days after same becomes due shall draw interest from due date until paid at the rate of ten percent (107) per annum. The City, or any certified public accountant selected by the City, shall have the right at all rea- sonable hours to examine the Company's books and records for the purpose of verifying the gross receipts of said Company referred to herein. -2- xX Section 8. The City shall designate such locations on City properties, such as pools, parks and buildings which it would appear require coin telephone facilities to protect the public safety; and upon the request of the City and the concurrence of the Company, coin telephone facilities provided by the Company shall be installed by the Company in such locations at no cost to the City and with no minimum charge. All installations shall be made in a neat and workmanlike manner by the Company. The Company shall keep in repair all such coin telephone facilities free of charge and at no cost to the City, and the Company agrees to pay all costs of energy or electricity required for illuminating the coin telephone facilities. Where the coin telephone facilities on such City properties are located in an area where all other facilities are underground, the Company agrees that it will place its telephone lines, cables, lighting service, etc., underground. The Company agrees that the City, in its discretion, may require the Company to remove any coin telephone facilities located on City properties. Section 9. That the said Company shall file with the City Clerk of said City its acceptance of this ordinance and the pro- vision thereof, within sixty (60) days after the date of the elec- tion confirming this franchise as hereinafter referred to; within thirty (30) days of filing its acceptance, the Company shall pay the City One Hundred Seventy -Two Thousand Three Hundred Thirty - Five Dollars and Sixty -Five Cents ($172,335.65), which the City shall accept as payment in full of all franchise payments due through September, 1979. Section 10. The City hereby reserves the right and requires the Company, as a condition precedent to the taking effect of the right of the franchise herein granted, to give and grant to the City the right upon the expiration of the term of twenty-five (25) years for which this franchise is granted, to purchase the tele- phone plant and other property located upon, along, over and under the public roads, streets, alleys and rights-of-way within the corporate limits of the City, which is used under or in connec- tion with the franchise or right hereby granted, or such part of such property as the City may desire to purchase at the current reproduction cost new less depreciation value of such property, real and personal. If the City desires to exercise its option to acquire any portion of the Company property, it shall give the Company notice of its intention to purchase at or before the expi- ration of the twenty-five (25) year term of this franchise and it shall have no more than two (2) years following the expiration of said term to consummate the purchase of such property; provided, however, that during said two (2) year period the terms and condi- tions herein shall pertain. The City and the Company also hereby reserve all powers of eminent domain which the City may have under its present charter or the City or the Company may have under the General Laws or the Constitution of the State of Florida. Section 11. That as provided by the Charter of the City of Miami Beach, this ordinance shall not become a law until the same has been approved by a majority of the qualified voters of the City of Miami Beach, Florida, voting thereon, but if this ordi- nance or franchise shall be so approved by a majority of the quali- fied voters of the City of Miami Beach voting thereon, the same shall be in force and effect in all respects as hereinafter set forth. Should a special election be required solely to obtain approval of this franchise by the electorate of the City of Miami Beach, the Company shall pay the reasonable expense of such election. Section 12. That all provisions contained in this franchise shall extend to and be obligatory upon the successors and assigns of the parties hereto. -3- X Section 13. That this ordinance shall be in force and effect from and after its passage by the City Commission of the City of Miami Beach, Florida, and upon subsequent approval by a majority of the qualified voters of the City of Miami Beach, Florida, vot- ing thereon, and upon the filing by said Company, in the office of the Clerk of said City of Miami Beach, its acceptance thereof as hereinbefore provided. PASSED AND ADOPTED this 7th day of March, 1979. ATTEST: City Cler 1st Reading - February 21, 1979 2nd Reading, as amended - March 7, 1979 APPR fND LEGAL SUFFICIENCY: City At o'rney -4- Mayor �ECEIVED " Icaq CITY CLERK'S DEPT. By'M2fn, 7 /ze J . W. Travis Executive Vice President TO THE CITY CLERK OF THE CITY OF MIAMI BEACH, FLORIDA: Southern Bell Hurt Building. P. O. Box 2211 Atlanta, Georgia 30301 Phone (404) 529-6237 Pursuant to Section 9 of Ordinance No. 79-2152 adopted by the City Commission of the City of Miami Beach, Florida, on the 7th day of March, 1979, entitled: "AN ORDINANCE OF THE CITY OF MIAMI BEACH, FLORIDA, AUTHORIZING THE SOUTHERN BELL TELEPHONE AND TELEGRAPH COMPANY TO USE THE PUBLIC STREETS AND OTHER PUBLIC PROPERTY OF THE CITY OF MIAMI BEACH, FLORIDA, FOR THE PURPOSE OF ERECTING, CONSTRUCTING, MAINTAINING, AND OPERATING LINES, POLES, CONDUITS, CABLES AND OTHER FIXTURES OF TELEPHONE AND TELEGRAPH THEREON AND THEREUNDER: PROVIDING FOR COMPENSATION TO BE PAYABLE TO THE CITY OF MIAMI BEACH, FLORIDA FOR SAID PURPOSES, PROVIDING FOR A TERM OF 25 YEARS, RETROACTIVE TO JANUARY 11, 1978, AND PROVIDING AN EFFECTIVE DATE."; which ordinance became effective retroactive to the 11th day of January, 1978, upon the canvass of the ballots cast in the referendum election held on the 8th day of May, 1979, the Southern Bell Telephone and Telegraph Company hereby files with the said City of Miami Beach, Florida, its acceptance of said ordinance. 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