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HomeMy WebLinkAboutOrdinance No. 04-19971 1 1 ORDINANCE NO. 04-97 AN ORDINANCE OF nit CITY OF CAPE CANAVERAL, FLORIDA, ESTABLISHING MINIMUM REQUIREMENTS, PROCEDURES, REGULATIONS, AND APPLICATION INFORMATION FOR FRANCHISE AGREEMENTS OR RIGHT -OF -WAY USE AGREEMENTS; PROHIBITING THE USE OF ANY PUBLIC RIGHT -OF -WAYS LOCATED wrrHIN THE CITY WITHOUT OBTAINING AN AGREEMENT OR PERMIT FROM THE CITY; PROVIDING FOR SEVERABILITY; PROVIDING FOR REPEAL OF INCONSISTENT ORDINANCES IN CONFLICT HEREWITH; AND PROVIDING FOR AN ENkECTIVE DATE. WHEREAS, the City of Cape Canaveral (City) finds that the health, safety and welfare of the residents of the Cape Canaveral community require that the City maintain uniform control of access to the public right -of -way; and WHEREAS, Chapter 337, Florida Statutes, grants the City broad authority to regulate the use of the public rights -of -way within its boundaries; and WHEREAS, Section 337.401, Florida Statutes, permits the City broad authority to grant nonexclusive franchise agreements; and WHEREAS, the City Council has determined that the City, pursuant to these powers, shall require all entities desiring to install, locate or relocate any facilities in, on, above or below the public rights -of -way to obtain a franchise or right -of -way use agreement. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF CAPE CANAVERAL, BREVARD COUNTY, FLORIDA, as follows: SECTION 1. Chapter 66, Streets. Sidewalks and other Public Places, is hereby amended by the addition of a new Section 66 -1 of the Code of Ordinances of the City of Cape Canaveral, Florida, as follows: Section 66 -1 Franchise Agreements and Right -of -Way Use Agreements. A. Definitions. The following terms contained herein, unless otherwise indicated, shall be defined as follows: 1. Activities. Shall include the installation or maintenance of any assets, structures, or facilities in the public right -of -way. 1 1 1 City of Cape Canaveral, Florida Ordinance No. 04 -97 Page 2 2. Applicant. The entity requesting the grant of a franchise or right -of -way use agreement. 3. Facility. Shall include, but shall not be limited to, all structures, equipment, and assets, towers and structures, pipes and wires and appurtenances thereof for transmission and distribution of electrical energy, signals and other methods of communication, for gas, steam and liquid fuels, for water, sewer, reclaimed water, and other private and publicly owned and operated systems for public service. 4. Franchise. A contractual agreement, under the authority of Chapter 337, Florida Statutes, between a utility and the City setting forth the terms and conditions under which the City grants the utility authority to install and maintain facilities in the public right -of -way. 5. Grantee. An applicant that has been granted a franchise or right -of -way use agreement. 6. Right -of -Way Use Agreement. A contractual agreement between a utility and the City setting forth the terms and conditions under which the City grants the utility authority to install and maintain facilities in the public right -of -way. The applicant shall not be authorized to open cut any roadways in the City unless the applicant can demonstrate to the building official that directional bore installation is not possible. 7. Utility. Entities owning or operating, or proposing to own or operate, facilities that comprise a system or systems for public service. B. Franchise or Right -of -Way Use Agreement Required. It shall be unlawful to construct, install, maintain or operate any facility in, on, above or below the public right -of -way without a valid franchise or right -of -way use agreement obtained pursuant to the provisions of this Ordinance and subsequent amendments. No utility shall be granted a permit to perform any activities in, on, under, or above the public right -of -way without first obtaining and maintaining a valid franchise or right -of -way use agreement. All permits to work in, on, under, or above the public right -of -way will be restricted to those practices specifically enumerated in the applicant's franchise or right -of -way use agreement. 1 1 City of Cape Canaveral, Florida Ordinance No. 04 -97 Page 3 1. In regards to any entity exempted from municipal franchising authority by the operation of State or Federal law, said entity must still comply with the building permit requirements established by City ordinances and shall be eligible for permits as required by that Ordinance only if it has obtained from the City a valid "Right -of -Way Use Agreement." The procedures for gaining a "Right -of -Way Use Agreement" shall be those set out in this Ordinance, including any applicable fee. 2. The City Council may, by Resolution, authorize the City Manager, or his designee, to execute a letter of agreement exempting entities operating in the City on the effective date of this Ordinance from the franchise or right -of -way use agreement requirements of this Section for a period not greater than one (1) year from the effective date of this Ordinance. C. Filing of Annlications. Applications for a franchise or right -of -way use agreement will be considered pursuant to the procedures set forth in this Ordinance and amendments hereto. For good cause, the City Council may elect, by Resolution, to waive any requirement set forth herein unless otherwise required by applicable law. 1. An application may be filed at any time.. 2. The City may request additional information from an applicant for a franchise or right -of -way use agreement at any time. 3. Applications shall be delivered to the City Clerk, and shall be accompanied by a $2,000.00 application fee. Notwithstanding the foregoing, if the City incurs expenses, including, but not limited to, attorney's fees exceeding this sum, the applicant shall be responsible for said fees. D. Content of Annlication. Any application made pursuant to this Ordinance shall contain all the information required from time to time by the City Manager. E. Consideration of Applications. 1 1 City of Cape Canaveral, Florida Ordinance No. 04 -97 Page 4 1. The City will consider each application for a new or renewed franchise or right -of -way use agreement where the application is found to be in substantial compliance with the requirements of this Chapter. In evaluating an application, the City will consider, among other things: (a) the applicant's past service record in the City and in other communities, (b) the nature of the proposed facilities and services, (c) the proposed area of service, (d) the proposed rates, (e) and whether the proposal would adequately serve the public needs and the overall interests of the City residents. In addition, where the application is for a renewed franchise or right -of -way use agreement, the City shall consider whether: (a) The applicant has substantially complied with the material terms of the existing franchise or right -of -way use agreement and with applicable law; (b) The quality of the applicant's service, response to consumer complaints, and billing practices; (c) The applicant has the financial, legal and technical ability to provide the services, facilities, and equipment as set forth in the application; and (d) The applicant's proposal is reasonable to meet the future community needs and interests, taking into account the cost of meeting such needs and interests. 2. If the City determines that an applicant's proposal, including the proposed service area, would serve the public interest, it may grant 1 1 1 City of Cape Canaveral, Florida Ordinance No. 04 -97 Page 5 a franchise or right -of -way use agreement to the applicant, subject to terms and conditions as agreed upon between the applicant and the City. No franchise or right -of -way use agreement shall be deemed granted unless and until an agreement has been fully executed by all parties. The franchise or right -of -way use agreement will constitute a contract, freely entered into, between the City and the grantee. Any such franchise or right -of -way use agreement must be approved by Ordinance of the City Council in accordance with applicable law. F. Length of Agreement. The period of a franchise or right -of -way use agreement shall be as specified in the specific agreement, but it shall not exceed 15 years. If a grantee seeks authority to operate in the City beyond the term of its franchise or right -of -way use agreement, it shall file an application for a new agreement not earlier than 36 nor later than 30 months prior to the expiration of its terms. G. Franchise Fee. 1. A grantee, in consideration of the privilege granted under a franchise for the use of public right -of -way and the privilege to construct and/or operate in the City, shall pay to the City an amount set forth in the franchise agreement, not to exceed the maximum allowed by law, for each year during the term of the franchise. 2. A grantee shall file, no later than May 30th of each year, the grantee's financial statements for the preceding year. If the City reasonably determines, after examination of the financial statements provided, that a material underpayment of franchise fees may exist, the City may require a grantee to submit a financial statement audited by an independent public accountant. If the City's determination of underpayment is ultimately correct, the grantee shall bear the cost of such audit. 3. The City shall have the right, upon reasonable notice, to inspect a grantee's income records, to audit any and all relevant records, and to re- compute any amounts determined to be payable under a franchise and this Ordinance. 4. In the event that any franchise payment is not received by the City 1 1 1 City of Cape Canaveral, Florida Ordinance No. 04 -97 Page 6 on or before the applicable due date, interest shall be charged from such date at the statutory rate for judgments. 5. In the event a franchise is revoked or otherwise terminated prior to its expiration date, a grantee shall file with the City, within 90 days of the date of revocation or termination, a verified or, if available, an audited financial statement showing the gross revenues received by the grantee since the end of the previous year and shall make adjustments at that time for the franchise fees due up to the date of revocation or termination. 6. Nothing in this Ordinance shall limit the City's authority to tax a grantee, or to collect any fee or charge permitted by law, and no immunity from any such obligation shall attach to a grantee by virtue of this Ordinance. H. Federal Preemption. Nothing in this Ordinance shall authorize the City to impose burdens or apply standards on the applicant beyond those permitted by federal law. SECTION 2. 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. SECTION 3. CONFLICTING PROVISIONS. Any ordinance or resolution, or parts of an ordinance or resolution, in conflict herewith are repealed. SECTION 4. EFFECTIVE DATE. This Ordinance shall take effect immediately upon its adoption. 1 1 1 City of Cape Canaveral, Florida Ordinance No. 04 -97 Page 7 ADOPTED BY the City Council of the City of Cape Canaveral, Florida, this 1st day of April, 1997. ATTEST: FOR Burt Bruns S o Tony Hernandez X Sandy O. Sims, CITY CLERK Buzz Petsos X John Porter M Rocky Randels X APPRO D AS TO FORM: Kohn Bennett, Y ATTORNEY First Reading. Posted: Published: Second Reading. AGAINST March 18, 1997 March 19, 1997 March 22, 1997 April 1, 1997