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TELEPHONE COMPANY - \ . I I CJr'r CLERK ORDINANCE NO. 1873 AN ORDINANCE GRANTING TO GENERAL TELE~ PHONE COMPANY OF FLORIDA, A CORPORATION UNDER THE LAWS OF FLORIDA, ITS SUCCESSORS . AND ASSIGNS, A NONEXCLUSIVE FRA.1'\JCHISE TO USE THE PUBLIC STREETS, ALLEYS, HlGHWA YS, WATERWA YS, BRIDGES, EASEMENTS, AND OTHER PUBLIC PLACES OF THE CITY OF CLEARWATER, FOR THE CONSTRUCTION, MAINTENANCE AND OPERATION OF A TELEPHONE SYSTEM IN THE CITY OF CLEARWATER: AND PRESCRIBING THE TER.\1S AATD CONDITIONS UNDER WHICH SAlD NON- EXCLUSIVE RIGHTS, PRIVILEGES AND FRANCHISES MAY BE EXERCISED: AND PROVIDING AN EFFECTIVE DATE HEREOF. BE IT ENACTED BY THE CITY COMMISSION OF THE CITY OF. CLEAR WATER, FLORIDA Section 1 (a). That the City of Clearwater (hereinafter referred to as the "City") hereby grants to General Telephone Company of Florida (hereinafter referred to as the "Company"), a Florida corporation, its suc- cessors and assigns, the nonexclusive right, privilege and franchise to lay, erect, construct, operate and maintain in, on or upon any and all of the . public streets, alleys, highways, waterways, bridges, easements and other public places 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 be hereafter added to, consolidated or annexed to the City, any and all such conduits, cables, poles, wires, supports and other structures as may be reasonably necessary for the construction, maintenance and opera- tion of a telephone system for the public and private use of the inhabitants of the City, . subject to the terms and conditions herein under this Ordinance granting this nonexclusive franchise to the Company. (b) This nonexclusive franchise granted by the City to the Company shall be for a period of fifteen (15) years from the effective date of this Ordinanc e. Section 2. The streets and other facilities of the City to be used by the Company in the operation of the telephone system within and beyond the corporate liIT'..its of the City are valuable public properties acquired JI /' ' , . , - OJ ); J -2- 1 and maintained by the City at great expense to municipal taxpayers, and the right to use said streets and facilities is a valuable property right without which the Company would be required to invest substantial capital in rights- of-way costs and acquisitions. The Company specifically understands and agrees that the awns of money to be paid by the Company to the City under Section 3 hereof are compensation and consideration for the use by the Company of the City streets and other ways for the installation, maintenance and operation of the Company's telephone system facilities and are not in lieu of taxes or any other charges or fees as allowed by the Florida Constitution, the general or special laws of the State of Florida, or any other ordinances of the City. The Company shall at all times continue to be subject to public service taxes (Section 166.231, Florida Statutes), ad valorem. taxes (Section 166.211, Florida Statutes), and such other taxes, charges or fees as may be lawfully authorized by the Florida Constitution, the general or special laws of the State of Florida, the provisions of the Municipal Home Rule Powers Act (Chapter 166~ Florida Statutes) or the ordinances of the City. Section 3 (a).. Commencing on the effective date of this Ordinance, the Company shall pay to the City as consideration for the grant of this franchise a suzn of money equal to one per cent (10/0) of its gros s local service revenues derived during each quarter of the calendar year from customers located within the corporate limits of the City. Local service revenues are all items now or hereafter included in the uniform system of accounts set forth in the FCC Accounts. Local Service Revenues FCC Accounts Description 500 Subscribers I Station Revenues 501 Public Telephone R~evenues 503 Service Stations '. I -3- I 504 506 Description Local Private Line Services Other Local Service Revenues Accounts Such consideration shall be due at the end of each quarter and shall be payable no later than the 20th day of the month following the end of each such quarter; and if not received by the City within such p~riod, any portion thereof shall draw interest at the rate of ten per cent (100/0) per annwn from the first day after the payment period of twenty days until paid to the City. (b) Ii the Company agrees to payor is otherwise obligated to pay to any other municipality more than one per cent (1 %) of its revenues as consideration for a franchise, which overage is not passed on to the. subscribers of the Company located in such municipality, the Company shall, on the effective date of such payment,' also begin paying such greater percentage to the City. If the Company is permitted by the Florida Public Servi.ce Commission, under a tariff filed with such conunis sion, to pay a percentage greater than 1 % of the gross local service revenues derived from subsc;-ibers of the Company in a municipality as consideration ~or a franchise, without the requirement that such overage be passed on to the subscribers of the Company located in such municipality, then on the effective date of such tariff, the Company shall begin paying such greater percentage to the City. In such event, the Company agrees to furnish to the City within thirty (30) days of the effective date of any such franchise, agreement, amendment to franchise, or Florida Public Service Conunission rule or regulation, a copy of such franchise, agreement, amendment to franchise, or rule or regulation. If an appropriate Federal authority issues an order while this Ordinance is in effect authorizing the payment by a .' I - 4 - I telephone company of a percentage of gross interstate toll revenues as con- sideration for a municipal franchise, and this order is upheld 'on appellate review, the City shall have the right to notify the Company to this effect and to demand that an amendment to this agreement be negotiated between the City and the Company covering this area of consideration. (c) The City, or its designated representative, shall have the right during the life of this franchise to examine the books, records and accounts of the Company, at its principal offices in the City of Tampa, to detennine the accuracy of the gross local service revenues upon which this franchise payment is based; provided, however, that the Company shall be obligated to maintain its billing records only for the period of time required by the Florida Public Service Commission ~nd that any examination conducted after such period shall be confined to the records then available. Section 4 (a). The Company shall give perpetual service, days, nights, Sundays and every day, strikes and emergency causes excepted, in accordance With normal accepted telephone industry practices as regulated by the Florida Public Service Commission. (b) The Company shall construct, maintain and operate during the life of this franchise a complete telephone system meeting reasonable techno- logical standards and developments aoq provide the subscribers in the City with service as efficient and complete as that provided to any other community serviced by the Company. Compliance or noncompliance of the Company with this subsection shall be detennined by the Florida Public Service Commission; however~ nothing contained herein shall abrogate any right that the City may ha ve to institute legal action. (c) The Company shall, upon request, make available at its principal office in the City of ClearWater a copy of its annual repon to the Florida Public Service Commission and a copy of all telephone service repons, or other public repons, required to be filed with the Florida Publi,c Service Commission. Upon request by such representative, the Company shall supply to the City a copy of any such report. .' . ' , . I - 5 - I (d) The Company shall, upon request, present and explain to the City Commission any proposal for a change in subscribers' ra,tes, or rate levels, or service within fifteen (15) days after the submission of such pro- posal to the Florida Public SeFVice Commission. (e) The Company, at the direction of the City, shall move or relocate such poles, underground cables, conduits or wires, 'including changing the height of such wires, as may at any time interfere with any of the work of the City, or that shall unreasonably hamper or restrict the use of any public street, alley, highway, waterway, bridge, easeme~t or other public place in the City. All cost and expense of such move or relocation shall be paid or borne by the Company without any cost or expense to the City. (f) Should it become necessary in the installation of any facilities by General Telephone of Florida to cut or alter the paving in any street, alley, sidewalk or other public place or right-of-way of the City of Clearwater, Florida, the Company shall first inform the City in writing of the necessity for' such alteration and shall, prior to making any cut or alteration, obtain a permit from the City to perform such work. The Company agrees to . replace the paving or other material so cut or altered at its expense and to place the location or right-oi-way so disturbed, or altered, or changed, insofar as practical, in the same condition as existed prior to such work. (g) The City and the Company will meet to establish guidelines as to whether additional permits will be verbal or written for construction activities other than described below. No major pole lines shall be erected or placed, and no conduits or cables laid, or pay telephone facilities installed, or trees removed, on public rights-oi-way without first obtaining a permit from the City Manager or his designate, which permit shall set out the place where the poles, condUits, cables, or pay telephone facilities are to be placed or installed. Any major pole lines, conduits or cables laid, installed or erected without first having o.btained the permit hereinbefore provided for shall be removed within fifteen'(lS) days of written notice by the City to -6- I I remove the same, and in default of compliance with such notice, the poles, conduits or cables may be removed by order of the City Manager or his designate, and the cost of removal shall be borne and paid by the Company. If the Company fails to pay for such removal, the City, at its option, may cancel this franchise. (h) Such coin telephone facilities as the City determines and the Company agrees are necessary for public safety purposes shall be installed on City properties (pools, parks, buildings, etc.) at the City's request, at no cost-to the City, and with no minimwn charge; all installations shall be of the type designated by the City and-made in a neat and workmanlike manner. Allwiring shall be in conduit and exposed protectors shall not be used; the City will asswne the energy cost of illwninating the phone booths and will arrange with Florida Power Corporation to make the neces sary connections without the necessity of a meter.; in areas where other- facilities are underground or the City deems it advisable, the telephone and lighting service shall be installed-underground; the City shall receive fifteen per cent (15%) of the gross receipts of all phone booths installed on City property; any existing installations will be removed or relocated at the City's request. (i) Underground distribution facilities in new areas and subdivisions shall be installed in accordance with Rules and Regulations' for Underground Telephone Distribution Facilities established from time to time by the FlorIda Public Service Commission. The Company recognizes the advantages of underground construction and within six (6) months from the effective date of this franchise will present to the City its planning for the undergrounding of primary distribution facilities within the City. This plan will have as its objective the undergrounding of such facilities within a period of twenty (20) years. It is understood, however, that this plan will be the goal or objective of the Company and that deviations may occur from time to time as a result of economic feasibility or the joint occupancy practices or programs involving other utilities occupying the rights-oI-way. Should any change or alteration of this plan be made by the Company which, upon review at the request of the City, the Florida Public Service Commission determines to be . . '. '. . 1 I - 7 - unjustified either from the standpoint of economic feasibility or the 'joint occupancy practices and programs involving other utilities occupying the rights-of-way, then the City shall have the right, at its option, to tenmnate this agreement. The Company agrees to periodically review, in concert with the City and other utilities, the implementation of its plan as it relates to the City's master plan of undergrounding all existing facilities. Nothing contained herein sball abrogate the right of the City to adopt any ordinance that it con- siders appropriate relating to the undergrounding of utility facilities and the City reserves any and all rights it may have to adopt such an ordinance. (j) The City shall ba ve access at any time to the manholes of the Company in which the City has facilities, upon giving notice to the Company. The City, in the proper exercise of its. municipal powers and duties with respect to its public streets and other ways, shall have access to all manholes of the Company in such streets and other ways; provided, however, unless the . circumstances required immediate access, the City shall notify the Company prior to such access and, in any event, shall notify the Company promptly of any manholes that have been entered. Section 5. The Company shall use all proper and reasonable care in connection with any work which it may do in, over, under and across any street, alley, highway, waterway, bridge, easement or other public place or right-of-way of the City so as to prevent harm, damage, or injury to persons or property therefrom, and the Company shall save the City harmless from all liability or damages resulting from injury to persons or property by reason of any work which it may undertake or do in, over, under or across any street, alley, highway, waterway, bridge, easement or other public place or ;ight-of-way of the City; provided, however, that the City, within fifteen (15) days after notice of any claim against it arising out of any act or default of the Company, shall give notice in writing of said claim so made against it to th~ Company. Failure to give notice as is required by this section sball not, however, constitute a waiver by the City of any liability of the Company. . , I I - 8 - Section 6. The franchise hereby granted shall not be leased, assigned, or otherwise alienated or disposed of except with the express consent of the City Commission. of the City to such lease assignment, alienation or other disposition prior to the making of same; provided, however, that nothing herein contained shall be so construed as to prohibit the Company from leasing, assigning or otherwise alienating and trans- ferring this franchise in connection with the lease or sale of its entire system or upon its merger and consolidation with any other corporation engaged in a similar business, nor as prohibiting the pledging or mortgaging of such franchise in connection with all the physical property owned and used by it in the operation of its telephone system for the purpose of securing payment or moneys borrowed by the Company. The express consent of the City is hereby given to each, any and all of the transactions enumerated in the above proviso. Section 7. In the event any action shall be instituted or prosecuted.. directly or indirectly, by the Company, or by any of its stockholders or creditors, to set aside, amend or to have declared void any of the provisions, obligations, terms or conditions of this franchise, or in the event the Company violates or defaults in the perfonnance of any of the provisions of this Ordin- ance, and such default continues for a period of ninety (90) days after receipt of wri tten notice of such default, or legal or adminisrrati ve proceedings to resolve such. default are not commenced within such ninety days, the City, through its City Commission, may, at its option, forthwith declare a forfeiture, annulment and termination of this franchise and may institute such appropriate legal proceedings as may be necessary to enforce such forfeiture, anmlment or termination. Section 8. Neither this franchise agreement as a whole, nor any of its parts, portions or terms, shall be constrUed as granting or intending to grant to the Company a franchise to use the City's streets, alleys, highways, waterways, bridges, easements and other public places of the City or the ... I I - 9 - Company's facilities therein for cable television; but nothing herein shall preclude the Company fromentertng into a contract for the use of its facilities with any person, firm, partnership or corporation which hereafter may be granted a franchise for cable television by the City of Clearwater. Section 9. Under Section 148 of the City Charter, the City of Clear- water shall have the right at any time during the life of this franchise to purchase all of the property of General Telephone Company of Florida used by it in connection with this franchise and grant situate within the corporate limits of said City, together with any extensions thereof extending beyond the corporate limits of said City which are appurtenant to and directly con- nected with the Company's local distribution system through any central office operated by it situate within the corporate limits of said City, and any property rights connected with any such property, including all contracts for service . in connection therewith, fairly and reasonably made in good faith by said Company prior to the date of such purchase, at a reasonable valuation of such property and property rights desired to be purchased, to be fixed by arbitration as may now or hereafter be provided by law, in the event the Company and the City shall be unable to arrive at a valuation agreeable to both parties. Nothing herein contained shall be so constrUed as to prevent the City from acquiring such property and property rights by condemnation proceedings or in any other lawful manner, the methcxis of acquisition herein mentioned being in the alternative. But in the event of the acquisition of such property by any . method, the City shall become responsible for and shall assume the perform- ance of all bona fide contracts entered into by said Company, its successors 'or assigns, prior to the date of such acquisition. In the event said City shall hereafter acquire such property by purchase, condemnation or any other method, this grant and franc~se shall immediately terminate as of the date of the conclusion of such transaction. The City in no way surrenders any general powers it may now have or may hereafter have or acquire over the use of the streets, avenues, alleys and public places within its limits by the t ,,-. , r '. I - - 10 ~ I ~ Company, or jurisdiction and control over such matters and things. Without derogation of the right of purchase or other right set out above, as contained in Section 148 of the Clearwater City Charter, the Company has agreed to the inclusion of Secdon 9 in this franchise because of a requirement imposed on the City by Section 148 of the City Charter. The Company, however, reserves the right to challenge any such acquisition throogh any proper legal means, and the execution of this franchise shall not prevent the Company from raising any arguments against such acquisition. Section 10. The Company shall signify its acceptance of the grant of this franchise in writing within thirty (30) days from the da~e this Ordinance becomes law; and such acceptance by the Company in writing shall be made and forwarded to the City Clerk of the City of Clearwater, City Hall, Clear- water, Florida. The acceptance of this franchise in writing by the Company isa condition precedent to this franchise and grant taking effect. Section 11. All ordinances or parts of ordinances not specifically in conflict herewith are hereby continued in fUll force and effect, but all ordinances or parts of ordinances in conflict herewith are hereby repealed. It is agreed and understood that Ordinance No. 625 of the City, dated October 6, 1952, is repealed as of January 1, 1977. Section 12. This ordinance granting a franchise to the Company shall be published and pOSted as provided by law and shall take effect retro- actively as of January 1, 1977 (which is the termination date of the previous franchise between the parties as per Section 11 above); provided, however, this Ordinance shall become effective only upon the wrttten acceptance of the Company as provided in Section 10 hereinabove. . . ~ I -11- I "" Section 13. Should any part or provision of this ordinance be declared by a court of competent jurisdiction to be invalid, the same shall not affect the validity of the ordinance as a whole, or any part thereof other than the part declared to be invalid. Section 14. Notice of the proposed enactment of this ordinance has been properly advertised in a newspaper of general circulation in accordance with Chapter 166.041, Florida Statutes. PASSED ON FIRST READING AS AMENDED January 18. 1979 PASSED ON SECOND AND FINAL READING AND ADOPTED AS AMENDED February 1. 1979 /s/ Charles F, LeCher Mayor- Cornmis sioner Attest: / s / Lucil~e Williams City Clerk