5757-95 q
ORDINANCE 'NO.
AN ORDINANCE GRANTING TO GTE FLORIDA INCORPORATED, THE ER11XSS1O i
TO OCCUPY I+IL NIC I.P L STREETS AM) RIG S S-OF-TKA Y IN THE CITY OF
GL RATER, FLOC) ID , AS A MEMNS OF P., ,37'I ING TELECOMMUNICATI01,
SERVICES; PRESCRIBING THE TERMS ADD e,-jA,,1TI0NS ACCOMPANYING THE
Gl- 'ITT OF FRANCHISE; AND PRESCRIBING G PE ALTIE' FOR THE VIOLATION '
ITS PROVISIONS; PROVIDING FOR SEV RABlL1TY OF PROVISIONSS' AND
PROVIDING KNT EFFECTIVE DATE.
BE IT ORDAINED 1311 THE CITY C01MISSION OF THE CITY OF C EAR:' AT R,
FLORIDA
SECTION 1.
(A) The Grantor deems it necessary, desirable and in the interest
of the health, safety any welfare of its citizens to establish by
ordinance a franchise wan=ting the pe mission to Grantee to occupy
Rights-of-Way in 'the City of Clearwater, Florida, as a means of
providing telecommunication services.
(B) The Grantee is willing to place and maintain its
Tel e ommunicatia is facilities within the C ity under a franchise
from Grantor, pursuant to Section 362 . 01 Florida Statutes (1993
and Section 337 . 4101 Florida Statues (1993) , and Chapter 32 , article
II of the City Clearwater Cade.
SECTION -
"his ordinance shall be known and may be cited as the "GTE Florida
Incorporated IelecoruTtun catlons Franchise. "
SECTION 3.
For the purposes of this ordinance` the following terms, phrases,
words, and their, derivations shall have the meaning riven herein.
When not inconsistent with the context, words in the present tense
include the future, words ii n the plural number include the singular
rit
as.aTu9TdTau . : . a
Y .��L� - � �? �� �aR, cnid va dd r Ln 6L e siriqJ`a� du2% nia.th n- o
The word "shall" is alvaY.s mandatory and not merely di.rectorv.
(A) "Cable Systei s" - A. facility, consisting of a stet of closed
transmission paths and associated signal genera Lion, 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
) A facility that serves only sulbscri."hers in one or
more multi le-unit dwellings under common awnership,r
control, or management, unless suc h facility or
facilities .uses any public rights-of-way;
) A faci l! -i t.y � a common carrier, except that sucl:i
facility shat?.€, be considered a cable systea o the e tent
such facility, is used in the transmission of its video
programming directly to subscribers
) Any facilities of any electric utility used solel,Y
for operating its electric facility systems.
(B) "The City" The City of C-learwaiter, Florida.
( "Emergency" A: reasonably unforeseen occurrence with the
potential to endanger personal safety or hearth, or cause
substantial damage to property, that calls for immediate action.
(D) "Franchise Areall - That area portion of Grantee' s service which
is within the corporate city lim, t,s of the Grantor.
(E) "Grantee," _. GTE Florida Tncorporated, its successors and
assigns.
('F) "Grantor" The City of Clearwater, Florida.
(G) "Person" - Any person., Firm, partnership, association,
corporation, company or organization of any kind .
(H) "Recurring Local. Service Revenues" - Subject to the provisions
of Section 6 (A) , all revenues presently set out, or which in -the
future, may represent those presently set out, in the revenue
accounts 5000-5069 as established by the Federal Conamunicat ions
commission for local network revenues in accordance with 47 CFR
Part 32 , Sub-part D. Such revenues shall also include any
subaccounts as established by Grantee under these account numbers
l) "Rights-of-Way 11 - All of the public streets, alleys, highways,
waterways, bridges, easements, sidewalks and parks of the City, as
they now exist st or may be hereafter constructed. opened, laid out or
q _ H re s _._._ a
a�: J'v°rs ra a'^�Af°9 .; '' y d-$*sue tv^arr_ �r�„ its J.--
... �.. .d... tie � ,aar J-_L A.L- a�L LAI City, �� �i31 u��a
territory as may hereafter be added to, consolidated or annexed to
the City.
(J) 11Tel�ecommunications Facilities" - AI.l of Grantee ' s facilities
used in the prevision of Telecommunications services.
) "Telecommunications Servi.ces°4 - Services which enable the
a,
electronic or electricatransmission,
on, conveyance, routine, or
reception of sounds, signals, data, images, or .information through
2
the utilization of wires, cables, radio waves, microwaves,
satellites, fiber optics, or any other method now in existence or
that may fie deli ised.
SECTION 4.
(A) There is hereby granted by Grantor, to Grantee, the right and
privilege to construct, erect, operate, own and maint-al"n, in, upon,
along, across, above, over and under Rights-of-Way now laid out or
dedicated, and all extensions thereof, and additions t1hereto in the
City, poles, lw:)Lres, cables, underground conduits, rinanholes and
other communication fixtures and utility structures necessary or
proper for the maintenance and operation of its TelecommunJiLcations
the provided that all visible portions of t he sane seal
conform to the Iational Electrical Code. This Franchise is awarded
subject to all applicable provisions of general or special laws of
Florida and the federal laws and regulations. Grantee and Grantor
acknowledge that Grantee' s Telecommunications Services business is
4
subject as a telecommunicat ions common carrier to the requirements
of Chapter 364 Florida Statutes. (1993) and the Plules and
Regulations of the Florida Public Service Commission in its
intrastate aspects and to 47 U. S.C. §201.
"And the Rkxles 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 PurDoses related to Grantee' s Tel ecoirm.un icat ions
services business. Grantee agrees that it shall not, unless
allowed specifically by applicable State or Federal law, use
Grantor's Rightsof-day for the operation of a Cable System without
a separate franchise therefor from the City. Grantee also agrees
that without the prior writ-ten 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.
Grantor shall not prevent Grantee from using wireless technology to
provide Te leconmunicat ions Services, under applicable ordinances
and regulations. Any other use of Grantor' s Rights-of-way by
Grantee, its wholly owned subsidiaries, subcontractors, agent s and
authorized representatives for any reason shall require a separate
franchise and is not permitted under this Franchise.
Grantp-e- agrecR-S that the Franch—s
Area ay be subject to expansion or reduction by virtue o.;
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 not-ice to Grantee, but no later tha-ra
sixty (60) days after notice of the effective date of change.
(D I Ngja I
Usp The right to use and occupy Rights-of-Way
for the purpose,_S herein set forth shall be non-exclusive, and the
3
Grantor reserves the right to gran-IC a similar lase of said Rights-
of-Way, to any person at any time during the period of this
Franchise so lonc as such grant does not materially and adversely
affect Grantee lss right to use and occupy Rights-of-Waly as
aforesaid.
ISECTION S . T_g=. _&L),1 -2-ra
(A) The FranchJuse and rights herein granted shall take effect 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 wlitliL the Grantor and shall continue in force and
effect for a term of ten (1 0) years after the efffective date of
this franchise. This Franchise m'av be extended at the sole option
of the Grantor for additional twelve (12) month periods unless the
Grantor notifies the Grantee, of teritination at the end of the ten
'(10) year term. The City may terminate the extension and the
effectiveness of the >Franchise at any time after the initial, term
hereof.
(B) Provided, however, that the Grantor or Grantee at any time
during the term of this Franchise open applicable terms hereof for
renegotiation if, as a result of legal or recyalatory changes on the
Federal or State level:
(1) Grantee ' s offering of video services over its;
4
Telecormunications Facilities wi .M th Grantor's Rights-of-
Way causes such facilities to be subject to Grantor' s
municipal franchise authority; or
(2) Grantor requires access to Grantee' s video dia.1tone,
servilce for transmission of Grantee ' s municipal
government programming and such access becomes,
permissible on a preferential basis to Grantee.
""he 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
1z 4-0,
_G�S4-CA an%A negot-ILate in good fal-th on such terms.
A- i_j"%-- ., %A
Necroti ations C--. --c-opanneCAJ 11---er—ULS s'Elail be conciuded 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. If the parties are unable to reach agreement on the
reopened terms, the Franchise may be terminated by the City.
SECTION 6.
(A) The Grantee shall pay to the Grantor monthly as a franchise
fee under this Franchise the, sum of one (1%1 percent of the month" y,
4
4�
gross receipts Recurring Local Service Revenues, a s defined in
Section 3 (H) of this ordinance, the City of Clsarxvater Code of
Ordinances Section 32 . 034 , as prescribed in. Section 337 . 40";_ (3) 0
Florida Statutes_, (1993) . Should: the Florida orid:a statutes be modified
to er i-t, a higher percentage or broader base of services to be
subject to franchise fees, or if ;'t is determined that ec rri.ny,
Local, Service Revenues include a 'broader range of revenue accounts
than des riled in Section (3) ( 1) , the percentage or base spe,eifieC
in this agreement shall be automatically modified to the maximum
amount permitted by law.
( if at any time, the Grantee agrees to pay any municipality or
county in the State of Florida: (a) a greater percentage of the
gross receipts on Recurring Local. Service Revenues; or, (b) agrees
to pay the same percentage of gross receipts on e cures i ng Local
Service Revenues upon additional classifications of revenues (as
described in the: :Federal Co:naun.iacations Co ission m s 'Uniform System
of Accounts 47 ('-.F.R.°; past 32) , the Grantee shall immediately
notify the Granter, and the Granter reserves the right to amend this
Franchise to regpAre the Grantee to pay the ran"Cor such inci ea.s;ed
percentage or the same percentage upon the additional
classifications of revenues paid any other Florida municipality or
county.' The Grantee's failure to notify Grantor of such additional
payments does not limit Grantor's rights to such addi;ti.onal
payments nor lilnit Grantee' s liability with respect thereto
including interest can late payments outlined in Section 6 (C) .
(C) Payment shall be made to the Grantor for each month noi later
than the twentieth (20th) day of the following month. The monthly
payment shall be :made by wire transfer.. Any monthly payment or any
portion thereof received thirty 430) days or more after the die
date shall be subject to interest at the rate of 12% percent per
annum, or the maximum amount allowed by law, whichever is higher,
until all payments are paid in full.
SECTION 7 . AMLgival of %~r;kn f er.
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 t vaa,°t�a: _��x eb2X LYL .s� ::.ryL{ac3 fl�r
.a
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 terns of the
Franchise, and agreeing to perform all the conditions thereof.
5
SECTION 8. m-- tl
(A) .,_ Any material violation by the Gr t , it
vendee, lessee or successor of the provisions of this Franchise or
any material. porbons thereof, may cause the Franchise and all
rights hereunder to be 'terminated and/or p.-nal ti es to be iriposed in
accordance with the City of Clearwater Geode of Ordinances Section
. 3 . After written not-ice to Grantee of a 'violation and failure
by Grantee to rectify the violation within a real ana ale time,
Grantor may terminate the Franchise and/car 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 con ence
good faith effort to reat.i£y, such violation but unde-r no
circumstances shall be longer than thirty 30) days unless
violation is due to circumstances beyond Grantee' s control such as
an act of God.
(B) Penalties Fo Non® °ma e. In the event that certain
events occur, penalties from a mihirium of$50 to maximum 0; $1000
per occurrence ma,Y be imposed by the Grantor. . Listed below are
certain re wire ents which, if not net by Grantee, may cause
Grantee to be subject Ito 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 he feasibility, and compatibility of such
plans with the existing Telecommunications Facilities.
(2) Teleco ulrlieations 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 wring emergency
situations.
(4 ) Grantee shall obtain permits from Grantor prior to
the trimming and removal of trees.
Grantee shall obtain. Grantor ' s approval before
Grantee has displaced, damaged, or destroyed any sewer or
water main, storm water appurtenance, or Bather utility
belonging to Grantor.
(6) Grantee shall provide adequate custome-r service to
Granter in accordance with Florida Statute 364 . 0! and
Florida puJblic 6ervi.ca Commission Rules for service
6
standards. Penalties shall only apply to the extent
deemed a i, opriate by the Florida Public Service
Commission under its existing rules and regulations.
The Grantor shall enforce the foregoing roe isions with respect to
the assessment cf penalties in accordance with the Floriic11
Administrative Proce&are Act, Chapter 120 of the Florida Statutes
BEC-TION 9 . 9Txmtor, ,Riahts in Franchise.
(A) The right is hereby reserved to the Grantor to adopt, in
addition to the provisions herein contained and existing applicable
ordinances, such atdditi<onal regulations as it shall find necessary
in the exercise of its police power, provided that, such
regulations, by ordinance or otherwise, shall be reasonable, and
shall, not be in conflict with the laws of the State of �°lo�cida or
of the United. States or with the lawful regulations of any state or
federal agency possessing the power to regulate the activities of
the Grantee.
(B) The right is hereby reserved to the Grantor to order, in
accordance with all applicable tariff terms, Telecomrunicat ions
Services offered by Grantee with®n the Franchise Area, including
any video di altone services that inay be offered by Grantee and that
Grantor may wish to order for -municipal government programming.
Nothing herein shall be deemed to the contrary.
SECTION 10 des on e ,you
(A) Egg. Telecoirtmunicat ions 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 or reasonable convenience of
property owners who adjoin any of the said Rights-of-Way.
.
( oration . In case of any disturbance of surface, base or
landscape treatment of Rights-of-Way Way or damages to Grantor' s
structures and facilities caused by the Grantee' s operations and
activities, the Grantee shall, at its own oast and expense and in
a manner approved by the Grantor, replace and restore all :Riaht.s-
of-Way or Grantor'4 s :structures and facilities disturbed, in as good
or better condition as before said work was commenced and in
accordance with ic-:i.ty Codex However, should the Grantee iLail to
corm ence restoration after fifteen (1 5) days notice, in writing, to
said Grantee by the Grantor, the Grantor may mal, e such repair and
restoration and the cost of the same shall be paid by the Grantee.
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 agreenient.
Grantor will set parameters for street cuts and maintenance as
provided in the City Codes. Parameters will also be set for `L---ree
trimm ire. .,
(C) If at any time during the period of this Franchise-,
Grantor shall lawfully elect to alter, or change the grade of any
Rights-of-Way, or alter or move any structure or facility of
Grantor Grantee, upon reasonable notice by Grantor, shall review,
relay, and relocate its poles, wires, cables, underground conduit
and other Telecommunication Facilities at its own expense.
(D) Placement c- fjxtM_rea. 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
and 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 hereon.
UngjV_thg,-ej, L.,,,, t�t
9 Except in an Emergency,, any
conduits, cable.s or pole lines installed or placed without first
having obtained the permits; herein provided for shall be -moved
within thirty (310) days after receipt of written notice by Grantor
to remove the same. In default of compliance with such notUice, 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) muor ary RE ag ydj__Qf Wire e f or Building Mgyi-na. Grantee shall,
on the request of any person holding a building permit issued by
Grantor, temporarily raise or lower its wires to permit the moving
of buildings. 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 ir,
advance. Grantee shall be given notice of not less than forty-eight
(48) hours to arrange for such temporary wire changes.
-V- -M '1-,M eNg
(G) T-r-r—�e_.TrIMMiM. Grantee shall_ have the author-lit-N
upon and overhanging rights-of-Way of Grantor so as® 1:c pre�rent 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) Unde�r rurLd Facilities,. (1) All existing underground cable
shall. remain underground when repaired, replaced, extended or
la-paraded, when practical. Consistent with good eng.-Meering
practices and economic feasibility, future construction shall be
underground. Under grounding of utilities along the Rights-of-Way
8
that abut development Which utilize a large volume of utilitie's may,
w
or-cur in coordination with "existing deficiencies" classified by
Granl'-Ior.
(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, shall have consistent alignment parallel
with the edge of pavei,,,,ent, a thirty-six inch (3611) depth of cover
for the paved portion of roadways, a twenty-four inch (24") to
thirtv inch (3011) 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 aiDpurtenance.
The loteiest 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.
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
pub'lic; (iii) be in compliance with Section 10 (H) of this Franchise Ordinance, and be acceptable to the City' s Director of the
Department of Public Works. The goal of the plan shall be the
undergrounding of the Grantee' s aerial facilities consistent with
good engineering practices and economic feasibility within ten (10)
years from the effective date of this Ordinance. 1lhe Grantee shall
within ten (10) years of the effective date of this Franchise, have
over 90 percent of all the Telecommuni cat ions Facilities
underground.
(4) The Grantee shall provide the Grantor with records of its
undercrround installation, on as built field ties, (horizontal and
vertical) or on drawings provided by the Grantor within thirt: (3 0)
days of the Grantor' s request for such information.
(5) Grantor agrees to be a member of the one-call toll-free
telephone notification system prescribed pursuant 'to Chapter 556 of
the Florida Statutes (1993) ,
(I) :germ_its. 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. To the extent required by law, Grantee and
each of its sulb-Contractors, contractors, agents or authorized
representatives must be licensed to perform their service in the
9
Franchise Area.. 3T� me
antee assumes al responsibility for a,pp�.i.,cab e
permit(s) , their requirements and conditions, including
notification for inspection purposes, and conformance to Grantor
specifications. Grantee assumes responsil�ilit;y for licensing[ fees
and any fines or penalties resulting from the failure of Grantee,
its sub c ntraac,'t contractors, agents or authorized
representative': to comply with this section of the Franchise
agreement. To the extent allowed by law, all licensing fees are
applicable to Grantee.
( � wsrra ted. Grantor does not warrant any right,
title or interest of any Rights-of-'stay in existence or hereafter
acquired, used by, Grantee or as may be used by Grantee in the
future.
( Ut i. itv ,, . Upon Grantor' s; ,undertaking a utilities
project and submission of plains or drawings to Grantee for review
and comment, Grantee shall respond to Grantor no later than thirty
(30) days from the date of receipt of such plans to comment on the
feasibility and compatibility of such plans with the existing
Teleco unicatioi s Facie ities'.
pegti.gn. The Grantor shall have the right to inspect all
construction and installation work to insure compliance with
governing ordinances.
SECTION 11. V—P-J;,ai ge V nUO-
(.A) Grantee shall, at all times during the life of this Franchise,
be subject to all lawful exercise of the police power by Gir-a dt.or
and to such regulation as Grantor shall hereafter by resolution or
ordinance provide.
(B) The rights and privileges granted to Grantee by this Franchise
shall at all tines 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 rig]�t and power to use and relocate the use of its
Rights-of-Way.
(C) The Franchise and r i gh Is herein granted are subject- to the
provisions of the .Y..—i✓.iid' A"�.r+0.A.ii 581 �..GIW.e°w and 5...: `'a3
' of the State of
Florida and those hereafter enacted pertaining to the granting of
this Franchise and to the existing ordinances and provisions of the
Charter of Grantor and those hereafter enacted pertaining to the
granting of franchises.
(D) .. In tt;te event that any legal proceeding is brought to
enforce the terms of this franchise, the sane shall be brout ht in
Pinellas 4vounty, Florida.
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SECTION 12 .
(A) The Grantee shall indemnify and hold. the Grantor and its
officers, irecto,,ws; agents, servants, employees, successors, and
assigns harmless of and from any and all claimts for personal
injury, death, or property damage, any other .posses, damages,
charges or expenses, including attorneys fees, itness fees, cis urt'
costs and the reasonable value of any services rendered; by any
officer or employee of the Grantor, and any orders, j
$1, 000, 000 for all. other types of liability.
The Certificate of Insurance reflecting the above coverages and
limits of liability, with Grantor named as an additional ins�.Ared '
shall be filed with an-di approved by the city Commission, and such
proof of insurance shall be filed and maintained with the City
Clerk during the term of this F.anch se.
SECTION 13. B AM X1L1!' , it a
Should any section c, - provision of this Franchise Ordinance or any
portion thereof be i:L ;hared by a court of compete nt j uri5dic;L 0-11 L,o
be invalid,, such decision shal.1 not affect the validity y 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 to obtain a, replacement provision that is in compliance
1wiRth the judicial'; authority' s decision.
SECTION 14.
Sys andte�o
The following records and reports shall be filed with or available
to or from Grantor
(A) regulations. copies of such rules,.
regulations, terms and conditions adopted by Grantee that relate to
Grantee's; use of Grantor p s Ri.ght_of-tray, shall be available upon
request by Grantor.
(B) AhhqaJ Wiz . Grantee shall annually submit to Granter a copy
of its published Annual Report upon request by Gran tsar P
('c) AccQunL-a. she Grantee will attach to each pa rent a statement"
of its annual Recurring Local. Ser'vic.e Revenues by revenue ac-ountr
category for 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 shoe 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 froi.ra recovering anv deficit by any lawful prccepdi gig.
including interest: to be applied at a rate equal to that provided.
by � Alrute for 4: ".<.t� `s- -t
a a s a. :a a anaa J i tC.al 5la Il
(D) vai lability records K Grantee shall supply all accounts and
records of the Grantee and/or all such information that the Grantor
or its representatives may from time to time request or require.
Such financial records as are required under this agreement hereof
shall be kept and maintained in accordance with generally accepted
acc ou.ni:i.ng principles. A-11 of the said records shall , on written
request of Grantor,, be open for examination and audit by Grantor
12
and +Grantor ¢ s -E-bcternal Auditors and their staff during ordi nar)r
business hours, in the Glearnwater area Office of Grantee av,.`� such
records :shall be retained by Grantee for a minimum, of five (5)
years
In the event the Reports are not made available to Grantor at
Grantee's principal office in the City of Clearwater, Gra ntee shall
reimburse Grantor for the reasonable travel expense of Grantor'
representative ire �3uitin frc c� said re presentative' s tra vel to the
location �The e the reports are maintained.
ecor s an o - u 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 5%, or greater error on Grantee's part in failing to
report the franc;` i.se 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 e� any contingency fee arrangement bietween.
Grantor and any t1ird party ;auditor, that any such auditor shall
Beet 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 foregoiniig. In
the farther event.,, the audit identifies errors W,, hich 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 s'ZIZAA reimburse Grantee for said amount including
interest at the rate of 10% per annum. If such true-up results in
the Grantee underpaying its "tanc:hise fee, Grantee shall pay said
amount including interest at 10'% per annum.. Any underpayment or
overpayment as provided herein shall be paid within thirty (30)
slays after receipt of any demand or invoice from Grantor or
Grantee
") n rs x° _ Xistc 1l at on Egcor s m Grantee shall provide
Grantor with 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 request for such
information.
SECTION 15 .
Grantee shall maintain and operate its Telecommunications
Facilities and render efficient service in accordance with the
rules and regulations as are, or may be, set forth by the Public
Service GommissiC:n of the State of Florida.
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SECTION 16. Presence.
Grantee shall maintain a business office or autho.rized agents or*
locations within the City 'which shall be open during normal,
business hours for the purpose of accepting payment,s of telephone
bills and receiving customer inquiries.
SECTION 17. gZ,4jft&)r1s Authority.
(A) Nothing in this ordinance shall prevent GrantoAr from levying
and collecting any other taxes or f-ses as Grantor may from '16-ine- to
time be empowered, by law, to levy and collect. Such taxes and
fees are not considered part of the franchise fees.
(B) Grantee shal,l not be excused from complying with any of the
terms and conditions of this Franchise by any failure of the
Grantor, upon any one or more occasions, to require Granteel:s
performance or compliance with any one or more of such terms or
(C) Purcha-s-gz
In the event the City' shall
, seek to ,acquire the property rights of the utility as we'll as any
extensions thereof within ,and without the' City, used in or useful
in or connected with such utilitv and 'the extensions 'thereof, all.
grants or renewals sha-11 at once terminate in accordance with the
City of Clearwater Code of Ordinances Section 32 . 0-14 (2) . The
purchase price of said property will be determined by negotiation
between the parties. in the event the parties are unable to agree
-he value, the parties hereby agree to submit the matter, to an
. arbitration board of three members for determination. Each, party
shall have the richt to appoint one member and the two memblers so
appointed shall select the third member of the board. If either
party does not wish to abide by the f indings of the arbitration
board, in that event the parties may disregard the arbitration
findings and exercise any other legal rights they may have,
including condemnation proceedings.
SECTION 18. Ordinances in Conflict.
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 ordinance, 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 to obtain a new franchise that is in compliance with the
authority ' s declSion 0� enactment; and, unless explicitly
prohibited, the new franchise shall, provide Grantor with a level of
compensation carnparable to that set forth in this Franchise.
`
SECTION 19 . AC
Grantee shall signify its acceptance of the Franchise terms is
writing prior to City Commission' s approval of this Ordinance,,b
filing such itt:n acceptance with the City Clerk .
SECTION 20. A&t& ev' s -Feas 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 a reasonable amount of
attorney's fees and cut costs, including fees and costs on
appeal, rom t hd�`. scan-�pre�rall Ong �aar°ty.
SECTION 1. "a�
Except in exigent circumstances, all notices by either Grantor or
Grandee to the other ;shall be made by either depositing such notice
in the Unite. States Mail:, Certif ied Mail return receipt requested
or by facsimile. Any notice served by certified mail. return receipt
shall be deemed. delivered d f ive (S) ' 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
ssed
as follows:
To Grantors
Ms. Elizabeth De tula
City Manager
City of Clearwater
112 S. Osceola Avenue
Clearwater, Florida 34618--4748
To Grantees
Donald W. McLeod
VP-Regulatory & Governme ntal Affairs
Eastern Regions
GTE Florida Incorporated
P. 0. BOX 110
`LTC0006
Tampa, Florida 3:3601
Notice shall be given as required by this Franchise and for all
other Emergencies. Notice shall be provided to the above-named
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addressees unless directed otherwise in writing by Grantor or
Grantee.
SECTION %=VA r x2x��An
The failure of either party to insist in any one or more instance
upon the strict performance of any one or more of the 'terms or
rwiisions of ibis 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
relinquish ment sl,�.a]!Ll he deemed to have been nade by either ,party
unless` said waiver or: relinquishment is in writing and signed key
the parties
SZCTION 25.
This ordinance nail take.:. effect immediately upon adoption®
PASSED O F1IR a`l~ READING i rr y ?9 5
PASSED ON SECOND AND FINAL
June 15, 1995
Attest.,
tCyri�;ij- . doweau, City Clerk
Appr€ai/ed as to form and
legal sufficiency:
Pamela K. Akin, City Attorney
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