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Home My WebLink About07161997CITY COUNCIL WORKSHOP AGENDA PACKET WEDNESDAY, JULY 16, 1997 - 7:00 P.M. City of Sebastian 1225 MAIN STREET [] SEBASTIAN, FLORIDA 32958 TELEPHONE (561) 589-5330 n FAX (561) 589-5570 AGENDA SEBASTIAN CITY COUNCIL WORKSHOP WEDNESDAY, JULY 16, 1997 - 7:00 P.M. CITY COUNCIL CHAMBERS 1225 MAIN STREET, SEBASTIAN, FLORIDA ALL AGENDA ITFSIS MAYBE INSPECTED IN THE OFFICE OF THE CITY CLERK- 1225 MAIN STREET, SEBASTIAN, FLORIDA No Public Input Allowed Unless by Majori~ Consensus of City Council (R-97-21) 1. CALL TO ORDER 2. PLEDGE OF ALLLEGIANCE 3. ROLL CALL 4. WORKSHOP ITEMS 97.169 A. 1-38 Proposed Telecommunications Ordinance 97.183 B. 39-50 Proposed Quasi-Judicial Procedures Resolution 5. ADJOURN ANY PERSON WHO DECIDES TO APPEAL ANY DECISION MADE BY THE CITY COUNCIL WITH RESPECT TO ANY MATTER CONSIDERED AT THIS MEETING (OR HEARING) WILL N~FD A RECORD OF THE PROCEEDINGS AND MAY NEED TO ENSURE THAT A FERBATIM RECORD OF THE PROCEEDINGS IS MADE, WHICH RECORD INCLUDES THE TESTIMONY AND EVIDENCE UPON WHICH THE APPEAL IS TO BE HEARD. (286.0105F. S.) IN COMPLIANCE WITH THE AMERICANS WITH DISABILITIES ACT (ADA), ANYONE WHO NEEDS A SPECIAL ACCOMMODATION FOR THIS MEETING SHOULD CONTACT THE CITY'S ADA COORDINATOR AT 589-5330 AT LEAST 48 HOURS IN ADVANCE OF THIS MEETING. Upcomimz Council Meetings Budget Workshop -Monday, July 21, 1997 ~ 7p.m. Tentative Budget Workshop - Tuesday, Tuesday, July 22, 1997 ~ 7p.m. Regular Meeting - Wednesday, July 23, 1997 ~ 7p.m. Open Forum - Wednesday, July 30, 1997 ~ 7pm DRAFTCOPY ONLY 07/09/97 1 2 3 4 5 6 7 8 9 10 11 12 13 14 ORDINANCE NO. 0-97- AN ORDINANCE OF THE CITY COUNCIL 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 FOR REGISTRATION OF TELECOMMUNICATIONS CARRIERS AND PROVIDERS; PROVIDING REQUIREMENT OF TELECOMMUNICATIONS LICENSE; PROVIDING REQUIREMENTS FOR TELECOMMUNICATIONS 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. WHEREAS, 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 q.lidelines, standards and time frames for the exercise of local authority with respect to the regulation of telecommunications 'c, roviders and services and to promote competition in telecommunications; and WHEREAS, the City Council desires to permit and manage 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 'oublic trust by the City; and 1 2 3 4 5 6 7 8 9 10 11 12' 13 14 15 16 17 18 19 20 21 DRAFT COPY ONLY 07/09/97 WHEREAS, the City council finds that it is in the best interest of its citizens to assure that the City's current 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 enable 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 Sebastian, Florida, as follows~: Section 1: A new Chapter of the Code entitled "Telecommunications Ordinance" is hereby created. Section 2: A new Article 1 to Chapter is hereby created as ~Added language is underlined; deleted language is struck through. 1 8 9 10 11 12 13 14 15 16 17 18 20 21 22 23 24 25 26 27 28 29 3O 31 32 33 34 35 DRAFT COPY ONLY 07/09/97 follows: Sec. -1. Definitions. For the purpose of this Chapter, 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 indica.te otherwise: "Affiliata!t means a person that (directly or indirectl~l owns or controls, is owned o~ controlled b~, or is common ownership or control with another person. "Annual Gross revenue" "Cable Act" shall mean the Cable Communications Policy Act of 1~4, 47 U.S.C. Section 532, et. seq., as,now ~nd hereinafter amendedL "Cable operator" means a telecommunications,, ¢~rri¢~ providisG 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 orovided by the Cable Act. "City" means the City of Sebastian. "City property" means and in~lndes all real property owned by the City, other than public streets and utilit~ ~asements as those terms are defined herein, _and all, property held in a oroorietary capacit~ by tha City, which are not subject to riGht-ofrway licensing and franchising as provided in this Chapter. "Corporate Authorities" means the Mayor and City Council of the City of Sebastian. "Excess capacity" means the volume or caDacitK, in ~n~ existing or future duct, conduit, manhole .... handhole or other, utility facility within the public way that i~.or will be available for use for additional telecommunications facilities~ "FCC" or "Federal Communications Commission" means th~ Federal administrative acencv or lawful successor~ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36- 37 38 DRAFT COPY ONLY 07/09/97 authorized to regulat~and oversee_telecommunications carriers, services and providers on a national, 19vel. "Florida Public Service Commission" means the State administrative aaencv, or lawful successor, authorized to regulate and oversee telecommunications carriers, services and providers in the State of Florida. "Other ways" means the hiqhwa~s, streets, alleys, utility easements or other rights-of-wa~within .the City, but under the iurisdiction and control of a aovernment entity other than the City. "Qverhead facilities" means utility Doles, utility facilities and telecommunications facilities located above the surface of the ground includinq., the ~nderaro~nd supports and foundations for such facilities. "Person" means and includes corporations, companies, associations, joint stock companies Qr associations, firms, partnerships, limited liability comDanie~ .and individuals and includes their lessors, trustees and '~?~blic street" means an~ hiqhwav, street, alley or other public riaht of way for motor vehicle travel under th~ jurisdiction and contro3~of the Cit~_~hich 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, ~ow or hereafter owned by the City, but only to the extent of the City's right, titLe--interest or authorit~ to ~ran~ a license or franchise to occupy and ~se such streets and easements for telecommunications facilities. "State" means the State of Florida. "Surplus space" means that Do=tion of the usable spacg, on a utilitv uole which has the necessary clearance frQm other uole .~,ers, as required by the orders and regulations o(,.,,theFlorida Public Sarvice Commission, to allow its use b~ a telecommunications carrier for a Dole attachment. DRAFT COPY ONLY 07/09/97 1 2 3 4 5 9 10 11 12 13 14 15 16 17 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 ~Telecommunications carrie' r" means and includes ever~ person that directly or indirectly. Qwns, controls, operates or manages ~lane, eGuipment or property within the City, used or to be used for tho 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 transmit, receive, distribute, Provide or. offer telecommunications services. "Telecommunications provider" means and includes every person who provides telecommunications service over telecommunications facilities wi.thout any ownershiD..or management control of the facilities., "Telecommunicatiolls sgrvice" .means the provi4ing Qr offering for rent, sale or leasa, or in.exchanGe for other value received, of the transmittal of voice, dat~., image, Graphic and video programming, information between or among points bv wire, cable, fiber optics, laser, microwave, radio, satellite or similar facilities, with or without benefit of any closed transmission medium~ "Under,round facilities" means utility .... and telecommunications facilities located under the surface af the Ground, excluding the underground foundations or slluports for Overhead Facilities. "Usable space" means the total distance between the tQp 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 CitxZ and acquired, established, dedicated or de~o~e~ fQr public utility ~u~poses not inconsistent wi~h telecommunications facilities. " i , Ut !ltv facilities" means the plant equipment ~nd propertv, including but not limited to the poles, pipes, mains, conduits, ducts, cables, wires, pl~n~ ,and 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 DRAF,,.TCOPY ONLY 07/09/97 ea~ioment located under, on or above the surface of Ground within the public ways of th~City and...used to be used for the purpose of providing utility Or telecommunications services. Sec. -2 Registration. Except as otherwise provided herein, ali telecommunications carriers and providers engaged in the business of transmitting, SuPPlYing or furnishing of telecommunications originating or terminatingin the City shall register with the City oursuant to Article 2 of this Chapter. Sec. -3 Teleconu~unications License Except as otherwise provided he=ein, any telecommunications carriers who desire to construct, install, operate, maintain, or otherwise locate telecommunications facilities in, under, over or across any public .~av of the City for the sole_purpose of providing telecommunications service to persons and areas outside the City shall first,brain a license Granting the~use of such public ways from the City pursuant to Article..3 of ~h%s Chapter. Sec. -4Teleco~4nunications Franchise. Except as otherwise provided herein, any telecommu~izations 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 telecommunLcations service to persons or areas in the City, shall first obtain a franchise 'granting the use of such oublic ways from the City pursuant to Article...4 of this Chapter, Sec. -5'Cable Televi.sion Franchise. Except as otherwise provided herein, any telecommunications carrier who desires to construct, install, operate, maintain or locate telecommunications facilities in anv public way Qf the City for the purpose of providin~ cable service to De, sons in tke.. City shall first obtain a cable franchise from the City as provided 4 5 6 7 8 9 10 11 12 13 14 15 16 17 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 D RAFT ,C O P Y .,,,,O NL Y 07/09/97 in Article 5 of this ChaDter~ Sec. 2.6 Application to Existina Franchise Ordinances and Aareements. This Chapter shall have no effect on any existing franchise ordinance or franchise agreement until the expiration of said franchise ordinance or agreement or,, gn amendment to an unexpired franchise ordinance or franchise agreement, unless both parties a~ree to defer full compliance to a specific date not later than the present expiratian date. Sec. -7 Penalties. Any person found guilty of violatinG, disobeying, omitting, neglecting or refusing to compl~ with any of the provisions of this Chapter shall be fined not less than One Hundred Dollars ($100.00~ or more that Hundred Dollars ($ ) for each offense. A separate and distinct offense shall be deemed committed eack day on which a violation occurs or continues. Section 3: A new Article 2 to Chapter is hereby created as follows: Article 2: ReGistlation of Telecommunications Carriers and Providers Sec. 2Ll: Registration Recuiredh~%ll 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 register with the City pursuant to,his Article on forms to be provided by the City Clerk, which shall include the A. The identity and legal status of the registrant, including any,,affiliatest B, ,, The name, address and telephone number el.the officer, a~ent or emmlavee responsible for the accuracy of the registration statement. DRAFT COPY ONLY 07/09/97 10 ll 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 C. A description of reGistrant's .... existing or proposed telecommunications facilities within the Citv.. D. A description of the telecommunications service that the registrant intends to offer or provide, or is currently offerino or providinG, to persons, firms, businesses or institutions within the City, E. Information sufficient to determine whither the registrant is subject tel public way ..licensing or franchising under this Chapter. F, Information sufficient to determine whether the registrant is subject to public wa~ licensing or franchising under this ChaPt~L G. Information sufficient to determine whether the transmission, oriaination or receipt of the telecommunications services provided or to be provided by the registrant constitutes an~occupation or privilege sub%ect to any municipal telecommunications tax, utilit~ messaaatamor other occupation tax imposed by the City. H. Information sufficient to determine tha~ the applicant has applied for and received any constr~ction permit, operating license or other approvals required b~ the Federal Communications Commission or the State of Florida to provide t~lecommunications services or facilities within the City. Such other information as the City Clerk may reasonably require. Section 2.2: Registration Fee: Each application for reGistra~.i.on as a telecommunications carrier or provider shall be accompanied by a fee of Tw.~nty-F~ve Dollars ($25,00) .. Section 2.3: ..Purpose of ReGistratiDn: The purpose of registration under this Chapter is to provide the City with accurate and c~rrent informati.on con¢¢r.ning ~hD telecommunications carriers and oroviders who offer or provide telecommunications services within the City, or that own o~ oDerate telecommunication facilities within the City: to assist the City in enfolzement of this 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 DRAFT COPY ONLY O7/O9/97 Chapter; tm assist the City in the collection and enforcement of any municipal taxes, franchise fees, license fees or charges that may be due to the City; and 'to assist the City in monitoring compliance with local, State and Federal laws. Section 3: A new Article 3 to Chapter is hereby created as follows: Article 3: Telecommunications Licens~ Sec. 3-1: T~le¢0mmuni¢~i0n$ License: A telecommunications license shall be r~uired of an~ telecommunications carrier~ho desires to occupv specific Public ways of the City for the sole Durpose of providing telecommunications services to persons or areas outside of the. City. Sec..3-2: License Application: Any ~erson that desires a telecommunications license pursuant to this Article 3 shall file an application with the VillaGe which sh~ll include toe following information: At The identity of the license aDDlicant, including all affiliates of the applicant. B. A description of the telecommunications services that are or will be offered or provided b~ licensee Qv~F its telecommunications facilities. C. A description of the transmission medium that will be used by the licensee of offer or provide such telecommunications services. D. Preliminary enGineerinG plans, specifications and a network mad to the facilities to be. located within the Citv~ all in sufficient detail to identifv~: 1. The location and~ route reuuested for applicant's proposed telecommunications .facilitigs. 2. 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. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 3O 31 32 33 34 35 D,R, AFTCOPY ONLY 07/09/97 3. 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, th~ applicant proposes to temporarily or permanently remove or relocate. EL If applicant is proposing to install overhead facilities, evidence that surplus space is available far locating its telecommunicJtions facilities on existing utility poles along the proposed routs. F. If applicant is oroposing an underground installation in existing ducts or conduits within the public ways, information in sufficient detai]~o identify: 1. the excess capacity currently available in such ducts or conduits before installation of applicant's t~elecommunications facilities; 2,,, the excess capacity, i~any, that will exist in such ducts or conduits after installation of applicant's telecommunications facilities. ~. if applicant is DrQposinq an underground installation within new ducts or conduits to be constructed within the Public ways: 1. the_location proposed for the new ducts or 2. the excess capacity that will exist in such ducts or conduits after installation of applicant's telecommunications facilities. H, A preliminar~ construction schedule and completion I...,A,,pr~%%minarv traffic control otan in accordance with the FDOT Manual on Uniform Traffic Control,Devices. J. Financial statements prepared in accor~dance with generally accepted accounting principals demonst~ti%q the applicant's financial ability to construct,, operate, 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 DRAFT COPY ONLY 07/09/97 welfare if the license 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 Sec. -4 AGreement: No license granted hereunder shall be effective until the applicant and. the City have executed a written agreement settin~ forth the particular terms and provisions under which the license to occup_~ and use public ways of the City will be granted. Sex. -5 Nonexclusive Grant: No license granted under this Article shall confer anvexclusive right, privilege, license or franchise to occupy or use the public ways of the Citv for delivery of telecommunications services or any other purposes. Sec, -6 RiGhts,ranted: No license 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 occup~ the public ways for the limited purposes,~nd term stated in the grant. Further, no license shall be construed as any warranty of title. Sec. -7 Terms of Grant: Unless otherwise specified in a license agreement, a telecommunications license granted hereunder shall be in effect for a term of fiYe years. Sec. r8 License Route: A telecommunications license ~ranted under this Article shall be limited to a grant of specific public ways and defined portions thereof. Sec, -9 Location of Facilities: Unless otherwise specified in a license agreement, all facilities sha%l be constructe~ installed and located in accordance with th~ following terms and conditions: A. Telecommunications facilities shall be instal%gd 1 2 3 4 5 6 7 8 9 10 11 13 14 16 17 18 19 2O 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 DRAFT COP.Y ONLY 07/09/97 within an existin~ undergroundduct or conduit whenever axcess caDacit~ exists within such utility facility, B. A licensee with permission to install overhead facilities shall install its telecommunications facilities on Dole attachments to existing utility poles only, and then only if surDlus~Dace is available. C. Whenever any existina electric utilities, cable facilities or telecommunications facilities are located underground within a public way of the City, a licensee with permission to occupy the same public way must also locate its telecommunications facilities underaround. D. Whenever any new or existinc~electric utilities, cable facilities or telecommunications facilities are located underground within a public way of the City, a ~Luantee that currently occupies the same public way shall relocate its facilities underaround within a reasonable period of time, which shall not be later tharlthe end of the grant term. Absent extraordinary circumstances or undue hardship as determined bv tke City Engineer, such relocation shall be made concurrently to minimize the disruption oithe public ways. E~ When~v~l .Dew telecommunications facilities will exhaust the capacity of a public street or utility easement to reasonably accommodate future telecommunications carriers or facilities, the arantee shall....Dlo~ide additional ducts, conduits, manholes and other facilities for nondiscriminatory access to future telecommunications carriers. Sec. -10 Construction Permits. AIl licensees are required to obtain construction permits for telecommunications facilities as required in Article 7 oK this ChaDten provided, however, that nothing..., in this Article shall Dr_ohibit the City and a licensee f~Dm a~reeing to alterative olan review, permit and construction procedures in a license agreement, providgd such alta~Dative procedures provide substantially equivalent safe guards for responsible construction Sec. -11 Compensation to Cit¥~ Each license ~ranted ~nder this Article is subject to the Citv's_..right, which 1 2 3 4 5 6 7 8 9 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 3O 31 32 33 34 35 36 37 DRAFT COPY ONLY 07/09/97 is expressly reserved, to annually fix ...~ [~ir .~nd 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. -12 Service to City Users: A licensee, m~v..be permitted to offer or provide telecommunications services to persons or areas within the City upon submitting ~ application for approval pursuant tO Article 4 hereof. Bec. -13: Amendment of Grant~. A new license application and Grant shall be reGuired of . ~ny telecommunications carrier that desires to extend or relocate its telecommunications fa_cilities in Public wa~ not included in a previously aranted.license, the Village shall ~c[rant a license amendment without further application. Sec. -14.: Renewal Applications: A_Grantee that desir~ to renew its license under this article shall, not more than 180 days nor less than 90 days before expiration of the current license, file an application with the Village for renewal of its license which shall include ..the following information: A, The information required oursuant to.Sec,. -2 af this Articl9~ B., Any information recuired pursuant to the license agreement between the City and the.grantee. Sec,. -15: Renewal Determinations: Within 90 days after receiving a complete application under Sec. .14 hereof, the City 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 4 5 6 7 8 9 10 ll 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 DRAFT COPY ONLY 07/09/97 accommodate the applicant's existing facilities. D. The applicant's compliance with the requirements of this Title and the license agreement. E. ApplicabIe federal, state telecommunications laws, rules and policies. and local F. Such other factors as may demonstrate that the continued grant to use the public ways will serve the community interest. Section .16: Obliaation to Cure As a 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 Title, have been cured, or a plan detailing the corrective action to be taken by the grantee has been approved by the City. Article 4: Telecommunications Franchise Section 1: Telecommunications 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 Village. Section 2: Franchise AD, libation: Any person that desires a telecommunications franchise pursuant to this Article 4 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 may map of the facilities to be located within the City, all in sufficient detail to identify: 1 2 4 5 6 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 3O 31 32 33 34 35 DRAFT COPY.ONLY 07/09/97 (a) the location and route requested applicant's proposed telecommunications facilities. for (b) 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. (c) the location(s), if any, for interconnection with the telecommunications facilities of other telecommunications carriers. (d) the specific trees, structures, improvements, facilities and obstructions, if any, that applicant proposes to temporarily or permanently remove or relocate. E. 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. F. If applicant is proposing an underground installation in existing ducts or conduits within the public ways, information in sufficient detail to identify: (a) the excess capacity currently available in such ducts or conduits before installation of applicant's telecommunications facilities; (b) the excess capacity, if any, that will exist in such ducts or conduits after installation of applicant's telecommunications facilities. G. If applicant is proposing an underground installation within new ducts or conduits to be constructed within the public ways: (a) conduits; the location proposed for the new ducts or (b) the excess capacity that will exist in such ducts or conduits after installation of applicant's telecommunications facilities. G. A preliminary traffic control plan in accordance with the FDOT Manual on Uniform Traffic Control Devices. 1 2 3 4 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 DRAFT COPY ONLY 07/09/97 H. Financial statements prepared in accordance with generally accepted accounting principles demonstrating the applicant's financial ability to construct, operate, maintain, relocate and remove the facilities. I. Information in sufficient detail to establish the applicant's technical qualifications, experience and expertise regarding the telecommunications facilities and services described in the application. J. 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. K. Whether the applicant intends to provide cable service, video dialtone service or other video programming service, and sufficient information to determine whether such service is subject to cable franchising. L. An accurate map showing the location of any existing telecommunications facilities in the City that applicant intends to use or lease. M. 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. N. A description of applicant's access and line extension policies. O. The area or areas of the City the applicant desires to serve and a schedule for build-out to the entire franchise area. P. Ail fees, deposits or charges required pursuant to Article 6 of this Title. Q. Such other and further information as may be requested by the City Manager. Section .3: Determination by_the City~: Within 150 days after receiving a complete application under Section .... 2 hereof, the corporate authorities shall issue a written determination granting or denying the application in whole or in part, applying the following standards. If the application is 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 DRAFT COPY ,ON.LY 0?/09/97 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 the 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. The service that applicant will provide to the community and region. H. The service that applicant will provide to the community and region. I. The effect, if any, on public health, safety and welfare if the franchise requested is granted. j. The availability of alternate routes and/or locations for the proposed facilities. K. Applicable federal and state telecommunications laws, regulations and policies. L. Such other factors as may demonstrate that the grant to use the public ways will service the community interest. Se~tiQn 4: Aqreement~ No franchise shall be granted hereunder unless the applicant and the City have executed a written agreement setting for the particular terms and provisions under which the franchise to occupy and use public ways of the City will be granted. 2 3 4 5 6 7 8 9 10 11 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 DRAFT COPY ONLY 07/09/97 Section ,5: Nonexclusive Grant: 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. ~ection 6: Term of Grant: Unless otherwise specified in a franchise agreement, a telecon~aunications franchise granted hereunder shall be valid for a term of (10) years. SectiQn 7: Riahts Grantedl No franchise granted under 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 grant. Further, no franchise shall be construed as any warranty of title. Section .8: Franchise ?erritoz~: A telecorm~unications franchise granted under this Article 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. SectiQD ,9: Location of 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. Telecontmunications 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 telecommunications 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 telecon%munications 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 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 DRAF.T COPY ONLY 07/09/97 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. 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. Section .10: Construction Permits: Ail franchisees are required to obtain construction permits for telecommunications facilities as required in Article 6 of this Title 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 .11: Compensation to City: 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 .12: Nondiscriminatio~ 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, ~hat nothing in this Article shall prohibit a franchise from making any reasonable classifications among differently situated customers. Se~iQn .13: $grvice 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. Section .14: Amendmen~ Qf. Grant: 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 DRAFT COPY ONLY 07/09/97 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. Section .15: Renewal APplications: A grantee that desires to renew its franchise under this Article shall, not more than 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. Section .16: Renewal Detez~ninations: Within 150 days after receiving a complete application under Section .... 15 hereof, the corporate authorities 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. D. The applicant's compliance with the requirements of this Title and the franchise agreement. E. Applicable federal, state telecommunications laws, rules and policies. and local 4 5 6 7 8 9 DRAFT COPY ONLY 07/09/97 F. Such other factors as may demonstrate that the continued grant to use the public ways will serve the community interest. Section .17: Obligation to Cure As a Condition of..Rgngw~l: 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 Title, have been cured, or a plan detailing the corrective action to be taken by the grantee has been approved by the City. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 Article 5: Cable Franchise Reserved Article 6: Fees and Compensation Section LI: 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 Title. Section 6.2: Application and Review Fee: A. Any applicant for a license or franchise pursuant to Articles 3 or 4 of this Title 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 3 or Article 4 of this Title. 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: (a) ($ ) and (b) Ail ascertainable costs and expenses incurred by the City in connection with the application. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 DRAFT COPY O. NLY 0'7/09/97 Section .3: Other Cit~ Costs: Ail license or franchise grantees shall, within thirty (30) days 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 .4: Re~.~rved Compensation.for Public ~ays: 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. Section .5: compensation for VillaGe ProPerty: 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 .6: Construction Permit Fee: .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. Section .7: 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. SectiQn .8 ~le Fees: Cable television franchisees shall be subject to the franchise fees, payments and costs provided in Article 5 of this Title. Section 6.9: Regulatory Fees and Compensation Not a .T~x: The regulatory fees and costs provided for in this Article, and any compensation charged and paid for the public ways provided for in Section ..... 4 of this Article, are separate from, and additional to, any and all federal, state, local and village taxes as may be levied, imposed or due from a 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 DRAFT COPY.ONLY 07/09/97 telecommunications carrier or provider, its customers or subscribers, or an account of the lease, sale, delivery or transmission of telecommunications services. A~ticle 7: Conditions for Grant Section ~lLLocation of Facilities: All 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. A grantee shall install its telecon%munications facilities within an existing underground duct or conduit whenever excess capacity exists within such utility facility. B. 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. C. 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. D. 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. Section .2: Compliance with J.U.L.I.E.: Ail license or franchise grantees shall, before commencing any construction in the public ways, comply with all regulations of J.U.L.I.E. Section 7.3: ~Qn~ru. ction Permits: Ail license or franchise grantees are required to obtain construction permits for telecommunications facilities as required in A~ticle 8 of this Title. However, nothing in this Article shall prohibit the City and a grantee from agreeing to alternative plan review, 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 DRAFT COPY ONLY 07/09/97 permit and construction procedures in a license or franchise agreement, provided such alternative procedures provide substantially equivalent safeguards for responsible construction practices. Section .4: Interference with the Public Ways: 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. Ail such facilities shall be moved by the grantee, temporarily or permanently, as determined by the City Engineer. Section .5: Damage to Property: 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. Section 7.6: Notice of Work: 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 .7: Repair and Emergency Work: In the event of an unexpected repair or emergency, a grantee may commence such repair and emergency response work as required under the 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. Section .8: Maintenance 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. ~ection .9: Relocation or Removal of Facilities: 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 within the public ways whenever the corporate authorities shall have 1 2 3 4 5 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 DRAFT COPY ONLY 07/09/97 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 .10: Removal of Unauthorized Facilitiesi 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 prior 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 telecommunications license or franchise. ~ectiQn .11: Emergency Removal or Relocation of Fa¢il%ties: 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. 9 10 ll 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 DRA,,,F,,T COPY ONLY 07/09/97 SectiOn .12: Damage to Grantee's Facilities: 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 .13: Restoration of Public Ways. Other Ways and Village Promert~v 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 Village 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 or affecting such ways or property. Section .14: Facilities Maps: 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. Section 7.15: Duty to 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 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 3O 31 32 33 34 DRAFT COPY ONLY O7/09/97 this Title. 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. Ail 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. Sectio~ .16: Lea~ed Capacity_: 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. B. The customer or lessee has complied, to the extent applicable, with the requirements of this Title. Section .17: Grantee 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 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 (a) Five Million Dollars ($5,000,000) for bodily injury or death to each person; (b) Five Million Dollars ($5,000,000 damage resulting from any one accident; and, for property © 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. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 DRAFT COPY ONLY 07/09/97 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 operating without a franchise or license here under, or is engaged in the removal 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 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 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 ,.!8: G~nerml 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, an din providing or offering telecommunications services over the facilities or network, whether such acts or omissions are authorized, allowed or prohibited by this Title or by a grant agreement made or entered into pursuant to this Title. 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 DRA,FT COPY ONLY 07/09/97 Section .19: Performance and Construction Surety: Before a license or franchise granted pursuant to this Title 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 Title or by an applicable license or franchise agreement. Section .20: Security Fund: Each grantee shall establish a permanent security fund with the City by depositing the amount of $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 Title, including any 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. B. Before any sums are withdrawn from the security fund, the City shall give written notice to the grantee: (a) 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; (b) providing a reasonable opportunity for grantee to first remedy the existing or ongoing default or failure, if applicable; © 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; (d) 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. $~ction ,21: CQ.nstr!~tion and Completion Bond: Unless 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 18 19 20 21 22 23 24 25 26 27 28 29 3O 31 32 33 34 DRAFT COPYONLY 07/09/97 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. 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 construction. B. The construction bond shall guarantee, satisfaction of the City: to the (a) timely completion of construction; (b) construction in compliance with applicable plans, permits, technical.codes and standards; © by the City; proper location of the facilities as specified (d) restoration of the public ways and other property affected by the construction; (e) the submission of "as-built" drawings after completion of the work as required by this Title (f) timely payment and satisfaction of all claims, demands or liens for labor, material or services provided in connection with the work. Section .22: Coordination of Construction Activities: Ail 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 grantees and users of the public ways annually or as determined by the City to schedule and coordinate construction in the public ways. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 3O 31 32 33 34 35 36 37 DRAFT COPY .ONLY 07/09/97 C. Ail construction locations, activities and' schedules shall be coordinated, as ordered by the City Engineer, to minimize public inconvenience, disruption or damages. ~ection .23: Ass%~nments or T~ansfers 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. B. 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. (a) Complete information setting forth the nature, terms and condition of the proposed transfer or assignment; (b) Ail information required of a telecommunications license or franchise applicant pursuant Articles 3 or 4 of this Title with respect to the proposed transferee or assignee; © the City. Any other information reasonably required by C. 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. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 26 27 28 29 3O 31 32 33 34 35 36 DRAFT COPY ONLY 07/09/97 D. 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. ~ection .... 24: Transaction is Affecting Control 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 .... 22 hereof. Transactions between, affiliated entities are not exempt from City approval. Section .25: Revocation 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. grantee. Unauthorized substantial transfer of control of the D. Unauthorized assignment of a license or franchise. E. Unauthorized sale, franchise or license therein. assignment or transfer of grantee's assets, or a substantial interest E. Misrepresentation or lack of candor by or on behalf of a grantee in any application to the City. F. Abandonment of telecommunications facilities in the public ways. D R A,,,,.F T ,,,C O P Y ONLY 07/09/97 1 2 G. Failure to relocate or remove facilities as required by this Title. 3 4 H. Failure to pay taxes, compensation, fees or costs when and as due the City. 5 I. Insolvency or bankruptcy of the grantee. 6 J. Violation of material provisions of this Title. 7 8 K. Violation of the material terms of a license or franchise agreement. 9 10 11 12 13 14 15 16 Section .26: 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: 17 18 19 A. That corrective action has been, or is being actively and expeditiously pursued, to remedy the violation or noncompliance. 20 B. That rebuts the alleged violation or noncompliance. 21 22 C. That it would be in the public interest to impose some penalty or sanction less than revocation. 23 24 25 26 27 28 29 Section 7.27: Hearina: In the event that a grantee fails to provide evidence reasonably satisfactory to the City Manager as provided in Section ..... 26 hereof, the Manager shall refer the apparent violation or non-compliance to the corporate authorities. The corporate authorities shall provide the grantee with notice and a reasonable opportunity to be heard concerning the matter. 30 31 32 33 34 35 36 Section .28: St~ndard~ for Revocation 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 corporate authorities 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 7 8 10 11 12 13 14 15 16 17 18 19 20 22 23 24 25 26 27 28 29 30 31 32 33 DRAFTCOPY. O, NLY 07/09/97 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 intentional. 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, admitted or cured. Article 8: Construction Standards Section .1: Genez~al: No person shall commence or continue with the construction, installation, or operation of telecommunications facilities within the' City except as provided in this Article. ~ection .2: ...~Qnstruction ~Ddes: 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. Section .3: Construction Permits: 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 installation.of telecommunications facilities within the City unless the telecommunications carrier has filed a registration statement with the City pursuant to Article 2 of this. Title. 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 3, 4 or 5 of this Title. C. No permit shall be issued for the construction or 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 DRAFT COPY ONLY 07/09/97 installation of telecommunications facilities without payment of the construction permit fee established in Section 6.6 of this Title. Section .4: Appl~cation~ 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 existing structures, fixtures, and facilities within or adjacent to the public ways. G. The location, dimension and types of all trees within or adjacent to the public ways along the route proposed by the applicant, together with a landscape Plan for protecting, trimming, removing, replacing and restoring any trees or areas to be disturbed during construction. Section .5:. Enain~er's Certification: 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 X. Section .6:..Traffic Control Plan: Ail permit applications 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 26 27 28 29 3O 31 32 33 34 35 36 37 38 39 4O 41 DRAFT COPY.ONL.Y 07/09/97 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 .7: Issuance of 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 Title, the City Engineer, if satisfied that the applications, plans and document comply with all requirements of this Title, 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 he may deem necessary or appropriate. Section .8: Construction Schedul.9: The permittee shall submit'a written construction schedule to the City Engineer 10 working days before commencing any work in o~ about the public ways. The permittee shall further notify the City Engineer not less than 2 working days in advance of any excavation or work in the public ways. ~ction .9: Compliance with Permit: 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 his representatives shall be provided access to the work and such further information as he or she may require to ensure compliance with such requirements. Section ...... ,10: Display Qf Pgrmi~: 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 his representatives at all times when construction work is occurring. Section .11: Survey of Underground Facilities: 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 registered Illinois land surveyor. The permittee shall relocate any facilities which are not located in compliance with permit requirements. DRAFT COPY ONLY 07/09/97 ~ection .12:' Noncomplying 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. 5 6 7 8 9 10 11 12 13 14 15 16 Section .13: Completion of Construction: The permittee shall promptly complete all construction activities so as to minimize disruption of the village ways and other public and private property. All construction work authorized by a permit within village ways, including restoration, must be completed within 120 days of the date of issuance. Section .14: As-Built Drawing~ 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. 17 18 19 20 21 22 23 Section .!5: Restoration Qf Improvements: 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. 24 Section .16: Land~.cape..Restoration: 25 26 27 28 29 30 31 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. 32 33 34 B. Ail restoration work within the public ways shall be done in accordance with landscape plans approved by the City Engineer. 35 36 37 Section .17: Construction Surety' Prior to issuance of a construction permit, the permittee shall provide a performance bond, as provided in Section 7.21 of this Title. 38 Section .18: Excepti.qns: Unless otherwise provided in a 1 2 DRAFT COPY ONLY 07/09/97 license or franchise agreement, all telecommunications carriers are subject to the requirements of this Article 8. Section .19: 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. City of Sebastian 1225 MAIN STREET Cl SEBASTIAN, FLORIDA 32958 TELEPHONE (407) 388-8200 [] FAX (407) 589-5570 MEMORA ND UM DA TE: TO: FR OM: SUBJECT: June 11, 1997 Honorable Members of City Council Valerie 17. Settles, City Attorney ~ Quasi Judicial Procedures Attached please find revisions to the existing quasi judicial resolution[ have requested that Workshop be scheduled to discuss this in detail. I have added a definition section, which I hope will clarify some of the confusion at these hearings. I have copied the Clerk's office with this draft and hope to have their comments before the workshop. As always, if you have any questions, please give me a call. Attachment cc: Tom Frame, City Manager Kay O'Halloran, City Clerk Sally Maio, Deputy City Clerk Bob Massarelli, Director of Community Development RESOLUTION NO. R-97 A RESOLUTION OF THE CITY OF SEBASTIAN, INDIAN RIVER COUNTY, FLORIDA, REVISING PROCEDURES FOR QUASI-JUDICIAL HEARINGS; SETTING OUR RULES; DESIGNATING THE CONTENTS OF THE RECORD; ESTABLISHING PROCEDURES FOR EVIDENTIAR¥ RULINGS; PROVIDING FOR CONFLICTS AND SEVERABILITY AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the City Council of the City of Sebastian has adopted procedures for conducting quasi-judicial hearings; and WHEREAS, the City Council finds it is in the public interest to amend and clarify its uniform procedures for such hearings. NOW, T~EREFORE, BE IT RESOLVEDBYTHE CITY COUNCIL OF T~E CITY OF SEBASTIAN, iNDIAN RIVER COUNTY, as follows: ~L~{_~. DEFINITIONS. (a) "Applicant" shall be defined as a person, corporation or other legal entity who files with the Community D~lopment Department an application for an action which has been determined by the City Council to be quasi-judicial in nature. (b) "Affected Party" shall be defined as the Applicant, the city staff and persons who are entitled to notice under any provision of this Code of Ordinances or Florida law. c) "Parties" shall be defined as the City, the Applicant, and other Affected Parties. "Party Intervenors" shall be defined as persons who have filed a request to intervene in the matter and who have, for good cause shown, been permitted by the City Council to intervene. (d) "Proponents" shall be defined as Affected Parties, other than the City staff and the Applicant, who support the Application. "Opponents" shall be defined as Affected Parties, other than the City staff who oppose the Application. ~. QUASI-JUDICIAL w~-m~RINGS ON LAND USE MATTERS. The City Council, the Planning and Zoning Commission, the Board of Adjustment and any other City board, as applicable, shall conduct quasi-judicial hearings on land use matters in accordance with the procedures set out in this Resolution. These proceduresr may be modified by the City Attorney, at the request of the Mayor or presiding officer, as appropriate. Land use matters shall include: (a) The rezoning of property which is limited to a single parcel or a limited number of. ProPerty owners. (b) Subdivision plat approvals. (c) Site plans. (d) Variances. (e) Special use permits. (f) Conditional use permits. (g) Building permits. (h) Any other land use decisions which require quasi- judicial hearings. ~. Ail quasi-judicial proceedings on land use matters shall follow the order of presentation as follows: 1. O?ening the gearing. The Mayor or presiding officer shall open the hearing and may outline the rules of procedure for the public at the beginning of the hearing. If requested under Section 4, the City Clerk or Board Secretary will administer an oath to a party or party-intervenor who proposes to testify before the City Council or the Board, as appropriate. 2. Initial Presentation. City staff shall make the initial presentation regarding any item under consideration. At the completion of the staff presentation, other Affected Parties may ask questions of, or seek clarification from the staff through the Mayor or presiding officer. 3. Applicant's Presentation. Following the staff presentation, the Applicant may make a presentation to the City Council or Board, as appropriate. The Applicant shall have the right to make an uninterrupted fifteen (15) minute presentation. 4. In_=uir? of Applicant. Following the Applicant's presentation, the City Council or other Board, as appropriate, shall have an opportunity to comment, ask questions of, or seek clarification from the Applicant cr Applicant's witness(es). The City Council or other Board, as appropriate, may allow staff to comment, ask questions of, cr seek clarification from the Applicant or the Applicant's witness(es) at this time. Other Affected Parties may ask questions of or seek clarification from the Applicant or the Applicant's witness(es) by request through the Mayor or presiding officer at this time. 5. Proponent's Testimony. Following such inquiry, Proponents of the Application shall be allowed to testify. Proponents of the Application may make a presentation of up to three (3) minutes, but a person who represents an organization with five (5) or more members or a group of five (5) or more persons may speak for ten (10) minutes. 6. Inquiry_ of Proponents. Following the Proponent's presentation of any witness, the City Council or other Board, as appropriate, shall have an opportunity to comment, ask questions of or seek clarification from the Proponent. 7. Op_ponent's Presentation. Following the Proponent's presentation, opponents, if any, of any item or request shall be allowed to present evidence. Opponents shall have the right to make an uninterrupted fifteen (15) minute presentation. Opponents may make a presentation of up to three (3) minutes, unless a person represents an organization with five (5) or more members or a group 5) or more persons, such person may speak for ten (10) of five minutes. 8. In~uiry~ of Opponentz. Following the Opponent's presentation of any witness, the City Council, or other Board, as 4 appropriate shall have an opgortunity to comment, ask questions of or seek clarification from the Opponent or the Opponent's witness(es). 9. Informational Testimony. Any member of the public who wishes to present information or clarification on the matter may be allowed to testify in matters where public comment is allowed. The Mayor or presiding officer will open the public information period. A member of the public may make a presentation of three(3) minutes, but a person who represents an organization with five (5) or more members or a group of five (5) or more persons may speak for ten (10) minutes. Following the presentation of any informational witnesses, the City Council, or other Board, as appropriate, shall have the opportunity to comment or ask questions of or seek clarification from the informational witnesses. 10. ~gsinq of Public Information Period: Following the public information period, no additional public comments shall be allowed, except in response to questions by members of the City Council, or other Board, as appropriate. 11. Staff Response and S~--~ry_: Following the completion of the information testimcny, the staff shall be allowed the opportunity to respond to the presentation of the Applicant, Proponent(s), Opponent(s), or the informational witness(es) for a period of ten (10) minutes. Other Affected Parties may be granted an opportunity to poin~ ou~ any errors of fact in the staff presentation or ask questions of staff witnesses on their presentation. 12. Applicant's B-huttal Presentation: The Applicant shall be allowed the opportunity to present rebuttal testimony for a period of ten (10) minutes. Any other Affected Party or staff who believes that a rebuttal presentation includes any error of fact may ask for and be allowed an opportunity to point out such error of'fact in the Applicant's presentation or ask questions of the Applicant's witnesses about its rebuttal presentation. 13. Board and Staff In_=uir!~: If the staff, Applicant, Proponents and Opponents have made presentations as outlined above and the public information portion of the hearing is closed, the City Council, or other Board, as appropriate, shall have the final opportunity to comment and ask questions of any Applicant, Proponent, Opponent, or staff member. 14. Extension of T~m~: Any Affected Party who will be prejudiced by the time limitation set out in this procedure may request additional time from the City Council or other Board, as appropriate. 15. ~: The City Council, or other Board, as appropriate, shall consider the testimony and exhibits of the Applicant, City Staff, Affected Parties and the public, and then act upon the Application. Every decision of the City Council, or other Board, as'appropriate, shall contain the findings of fact and conclusions of law of the City Council or Board. ~/~. EVIDENTIARYMATTERS: (a) If an Affected Party objects to the introduction of any evidence the Mayor or presiding officer shall rule on the objection to the admissibility of the evidence. If any member of the City Council, or other Board, as appropriate disagrees with the Mayor's or presiding officer's ruling on evidence the member shall so state and the City Council, or other Board, as appropriate, shall affirm or overrule the ruling on the admissibility of any evidence. (b) Notwithstanding any other provision herein the Mayor, presiding officer may interrupt any presentation which discusses matters which cannot be considered in deciding the matter before the City Council for consideration. (c) Persons addressing the City Council or other Board, as appropriate, shall identify any educational, occupational or other experience which they possess which may be relevant to the matter under consideration. ~. OATHS AND AFFIRMATIONS. In a quasi-judicial proceeding on land use matters, a person who appears.before the City Council, or other Board, as appropriate, who is not an Affected Party or Partv-Inservenor shall be allowed to testify before the City Council, or c~her Board, as appropriate, subject to control by the City Council, or other Board, as appropriate; may be requested to respond to questions from the decisionmaking body; is not required to be subject to cross-examination; and is not required to be qualified as an expert witness. The City Council, or other Board, as appropriate, shall assign weight and credibility to such testimony as it deems appropriate. An Affected Party or Party-Intervenor in a quasi-judicial proceeding on land use matters, upon request by another Party or Party Intervenor, shall be sworn as a witness, shall be subject to cross-examination by other Parties or Party-Intervenors, and shall be required to be qualified as an expert witness, as appropriate. ~F~C2~=I~_~. REGISTRATION. Persons who desire to make a presentation on an application or item or present information or make a comment on an application or item must register with the City Clerk, or Board secretary, as appropriate, prior to the time in the meeting at which such item is to be heard, in accordance with Resolution No. R-96-53. ~F~J~i_/. ~ The record shall consist of items as follows: (a) All City Ordinances, the Comprehensive Plan, its Policies and all land development regulations. (b) The Application and supporting documents. (c) Any staff recommendations and all staff communication to City Council members, or other Board members, as appropriate, on the pending matter. (d) Any other written communication to the City Council, or other Board, as appropriate, if relevant. ~ EX-PARTE COMMUNICATIONS. In a quasi-judicial proceeding on land use matters, a person may not be precluded from communicating directly with a member of the City Council, or other Board member, as appropriate, by application of ex-parte communication prohibitions. Disclosure of such communications by a member of the City Council, or other Board member, as appropriate, is not required, and such nondisclosure shall not be presumed prejudicial to the decision of the City Council or other Board. Ail decisions of the City Council or other Board, in a quasi- judicial proceeding on local government land use matters must be supported by substantial, competent evidence in the record pertinent to the proceeding, irrespective of such communications. ~ CONFLICT. Ail resolutions or parts of resolutions in conflict herewith are hereby repealed. ~ EFFECTIVE DATE. This Resolution shall take effect immediately upon its passage. The foregoing Resolution was passed for adoption by Councilmember The motion was seconded by Councilmember and, upon being put to a vote, the vote was as follows: 9 Mayor Louise R. Cartwright Vice Mayor Walter Barnes Councilmember Norma Damp Councilmember Raymond Halloran Councilmember Richard Taracka The Mayor thereupon declared this Resolution duly passed and adopted this day of , 1996. CiTY OF SEBASTIAN, FLORIDA ATTEST: By: Louise R. Cartwright, Mayor Kathryn M. O'Halloran, CMC/AAE City Clerk (SEAL) Approved as to Form and Content: Valerie F. Settles City Attorney l0 DRAFT, COPY ONLY 07/1 /97 1 2 3 4 5 6 7 8 9 10 12 13 ORDINANCE NO. 0-97- AN ORDINANCE OF THE CITY COUNCIL 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 FOR REGISTRATION OF TELECOMMUNICATIONS CARRIERS AND PROVIDERS; PROVIDING REQUIREMENT OF TELECOMMUNICATIONS LICENSE; PROVIDING REQUIREMENTS FOR TELECOMMUNiCATiONS 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. WHEREAS, 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 teYecommunications providers and services and to promote competition in telecommunications; and WHEREAS, the City Council desires to permit and manage 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 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 DRAFT COPY ONLY 07/16/97 public trust by the City; and WHEREAS, the City Council finds that it is in the best interest of its citizens to assure that the City's current 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 enable the City to discharge its public trust consistent with rapidly evolving federal and state regulatory policies, industry qompetition and technological development; NOW, THEREFORE, BE IT ORDAINED BY City Council of the City of Sebastian, Florida, as follows~: Section 1: A new Chapter of the Code entitled ~Added language is underlined; deleted language is struck through. 2 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 26 27 28 29 30 31 32 DRAFT COPY ONLY 07/16/97 "Telecommunications Ordinance" is hereby created. Section 2: A new Article 1 to Chapter is hereby created as follows: Sec. -1. Definitions. For the purpose of this Chapter, and the interpretation and enforcement thereof, the followina words and.phrases shall have the following meanings, unless the context of the sentence in which they are used shall indicate "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" "Cable Act" shall mean the Cable Communications Policy Act of 1984, 47 U.S.C. Section 532~ et. seq., as_now and hereinafter amended. "Cable operator" means a telecommunications carrier Drovidina or offerin~ to provide "cable service" w~hin the City as that term is defined in the Cable Act. "Cable service[! fo~ the purpose of this Chapter shall have the same meanina provided by the Cable Act. " ' " n City mea s the City of Sebastian. "Cit~ property,' means and includes all real Drop~r~y owned b~ the City, other than public streets and utility easements as those terms are defined herein, and all DroDerty held in a proprietary capacity .by the City, which are not subiect to right-of,way licen~iDq ~nd franchising as provided in this Chapter. "Corporate Authorities" means the City Council of the City of Sebastian. "Excess capacity" means the volume or capacity in any existing or future duct, conduit, manhole handhole or 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 DRAFT COPY ONLY 07/16/97 other utility facility within the public way that is or will be available for ..use for additio~] telecommunications facilities.. "FCC" or "Federal Communications..Commission" means the Federal administrative a~encv or lawful successor, authorized to regulate and oversee telecommunication~ carriers, services and providers on a national level. "Florida Public Service Commission". means the State administrative a~enc¥, or lawful successor, authorized to regulate and oversee telecommunications carriers, services and providers in the State of Florida, "Other ways" means the highways, streets, alleys, utilit~ easements or other rights-of-wav within ...the City, but under the ~urisdiction and control of a_.~overnment entity other than the "Overhead facilities" means utilitv Doles, u.~ili~y facilities and telecommunications facilities located above the surface of the ground includina.. ~he underground supports and foundations for..~uch facilities, "Person" means ~nd includes corporations, companies, associations, joint stock companies or associations, firms, partnerships, limited liability companies and individuals and includes their lessors, trustees_and "Public street" means any highway, street, alley or oth.~r nublic right of way for motor vehicle travel under the iurisdiction and control of the City which has been acauired, established, dedicated or devoted to highway purposes not inconsistent ~ith telecommunications5 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, b~ 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 anj easements for telecommunications facilities. 4 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 DRAF,T COPY ONLY 07/16/97 "State" means the State of Florida. "Surplus space" means that portion of the usable space on a utility Dole which has tha necessary clearance from other pole users, as reGuired bv 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 or indirectly owns, controls, operates or manages plane, equipment or property within the City, used or to be used for the purpose of offering telecommunications service. "Teleco/Bmunications facilities" means the plant, eGuipment and DroD_erty, including but not limited to, cables, wires, conduits, ducts, pedestals, antennae, electronics and other appurtenances used or to be used to transmit, receive, distribute, provide or offer telecommunications services. ~T~lecommunications 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 om among points by wire, cableL 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 tQp of a utility pole and the lowest possible attazhment point that provides the minimum allowable vertical clearance as specified in the orders and regulations of 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 D R A ET C O P Y ,,,O N ,L Y 07/16/97 the Florida Public Service Commission,., "Utility easement" means any easement owned by the Cit~ and acquiredL established, dedicated or devoted,.,for public utility DUrDOSeS not inconsistent with telecommunications facilities. "Utilitv facilities" means the plant, equipment an~d property, including but not limited to the poles, pipes, mains, conduits, ducts, cables, wires, plant and Mquipment located under, on or above.the surface of th~ ground within the Public ways of the City and used to bc Llsed for the purpose of. providing utility or telecommunications services. Sec. r2 Registlation. Except. as otherwise provided herein, all telecommunications carriers and providers engaaed in th~ business of transmitting, SuDDlyinG or furnishing of ~elecommunications originating or terminatina in the City shall register with the City Dursuant to Article 2 of this Chapter. Sec. -3 Telecommunications License Except as otherwise providgd herein,., ~n~ telecommunications carrie~s who desire to construct, install, operate, maintain, or .otherwise locate telecommunications facilities in, un,der, over or across any public way of the City for the sole purpose o~ Drovidin~ telecommunications service to persons and areas outside the City shall first obtain a license granting the use of such public ways from the City oursuant to Article 3 of this Chapter. Sec. -4 Telecommunications Franchisg. Except as otherwise ~. provided herein, any telecommunications carriers who desire., to construct,, install~ operate, maintain or otherwise locat~. telecommunications facilities in, under, over or acros~ any public way of the City and to also provide tglecommunications service to persons or areas in ~b~ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 DRAFT COPY ONLY 07/1 /97 City, shall first obtain a franchise granting the use of such public waYs from the City pursuant to Article 4 of this Chapter. S~c. -5 Cable Television Franchise. Except as otherwise provided, herein, an~ telecommunications carrier who desires to construct, install, operate, maintain or locate telecommunications facilities in any public way of the City for the purpose of providing cable service to mers,.ons in the City shall first obtain a cable franchise from the,City as provided in Article 5 of this Chapter.. Sec. -6 Application to Existinq_._Franchise Ordinances and A~reements. This Chapter shall have no effect on any existin~ franchise ordinance or franchise agreement until the expiration of said franchise ordinance,.,.or agreement or an amendment to an unexpired franchise ordinance or franchise a~reement, unless both Dartie%_agree to defer full compliance to a s~ecific date not later than the present expiration date. Sac, -7 Penalties. Any person found Guilty of violatinG, disobeying, omittinG~ neglecting or refusing t~,_complv with any of the provisions of this Chapter shall be fined not less than One Hundred Dollars ($100.00k or more that Hundred Dollars ($ ) for each offense. ~'A separate and distinct offense shall be deemed committed each da~ on_which a violation occurs or continues. Section 3: A new Article 2 to Chapter is hereby created as follows: Article 2: Registration of Telecommunications Carriers and P~ovider$ Sec. 2.1: Registration'Required:. All telecommunicatiQns 7 2 3 4 5 6 7 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 DRAFT COPY ONLY 07/16/97 carriers and providers that offer or provide any telecommunications service for a fee directly to th~ public, either within the City, or outside the City limit fL~om~elecommunications facilities within the City, shall register with the City pursuant to this Article on forms to be provided bv the Citv Clerk, which shall include th~ followinq: A. The identity and legal status of the registrant, including any affiliates. B. The name, address and telephone number of th~ officer, aaent or employee responsible for the accuracy of the registration statement., C. A description of registrant's existing or Proposed telecommunications facilities within the Cit~. 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 whether the registrant is subject to public way licensing or franchisin~under this Chapter. F. Information sufficient to determine whether the transmission, origination or receipt of the telecommunications services provided or to be provided by the registrant constitutes an occupation or privilege subject to any municipal telecommunications t~ax, utility message tax or other occupation tax, imposed by the Cit~. G. Information sufficient to determine that the applicant has aDDlied for and received anv construction permit, operatina license or other aoDrovals required by the Federal Communications~ommission or the State of Florida to provide telecommunications services or facilities within the City. H. Such other information as the .City Clerk may measonablv require. 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 DRAFT COPY ONLY 07/16/97 Section 2.2: ReGistration Fee: Each application for registration as a telecommunications carrier or provider shall be accompanied by a fee of Twenty-Five Dollars ($25.00). Section 2.3: Purpose of ReGist=ation: The purpose of reaistration under this Chapter is to .~rovide the City with accurate and current information concerning the telecommunications carriers and providers who offer or ~ovide telecommunications service~...within the City, or that own or operate telecommunication facilities within the City: to assist the City in enforcement of this Chapter; to assist the City in the collection and enforcement of any municipal taxes, franchise fees, license fees or charges that may be due to the Citv~ and to assist the City in monitoring compliance with local, State and Federal laws. Section 3: A new Article 3 to Chapter is hereby created as follows: Article 3: Telecommunications License Sec. 3-1: Telecommunications License: A telecommunications license shall be reauired of any telecommunications carrier who desires to occupy specific public wavsDf ~he ~itv fo~ the sole purpose of providing telecommunications services to persons or areas outsid~ of the City. Sec. 3-2: License APPlication: Any person.that desires a telecommunications license pursuant to this Article 3 shall file an application with the VillaGe which shall include the following information: A, The identity of the license applicant, including all affiliates o~_the applicant, BL A description of the telecommunications services that are or will be offered or provided bv licensee over its telecommunications facilities. C. A description of the transmiss, ion medium that 9 1 2 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 DRAFT COPY ON,,LY 07/16/97 will be used by the licensee of of. fer or provide such telecommunications services. D. Preliminary engineerina olans, specifications and a network map to the facilities to be located ~ithi~ the City, all in sufficient detail to_identify: 1. The location and route request~., for applicant,s proposed telecommunications facilities. 2. The location of ....... all overhead and underground public utility, telecommunication, cable, water, sewer, drainage and other facilities in the public way alona the proposed route. 3. The location(s.), if any, for interconnection with the telecommunications facilities of other telecommunications carriers. 4. The specific ~rees, structures, improvements, facilities and obstructions if any, that applicant proposes to temporarily or permanently remove or relocate. E. If applicant is proposing, to install overhead facilities, evidence that surplus space is available far locating its telecommunications facilities on existing utility Doles along the proposed routs.. F. If applicant is proposin~ an underground installation in existin~ ducts or conduits within the public ways, information in sufficient detail to identify; 1. the excess capacity currently available in such ducts or conduits before installation of applicant's t~lecommunications facilities; 2. the excess capacity, if an~ that will. exist in such ducts or conduits after installation of applicant's t~lecommunications faciliti~.s G. If applicant is proposing an underground installation within new ducts or conduits to be constructed within the public ways: 10 1 2 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 26 27 28 29 30 31 32 33 34 DRAFT COPY ONLY 07/16/97 1. the location proposed for the new ducts or 2. the excess capacity that will exist in such ducts or conduits after installation of applicant's telecommunications facilities. H. A preliminary construction schedule and completion date. I. A preliminary traffic control olan in accordance with the FDOT Manual on Uniform Traffic Control Devices. J. Financial statements prepared in accordance with aenerallv accepted accountina principals demon~.trating the applicant's financial ability to construct operate, maintain, relocate and remove the facilities. K. Information in sufficient detail to establish the applicant's technical aualifications, experience and expertise regardina the telecommunications facilities and services described in the application: L. Information to establish that the applicant has obtained all other governmental approvals and permits to construct and operate the facilities and to Qff~r or provide the telecommunications services. M. Ail fees, deposit or charges required, pursuant to Article 6 of this Chapter. N. Such other and further information as may'be required b~the City Manager. Sec, -3: Determination bv the City: Within 120 days after receivin~ a complete application, the City Council shall issue a w~itten determinatio~ ~ranting or ~nying the application in whole or in part, aD~lving thm following standards. If the application is denied, the written determination shall include the reasons for denial. A. The financial and technical ability of th~ 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 DRAFT COPY ONLY 07/16/97 B~ The legal abilit, v of the applicant. C. The capacity of the public ways to accommodat.e additional utility and telecommunications facilities if the license is ~ranted. D. The damage or disruption, if any, of public or Drivate facilities, improvements, ser.vice, travel or landscaping if the license is aranted. E. The public interest in minimizin~ 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 license 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 ~rant to use the public ways will serve the community interest. Sec. -4 Agreement: No license granted hereunder sha%l be effective until the applicant and the City have executed a ~ritten agreement settina forth th~ particular terms and provisions under which the license to occupy and use public ways of the City will be ~ranted. Sec. -5 Nonexclusive Grant: No license aranted under this Article shall confer any exclusive right, privilege, license or franchise to occuDv or use the public ways of the City for delivery of telecommunications services or any other purpos.e.s, ~ec, ,6 Rights Granted: No license ~ranted under this Article shall convey any right, title or interest in the public ways, but shall be deemed a license only to use 12 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 3O 31 32 33 34 35 36 D,R, AFTCOPY O_NLY 07/16/97 and oCCUpY the public ways for the limited purposes and term stated in the Grant. Further, no license sh~ll Re construed as any warranty of title. Sec. -7 Terms of Grantl Unless otherwise specified in a license agreement, a telecommunications license granted hereunder shall be in effect for a term of five (5) Sec. -8 License Route: A telecommunications license granted under this Article shall be limited to a grant of specific public wavs and defined portions thereof. Sec. -9 Location of Facilities: Unless othe~wis~ specified in a license agreement, all facilities shall be constructed, installed and located in accordance with.~h~ following terms and conditions~ A. Telecommunications facilities shall be installed within an existing underground duct or conduit wheneu~r excess capacity exists within such ~tilitv facility, B. A licensee ~ith permission to install overhead facilities shall install its telecommunications facilities on Dole attachments to existing utility Doles onlv, and then only if surplus space is available, C. Whenever any existing electric utilities, cable facilities or telecommunications facilities are located underground within a public way of the City, a licensee with permission to occupy the same public way must also locate its telecommunications facilities ~nd~rGround. D. Whenever any new or existin~ electric utilities, cable facilities or telecommunications facilities are located underground within a public way of the City, a ~rantee that currently OCCUDies 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 extraordinar~ circumstances._.or undue hardship as determined bv the City Engineer, such relocation shall be made concurrently to minimize the disruption of the public wa~s. 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 3O 31 32 33 34 35 36 37 38 39 DRAFT COPY ONLY 07/16/97 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 arantee shall provide additional ducts, conduits, manholes aod other facilities for nondiscriminatory access to future telecommunications carriers. Sec. -10 Construction Permits. Ail licensees are reauired to obtain construction permits for telecommunications facilities as required in Article. 7 of this Chapter provided, however, that nothing in this Article shall prohibit the City and ~... licensee from aoreeing to alterative plan review, permit and construction procedures in a license agreement, provided such alternative procedures provide_ substantially equivalent safe ~uards for responsible, construction Sec. -11 Commensation 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 ba Paid for the property riahts ~ranted to the licensee: provided,..nothin~ in this Article shall prohibit the City and ..a. licensee from a~reeing to the compensation to he paid, Sec. r.12 Service to City Users: A licensee.m~y be permitted to offer or provide telecommunications services to persons or areas within the City upon submitting.an application for approval pursuant to Article 4 hereof. Sec. ~13: Amendment of Grant: A new license application and arant shall be .required of an~ telecommunications carrier that desire.~ to extend or relocate its telecommunications facilities in public ways not included in a previously granted .license, the Cit~ shall ~rant a license amendment without further application. Sec. -14: R~newalAmmlications: A ~rantee..that desires to renew its license under this article shall, not more than 180 davs nor less than 90 days before expiration of the current license, file an application with the City 14 1 2 5 6 7 8 9 l0 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 DRAFT COPY ONLY 07/16/97 for renewal of its license which shall include the following information: A. The information re_cfuired pursuant to Se~., this Article. -2 of B. Any information recuired pursuant to the license agreement between the City and the Grantee. Sec. -15: Renewal Determinations: Within 90 days after receiving a complete application under Sec. .14 hereof, the City 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. D. The applicant's compliance with the requirements of this Title and the license agreement. E. Applicable federal, state telecommunications laws, rules and policies. and local F. Such other factors as may demon§trate that the continued grant to use the public ways will serve the community interest. Section .16: ObliGation to Cure As a 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 Title, have been cured, or a plan detailing the corrective action to be taken by the grantee has been approved by the City. Article 4: Telecommunications Franchise 15 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 3O 31 32 33 34 DRAFT COPY ON,,,LY 07/16/97 Section 1: Telecommunications 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. Section 2: Franchise ADmlication: Any person that desir'es a telecommunications franchise pursuant to this Article 4 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 may map of the facilities to be located within the City, all in sufficient detail to identify: (a) the location and route requested applicant's proposed telecommunications facilities. for (b) the location of all overhead and underground public utility, telecommunications, cable, water, sewer drainage and other facilities in the pubti~ way along the proposed route. (c) the location(s), if any, for interconnection with the telecommunications facilities of other telecommunications carriers. (d) the specific trees, structures, improvements, facilities and obstructions, if any, that applicant proposes to temporarily or permanently remove or relocate. E. If applicant is proposing to install overhead facilities, evidence that surplus space is available for 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 DRAFT C.OPY ONLY 07/16/97 locating its telecommunications facilities on existing utility poles along the proposed route. F. If applicant is proposing an underground installation in existing ducts or conduits within the public ways, information in sufficient detail to identify: (a) the excess capacity currently available in such ducts or conduits before installation of applicant's telecommunications facilities; (b) the excess capacity, if any, that will exist in such ducts or conduits after installation of applicant's telecommunications facilities. G. If applicant is proposing an underground installation within new ducts or conduits to be constructed within the public ways: (a) conduits; the location proposed for the new ducts or (b) the excess capacity that will exist in such ducts or conduits after installation of applicant's telecommunications facilities. G. A preliminary traffic control plan in accordance with the FDOT Manual on Uniform Traffic Control Devices. H. Financial statements prepared in accordance with generally accepted accounting principles demonstrating the applicant's financial ability to construct, o~erate, maintain, relocate and remove the facilities. I. Information in sufficient detail to establish the applicant's technical qualifications, experience and expertise regarding the telecommunications facilities and services described in the application. J. 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. 17 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 DRAFT C O P Y....O N LY 07/16/97 K. Whether the applicant intends to provide cable service, video dialtone service or other video programming service, and sufficient information to determine whether such service is subject to cable franchising. L. An accurate map showing the location of any existing telecommunications facilities in the City that applicant intends to use or lease. M. 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. N. A description of applicant's access and line extension policies. 0. The area or areas of the City the applicant desires to serve and a schedule for build-out to the entire franchise area. P. Ail fees, deposits or charges required pursuant to Article 6 of this Title. Q. Such other and further information as may be requested by the City Manager. Section .3: Determination bv the Citv.~ Within 150 days after receiving a complete application under Section .... 2 hereof, 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 reasSns 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 the applicant's proposed facilities. D. The capacity of the public ways to accommodate additional utility and telecommunications facilities if the franchise is granted. 18 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 3O 31 32 33 34 DRAFT,COPY .ONLY 07/16/97 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. The service that applicant will provide to the community and region. H. The effect, if any, on public health, safety and welfare if the franchise requested is granted. I. The availability of alternate locations for the proposed facilities. routes and/or J. Applicable federal and state telecommunications laws, regulations and policies. K. Such other factors as may demonstrate that the grant to use the public ways will service the community interest. Section 4: Aareement: .. No franchise shall be granted hereunder unless the applicant and the City have executed a written agreement setting for the particular terms and provisions under which the franchise to occupy and use public ways of the City will be granted. Section .5: Nonexclusive Grant[ 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. Section 6: Term of Grant: Unless otherwise specified in a franchise agreement, a telecommunications franchise granted hereunder shall be valid for a term of (10) years. Section .._?i. Rights Granted: NO franchise granted under 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 grant. Further, no franchise shall be construed as any warranty of title. 19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 DRAFT COPY ON,LY 07/16/97 Section .8: Franchise Territory_: A telecommunications franchise granted under this Article 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 .9: Location of 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. Telecommunications 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 telecommunications 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 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. Section .10: Construction Permits: Ail franchisees are 2O 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 DRAFT COPY ONLY 07/16/97 required to obtain construction permits for telecommunications facilities as required in Article 6 of this Title 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 .11: Compensation to City: 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 .12: Nondiscriminationl 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 .13: 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. Secti.Qn 14.:..Amendment 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. 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 3O 31 32 33 34 DRAFT COPY ONLY 07/16/97 Section .15: Renewal Application~.: A grantee that desires to renew its franchise under this Article shall, not more than 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. Section .16: Renew~.~rmination$: Within 150 days after receiving a complete application under Section .... 15 hereof, the City Council authorities 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. D. The applicant's compliance with the requirements of this Title and the franchise agreement. E. Applicable federal, state telecommunications laws, rules and policies. and local F. Such other factors as may demonstrate that the continued grant to use the public ways will serve the community interest. Section .17: Obligation to Cure As a condition of 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 Title, have been cured, or a plan detailing the corrective action to be taken 22 1 DRAF. T COPY ONLY 07/16/97 by the grantee has been approved by the City. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 Article 5: Cable Franchise Reserved Article 6: Fees and Compensation Section .1: 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 Title. Section 6.2: Application and Review Fee: A. Any applicant for a license or franchise pursuant to Articles 3 or 4 of this Title 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 3 or Article 4 of this Title. 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: (a) ($ ) and (b) Ail ascertainable costs and expenses incurred by the City in connection with the application. S~ction .3: Other City Costs: Ail license or franchise grantees shall, within thirty (30) days 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. 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 DRAFT COPY ONLY 07/16/97 Section .4: Reserved Compensation for Public Wa~s: 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. Section ,5: ComDensatiQn for City Property_: 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 .6L Construction Permit Fee: 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. Section .7: 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 .8 Cable Fees: Cable television franchisees shall be subject to the franchise fees, payments and costs provided in Article 5 of this Title. ' Section 6.9: Regulatory Fees and Compensation Not a Tax; The regulatory fees and costs provided for in this Article, and any compensation charged and paid for the public ways provided for in Section ..... 4 of this Article, are separate from, and additional to, any and all federal, state, local and City taxes as may be levied, imposed or 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 7: Conditions for Grant 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 DRAFT COPY ONLY 07/16/97 Section .1: 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. A grantee shall install its telecommunications facilities within an existing underground duct or conduit whenever excess capacity exists within such utility facility. B. 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. C. 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. D. Whenever new telecor~munications 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. Section ~2: Compliance with J.U.L.I.E.:. 'Ail license or franchise grantees shall, before commencing any construction in the public ways, comply with all regulations of J.U.L.I.E. Section 7.3: Construction Permits: Ail license or franchise grantees are required to obtain construction permits for telecommunications facilities as required in Article 8'of this Title. 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. 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 DRAFT COPY ONL,Y 07/16/97 Section .4: Interference wi~h..the Public Ways: 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. S~ction .5: Dmmmae to Property: 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. Section 7.6: Notice of Work: 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 ..... 7: Repair and Emergency Work: In the event of an unexpected repair or emergency, a grantee may commence such repair and emergency response work as required under the 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. Section .8: Maintenance 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. Section 9: Relocation or Removal of Facilities: 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 26 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 DRAFT COPY O,,,NLY 07/16/97 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 .lQ: Removal of Unauthorized 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 prior 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 telecommunications license or franchise. Section .11: Emergency_ Removal or Relocation of Facilities: 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 .12: Damage to Grantee's Facilities: Unless directly and proximately caused by the willful, intentional or 27 2 3 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 DRAFT COPY ONLY 07/16/97 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 .13: Restoration of Public Ways, Other Ways and Ci.tv 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 or affecting such ways or property. Section .14: Facilities Maps: Each license or franchise grantee shall provide the City with an accurate map or maps certifying the location of all teleconununications facilities within the public ways. Each grantee shall provide updated maps annually. Section ...7,15: Duty to Provide InfQrmation: 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 28 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 DRAFT COPY ONLY 07/16/97 this Title. 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. Ail 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. Section .16: Leased Capacity~: 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. B. The customer or lessee has complied, to the extent applicable, with the requirements of this Title. Section .17: Grantee 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 and the City, and its elected and appointed officers, officials, agents and employees as coinsureds: A. Comprehensive limits not less than general liability insurance with (a) Five Million Dollars ($5,000,000) for bodily injury or death to each person; (b) Five Million Dollars ($5,000,000) for property damage resulting 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 29 9 10 11 13 14 15 16 17 18 19 2O 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 DRAFT COPY ONLY 07/16/97 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 operating without a franchise or license here under, or is engaged in the removal 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 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 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 .18: 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, an din providing or offering telecommunications 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 26 27 28 29 3O 31 32 33 34 35 36 DRAFT,,COPY O.,,,N L Y 07/16/97 services over the facilities or network, whether such acts or omissions are authorized, allowed or prohibited by this Title or by a grant agreement made or entered into pursuant to this Title. Section .19: Performance and Construction Surety: Before a license or franchise granted pursuant to this Title 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 Title or by an applicable license or franchise agreement. Section .20: Security Fund: Each grantee shall establish a permanent security fund with the City by depositing the amount of $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 Title, including any 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. B. Before any sums are withdrawn from the security fund, the City shall give written notice to the grantee: (a) describing the act, default or failure to be remedied, or the damages, cost or expenses whfch the City has incurred by reason of grantee's act or default; (b) providing a reasonable opportunity for grantee to first remedy the existing or ongoing default or failure, if applicable; © 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; (d) that the grantee will be given an opportunity to review the act, default or failure described in the notice 31 4 5 6 7 8 9 10 11 12 13 14 15 16 17 19 20 21 22 23 24 25 26 27 28 29 30 31 32 DRAFT COPY ONLY 07/16/97 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 ~here is a deficiency in the amount of the fund. Section .21: 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. 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 construction. B. The construction bond shall guarantee, satisfaction of the City: to the (a) timely completion of construction; (b) construction in compliance with applicable plans, permits, technical codes and standards; © by the City; proper location of the facilities as specified (d) restoration of the public ways and other property affected by the construction; ' (e) the submission of "as-built" drawings after completion of the work as required by this Title (f) timely payment and satisfaction of all claims, demands or liens for labor, material or services provided in connection with the work. S~ction .22: Coordination of Construction Activities~t Ail grantees are required to cooperate with the City and with each other. 32 1 2 3 4 5 6 7 8 9 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 3O 31 32 33 34 35 36 DRAFT COPY. ONLY 07/16/97 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 grantees 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. Section .23: Assianments 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% B. 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. (a) Complete information setting forth the nature, terms and condition of the proposed transfer or assignment; (b) Ail information required of a telecommunications license or franchise applicant pursuant Articles 3 or 4 of this Title with respect to the proposed 33 1 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 DRAFT COPY ON,LY 07/16/97 transferee or assignee; © the City. Any other information reasonably required by C. 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. D. 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 .24: Transaction is Affecting Control of GrantL 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 .... 22 hereof. Transactions between affiliated entities are not exempt from City approval. Section .25: Revocation 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 location. at any unauthorized grantee. Unauthorized substantial transfer of control of the 34 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 DRAFT,,COPY ONLY 07/16/97 D. Unauthorized assignment of a license or franchise. E. Unauthorized sale, franchise or license therein. assignment or transfer of grantee's assets, or a substantial interest E. Misrepresentation or lack of candor by or on behalf of a grantee in any application to the City. F. Abandonment of telecommunications facilities in the public ways. G. Failure to relocate or remove facilities as required by this Title. H. Failure to pay taxes, compensation, fees or costs when and as due the City. I. Insolvency or bankruptcy of the grantee. J. Violation of material provisions of this Title. K. Violation of the material terms of a license or franchise agreement. Section .26: 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. That rebuts the alleged violation or noncompliance. C. That it would be in the public interest to impose some penalty or sanction less than revocation. Section 7.27: Hearing: In the event that a grantee fails to 35 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 DRAFT COPY ONLY 07/16/97 provide evidence reasonably satisfactory to the City Manager as provided in Section ..... 26 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. Section .28: Standards for Revocation 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 intentional. 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, admitted or cured. Article 8: Construction Standards Section .1: General: No person shall commence or continue with the construction, installation, or operation of telecommunications facilities within the City except as provided in this Article. Section .2: Constructio~ 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. Section .3: Construction Permits: No person shall construct or install any telecommunications facilities within the City 36 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 3O 31 32 33 34 DRAFT COPY ONLY 07/16/97 without first obtaining a construction permit therefor, provided, however. A. No permit shall be issued for the construction or installation of telecommunications facilities within the City unless the telecommunications carrier has filed a registration statement with the City pursuant to Article 2 of this Title. 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 3, 4 or 5 of this Title. C. No permit shall be issued for the construction or installation of telecommunications facilities without payment of the construction permit.fee established in Section 6.6 of this Title. Section .4: Applications: 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. 37 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 DRAFT COPY ONLY 07/16/97 F. The construction methods to be protection of existing structures, fixtures, within or adjacent to the public ways. employed for and facilities G. The location, dimension and types of all trees within or adjacent to the public ways along the route proposed by the applicant, together with a landscape plan for protecting, trimming, removing, replacing and restoring any trees or areas to be disturbed during construction. Section .5: Engineer's Certification:. 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 X. Section ...... 6: 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. ~ection .7: Issuance of 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 Title, the City Engineer, if satisfied that the applications, plans and document comply with all requirements of this Title, 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 he may deem necessary or appropriate. Section .8: Construction Schedule: The permittee shall submit a written construction schedule to the City Engineer 10 working days before commencing any work in or about the public ways. The permittee shall further notify the City Engineer not less than 2 working days in advance of any excavation or work in the public ways. Section .9: Compli~n~ with Permit: Ail construction practices and activities shall be in accordance with the 38 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 DRAFT COPY ONLY 07/16/97 permit and approved final plans and specifications for the facilities. The City Engineer and his representatives shall be provided access to the work and such further information as he or she may require to ensure compliance with such requirements. Section .10: Display of Permit: 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 his representatives at all times when construction work is occurring. Sectio~ ............ 11: Survey of Underaround Facilities: 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 registered Florida land surveyor. The permittee shall relocate any facilities which are not located in compliance with permit requirements. Section .12: Noncomplyina 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 .13: Completion 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. All construction work authorized by a permit within City ways, including restoration, must be completed within 120 days of the date of issuance. Section .14: As-Built Drawinas: 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. Section .15: Restoration of Improvements: 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 39 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 DRAFT C O PY.._O NLY 07/16/97 as nearly as practicable to its condition before the start of construction. Section .16: Landscape Restoration: 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. Ail restoration work within the public ways shall be done in accordance with landscape plans approved by the City Engineer. Section .17: Construction Surety: Prior to issuance of a construction permit, the permittee shall provide a performance bond, as provided in Section 7.21 of this Title. Section .18: Exceptions: Unless otherwise provided in a license or franchise agreement, all telecommunications carriers are subject to the requirements of this Article 8. Section .19: 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. 40