HomeMy WebLinkAboutCity of Tamarac Resolution R-2000-152Temp. Reso # 9054 - June 5, 2000
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CITY OF TAMARAC
RESOLUTION NO. R-2000- 152.
A RESOLUTION OF THE CITY COMMISSION OF THE CITY
OF TAMARAC, FLORIDA, AUTHORIZING THE
APPROPRIATE CITY OFFICIALS TO EXECUTE AN INTERIM
AGREEMENT WITH FPL FIBERNET, INC. FOR ACCESS TO
PUBLIC RIGHTS -OF -WAY TO INSTALL
TELECOMMUNICATION FACILITIES; PROVIDING FOR
CONFLICTS; PROVIDING FOR SEVERABILITY; AND
PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, the City of Tamarac has drafted, but not yet adopted, a governing
telecommunications ordinance, which would govern access to the public rights -of -way for
telecommunications providers; and
WHEREAS, FPL Fibernet, Inc. is a telecommunications provider, and is interested in
installing telecommunication facilities in the City of Tamarac's public rights -of -way; and
WHEREAS, the attached interim agreement subjects FPL Fibernet, Inc. to certain
provisions of the draft governing ordinance, which protects the City's interest in maintaining
control of the public rights -of -way; and
WHEREAS, the City Manager recommends that the appropriate City officials
execute an interim agreement with FPL Fibernet, Inc. for access to public rights -of -way to
install telecommunication facilities; and
WHEREAS, the City Commission of the City of Tamarac, Florida, deems it to be in
the best interest of the citizens and residents of the City of Tamarac to execute an interim
agreement with FPL Fibernet, Inc. for access to public rights -of -way to install
telecommunication facilities.
Temp. Reso # 9054 - June 5, 2000
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NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE
CITY OF TAMARAC, FLORIDA:
Section 1: The foregoing "WHEREAS" clauses are hereby ratified and confirmed as
being true and correct and are hereby made a specific part of this Resolution.
Section 2: The appropriate City Officials are hereby authorized to execute an interim
agreement, attached hereto as "Exhibit A", with FPL Fibernet, Inc. for access to public
rights -of -way to install telecommunication facilities.
Section 3: All resolutions or parts of resolutions in conflict herewith are hereby repealed
to the extent of such conflict.
Section 4: If any clause, section, other part or application of this Resolution is held by
any court of competent jurisdiction to be unconstitutional or invalid, in part or in application,
it shall not affect the validity of the remaining portion or applications of this Resolution.
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Temp. Reso # 9054 - June 5, 2000
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Section 5: This Resolution shall become effective immediately upon its adoption.
PASSED, ADOPTED AND APPROVED this day of -/ 'k-� , 2000.
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y ATT4ST:
1 MANON SWE SON, CMC
INTERIM CITY CLERK
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-BY CERTIFY 1hat I have
reel this R Vions1. CITY ATT
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RECORD OF COMMISSION VOTE
MAYOR SCHREIBER
DIST t : COMM. PORTNER
DfST 2: COMM, MISHKIN (--di q
DIST 3: COMM. SULTANOF ,L
DIST 4: VIM ROBERTS L--.r2UL).
Temp. Reso. # 9054 - Exhibit A
INTERIM AGREEMENT BETWEEN CITY OF TAMARAC
AND FPL FIBEMMI, INC.
THIS FRANCHISE AGREEMENT entered into this z -// I—,- day of
2000, by and between CITY OF TAMARAC, FLORIDA, hereinafterrrferred
to as ity", and FPL FIBEIitNk: I-, INC., hereinafter referred to as FPL FIBERNET,
WHEREAS, the City of Tamarac is in the process of drafting an ordinance that would
govern access to the public rights -of -ways for telecommunications providers; and
WHEREAS, it is appropriate to have an interim agreement that will allow FPL FIDERNET,
INC. (hereinafter "FPL FIBERNET") to have interim access to the public rights-nf-way,
NOW, THEREFORE, in consideration of the mutual covenants contained herein, the parties
hereto agree as follows:
1. The City grants FPL FIBERNET an interim franchise allowing FPL FIRERNET
access to the public rights -of -way of the City under the conditions established in the attached
document entitled: "City of Tamarac, Florida Telecommunications Ordinance", and FP1.
FIBERNET agrees to comply with all the provisions established in said attached document, except
as provided herein.
2. Because this franchise agreement is an interim agreement only, FPL FIBERNET is
not required at this time to comply with Sections 4, 6F, and 14 of the attached document. It is
understood by all parties, however, that FPL FIDERNET will be required to comply with those
provisions or their successor provisions when and if the City enacts an ordinance governing
telecommunications franchises.
3. This agreement is an interim agreement only. It will lapse upon the earlier of one (1)
year or the passage by the City of an ordinance governing telecomuunications franchises. Upon
enactment of such ordinance, FPL FIBERNET must comply with all ordinance provisions, including
but not limited to provisions governing franchise applications and applications fees. Provided FPL
FIBERNET applies for a franchise under the ordinance within sixty (60) days of enactment, FPL
FIBERNET may continue to operate its system pursuant to this interim franchise agreement until
such time that the City grants or denies its application.
4. It is understood that this interim franchise agreement grants no rights to FPL
FIBERNET, vested or otherwise, that would excuse FPL FIBERNET from full compliancq with any
future City ordinance governing telecommunications licenses or any other City ordinance, state
statute, or federal law.
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S. Both the City and the Franchisee reserve and may seek any and all remedie$ available
at Law or equity. Neither the City nor the Franchisee shall be deemed to have waived any rights or
remedies at Law or equity by virtue of executing this Agreement.
IN WITNESS WHEREOF the parties have caused this Agreement to be executed on their
behalf as of the date first above written.
ATTEST:
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y:
Name
Secretary
ATTEST:
By 'Y ;
In
f City Clerk
Approved by City
to form and legal
MR
FPL FIBERNET, INC.
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Title
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CITY OF TAMARAC, FLORIDA, a political
Subdivision of the State of Florida
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CITY OF TAMARAC, FLORIDA
TELECOMMUNICATIONS ORDINANCE
Table of Contents
Section
Page i
SECTION1. Creation..................................................................................................................3
Section1.
Title...................................................................................................................3
Section2.
Intent and Purpose..............................................................................................3
Section3.
Definitions........................................................................................................3
Section4.
Grant of Franchise..............................................................................................7
Section 5.
Terms and Limits of Franchise..........................................................................9
Section 6.
Franchise Fee Payments.....................................................................................9
Section 7.
Reports and Records........................................................................................13
Section 8.
Underground Installation; Relocation..............................................................14
Section9.
Use of Rights-of-Way.....................................................................................16
Section 10.
Written Acceptance by the Franchisee..........................................................20
Section 11.
Compliance with Other Laws; Police Power.................................................20
Section 12.
Transfer of Control; Sale or Assignment.......................................................20
Section 13.
Insurance; Surety; Indemnification................................................................22
Section14.
Security Fund.................................................................................................25
Section 15.
Construction Bond.........................................................................................27
Section 16.
Enforcement Remedies..................................................................................28
Section 17.
Revocation or Termination of Franchise.......................................................30
Section 18.
Renewal of Franchise.....................................................................................32
Section19.
Force Majeure................................................................................................33
Section 20.
Reservation of Rights.....................................................................................34
SECTION2. Codification.................................................................................35
SECTION 3. Repeal of Conflicting Ordinances........................................................................35
SECTION4. Savings.................................................................................................................35
SECTION5. Severability............................................................................................................35
SECTION6. Effective Date . .................................................................................................36
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0 CITY OF TAMARAC, FLORIDA
ORDINANCE NO.0-2000-
AN ORDINANCE OF THE CITY COMMISSION OF THE CITY
OF TAMARAC, FLORIDA, CREATING CHAPTER 5.6 OF THE
CITY CODE, ENTITLED "TELECOMMUNICATIONS",
SECTIONS 1 THROUGH 20, WHICH PROVIDE THE TERMS
AND CONDITIONS FOR THE ERECTING, CONSTRUCTING,
AND MAINTAINING 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 FOR CODIFICATION; PROVIDING
FOR CONFLICTS; PROVIDING FOR SAVINGS; PROVIDING
FOR SEVERABILITY; AND PROVIDING FOR AN
EFFECTIVE DATE.
WHEREAS, the City Commission of the City of Tamarac 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
0 the Telecommunications Service Providers' occupancy of the Public Rights -of -Way; and
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• 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 telecommunications 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
is for use of the City's Public Rights -of -Way; and
WHEREAS, the Public Rights -of -Way subject to the control of the City (1) are critical to
the travel of persons and the transport of goods and other tangibles in the business and social life
of the community by all citizens; (2) are a unique and physically limited resource and proper
management by the City is necessary to maximize efficiency, minimize the costs to the taxpayers
of the foregoing uses, and to minimize the inconvenience to and negative effects upon the public
from such facilities' construction, placement, relocation, and maintenance in the Public Rights -
of -Way; (3) are intended for public uses and must be managed and controlled consistently with
that intent; 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.
0
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is NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE
CITY OF TAMARAC, FLORIDA, AS FOLLOWS:
SECTION 1. Creation.
Chapter 5.6 of the City Code, entitled "Telecommunications," Sections 1 through 20, is
hereby, created as follows:
Section 1. Title.
This Ordinance shall be known and may be cited as the City of Tamarac
Telecommunications Ordinance.
Section 2. Intent and Purpose.
It is the intent of the City of Tamarac to promote the public health, safety, and general
welfare by providing for the use of the City's Public Rights -of -Way, to adopt and administer
0 reasonable regulations consistent with State and Federal Law, including Section 337.401, Florida
Statutes, and the City's home -rule authority in accordance with the provisions of the
Telecommunications Act of 1996, to provide for the payment of compensation and other
consideration by a Franchisee to the City for the cost of maintaining the Public Rights -of -Way
and for the privilege of using the City's Public Rights -of -Way for constructing and maintaining
Telecommunications Facilities; and to establish the reasonable regulations concerning the use of
the Public Rights -of -Way for all Franchises granted after the effective date of this Ordinance. In
regulating its Public Rights -of -Way, the City shall be governed by and shall comply with all
applicable Federal, State and local laws and regulations.
Section 3. Definitions.
For the purpose of this Ordinance, the following terms, phrases, words and derivations
0 shall have the meanings given herein. When not inconsistent with the context, words used in the
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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 otherwise defined herein or in any Franchise
Agreement that might be granted hereunder shall be given the meaning set forth in the
Communications Act of 1934, 47 U.S.C. § 151 et seMc ., as 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. "City" means the City of Tamarac, an incorporated municipality of the State of
Florida, in its present form or in any later reorganized, consolidated, or enlarged form.
B. "Franchise" means the permission granted by the City to a Franchisee in a
Franchise Agreement to construct, maintain, operate and use Telecommunications Facilities in
is the Public Rights -of -Way within the Franchise Area. The term does 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. A Franchise as defined herein shall not
be construed to convey any rights to or over any facilities existing in the Public Rights -of -Way
for which consent or other authorization from the facility owner for access may be necessary.
C. "Franchise Agreement" means a contract entered into between the City and a
Franchisee, in accordance with the provisions of this Ordinance, that sets forth the terms and
conditions under which the Franchise will be exercised.
D. "Franchise Area" means the entire area within the corporate limits of the City of
Tamarac, as those limits may change from time to time through annexation or contraction.
0 E. "Franchisee" means any person who has entered into a Franchise Agreement
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I* with the City pursuant to this Ordinance.
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F. "Gross Receipts" shall mean all cash, credits or property of any kind or nature,
with deductions for bad debt expense, reported as revenue items to the Franchisee's audited
income statements arising from, or attributable to Recurring Local Service Revenues of
Franchisee within the Franchise Area. The City reserves the right to amend the definition
contained herein as permitted by applicable Law.
G. "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.
H. "Person" means any individual, corporation, partnership, 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.
I. "PSC" means the Florida Public Service Commission.
I "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 and may lawfully grant access to pursuant to applicable law. "Public
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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.
K. "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 flat -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 method of providing such services; (4) revenues from
the sale of local services for resale; 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 advertising, directory assistance,
detailed billing services, inside wire maintenance plans, bad check charges, and non -recurring
0 charges for installation, move, changes or termination services; (5) cellular mobile telephone or
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telecommunications services; or specialized mobile telephone or telecommunications service; 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.
L. "Telecommunications Company" has the meaning set forth in Section
364.02(12), Florida Statutes, as amended. The term "Telecommunications Company" does not
include an open video system.
M. "Telecommunications Service" shall include, without limitation, local service,
toll service as defined in Section 203.012(7) Florida Statutes, telegram or telegraph service,
teletypewriter service, private communication 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.
N. "Telecommunications Service Provider" shall refer to any person providing
Telecommunications Services, as defined herein, through the use of a Telecommunications
Facility.
O. "Telecommunications Facilities", "Facilities" or "Systems" means cables,
conduits, converters, splice boxes, cabinets, handholes, manholes, vaults, equipment, drains,
surface location markers, appurtenances, and related facilities located, to be located, used, or to
be used, by a Telecommunications Service Provider in the Public Rights -of -Way of the City and
used or useful for the transmission of Telecommunications Services.
111 I'M W N
0 Section 4. Grant of Franchise.
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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 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
0 when granted; the persons who exercise working control over the applicant; proof of any
regulatory authorizations to provide Telecommunications Service issued by the PSC or the
Federal Communications Commission, if applicable.
(2) 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 (i.e., local, toll, or other Telecommunications
Services).
C. Once the information required by the City has been provided, the application shall
be promptly reviewed, and shall be granted if:
(1) The applicant enters into a Franchise Agreement with the City, under
which applicant shall agree to comply with the City's reasonable regulations of its Public Rights-
0 of -Way, as set forth in this Ordinance including but not limited to the fees for use of those Public
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0 Rights -of -Way.
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(2) The applicant complies with the insurance and security requirements
hereof prior to the effectiveness of the Franchise Agreement.
D. Upon execution and City adoption of a Franchise Agreement, a
Telecommunications Service Provider is granted a non-exclusive Franchise solely to install,
construct and maintain 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 prohibited by applicable
Law from requiring such authorization.
E. Any Franchise Agreement executed pursuant to this Ordinance will incorporate
9 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 Public Rights -of -Way of the City. The
grant of rights under a Franchise is only the personal right 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 Telecommunications Service Provider to the appropriate
enforcement remedies as set forth in Section 16 hereof.
Section 5. Terms and Limits of Franchise.
The City may grant a non-exclusive Franchise for a period not to exceed ten (10) years.
Section 6. Franchise Fee Payments.
A. In consideration for the rights, privileges and permission granted hereunder, a
0 Telecommunications Company subject to a Franchise granted hereunder shall pay to the City
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Page 10
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
pavings, 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 one percent (1%), or permits the City to calculate the
Franchise fee on revenues not specified herein, the Franchisee agrees to increase, following
written notice from the City, its Franchise fee payments to the City to that higher amount on the
effective date of such law. In the event applicable law is amended to require the City to collect a
9 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 twenty (20) days following the end of each calendar quarter. Payments
received after the 3 1 " day shall be subject to interest at the maximum allowed by law, and late
charges of one and one-half percent (1 '/2%) per month.
B. 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 Public Rights -of -Way. Any fee or
0 other consideration imposed by this Subsection in excess of Five Hundred Dollars ($500) per
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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 Public Rights -of -Way;
(2) The reasonable cost of the regulatory activity of the City; 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 only 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 one percent (1%) of gross revenues of the Franchisee for services provided within
the corporate limits of the City unless otherwise established by applicable Law, in which case,
Franchisee shall pay the maximum fee allowed by Law. For purposes of this Subsection, "gross
revenues" shall mean all cash, credits or property of any kind or nature without deductions,
reported as revenue items in the Franchisee's audited income statements, arising from, or
attributable to the sale, rental, lease, barter or exchange of 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
0 Franchisee's Facility or System and any system whatsoever. This minimum annual Franchise
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fee is in addition to any other application fees, renewal fees, transfer fees, and any State, county
or City taxes or assessments. The Franchise fee specified herein is the minimum consideration
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 and except in the case as
provided in Section 337.401(3), Florida Statutes, as of the effective date of this Ordinance, 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 the 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: (1) the Franchise fee payments
to be made pursuant to this Section shall not be deemed to be in the nature of a tax; (2) such
Franchise fee payments shall be in addition to any and all taxes of a general applicability; (3) 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 (4) the Franchise fee specified herein is the minimum consideration 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. Upon submission of an application for the grant or renewal of a Franchise,
Grantee shall make a payment to the City in the amount of Seven Thousand Five Hundred
0 Dollars ($7,500) to defray the City's costs reasonably incurred in processing the application for a
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Franchise. The Franchisee shall pay the actual cost of the City which exceed Seven Thousand
Five Hundred Dollars ($7,500) upon invoice by the City.
Section 7. Reports and Records.
A. The City may, at its option, upon sixty (60) 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 Franchise fee payments or any
other payments due to the City under the terms of a Franchise. The examination of such books,
accounts, records or other materials necessary for determination of compliance with the terms,
provisions, and requirements of a 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 two percent (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 a
financial statement for the Franchise Area, including a statement of income, and a statement of
sources of Recurring Local Service Revenues. The statement shall be audited if Franchisee has
audited statements for the franchise area 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. Any such audited statement shall include notes that specify
all significant accounting policies and practices upon which it is based. This requirement shall
not apply to Telecommunications Service Providers making payments to the City under Section
0 6(B) hereof.
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Page 14
C. Upon reasonable request, a Franchisee shall provide the following documents to
the City as received or filed:
(1) Any pleadings, petitions, notices, applications, communications,
reports and documents, and responses thereto, which may directly impact the Franchisee's or the
City's rights or obligations under this Ordinance or the Franchise Agreement issued pursuant to
this Ordinance.
(2) Any request for protection under bankruptcy laws, or any judgment
related to a declaration of bankruptcy.
D. In addition, the City may, at its option, and upon reasonable notice to the
Franchisee, inspect the Franchisee's Facilities in the Public Rights -of -Way to ensure the safety of
its residents.
E. The City shall keep any documentation, books and records of the Franchisee
confidential to the extent required under Florida Statutes.
Section 8. Underground Installation; Relocation.
A. A Franchisee shall install its Facilities underground, as required by applicable
FPSC rules and regulations.
B. Every Telecommunications Service Provider which places or constructs
Telecommunications Facilities underground shall maintain appropriate participation in the
regional notification center for subsurface installations.
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
DRAFT
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to the Franchisee or its agent, be removed or relocated by such Franchisee at its own expense
except as explicitly provided under Section 337.403, Florida Statutes. 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 fails to
remove or change the same at its own expense to conform to the order within the time stated in
the notice, the City may proceed to cause the Telecommunications Facility to be removed. The
expense thereby incurred except as provided in Section 337.403(1)(a)-(c), shall be paid out of
any money available therefor, and such expense shall be charged against the owner of the
Telecommunications Facility and levied, collected and paid to the City.
E. Subject to Section 337.403, Florida Statutes, 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 file an appeal with the City Commission to contest the reasonableness of the order. Upon
receipt of a written appeal, the City Commission shall place the matter on the Commission's
agenda for consideration within forty-five (45) working days. Should the owner or the owner's
representative not appear, the determination of the cost to the owner shall be final, in accordance
with Section 337.404, Florida Statutes.
F. A final order of the City shall constitute a lien on any property of the owner and
0 may be enforced by filing an authenticated copy of the order in the office of the Clerk of the
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Page 16
0 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 portion of the Facility by another utility or person.
1. 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 prevent the
Franchisee from complying with the requirements of a permit in connection with the installation,
construction or maintenance of the Franchisee's Facilities, or use of Facilities in the Public
Right -of -Way. This obligation shall only extend to such work in the Public Right -of -Way for
which Franchisee has applied for, or obtained a permit from the City.
Section 9. Use of Rights -of -Way.
A. Franchisee agrees at all times to comply with and abide by all applicable
0 provisions of the State statutes and local laws including, but not limited to, applicable zoning
DRAFT
Page 17
0 regulations not inconsistent with State and Federal laws.
B. Except in the case of an emergency, which shall include without limitation an out
of service condition affecting 911 service, and which shall require subsequent notification to the
City, no Franchisee shall construct any Facility on, over, above, along, upon, under, across, or
within any Public Right -of -Way which disrupts the Public Rights -of -Way without first filing an
application with and obtaining a permit from the City therefor, pursuant to applicable permitting
requirements of the City, including but not limited to Chapter 10 of the City Code, 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 installation and maintenance of service
connections to customers' premises where there will be no disruption of the Public Rights-of-
0 Way.
C. As part of any permit application, the Franchisee shall provide a proposal for
construction of the Telecommunications Facility that sets forth at least the following:
(1) The location of the proposed Facility, including a description of the feet of
plant to be installed, where it is to be located, and the approximate size of Facilities and
equipment that will be located in, on, over, or above the Public Rights-Of-Way-
(2) A description of the manner in which the System will be installed (i.e.
anticipated construction methods and/or techniques), the time required to construct the System, a
maintenance of traffic plan for any disruption of the Public Rights -of -Way, including
information on the ability of the Public Rights -of -Way to accommodate the proposed System, if
available (such information shall be provided without certification as to correctness, to the extent
0 obtained from other users of the Public Rights -of -Way). Also, if appropriate given the System
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Page 18
proposed, an estimate of the availability of space in existing conduits and an estimate of the cost
of restoration to the Public Rights -of -Way. Such plan shall include the timetable for
construction for each phase of the project, and the areas of the City which will be affected.
D. The City may request such additional information as it finds reasonably necessary
to review an application for a permit to perform work in the Public Rights -of -Way, and require
such modifications to the proposed location of facilities to be installed in the Public Rights -of -
Way as may be necessary in the exercise of the City's authority to manage its Public Rights -of -
Way. This Section does not authorize the City to exercise authority it does not otherwise have
under applicable law.
E. 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 use of trenchless technology (i.e., directional bore method) for
the installation of Facilities in the Public Rights -of -Way is strongly encouraged, and should be
employed by the Franchisee wherever possible. The City may issue such rules and regulations
concerning the installation and maintenance of a Telecommunications Facility in the Public
Rights -of -Way, as may be consistent with applicable Law.
F. 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.
G. 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 Service Provider, upon reasonable notice by the City, shall make any
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0 Page 19
necessary removals, relaying and relocations of its Telecommunications Facilities at its own
expense, in accordance with applicable Law.
H. 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, except as provided herein. 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 on Public Rights -of -Way in
accordance with this Ordinance, and does not create a property right or grant authority to
is impinge upon the rights of others who may have an interest in the Public Rights -of -Way.
Nothing herein shall prohibit the City from negotiating with a Franchisee for the installation of a
City conduit in any open trench that may be permitted; or prohibit a Franchisee from exercising
its rights under 47 U.S.C. Section 224.
I. All ongoing installation, construction and maintenance of a 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 Franchisee, for compliance with this
Ordinance, any Franchise Agreement, or any applicable provisions of the City Code.
J. Franchisee shall not place its Facilities so as to interfere unreasonably with any
other person lawfully using the Public Rights -of -Way of the City.
K. A Franchisee shall deliver to the City, upon completion of any installation or
0 construction of new facilities, as -built plans showing the location of such facilities, or other such
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Page 20
plans acceptable to the City Engineer. Such plans shall be provided in digitized format showing
the three-dimensional location of the Facilities based on the City's Geographical Database
datums, or other format acceptable to the City Engineer.
Section 10. Written Acceptance by the Franchisee.
A Franchisee shall, within forty-five (45) days from the date of the City resolution
approving the Franchise Agreement, provide an executed Franchise Agreement acknowledging
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 Franchise Agreement shall be executed by a
duly authorized officer of Franchisee. Franchisee shall submit all required insurance certificates,
bonds and security funds together with the Franchise Agreement.
Section 11. Compliance with Other Laws; Police Power.
0 Franchisee shall 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 exercises of the police
power of the City, to the extent not inconsistent with applicable Laws.
Section 12. 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 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. Applications 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
the terms and conditions of the 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
0 insurance and indemnification requirements of this Ordinance and any Franchise Agreement; and
FITUMMA
Page 21
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 (31 ") 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 forma" if it involves a transfer to a
• person, group of persons or business entity wholly owned, controlled by, or affiliated with 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 4, the City shall grant consent to transfer after a determination
that:
(1) transferee agrees to be bound by all the conditions of the Franchise, and to
assume all the obligations of its predecessor; and
(2) 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
0 other hypothecations of the assets of the Franchisee to secure the construction, operation or
DRAFT
Page 22
is 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 Five Thousand Dollars ($5,000.00) to cover the City's
administrative costs in processing the application for transfer, sale or assignment.
Section 13. Insurance; Surety; Indemnification.
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 insuring the Franchisee and naming the City,
its officers, boards, Commission, Commission members, agents and employees 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
DRAFT
Page 23
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
is coverage shall not be effective unless thirty (30) days' prior written 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 insurer" under the Workers Compensation Act. For purposes of this Section, "self -
insure" shall also include a Franchisee which insures through a "captive insurer" as defined in
9 Section 628.901, Florida Statutes.
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Page 24
10 E. A Franchisee shall, at its sole cost and expense, indemnify, hold 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, maintenance
or operation of its Telecommunications System or Facilities, 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, Commission,
Commission members, agents or employees.. In addition, and notwithstanding anything to the
contrary, any Franchisee granted an initial or renewal Franchise on or after the effective date of
this Ordinance shall indemnify and hold harmless the City, its officials, boards, Commission,
4PCommission members, agents or employees from any claim arising by a third party under
Federal or State law, 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,
Commission, Commission members, agents or employees. This provision includes, but is not
limited to, the City's reasonable attorneys' fees incurred in defending against any such claim,
suit or proceedings, 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 of 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 a reasonable time of City receiving notice, of any
9 issue it determines may require indemnification. Nothing in this Section shall prohibit the City
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0 Page 25
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 14. Security Fund.
A. A Franchise Agreement may provide that, prior to the Franchise becoming
effective, the Franchisee may be required to 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 performance of and compliance with all provisions of
this Ordinance, the Franchise Agreement, and other applicable law, and compliance with all
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 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 set 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 may 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
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0 Page 26
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
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 the Franchise Agreement.
D. When the Franchise terminates for reasons including, but not limited to,
revocation, any security fund shall be returned to Franchisee one (1) year from the termination
date of the Franchise provided there is no outstanding default or unpaid amounts owed to the
0 City by Franchisee.
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E. 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 15. Construction Bond.
A. Prior to performing any work in the Public Rights -of -Way, a Franchisee may be
required to establish in the City's favor a construction bond in an amount specified in a permit or
other authorization as necessary to ensure the Franchisee's faithful performance of the
restoration of in the Public Right -of -Way, in accordance with applicable sections of the City
Code, including but not limited to Chapter 10 of the City Code, and other regulations of the City.
The amount of the construction bond required may be modified, in the City Manager 's sole
discretion, based on the cost of the restoration to take place in the Public Rights -of -Way and/or
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 accordance with the provisions of the permit,
there shall be recoverable, jointly and severally from the principal and surety of the bond, any
damages or loss 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.
0 C. No less than six (6) months after the completion of the construction of the
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10 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 mail, return receipt
requested, of a written notice from the issuer of the bond of intent
to cancel or not to renew".
E. The rights reserved by the City with respect to any construction bond established
0 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. 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 Franchise 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 16. Enforcement Remedies.
A. 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,
or applicable local law or order related to use of the Public Rights -of -Way:
0 (1) Franchisee's failure to comply with the provisions of this Ordinance, a
Page 29
0
Franchise Agreement, or law applicable to users and/or occupants of the Public Rights -Of -Way,
may result in imposition of penalties to be paid by the Franchisee to the City in an amount of not
less than One Hundred Dollars ($100.00) per day or part thereof that the violation continues.
(2) A Telecommunications Service Provider's failure to comply with Section
4(A) herein may result in imposition of penalties to be paid 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.
(3) A Franchisee's failure to comply with Sections 4(D) herein may result in
imposition of penalties 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.
(4) Revoke the Franchise pursuant to the procedures specified in Section 17
hereof.
0 (5) In addition to or instead of any other remedy, the City may seek legal or
equitable relief from any court of competent jurisdiction.
B. Before imposing a fine pursuant to this Section, the City shall give written notice
of the violation and its intention to assess such penalties, which notice shall contain a description
of the alleged violation. Following receipt of such notice, the Telecommunications Service
Provider or Franchisee, as applicable, shall have thirty (30) days to cure the violation and the
City shall make good faith reasonable efforts to assist 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 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
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Page 30
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.
D. 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.
E. In any proceeding before the City Commission wherein there exists an issue with
respect to a Franchisee's performance of its obligations pursuant to this Ordinance, the
Franchisee shall be given the opportunity to provide such information as it may have concerning
its compliance with the terms of the 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.
F. The City Manager or his/her designee shall be responsible for administration and
enforcement of this Ordinance, and is authorized to give any notice required by Law or under
any Franchise Agreement.
Section 17. Revocation or Termination of Franchise.
A. A Franchise may be revoked by the City Commission for Franchisee's failure to
install, construct 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 address provided in the Franchise Agreement, that Franchisee is in
material violation of this Ordinance or material breach of the Franchise Agreement and describe
0 the nature of the alleged violation or breach with specificity. If within thirty (30) calendar days
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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 reasons.
B. Prior to revoking a Franchise under Subsection (A) hereof, the City Commission
shall hold a public hearing, upon thirty (30) calendar days' 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. A copy of such
decision shall be transmitted to the Franchisee.
0 C. 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 one hundred
twenty (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 one hundred twenty (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,
9 or property of a Franchisee, the City may revoke the Franchise, following a public hearing before
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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 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 maintain its Facilities in the Public Rights -of -Way 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 from the Public Rights -of -Way 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. 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 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 opportunity
to participate.
Section 18. Renewal of Franchise.
A. Upon receipt of the renewal application and fees no later than sixty (60) days
0 prior to the expiration of an existing Franchise, the City shall make copies available to the public.
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The City,following prior public notice, may hold one or more public hearings on the renewal
g P P Y
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 renew the
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 Federal, State, 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 the following conditions:
(1) The City and the Franchisee shall agree on the terms of the Franchise
0 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 and no appeal to a court is pending,
and the City does not purchase the Telecommunications System or Facility, or effect the transfer
of the Telecommunications System or Facility to another person, the City may require the former
Franchisee to remove its Facilities in the Public Rights -of -Way at the former Franchisee's
expense. If the former Franchisee fails to do so within sixty (60) days of written notice, the City
may have the removal done at the former Franchisee's or surety's expense.
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
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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, riots 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.
Section 20. 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. This Ordinance shall be applicable to all telecommunications Franchises granted,
renewed or transferred on or after the effective date of this Ordinance, and shall apply to all
telecommunications Franchises or other authorizations granted prior to the effective date of this
Ordinance, to the full extent permitted by State and Federal Law, but shall not operate to impair
rights expressly granted by prior City Ordinance for the duration of such authorization. In the
0 event of any inconsistency between the terms and provisions of this Ordinance and an existing
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• franchise or other authorization, the existing franchise or other authorization shall prevail.
A Telecommunications Service Provider subject to a prior existing Franchise or other
authorization to use the Public Rights -of -Way shall comply with applicable provisions of this
Ordinance within ninety (90) days of the effective date hereof, subject to the foregoing. Any
additional regulations adopted by the City that are applicable to a Telecommunications Service
Provider 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)
days of the date of adoption of such additional regulations unless imposition of such regulations
would be otherwise prohibited by applicable Law.
SECTION 2. Codification.
It is the intention of the City Commission and it is hereby ordained that the provisions of
this ordinance shall be made a part of the Code of Ordinances of the City of Tamarac, Florida,
and that Sections of this Ordinance may be renumbered or relettered and the word "Ordinance"
may be changed to "Section", "Article" or such other word or phrase in order to accomplish such
intention.
SECTION 3. Repeal of Conflicting Ordinances.
All ordinances or part of ordinances, and all resolutions or part of resolutions in conflict
herewith are hereby repealed to the extent of such conflict.
SECTION 4. Savings.
All fees, charges and financial obligations previously accrued pursuant to any ordinances
and resolutions repealed pursuant to Section 2 above shall continue to be due and owing until
paid.
1]
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SECTION 5. 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 6. Effective Date.
This Ordinance shall be effective immediately upon adoption.
PASSED, FIRST READING this day of , 2000.
PASSED, SECOND READING this day of , 2000.
E
ATTEST:
MARION SWENSON
INTERIM CITY CLERK
I HEREBY CERTIFY that I have
approved this ORDINANCE as
to form.
MITCHELL S. KRAFT
CITY ATTORNEY
0
JOE SCHREIBER
MAYOR