TELECOMMUNICATIONS
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ORDINANCE NO. 6479-00
AN ORDINANCE GRANTING TO KMC TELECOM III, INC. ("KMC" OR
"GRANTEE"), THE PERMISSION TO OCCUpy MUNICIPAL STREETS AND
RIGHTS-OF-WAY IN THE CITY OF CLEARWATER, FLORIDA
("GRANTOR"), AS A MEANS OF PROVIDING TELECOMMUNICATION
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 "KMC 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.
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(1) "Micro Cell." A transmitter/receiver system used to communicate to the
subscriber's handset. Typically with a range 600-1,000 meters.
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(K) "Person" - Any person, firm, partnership, association, corporation, company or
organization of any kind.
(L) "Pico Cell." A transmitter/receiver system used to communicate to the
subscriber's hand set. Typically with a range of 200- 600 meters.
(M) "Recurring Local Service Revenues." Revenues from 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 Fl. Stat. ~ 203.012(3) (1998), toll service as defined in Fl. Stat. ~ 203.012(7) (1998),
private communication service as defined in Fl. Stat. ~ 203.0 12(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
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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 ~364 (West 1995) and
the Ru1es and Regu1ations of the Florida Public Service Commission in its intrastate aspects and
to 47 U.S.C. ~201 et sea., and the Rules and Regulations of the Federal Communications
Commission in its interstate aspects.
(B) This Franchise is for use by Grantee of Grantor's Rights-of-Way for all lawful
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 regu1ations.
(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.
(D) 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 ~ 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.
(B) 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
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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 this Section 5(B) or in Section 6(A), with respect to modifications
hereto. Neither the Grantor nor the Grantee shall be deemed to have waived any rights or
remedies at law by virtue of executing this Agreement.
SECTION 6. Payment to Grantor.
(A) 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.
(B) 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.
(C) 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.
(D) The Grantee shall supply all accounts and records 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.
SECTION 7. Notice of Assignment.
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(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 of time is defined as the period of
time required to rectify a violation assuming that the Grantee has commenced a good faith effort
to rectify such violation but under no circumstances shall be longer than thirty (30) days unless
the failure to cure the violation is due to circumstances beyond Grantee's control (such as an act
of God), or an inability to cure notwithstanding Grantee's diligent, good faith effort to do so.
(B) Penalties for Certain Non-Performance
In the event that certain events occur, penalties of $500 per occurrence may be imposed
by the Grantor. Listed below are certain requirements which, if not met by Grantee, may cause
Grantee to be subject to penalties:
(1) Upon Grantor's undertaking a utilities project and submission of plans or
drawings to Grantee for review and comment, Grantee shall respond to Grantor no
later than two weeks from the date of receipt of such plans to comment on the
feasibility and compatibility of such plans with the existing Telecommunications
Facilities.
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(2) Telecommunications Facilities shall not be installed or placed without obtaining
all required permits.
(3) Grantee shall obtain Grantor's approval before Grantee undertakes any project
requiring the closing of streets or traffic lanes, except during emergency
situations.
(4) Grantee shall obtain permits from Grantor prior to the trimming and removal of
trees.
(5) Grantee shall obtain Grantor's approval before Grantee has displaced, damaged,
or destroyed any sewer or water main, storm water appurtenance, or other utility
belonging to Grantor.
(C) The Grantor shall enforce the foregoing provisions with respect to the assessment
of penalties in accordance with the Florida Administrative Procedure Act, Chapter 120 of the
Florida statutes.
SECTION 9. Grantor Rillhts in Franchise.
(A) Consistent with applicable Law, the right is hereby reserved to the Grantor to
adopt, in addition to the provisions herein contained and existing applicable ordinances, such
additional regulations as it shall find necessary in the exercise of its police power.
(B) The right is hereby reserved to the Grantor to purchase, in accordance with all
applicable tariff rates and terms, Telecommunications Services offered by Grantee within the
Franchise Area, to the extent that each service ordered is already available within the particular
sector of the Franchise Area for which the Grantor 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 dispatch, 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.
(D) 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 ofthe 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.
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(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 Telecommunications
Facilities at it own expense, so long as Grantor requires same of all other similarly situated users
of the Rights-of- Way.
(D) Placement of Fixtures. Grantee shall 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.
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(F) Temporary Removal of Wire for Building Moving. 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) Underground Facilities.
(1) KMC 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 used by vehicle traffic shall
not be less than eighteen (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; (ii) be
coordinated with the Grantor's construction programs to minimize impact on the
motoring public; (iii) be in compliance with Section lOCH) 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 ~556 (West 1997).
(1) 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
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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.
(1) Right-of-Way 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) Insoection. The Grantor shall have the right to inspect all construction and
installation work to insure compliance with governing ordinances.
SECTION 11. Governing 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.
(D) Venue. In the event that any legal proceeding is 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 - Indemnification.
(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
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action which may be brOUg!t against the Grantor for damages, injunlive 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 ofliability.
(D) The Certificate of Insurance reflecting the above coverages and limits of liability,
with Grantor named as an additional insured, 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.
SECTION 13. Severability.
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(B) 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:
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(A) Grantee Rules and Regulations. 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.
(D) A vailabilitv 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 subj ect 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.
(E) Records and Reports - Audit. For the sole purpose 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 ofthe 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
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the confidential business information of Grantee, and shall be protected from disclosure to any
third party.
(G) Underground 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, orovided, 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. Comoliance 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.
SECTION 17. Ordinances in Conflict.
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 under this Franchise, becomes, or is declared or determined by final
judicial authority exercising 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; orovided, 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 Exoenses.
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
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preYailing party shall be entitled to recoyer reasonable attorney's fees and court costs, including
fees and costs on appeal, from the non-preYailing 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 deliyery, or by facsimile. Any notice served by certified mail return receipt
shall be deliyered five (5) days after the date of such deposit in the certified United States mail
unless otherwise provided. Any notice giyen by facsimile is deemed receiyed 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 34618-4748
With a copy to:
Pamela Akin, City Attorney
City of Clearwater
112 S. Osceola Avenue
Clearwater, Florida 34618-4748
To Grantee:
KMC Telecom III, Inc.
1545 Rt. 206, Suite 300
Bedminster, New Jersey 07921
ATTN: Mr. Michael Sternberg
President and CEO
With a Copy to:
KMC Telecom III, Inc.
3025 Breckinridge Boulevard, Suite 170
Duluth, Georgia 30096
A TTN: Ms. Tricia Breckenridge
Executive Vice President, Business Development
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
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Grantee. Both parties haye a duty to provide notice of any name or address change of the parties
to whom notice is required to be proyided.
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
December 9, 1999
PASSED ON SECOND AND FINAL
READING AND ADOPTED
February 3, 2000
a&1A --
Mayor-Commissioner
Attest:
11 as to form:
Pamela K. Akin
City Attorney
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