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HomeMy WebLinkAbout1216199812:~§ Mnin 5tee~°r tn 5eb~ti~n, FIo~id~ 32~58 Telephone (56~) 58~-5330 Q F~ (561) 58~-5570 E-Mail: ci~seb~iu.net SEBAST~N CI~ COUNC~ AGENDA REGULAR MEETING WEDNESDAY, DECEMBER 16, 1998 - 7:00 P.M. CITY COUNCIL CHAMBERS 1225 MAIN STREET, SEBASTIAN, FLORIDA ALL AGENDA ITEMS MAY BE INSPECTED IN THE OFFICE OF THE CITY CLERK - 1225 MAIN STREET, SEBASTIAN, FLORIDA Individuals will address the City Council with respect to agenda items immediately before deliberation of the item by the City Council - 'imit often minutes per speaker (R-9 7-21) 1. CALL TO ORDER 2. PLEDGE OF ALLEGIANCE INVOCATION/MOMENT OF SILENCE 4. ROLL CAI.~L AGENDA MODIFICATIONS (ADDITION~ AND/OR DELETIONS) Items not on the written agenda may be added only upon a majori(y vote of Cio~ Council members (R-97-21) 6. PROCLAMATIQ~S, ANNOUNCEMENTS AND/OIl.PRESENTATIONS 98.218 A. Presentation by St. Johns River Water Management District Re: Local Government Assistance (Engel Letter 11/25/98) 7. CITY ATTORNEY MATTERS 8. CITY MANAGER MATTERS 98.211 98.212 98.213 98.214 98.161 }8.219 98.209 10. 11. CARRIED FORWARD FROM DI~CEMBER 2. 1998 REGULAR MEETING A. Discussion of City Clerk Evaluation (City Clerk Memo 11/16/98) B. Establish Policy for Charter Officer Evaluations (No Backup) Adopt Fiscal Year 1999 Priority List Side Yard Culvert Installation (City Engineer Transmittal 11/20/98, Priority List) Authorize City Manager to Purchase Three Hand-Held Radar Units from Applied Concepts, Inc. for Police Department- $6,330 - Sole Source (Police Transmittal 11/16/98, Quote, Sole-Source Statement) Approve Change Order with Applied Aquatic Management Inc. in the Amount of $6,000 (Public Works Transmittal 11/24/98, Change Order 1) CONSENT.AGI~NOA All items on the co.sent agenda are considered routine and will be enacted by one motion. There will be no separate discussion of consent agenda items unless a member of CiO~ Council so requests; in which event, the item will be removed and acted upon separately. A. Approval of Minutes - 12/2/98 Regular Meeting Approve Use of Riverview Park for Easter Sunrise Service by Sebastian River Evangelical Ministers' Fellowship on April 4, 1999 from 6 am to 8 am - Bleachers and Electricity (City Manager Transmittal 12/10/98, Kempf Letter) pUBLIC..H~ARING Procedures for public hearings: (R-97-21) · Mayor Opens Hearing · ,q tierney Reads Ordinance or Resolution · StaffPresentation , Public Input - Limit ofTen Minutes Per Speaker · StaffSummation · Mayor Closes Hearing · CouncilAction Anyone Wishing to Speak is Asked to Sign Up before the Meeting, When Called go to the Podium and State His or Her Name for the Record Ordinance No. 0-9~-20 - Materials for Drainage Pipes Under Drj.y.c~ay Swales (City Manager Transmittal 12/10/98, 0-98-20) AN ORDINANCE OF THE CITY OF SEBASTIAN, INDIAN RIVER COUNTY, FLORIDA, AIVlENDINO SECTION 90-87 (a) OF THE CODE OF ORDINANCES OF THE CITY OF SEBASTIAN RELATIVE TO DRAINS UNDER DRiVEWAYS FOR SWALE DrrcI-IES; PROVIDING FOR REPEAL OF ORDINANCES OR PARTS OF ORDINANCES IN CONFLICT HEREWITH; PROVIDING FOR SEVERABILITY; PROVIDING FOR CODIFICATION; AND PROVIDING FOR AN EFFECTIVE DATE. (1 st Reading 11/18/98, Advertised Legal 12/4/98, Public Hearing 12/16/98) 2 98.210 98.210 12. 13. 14. 15. 16. Ordinance No. 0-98-21 - Falcon Cable Franchise Agreement £Cjt~ Man.er Tran~mj~ta! !2/t9./98. Revised 0-98-21) AN ORDINANCE OF THE CITY OF SEBASTIAN, FLORIDA, GRANTING TO FALCON CABLE MEDIA, A CALIFORNIA LIMrlED PARTNERSHIP, THE PERMISSION TO OCCUPY MUNICIPAL STREETS AND RIGHTS-OF- WAY IN THE CITY OF SEBASTIAN, FLORIDA, AS A MEANS OF PROVIDING CABLE TELEVISION SERVICES; PRESCRIBING THE TERMS AND CONDITIONS ACCOMPANYING THE GRANT OF FRANCHISE; AND PRESCRIBING PENALTIES FOR THE VIOLATION OF ITS PROVISIONS; PROVIDING FOR SEVERABILITY OF PROVISIONS; PROVIDING FOR PUBLICATION IN ACCORDANCE WITH LAW; AND PROVIDING FOR AN EFFECTIVE DATE. (lst Reading 11/18/98, 1st Reading 12/2/98, Advertised Legal 12/4/98, Public Hearing 12/16/98) QUASI-JUDICIAL HEARING (Procedures are on Back of Agenda) Ql~asi-Judicial Heating on Ordinance No. O-98-22 - Small Scale Comprehensive Latld U~c Pl~rl Amendment - Fischer Propelly l,J.,fi~Jtigh~ay One (Growth Management Director Transmittal 12/10/98, Application. Locatioll Map. S~aff Repo~ P&Z Recommendation) AN ORDINANCE OF THE CITY OF SEBASTIAN, INDIAN RIVER COUNTY, FLORIDA, APPROVING A SMALL SCALE AMENDMENT TO THE COMPREHENSIVE PLAN WHICH AMENDS THE FUTURE IAdqD USE MAP TO IN (INDUSTRIAL) FOR LAND CONSISTING OF 1.85 ACRES, MORE OR LESS, LOCATED AT 10900 U.S. HIGHWAY 1, IN THE EAST CENTRAL PORTION OF THE CITY, WEST OF U.S. 1, AND EAST OF FEC RAILROAD RIGHT-OF- WAY; FINDING THAT THE COMPREHENSIVE PLAN AMENDMENT QUALIFIES AS A SMALL SCALE AMENDMENT UNDER FLORIDA STATITrES SECTION 163.3187 (1)(C); PROVIDING FOR COPIES OF THE SMALL SCALE AMENDMENT TO BE TRANSMITTED TO ALL PARTIES AS REQUIRED BY FLORIDA STATWrES SECTION 163.3184 (7); PROVIDING FOR REPEAL OF ORDINANCES OR PARTS OF ORDINANCES IN CONFLICT HEREWITH; PROVIDING FOR SEVERABILITY; AND PROVIDING FOR AN EFFECTIVE DATE. (Only One Reading Rcquired, Advertised Sebastian Page 12/9/98, PH 12/16/98) INTRODUCTION OF NEW BUSINESS FROM THE PUBLIC Item that has occurred or was discovered within the pre~ious six months which is not otherwise on the agenda - sign-up required - limit often minutes for each speaker COMMITTEE REPORTS/RE COMMENDAT] QI",t$ OLD BUSINESS NEW BUSINESfi First Readingof Ordi/10OC~ No. 0-98-23 - Rezoning Fischer Properly U.S. Highway One - Schedule Quasi-Judicial Public Hearing (Growth Management Trqtl~[lliB~ll, City Attorn~ Opinion, 0-98-23, Application, Map. StaffR.~port, P & ~ lRecommendation) AN ORDINANCE OF THE CITY OF SEBASTIAN, INDIAN RIVER COUNTY, FLORIDA, REZONING CERTAIN PROPERTY LOCATED AT 10900 U.S. HIGHWAY I CONTAIlXIING 1.85 ACRES MORE OR LESS, FROM COR (COMMERCIAL OFFICE RESIDENTIAL) TO IN (INDUSTRIAL); PROVIDING FOR REPEAL OF ORDINANCES OR PARTS OF ORDINANCES IN CONFLICT HEREWITH; PROVIDING FOR SEVERABILITY; AND PROVIDING FOR AN EFFECTIVE DATE. 3 First Reading of Ordinance N_9, .0-99-9 ! - Exchange of Property with Louisiana Property Owner - Schedule Public Hearing for 1/13/99 (Cjly Manager Transmittal 12/10/98, 0-99-1, 4/1/98 Survey, Legal Descriptioo~.~0rr~mty Deed) AN ORDINANCE OF THE CITY OF SEBASTIAN, INDIAN RIVER COUNTY, FLORIDA, DECLARING A PUBLIC NEED FOR A LAND SWAP; AUTHORIZING EXCHANGE OF SAID LANDS; SETTING THE TERMS AND CONDITIONS OF SAID EXCHANGE; PROVIDINO FOR SEVERABILITY; AND PROVIDINO FOR AN EFFECTIVE DATE. 98.221 Use of City Stationary (Requested by Vice Mayor Wininger) (Four Excerpts of City Council Minutes Re: Subject) 98.215 Request for Temporary Civil Engineer Through End of Fiscal Year 1999 w/Funding from Capital Improvement Program Funds - Postponed from 12/2/98 (Public Works Transmittal 12/9/98, Justification) 17. CITY COUNCIL MATTERS B. C. D. E. Mr. Chuck Neuberger Mr. Larry Paul Mayor Ruth Sullivan Vice Mayor Martha Wininger Mrs. Louise Cartwright 18. ADJOURN (All meetings shall adjourn at lO:30 p. m. unless extended for up to one half hour by a majority vote of City Council) ANY PERSON WHO DECIDES TO APPEAL ANY DECISION MADE BY THE CITY COUNCIL IVITH RESPECT TO ANYMATTER CONSIDERED AT THIS MEETING (OR HEARING) WILL NEED A RECORD OF THE PROCI~7~'DINGS AND MA Y N~..~D TO ENSURE TfIA T A FERBA TIM RECORD OF THE PROCEEDINGS IS MADE, WHICH RECORD INCLUDES THE TESTIMONYAND EVIDENCE UPON WHICH THE APPEAL IS TO BE HEARD. (286. 0105 F.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 A T .589-5330 A T LEAST 48 HOURS IN ADVANCE OF THIS MEETING. Hearing Assistance Headphones are Available in the Council Chambers for all Government Meetings. U,l~£qming Meetings Regular Meeting- Wednesday, 1/13/99- 7pm Regular Meeting- Wednesday, 1/27/99- 7pm Regular Meeting - Wednesday, 2/10/I 99 - 7pm Regular Meeting- Wednesday, 2/24/99- 7pm Regular Meeting- Wednesday, 3/10/99- 7pm Special Meeting - Monday - 3/16/99 - 7pm (Election Matters) Regular Meeting- Wednesday, 3/24/99- 7pm 4 OOuasi-JudicialHear~g Procedure; (In accordance with R-97-46): Mayor/Presiding Officer Opens Hearing and Outlines Rules CiO' Attorney reads Ordinance or Resolution (if Applicable) if Requested by Affected Paro' - Clerk/Secretary Administers Oath to Other Affected ParO,(ies) Who Intend to Testify For Non-Land Use Matters - Disclosure of Ex-Parte Communication Applicant Presentation - Uninterrupted 15 Minutes Inquiry of Applicant or Applicant's Witnesses by Council/Board (or Staff or Applicant or Other Affected Parties through Mayor or Presiding Officer) Staff Presentation - Uninterrupted 15 Minutes Inquiry of Staff by Council/Board (or Applicant and/or Other Affected Parties through Mayor or Presiding Officer) Proponents' Testimony - Up to 15 Minutes (these are affected parties) Inquiry of Proponents by Council/Board (or Staff or Applicant or Other,~lffected Parties through Mayor or Presiding Officer) Opponents' Presentation - Uninterrupted 15 Minutes (these are affected parties) Inquiry of Opponents or Opponent's Witnesses by Council/Board (or Staff or Applicant or Other Affected Parties through Mayor or Presiding Officer) Opening of Informational Testimony - Any Member of Public with Information or Need for Clarification - 3 Minutes or 10 Minutes if Representing Groups of 5 or More Inquiry of Informational Witnesses by Council/Board Closing of Public Information Period - No Additional Public Comments Allowed Except in Response to Council/Board Questions Applicant 's Rebuttal Presentation - 10 Minutes (Affected Parties or Staff May Request to be Allowed to Point Out Errors of Fact or Ask Questions of ~lpplicant or Applicant Witnesses) Staff Response and Summary - 10 Minutes (Response to ,~pplicant, Proponents, Opponents or Informational Witnesses - Affected Parties May Request to be Allowed to Point Out Errors of Fact or Ask Questions of Staff or Staff Witnesses) Cio' Council/Board Inquiry of Applicants, Proponents, Opponents or Staff Member Close Hearing Upon Completion of Testimony Act Upon Application who desire to make a presentation or present information or comment on an application or item must register with the Cio' Clerk or Board secretary prior to the time in the meeting at which such item is to be heard in accordance with R-97-21. (meeting procedures) Affected Parties are the Applicant, City Staff and Persons Entitled to Notice Under Code or Statut~ A homeowners or property owners association whose members include an affected paro' shall be granted affected paro' status by the Cio' Councii/Board provided the association has been established pursuant to Florida Law. A cert:ficate of good standing from the Florida Secretary of State's office and a resolution of the board of the association authorizing said representation shall be filed with the CiO~ Clerk's office prior to the entiO~ 's request to be granted affected parO, status. Affected Parties May Request Extension of Time from Cio' Council/Board and may object to the introduction of any evidence, whereupon, the presiding officer may rule upon the objection to the admissibilio' of any evidence. The Cio' Council/Board members may affirm or overrule the ruling. Persons addressing Council/Board shah identify any educational, occupational or other experience which may be relevant to the matter. Disclosure of ex-parte communication in land-use matters is not required and such non-disclosure shall not be deemed prejudicial to the decision of the Cio' Council/Board. All decisions of the Cio' Council/Board on land use matters must be supported by substantial, competent evidence in the record pertinent to the proceeding, irrespective of such communications. A person who appears before the decision making body who is not an affectedparO~ may be allowed to testify before the decision making body, may be requested to respond to questions from the decision making body but need not be sworn as a witness and is not be subject to cross-examination and is not required to qualify as an expert witness. The decision making body shah assign weight and credibilio' to such testimony as it deems appropriate. \wp-min\quasi.pro 98.209 PUBLIC HEARING SIGN-UP SHEET DECEMBER 16, 1998 Ordinance NO, O-98-2~) - Mat~aLs for Drainage Pipes Under Driveway Swales (Ciw Manage, l: Irarl~j'fli[tal 12110/98, O-98-20~l AN ORDINANCE OF THE CITY OF SEBASTIAN, INDIAN RIVER COUNTY, FLORIDA, AMElqDIN(} SECTION 90-87 (a) OF THE CODE OF ORDINANCES OF THE CITY OF SEBASTIAN RELATIVE TO DRAINS UNDER DRIVEWAYS FOR SWALE DITCI-IF3; PROVIDING FOR REPEAL OF ORDINANCES OR PARTS OF ORDINANCES IN CONFLICT HEREWITH; PROVIDING FOR SEVERABILITY; PROVIDIN(} FOR CODIFICATION; AND PROVE)IN(} FOR AN EFFECTIVE DATE. (lst Reading 11/18/98, Advertised Legal 12/4/98, Public Hearing 12/16/98) Name Address Name ~ddress Name Address Address Name Address 98.001 B. PUBLIC HEARING SIGN-UP SHEET DECEMBER 16, 1998 Ordina0ce No. 0-98-21 - Falcon Cable Franchise Agreement (City Manager TransmjtiO! Revise~l 0-98-21) AN ORDINANCE OF THE CITY OF SEBASTIAN, FLORIDA, GRANTING TO FALCON CABLE MEDIA, A CALIFORNIA LIMITED PARTNERSHIP, THE PERMISSION TO OCCUPY MUNICIPAL STREETS AND RIGHTS-OF- WAY IN THE CITY OF SEBASTIAN, FLORIDA, AS A MEANS OF PROVIDING CABLE TELEVISION SERVICES; PRESCRIBING THE TERMS AND CONDITIONS ACCOMPANYING THE GRANT OF FRANCHISE; AND PRESCRIBING PENALTIES FOR THE VIOLATION OF ITS PROVISIONS; PROVIDING FOR SEVERABILITY OF PROVISIONS; PROVIDING FOR PUBLICATION IN ACCORDANCE WITH LAW; AND PROVIDING FOR AN EFFECTIVE DATE. (lst Reading 11/18/98, Ist Reading 12/2/98, Advertised Legal 12/4/98, Public Hearing 12/16/98) Nalne Address Nanle OAddress Nallle Address Name Address Name Ad&ess QUASI-JUDICIAL HEARING SIGN-UP SHEET WEDNESDAY, DECEMBER 16, 1998 98.210 A. g)_~si-$udicial Hearing on Ordiq$~q ~qO. O-98-22 - Small3oal¢ Comprehensive Land Us~ Plan Amendment -~iseher Property U.S. tiighw0v OR~ (Growth Management Director TraR~l~iRal 12/10/98. Api~licatiorl,~ation Map. StaffRel~oxt. P&Z R,v~otnmendation'} AN ORDINANCE OF THE CITY OF SEBASTIAN, INDIAN RIVER COUNTY, FLORIDA, APPROVING A SMALL SCALE AMENDMENT TO THE COMP~SIVE PLAN WHICH ~S THE FUTURE LAND USE MAP TO IN 0NDUSTRIAL) FOR LAND CONSISTING OF 1.85 ACRES, MORE OR LESS, LOCATED AT 10900 U.S. HIGHWAY 1, IN THE EAST CENTRAL PORTION OF THE CITY, WEST OF U.S. 1,AND EAST OF FEC RAILROAD RIGHT-OF-WAY; FINDING THAT THE COMPREHENSIVE PLAN AMENDMENT QUALIFIES AS A SMALL SCALE AMENDIvlENT UNDER FLORIDA STATUTES SECTION 163.3187 (1) (C); PROVIDING FOR COPiES OF THE SMALL SCALE AMENDMENT TO BE TRANSMITTED TO ALL PARTIES AS REQUIRED BY FLORIDA STATUTES SECTION 163.3184 (7); PROVIDING FOR REPEAL OF ORDINANCES OR PARTS OF ORDINANCES IN CONFLICT HEREWITH; PROVIDING FOR SEVERABILITY; AND PROVIDING FOR AN EFFECTIVE DATE. (Only One Reading Required, AdvcRise~l Sebastian Pa$¢ 12/9/98, PH 12/16/98) Persons who desire to make a presentation or present information or comment on an application or item must register with the Cio' Clerk or Board secretary prior to the time in the meeting at which such item is to be heard in accordance with R-97-21. (meeting procedures) ~ffeeted Parties are the Applicant. CiO~ Staff and Pe~oos Entitled to Notice Under Code or Statut~ A homeowners' or property owners' association whose members include an affected paro' shall be granted affected paro' status by the Cio' Council/Board provided the association has been established pursuant to Florida Law. A certificate of good standing from the Florida Secretary of State's o~ce and a resolution of the board of the association authorizing said representation shall be filed with the CiO, Clerk's o~ce prior to the entiO, 's request to be granted affected parO, status. A person who appears before the decision making body w]tq is not an atTectedpartv may be allowed to testify before the decision making body, may be requested to respond to questions from the decision making body but need not be sworn as a witness and is not subject to cross-examtnation and is not required to qualify as an expert witness. The decision maidng body shall assign weight and credibiliO, to such testimony as it deems appropriate. _~.d.d.i.~~_ _C~____/_~_~: ~-,-------~--- .... ~-~--?--"-..~.. -0(--0--~ ................................................ Name Address ......... ........ .... .......................................... Address ........... ___~___~~:;_,_~.__~ ...................................................................... Name Address Name Address Name Address INTRODUCTION OF NEW BUSINESS FROM THE PUBLIC SIGN-UP SHEET "New Business" as used herein, is defined as an item that has occurred or was discovered within the previous six months DECEMBER 16, 1998 REGULAR MEETING USE THIS FORM ONLY FOR INTRODUCTION OF NEW BUSINESS NOT OTHERWISE ON THE PREPARED AGENDA -LIMIT OF 10 MINUTES PER SPEAKER Address: Name: Address: ,/ Subject: Name: Address: Subject: N~ne~ Address: Subject: Name: Address: Subject: City of Sebastian 1225 MAIN STREET [] SEBASTIAN, FLORIDA 32958 TELEPHONE (561) 589-5330 [] FAX (561) 589-5570 SEBASTIAN CITY COUNCIL MINUTES REGULAR MEETING WEDNESDAY, DECEMBER 16, 1998 - 7:00 P.M. CITY COUNCIL CHAMBERS 1225 MAIN STREET, SEBASTIAN, FLORIDA 2. 3. 4. Mayor Sullivan called the meeting to order at 7:00 p.m. The Pledge of Allegiance was recited. There was a moment of silence. ROLLCALL City Cotmcil Present: Mayor Ruth Sullivan Vice Mayor Martha Wininger Mrs. Louise Cartwright Mr. Chuck Neuberger Mr. Larry Paul Staff Present: City Manager, Thomas Frame City Attorney, Rich Stringer City Clerk, Kathryn O'Halloran Public Works Director, Terry Hill Chief of Police, Randy White City Engineer, Martha Campbell Deputy City Clerk, Sally Maio Regular City Council Meeting ea eCember 16, 1998 ge Two 98.218 98.211 AGE.15[DAMQDiFICATIONS (ADDITIONS AND/OR DELETIONS) Items not on the written agenda may be added only upon a majoriOJ vote of CiO, Council members (R-97-21) In response to a request to move item 12 A - 0-98-22 Fischer Small Scale Comprehensive Land Use Plan Amendment down on the agenda after 16A O-98-23 Fischer Rezoning, the City Attome~y informed Council that after reviewing Florida statutes, 0-98-22 should have previously had a first reading prior to the public hearing and adoption, therefore, advised that a first reading be conducted tonight and the hearing be scheduled for January 13, 1999. PROCLAMATIONS. ANNOUNCEMENTS AND/OR PRESENTATIONS Ao Presentation by St. Johns River Water Management District Re: Local Government Assi~tmace (Engel I,~tt~r J I/2~/9~) Marguerita Engel, Intergovernmental Coordinator with St. Johns River Water Management District, addressed City Council on types of assistance and distributed materials offered by the District to local governments. CiTY ATTORNEY MATTERS The City Attomey received the consensus of Council to prepare a release of a unity of title which was submitted and recorded in error. CITY MANAGER MATTERS The City Manager advised that there was a severed lateral sewer line in the vicinity of stormwater work at Main and Indian River Drive, but thanks to Indian River County Utilities the leak was contained before it reached the Indian River Lagoon. ITEMS CARRIED FORWARD FROM DECEMIlI~R2~,.1998 REGULAR MEETING A. Discussion of City Clerk Evalutttjon £¢ity Clerk Memo 11/16/98) Following a brief discussion, motion was made. MOTION by Neuberger/Cartwright I make a motion that we bring back the discussions of salary increases for Charter officers to the next meeting. VOICE VOTE on the motion carried 5-0. 2 Regular City Council Meeting ageember 16, 1998 Three 98.212 B. t~labli~h PQIJcy for Gb0rter OflSccr [~y~luatjoll$ 0Xlo Bag. ktlp) Following a brief discussion, motion was made. MOTION by Neuberger/Wininger I'd like to make a motion that we set up a workshop to establish policies for Charter officer evaluations as soon as possible after the new Human Resources Director gets aboard. Neuberger/Wininger changed the motion to define ".as soon as possible" as "in January if possible". VOICE VOTE on the motion carried 3.2 (Cartwright, Paul - nay) 98.213 C. Adopt Fiscal Year 1999 Priority List Side Yard Culvert Installation (City Engineer Transmittal 11/20/98, Priority List) TAPE I - SIDE 1I (7:49 p.m.) MOTION by Cartwright/Neuberger I move to adopt the fiscal year 1999 priority list for side yard culvert installation. ROLL CALL: Mr. Paul - aye Mrs. Sullivan - aye Mrs. Wininger - aye Mrs. Cartwright - aye Mr. Neuberger - aye MOTION CARRIED 5-0 98.214 D. Authorize City Manager to Purchase Three Hand-Held Radar Units fromAl~plied Cot~:~l~t~, Inc. for Police Department - $6,330 - Sole Sg~ce (Police T~ll~IllJttal 11/!6[~,,Q~lote, Sole-Sourc~ Statement) MOTION by Cartwright/Paul I move to authorize the City Manager to purchase three Stalker SM3Ka radar systems with accessories, as specified on the purchase requisition from Applied Concepts for the Police Department at a total cost of $6,330. ROLL CALL: Mrs. Sullivan - aye Mrs. Wininger - aye Mrs. Cartwright - aye Mr. Neuberger - aye Mr. Paul - aye MOTION CARRIED 5-0 Regular City Council Meeting agember 16, 1998 Four 98.161 E. 98.219 10. Approve Change Order with Applied Aquatic Management Inc. in the Amount of $6,000 (Public Works Transmittal 11/24198. Change Order 1) The original contract amount indicated in the change order was questioned. MOTION by Wininger/Cartwright I move to approve change order # 1 with Applied Aquatics for $6,000 for ditch spraying with the proviso that our City Manager check the figures on circle page25 and be sure they are correct. It was requested that ditch spraying be included in the next contract bid. ROLL CALL: Mrs. Wininger .- aye Mrs. Cartwright - aye Mr. Neuberger - aye Mr. Paul - aye Mrs. Sullivan - aye MOTION CARRIED 5-0 CONSENT AGENDA Ali items on the consent agenda are considered routine and will be enacted by one motion. There will be no separate discussion of consent agenda ite. e~ unless a member of Ci(F Cot#wil so requests; in which event, the item will be removed and acted upon separately. A. Approval of Minutes - 12/2/98 Regular Meeting Approve Use of Riverview Park for Easter Sunrise Service by Sebastian River Evangelical Ministers' Fellowship on April 4, 1999 from 6 am to 8 am - Bleachers and Electricity (City Manager Transmittal 12/10/98, Kemp f Letter) The City Manager read the consent agenda. MOTION by Paul/Wininger I move to approve consent items A and B. VOICE VOTE on the motion carried 5-0 4 [egular City Council Meeting ecember 16, 1998 Page Five 98.209 11. I~UBLIC ]JEARING Procedures for public hearings: (R-97-21) · Mayor Opens Hearing Attorney Reads Ordinance orResolution · StaffPresentagon · Public Input - Limit often Minutes Per Speaker StaffSummation · Mayor Closes Hearing · Council Action Anyone Wishing to Speak is Asked to Sign Up before the Meeting,, When Called go to the Podium and State His or Her Name.for the Record Ordinance No. O-9l~-~0 - Materials for Drainage Pipes Under Driveway Swales (City Manager Transmittal 12/|Q/_9~. 0-98-20) AN ORDINANCE OF THE CITY OF SEBASTIAN, INDIAN RIVER COUNTY, FLORIDA, AMENDING SECTION 90-87 (a) OF THE CODE OF ORDINANCES OF TIlE CITY OF SEBASTIAN RELATIVE TO DRAINS UNDER DRIVEWAYS FOR SWALE DITCHES; PROVIDING FOR REPEAL OF ORDINANCES OR PARTS OF ORDINANCES IN CONFLICT HEREWITH; PROVIDING FOR SEVERABILITY; PROVIDING FOR CODIFICATION; AND PROVIDING FOR AN EFFECTIVE DATE. (1 st Reading 11/18/98, Advertised Legal 12/4/98, Public Hearing 12/16/98) The City Attorney read Ordinance No. O-98-20 by title only; Mayor Sullivan opened the public hearing at 8:21 p.m.; the City Manager gave a brief presentation; and Mayor Sullivan closed the public hearing at 8:25 p.m. MOTION by Cartwright/Neuberger I move to adopt Ordinance 98-20. ROLL CALL: Mr. Neuberger - aye Mr. Paul - aye Mrs. Sullivan - aye Mrs. Wininger - aye .Mrs. Cartwright - aye MOTION CARRIED 5-0 Mayor Sullivan called recess at 8:27 p.m. and reconvened the meeting at 8:40 p.m. All members were present. 98.001 OrdJ_notlg~ lqo. O-98-21 - Falcon Cable Franchise Agreement. (_City Manager Transmittal 12/10/98, R~vised 0-98-21) AN ORDINANCE OF THE CITY OF SEBASTIAN, FLORIDA, GRANTING TO FALCON CABLE MEDIA, A CALIFORNIA LIIvIITED PARTNERSHIP, THE PERMISSION TO OCCUPY MUNICIPAL STREETS AND RIGHTS-OF- WAY IN TIlE CITY OF SEBASTIAN, FLORIDA, AS A MEANS OF PROVIDING CABLE TELEVISION SERVICES; PRESCRIBING THE TERMS AND CONDITIONS ACCOMPANYING THE GRANT OF FRANCHISE; AND PRESCRIBING PENALTIES FOR TI-IE VIOLATION OF ITS PROVISIONS; PROVIDING FOR SEVERABILITY OF PROVISIONS; PROVIDING FOR PUBLICATION IN ACCORDANCE WITH LAW; AND PROVIDING FOR AN EFFECTIVE DATE. (1 st Reading 11 / 18/98, 1 st Reading 12/2/98, Advertised Legal 12/4/98, Public Hearing 12/16/98) 5 Regular City Council Meeting ageember 16, 1998 Six The City Attomey distributed revised suggested amendments in accordance with changes previously submitted by Falcon Cable (see attached) and explained them. TAPE II - SIDE I (8:48 p.m.) The City Attorney completed his review of the changes and stated that they were not substantive so as to require another first reading. The following changes were requested: · "Industry acceptable technology" on page circle 75. · Requiring current audio broadcast until live video broadcast is in place · Requirement for placement of the City phone number and address in the least conspicuous place on Falcon bills (circle 52) The following individuals addressed Council: Jason ?, North River Run Drive, Sebastian Harry Thomas, 654 Balboa Street, Sebastian Mayor Sullivan closed the hearing. MOTION by CartwrightlPaul I move to adopt Ordinance 98-21 with the following amendments proposed by the City Attorney: circle page 47; circle page 51; circle page 52 with a subsequent addition to paragraph 2 "any required listing of the city's telephone and address shall be in the least conspicuous location on the company's subscriber bill"; circle 53 with the subsequent change in paragraph B correction "or upstream capabilities"; circle page 62; circle page 65; circle page 70; circle page 73; circle page 75 with the inserts that follow on page 2 and 3 of Mr. Vicker's letter with the subsequent change in sentence 1 "services by any industry acceptable technology"; 78 and 90. ROLL CALL: Mr. Paul - aye Mrs. Sullivan - aye Mrs. Wininger - aye Mrs. Cartwright - aye Mr. Neuberger - aye MOTION CARRIED 5-0 6 .cgular City Council Meeting. ember 16, 1998 Page Seven 98.210 12. QIJA$1-JIJ1}!CIAL HKAglNG (Procedures are on Back of Agenda) Quasi-Judicial Hearing on Ordinance No, 0-98-22 - Small ~;~ate C0mllr,bonsiYe Land Use Plan Amendment - Fischer Property U.S. Highway One {Growth Management Director Transmittal 12/10/.,9~. Al~plication. LocatiQu Man. Staff Rc~Qrt. P&Z Recomm~;tt~tion) AN ORDINANCE OF TIlE CITY OF SEBASTIAN, INDIAN RIVER COUNTY, FLORIDA, APPROVING A SMALL SCALE AMENDMENT TO THE COMPREHENSIVE PLAN WHICH AMENDS THE FIJTIJRE LAND USE MAP TO IN (INDUSTRIAL) FOR LAND CONSISTING OF 1.85 ACRES, MORE OR LESS, LOCATED AT 10900 U.S. HIGHWAY 1, Ri TIlE EAST CENTRAL PORTION OF THE CITY, WEST OF U.S. 1, AND EAST OF FEC RAILROAD RIGHT4)F- WAY; FINDING THAT THE COMPREHENSIVE PLAN AMENDMENT QUALIFIES AS A SMALL SCALE AMElqD~ UNDER FLORIDA STAIIJTES SECTION 163.3187 (1) (C); PROVIDING FOR COPIES OF THE SMALL SCALE AMENDMENT TO BE TRANSMITTED TO ALL PARTIES AS REQIdlRED BY FLORIDA STATUTES SECTION 163.3184 (7); PROVIDING FOR REPEAL OF ORDINANCES OR PARTS OF ORDINANCES IN CONFLICT HEREWITH; PROVIDING FOR SEVERABiLIiY; AND PROVIDING FOR AN EFFECTIVE DATE. (Only One Reading Requi~ed, Advertised Sebastian Page 12/9/98, PH 12/16/98) The City Attorney again advised that this be treated as a first reading and the public hearing be set for January 13, 1998; and read Ordinance No. 0-98-22 by title. He also advised that since the applicant was informed this would be a first reading and was not in attendance, and because this was a quasi-judicial matter, any testimony should be given at the hearing so the applicant had the opportunity to cross examine. Mayor Sullivan said she would give those people who had signed to speak tonight thc opportunity to speak under Introduction of New Business from the Public if they wished to. MOTION by CartwrighffPaul I move to accept the first reading and set the public hearing for Ordinance 98-22 for January 13, 1999. ROLL CALL: Mrs. Sullivan - aye Mrs. Wininger - aye Mrs. Cartwright - aye Mr. Neuberger - aye Mr. Paul - aye MOTION CARRIED 5-0 Regular City Council Meeting agember 16, 1998 Eight 13. II~-TRODUCTION OF NEW BUSINESS. FROM THE PUBLIC Item that has occurred or was discovered within the previous six months which is not otherwise on the agenda - sign-up required - limit often minutes for each speaker The following individuals addressed Council: Harry Thomas, 654 Balboa Street, Sebastian Sal Neglia, 461 Georgia Boulevard, Sebastian TAPE li - SIDE Ii (9:35 p.m.) Tut Connelly, 149 Kildare Drive, Sebastian Joseph Braun, 6305 River Run Drive, Sebastian In response to Mr. Neglia, the City Manager said Knights &Columbus should contact Indian River County on their timetable for Gibson Street; and Mr. Braun was advised that mailing to affected property owners was not a requirement under Florida Statutes for a small scale land use amendment. 14. COMMITTEE REPORTS/RECQMMI(NDATi ONS Mr. Neuberger reported on the recent Metropolitan Planning Organization meeting (MPO). Mayor Sullivan reported on her Mayor's committee regarding the proposed US 1 expansion, the committee's presentation to MPO, and the MPO's deletion of the proposal to approve the six laning. She said she was going to continue her committee, and a lengthy discussion followed on appropriate procedures for establishment of committees and it was suggested that this be an agenda item on January 13, 1999 to officially establish the committee. 15. OLD BUSINESS - None 16. NEW BUSIN~$_~ 98.210 First Reading of Ordinance No. Q-98-23 - Rezoning Fischer Property U.S. Highway Qtle - Schedule Quasi-Judicial Publi~ Hearing ~Growth Management Transmittal. Cil~ Attorney Opinion, 0-98-23, Application, Map. S_t~ff Reporl, P & Z Recommendation) AN ORDINANCE OF THE CITY OF SEBASTIAN, INDIAN RIVER COUNTY, FLORIDA, REZONINO CERTAIN PROPERTY LOCATED AT 10900 U.S. HIGHWAY I CONTAINING 1.85 ACRES MORE OR LESS, FROM COR (COMIvlERCIAL OFFICE RESIDENTIAL) TO IN (INDUSTRIAL); PROVIDING FOR REPEAL OF ORDINANCES OR PARTS OF ORDINANCES IN CONFLICT I tEREWITH; PROVIDING FOR SEVERABiLITY; AND PROVIDING FOR AN EFFECTIVE DATE. The City Attorney read Ordinance No. 0-98-23 by title only and reiterated his opimon as stated in his letter dated December 4, 1998 (see attached). Regular City Council Meeting a ecember 16, 1998 ge Nine MOTION by Wininger/Neuberger I move to accept the first reading of Ordinance No. 0-98-23 and set public hearing and second reading for adoption hearing on January 13, 1999. ROLL CALL: Mrs. Wininger - aye Mrs. Cartwright - aye Mr. Neuberger - aye Mr. Paul - aye Mrs. Sullivan - aye MOTION CARRIED 5-0 98.220 First Reading of Ordinance No. O-99-01 - Exchange of ?£opcrty with Louisiana Properly Owner - Schedule Public I~I~.0j-ilag f~t 1/13/99 (City Manager Transmittal 12/10/98, O-99-1, 4/1198 Survey, Leglll. De~grjptions, Warranty Deed) AN ORDINANCE OF THE CITY OF SEBASTIAN, INDIAN RIVER COUNTY, FLORIDA, DECLARING A PUBLIC NEED FOR A LAND SWAP; AUTHORIZING EXCHANGE OF SAID LANDS; SETTING THE TERMS AND CONDITIONS OF SAID EXCHANGE; PROVIDING FOR SEVERABILITY; AND PROVIDING FOR AN EFFECTIVE DATE. MOTION by Wininger/Cartwright I move to approve the first reading of Ordinance No. 0-99-1 and set the second reading and the public hearing for January 13, 1999, and set as a stipulation that Mr. Morrison pay $1.67 per square foot for 315.7 square feet yielding $527.22 payable to the City of Sebastian and to assume all recording costs. ROLL CALL: Mrs. Cartwright - aye Mr. Neuberger - aye Mr. Paul - aye Mrs. Sullivan - aye Mrs. Wininger - aye MOTION CARRIED 5-0 98.221 Use of City Stationary (Req~q~tccl by Vice Mayor Wininger) (Four Excerpts of City Council Minutes Re: Subject) Discussion took place on backup provided relative to previous Council discussions on use of stationary, particularly October 2, 1996. The City Attorney was directed to draft a resolution to establish a policy. TAPE 111 - SIDE I (10:21 p.m.) Regular City Council Meeting ageember 16, 1998 Ten MOTION by Sullivan/Neuberger I'd like to extend the meeting to complete the agenda or to 11 pm, whichever comes first. VOICE VOTE on the motion failed 2-3 (Cartwright, Wininger, Paul - nay) The following items were not addressed and will be carried to the January 13, 1999 agenda. 98.215 Request for Temporary Civil Engineer Through End of Fiscal Year 1999 w/Funding from Capital Improvement Program Funds - Postponed from 12/2/98 (Public Works Transmittal 12/9/98, Justification) 17. CITY COUNCIL MATTERS Ae B. C. D. E. Mr. Chuck Neuberger Mr. Larry Paul Mayor Ruth Sullivan Vice Mayor Martha Wininger Mrs. Louise Cartwright 18. Mayor Sullivan adjourned the Regular Meeting at 10:30 p.m. Approved at the c'~,.~ /3 ~ Katlu3m M. O'Ha{Iora~CMC,/AAE City Clerk ,1998, Regular City Council Meeting. Mayor 10 ~/ or, as appropriate in the case of specific provisions of this · ,'~": Ordinance, any board, bureau, authority, agency, commission, department of, or any other entity of or acting on behalf of, the City of Sebastian, Florida, or any duly authorized officer, official, employee, or agent thereof, any designee of any of the foregoing, or any successor thereto, "Gross Revenue" means all revenue, including advertising revenue, which is received by the Grantee, by any Affiliated Person, and any other Person from or in connection with the distribution of any ~ aervice on the System or the provision of any service related activity in connection with providing Service on the System. Gross Revenue shall not include the revenue of any 'Affiliated Person and other Person, including, without limitation, a supplier of programming of the Grantee, to the extent that said Revenue is also included in Gross Revenue of the Grantee, In no event shall Gross Revenue include any revenue of the Grantee or any other Person which is received directly from the sale of merchandise through.any ~ aervice distributed over the System (other than that portion of such revenue which represents or can be attributed to a Subscriber fee or a payment for the use of the System for the sale of such merchandise, which portion shall be included in Gross Revenue). There shall be deducted from Gross Revenues: bad debts written off by Grantee in normal course of its business provided however, that bad debt recoveries from or in connection with the distribution of any ~ aervice on the System or the provision of any service related activity in connection with providing Service on the System shall be included in Gross Revenue; and refunds made to Subscribers or other third parties. Gross ~Jvenues shall not include: (1) Any tax of general applicability imposed upon a Grantee or upon the Grantee ~ subscribers by the Cf%y, state, federal or any other governmental entity and required to be collected by the Grantee and passed through to the taxing entity (including, but not limited to, user taxes, service taxes and communications taxes), provided~such taxes are identified as a 'seParate line item on subscriber statements: (2) Any revenue received by the Grantee from any Person for services not attributable in whole or in part to its Cable System or to other communications services serving the City, including but not limited to revenue derived from electronics retailing, mail marketing or telephone answering services independent of Grantee's Cable System or other communications services, delivery services and video production services for programming or other (F) Nothing in this Ordinance shall ( i )abrogate the right of the Grantor to perform any public works or public improvements of any description, (ii) be construed as a waiver of any codes or ordinances of the Grantor or of the Grantor's right to require the Grantee or any Person utilizing the System to secure the appropriate permits or authorizations for such use, or (iii) be construed as a waiver or release of the rights of the Grantor in and to the Rights-of-Way. In the event that all or part of the Rights-of-Way within the Franchise Area are eliminated, discontinued and closed, the Franchise shall cease with respect to such Rights-of-Way upon the effective date of the final action of the Grantor with respect thereto. (G) Nothing in this Ordinance authorizes the Grantee to provide non-cable services. Consistent with applicable law, the Grantee may. if necessary~ petition the Grantor for the authority to provide Non-cable Services, and the Grantor may grant such authority on terms and conditions that the Grantor reasonably determines are appropriate in the circumstances. Section 5. - Term of Franchise (A) The Franchise and rights herein granted shall take effect and be in force from and after the final passage hereof, as required by law and upon the filing of an acceptance by Grantee of all the terms thereof with the Grantor and shall, unless sooner terminated pursuant to this Ordinance or applicable law, continue in force and effect for a term of ten (10) years after the effective date of this Franchise. Falcon Cable Media, a California limited partnership shall have the option to renew this franchise for'an additional term of five (5) years, provided that it is in substantial compliance with the material terms of this ordinance at the time of its expiration, by providing written notice of the intent to renew to Grantor in the time and manner provided by federal law or, in the absence of such guidance, no later than three (3) years prior to expiration of the initial term herein. (B) If the Grantor grants a subsequent cable operator in its negotiation process a term longer than ten (10) years, and if the terms and conditions of Section 6, the definition of Gross Revenue in Section 3, and Appendix C of this Franchise are not materially less favorable to the Grantor than the similar terms and conditions of the grant of franchise between the Grantor and the subsequent cable operator, the Grantor will change the length of the term of (A) As compensation for the Franchise, the Grantee shall pay, or cause to be paid, to the Grantor the amounts set forth in this Section 6(A) (1) The Grantee shall pay to the Grantor franchise percent (3%) of Gross Revenue, as defined herein. fees of three (2) All such payments of franchise fees shall be made on a quarterly basis and shall be remitted simultaneously with the submission of the Grantee's quarterly report required pursuant to Section 6(A)(3). The franchise fcc ~hall be carried en the boekD of the franchisee as an epe~ating expense and. to the ~c~t at}owcd BY tJw. mh~tt not bo itemized on the company's s~b~criber (3) The Grantee shall submit to the Grantor a report, in such form and containing such detail as the Grantor shall reasonably. require, not later than thirty (30) days after the last day of each quarter throughout the term of this Ordinance setting forth the Gross Revenue for the preceding quarter. (4) No acceptance of any franchise fee payment by the Grantor shall be construed as an accord and satisfaction that the amount paid is in fact the correct amount for a release of any claim that the Grantor may have, or further or additional sums payable under this Ordinance, and all amounts paid shall be subject to audit and recomputation by the Grantor. If, as a result oZ' such audit or any other review, the Grantor determines that the Grantee has underpaid its fees in any twelve (12) month period by five percent (5%) or more, then, in addition to making full payment of the relevant obligation, the Grantee shall reimburse the Grantor for all of the reasonable costs associated with the audit or review, including all reasonable out-of-pocket costs and fees for attorneys, accountants, and other consultants~ (5) If the Grantee collects from Subscribers any amounts to be paid to leased access programmers for the provisJ0n of Services on the System that would not otherwise be included in the delinition of Gross Revenue, the Grantee shall deduct the same percentage from such amounts as the then-applicable franchise fee percentage pursuant to Section 6(A)(1) and include such deducted amounts in its payment to the Grantor pursuant to this Section 6(A) and include such payments in its report pursuant to Section 6(A)(3). (6) The Grantee shall ensure, through contract or other arrangement, that any Person other than the Grantee who collects from Subscribers amounts that would constitute Gross Revenue if received directly by the Grantee (e.g., from a Person who leases a Channel pursuant to Section 612 of the Cable Act) is required to remit to the Grantor quarterly a percentage of such amounts collected which is equal to the then-applicable franchise fee. Such contract or arrangement must also require the Person to submit a quarterly report which meets the requirements of Section 6(A)(3) 'and must entitle the Grantor to enforce the fee and reporting requirements directly against the Person. (B) The parties agree that the compensation and other payments to be made pursuant to this Section 6 and any other provision of this Ordinance are not a tax and are not in the nature of a .tax and are in addition to any and all taxes of general applicability or other fees or charges (including any fees or charges which may be imposed on the Grantee for the use of poles, conduits or similar facilities that may be owned or controlled by the Grantor) which the Grantee or any Affiliated Person shall be required to pay to the Grantor. (C) If any payment required by this Ordinance is not actually received by the Grantor on or before the applicable date fixed i'n this Ordinance or by the Grantor, the Grantee shall pay interest thereon, from the due date to the date paid at a rate of one percent (1%) per month, compounded monthly, for' the period of delinquency. If the Grantor retains an attorney to collect any payment, and it prevails, Grantee shall be obligated to reimburse Grantor for its reasonable costs and fees incurred in collecting the delinquent payment, (D) if the Grantee continues to operate all or any part of the System after the term of the Franchise, then the Grantee shall continue to comply with all applicable provisions of this Ordinance, including, without limitation, all compensation and other payment provisions of this Ordinance, throughout the period of such continued operation, provided that any such continued operation shall in no way be construed as a renewal or other extension of the Franchise. Section 7. - The System (A) The Grantee shall construct, operate, maintain, and upgr'ade the System as provided in this Ordinance. (B) The Grantee shall build the System in the schedule and-as otherwise provided in Appendix A. Upon completion of the System, it shall be capable of providing at least eighty-four (84 activated downstream video Channels, ~ a minimum uputream d~ign capacity for upstream~ of thirty fi¥c (35) M~Z, an emergency override mechanism tied\ into the Indian River County Emergency Management Services, and\the other characteristics set forth on Appendix A. (C) The Grantee shall construct opera~e, maintain and upgrade the System such that it is capable of Iransmitting and receiving the Franchise to any Person or entity not wholly owned by Falcon Cable Media, a California limited partnership, either directly or through a wholly-owned subsidiary, without the prior written consent of the Grantor. Such consent shall not be unreasonably withheld. (B) No change in Control of the Grantee, the System or the Franchise to any Person or entity not majority owned or controlled by Falcon Cable Media, a California limited partnership, either directly or through a majority-owned or controlled subsidiary, shall occur after the Effective Date, by act of the Grantee or by act of any Person holding Control of the Grantee, the System or the Franchise, by operation of law, or otherwise, without the prior written consent of the Grantor. Such consent shall not be unreasonably withheld. Notwithstafiding the provisions of this franc]~is~ r~qkuiri~9 ~onsent b~ the fr~nchi~in9 authority to a transfer Df ownership~ £he City ~ckno~ledges and 9raDts it~ consent ~o the pe~din9 t~ansaction pursuant .to ~j~ich TCI FALCON HOLDINGS, which .is a 46% nlinori ty owner of Falcon' a ultimate parent DompaDy. ~al CQ~l Communications, L. P,. will be~om~ a wholly owned subsidiary of AT&T ~orporation, (C) Any request for approval shall be handled by the Grantor in accordanc~e with its customary rules and procedures. In connection with any request for approval, the Grantee shall submit to the Grantor such information as the Grantor may reasonably request. Section 14. -- spe~ifio Rights and Re_medi~s (A) The Grantee agrees that the Grantor shall have the specific rights and remedies set forth in this Section 14. These rights and remedies, are in addition to any and all other rights or remedies, now or hereafter available to the Grantor to enforce the provisions of this Ordinance, and will not be deemed waived by the exercise of any other right or remedy. The exercise of any such right or remedy by the Grantor shall not release the Grantee from its obligations or any liability under this Ordinance, except as expressly provided for in this Ordinance or as necessary to avoid duplicative recovery from or payments by the Grantee. (B) Events of default - (1 The Grantee agrees that an Event of Default shall include, but shall not be limited to, any of the following acts or failures to act by the Grantee: (a Any failure to comply with any material provision of this Ordinance that is not cured within thirty (30) days after notice pursuant to Section 14(B)(3); (b) The occurrence of any event which may reasonably lead to the foreclosure or other similar judicial or nonjudicial sale of all or any material part of the System; (c) The condemnation by a public authority other than the Grantor, or sale or dedication under threat or in lieu of condemnation, of all or any part of the System, the effect of which would materially frustrate or impede the ability of the Grantee to carry out its (2) the liability insurance and indemnity provisions of this Ordinance shall remain in full force and effect during the period in which the System is being removed and the associated repairs to the Rights-of-Way and other property are being made; and (3) if in the reasonable judgment of the Grantor, the Grantee fails to substantially complete removal, including repair of the Rights-of-Way and other property within twelve (12) months of the Grantor's issuance of a removal order, the Grantor shall have the right to: (A) authorize removal of the System, at the Grantee's cost, by another Person; and (B) declare that all rights, title and interest to the System belong to the Grantor, including any portion of the System not designated for removal, without compensation to the Grantee. The Grantee shall execute and deliver such documents as the Grantor may request to evidence such ownership by the Grantor. Notwithstanding the foregoing, the Grantee may dispose of any portion of the System not designated by the Grantor for removal during such twelve (12) month period provided however, that if the Grantee fails to complete the removal of the portion(s) of the System designated for removal by the Grantor within such period, then all such portion(s) of the System not disposed of and all amounts collected for any portion(s) of the System disposed of by the Grantee during such period shall belong to the Grantor, with no price due to the Grantee. Prior tQ the ex~rcise ol the provisions o[ this subsectio~ Grantee may request an extension of the rgmoval period iQr g~od cause, includiDg active good-faith negotiations for th~ sale th~ Syste~ or parts thereof, add Grantor shall not unreasoOabl~ withhold approval Of such extension request, (4) Upon any termination and as an alternative to ordering removal of the System, the Grantor may acquire or effect a transfer to a third party 9f all or any part of the System and all components thereof necessary to maintain and operate the System pursuant to the terms of this Ordinance. (5) The price to be paid to the Grantee upon an acquisition or transfer by the Grantor shall depend upon the nature of the termination as follows: (a) If the Franchise expires without the Grantee seeking renewal or if the renewal is denied, then the price shall be the fair market value of the System valued as a going concern with a deduction for the value allocable to the Franchise itself; and (b) If the termination is due to a revocation of the Franchise for cause, such as the occurrence of an Event of Default as provided in Section 14(B), the price shall be an equitable price, considering the injury to the Grantor and the residents of the City of Sebastian and with no value allocable to the Franchise itself. (E) In the event of any acquisition, transfer or Abandonment pursuant to Section 14(D), the Grantee shall: (1) cooperate with the Grantor or third party in maintaining Ordinance based on a change in law, should the law pertaining to that particular provision change subsequent to the execution of this ordinance. The Grantee agrees that it will not challenge the Grantor's authority to enter into this Ordinance as of the effective date hereof. (B) In the event that, after the Effective Date, any court, agency, commission, legislative-body, or other authority of competent jurisdiction: (A) declares this Ordinance invalid, in whole or in part, or (B) requires the Grantee either to: (a) perform any act which is inconsistent with any provision of this Ordinance or (b) cease performing any act required by any provision of this Ordinance, then the Grantee and the Grantor shall enter into good faith negotiations to amend this Ordinance, so as to enable the Grantee to perform obligations and provide Services for the benefit of the Grantor and others equivalent to those immediately prior to such declaration or requirement, to the maximum extent consistent with said declaration or requirement. In connection with such negotiations, the Grantor and the Grantee shall consider whether the circumstances existing at that time are such that the Grantee should continue to perform such obligations or their equivalent. (C) To the extent that any statute, rule, regulation, ordinance or any other law is enacted, adopted, repealed, amended, modified, changed or interpreted in any way during the term of this Ordinance so as to enhance the Grantor's ability to meet the cable-related needs and interests of the community, or increase Grantor's ability to regulate Grantee and the Cable System, the Grantor and the Grantee shall negotiate in good faith as to what modifications to this Ordinance including Appendixe~ A, B, C and D, or regulation of the System might be appropriate to reflect such enactment, adoption, repeal, amendment, modification, change or interpretation. Section 17. -- Miscellaneous (A) Controlling Authorities. This Ordinance is made with the understanding that its provisions are controlled by the Cable Act, other federal laws, state laws, and all applicable local laws, ordinances, and regulations. (B) Appendices. The Appendices to this Ordinance, attached hereto, and all portions thereof and exhibits thereto, are, except as otherwise specified in such Appendices, incorporated herein by reference and expressly made a part of this Ordinance. (C) Enforceability of A~reement: No Opposition. By execution of this Ordinance, the Grantor and Grantee acknowledges the validity of the terms and conditions of this Ordinance under applicable ~tatutory. ~dmini~trative a~d case law in existence on the Effective Date. and pledges it will not assert in any manner at any time or in any forum that this Ordinance, the Franchise. or the processes and procedures pursuant to which this Ordinance was (N) Modification. Except as otherwise provided in this Ordinance, any Appendix to this Ordinance, or applicable law, no provision of this Ordinance nor any Appendix to this Ordinance, shall be amended or otherwise modified, in whole or in part, except by an instrument, in writing, duly executed by the Grantor and the Grantee, which amendment shall be authorized on behalf of the Grantor' through the adoption of an appropriate resolution or order by Council, as required by applicable law. (0) Delays and Failures Beyond Control of Grantee. Notwithstanding any other provision of this Ordinance, the Grantee shall not be liable for delay in performance of, or failure to perform, in whole or in part, its obligations pursuant to this Ordinance due to strike, war or act of war (whether an actual declaration of was is made or not), insurrection, riot, act of public enemy, accident fire, flood or other act of God, technical failure, sabotage or other events, where the Grantee has exercised all due care in the prevention thereof, to the extent that such causes or other events are beyond the control of the Grantee and such causes or events are without the fault or negligence of the Grantee. In the event that any such delay in performance or failure to perform affects only part of the Grantee's capacity to perform, the Grantee shall perform to the maximum extent it is able to do so and shall take all steps within its power to correct such cause(s). The Grantee agrees that in correcting such cause(s), it shall take all reasonable steps to do so in as expeditious' a manner as possible. The Grantee shall notify the Grantor in writing of the occurrence of an event covered by this Section within five (5) business days of the date upon which the Grantee learns of its occurrence. Section 18. -- Acceptance Within ~hirt~/ (30) days o3 adoption~ Grantee shall signify its acceptance of the Franchise terms in writin9~ and ~eCUt~iD~ o~ ~he ~ranchise a~r~em~nt must be completed within thirty (30~ days khereafter, o~ the Bpproval hereof by ~bD ~i~Y Council shall be rendered yoid. prior- to thc City Comg~i~si~n'~ approval of this Ordinance ~y ~lin~ ~eh writhe5 aeccptancc w~th ~ho City Clerk. Section 19. -- Publication in Accordance With Law This Ordinance shall requirements of law. be published in accordance with the Section 20. -- Effective Date This Ordinance shall take effect immediately upon adoption and Grantee's execution of the franchise agreement, The foregoing Ordinance was moved for adoption by Councilmember The motion was seconded by Councilmember and, upon being put into a vote, the vote was as follows: APPENDIX A THE SYSTEM 1. SYSTEM AND CAPACITY a. System Design. The Cable System-shall be bailt--to a 750 MI-IZ design and will meet the standards set out i~4his appendix. The plant hardware shall- be 1 GI-Iz passives, t Gidz taps. (t- GHz active platforms), 750 MHz amplifiers and other actives; and 60 volt po~vering. The System shall be capable of 86 84 analog channels (50 ~o 550 MI-Iz), ~vith 300 MHz being reserved for future usc including, bat not limited to, digital-transmission .(550 to 750 MI-Iz) in the for~vard direction-and 5 to 40 MHz in the reverse direetiom. The System shall use all new fiber optics, coaxial cable and electronic and passive devices. Notwithstanding the above, Grantee may lease fiber-from-a~ third party ~o integrate into the Cable System whenever technically feasible. The gystem shall be designed so that ninety five percent-{95%) of the time there are no more than t~vo (2) line extenders in cascades and no more than three (3) system-amplifiers in cascade. All-aerial system amplifiers shall incorporate pilot contr~lled-AGC level-control. The System shall be designed and constraoted in accordance with the standards listed below, and the fiber sable shall have not more than 7.4 dB of toss behveen the distribution CO and the fiber terminal. The follow/ng design specifications shall-be adhered to. The System shall be operated in accordance with performance standards which meet FCC regulations and specifications after the System is constructed in e-Oral,lance with this seotion and the design-standards below. The Grantee's ~ompliance with the performance standards of the FCC shall constitute compliance with the ongoing technical standards required by this Agreement~ 8ystem Design Minimt~m C/N 47 dB XMOD 53 dB CTB , 53 dB CSO 53 dB I-IUM 3% b. Construction Oversight. Grantee ~hali over see the construction. The oversight shall be headed by a Construction Manager with field engineers and field planning/quality control persons dedicated to the construction project. One hundred percent (100%) of the System shall be visually inspected to insure compliance and ten percent (10%) of all work shall be tested by the system operator and system technicians. If during testing or inspection, the Grantee finds the quality of work to be substandard, the Grantee shall use its best efforts to take the necessary corrective action in a timely manner. Grantee shall contact in person or by telephone ten percent (10%) of the subscribers to assess the quality of the work performed and any construction problems. The general contractor building the System shall supervise any components of the System construction undertaken by independent contractors. Richard Stringer City of Sebastian November 25, 1998 page 2 Section 13(A). Change entity. Affiliate transfers should be exempted from the consent requirement. (B) Change entity. Section 14(B)(1)(d). Change "faking" to "taking." (B)(2). Correct reft to Sec. 14(B)(3). Change "tem" to "term." (D)(3). We will not waive our rights to an equitable price for the system (under Sectiln ~'-- 627 of the Cable Act) pursuant to a forced sale of the system. (F). Change entity.. (F)( 1 ). Change "semis" to "terms." (F)(3)(iii). Reference is to Section 653 of 1996 Act. (G). Change entity. "as may be amended." Section 17(C). We cannot make the required acknowledgment without the revisions given the constantly changing status of the law. There are too many unresolved issues at the FCC that could affect the terms of any franchise. (D) Change entity. (J) Change municipality. (O) "declaration of war." Appendix A Section 1 (a)-(f). We cannot agree to the design and equipment requirements specified by this appendix. The appendix reflects the design of an urban market. The City of Sebastian, like many Falcon systems, actually has the characteristics of a small system. We must reserve the right to design and build the system in accordance with our proven experience in these markets. Furthermore, Section 624 (e) of the Cable Act does not allow States or franchising authorities to "prohibit, condition or restrict a cable system's use of any type of subscriber equipment or any transmission technology." References to 750 MHz design are therefore not acceptable. We can accept upgrade language as follows: ~/Grantee~ agrees that, in consideration of the City's renewal of the Franchise, it will [ ?grade the cable system within twenty-four (24) months of the effective date of x this agreement. The upgraded system will be completed so as to provide the capability of passing a lninimum of eighty-four (84) channels on an analog and/or digital basis through its trunk and feeder lines. Falcon may provide programming Richard Stringer . j., November 25, 1998 City of Sebastian /i~ page3 / services by any 'acceptable technology. For example, Falcon may utilize digital compression to achieve the programming services capacity requirement. The upgraded system will utilize components capable of meeting or exceeding the minimum FCC technical requirements. Such components may include fiber optic cable, upgraded electronics, and other items to ensure improved signal quality and reliability of the system. As part of the system upgrade, Falcon agrees that it will ensure the quality and reliability of signals currently being transmitted to the City higOf Sebastian, and that all signals transmitted on the Sebastian cable system shall meet all federal technical standards applicable to television signal quality. The transmission technology will meet all federal technology specifications and pass a h quality video signal to subscribers. g. The emergency, alert requirement needs to be clarified to the extent that the system is already in compliance with FCC requirements. ~ j. See comment re paragraph "a" above. p. Requiring stereo on all channels greatly increases the costs of the rebuild, which ultimately will be passed through to subscribers. Perhaps, only a list of certain channels should be required. Appendix B. Underground Facilities. As-built drawings are not yet complete and therefore would not be available until 30 days after they have been completed. Excavations. Our normal practice is to provide twenty-four (24) inches cover. Existing Utilities. We can agree to the following language: Grantee shall place and maintain cables in accordance with NEC and NESC requirements and all local codes. Appendix C B. The PEG interconnection requirement should specify that "local cable systems" means systems within the Franchise Area. D. If required, the annual grant would be itemized on subscriber bills. Appendix D See comment to Section lO(B) above. Thirty day notice is not required for changes in franchise fees or other regulatory fees or where the change is otherwise not within our contro 1. predominately carry programming services available to Cable Systems throughout the life of the Franchise. k. Standby Power. Grantee shall provide a twenty-four (24) hour power-generating capacity at the head end. Grantee shall maintain standby power system supplies, rated for at least two (2) hours duration at all optical node locations in the distribution network. I. Parental Control. The Grantee shall provide parental control devices that will allow any Channel or Channels to be locked out. For all scrmnbled Channels, parental control will be an optional feature of the Grantee's set top box. Grantee shall provide a parental control option without charge to Subscribers, upon request that shall block out the audio and video of any unscrambled Channels carrying predominately adult progrmnming. tn. Performance Testing. Grantee shall perform all system tests and maintenance procedures as required by and in accordance with: the FCC; this Ordinance; Grantee's standards of good operating practice, and the National Cable Television Association's test procedure guidelines. n. Technical Standards. The Cable System permitted to be operated hereunder shall be installed and operated in conformance with this Ordinance, National Electrical Code, OSHA Rules and Regulations, where applicable to Cable System construction, and FCC rules and regulations. Aa~y FCC technical standards or guidelines related to the Cable System and facilities shall be deemed to be regulations under this Franchise. o. Employee Identification. Grm~tee shall provide a standard identification document to all employees, including employees of subcontractors, who shall be in contact with the public. Such documents shall include a telephone nmnber that can be used to verify identification. In addition, Grantee shall use its best efforts to clearly identify all field personnel, vehicles, and other major equipment that are operating under the authority of Grantee. p. Stereo. The System shall have the capability and shall provide Broadcast Television Systems Committee (BTSC) stereo signals on all satellite, broadcast and local semices t-hat transmit them. Channels transmitting in stereo and on a minimum of eight 1~8,) satellite services provided in the basic tier. q. State of the Art. Throughout the term of the Franchise, Grantee shall construct, operate, maintain, and upgrade the Cable System in order to ensure that it continuously conforms to the State of the Art. r. Upstream Signals. To the extent that Grantee chooses to design its Cable System for two- way capability, Grantee agrees to use all reasonable efforts to design such two-way capability so as to permit the future implementation of upstream signal carriage without requiring modifications to its design. Grantee shall be required to offer two-way Services for Subscribers only following satisfaction of each of the following conditions: (i) the offering of such two-way Services is permissible under applicable federal and state laws, Ordinances, rules and regulations, (ii) the Grantee has secured all certificates, licenses, authorizations and approvals from federal and state D. Education and Government Access Support. Grantee shall provide an annual grant to Grantor to be used in support of the production of local educational, and governmental access programming (the "Annual Grant"). The Grantor can require such funds to be paid quarterly if demand for such is made by other cable operator producing such programs. Upon receipt, Grantor shall pay such funds to the local other cable operator currently providing services and equipment in support of such programming, or to any successor or successors which are charged with such responsibilities. Grantor may condition its remittance to the other operator, or any successor, upon the operator's compliance with all franchise requirements, particularly those related to access program production and intercormection with other cable systems. This Annual Grant from the Grantee shall not be considered as a credit against Grantee's Franchise fee. Grantor shall provide the Grantee with a complete accounting annually for the distribution of funds granted pursuant to this' Paragraph D. The Annual Grant provided by Grantee hereunder shall be the sum of seven cents ($.07), per month per the average number of Subscribers in the City each month..to Grantee's Cable System's Basic Tier. The monthly rate will be adjusted annually for inflation by the Consumer Price Index (CPI - Southeastern U.S. for ali urban consumers or the best replacement if no longer available). Partial one cent increments will be rounded to the next whole one cent payment. The Annual Grant payment(s), along with a brief summary of the Subscriber information upon which it is based, shall be delivered to Grantor within sixty (60) days after each calendar year or quarters as appropriate. Calculation of the grant will commence with the first calendar month during which Grantee obtains Its first Subscriber in the City. In lieu of the Annual Grant in support of access programming outlined in this Paragraph D, upon the mutual agreement of Grantor and Grantee, Grantee may provide access programming support utilizing Grantee's mobile production van as mutually agreed to by the Grantor and Grantee. The provision of such Services, if any, by Grantee shall be subject to the provisions of Paragraph F below. E. Government Access Facilities Grant. Grantee will provide Grantor with appropriate government access-I~oduction e~t~ipment and facilities- to opet:ate the facilities and equipment necessary for live broadcast of City Council meetings from the City Council Chambers. Grantor will require an equivalent grant from any other cable provider in the granting of any franchises. F. Operation of Access Programming Facilities or Equipment. To the extent Grantee agrees with Grantor to provide, maintain, or operate any facilities or equipment used to produce educational and governmental access programming, Grantee shall do so for the benefit of itself and all interconuected cable operators. Without Grantor's express written permission to do otherwise, Grantee shall not use its brand name or send any promotional or other announcements with respect to Grantee's service on any education or government access Channel or use such Channels in any manner that would make distribution of the programming on. such Channels unsuitable for any interconnected cable operator. Grantee shall provide the programming or signal related to any access progrmnming produced pursuant to its obligations hereunder to all interconnected cable operators so that all cable subscribers in the City can obtain access to such programming regardless of who provides their cable service. Grantor shall cause all other cable operators providing interconnection or carriage of educational or governmental access progrmnming to be bound to provisions similar to this Paragraph F upon grant of such franchise agreements.