TELECOMMUNICATIONS
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ORDINANCE NO. 6560-00 I
AN ORDINANCE GRANTING TO FPL FIBERNET, LLC ("GRANTEE"), THE
PERMISSION TO OCCUpy MUNICIPAL STREETS AND RIGHTS-OF-WAY
IN THE CITY OF CLEARWATER, FLORIDA ("GRANTOR"), AS A MEANS
OF PROVIDING TELECOMMUNIGATION SERVICE; PRESCRIBING THE
TERMS AND CONDITIONS ACCOMPANYING THE GRANT OF
FRANCHISE; PROVIDING FOR SEVERABILITY OF PROVISIONS; AND
PROVIDING AN EFFECTIVE DATE.
BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF
CLEARWATER, FLORIDA:
SECTION 1. Findings.
(A) The Grantor deems it necessary, desirable and in the interest of the health,
safety and welfare of its citizens to establish by ordinance a Franchise granting the
permission to Grantee to occupy Rights-of-Way in the City of Clearwater, Florida, as a
means of providing Telecommunications Services.
(B) The Grantee is willing to place and maintain its Telecommunications Facilities
within the City under a franchise from Grantor, pursuant to Fla. Stat. ~ 362.01 (1998), Fla.
Stat. ~ 337.401 (1998), and Chapter 32 of the City of Clearwater Code.
SECTION 2. Short Title.
This Ordinance shall be known and may be cited as the "FPL FiberNet
Telecommunications Franchise."
SECTION 3. 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 in the 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 word
"shall" is always mandatory and not merely directory.
(A) "Backhaul Network." A physical network of copper, fiber optic or microwave
links that connect Micro or Pico Cell sites to a central switching point or the public switched
telephone network.
(B) "Cable Systems" - A facility, consisting of a set of closed transmission paths
and associated signal generation, reception, and control equipment that is designed to
provide cable service which includes video programming and which is provided to multiple
subscribers within a community, but such term does not include:
(1) A facility that serves only to re-transmit the television signals of one or more
television broadcast stations;
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Ordinance 6560-00
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(M) "Recurring local Service Revenues." Revenues 10m the recurring charges
for local services provided by Grantee using its Telecommunications Facilities within the
Grantor's rights-of-way.
(N) "Rights-of-Way" - All of the public streets, alleys, highways, waterways,
bridges, easements, sidewalks and parks of the City, as they now exist or may be hereafter
constructed, opened, laid out or extended within the present limits of the City, or in such
territory as may hereafter be added to, consolidated or annexed to the City.
(0) "Telecommunications Company." Every corporation, partnership, and person
and their lessees, trustees, or receivers appointed by any court whatsoever, and every
political subdivision in the state, offering two-way Telecommunications Services to the
public for hire within this state by the use of a Telecommunications Facility.
(P) "Telecommunications Facilities." Includes real estate, apparatus, and
property used and operated to provide two-way Telecommunications Services to the public
for hire within this State.
(Q) "Telecommunications Services." Includes, without limitation, local service as
defined in FI. Stat. 9 203.012(3) (1998), toll service as defined in FI. Stat. 9 203.012(7)
(1998), private communication service as defined in FI. Stat. 9203.012(4) (1998), or any
other provision of two-way communications services to the public for hire.
Telecommunications Services, as contemplated herein, does not include the provision of
service via an open video system, which shall require separate authorizations from the
Grantor.
(R) "Wireless Communication System." Any system which uses form of cellular
telephony which allows business and residential subscribers to access and/or make
telephone calls to each other through the wireless communication system or one of the
public switched telephone networks using cordless telephone devices which communicate
with limited range micro or pico cells (transmitter/receiver sites) connected to a backhaul
network.
SECTION 4. Grant of Authority.
(A) There is hereby granted by Grantor, to Grantee, the right and privilege to
construct, erect, operate, own and maintain, in, upon, along, across, above, over and
under Rights-of-Way now laid out or dedicated, and all extensions thereof, and additions
thereto in the City, poles, wires, cables, underground conduits, manholes and other
Telecommunications Services and utility structures necessary or proper for the
maintenance and operation of its Telecommunications Services, provided that all visible
portions of the same shall conform to the National Electrical Code. This Franchise is
awarded subject to all applicable Law. Grantee and Grantor acknowledge that Grantee's
Telecommunications Services business is subject as a telecommunications common
carrier to the requirements of Fla. Stat. Ann 9364 (West 1995) and the Rules and
Regulations of the Florida Public Service Commission in its intrastate aspects and to 47
U.S.C. 9201 et sea., and the Rules and Regulations of the Federal Communications
Commission in its interstate aspects.
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Ordinance 6560-00
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(8) This Franctlse is for use by Grantee of Grantor's ii9hts-of-Way for all/awful
purposes related to Grantee's Telecommunications Services business. Grantee agrees
that it shall not, unless allowed specifically by applicable State or Federal law, use
Grantor's Rights-of-Way for the operation of a Cable System without a separate franchise
therefor from the City. Grantee also agrees that without the prior written permission of
Grantor, it will not allow any entity providing' a wireless communication system to acquire
rights to occupy Rights-of-Way under this Franchise. This Franchise is for use by Grantee
of Grantor's Rights-of-Way for all lawful purposes related to Grantee's Telecommunications
Services business. Grantor shall not prevent Grantee from using wireless technology to
provide Telecommunications Services, under applicable ordinances and regulations.
(C) Annexation or Contraction. Grantee agrees that the Franchise Area may be
subject to expansion or reduction by virtue of Grantor's annexation or contraction of
municipal boundaries. If Grantor approves any Franchise Area expansion or reduction by
annexation, Grantor will provide notice to Grantee. Grantee must revise its payments due
to any expansion or reduction by annexation within a reasonable time after notice to
Grantee, but no later than sixty (60) days after notice of the effective date of change.
(0) Non-Exclusive Use. The right to use and occupy said Rights-of-Way for the
purposes herein set forth shall be non-exclusive, and the Grantor reserves the right to
grant a similar use of said Rights-of-Way to any person at any time during the period of this
Franchise, so long as such grant is competitively neutral and non-discriminatory, as
required by 9 253 of the Telecommunications Act of 1996, with respect to similarly situated
users of the Rights-of-Way.
SECTION 5. Terms of Franchise.
(A) The Franchise and rights herein granted shall take affect and be in force from
and after the final passage hereof, as required by law and upon the filing of an acceptance
by Grantee of all the terms thereof with the Grantor and shall continue in force and effect
for a term of ten (10) years commencing on the date of the signing of this Agreement. This
Agreement shall automatically renew for one (1) additional one (1) year period, unless
either party gives ninety (90) days notice of intent to terminate prior to the end of the ten
(10) year term; provided, however, that the City may not terminate this Agreement unless
Grantee has substantially breached a material provision hereof, which breach shall be
governed by Section 8.
(8) Provided, however, that the Grantor or Grantee at any time during the term
of this Franchise may open applicable terms hereof for good faith renegotiation, except that
modifications to the franchise fee shall be governed by Section 6(A). The party seeking
to reopen the terms of the Franchise shall provide written notice of intent to do so to the
other party. Upon receipt of notice to reopen, the party receiving such notice shall be
required to meet with the other party to review the terms requested and to negotiate in
good faith on such terms. Negotiations on all reopened terms shall be concluded within
a reasonable period of time, but in any event shall be concluded within ninety (90) days
after commencing. Neither party is excused from compliance with the Franchise during
any period of renegotiation or following such renegotiations in the event that the parties do
not agree on new terms. If parties fail to achieve a mutually agreeable resolution, they
reserve their rights to pursue any and all remedies available at law, except as provided in
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this Section 5(8) or in Syction 6(A), with respect to modificatLons hereto. Neither the
Grantor nor the Grantee flail be deemed to have waived any rilhts or remedies at law by
virtue of executing this Agreement.
SECTION 6. Payment to Grantor.
(A) In consideration for this Franchise, the Grantee shall pay to the Grantor an
annual Franchise fee of seven hundred fifty dollars ($750.00) per linear mile of Grantee's
System which makes physical use of the Grantor's public Rights-of-Way. When payment
is to be made per linear mile pursuant to Section 6(A), the Grantee shall calculate the
amount of the annual Franchise fee payment three months after the Franchise is adopted,
and subsequently on each anniversary of that date, based on the total mileage of the
Grantee's System installed in the public Rights-of-Way on that date. Payments by the
Grantee shall be delivered to Grantee within 100 days after the Franchise is adopted, and
on each anniversary thereafter and shall be accompanied by an explanation of the
calculation of the payment amount. Payments received after such due date shall be
subject to interest charges of 12% per annum or the highest amount then permitted by law,
whichever is lower. In addition, Grantee shall pay to the City the standard right-of-way
utilization permit fee charges. In the event that Grantee commences payment pursuant
to Subsection (8), the per mile fee provided for herein will cease after the payment on the
next following anniversary date of the prorated portion of the per-mile fee up to the date
that payment pursuant to Subsection (8) commenced.
(8) In the event Grantee provides telecommunications services as defined in
Section 203.012(3), Florida Statutes, the Grantee shall pay to the Grantor monthly as a
franchise fee under this Franchise the sum of one percent (1 %) of the gross receipts of the
Franchisee on Recurring Local Service Revenues for services provided within the
corporate limits of the City by the Grantee. To the extent that any changes in State law
permit a higher percentage or require a lower percentage or require a broader or narrower
base of services to be subject to franchise fees, the percentage or base specified in this
Franchise shall be automatically modified to the level permitted by Law.
(1) Payment shall be made to the Grantor for each month no later than the
thirtieth (30th) day of the following month. The monthly payment shall be
made by wire transfer for any monthly payment that exceeds $2,000.00. Any
monthly payment or any portion thereof received thirty (30) days or more
after the due date shall be subject to interest at the rate of 12% percent per
annum or the maximum amount allowed by law until all payments are paid
in full.
(2) The Grantee will attach to each payment a statement of its gross receipts on
recurring local service revenues for the period on which such payment is
based, signed by an authorized representative of the Grantee, in such form
and detail as the Grantor's auditor reasonably may from time to time
prescribe, sufficient to show the source and method of computation of said
gross receipts. The acceptance of any statement or payment shall not stop
the Grantor from asserting that the amount paid is not the amount due or
from recovering any deficit by any lawful proceeding, including interest to be
applied at a rate equal to that provided by statute for Florida circuit court
judgments.
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Ordinance 6560-00
(C) The Grant! shall supply all accounts and recorcl of the Grantee and/or all
such information that the Grantor or its said representative reasonably may from time to
time request or require which are necessary to determine the correctness of such
statement. Said records may be inspected by the Grantor or its duly authorized
representatives during normal business hours, upon reasonable notice to the Grantee at
the Grantee's local office in the Tampa Bay Area.
(0) Any franchise or other fee which is made a requirement of this ordinance
shall be applicable to Grantee to the extent that the Grantor's right to impose such fee is
not preempted or prohibited by state or federal law. In the event of such preemption, the
Grantor and Grantee shall proceed to negotiate in good faith such reasonable
compensation and such other terms pursuant to Section 5 for Grantee's use of the Right-of
Way, on a competitively neutral and non-discriminatory basis as may be permitted by law.
SECTION 7. Notice of Assignment.
(A) The rights and privileges granted by this Franchise shall not be sold,
assigned, transferred, leased or pledged in whole or in part without the express consent
of the City Commission in accordance with the City of Clearwater Code of Ordinances
Section 32.035, which shall not be unreasonably withheld. No such sale or transfer shall
be effective until the vendee, assignee or lessee has filed with the Grantor an instrument,
duly executed, reciting the fact of such sale, assignment or lease accepting the terms of
the Franchise, and agreeing to perform all the conditions thereof.
(B) Notwithstanding the foregoing, the Grantor acknowledges and agrees that
Grantee may assign or collaterally assign, in whole or in part, its rights, interests and
obligations hereunder without limitation to any of its affiliates, any party providing financing
to Grantee, and any successors and assigns of the foregoing without the consent of the
Grantor. Grantee will provide the Grantor with notice of any assignment. The Grantor
agrees that the holder of any security interest shall not be prevented or impeded by the
Grantor from enforcing such security interest and shall not terminate this Agreement
without the prior written consent of the assignee. The Grantor shall not unreasonably
withhold consents to assignment and/or acknowledgments of any security interest as are
requested by Grantee to give effect to the foregoing. Such acknowledgments may contain
an agreement to allow the holder of such security interest to cure defaults by Grantee
under this Agreement and a consent to allow the assignment to the successors-in-interest
of the holder of such security interest.
SECTION 8. Ordinance Violations.
(A) Substantial Violations
Any substantial violation by the Grantee, its vendee, lessee or successor of the
provisions of this Franchise or any material portions thereof, may cause the Franchise and
all rights hereunder to be terminated and/or penalties to be imposed in accordance with
the City of Clearwater Code of Ordinances Section 32.038. After written notice to Grantee
of a violation and failure by Grantee to rectify the violation within a reasonable time,
Grantor may terminate the Franchise and/or assess a penalty. A reasonable period oftime
is defined as the period of time required to rectify a violation assuming that the Grantee
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Ordinance 6560-00
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within the particular sectol of the Franchise Area for which the Jrantor seeks to obtain the
service. Nothing herein shall be deemed to the contrary.
(C) At the expiration of the term for which this Franchise is granted, or upon its
termination, as provided for herein, the City shall have the right to require Grantee to
remove, at its own expense and with disp'atch, all portions of its Telecommunications
Facilities from the City streets; provided, however, the Franchise may be renewed upon
expiration so long as Grantee is in substantial compliance with its provisions.
(0) If the City wishes, after the expiration of this Franchise, to purchase all or any
part of the property of Grantee's Telecommunications Facilities operated within the City's
municipal boundary hereunder, at fair market value as a going concern, but with no value
allocated to the Franchise itself, it may give written notice of its election to the Grantee
within sixty (60) days prior to the expiration of the term hereof. If Grantee does not wish
to convey its Telecommunications Facilities to the City and does not seek renewal of the
Franchise, Grantee must remove its Telecommunications Facilities within one (1) year of
the expiration of the Franchise, or the City may remove them and Grantee will reimburse
Grantor for all reasonable and documented costs of removal.
(E) Inspection. The Grantor shall have the right to inspect in a reasonable
manner all construction and installation work to insure compliance with governing
ordinances.
SECTION 10. Conditions on Street Occupancy.
(A) Use. Telecommunications Facilities erected by the Grantee within the
Franchise Area shall be so located as to cause minimum interference with the proper use
of Rights-of-Way, and to cause minimum interference with the rights of property owners
who adjoin any of the said Rights-of-Way.
(B) Restoration. In case of any disturbance of surface, base or landscape
treatment of Rights-of-Way or damages to Grantor's structures and facilities caused by the
Grantee's operations and activities, Grantee shall, at its own cost and expense, replace
and restore all Rights-of-Way or Grantor's structures and facilities disturbed, to the same
or better condition as before said work was commenced and in accordance with City Code.
However, should the Grantee fail to commence restoration after fifteen (15) days notice,
in writing, to said Grantee by the Grantor, the Grantor may make such repair and
restoration of the same and Grantee shall pay reasonable and documented costs incurred
by Grantor. Grantee shall warrant for one (1) year all work done to repair Grantor's Rights-
of-Way and other property during the term of this Franchise. Upon detection by Grantee
or upon request of the Grantor, Grantee shall at no cost to the Grantor repair sunken
patches, trenches or make other repairs that become necessary because of excavation or
other work done by the Grantee at any time during the term of the Franchise.
(C) Relocation. At any time during the period of this Franchise, if Grantor lawfully
elects to alter, or change the grade of any Rights-of-Way, or alter or move any structure
or facility of Grantor, it may require Grantee, upon reasonable notice by Grantor, to review,
relay, and relocate its poles, wires, cables, underground conduit and other
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Ordinance 6560-00
Telecommunications FaJities at it own expense, so long as GLntor requires same of all
other similarly situated users of the Rights-of-Way.
(D) Placement of Fixtures. Granteeshall not place poles or other fixtures where
the same will interfere with any water hydrant, water main, or sewage line, reclaimed water
lines and hydrants, traffic signal poles and"facilities, storm drains and facilities, so long as
Grantor requires same of all other similarly situated users of the Rights-of-Way. All such
poles or other fixtures placed in any Right-of-Way shall be placed in such a manner as not
to interfere with the usual travel thereon.
(E) Unauthorized Installation. Except in an Emergency, any conduits, cables or
pole lines installed or placed without first having obtained the permits herein provided for
shall be moved within thirty (30) days after receipt of written notice by Grantor to remove
the same. In default of compliance with such notice, the conduits, cables, or poles may
be removed by order of the Department of Public Works of the City and the cost of removal
shall be borne and paid by the Grantee.
(F) Temporary Removal of Wire for Buildinq Movinq. Grantee, on the request
of any person holding a building permit issued by Grantor, shall temporarily raise or lower
its wires to permit the moving of buildings, so long as same is required of all other similarly
situated users of the Rights-of-Way. The expense of such temporary removal, raising or
lowering of wires shall be paid by the person requesting the same, and Grantee shall have
the authority to require such payment in advance. Grantee shall be given notice of not less
than forty-eight (48) hours to set a schedule for such temporary wire changes.
(G) Tree Trimming. Grantee shall have the authority to trim trees upon and
overhanging Rights-of-Way of Grantor so as to prevent the branches of such trees from
coming in contact with the wires and cables of Grantee, all trimming to be done pursuant
to governing laws and at the expense of Grantee.
(H) Underqround Facilities.
(1) FPL FiberNet shall place its Facilities underground on Gulf-To-Bay Boulevard
and on any other City street as may be subsequently required by the City's
corridor or redevelopment plans; provided, however, that all utilities located
in areas in which the City shall require facilities to be placed underground
shall also be required to bury all fiber at the same time and under the same
terms and conditions.
(2) Replacement poles, underground cables or other Telecommunications
Facilities shall be placed between the property line and the curb line of all
streets and avenues and shall not be within the roadway recovery area. New
underground cables, when it is practicable to do so, and required of all
similarly situated users of the Rights-of-Way, shall have consistent alignment
parallel with the edge of pavement, a thirty-six inch (36") depth of cover for
the paved portion of roadways, a twenty-four inch (24") to thirty inch (30")
depth of cover in all areas except the paved portion of roadways, and shall
have a two (2') foot horizontal clearance from other underground utilities and
their appurtenance. The lowest wire on any poles placed in any Right-of-Way
9 Ordinance 6560-00
used by velicle traffic shall not be less than eiJ,teen (18') feet from the
ground and, whenever Grantee's wires and electric power wires cross each
other, wires shall cross and be maintained in accordance with the National
Electrical Code.
(3) Within six (6) months of the effective date of this Franchise, the Grantee shall
present a facilities plan, which shall: (i) include a construction schedule; (H)
be coordinated with the Grantor's construction programs to minimize impact
on the motoring public; (Hi) be in compliance with Section 10(H) of this
Franchise Ordinance; and (iv) be acceptable to the City's Director of the
Department of Public Works.
(4) Grantor agrees to be a member of the one-call toll-free telephone notification
system prescribed pursuant to Fla. Stat. Ann 9556 (West 1997).
(I) Permits. No work shall be performed by Grantee, its subcontractors,
contractors, agents or authorized representatives to install, locate, relocate or maintain
Grantee's Telecommunications Facilities in, upon, along, across, above, over or under the
Rights-of-Way now laid out or dedicated, and all extensions thereof, without first obtaining
a proper permit for such work from Grantor, which permit shall not be withheld
unreasonably or in a discriminatory manner. To the extent required by law, Grantee and
each of its subcontractors, contractors, agents or authorized representatives must be
licensed to perform their services in the Franchise Area. Grantee assumes all
responsibility for applicable permit(s), their reasonable and nondiscriminatory requirements
and conditions, including notification for inspection purposed, and conformance to Grantor
specifications. To the extent allowed by Law, all licensing fees are applicable to Grantee.
(J) Rioht-of-Wav Not Warranted. Grantor does not warrant any right, title or
interest of any Rights-of-Way in existence or hereafter acquired, used by Grantee or as
may be used by Grantee in the future.
(K) Inspection. The Grantor shall have the right to inspect all construction and
installation work to insure compliance with governing ordinances.
SECTION 11.
Governino Law and Venue.
(A) Grantee shall, at all times during the life of this Franchise, be subject to all
lawful exercise of the police power by Grantor.
(B) The rights and privileges granted to Grantee by this Franchise shall at all
times be subordinate and inferior to the rights of the public in and to the ordinary use of
Grantor's Rights-of-Way, and nothing in this Franchise shall be considered as a surrender
by Grantor of its right and power to use and relocate its Rights-of-Way.
(C) The Franchise and rights herein granted are subject to the provisions of
applicable law.
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Ordinance 6560-00
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(D) Venue. In te event that any legal proceeding L brought to enforce the
terms of this Franchise in a court of law, the same shall be brought in the State court in
Pinellas County, Florida or the United States District Court for the Middle District of Florida.
SECTION 12.
Grantee Liability - Ind~mnification.
(A) The Grantee shall indemnify, defend (with counsel reasonably acceptable to
the City) and hold the Grantor and its officers, directors, agents, servants, employees,
successor and assigns harmless of and from any and all claims for personal injury, death
or property damage, any other losses, damages, charges or expenses, including
reasonable attorney's fees, witness fees, court costs and the reasonable value of any
services rendered by any officer or employee of the Grantor, and any orders, judgments
or decrees which may be entered, which arise or are alleged to have arisen out of, in
connection with, or attributable to, the Grantee's activities under this Franchise and the
placement, repair, relocation or removal by the Grantee of any portion of the
Telecommunications Facilities, except to the extent any losses arise from the willful
misconduct or negligent acts or omissions of the City, its officers, directors, agents,
servants, employees, successor and assigns. Grantee shall undertake at its own expense
the defense of any action which may be brought against the Grantor for damages,
injunctive relief or for any other cause of action arising or alleged to have arisen out of, in
connection with or attributable to, the foregoing; and, in the event any final judgment
therein should be rendered against the Grantor resulting from the foregoing, the Grantee
shall promptly pay the final judgment together with all costs relating thereto; the Grantee
being allowed, however, an appeal or appeals to the appropriate court or courts from the
judgment rendered in any such suit or action upon the filing of such supersedeas bond as
shall be required to prevent levy or judgment against the Grantor during such appeal or
appeals. Grantor shall notify Grantee's representative in City within ten (10) days after
presentation of any claim or demand, either by suit or otherwise, made against Grantor on
account of any breach as aforesaid on the part of Grantee.
(B) Grantee shall be responsible for reimbursing Grantor for damage to any of
Grantor's water lines, sewers and traffic light controls disturbed from the actions of
Grantee, or its representatives, in the construction, operation or maintenance of its facilities
in the Franchise Area, to the same or similar condition as before said work was
commenced and in accordance with City of Clearwater Code.
(C) Insurance. Grantee shall maintain, and by its acceptance of this Franchise
specifically agrees that it will maintain throughout the terms of this Franchise, liability
insurance insuring the Grantee with regard to all damages set forth in Paragraph 12(A) in
the minimum amounts of:
(i) $500,000 for bodily injury or death to a person, within the limit;
$1,000,000 for bodily injury or death resulting from anyone
accident.
(ii) $50,000 for property damage resulting from anyone accident.
(iii) $1,000,000 for all other types of liability.
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Ordinance 6560-00
(0) The GrantJ and the Grantor agree that the Glntee may self-insure its
obligations under this Franchise. The Grantee shall provide the Grantor with a Certificate
of Insurance reflecting the above coverages and limits of liability, which shall be filed with
and approved by the city commission, and such proof of insurance shall be filed and
maintained with the city clerk during the term of this Franchise. Grantee shall provide the
Grantor with thirty (30) days written notice.. prior to cancellation, revocation, non-renewal
or material change in such self-insurance.
SECTION 13.
Severabilitv.
Should any section or provision of this Franchise or any portion thereof be declared
by a court of competent jurisdiction to be invalid, such decision shall not affect the validity
of the remainder, as a whole or any part thereof, other than the part declared to be invalid.
In the event of any such partial invalidity, the Grantor and Grantee shall meet and
negotiate in good faith in accordance with Section 5(8) to obtain a replacement provision
that is in compliance with the judicial authority's decision; provided, however, that to the
extent the declaration relates to franchise fees, the provisions in Section 6(A) shall apply.
SECTION 14.
Records and Reports.
The following records and reports shall be filed with or available to or from Grantor:
(A) Grantee Rules and Reaulations. Copies of such rules, regulations, terms
and conditions adopted by Grantee that relate to Grantee's use of Grantor's Right-of-Way
shall be available upon request by Grantor.
(B) Audit Report. Grantee shall annually submit to Grantor a copy of its
published Audit Report upon request by Grantor.
(C) Accounting. Grantee will attach to each payment a statement of its monthly
Recurring Local Service Revenues by the period on which such payment is based, signed
by an authorized representative of the Grantee, in such reasonable form and detail as
Grantor may from time to time prescribe, sufficient to show the source and method of
computation of said revenues. The acceptance of any statement or payment shall not
estop the Grantor from asserting that the amount paid is not the amount due or from
recovering any deficit by any lawful proceeding, including interest to be applied at a rate
equal to that provided by statute for circuit court judgments.
(0) Availability of Records. Grantee shall make available all relevant accounts
and records of the Grantee and/or all such information that the Grantor or its
representatives may from time to time reasonably request or require for the sole purpose
of reviewing fees paid under Section 6. Such financial records as are required under this
Agreement hereof shall be kept and maintained in accordance with generally accepted
accounting principles. All of the said records shall, on reasonable written request of
Grantor and subject to Section 14(E), be open for examination and audit by Grantor and
Grantor's External Auditors and their staff during ordinary business hours, in the Tampa
Bay Area Office of Grantee, and such records shall be retained by Grantee for a minimum
offive (5) years.
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Ordinance 6560-00
(E) Records at Reports - Audit. For the sole purplse of reviewing fees paid
under Section 6, Grantor may require an audit of Grantee's books at Grantor's expense
once every five (5) years during the term of this Ordinance. In the event any such audit
identifies a five percent (5%) or greater error on Grantee's part in failing to report the
franchise revenue base for the audit period, Grantee agrees to reimburse Grantor for its
reasonable audit costs. Provided, however, that such costs shall not have been incurred
by Grantor as a result of any contingency fee arrangement between Grantor and any third
party auditor, that any such auditor shall meet all legal qualifications to perform such audit,
and that Grantee shall have the right upon request, to review the contract between Grantor
and any such auditor to confirm the foregoing. In the further event the audit identifies
errors which will require time for correction, such errors may be projected into the future
for a reasonable period of time to allow Grantee to correct same. At the time of correction
of the error(s), a true-up or comparison of the amounts paid as a result of any projections
shall be made and if such true-up results in the Grantee overpaying its franchise fee,
Grantor shall reimburse Grantee for said amount including interest at the rate of ten
percent (10%) per annum. If such true-up results in the Grantee underpaying its franchise
fee, Grantee shall pay said amount including interest at ten percent (10%) per annum. Any
underpayment or overpayment as provided herein shall be paid within thirty (30) days after
receipt of any demand or invoice from Grantor or Grantee.
(F) To the extent permitted by law, all records and reports submitted by Grantee
by Grantor pursuant to the requirements of Section 14 shall be treated and maintained by
Grantor as the confidential business information of Grantee, and shall be protected from
disclosure to any third party.
(G) Underaround Installation Records. Grantor may request, on a
nondiscriminatory basis under terms applicable to all other similarly situated users of the
Rights-of-Way that Grantee provides Grantor records of its underground installation, on as
built field ties (horizontal and vertical) or on drawings provided by Grantor within thirty (30)
days of Grantor's reasonable request for such information, provided, however, that such
request shall not be made sooner than thirty (30) days following Grantees completion of
construction of its initial Telecommunications Facilities or any expansions thereof.
SECTION 15. Compliance with Law.
Grantee shall maintain and operate its Telecommunications Facilities and render
efficient service in accordance with applicable Law.
SECTION 16.
Grantor's Authority.
(A) Nothing in this Ordinance shall prevent Grantor from levying and collecting
any other taxes or fees as Grantor may from time to time be empowered, by Law, to levy
and collect. Such taxes and fees are not considered part of the franchise fees.
(B) Grantee shall not be excused from complying with any of the terms and
conditions of this Franchise by any failure of the Grantor, upon anyone or more occasions,
to require Grantee's performance or compliance with anyone or more of such terms or
conditions.
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Ordinance 6560-00
ordlances in Conflict.
I
SECTION 17.
Notwithstanding anything contained in this Franchise to the contrary, in the event
that (1) this Franchise or any part hereof, (2) any procedure provided in the Franchise or
(3) any compensation due Grantor und~r this Franchise, becomes, or is declared or
determined by final judicial authority ,e'xercising its jurisdiction to be excessive,
unenforceable, void, unlawful, in whole or in part, Grantee and Grantor shall meet and
negotiate in good faith in accordance with Section 5(B), to obtain a new Franchise that is
in compliance with the authority's decision or enactment; provided, however, that to the
extent the declaration relates to franchise fees, the provisions in Section 6(A) shall apply.
SECTION 18.
Acceptance.
Grantee shall signify its acceptance of the Franchise terms in writing prior to City
Commission's approval of this Ordinance by filing such written acceptance with the City
Clerk.
SECTION 19.
Attorney's Fees and Expenses.
Except as otherwise provided for herein, Grantor and Grantee hereto agree that if
litigation becomes necessary to enforce any of the obligations, terms and conditions of this
Franchise, the prevailing party shall be entitled to recover reasonable attorney's fees and
court costs, including fees and costs on appeal, from the non-prevailing party.
SECTION 20.
Notices.
Except in exigent circumstances, all notices by either Grantor or Grantee to the
other shall be made by either depositing such notice in the United States Mail, Certified
Mail return receipt requested, overnight delivery, or by facsimile. Any notice served by
certified mail return receipt shall be delivered five (5) days after the date of such deposit
in the certified United States mail unless otherwise provided. Any notice given by facsimile
is deemed received by next Business Day. "Business Day" for purposes of this section
shall mean Monday through Friday, with Saturday, Sunday and Grantor and Grantee
observed holidays excepted. All notices shall be addressed as follows:
To Grantor:
City Manager
City of Clearwater
112 S. Osceola Avenue
Clearwater, Florida 33758-4748
With a copy to:
Pamela Akin, City Attorney
City of Clearwater
112 S. Osceola Avenue
Clearwater, Florida 33758-4748
14
Ordinance 6560-00
.
To Grantee:
I
I
Rick Carpani, Manager of Construction
FPL FiberNet, LLC
9250 West Flagler Street
Miami, FL 33174
Facsimile: (305) 552-3493
With a Copy to:
Steven A. Anderson, Esquire
Becker & Poliakoff, P. A.
401 E. Jackson Street, Suite 2400
Tampa, FL 33602
Facsimile: (813) 222-7519
Notice shall be given as required by this Franchise and for all other Emergencies. Notice
shall be provided to the above-named addressees unless directed otherwise in writing by
Grantor or Grantee. Both parties have a duty to provide notice of any name or address
change of the parties to whom notice is required to be provided.
SECTION 21.
Non-waiver Provision.
The failure of either party to insist in anyone or more instances upon the strict
performance of anyone or more of the terms of provisions of this Franchise, shall not be
construed as a waiver or relinquishment for the future of any such term or provision, and
the same shall continue in full force and effect. No waiver or relinquishment shall be
deemed to have been made by either party unless said waiver or relinquishment is in
writing and signed by the parties.
SECTION 22. Effective Date. This Ordinance shall take effect immediately upon adoption.
PASSED ON FIRST READING
June 1, 2000
PASSED ON SECOND AND FINAL
READING AND ADOPTED AS AMENDED
June 15, 2000
~g~
Mayor-Commissioner
Approved as to form
l~
... './''/ -,
Pamela K. kin
City Attorney
Attest:
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Ordinance 6560-00