Loading...
03-87 ORDINANCE NO. 3-87 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DELRAY BEACH, FLORIDA, REPEALING ORDINANCE NO. 55-86 AND ENACTING A NEW ORDINANCE AUTHORIZING AND GRANT- ING TO SOUTHERN BELL TELEPHONE AND TELEGRAPH COMPANY NON-EXCLUSIVE PERMISSION TO USE THE PUBLIC STREETS OF THE CITY OF DELRAY BEACH, FLORIDA, FOR THE PURPOSE OF ERECTING, CONSTRUCTING, MAINTAINING AND OPERATING LINES OF TELEPHONE AND TELEGRAPH EQUIPMENT THEREON AND THEREUNDER FOR A PERIOD OF TEN (10) YEARS; SETTING STANDARDS FOR THE PERFORMANCE OF WORK; PROVIDING FOR A FEE OF ONE PERCENT (1%) CONSIDERATION; PROVIDING FOR INDEMNIFICATION BY THE COMPANY; PROVIDING THE TERM AND EXPIRATION DATE; PROVIDING FOR ENFORCEMENT OF THE ORDINANCE; PROVID- ING FOR TERMS AND CONDITIONS OF TRANSFER OF RIGHTS; PROVIDING FOR LIMITATION AS TO CABLE TELEVISION OPERATION; PROVIDING FOR ACCEPTANCE OF THIS ORDINANCE; PROVIDING FOR POLICE POWERS; PROVIDING A SEVERABILITY CLAUSE; PROVIDING FOR RENEGOTIATION; PROVIDING FOR COPIES; PROVIDING AN EFFECTIVE DATE. WHEREAS, the City Council of the City of Delray Beach, Florida, deems it to be in the best interest of the health, safety, and welfare of the residents of the City of Delray Beach, Florida, to grant to Southern Bell Telephone and Telegraph Company permission to erect, construct, maintain and operate lines of telephone and telegraph equipment over and under the public ways of the City of Delray Beach, Florida. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF DELRAY BEACH, FLORIDA, AS FOLLOWS; ~zg_~. That Ordinance No. 55-86 be, and the same is, hereby repealed. ~9_~. That there is hereby granted to Southern Bell Telephone and Telegraph Company certain permission as follows: 1. ~_~. Permission is hereby granted to Southern Bell Telephone and Telegraph Company (hereinafter referred to as the "Company"), its successors and assigns, subject to the terms of this ordinance, to have a non-exclusive right to erect, construct, maintain and operate lines of telephone and telegraph equipment including the necessary poles, conduits, cables, electrical conductors and fiber optics and digital technology fixtures upon, along, under and over the public roads, streets, alleyways, bridges, highways and rights-of-way of the City of Delray Beach, Florida, in accord with this ordinance as its business may from time to time require. Nothing in this ordinance shall exempt any buildings or structures of the Company from compliance with all applicable building and zoning regulations and ordinances. 2. ~l~laA¢~. (a) The work of erecting poles and constructing underground conduits under this ordinance shall be done subject to the review of the City, and the Company shall replace or properly relay and repair any sidewalk or street, and relay or replace any .sod or landscap- ing, which is removed or damaged by the Company during the work. If the Company fails to make those repairs after twenty (20) days written notice from the City Manager, the City may make the repairs to such property that has been disturbed by the Company and collect the cost of such repair from the company. Furthermore, the Company in performing its work shall not displace or disturb any other individual's or entity's utility lines or equipment already placed at that location without the consent of the City Manager, and shall be responsible for any damages caused by Company's negligence to such other utility equipment or lines which it damages. The Company shall also use its best efforts to coordinate all construc- tion, repairs, and' erecting of poles or installation of equipment with the City and any other governmental entities which may have jurisdiction or utilities which provide services in the vicinity of such activities of the Company and which may be affected, disrupted or disturbed by such activities of the Company in order to minimize any adverse effects, disruption or disturbance. (b) The Company shall place its facilities in strict adherence to all applicable Regulations of the Florida Public Service Commission as they may be amended from time to time. In addition, the Company shall to the extent reasonably possible maintain all existing underground lines as underground lines. (c) Ail fixtures, structures or facilities of the Company must be placed and maintained, and all wires and cables secured and elevated so as not to endanger persons or property or unreasonably interfere with the use of public rights-of-way, all at the Company's sole expense. The Company, at the reasonable direction of the City, shall remove or relocate poles, cables, conduits or wires or shall change the elevation of wires as is necessary to prevent unreasonable interference with the common use of public rights-of-way. The expense of such removal or relocation shall be at no cost or risk to the City. (d) Whenever the Company performs excavations or places materials upon any rights-of-way it shall abide by all applicable regulations regarding use of appropriate barricades and/or suitable warning signs and lights, all at the Company's sole expense. (e) Nothing herein shall exempt the Company from obtaining permits for any work which requires a permit provided that any permit fees paid to the City shall be deducted from consideration paid to the City as set forth in paragraph 3, below. 3. Consideration. (a) In consideration of the rights and privileges herein granted, the Company shall pay to the City annually a sum equal to one percent (1%) of the gross receipts of the Company on recurring local service revenues from services provided within the corporate limits of the City by the Company, provided that there shall be credited against such sum 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 parings 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. (b) Payment of said fee shall be made annually. The fiscal year shall end one year from the last day of the month in which this ordinance is accepted by the Company. The annual payment will be due each year within sixty (60) days following the end of the fiscal year. The payment due at that time shall be based on the receipts of the Company for the preceding fiscal year. The first payment shall be ORD. NO. 3-87 made ninety (90) days following the effective date of this ordinance. The Company shall submit to the City, contemporaneously with each annual payment, a notarized statement certifying the annual gross receipts upon which the payment is based. The acceptance of such payment and statement shall not estop the City from asserting that the amount paid is not the amount due or from recovering any deficit by any lawful proceeding. If the City wishes to verify the payment(s), the Company shall permit a representative of the City to review the Company billing records at the Company accounting office where these records are housed, during normal business hours, given reasonable notice to the Company. The records shall not be duplicated or taken from the Company premises. The account- ing records shall be maintained by the Company for the period prescribed by the Federal Communications Commission and the Florida Public Service Commission. The Company shall defend, hold harmless, and indemnify the City against, and assume all liabilities for damages which may arise or accrue to the City for any injury to persons or property from negligence in the doing of any work herein authorized, or the failure to do any work herein required, or the neglect of the Company or any of its employees to comply with any ordinance regulating the use of the streets of the City, and the acceptance by the Company of this ordinance shall be in agreement by it to pay to the City any sum of money for which the City may become liable from or by reason of such injury. 5. Term. (a) This ordinance shall be in force and effect for a term of ten (10) years from and after its passage and acceptance by the Company. (b) If this ordinance expires before a new ordinance is negotiated, the Company and the City shall continue to operate under the terms of this ordinance unless either party hereto receives formal written notice from the other advising that the ordinance shall not be renewed or that the notifying party shall no longer be bound by the terms of the expired franchise. Either party hereto may seek enforcement of any provision herein in any court of competent jurisdiction. In such event, the non-prevailing party shall pay all reasonable attorney's fees and costs of the prevail- ing party. 7. Transfer of Rights. The Company may not transfer its rights under this ordinance unless the transferee accepts in writing the terms of this ordinance, and unless the transferee has met all applicable requirements as set forth in Chapter 364, Florida Statutes, as they may be amended from time to time. 8. Cable Television. Nothing in this ordinance grants the Company the right to operate or to provide cable television service in the City of Delray Beach unless and until the Company makes application for and is granted a cable television franchise by the City of Delray Beach. However, nothing in this ordinance Shall be construed to prevent the Company from 3 ORD. NO. 3-87 carrying a cable television signal across City rights-of-way for a cable television operator who has a current franchise agreement with the City of Delray Beach. 9. ~. The Company shall file with the Clerk of the City its acceptance of this ordinance within sixty (60) days from the date of its passage on second and final reading. 10. Police DOWerS. Nothing in this ordinance shall be construed as a surrender or waiver by the City of its police powers or the right or power to pass ordinances regulating the use of the public streets and/or other public places. 11. Severabilitv. If anything in this ordinance agreement is determined by a court of competent jurisdiction or a regulating.agency to be invalid, it shall be determined to be severable from the remainder of the agreement and shall not invalidate any other provision of this agreement. However, to the extent permissible by law the parties hereto shall renegotiate solely the provision which has been determined to be invalid. 12. Reneaotiation. The City and the Company further agree that this ordinance shall be subject to renegotiation during the term hereof upon the express mutual consent in writing of both parties hereto to such renegotiation. Such written consent of Company may be executed only by a Vice President or the President of the Company. ~G~. That the City Clerk is hereby authorized and directed to furnish certified copies of this ordinance to the Company and to any and all appropriate regulatory agencies. ~. That this ordinance shall become effective immediately upon acceptance by the Company as provided in Section 2, paragraph 9 above. PASSED AND ADOPTED in regular session on second and final reading on this the 27th day of ~_%~g~%rJ~___, 198~__. MAYOR 'ATTEST: Ci First Reading January 13, 1987 Second Reading January__2_7~__l_987 4 ORD. NO. 3-87