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HomeMy WebLinkAboutOrdinance No. 24-95• • • ORDINANCE NO. 24-95 AN ORDINANCE OF THE CITY OF CAPE CANAVERAL, BREVARD, COUNTY, FLORIDA, AMENDING ARTICLE IV, TELEPHONE, OF APPENDIX A, FRANCHISES, BY GRANTING TO BELLSOUTH TELECOMMUNICATIONS, INC., ITS SUCCESSORS AND ASSIGNS, PERMISSION AND THE RIGHT TO USE THE PUBLIC ROADS, STREETS, HIGHWAYS, AND RIGHTS OF WAY OF THE CITY TO OPERATE AND MAINTAIN A TELECOMMUNICATIONS SYSTEM IN THE CITY; SETTING FORTH CONDITIONS AND OBLIGATIONS ACCOMPANYING THE GRANT OF SUCH PERMISSION; PROVIDING FOR SEVERABILITY; AND PROVIDING FOR AN EFFECTIVE DATE. BE IT ORDAINED BY THE CITY OF CAPE CANAVERAL, BREVARD COUNTY, FLORIDA, THAT: Appendix A, Franchises, Article IV, Telephone, is repealed in its entirety, and the following is adopted in lieu thereof: SECTION 1. DEFINITIONS. For the purposes of this Ordinance, the following terms, phrases, words, and their derivations shall have the meaning given herein. When not inconsistent with the context, words used in the present tense include the future, words in the plural number include the singular number, and words in the singular number include the plural number. The word "shall" is always mandatory and not merely directory. (1) "City" is the City of Cape Canaveral, Florida. (2) "Company" is BellSouth Telecommunications, Inc., its successors and assigns. (3) "Council" is the City Council of the City of Cape Canaveral, Florida. (4) "Person" is any person, firm, partnership, association, corporation, company or organization of any kind. SECTION 2. GRANT OF PERMSSION. There is hereby granted by the City to the Company the right and privilege to construct, erect, use, operate and maintain, in upon, along, across, above, over and under the roads, streets, highways and other public rights of way of the i City of Cape Canaveral • Ordinance No. 24 -95 Page 2 • • City now or hereafter laid out or dedicated, such poles, wires, cables, underground conduits, manholes and other telecommunication fixtures as may be necessary or proper for the maintenance and operation of a telecommunications system and lines connected therewith. In the event the City shall hereafter extend its boundaries beyond its boundaries as now fixed and established by law, the Company shall be subject to all terms, conditions and limitations of the grant within such area, as fully and to the same extent as if said annexed territory had constituted a part of said City upon the date hereof. The permission and right to use and occupy the said roads, streets, highways and public rights of way for the purposes herein set forth shall not be exclusive, and the City reserves the right to grant a similar use of said streets, alleys, public ways and places, to any person at any time during the period of the permission granted herein. SECTION 3. COMPLIANCE WITH APPLICABLE LAW AND ORDINANCES. The Company shall, at all times during the term provided herein, be subject to all lawful exercise of the police power by the City, and to such reasonable regulation as the City shall hereafter by resolution or ordinance provide; provided, however, that such regulation shall not be inconsistent with the rights granted herein. SECTION 4. COMPANY LIABILITY: INDEMNIFICATION. The Company shall indemnify the City against, hold the City and its officers, agents and employees harmless from, and assume all liabilities for damages, judgments, claims, expenses, interest and costs, including costs and reasonable attorney's fees, which may arise or accrue to the City for injury to persons • • City of Cape Canaveral Ordinance No. 24 -95 Page 3 or property from the doing of any work herein authorized, or which may arise in any way from or in connection with the installation, presence and operation of the Company's system authorized herein. The acceptance by the Company of this Ordinance shall be an agreement by it to pay the City any sums of money for which the City may become liable by reason of such injury or damage. SECTION 5. CONDITIONS ON STREET OCCUPANCY. (1) Use. All poles, wires, cables, underground conduits, manholes and other telecommunications fixtures erected by the Company in, upon, along, across, above, over and under the roads, streets, highways and public rights of way within the City shall be so located as to cause minimum interference with the use of the roads, streets, highways and rights of way by the traveling public and to cause minimum interference with the rights or reasonable convenience of property owners who adjoin any of the said roads, streets, highways and public rights of way. (2) Restoration. In case of any disturbance by the Company of pavement, sidewalk, driveway or other surfacing, the Company shall, at its own cost and expense, replace and restore all paving, sidewalk, driveway or surface of any street or alley disturbed, in substantially as good condition as before said work was commenced. However, should the Company fail to do so after thirty (30) days' advance notice in writing to the Company by the City Manager, the City may repair and replace such portions of the sidewalk or street or other public place that City of Cape Canaveral Ordinance No. 24 -95 Page 4 may have been disturbed by the Company, and the cost of the same shall be paid by the Company. (3) Relocation. 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 road, street, highway or other public right of way, the Company upon reasonable notice by the City, shall make any necessary removals, relaying and relocations of its poles, wires, cables, underground conduits, manholes and other telecommunications fixtures at its own expense. (4) Temporary Removal of Facilities for Building Moving. The Company shall, on the request of any person holding a building moving permit issued by the City, temporarily raise • or lower its cables, wires and other fixtures to permit the moving of buildings. The expense of such temporary removal, raising or lowering of wires shall be paid by the person requesting, and the Company shall have the authority to require such payment in advance. The Company shall be given not less than forty-eight (48) hours advance notice of arrangement for such temporary changes. (5) Tree Trimming. The Company shall have the authority to trim trees upon and overhanging streets, alleys, sidewalks and public places of the City so as to prevent the branches of such trees from coming in contact with the wires, cables and the fixtures of the Company or otherwise interfering with the Company's access or use of its facilities. All trimming shall be done under the supervision and direction of and at the expense of the Company. • City of Cape Canaveral • Ordinance No. 24 -95 Page 5 SECTION 6. TRANSFER OF RIGHTS GRANTED HEREIN. If the rights granted herein are transferred or assigned by the Company to any third party incident to a sale or other transfer of the Company's system or plant, the transferee or assignee shall be obligated to comply with all of the terms and conditions of this Ordinance. SECTION 7. FEES PAID BY COMPANY. In consideration for the permission, rights and privileges herein granted, the Company shall pay to the City annually a sum equal to one percent (1 %) of the gross receipts of the Company on recurring local service revenues for services provided within corporate limits of the City by the Company, provided that there shall be credited against such sum being paid to the City the amount of all taxes, licenses, fees and other impositions (except ad valorem taxes and amounts for assessments for special benefits, such as sidewalks, street pavings and similar improvements, and occupational license taxes) levied or imposed by the City upon the Company and paid during the preceding fiscal year as defined herein. Payment shall be made to the City for each of the years that this Ordinance is in effect and shall be based on the receipts of the Company for the preceding fiscal year. For the purpose of this payment, such fiscal year shall end on August 31st . This first such payment shall be based on the receipts for the fiscal year ending August 31. 1995 , shall be made on or before February 28. 1996 , and shall be for the permission year October 3, 1995 through October 2, 1996. Subsequent payment shall be made on or before February 28th of each year for which the permission is herein granted. • City of Cape Canaveral • Ordinance No. 24 -95 Page 6 • SECTION 8. INSPECTION OF RECORDS. If the City wishes to verify payments to the City under this Ordinance, the Company shall permit the City or a designated representative of the City, upon reasonable advance written notice, to review the Company's billing and payment records upon which the payments were based, during normal business hours at the location of the Company where such records are maintained. However, no Company records may be duplicated or taken from the Company's premises, and the City shall maintain the confidentiality of the information disclosed in these records and use the information solely for the purposes of verifying payments by the Company. Such Company records maintained by the Company for the period prescribed by the Federal Communications Commission and /or the Florida Public Service Commission. SECTION 9. TERMS OF RIGHTS GRANTED. The permission and rights herein granted shall take effect and be in force from and after October 3. 1995 , and upon filing of acceptance by the Company with the City Clerk, shall continue in force and effect for a term of fifteen (15) years after the effective date of this Franchise. If such acceptance is not filed within ninety (90) days of the date of adoption of this Ordinance, the provisions of this Ordinance shall be null and void. SECTION 10. LIMITATIONS ON OBLIGATIONS OF CITY. The City shall not, as a result of this Ordinance, be compelled to maintain any of its property or public rights of way any longer than, or in any fashion other than, its own business or needs may require. City of Cape Canaveral • Ordinance No. 24 -95 Page 7 • • SECTION 11. SEVERABILITY. If any section, paragraph, phrase, or word of this Ordinance is held to be unconstitutional or invalid, such portion shall not affect the remaining portions hereof, and it shall be construed to have been a legislative intent to pass this Ordinance without such unconstitutional or invalid part. ADOPTED BY the City Council of the City of Cape Canaveral, Florida, this 19 tiday ofSeptember , 1995. APPROVED AS TO FORM: Kohn Bennett, CIT ORNEY hn K. Porter, MAYOR Leo Rocky MOTION:NicholasSECOND: Randels NAME FOR AGAINST BERGER ABSENT NICHOLAS x PETSOS PORTER X RANDELS x First Reading: 9/5/95 Posted: 9/6/95 Published: 9/9/95 Second Reading: 9/19/95 c: Deborah Haggerty, Finance Director Municipal Code Corporation