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City of Sebastian
1225 MAIN STRE_=T n SEBASTIAN, FLORIDA 32S58
TELEPHONE (561) 589-5330 ~ FAX (561) 589-£570
SEBASTIAN CITY COUNCIL
WORKSI~OP
AGENDA
WEDNESDAY, JULY 1, 1998 - 7:00 P.M.
CITY COUNCIL CHAMBERS
1225 MAIN STREET, SEBASTIAN, FLORIDA
No public input is allowed at a Workshop, unless approved by consensus of City Council at the beginning of the Workshop. Substantive
decisions may not be made at Workshops (in accordance with R-97-21).
1. CALL TO ORDER
2. PLEDGE OF ALLEGIANCE
3. ROLL CALL
4. WORKSHOP ITEMS
98.001 A.
Review Proposed Telecommunications Ordinance - Pages 1-55
Review Proposed Cable Franchise Agreement - Pages 1-9
5. ADJOURN
ANY PERSON WHO DECIDES TO APPEAL ANY DECiSION MADE BY THE CITY COUNCIL WITH RESPECT TO ANY MAT1ER CONSIDERED
AT THIS MEETING (OR HEARING) WILL NEED A RECORD OF THE PROCEEDINGS AND MAY NEED TO ENSURE THAT A VERBAT~
RECORD OF THE PROCEEDINGS IS MADE, WHICH RECORD INCLUDES THE TEST13dONY AND EVIDENCE UPON WHICH THE APPEAL
IS TO BE HEARD. (286.0105F. S.)
IN COMPLIAb,~E WITH THE AMERiCANS WITH DISABILITIES ACT (ADA), ANYONE'WHO NEEDS A SPECIAL ACCOMMODATION FOR
THIS MEETING SHOULD CONTACT THE CITY'S ADA COORDINATOR A T 589-5330 AT LEMST 48 HOURS IN ADVANCE OF THIS MEETING.
Hearing Assistance Headphones are Available in Council Chambers for all Government Meetings.
Upcoming Meetings
Regular Meeting - Wednesday, July 8, 1998 ~ 7pm
Special Meeting (QuasO - Wednesday, July 15, 1998 ~ 7pm
Workshop (Code Enforcemen0 - Wednesday, July 15, 1998following special meeting
Budget Ve'orkshop - Tuesday, July 21, 1998 ~, 7pm
Regular Meeting - Wednesday, July 22, 1998 ~ 7pm
Budget Workshop (if needed) - Thursday, July 23, 1998 ~. 7pm
Public Forum - Wednesday., July 29, 1998 ~ 7pm
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December 11, 1997
Latest Revision: May 1, 1998
ORDINANCE NO. 0-98-
AN ORDINANCE OF THE CITY COt/NCIL OF THE CITY OF
SEBASTIAN, FLORIDA, CREATING A NEW CHAPTER OF THE CITY OF
SEBASTIAN CODE OF ORDINANCES ENTITLED "TELECOMMUNICATIONS
ORDINANCE"; ESTABLISHING A LOCAL POLICY CONCERNING
TELECOMMUNICATIONS PROVIDERS AND SERVICES; ESTABLISHING
GUIDELINES, STANDARDS AND TIME FRAMES; PROVIDING FOR
DEFINITIONS; PROVIDING BUSINESS LICENSE REQUIREMENTS FOR
TELECOMMUNICATIONS CARRIERS AND PROVIDERS; PROVIDING
REQUIREMENT OF TELECOMMUNICATIONS RIGHTS-OF-WAY USE
PERMIT; PROVIDING REQUIREMENTS FOR TELECOMMUNICATIONS
FRANCHISE; PROVIDING REQUIREMENTS FOR CABLE TELEVISION
FRANCHISE; PROVIDING FOR FEES AND COMPENSATION; PROVIDING
CONDITIONS OF GRANT; PROVIDING CONSTRUCTION STANDARDS;
PROVIDING FOR REPEAL OF INCONSISTENT PROVISIONS;
PROVIDING FOR SEVERABILITY; PROVIDING FOR AN EFFECTIVE
DATE.
WHERF~a~, the City Council of the City of Sebastian, Florida
("City"), finds that it is in the best interest of its citizens to
establish a local policy concerning telecommunications providers
and services; and
WHEREAS, the City Council desires to establish clear local
guidelines, standards and time frames for the exercise of local
authority with respect to the regulation of telecommunications
providers and services
telecommunications; and
and to promote competition in
WHEREAS, the City Council desires to permit and manage
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reasonable access to the public ways of the City for
telecommunications purposes on a competitively neutral basis, while
conserving the limited physical capacity of the public ways held in
public trust by the City; and
WHEREA~, the City Council finds that it is in the best
interest of its citizens to assure that the City's cu=rent and
ongoing costs of granting and regulating private access to and use
of the public ways are fully paid by the persons seeking such
access and causing such costs; and
WHEREAS, the City Council desires to obtain fair and
reasonable compensation to the City and the residents of the City
for permitting private use of the public ways; and
WHEREAS, the City Council desires assurance that' all
telecommunications carriers providing facilities or services within
the City comply with the ordinances, rules and regulations of the
City; and
WHEREAS, the City Council desires to ena~_e the City to
discharge its public trust consistent with rapidly evolving federal
and state regulatory policies, industry competition and
technological development;
NOW, THEREFORE, BE IT ORDAINED BY City Council of the City of
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Sebastian, Florida, as follows:
Section 1: A new Chapter 32 the Code
"Telecommunications Act" is hereby created as follows:
entitled
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ARTICLE I. In General
Sec.32-1. Definitions.
For the purpose of this Act, and the interpretation and
enforcement thereof, the following words and phrases shall
have the following meanings, unless the context of the
sentence in which they are used shall indicate otherwise:
"Access channels" means channels set aside by a
franchisee exclusively for noncommercial public,
educational, or governmental use (commonly referred to as
"PEG" channels.).
"Addressability" means the ability of a system allowing
a franchisee to authorize specific equipment to receive,
change or to cancel any or all specified programming.
"Affiliate" means a person that (directly or indirectly)"
owns or controls, is owned or controlled by, or is under
common ownership or control with another person.
"Annual gross revenue"
"Basic cable service~ means the lowest level of service
regularly provided to all subscribers that includes the
retransmission of local broadcast signals."Cable Act''-7
shall mean the Cable Communications Policy Act of 1984,
47 U.S.C. Section 532, et. seq., as now and hereinafter
amended, including the Telecommunications Act of 1996.
"Cable facilities" means equipment and wiring used to
transmit audio and video signals to subscribers.
"Cable operator" means a telecommunications carrier
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providing or offering to provide "cable service" within
the City as that term is defined in the Cable Act.
"Cable service" for the purpose of this Chapter shall
have the same meaning provided by the Cable Act.
"City" means the City of Sebastian.
"City property" means and includes all real property
owned by the City, other than public streets and utility
easements as those terms are defined herein, and all
property held in a proprietary capacity by the City,
which are not subject to right-of-way licensing and
franchising as provided in this Chapter.
"Corporate Authorities" means the City Council of the
City of Sebastian.
"Data communication" means (1) the transmission ofencoded
information or (2) the transmission of data from one point to
another.
"Dwelling units" means residential living facilities as
distinguished from temporary lodging facilities such as
hospitals,hotel and motel rooms and dormitories, and includes
single family residential units and individual apartments,
condominium units, mobile homes,extended care facilities and
other multiple family residential units.
"EmergencyN means a condition of imminent danger to the
health, safety, and welfare of propertyof persons locaated
within the City including, without limitation, damage to
person or propert~'from natural consequences, such as storms,
earthquakes, riots or wars.
"Excess capacity" means the volume or capacity in any
existing or future duct, conduit, manhole, handhole or
other utility facility within the public way that is or
will be available for use for additional
telecommunications facilities.
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"FCC" or "Federal Communications Commission" means the
Federal administrative agency or lawful successor,
authorized to regulate and oversee telecommunications
carriers, services and providers on a national level.
"Fiber Optics" means the technology of guiding and projecting
light for use as a communications medium.
"Franchise~ shall mean the initial authorizatio, orrenewal
thereof, issued by the franchising authority, whether such
authorization is designated as a franchise, permit, Ordinance,
resolution, contract, certificate or otherwise, which
authorizes construction and operation of the cable system for p~.~R.
.--~Fe purpose of offering cable service or other service to
subscribers.
"Franchisee" meansthe person, firm orcorporation to whom or
which a franchise, as herein above defined, is granted bythe
Council under this Chapter andthelawful successor, transferee
or assignee of said person, firm or corporation subject to such
conditions as may be defined in this Chapter.
"Florida Public Service Commission" means the State
administrative agency, or lawful successor, authorized to
regulate and oversee telecommunications carriers,'
services and providers in the State of Florida.
"Gross revenues# means any and all revenues (as that term is
defined by generally accepted accounting principles)received
directly or indirectly from all sources which arise out of or
are derived from the operation of a franchisee's cable system
in the City. When the revenue, of the franchisee includes
gross revenues from sources outside of the City, a franchiuae
shall prorate the gross revenues among its sources by
multiplying such gross revenues by a fraction, the numerator
of which is the number of franchisee's subscribers in the City
and the denominator of which is the total number of all a
franchisee's subscribers. "Gross revenues" shall not include
the following:
"Headend" means the electronic equipment located at the start
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of a cable system, usually including antennas, preamplifiers,
frequency converter, demodulators and related equipment.
"Installation~ means the connection of the cable system from
feeder cable to subscibers~ receivers.
~Institutional networks (I-Nets)" means that portion of a
cable system which is designated principally for the
provisionof non- entertainment services to public school, or
public agencies such as public libraries separate and distinct
from the subscriber network, or on secured channels of the
subscriber network.
"Office~ means the person or entity designated by the City
asbeing responsibile for the administration of a franchise
for the City.
"OperatorM means the person, firm or corporation to whom a
franchise is granted pursuant tothe provisions of this
Chapter.
"Other ways" means the highways, streets, alleys, utility
easements or other rights-of-way within the City, but
under the jurisdiction and control of a government entity
other than the City.
"Overhead facilities" means utility poles, utility
facilities and telecommunications facilities located
above the surface of the ground, including the
underground supports and foundations for such facilities.
"Person" means and includes corporations, companies,
associations, joint stock companies or associations,
firms, partnerships, limited liability companies and
individuals and includes their lessors, trustees and
receivers.
"Premium services~ means video programming offered on a pay-
per-channel or pay-per-prgorambasis
"Proposal" means the response, by an individual or
organization, to a request by the City regarding the provision
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of cable services; or an unsolicited plan submitted by an
individual or organization seeking aprovide cable services in
the City.
"Subscriber# means a person or entity or user of the cable
system who lawfully receives cable services or toher
servicetherefrom with franchisee's express permission.
"Public street" means any highway, street, alley or other
public right of way for motor vehicle travel under the
jurisdiction and control of the City which has been
acquired, established, dedicated or devoted to highway
purposes not inconsistent with telecommunications
facilities.
"Public way" means and includes all public streets and
utility easements, as those terms are defined herein, now
or hereafter owned by the City, but only to the extent of
the City's right, title, interest or authority to grant
a license or franchise to occupy and use such streets and
easements for telecommunications facilities.
"State" means the State of Florida.
"Surplus space" means that portion of the usable space on
a utility pole which has the necessary clearance from
other pole users, as required by the orders and
regulations of the Florida Public Service Commission, to
allow its use by a telecommunications carrier for a pole
attachment.
"Telecommunications carrier" means and includes every
person that directly oL indirectly owns, controls,
operates or manages plant, equipment or property within
the City, used or to be used for the purpose of offering
telecommunications service.
"Telecommunications facilities" means the plant,
equipment and property, including but not limited to,
cables, wires, conduits, ducts, pedestals, antennae,
electronics and other appurtenances used or to be used to
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transmit, receive, distribute,
telecommunications services.
provide or offer
"Telecommunications provider" means and includes every
person who provides telecommunications service over
telecommunications facilities without any ownership or
management control of the facilities.
"Telecommunications service" means the providing or
~offering for rent, sale or lease, or in exchange for
other value received, of the transmittal of voice, data,
image, graphic and video programming information between
or among points by wire, cable, fiber optics, laser,
microwave, radio, satellite or similar facilities, with
or without benefit of any closed transmission medium.
"Underground facilities" means utility and
telecommunications facilities located under the surface
of the ground, excluding the underground foundations or
supports for Overhead Facilities.
"Usable space" means the total distance between the top
of a utility pole and the lowest possible attachment
point that provides the minimum allowable vertical
clearance as specified in the orders and regulations of'
the Florida Public Service Commission.
"Utility easement" means any easement owned by the City
and acquired, established, dedicated or devoted for
public utility purposes not inconsistent with
telecommunications facilities.
"Utility facilities" means the pla~t, equipment and
property, including but not limited to the poles, pipes,
mains, conduits, ducts, cables, wires, plant and
equipment located under, on or above the surface of the
ground within the public ways of the City and used to be
used for the purpose of providing utility or
telecommunications services.
Sec. 32-2 Busines~ License Requirgd.
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Except as otherwise provided herein, all telecommunications
carriers and providers engaged in the business of transmitting,
supplying or furnishing of telecommunications originating or
terminating in the City shall obtain a business license with the
City pursuant to Article II of this Chapter.
SeC. ~2-3 Telpcomm~nications Rigk~-o~-way use Permit
Except as otherwise provided herein, any telecommunications
carriers who desire to construct, install, operate, maintain, or
otherwise locate telecommunications facilities in, under, over or
across any public way of the City for the sole purpose of_providing
telecommunications service to persons and areas outside the City
shall first obtain a right-of-way use permit granting the use of
such public ways from the City pursuant to Article III of this
Chapter.
Sec. 32-4 Telecommunications Franchise R~quired.
Except as otherwise provided herein, any telecommunications
carriers who desire to construct, install, operate, maintain or
otherwise locate telecommunications facilities in, under, over or
across any public way of the City, and to also provide
telecommunications service to persons or areas in the City, shall
first obtain a franchise granting the use of such public ways from
the City pursuant to Article IV of this Chapter.
S~c. 32-5 Cable Television Franchise Rpquired.
Except as otherwise provided herein, any telecommunications
carriers who desire to construct, install, operate, maintain or
otherwise locate cable television facilities in, under, over or
across any public way of the City, for the purpose of providing
cable television service to persons or areas in the City, shall
first obtain a cable franchise granting the use of such public ways
from the City pursuant to Article V of ~
this Chapter.
Sec. 32-6 Facilities Lease Requ_ired~
No telecommunications carrier or other entity who desires to locate
telecommunications or other equipment on City property shall locate
such facilities or equipment on City property unless granted a
Facilities Lease from the City. The City Council reserves unto
itself the sole discretion to lease City property for
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telecommunications and other facilities, and no vested or other
right shall be created by this Section or any provision of this
Chapter applicable to such Facilities Leases.
~ection 32-7_Constr~ction Permits Required~
Except as otherwise provided herein, the holder of a permit or
franchise.granted pursuant to this Chapter shall, in addition to
said permit or franchise, be required to obtain a Construction
permit from the City pursuant to Article VII of this Chapter. No
work, construction, development, excavation, or installation of any
equipment or facilities shall take place within the public ways
until such time as the Construction permit is issued.
Sec,_ 32-8 Application to ~xistin~ Franchise 0rdin~nces and
AgreemeDts~
This Chapter shall have no effect on any existing franchise
ordinance or franchise agreement until the expiration of said
franchise ordinance or agreement or an amendment to an unexpired
franchise ordinance or franchise agreement, unless both parties
agree to defer full compliance to a specific date not later than
the present expiration date.
Sec. 32-9 PenaltiesL
Any person and the officers, directors, managing agents., or
partners of any corporation, firm, partnership or other
organization or business found guilty of violating, disobeying,
omitting, neglecting or refusing to comply with any of the
provisions of this Chapter shall be subject to a cumulative penalty
of not less than One Hundred Dollars ($100.00) or more than
Hundred Dollars ($ ) per day for each violation from the date
set for compliance until compliance with the order is achieved. In
addition to any penalty which may be imposed by the City, and
person ~'iolating or failing to comply with any of the ~ovisions of
this Chapter shall be liable for all damage to public or private
property arising from such violation, including the cost of
restoring the affected area to its condition prior to the
violation. The penalty imposed by this section shall be collected
by civil action brought in the name of the City. The City Manager
shall notify the City Attorney in writing of the name of any person
subject to the penalty, and the City Attorney shall, with the
assistance of the City Manager, take appropriate action to collect
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the penalty.
Article II. Re~istrat~Qn of TelecQmm%!Dications
Sec, ~2-%0 ~usiness Licens9 Required:
The purpose of telecommunications business licensing is to provide
the City with accurate and current information concerning the cable
operators and telecommunications carriers and providers who offer
or provide services within the City, or that own or operate
facilities within the City; to assist the City in enforcement of
this Chapter; and to assist the City in the collection and
enforcement of any municipal laws. All telecommunications carriers
and providers that offer or provide any telecommunications service
for a fee directly to the public, either within the City, or
outside the City limit from telecommunications facilities within
the City, shall apply for and obtain a business license with the
City pursuant to this Article on forms to be provided by the City
Clerk, which shall include the following:
(a)
The identity and legal status of the registrant,
including any affiliates.
(b)
The name, address and telephone number of the officer,
agent or employee responsible for the accuracy of the
registration statement.
(c)
A description of registrant's existing or proposed
telecommunications facilities within the City.
(d)
A description of the telecommunications service that the
registrant intends to offer or provide, or is currently
offering or providing, to persons, firms, businesses or
institutions within the City.
(e)
Information sufficient to determine that the applicant
has applied for and received any construction permit,
operating license or other approvals required by the
Federal Communications Commission or the State of
Florida to provide telecommunications services or
facilities within the City.
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(f)
Such other information as the City may reasonably
require.
Sec~%Qn 32-1~: Registrmtion Fee:
Each application for registration as a telecommunications
carrier or provider shall be accompanied by an application fee
which shall be set by the City Council by resolution.
~%rticle III: Telecommu_nica_~gns Right of Way Us~ Permits
$ec.32-12~ ~91ecommunications R~ght of Way Use Permit:
A telecommunications right of way use permit shall be required of
any telecommunications carrier who desires to occupy specific
public ways of the City for the sole purpose of providing
telecommunications services to persons or areas outside of the
City.
$~c. 32-15: Tel~gg~m~nications Right ~$ Way Use Pern~
Application:
Any person that desires a telecommunications right of way use
permit pursuant to this Article III shall file an application with
the City which shall include the following information:
(a)
The identity of the license applicant, including all
affiliates of the applicant.
(b)
A description of the telecommunications services that
are or will be offered or provided by licensee over its
Telecommunications facilities.
(c)
(d)
A description of the transmission medium that will be
used by the licensee of offer or provide such
telecommun'cations services.
Preliminary engineering plans, specifications and a
network map to the facilities to be located within the
City, all in sufficient detail to identify:
The location and route requested for applicant's
proposed telecommunications facilities.
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or affecting such ways or property.
Section 32-98: Facilities M~ps:
Each license or franchise grantee shall provide the City with an
accurate map or maps certifying the location of all
telecommunications facilities within the public ways. Each grantee
shall provide updated maps annually.
~gction 32-99: Duty tQ Provide Information:
Within ten (10) days of a written request from the City Manager,
each license or franchise grantee shall furnish the City with
information sufficient to demonstrate:
(a) That grantee has complied with all requirements of this
Act.
(b)
That all municipal sales, message and/or
telecommunications taxes due the City in connection with
the telecommunications services and facilities provided
by the grantee have been properly collected and paid by
the grantee.
(c) A~i books, records, maps and other documents, maintained
by the grantee with respect to its facilities within the
public ways shall be made available for inspection by the
City at reasonable times and intervals.
$ection ~-100: Leased Capaoityt
A license or franchise grantee shall have the right, without prior
City approval, to offer or provide capacity or bandwidth to its
customers; provided:
(a) Grantee shall furnish the City with a copy of a such
lease or agreement.
The customer or lessee has complied, to the extent
applicable, with the requirements of this Act.
Section 3~-~01: Grmntee insurance:
Unless otherwise provided in a license or franchise agreement, each
grantee shall, as a condition of the grant, secure and maintain the
following liability insurance policies insuring both the grantee
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and the City, and its elected and appointed officers, officials,
agents and employees as coinsureds:
(a) Comprehensive general liability insurance with limits not
less than
(1) Five Million Dollars ($5,000,000) for bodily
injury or death to each person;
(2)
(3)
Five Million Dollars ($5,000,000) for property
damage resultinq from any one accident; and,
Five Million Dollars ($5,000,000) for all
other types of liability.
(b)
Automobile liability for owned, non - owned and hired
vehicles with a limit of Three Million Dollars
($3,000,000) for each person and Three Million Dollars
($3,000,000) for each accident.
(c) Worker's compensation within statutory limits and
employer's liability insurance with limits of not less
than One Million Dollars ($1,000,000).
(d)
Comprehensive form premises-operations, explosions and
collapse hazard, underground hazard and products
completed hazard with limits of not less than Three
Million Dollars ($3,000,000).
(e)
The liability insurance policies required by this section
shall be maintained by the grantee throughout the term of
the telecommunications license or franchise, and such
other period of time during which the grantee is
operations without a franchise or license here under, or
of its telecommunications facilities. Each such insurance
policy shall contain the following endorsement:
"It is hereby understood and agreed that this policy may not be
canceled nor the intention not to renew be stated until ninty (90)
days after receipt by the City, by registered mail, of a written
notice addressed to the City Manager of such intent to cancel or
not to renew."
(f) Within sixty (60) days after receipt by the City of said
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notice, and in no event later than thirty (30) days prior
to said cancellation, the grantee shall obtain and
furnish to the City replacement insurance policies
meeting the requirements of this Section.
Section 32-102: General indemnification:
Each license or franchise agreement shall include, to the extent
permitted by law, grantee's express undertaking to defend,
indemnify and hold the City and its officers, employees, agents and
representatives harmless from and against any and all damages,
losses and expenses, including reasonable attorney's fees and costs
of suit or defense, arising out of, resulting from or alleged to
arise out of or result from the negligent, careless or wrongful
acts, omissions, failures to act or misconduct of the grantee or
its affiliates, officers, employees, agents, contractors or
subcontractors in the construction, operation, maintenance, repair
or removal of its telecommunications facilities, and in providing
or offering telecommunications services over the facilities or
network, whether such acts or omissions are authorized, allowed or
prohibited by this Chapter or by a grant agreement made or entered
into pursuant to this Chapter.
Section 32-103: Performance and Cans~ruction Surety:
Before a license or franchise granted pursuant to this Chapter is
effective, and as necessary thereafter, the grantee shall provide
and deposit such monies, bonds, letters of credit or other
instruments in form and substance acceptable to the City as may be
required by this Chapter or by an applicable license or franchise
agreement.
SectiQn 32-104: Securit~y Fund:
Each grantee shall establish a permanent security fund with the
City by depositing the amoun2 of fifty thousand dollars ($50,000)
with the City in cash, an unconditional letter of credit, or other
instrument acceptable to the City, which fund shall be maintained
at the sole expense of grantee so long as any of grantee's
telecommunications facilities are located within the public ways of
the City.
(a)
The fund shall serve as security for the full and
complete performance of this Chapter, including any
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(b)
costs, expenses, damages or loss the City pays or incurs
because of any failure attributable to the grantee to
comply with the codes, ordinances, rule, regulations or
permits of the City.
Before any sums are withdrawn from the security fund, the
City shall give written notice to the grantee:
(1)
describing the act, default or failure to be
remedied, or the damages, cost or expenses
which the City has incurred by reason of
grantee's act or default;
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(2)
providing a reasonable opportunity for grantee
to first remedy the existing or ongoing
default or failure, if applicable;
(3)
providing a reasonable opportunity for grantee
to pay any monies due the City before the City
withdraws the amount thereof from the security
fund, if applicable;
(4)
that the grantee will be given an opportunity
to review the act, default or failure
described in the notice with the City Manager
or his designee.
(c) Grantees shall replenish the security fund within
fourteen (14) days after written notice from the City
that there is a deficiency in the amount of the fund.
Section 32-105: Construction and Completion Bond:
Unless otherwise provided in a license or franchise agreement, a
performance bond written by a corporate surety acceptable to the
City equal to at least 100% of the estimated cost of constructing
grantee's telecommunications facilities within the public ways of
the City shall be deposited before construction is commenced.
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(a)
The construction bond shall remain in force until sixty
(60) days after substantial completion of the work, as
determined by the City Engineer, including restoration of
public ways and other property affected by the
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construction.
(b)
The construction bond shall guarantee, to the
satisfaction of the City:
(1) timely completion of construction;
(2)
construction in compliance with applicable plans,
permits~ technical codes and standards;
(3)
proper location of the facilities as specified by
the City;
(4)
restoration of the public ways and other property
affected by the construction;
(5)
the submission of "as -built" drawings after
completion of the work as required by this Act.
(6) timely payment and satisfaction of all claims,
demands or liens for labor, material or services provided
in connection with the work.
Section 32-106: ~oordinatiQn of Construction Ac%ivities:
All grantees are required to cooperate with the City and with. each
other.
(a)
By February 1 of each year, grantees shall provide the
City with a schedule of their proposed construction
activities in, and around or that may affect the public
ways.
(b)
Each grantee Shall meet with the City, other graPtees and
users of the public ways annually or as determined by the
City to schedule and coordinate construction in the
public ways.
(c) Ail construction locations, activities and schedules
shall be coordinated, as ordered by the City Engineer, to
minimize public inconvenience, disruption or damages.
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Section 32-107: Assiqnments or Transfers of Grant:
Ownership or control of a telecommunications system, license or
franchise may not, directly or indirectly, be transferred, assigned
or disposed of by sale, lease, merger, consolidation or other act
of the grantee, by operation of law or otherwise, without the prior
consent of the City, which consent shall not be unreasonably
withheld or delayed, as expressed by ordinance and then only on
such reasOnable conditions as may be prescribed therein.
(a)
No grant shall be assigned or transferred in any manner
within twelve (12) months after the initial grant of the
license or franchise, unless otherwise provided in a
license or franchise agreement.
(b)
Absent extraordinary and unforeseeable circumstances, no
grant, system or integral part of a system shall be
assigned or transferred before construction of the
telecommunications system has been completed.
(c) Grantee and the proposed assignee or transferee of the
grant or system shall provide and certify the following
information to the City not less than one hundred and
fifty (150) days prior to the proposed date of transfer.
Complete information setting forth the nature,-terms
and condition of the proposed transfer or
assignment;
(2)
(3)
Ail information required of a telecommunications
license or franchise applicant pursuant Articles III
or IV of this Act with respect to the proposed
transferee or assignee;
Any other information reasonably required by the
City Council.
(d)
Unless otherwise provided in a license or franchise
agreement, the grantee shall reimburse the City for all
direct and indirect fees, costs, and expenses reasonably
incurred by the City in considering a request to transfer
or assign a telecommunications license or franchise.
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(e)
Any transfer or assignment of a telecommunications grant,
system or integral part of a system without prior
approval of the City under this Section or pursuant to a
license or franchise agreement shall be void and is cause
for revocation of the grant.
Section 32-108: Trans~ction is Affecting Contt~% of Grant:
Any transactions which singularly or collectively result in a
change of ten percent (10%) or more of the ownership or working
control of the grantee, of the ownership or working control of
telecommunications license or franchise, of the ownership or
working control of affiliated entities having ownership or working
control of the grantee or of a telecommunications system, or of
control of the capacity or bandwidth of grantee's
telecommunications system, facilities, or substantial parts
thereof, shall be considered an assignment or transfer requiring
City approval pursuant to Section 32-74 hereof. Transactions
between affiliated entities are not exempt from City approval.
Section 32-109: R~vocation or Termination of Grant:
A license or franchise granted by the City to use or occupy public
ways of the City may be revoked for the following reasons:
(a)
Construction or operation in the City or in the public
ways of the City without a license or franchise grant of
authorization.
(b) Construction or operation at any unauthorized location.
(c) Unauthorized substantial transfer of control of the
grantee.
(d)
Unauthorized assignment of a license or franchise.
(e)
Unauthorized sale, assignment or transfer of grantee's
franchise or license assets, or a substantial interest
therein.
(f)
Misrepresentation or lack of candor by or on behalf of a
grantee in any application to the City.
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(g)
Abandonment of telecommunications facilities in the
public ways.
(h)
Failure to relocate or remove facilities as required by
this Act.
(±)
Failure to pay taxes, compensation, fees or costs when
and as due the City.
(j) Insolvency or bankruptcy of the grantee.
(k) Violation of material provisions of this Act.
(1)
Violation of the material terms of a license or franchise
agreement.
~ection 32-110: Notice and Duty to Cure:,
In the event that the City Manager believes that grounds exist for
revocation of a license or franchise, he shall give the grantee
written notice of the apparent violation or noncompliance,
providing a short and concise statement of the nature and general
facts of the violation or noncompliance, and providing the grantee
a reasonable period of time not exceeding thirty (30) days to
furnish evidence:
(a)
That corrective action has been, or is being actively and
expeditiously pursued, to remedy the violation or
noncompliance.
(b) That rebuts the alleged violation or noncompliance.
(c) That it would be in the public interest to impose some
penalty or sanc~ion less than revocation.
~ection 32-~11: Hearin~i
In the event that a grantee fails to provide evidence reasonably
satisfactory to the City Manager as provided in Section 32-87
hereof, the Manager shall refer the apparent violation or non-
compliance to the City Council. The City Council shall provide the
grantee with notice and a reasonable opportunity to be heard
concerning the matter.
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Sgction 32r112: ~and~rds for RevocRtion or Lesser Sanctions: If
persuaded that the grantee has violated or failed to comply with
material provisions of this Title, or of a franchise or license
agreement, the City Council shall determine whether to revoke the
license or franchise, or to establish some lesser sanction and
cure, considering the nature, circumstances, extent and gravity of
the violation as reflected by one or more of the following factors:
(a) Whether the misconduct was egregious.
(b) Whether substantial harm resulted.
(c) Whether the violation was intehtional.
(d)
Whether there is a history of prior violations of the
same or the requirements.
(e) Whether there is a history of overall compliance.
(f)
Whether the violation was voluntarily disclosed, achnitted
or cured.
Article VIII: Construction %tandard~
SectiQn 32-113: Gener%l:
No person shall commence or continue with the construction,
installation, or operation of telecommunications facilities within
the City except as provided in this Article.
~ectiQn 32-~14: Construction Codes~
Telecommunications facilities shall be constructed, installed,
operated and maintained in accordance with all applicable federal,
state and local codes, rules and regulations including the National
Electrical Safety Code.
S~ct%on 32-115: Construction Per~kits:
No person shall construct or install any telecommunications
facilities within the City without first obtaining a construction
permit therefor, provided, however.
(a) No permit shall be issued for the construction or
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installation of telecommunications facilities within the
City unless the telecommunications carrier has filed a
registration statement with the City pursuant to Article
II of this Chapter.
(b)
No permit shall be issued for the construction or
installation of telecommunications facilities in the
public ways unless the telecommunications carrier has
applied for and received a license or franchise pursuant
to Articles III, IV or V of this Chapter.
(c) No permit shall be issued for the construction or
installation of telecommunications facilities without
payment of the construction permit fee established in
Section 32-59 of this Chapter.
Section 35-116: Applica$ion~:
Applications for permits to construct telecommunications facilities
shall be submitted upon forms to be provided by the City and shall
be accompanied by drawings, plans and specifications in sufficient
detail to demonstrate:
(a)
That the facilities will be constructed in accordance
with all applicable codes, rules and regulations.
(b)
The location and route of all facilities to be installed
on existing utility poles.
(c) The location and route of all facilities to be located
under the surface of the ground, including the line and
grade proposed for the burial at all points along the
route which are within the public ways.
(d)
The location of all existing underground utilities,
conduits, ducts, pipes, mains and installations which are
within the public ways along the underground route
proposed by the applicant.
(e)
The location of all other facilities to be constructed
within the City, but not within the public ways.
(f) The construction methods to be employed for protection of
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existing structures, fixtures, and facilities within or
adjacent to the public ways.
The location, dimension and types of all trees within or
adjacent to the public ways along the route proposedby
the applicant, together with a landscape plan for
protecting, trimming, removing, replacing and restoring
any trees or areas to be disturbed during construction.
Section 32-117: Engineer's Cert~ficationL
Ail permit applications shall be accompanied by the certification
of a registered professional engineer that the drawings, plans and
specifications submitted with the application comply with
applicable technical codes, rules and regulations.
Sect&on 32.118: Traffic Control Plan:
Ail permit applications which involve work on, in, under, across or
along any public ways shall be accompanied by a traffic control
plan demonstrating the protective measures and devices that will be
employed, consistent with Uniform Manual of Traffic Control
Devices, to prevent injury or damage to persons or property and to
minimize disruptions to efficient pedestrian and vehicular traffic.
Section 324119: Issuance o~ Permit:
Within forty-five (45) days after submission of all plans and
documents required of the applicant and payment of the permit fees
required by this Chapter, the City Engineer, if satisfied that the
applications, plans and document comply with all requirements of
this Act, shall issue a permit authorizing construction of the
facilities, subject to such further conditions, restrictions or
regulations affecting the time, place and manner of performing the
work as the engineer may deem necessary or appropriate.
Section 32,120: Cons%ruction Schedule:
The permittee shall submit a written construction schedule to the
City Engineer ten (10) working days before commencing any work in
or about the public ways. The permittee shall further notify the
City Engineer not less than two (2) working days in advance of any
excavation or work in the public ways.
~ection 32.121: Compliance with Permit:
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Ail construction practices and activities shall be in accordance
with the permit and approved final plans and specifications for the
facilities. The City Engineer and City representatives shall be
provided access to the work and such further information as he or
she may require to ensure compliance with such requirements.
SectiQD .32.~22: Display of Pgrmit:
The permittee shall maintain a copy of the construction permit and
approved plans at the construction site, which shall be displayed
and made available for inspection by the City Engineer or the City
Engineer's representatives at all times when construction work is
occurring.
S~ct%on 32,123: ~urvey of UndergrQon~ F~cilities:
If the construction permit specifies the location of facilities by
depth, line, grade, proximity to other facilities or other
standard, the permittee shall cause the location of such facilities
to be verified by a professional Florida land surveyor. The
permittee shall relocate any facilities which are not located in
compliance with permit requirements.
Sect~gD 32.~24: No~c~mplyinN Work;
Upon order of the City Engineer, all work which does not comply
with the permit, the approved plans and specifications for the
work, or the requirements of this Title, shall be removed.
Section 32,L25: Comp3etion of Construction;
The permittee shall promptly complete all construction activities
so as to minimize disruption of the City ways and other public and
private property. Ail construction work authorized by a permit
within City ways, including restoration, must be completed within
one hundred-twenty (120) days of the date of issuance.
~ectiQn ~2.%26 As-Bu%lt Drawings:
Within sixty (60) days after completion of construction, the
permittee shall furnish the City with two (2) complete sets of
plans, drawn to scale and certified to the City as accurately
depicting the location of all telecommunications facilities
constructed pursuant to the permit.
SeGt~on 32.127: R~storatiQn of Improvements:
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Upon completion of any construction work, the permittee shall
promptly repair any and all public and provide property
improvements, fixtures, structures and facilities in the public
ways or otherwise damaged during the course of construction,
restoring the same as nearly as practicable to its condition before
the start of construction.
Section 32-128: L~ndscape R~sto~ation:
(a) Ail trees, landscaping and grounds removed, damaged or
disturbed as a result of the construction, installation
maintenance, repair or replacement of telecommunications
facilities, whether such work is done pursuant to a
franchise, license, permit replaced or restored as nearly
as may be practicable, to the condition existing prior to
performance of work.
(b)
All restoration work within the public ways shall be done
in accordance with landscape plans approved by the City
Engineer.
Section 32-129: CQnstruction Surgty;
Prior to issuance of a construction permit, the permittee shall
provide a performance bond, as provided in Section 7.21 of this
Title.
Sectio~ 32-130: Exceptions:
Unless otherwise provided in a license or franchise agreement, all
telecommunications carriers are subject to the requirements of this
Article VIII.
Section ~2-131: Responsibility of. Owner:
The owner of the facilities to be constructed .and, if different,
the license or franchise grantee, are responsible for performance
of and compliance with all provisions of this Article.
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FRANCHISE AGREEMENT
THIS FRANCHISE AGREEMENT (the "Agreement") is made and entered
into as of the effective date of , 199__, (the
"Effective Date") by and between the City of Sebastian, Florida, a
municipality duly organized under the applicable laws of the State
of Florida, (hereinafter referred to as "Issuing Authority"), and
Falcon Cable Media (hereinafter referred to as the "Franchisee")
WHEREAS, the Issuing Authority, pursuant to federal law, state
statutes, and local ordinances, is authorized to grant one or more
non-exclusive franchises to construct, operate, and maintain a
telecommunication system within the municipal boundaries of the
Issuing Authority ("Franchise Area"); and,
WHEREAS, the Issuing Authority has analyzed fully and
considered the technical ability, financial condition, and legal
qualifications of the Franchisee; and,
WHEREAS, the Issuing Authority, after such 'consideration,
analysis and deliberation as are required by applicable law, has
approved and found sufficient the technical, financial and legal
qualifications of the Franchisee to provide telecommunication
services; and,
WHEREAS, the Issuing Authority has also considered and
analyzed the plans of the Franchisee for the construction and
operation of a telecommunication system and found the same to be
adequate, feasible and in the public interest; and,
WHEREAS, the Issuing Authority and the Franchisee have agreed
to be bound by the conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the foregoing and the
mutual promises contained herein, the parties agree as follows:
1. Grant of Authority.
A. There is hereby granted by the Issuing Authority, which
reeresents and warrants ~ha~ i~ has the requisite power and
authority to do so, to the Franchisee, for a period of ten (10)
years from and after the Effective Date of this Agreement (the
"Term"), the non-exclusive right and franchise to construct, use,
operate, own and maintain a telecommunication system subject to
applicable local law.
B. Without reducing its police powers to adopt and enforce
ordinances necessary to the health, safety and welfare of the
public, the Issuing Authority hereby grants to Franchisee authority
to use Issuing Authority's public utility easements and rights-of-
way for the purposes of this Agreement, and this franchise shall be
construed to authorize the construction of a telecommunication
system over or under such rights-of-way and easements in accordance
with applicable federal and state law.
2. Authority not Exclusive. This Franchise and the grant of
authority conferred in Section 1 above are not exclusive, pursuant
to the Telecommunications Ordinance. The Franchisee shall respect
the rights and property of the Issuing Authority and other
authorized users of easements and rights-of-way. Except as
otherwise required by applicable law, disputes between Franchisee
and parties other than the Issuing Authority over the use, pursuant
to this Agreement, of the easements and rights-of-ways shall be
submitted to the Issuing Authority for resolution. Decisions
rendered by the Issuing Authority shall be final and binding.
3. Amendment of Franchise Agreement. It is the intent of
the parties that this Agreement may be amended from'time to time to
allow the Franchisee to implement new services or to agree to any
terms allowed by law. Each party agrees to bargain in good faith
with the other party upon the initiation of such proposed
amendments, pursuant to the Telecommunication Ordinance.
5. Fees and Compensation. From and after the Effective date
of this Agreement and throughout the full term of the Frahchise,
the Franchisee shall pay to the Iuusing Authority fees. and
compensation pursuant to the Telecommunications Ordinance.
6. Construction of the Telecommunication System.
1. Franchisee shall complete telecommunication system
construction and offer service to all properties in accordance with
(1) the appropriate sections of the Telecommunication Ordinance, as
enumerated in Section 6 of the Agreement below, and (2) with the
construction schedule attached hereto as Exhibit 1 and hereby
incorporated.
2. Permits Required--Franchisee shall not construct,
reconstruct, or relocate the telecommunication system (or parts
thereof) within the public ways or on public property unless
permits have been obtained in accordance with the Telecommunication
Ordinance.
3. Plan Review--Franchisee shall not commence construction
unless maps and other engineering details are provided, in
accordance with the Telecommunication Ordinance.
4. Construction Standards--Franchisee shall comply with
construction standards as stipulated in the Telecommunication
Ordinance. In addition, any employee, contractor, vendor or agent
assigned to work on the installation, maintenance, or repair of
system equipment must be properly licensed under State of Florida
laws and all local ordinances.
5. Inspections--The Franchisee shall permit the Issuing
Authority to conduct inspections of construction or installation
being performed in accordance with the Telecommunication Ordinance.
6. Scheduling--The Franchisee shall provide the Issuing
Authority advance notice before beginning construction or
installation, pursuant to the Telecommunication Ordinance. In
addition, within twenty-four (24) months of the effective date of
this Agreement, Franchisee shall construct and activate the system
and offer services to all persons requesting such service within
the franchise area.
7. Construction on Private Property--The Franchisee shall
provide notice to property owners and tenants of the property prior
to construction on private property (including easements), pursuant
to the Telecommunication Ordinance.
8. Restoration of Property--At its own cost and expense,
Franchisee shall restore property disturbed by Franchisee's
activities, pursuant to the Telecommunication Ordinance.
9. Maintenance of Facilities--The Franchisee shall
maintenance its facilities pursuant to the Telecommunication
Ordinance.
10. Removal of Facilities--The Franchisee shall remove
properties under conditions specified in the Telecommunication
Ordinance.
11. Installations on Private Property--To the extent required
by applicable law, no cable line, wire, amplifier, converter, or
other piece of equipment owned by the Franchisee shall be installed
by the Franchisee without first securing the written permission of
the property owner and/or lawful occupant of any property involved.
12. Mapping--The Franchisee shall keep maps and records
pursuant to the Telecommunications Ordinance.
13. Universal Access to Service--The Franchisee shall build
its telecommunication system so that it is capable of providing
service to all occupied properties located along public rights-of-
way within the Franchise Area, pursuant to Telecommunication
Ordinance.
7. Tree Trimming
1. Upon the express written permission of the Issuing
Authority, the Franchisee may trim trees or other vegetation owned
by the Issuing Authority or encroaching upon the public right-of-
way to prevent their branches or leaves from touching or otherwise
interfering with its wires. All trimming or pruning shall be at
the sole cost of the Franchisee and under the supervision of the
Issuing Authority.
2. The Franchisee may contract for said trimming or pruning
services with any person approved by the issuing Authority prior to
the rendering of said services.
8. S~stemDesign and Performance Requirements
Reserved
9. Service to Customers
Reserved
10. Reports
1. On or before one hundred twenty (120) days after the end
of Franchisee's fiscal year, and each successive year during the
Term of this Agreement, the Franchisee shall submit a written
annual report to the Issuing Authority, including the following
information:
(a) A summary of the previous year's (or in the case of
the initial reporting year, the initial year's) activities and
development of the telecommur~cati~n system, including, but not
limited to services begun or discontinued, total number of
subscribers, subscribers added or discontinued during the reporting
year; and
(b) A list of stockholders holding ten percent or more
of the voting interest in the Franchisee.
2. Within thirty days of receipt, the Franchisee shall
submit to the Issuing Authority copies of all decisions,
correspondence and actions by any Federal, state and local courts,
regulatory agencies and other government bodies relating to its
telecommunications operations within the Franchise Area. Thi~
subsection will also apply to legal actions initiated by the
Franchisee. The Issuing Authority shall submit similar information
to the Franchisee.
3. The Franchisee shall make available to the Issuing
Authority such other information or reports pertinent to enforcing
the terms of the Franchise in such forms and at such times as the
Issuing Authority may request upon reasonable advance written
notice.
4. The Franchisee shall allow the Issuing Authority to make
inspections of any of the Franchisee's facilities and equipment at
any time, upon demand, without prior notice.
11. Indemnity and Insurance. The Franchisee shall comply
with applicable sections of the Telecommunication Ordinance
governing indemnity and insurance.
12. Franchise Default and Remedies
1. If Franchisee fails to comply with the Agreement or
Telecommunication Ordinance, Franchisee officials will be subject
to penalties as stipulated in the Telecommunication Ordinance.
2. Notwithstanding section 12.1 above, if the Franchisee
fails to meet the construction completion date set forth in the
construction schedule (unless extended by the Issuing Authority)
and then fails to do so in a timely manner after written notice and
a reasonable opportunity to cure, the Issuing Authority may, as its
sole and exclusive remedy, assess against the Franchisee liquidated
damages in the amount of Five Hundred Dollars ($500) per day until
the construction is completed; provided, however, that Franchisee
shall first have sixty (60) days to cure any such default. The
Issuing Authority shall determine whether the Franchisee has failed
to meet the construction completion date.
The amount of such liquidated damages as determined by Issuing
Authority shall, without proof, be deemed to represent damages
actually sustained by Issuing Authority by reason of said failure
to complete the construction, and shall not be considered as a
penalty. Prior to the imposition of the Five Hundred Dollars
($500) per day liability, Franchisee shall have the right, at its
request, to a hearing in which i~ may participate and seek to
demonstrate its compliance.
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3. In the event of any dispute between the Franchisee and
Issuing Authority regarding compliance with or any other aspect of
this Agreement, both parties agree to cooperate with one another in
good faith to assure as much as possible the smooth, continuous
operation of the telecormmunication system and the provision of
service of the highest possible quality to subscribers.
13. Compliance with Laws; Severability
1. Notwithstanding any other provisions of this Agreement to
the contrary, the Franchisee shall at all times comply with all
applicable laws and regulations of the Federal, state, county and
city governments and all administrative agencies thereof, including
but not limited to judicial orders; provided, however, that if any
such Federal, state, city, or county law other applicable
regulation shall require the Franchisee to perform any service, or
shall prohibit the Franchisee from performing any service, in
conflict with the terms of the Agreement or of any law or
regulation of the Issuing Authority, then as soon as possible
following knowledge thereof, the Franchisee shall notify the
Issuing Authority of the point of conflict believed to exist
between such regulation or law and the laws or regUlations of the
Issuing Authority of this Agreement, and the Franchisee and Issuing
Authority shall negotiate a reasonable accommodation to such
charge.
2. If any provision of this Agreement or any related
agreement is held by any court or by any Federal, state, or county
agency of competent jurisdiction to be invalid as conflicting with
any Federal, state or county law, rule or regulation now or
hereafter in effect, or is held by such court or agency to be
modified in any way in order to conform to the requirements of any
such law, rule or regulation, said provision shall be considered as
a separate, distinct and independent part of this or such other
Agreement, and such holding shall not affect the validity and
enforceability of all other provisions hereof or thereof. In the
event that such law, rule or regulation is subsequently repealed,
rescinded, amended or otherwise changed, so that the provision
hereof or thereof which had been held invalid or modified is not
longer in conflict with the law, rules and regulations then in
effect, said provision shall thereupon return to full force and
effect and shall thereafter be binding on the parties hereto,
provided that the Issuing Authority shall give the Franchisee sixty
(60) days' written notice of such change before requiring
compliance with said provision.
3. If the Issuing Authority determines that a material
provision of this Agreement or any related agreement is affected by
such action of a court or of the Federal, state or county
government, the Issuing Authority and.Franchisee shall have the
right to modify any of the provisions hereof or in such related
agreements to such reasonable extent as may be necessary to carry
out the full intent and purpose of this Agreement and all related
agreements.
14. Taxes. Nothing contained in this Agreement shall be
construed to exempt the Franchisee from any tax levy or assessment
which is or may be hereafter lawfully imposed on all entities
engaged in the same business as the Franchisee.
15. Sale or Transfer of Franchise. With respect to the sale
or transfer of the Franchise or Telecommunication System, the
Franchisee shall comply with appropriate sections of the
Telecommunication Ordinance.
16. Privac~
Reserved
17. Favored Nations. In the event that the Franchisee
accepts from any municipality, an ordinance, license, agreement or
amendments to an existing ordinance or agreement containing terms,
conditions or provisions different from those contained in this
Agreement, or if any other arrangement is at any time made with any
municipality, the Franchisee shall inform the Issuing Authority in
writing of such fact and provide a copy of such ordinance, license,
agreement or other arrangement to the city. If, within ninety (90)
days of such notice, the Issuing Authority accepts any beneficial
terms or conditions contained in such ordinance, license, agreement
or other arrangement of such other municipality pursuant to Article
5 and 12 of this Agreement, the Franchisee agrees it will offer
such beneficial terms to the Issuing Authority.
18. Rate for Services. A Franchisee shall make its
telecomraunication services available to the City at its most
favorable rate for similarly situated users, in accordance with the
Telecommunication Ordinance. ~
19. Service of Notice
1. Ail notices required or permitted to be given to either
party by the other party under any provisions of this Agreement
shall be in writing and shall be deemed served:
1. When delivered by hand or by Federal Express or
similar service to that parsy's address set forth below durinc
normal business hours; or
2. When mailed to any other person designated by that
party in writing herein to receive such notice, via certified mail,
return receipt requested.
2. Notice shall be given to the following:
(1) If to Issuing Authority:
(2) If to Franchisee:
20. Force Majeure. Any delay, preemption, or other failure
to perform caused by factors beyond the parties' reasonable
control, such as an act of God, labor dispute, non-delivery by
suppliers, war, riot, technical breakdown, or government
administrative or judicial order or regulation, shall not result in
a default of the Agreement. Each party shall exercise its
reasonable efforts to cure any such delays and the cause thereof,
and performance under the terms of the Agreement shall be excused
for the period of time during which such factor continues.
21. Renewal of Franchise. This franchise may be renewed in
accordance with the Telecommunication Ordinance.
22. Acknowledgement that Terms are Understood. The Franchisee
acknowledges that it has read and fully understood the terms of
both the Agreement and the ordinance and agrees to be bound by the
same.
IN WITNESS THEREOF, the parties have signed below, effective
as of the Effective Date, by their duly authorized representatives.
City of Sebastian
Falcon Cable Media
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Franchise Agreement.
Sec~QB_32-34: Rights ~rante_d:
No franchise granted under this A~ticle shall convey any right,
title or interest in the public ways, but shall be deemed a
franchise only to use and occupy the public ways for the limited
purposes and term stated in the grant. Further, no franchise shall
be construed as any warranty of title.
Section 32-35: FraD~hise Territory:
A ~elecommunications franchise granted under this /%rticle shall be
limited to the specific geographic area of the City to be served by
the franchise grantee, and the specific public ways necessary to
serve such areas.
Section 32-36: LQc~tion o~ Facilities:
Unless otherwise specified in a franchise agreement, all facilities
shall be constructed, installed and located in accordance with the
following terms and conditions:
(a) Telecomraunications facilities shall be installed within
an existing underground duct or conduit whenever excess
capacity exists within such utility facility.
(b) A franchisee with permission to install overhead
facilities shall install its teleconuuunications
facilities on pole attachments to existing utility poles
only, and then only if surplus space is available.
(c)
Whenever an existing electric utilities, cable facilities
or telecommunications facilities are located underground
within a public way of the City, a franchisee with
permission to occupy the same public way must also locate
its telecommunications facilities underground.
(d)
Whenever any new or existing electric utilities, cable
facilities or telecommunications facilities are located
underground within a public way of the City, a grantee
that currently occupies the same public way shall
relocate its facilities underground within a reasonable
period of time, which shall not be later than the end of
the grant term. Absent extraordinary circumstances or
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undue hardship as determined by the City Engineer, such
relocation shall be made concurrently to minimize the
disruption of the public ways.
(e)
Whenever new telecommunications facilities will exhaust
the capacity of a public street or utility easement to
reasonably accommodate future telecommunications carriers
or facilities, the grantee shall provide additional
ducts, conduits, manholes and other facilities for
nondiscriminatory access to future carriers.
~ection 32-3!% Construction Pgrmits:
All franchisees are required to obtain construction permits for
telecommunications facilities as required in Article 6 of this Act
provided, however, that nothing in this Article shall prohibit the
City and a franchisee from agreeing to alternative plan review,
permit and construction procedures in a franchise agreement,
provided such alternative procedures provide substantially
equivalent safeguards for responsible construction practices.
Section 32-37: Qgmpensation to CityL
Each franchise granted under this Article is subject to the City's
right, which is expressly reserved, to annually fix a fair and
reasonable compensation to be paid for the property rights granted
to the franchisee; provided, nothing in this Article shall prohibit
the City and a franchisee from agreeing to the compensation to be
paid.
Section 32-38: NQDdi$crimination:
A franchisee shall make its telecommunications services available
to any customer within its franchise area who shall request such
service, without discrimination as to the terms, conditions, rates
or charges for grantee's services; provided, however, that nothing
in this Article shall prohibit a franchise from making any
reasonable classifications among differently situated customers.
Section 32-39: Service to the City:
A franchise shall make its telecommunications services available to
the City at its most favorable rate for similarly situated users,
unless otherwise provided in a license or franchise agreement.
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Section 3~-~0: Amg~dment of Grant:
(a)
A new franchise application and grant shall be required
of any telecommunications carrier that desires to extend
its franchise territory or to locate its
telecommunications facilities in public ways of the City
which are not included in a franchise previously granted
under this Title.
(b)
If ordered by the City to locate or relocate its
telecommunications facilities in public ways not included
in a previously granted franchise, the City shall grant
a franchise amendment without further application.
~ection 32-4~: ~enewal Applicm~ig~$:
A grantee that desires to renew its franchise under this A~rticle
shall, not more than two hundred-forty (240) days nor less than 150
days before expiration of the current franchise, file an
application with the City for renewal of its franchise which shall
include the following information:
(a)
The information required pursuant to Section .... 2 of
this Article.
(b)
Any information required pursuant to the franChise
agreement between the City and the grantee.
Sectiog 32-42: Renewal Dg~erminations:
Within one hundred - fifty (150) days after receiving a complete
application, the City Council shall issue a written determination
granting or denying the renewal application in whole or in part,
applying the following standards. If the renewal application is
denied, the written determination shall include the reasons for
non-renewal.
(a) The financial and technical ability of the applicant.
(b) The legal ability of the applicant.
(c)
The continuing capacity of the public ways to accommodate
the applicant's existing facilities.
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(d)
The applicant's compliance with the requirements of this
Title and the franchise agreement.
(e)
Applicable federal, state and local telecommunications
laws, rules and policies.
(f)
Such other factors as may demonstrate that the continued
grant to use the public ways will serve the community
interest.
$9¢~ion 32-43: Obligmtion t_o Cure As $ ConditiQn o$ Renewal.
No franchise shall be renewed until any ongoing violations or
defaults in the grantee's performance of the franchise agreement,
or of the requirements of this Act, have been cured, or a plan
detailing the corrective action to be taken by the grantee has been
approved by the City.
A~ticle V: Cable ~elevisio5 Franchise
Section 32-44:CabS9 Television Franchise.
A cable television franchise shall be required of any
telecommunications carrier, cable operator, or other person who
desires to occupy the public ways of the City and to provide cable
service to any person or area in the City.
Section 32-45: Franchise Application,
Any person that desires a cable television franchise pursuant to
this Article shall file an application with the City which, in
addition to the materials required by Section 32-39 shall include
the following:
A. Whether the applicant intends to provide telecommunications
service, and sufficient information to determine whether such
service is subject to telecommunications franchising pursuant
to this Chapter.
Sg_ction 32-46: Determination ~ th~ Qit~
Within 120 days after receiving a complete application under
Section 32-45, the City shall issue a written determination
granting or denying the application in whole or in part. Prior to
granting or denying a franchise under this Article, the City
Council shall conduct a public hearing and make a decision based
upon the standards set forth in Section 32-30. If the application
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is denied, the written determination shall include the reason(s)
for denial.
Section 32-47: Agreement.
No franchise shall be deemed to have been granted hereunder until
the applicant and the City have executed a written agreement
setting forth the particular terms and provisions under which the
franchisee has been granted to right to occupy and use public ways
of the City and to provide cable service to persons or areas within
the City.
~e~tiQn 3~-48: Nonex~lusiv~ ~rant.
No franchise granted under this Article shall confer any exclusive
right, privilege, license or franchise to occupy or use the public
ways of the City for delivery of cable services or any other
purposes.
Section 32-49: Terms of Franchise Gr~nt.
Unless otherwise specified in a franchise agreement, a cable
franchise granted hereunder shall be valid for a term of ten (10)
years.
Section 32-50: Rights ~r~nte~.
A cable television franchise granted pursuant to this Article shall
authorize a franchisee:
A. To engage in the business of operating and providing cable
service and services and the distribution and sale of-such
services to subscribers within the City; and
B. To erect, install, construct, repair, replace, reconstruct,
maintain and retain in, on, over, under, upon, across and
along any public way, such amplifiers and appliances, lines,
cables, conductors, vaults, manholes, pedestals, attachments,
supporting structures, and other property as may be necessary
and appropriate to the cabl~ system. Provided, however, that no
privilege or exemption shall 'be granted or conferred upon a
franchisee by any franchise except as specifically prescribed
therein, and any use of any public way shall be consistent
with any prior lawful occupancy of the public way or any
subsequent improvement or installation therein. Provided
further, that no franchise granted pursuant to this Article
shall convey any right, title or interest in the public ways,
but shall be deemed a franchise only to use and occupy the
public ways for the limited purposes and term stated in the
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1 grant. No franchise shall be construed as any warranty of
2 title.
3 Section 32-5[: Franchise Territory.
4 A cable television franchise granted under this Article shall be
5 limited to the specific geographic area of the City to be served by
6 the franchisee, and the specific public ways necessary to serve
7 such areas.
8 ~ection 32-52; Nondiscrimination.
9 A franchisee shall make its telecommunications services available
10 to any customer within its franchise area who shall request such
11 service, without discrimination as to the terms, conditions, rates
12 or charges for grantee's services; provided, however, that nothing
13 in this Chapter shall prohibit a franchisee from making any
14 reasonable classifications among differently situated customers.
15 Provided further, that nothing in this Ordinance shall be deemed to
16 prohibit the establishment of a graduated scale of charges and
17 classified rate schedules to which any customer coming within such
18 classification would be entitled, and that connection and/or
19 service charges may be waived or modified during promotional
20 campaigns of a franchisee. A franchisee will not deny access to
21 cable service to any group of potential residential subscribers
22 because of the income of the residents of the local area in which
23 the group resides.
24 ~ction 32-53: Amendment of Franchise Gran~
25 Except as otherwise provided by 47 U.S.C. 545, a new franchise
26 application and grant shall be required of any cable operator that
27 desires to extend its franchise territory, to locate its cable
28 facilities in public ways of the City which are not included in a
29 franchise previously granted under this Article, or to otherwise
30 modify its franchise or franchise agreement. If ordered by the City
31 to locate or relocate its cable facilities in public ways not
32 included in a previously granted franchise, the Cit_' shall grant a
33 franchise amendment without further application.
34 SeG_tion 32-54: Renewal Application. ~C/'~ O ~
35 A franchisee that desires~re~m~ts franchise under this Chapter
shall, not more than 8~days nor less than 120 days before
37 expiration of the current franchise, file an application with the
38 City for renewal of its franchise which shall include the ·
39 following:
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The information required pursuant to Section of this Chapter.
Any information required pursuant to the franchise agreement
between the City and the grantee.
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Any information required pursuant to the Cable Act.
All deposits or charges required pursuant to this Chapter.
An application fee which shall be set by the City Council by
resolution.
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Section 3~-55: Renewal D9~erminatiQn,
Within 120 days after receiving a complete application under
Section 32-54, the City shall issue a written determination
granting or denying the renewal application in whole or in part.
Prior to granting or denying renewal of a franchise under this
Article, the City Council shall conduct a public hearing and make
a decision based upon the standards set forth in the Cable Act, its
implementing regulations, and the standards set forth in Section
00.00.410. If the renewal application is denied, the written
determination shall include the reason(s) for non-renewal.
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Sectio~ 32-56: Q~igation to Cure aS a ~ondition of Renewal.
No franchise shall be renewed until any ongoing violations or
defaults in the franchisee's performance of the franchise
agreement, or of the requirements of this Chapter, have been cured,
or a plan detailing the corrective action to be taken by the
franchisee has been approved by the City.
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Section $2-~7: Rates,
Within thirty (30) days after the grant of franchise pursuant to
this A~ticle, a franchisee shall file with the City a complete
schedule of all present rates charged to all subscribers. Prior to
implementation of any change in rates or charges for any service or
equipment provided by a franchisee, a franchisee shall provide the
City and all subscribers a minimum of thirty (30) days prior
written notice of such change. Subject to 47 U.S.C. 543 and
3_2 ......... apDlicab_l~ FCC regulations, the City may regulate the rates or
33 charges for providing cable service and other equipment and may
34 establish rate regulation review procedures as delegated by Federal
35 law.
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Section 32-58: Franchise Feg,
As permitted by 47 U.S.C. 542, a franchisee shall pay the City a
franchise fee equal to five percent (5%) or greater of its gross
revenues as defined in this Chapter. The franchise fee shall be
paid quarterly, on or before the thirtieth (30th) day of each
January, April, July, and October. Such remittances shall be
accompanied by forms furnished by the City to report reasonably
detailed information as to the sources of such revenues.
9 Section 32-59: Periodic Meetings. ~ ~
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franchisee shall meet with designated City officials and/or
designated representative(s) of the City to review the performance
of a franchisee for the preceding period. The franchisee shall be
given not less than thirty (30) days' prior written notice of any
such meeting. The subjects may include, but are not limited to,
those items covered in the periodic reports and performance tests.
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Section 32-60: Cable System Evaluation.
In addition to periodic meetings, and with written notice of not
less than five (5) business days so that a franchisee can arrange
to have necessary personnel present, the City may require
reasonable evaluation sessions at any time during the term of a
franchise. It is intended that such evaluations cover areas such as
customer service, response to the community's cable-related needs,
and a franchisee's performance under and compliance with the terms
of a franchise.
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SeCtion 32-61: P~hli~, Educational and Governmental Access.
As permitted by 47 U.S.C. 531, the City may require, as a condition
of a franchise granted pursuant to this Article, provisions for
Public, Educational and Government (PEG) Access.
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Section B2-62: City-wide Public~ ~duc~%Q~al and Government Access
In~3~connection.
As permitted by 47 U.S.C. 531, the City may request a franchisee to
begin negotiations to interconnect PEG access channels of a cable
television system with any and all other contiguous and compatible
cable systems. Interconnection of system may be accomplished by
direct cable connection, microwave link, or other technically
feasible method. Upon receiving request of the City to
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interconnect, if a franchisee has not already done so, a franchisee
shall initiate negotiations with other affected system(s), and
shall report to the City the results of such negotiations no later
than sixty (60) days after such initiation. Any costs of
interconnection may be passed through to subscribers by a
franchisee.
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A franchisee's cable system shall have the capability of serving
designated educational and public buildings with uni- or bi-
directional video/audio signals. The linkage may be by cable,
microwave or other means deemed appropriate by a franchisee. If
required, suitable encoding and decoding devices shall be made
available by a franchisee to assure transmission security. A public
entity desiring the activation of such service shall make
application thereof to a franchisee. Activation of Such services to
a public entity shall not be unduly denied. As provided by the
Cable Act, a public entity in the City denied such service may
request a public hearing to evaluate such denial. Both the
requestor and the franchisee shall be provided the opportunity to
present the reasons for the request and the reasons for the denial.
Upon a finding by the City Council that these services are
reasonably required to meet community needs, taking into account
the cost of meeting such needs, the City Council may require the
activation of such services for the public entity in a reasonable
time and on the same basis that other public entities in the City
receive the same service.
A franchise agreement may require a franchisee to make such
interconnections as necessary to connect certain designated
institutions on a City-wide basis. The same conditions as
enumerated in Section 32-63 shall apply to such interconnections.
A franchise agreement may require*a franchisee to contribute either
specified goods and services and/or a specified sum of money fo~
the purpose of providing facilities and equipment for PEG acces:
programming and the Institutional Networks.
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Prior to expenditure of capital for any franchise related
requirements that would be treated as an external cost passed
through to customers, the franchisee shall notify the City of its
intent to exercise its right and the amount to be passed through to
customers. The City may waive the franchise related requirement if,
in the City's opinion, the increase in rates would be a burden on
City rate payers.
$9c~oD. 32-67: CoD~iDu~ty Qf ~gv~r~e~
It shall be the right of all subscribers to continue receiving
service so long as their financial and other obligations to a
franchisee are fulfilled. In this regard a franchisee shall act so
far as it is reasonably within its control to provide all
subscribers with continuous uninterrupted service during the term
of the franchise, subject to applicable law. In the event a
franchisee fails to operate a system for seVenty-two (72)
continuous and consecutive hours without prior notification to and
approval of the City Council or without just cause such as an
impossibility to operate the system because of the occurrence of an
act of God or other circumstances reasonably beyond a franchisee's
control, the City may, after notice and an opportunity for a
franchisee to commence operations at its option, operate the
emergency alert system or designate someone to operate the
emergency alert system until such time as a franchisee restores
service or a replacement franchisee is selected. If the City is
required to fulfill this obligation for a franchisee, a franchisee
shall reimburse the City for all reasonable costs or damages that
are the result of a franchisee's failure to perform.
In the event of one or more new franchises being granted, the City
may require that such subsequent franchisees .pay to the City an
amount proportionally equal to franchising costs contributed by the
initial franchisee. These costs may include but are not limited to
such features as access and institutional network costs, bi-
directional or equivalent cable installed to municipal buildings
and similar expenses. Additional franchisees shall provide all PEG
access channel(s) currently available to the subscribers of
existing franchisees. In order to provide these access channels,
additional franchisees shall interconnect, at their cost, with
existing franchisees, subject to any reasonable terms and
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conditions that the existing franchisee providing the
interconnection may require. These interconnection agreements shall
be made directly between the franchisees. The City Council, in such
cases of dispute of award, may be called upon to arbitrate
regarding these arrangements. Additional franchisees shall
contribute towards costs of PEG access paid by a prior franchisee
by paying to the prior franchisee on each anniversary of the grant
of the subsequent franchise an amount equal to a proportionate
share of the amount contributed by the prior franchisee for PEG
access costs in constant dollars. This proportionate share shall be
based upon the number of subscribers in the City held by each
franchise and shall be contributed until such time as equal
contribution towards the cost of PEG access have been made.
Section 32-69: Subscriber Ra~e.CQmPl~int Process~
As provided by 47 U.S.C. 543, any subscriber aggrieved by a cable
rate increase shall file its cable rate complaint with the City
within ninety (90) days of the effective date of such an increase.
Such complaints shall be submitted upon a form prescribed by the
City Manager. If the City receives cable rate complaints from cable
subscribers, it may, in its sole discretion, file a cable rate
complaint with the FCC, seeking review of any such rate increase.
Section 32-70: Parental C~ntrol Devi~es,
A franchisee shall make available at its cost, including
applicable handling fees, a device by which the subscriber can
prohibit viewing of a particular cable service during periods
selected by that subscriber.
Section 32-71: Discounts.
A franchisee shall offer a discount of thirty percent (30%) from
the normal charge for basic services and installation to those
individuals age sixty-two (62) o- older'~or disabled who are the
legal owner or lessee/tenant of their residence provided that their
combined disposal income from all sources does not exceed the
median income level Housing and Urban Development (HUD) standards
for the Southeastern Florida area for the preceding calendar year.
The City or its designee shall be responsible for certifying to a
franchisee that such applicants conform to the specified criteria.
Section.32-72: Customer Servi~e..
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A. A franchisee shall render repair service to restore the
quality of the signal at approximately the same standards
existing prior to the failure or damage of the component
causing the failure and make repairs promptly and interrupt
service only for good cause and for the shortest time
possible. Such interruptions, insofar as possible, shall be
preceded by notice and shall occur during a period of minimum
use of the system. A log of all service interruptions shall be
maintained for a period of at least one (1) year. The City,
after two (2) working days' notice, may inspect such logs.
B. An employee of a franchisee shall answer and respond to all
individual complaints received up until 5:00 p.m. weekdays. A
franchisee may use an answering service to receive complaints
after 5:00 p.m. weekdays and on weekends and holidays and
shall respond to any system outage affecting'.more than five
(5) subscribers regardless of day and hour. A copy of the
instructions to the answering service by a franchisee shall be
furnished to the City or its designee.
Cf~C~[~%-~hnician~s'h~'ll be on call seven (7) days a week, twenty-
~-~o~r-~4~ hours a day. A franchisee shall respond immediately
to service complaints in an efficient manner.
D. A franchisee shall maintain a sufficient repair force to
respond to individual requests for repair service within two
(2) working days after receipt of the complaint or request,
except Saturday, Sunday and legal holidays. All complaints
shall be resolved within seven (7) days, to the extent
reasonable. If a subscriber has notified a franchisee of an
outage, no charge for the period of the outage shall be made
to the subscriber if the subscriber was without service for a
period exceeding twenty-four (24) hours.
E. A ~ranchisee shall supply at the time of a new connection, and
periodically at least once a year, the title, address and
telephone number of the city official or his/her designee, to
whom subscribers may direct their concerns.
F. In no case will a franchisee's service standards fall below
the standards established below the National Cable Television
Association (NCTA) which are attached hereto as Appendix A,
and incorporated by this reference as though completely set
forth herein.
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%ectiQn 32-73: Tg~ephone ~espoDse~
A. A franchisee shall maintain an adequate force of customer
service representatives as well as incoming trunk lines so
that telephone inquiries are met promptly and responsively. A
franchisee shall have in place procedures for utilization of
other manpower and/or recording devices for handling the flow
of telephone calls at peak periods of large outages or other
major causes of subscriber concern. A copy of such procedures
and/or policies shall be made available to the City.
B. In order that the City may be informed of a franchisee's
success in achieving satisfactory customer relations in its
telephone answering functions, a franchisee shall, upon
request by the City, and routinely each quarter, provide the
City with a summary that provides the following:
(1) Total number of calls received in recording periods;
(2) Time taken to answer;
(3) Average talk time;
(4) Number of calls abandoned by the caller;
(5) Average hold time;
(6) Percentage of time all lines busy;
(7) An explanation of any abnormalities.
C. This data will be compared to the minimum standards of the
NCTA, or any amendment thereto increasing such standards, and
shall be monitored by the City.
D. Calls for service generated during periods of system outages
due to emergencies affecting more than twenty-five (25)
customers may be excluded from the service response
: calculations. The City shall have the'sole determination as to
what constitutes a system failure due to emergency and which
calls shall be excluded from the service level calculations.
~ction $~-74: F~ilure t9 Improv~ Cu~m~r $grv%¢e~
The City or its designee shall review telephone response and
customer service information with a franchisee. Improvements will
be made by the franchisee in the appropriate categories which are
found deficient from the last reporting period. Failure to do so
may result in action being taken pursuant to Section 32-109 - 32-
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112 of this Chapter.
Se~i~ $~-7~; geportst
A franchisee shall furnish, upon request, a report
activities as appropriate. Such report shall include:
of its
A. A copy of the franchisee's most recent annual report;
B. A copy of the franchisee's 10-K Report, if required by the
Securities and Exchange Commission;
C. The number of homes passed by the franchisee's cable system;
D. The number of subscribers with basic services;
E. The number of subscribers with premium services;
F. The number of hook-ups in the reporting period;
G. The number of disconnects in the reporting period;
H. The total number of miles of cable under the franchisee's
control within the City;
I. A summary of complaints received by category, length of time
taken to resolve each complaint, and action taken to provide
resolution;
J. A copy of the franchisee's current billing practices, and a
sample copy of the franchisee's current bill format;
K. A copy of the franchisee's current subscriber service
agreement;
L. Any other such reports with respect to the franchisee's local
operations, affairs, transactions, or property that the City
may deem to be appropriate.
For informational purposes, a franchisee shall file a listing of
its programming and the tiers in which thek are placed. A
franchisee shall consider the City's suggestions of general
programming categories as determined from time to time in
residential questionnaire polls. The results of such surveys, when
performed, shall be appended to the respective franchise
agreements.
SectiQo
If any portion of this Article should be inconsistent or conflict
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with any rule or regulation now or hereafter adopted by the FCC or
other Federal law, then to the extent of the inconsistency or
conflict, the rule or regulation of the FCC or other Federal law
shall control for so long, but only for so long, as such rule,
regulation, or law shall remain in effect; provided the remaining
provisions of this Article shall not be effected thereby.
Article VI: Fees and Compensation
SectiQn 32-77: Purpose:
It is the purpose of this Article to provide for the payment and
recovery of all direct and indirect costs and expenses of the City
related to the enforcement and administration of this Act.
Section 32-78: Application and Review Fee:
(a)
Any applicant for a license or franchise pursuant to
Articles III or IV of this Act shall pay a fee of
($ ) or percent (__~) of the
estimated cost of applicant's proposed
telecommunications facilities, as certified by the
applicant's professional engineer, whichever is
greater.
(b)
The application and review fee shall be deposited with
the City as part of the application filed pursuant to
Article III or Article IV of this Act.
(c)
An applicant whose license or franchise application has
been withdrawn, abandoned or denied shall, within sixty
(60) days of its application and review fee written
request, be refunded the balance of its deposit under
this section, less:
~ (1) ($ ) and
!
(2) Ail ascertainable costs and expenses incurred by
the City in connection with the application.
SectiQn 32-79: Other C%ty C~st~:
Ail license or franchise grantees shall, within thirty (30) days
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after written demand therefor, reimburse the City for all direct
and indirect costs and expenses incurred by the City in connection
with any modification, amendment, renewal or transfer of the
license or franchise or any license or franchise agreement.
Section 32-80: Reserved Compensmtion ~Q~ public Whys:
The City reserves its right to annually fix a fair and reasonable
compensation to be paid for the property rights granted to a
telecommunications license or franchise grantee. Nothing in this
Article shall prohibit the City and a grantee from agreeing to the
compensation to be paid for the granted property rights.
SectioD ~2-81: Compensation for Ci~ P~opgrty:
If the right is granted, by lease, license, franchise or other
manner, to use and occupy City Property for the installation
telecommunications facilities, the compensation to be paid shall be
fixed by the City.
Section 32-82: ConstructiQn Permit Fe~;
Prior to issuance of a construction permit, the permittee shall pay
a permit fee equal to Dollars ($ ) or percent (__
_%) of the estimated cost of constructing the telecommunications
facilities, as certified by the applicant's engineer and approved
by the City Engineer, whichever is greater.
Se~ion 32-83: AnnuAl Fees:
Unless otherwise agreed in a license or franchise grant agreement,
each license or franchise grantee shall pay an annual license fee
to the City equal to as reimbursement for the
City's costs in connection with reviewing, inspecting and
supervising the use and occupancy of the public ways in behalf of
the public and existing or future users.
Section 3~-84: Reserve~
SectiQn 3~-85: Req~latory~ges and Co~t~eD~ation No~ ~ Tax~
The regulatory fees and costs provided for in this Article, and any
compensation charged and paid for the public ways provided for in
Chapter , are separate from, and additional to, any and all
federal, state, local and City taxes as may be levied, imposed or
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due from a telecommunications carrier or provider, its customers or
subscribers, or an account of the lease, sale, delivery or
transmission of telecommunications services.
Article vii: ConditioRs for Grant
Se~Qn $2-86: Location of Facilities:
Ail facilities shall be constructed, installed and located in
accordance with the following terms and conditions, unless
otherwise specified in a license or franchise agreement:
(a)
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A grantee shall install its telecommunications facilities
within an existing underground duct or conduit whenever
excess capacity exists within such utility facility.
A grantee with permission to install overhead facilities
shall install its telecommunications facilities on pole
attachments to existing utility poles only, and then only
if surplus space is available.
Whenever an existing electric utilities, cable facilities
or telecommunications facilities are located underground
within a public way of the City, a guarantee that
currently occupies the same public way shall relocate its
facilities underground within a reasonable period of
time, which shall not be later than the end of the grant
term. Absent extraordinary circumstances or undue
hardship as determined by the City Engineer, such
relocation shall be made concurrently to minimize the
disruption of the public ways.
Whenever new telecommunications facilities will exhaust
the capacity of a public street o£ utility easemqnt to
reasonably accommodate future telecommunications carriers
or facilities, the grantee shall provide additional
ducts, conduits, manholes and other facilities for
nondiscriminatory access to future carriers.
~¢t%on 32-87: CQnstruc~ion Permits:
Ail license or franchise grantees are required to obtain
construction permits for telecommunications facilities as required
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in Article VII if this Act. However, nothing in this Article shall
prohibit the City and a grantee from agreeing to alternative plan
review, permit and construction procedures in a license or
franchise agreement, provided such alternative procedures provide
substantially equivalent safeguards for responsible construction
practices.
Section 32-8~i!D~er~grgDce with the Public WaysA
No license or franchise grantee may locate or maintain its
telecommunications facilities so as to unreasonably interfere with
the use of the public ways by the City, by the general public or by
other persons authorized to use or be present in or upon the public
ways. All such facilities shall be moved by the grantee,
temporarily or permanently, as determined by the City Engineer.
Section 32-89: Damage to
No license or franchise grantee nor any person acting on a
grantee's behalf shall take any action or permit any action to be
done which may impair or damage any City Property, public ways of
the City, Other Ways or other property located in, on or adjacent
thereto.
Sect%on 32-9Q: Notic9 of WorkL
Unless otherwise provided in a license or franchise agreement, no
license or franchise grantee, nor any person acting on- the
grantee's behalf, shall commence any non-emergency work in or about
the Public Ways of the City or Other Ways without ten (10) working
days advance notice to the City.
Section 32-9~: Repair and Emergency~ork£
In the event of an unexpected repair or emergency, a grantee may
commence such repair and emergency response work as required under
t~ie circumstances, provided .the Grantee shall notify the City as
promptly as possible, before such repair or emergency work or as
soon thereafter as possible if advance notice is not practicable.
Sectio~ 32-92: M~int~nance of Facilities:
Each license or franchise grantee shall maintain its facilities in
good and safe condition and in a manner that complies with all
applicable federal, state and local requirements.
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Section 32-93: Relocation or Eemov~l of F~cilitie$:
Within thirty (30) days following written notice from the City, a
license or franchise grantee shall, at its own expense, temporarily
or permanently remove, relocate, change or alter the position of
any telecommunications facilities, the City Council shall have
determined that such removal, relocation, change or alteration is
reasonably necessary for:
(a)
The construction, repair, maintenance or installation of
any City or other public improvement in or upon the
public ways.
(b)
The operations of the City or other governmental entity
in or upon the public ways.
Section 32-94: Remoxral of Un~u~hQrized Facilities:
Within thirty (30) days following written notice from the City, any
grantee, telecommunications carrier, or other person that owns,
controls or maintains any unauthorized telecommunications system,
facility or related appurtenances within the public ways of the
City shall, at its own expense, remove such facilities or
appurtenances from the public ways of the City. A
telecommunications system or facility is unauthorized and subject
to removal in the following circumstances.
(a)
upon expiration or termination of the grantee's
telecommunications license or franchise.
(b)
Upon abandonment of a facility within the public ways
of the City.
(c) If the system or facility was constructed or installed
without the prio~ grant of a telecommunications license
or franchise.
(d)
If the system or facility was constructed or installed
without the prior issuance of a required construction
permit.
(e)
If the system or facility was constructed or installed
at a location not permitted by the grantee's
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telecommunications license or franchise.
Section ~2-95: Emergency Removal or Rg~ocation of F~cilities:
The City retains the right and privilege to cut or move any
telecommunications facilities located within the public ways of the
City, as the City may determine to be necessary, appropriate or
useful in response to any public health or safety emergency.
Section 32-96: Damage to Grantee's Fa¢ilit%es:
Unless directly and proximately caused by the willful, intentional
or malicious acts by the City, the City shall not be liable for any
damage to or loss of any telecommunications facility within the
public ways of the City as a result of or in connection with any
public works, public improvements, construction, excavation,
grading, filling, or work of any kind in the public ways by or on
behalf of the City.
Section 32-97: Restora~%on of Pt~blic Ways, Othe= Ways and City
Property
(a) When a license or franchise grantee, or any person
acting on its behalf, does any work in or affecting any
Public Ways, Other Ways or City Property, it shall, at
its own expense, promptly remove any obstructions
therefrom and restore such ways or property to as good a
condition as existed before the work was undertaken,
unless otherwise directed by the City.
(b)
If weather or other conditions do not permit the complete
restoration required by this Section, the grantee shall
temporarily restore the affected ways or property. Such
temporary restoration shall be at the Licensee's sole
expense and the Licensee shall promptly undertake and
complete the required permanent restoration when the
weather or other conditions no longer prevent such
permanent restoration.
(c) A grantee or other person acting in its behalf shall use
suitable barricades, flags, flagmen, lights, flares and
other measures as required for the safety of all members
of the general public and to prevent injury or damage to
any person, vehicle or property by reason of such work in
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(f)
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The location of all overhead and underground
public utility, telecommunication, cable, water,
sewer, drainage and other facilities in the public
way along the proposed route.
The location(s), if any, for interconnection with
the telecommunications facilities of other
telecommunications carriers.
The specific trees, structures, improvements,
facilities and obstructions, if any, that applicant
proposes to temporarily or permanently remove or
relocate.
If applicant is proposing to install overhead facilities,
evidence that surplus space is available for locating its
telecommunications facilities on existing utility poles
along the proposed routs.
If applicant is proposing an underground installation
in existing ducts or conduits within the public ways,
information in sufficient detail to identify:
the excess capacity currently available in such
ducts or conduits before installation of
applicant's telecommunications facilities;
the excess capacity, if any, that will exist in
such ducts or conduits after installation of
applicant's telecommunications facilities.
If applicant is proposing an underground installation
within new ducts or conduits to be constructed within
the public ways:
the location proposed for the new ducts or
conduits;
the excess capacity that will exist in such ducts
or conduits after installation of applicant's
telecommunications facilities.
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(h)
A preliminary construction schedule and completion
date.
( i )A preliminary traffic control plan in accordance with
the FDOT Manual on Uniform Traffic Control Devices.
(j)
Financial statements prepared in accordance with
generally accepted accounting principals demonstrating
the applicant's financial ability to construct,operate,
maintain, relocate and remove the facilities.
(k) Information in sufficient detail to establish the
technical qualifications, experience and expertise
regarding the telecommunications facilities and services
described in the application;
(1) Information to establish that the applicant has obtained
all other governmental approvals and permits to construct
and operate the facilities and to offer or provide the
telecommunications services.
(m) All fees, deposit or charges required pursuant to Article
VI of this Chapter.
(n)
Such other and further information as may be required by
the City Manager.
Sec. 32-14: Determination bY the City:
Within 120 days after receiving a complete application, the City
Council shall issue a written determination granting or denying the
application in whole or in part, applying the following standards.
If the application is denied, the written determination shall
include the reasons for denial.
(a) The financial and technical ability of the applicant.
(b) The legal ability of the applicant.
(c)
The capacity of the public ways to accommodate additional
utility and telecommunications facilities if the permit
is granted.
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(d)
The damage or disruption, if any, of public or private
facilities, improvements, service, travel or landscaping
if the permit is granted.
(e)
The public interest in minimizing the cost and disruption
of construction within the public ways.
(f)
The service that applicant will provide to the community
and region.
(g)
The effect, if any, on public health, safety and welfare
if the permit is granted.
(h)
The availability of alternate routes and/or locations
for the proposed facilities.
(i)
Applicable federal and state telecommunications laws,
regulations and policies.
(j)
Such other factors as may demonstrate that the grant to
use the public ways will serve the community interest.
Sec. 32-15 Agreement;
No permit granted hereunder shall be effective until the
applicant and the City have executed a written agreement setting
forth the particular terms and provisions under which the permit
to occupy and use public ways of the City will be granted.
Sec, 32-16 Nonexclusive G=antj
No permit granted under this Article shall confer any exclusive
right, privilege, license or franchise to occupy or use the public
ways of the City for delivery of telecommunications services or any
other purposes.
~c. 32-17 Rights GF~nted:
No permit granted under this Article shall convey any right, title
or interest in the public ways, but shall be deemed a license only
to use and occupy the public ways for the limited purposes and term
stated in the grant. Further, no permit shall be construed as any
warranty of title.
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1 ~?Sec 32-18 ~_~m~ of Grant:
2 ~Unless otherwise specified in a permit, a telecommunications right
3 ~of way use permit granted hereunder shall be in effect for a term
4 of five (5) years.
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Se¢~ 32-19 Permit Rgute:
A telecommunications right of way use permit granted under this
Article shall be limited to a grant of specific public ways and
defined portions thereof.
Sec. 32-20 Lo~tion of Facilities:
Unless otherwise specified in a permit, all facilities shall be
constructed, installed and located in accordance with the following
terms and conditions:
(a) Telecommunications facilities shall be installed within
· --~existing underground duct or conduit whenever excess
capacity exists within such utility facility.
(b)
A licensee with permission to install overhead facilities
shall install its telecommunications facilities on pole
att~hments to existing utility poles only, and then only
~if surplus space is available.
(c) Whenever any existing electric utilities, cable
facilities or telecommunications facilities are located
uderground within a public way of the City, a licensee
with permission to occupy the same public way must also
locate its telecommunications facilities underground.
(d)
Whenever any new or existing electric utilities, cable
facilities or telecommunications facilities are located
underground within'a public way of the City, a grantee
that currently occupies the same public way shall
relocate its facilities underground within a reasonable
period of time, which shall not be later than the end of
the grant term. Absent extraordinary circumstances or
undue hardship as determined by the City Engineer, such
relocation shall be made concurrently to minimize the
disruption of the public ways.
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(e)
Whenever new telecommunications facilities will exhaust
the capacity of a public street or utility easement to
reasonably accommodate future telecommunications carriers
or facilities, the grantee shall provide additional
ducts, conduits, manholes and other facilities for
nondiscriminatory access to future telecommunications
carriers.
SeQ. 32-21 Construction ~er~its.
Ail permitees are required to obtain construction permits for.?
telecommunications facilities as required in Article V/ of this,
Chapter provided, however, that nothing in ~i~ A~tlcle shall
prohibit the City and a permitee from agreeing to alternative plan
review, permit and construction procedures in a license agreement,
provided such alternative procedures provide substantially
equivalent safe guards for responsible construction practices.
~ec. 32-~2 Compens~DO to City~
Each license granted under this Article is subject to the City's
right, which is expressly reserved, to annually fix a fair and
reasonable compensation to be paid for the property rights granted
to the licensee; provided, nothing in this Article shall prohibit
the City and a licensee from agreeing to the compensation to be
paid.
Sec, 32-23 Service to City Users:
A licensee may be permitted to offer or provide telecommunications
services to persons or areas within the City upon submitting an
application for approval pursuant to Article IV hereof.
~ec. 32-24: Amendment o~ GrantL
A new license application and grant shall be required of any
telecommun]cations carrier that desires to extend or relocate its
telecommunications facilities in public ways not included in a
previously granted license. The City shall grant a license
amendment without further application.
S9c~ 32-25: Renewal ~pplic~tions:
A grantee that desires to renew its permit under this article
shall, not more than one hundred-eight (180) days nor less than 90
days before expiration of the current permit, file an application
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with the City for renewal of its license which shall include the
following information:
(a)
The information required pursuant to Sec.32-14 of this
Article.
(b)
Any information required pursuant to the license
agreement between the City and the grantee.
Sec. 32-26: Renewal Determinations[
Within 90 days after receiving a completed application, the City
Council shall issue a written determination granting or denying the
renewal application in whole or in part, applying the following
standards. If the renewal application is denied, the written
determination shall include the reasons for non - renewal.
(a) The financial and technical ability of the applicant.
(b) The legal authority of the applicant.
(c) The continuing capacity of the public ways to accommodate
the applicant's existing facilities.
(d)
The applicant's compliance with the requirements of this
Title and the license agreement.
(e)
Applicable federal, state and local telecommunications
laws, rules and policies.
(f)
Such other factors as may demonstrate that the continued
grant to use the public ways will serve the community
interest.
Section 32-27: obligation to ~ure As ~ Condition of Renewal[
No license shall be renewed until any ongoing violations or
defaults in the licensee's performance of the license agreement, or
of the requirements of this Act, have been cured, or a plan
detailing the corrective action to be taken by the grantee has been
approved by the City.
~rticl9 IV: Telecommunication~ Franchise
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~ection 32-28: Telecommuni=~tions Franchise:
A telecommunications franchise shall be required of any
telecommunications carrier who desires to occupy public ways of the
City and to provide telecommunications services to any person or
area in the City.
Sec%ion 32-29: F~anchise_ApDlic~tion£
Any person that desires a telecommunications franchise pursuant to
this Article IV shall file an application with the City which shall
include the following information:
(a)
The identity of the franchise applicant, including
all affiliates of the applicant.
(b)
A description of the telecommunications services that are
or will be offered or provided by the franchise applicant
over its existing or proposed facilities.
(c)
A description of the transmission medium that will be
used by the franchisee to offer or to provide such
telecommunications services.
(d)
Preliminary engineering plans, specifications and a
network map of the facilities' to be located within the
City, all in sufficient detail to identify:
(i)
the location and route requested for applicant's
proposed telecommunications facilities.
(2)
the location of all overhead and underground public
utility, telecommunications, cable, water, sewer
drainage and other facilities in the public way
along the proposed route.
(3)
the location(s), if any, for interconnection with
the telecommunications facilities of other
telecommunications carriers.
(4)
the specific trees, structures,improvements,
facilities and obstructions, if any, that applicant
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(e)
(f)
(g)
(h)
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proposes to temporarily or permanently remove or
relocate.
If applicant is proposing to install overhead facilities,
evidence that surplus space is available for locating its
telecommunications facilities on existing utility poles
along the proposed route.
If applicant is proposing an underground installation in
existing ducts or conduits within the public ways,
information in sufficient detail to identify:
(i)
the excess capacity currently available in such
ducts or conduits before installation of
applicant's telecommunications facilities;
(2)
the excess capacity, if any, that will exist in such
ducts or conduits after installation of applicant's
telecommunications facilities.
If applicant is proposing an underground installation
within new ducts or conduits to be constructed within the
public ways:
(1) the location proposed for the new ducts or conduits;
(2)
the excess capacity that will exist in such ducts or
conduits after installation of applicant's
telecommunications facilities.
A preliminary traffic control plan in accordance with the
FDOT Manual on Uniform Traffic Control Devices.
Financial statements preparea~ in accordance with
generally accepted accounting principles demonstrating
the applicant's financial ability to construct, operate,
maintain, relocate and remove the facilities.
Information in sufficient detail to establish the
applicant's technical qualifications, experience and
expertise regarding the telecommunications facilities and
services described in the application.
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(k)
Information to establish that the applicant has obtained
all other governmental approvals and permits to construct
and operate the facilities and to offer or provide the
telecommunications services.
(1)
Whether the applicant intends to provide cable service,
video dialtone service or other video programming
service.
(m)
An accurate map showing the location of any existing
telecommunications facilities in the City that applicant
intends to use or lease.
(n)
A description of the services or facilities that the
applicant will offer or make available to the City and
other public, educational and governmental institutions.
(o)
A description of applicant's access and line extension
policies.
(p) The area or areas of the City the applicant desires to
serve and a schedule for build-out to the entire
franchise area.
(q)
Ail fees, deposits or charges required pursuant to
B_rticle VI of this Title.
(r)
Such other and further information as may be required by
the City Council.
Sp~tion 32-30: DeJz~rmination by the City:
Within one hundred-fifty (150) days after receiving a complete
application the City Council shaft issue a written determination
granting or denying the application in whole or in part, applying
the following standards. If the application is denied, the written
determination shall include the reasons for denial.
(a) The financial and technical ability of the applicant.
(b) The legal authority of the applicant.
(c) The capacity of the public ways to accommodate the
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applicant's proposed facilities.
(d)
The capacity of the public ways to accommodate additional
utility and telecommunications facilities if the
franchise is granted.
(e)
The damage or disruption, if any, of public or private
facilities, improvements, service, travel or landscaping
if the franchise is granted.
(f)
The public interest in minimizing the cost and disruption
of construction within the public ways.
(g)
(h)
The effect, if any, on public health, safety and welfare
if the franchise requested is granted.
The availability of alternate routes and/Or locations for
the proposed facilities.
(i)
Applicable federal and state telecommunications laws,
regulations and policies.
(j)
Such other factors as may demonstrate that the grant to
use the public ways will service the community interest.
Sec~%Qn 32-31: Agreement:
No franchise shall be granted hereunder unless the applicant and
the City have executed a written agreement setting forth the
particular terms and provisions under which the franchise to occupy
and use public ways of the City will be granted.
Section 3~-32: Nonexclusive Gr~nt:
· No franchise granted under this Article shall confer any exclusive
right, privilege, license or franchise or occupy or use the public
ways of the City for delivery of telecommunications services or any
other purposes.
S~Qtion 32-35: Ter~ of Grant:
Unless otherwise specified in a franchise agreement, a
telecommunications franchise granted hereunder shall be valid for
a maximum term of (10) years. The term shall be established in the
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