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55-86 ORDINANCE NO. 55-86 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DELRAY BEACH, FLORIDA, AUTHORIZING AND GRANTING TO SOUTHERN BELL TELEPHONE AND TELEGRAPH COMPANY PERMISSION TO USE THE PUBLIC STREETS OF THE CITY OF DELRAY BEACH, FLORIDA, FOR THE PURPOSE OF ERECTING, CONSTRUCTING AND MAINTAINING LINES OF TELEPHONE AND TELEGRAPH THEREON AND THEREUNDER FOR A PERIOD OF TEN (10) YEARS; SETTING STANDARDS FOR THE PERFORMANCE OF WORK; PROVIDING FOR A FRANCHISE FEE OF ONE PERCENT (1%) AND OTHER CONSIDERATION; PROVIDING FOR INDEMNI- FICATION BY THE COMPANY; PROVIDING THE TERM AND EXPIRATION DATE; PROVIDING FOR FORFEITURE OF THE FRANCHISE; PROVIDING FOR REQUIRING CITY COUNCIL APPROVAL FOR T~NSFER OF RIGHTS UNDER THE FRANCHISE; PROVIDING FOR LIMITATION OF THE FRANCHISE; 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 a non-exclusive fran- chise to maintain and operate lines of telephone and telegraph 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; ~. Scope of non-exclusive franchise.. 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 maintain and operate lines of telephone and telegraph including the necessary poles, conduits, cables, fixtures and electrical conducters upon, along, under and over public roads, streets, alleyways, bridges and highways 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 compli- ance with all applicable building and zoning regulations and ordinances. ~. Standards for the performance of work under the terms of the non-exclusive franchise. (a) The work of erecting poles and constructing under- ground 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 landscaping, 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 or entity's utility lines or equipment without the consent of the City Manager, and shall likewise be responsible for any damages to such other utility equipment or lines which it damages. The Company shall also be obligated to coordinate all construction, repairs, and erecting of poles or instal- lation of equipment with the City and any other governmental entities or utilities which may have jurisdiction or provide services in the vicinity of such activities of the Company and which may be affected, disrupted or disturbed by such acti- vities of the Company in order to minimize any adverse effects, disruption or disturbance. (b) The Company shall, at its sole expense, place its facilities underground and shall use underground cable when- ever reasonably possible, but in any event where required by other ordinances of the City all new developments shall be serviced with underground cable unless the Company shall present evidence to the City which the City deems sufficient to show that certain technical or geographical conditions make the use of underground cable impossible o£ ill-advised in a specific situation. 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 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 reasonably necessary to prevent interference with City work or to avoid interference with the common use of public rights-of-way as directed by a government agency. The expense of such removal or relocation shall be at not cost or risk to the City. (d) Whenever the Company performs excavations or places materials upon any rights-of-way it must abide by all appli- cable 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 payment for any permits obtained from the City shall be deducted from consideration paid to the City as set forth in Section 3, below. ~. Consideration. (a) In consideration of the permissions~ rights, and privileges granted by this franchise, the Company shall pay to the City annually one percent (1%) of the gross receipts from recurring local service re,~enues of the Company from services provided within the corporate limits of the City. The one percent (1%) fee shall include all charges currently permitted by law to be included in the franchise fee, as such law may be amended from time to time. (b) Payment of the franchise fee shall be made annually. The payment year shall run from the date this ordinance is adopted by the City Council. The annual payment will be due each year within sixty (60) days following the annual anni- versary of the adoption of this franchise ordinance. The payment due at that time shall be based on the receipts of the Company for the preceding year. The first payment shall be made sixty (60) days following the effective date of this franchise ordinance. ORD. NO. 55-86 2 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 adequate notice to the Company. The records would not be duplicated or taken from the Company premise due to the secrecy of communications regulations and the Privacy Act. The accounting records shall be maintained by the Company for the period prescribed by the Federal Communications Commission and the Public Service Commission. ~. Indemnity. The Company shall hold harmless, indemnify and defined the City from and against all damages, and claims which may arise or accrue to the City for any injury to persons or property from the operation of the Company or any of its employees under or by the Company's operation or activities arising directly or in- directly out of this franchise ordinance. ~.gJ~_~. Term and expiration. (a) This franchise shall expire ten (10) years from the effective date hereof. (b) If the franchise expires before a new franchise is negotiated, the Company shall continue to operate under the terms of this franchise ordinance unless it receives formal written notice from the City advising that the franchise with the Company shall not be renewed or that the current franchise is cancelled. ~. Forfeiture. Failure of the Company to abide by the terms of this franchise agreement may result in the forfeiture of the franchise. ~. Transfer of Rights. The Company may sot transfer its rights under this'franchise without formal approval by a resolution of the City Council. No transfer of the franchise rights shall be effective until the transferee has filed an instrument evidencing the fact and conditions of the transfer, provides a written statement of acceptance df the. t~rmu of the franchise by the transferee, and provides. any other security of performance which the City Council may require. ~. Limitation of the franchise. Nothing in this franchise grants the Company the right to operate or to provide cable television service. However, nothing in this section shall be construed to prevent the Company from 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~. Acceptance. 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. ~.~.~_~l. Police powers. 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. Section 11. Severability. If anything in this franchise agreement is determined by a court of competent jurisdiction or a ORD. NO. 55-86 3 - 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, the City may renegotiate with the Company the provision which has been determined to be invalid. ~. Renegotiation. The City and the Company further agree that this franchise shall be subject to renegotiation during the term hereof upon the express mutual consent in writing of both parties hereto to such renegotiation. ~. copies. 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. ~. Effective date. That this ordinance shall become effective immediately upon its passage on second and final reading. PASSED AND ADOPTED in regular session on second and final reading on this the 9th day of September, 198~ . ATTEST: it Clerk First Reading August 26, 1986 Second Reading. September 9, 1986 ORD. NO. 55-86 4