Loading...
O-610-99 ORDINANCE NO. 610-99 AN ORDINANCE AUTHORIZING TCG SOUTH FLORIDA TO USE THE PUBLIC STREETS OF MIAMI SHORES VILLAGE, FLORIDA, FOR THE PURPOSE OF ERECTING, CONSTRUCTING, MAINTAINING AND OPERATING LINES OF A TELEPHONE SYSTEM THEREON AND THEREUNDER; PROVIDING COMPENSATION TO THE VILLAGE; PROVIDING FOR INSURANCE AND INDEMNIFICATION REQUIREMENTS; PROVIDING FOR SEVERABILITY AND PROVIDING FOR AN EFFECTIVE DATE. THE VILLAGE COUNCIL OF MIAMI SHORES VILLAGE HEREBY ORDAINS: Section 1. Permission be and the same is hereby granted to TCG South Florida (the "Company"), its permitted successors and assigns, to construct, maintain and operate lines of a telephone system, including the necessary conduits, cables, fixtures and electrical conductors upon, along, under and over the public roads, streets and highways of Miami Shores Village, Florida (the "Village"), as its business may from time to time require to provide those telephone services which it has been certified to provide by either the Federal Communications Commission or the Florida Public Service Commission, including local telephone service, provided that all poles shall be uniform and symmetrical. Nothing in this Ordinance shall prohibit the Company from leasing lines from a cable television company which operates under a valid franchise from the Village and the franchise fee imposed by Village hereunder shall be applicable to services provided by Company utilizing such lines. Section 2. The work of constructing underground conduits under this Ordinance shall be done subject to the approval of the Village, and the Company shall replace or properly re-lay and repair any sidewalk or street that may be displaced by reason of such work, and upon failure of the Company so to do, after twenty (20) days' notice in writing given by the Village Manager of the Village to the Company, the Village may repair such portion of the sidewalk or street that may have been disturbed by the Company, and collect the reasonable cost so incurred from the Company or, in the event the Company fails to compensate the Village, upon the bond provided by the Company pursuant to Section 7 of this Ordinance. Section 3. In consideration of the rights and privileges of providing telephone service, as defined by Section 203.012(3) Florida Statutes, as amended, the Company shall pay to the Village quarterly a franchise fee equal to the maximum percentage and full extent allowed pursuant to Section 337.401(3), Florida Statutes, as amended, of the quarterly gross receipts derived from local recurring service revenues for services provided within the corporate limits of the Village. In the event the maximum fee authorized by law is either decreased or increased from the current amount of one percent (1%) of gross receipts on recurring local service revenues, this Ordinance shall be deemed to be automatically amended to reflect the revised amount prospectively (from the effective date or such change in the law). Payment shall be made to the Village for each of the fiscal quarters that this Ordinance is in effect and shall be based on the revenue of the Company for the preceding fiscal quarter. Payment for part of the fiscal quarter at the beginning and end of the term shall be prorated. Payment shall be made within twenty (20) days after the end of such fiscal quarter. For the purposes of this section, gross receipts shall be defined as the aggregate amount of recurring local service revenues calculated in accordance with Generally Accepted Accounting Principles, of the Company obtained from its customers which are attributable to services provided within the Village during any period less credits, refunds, municipal taxes of the Village, uncollectible amounts actually charged off during the period and any amounts charged to customers which are paid by the Company to another telecommunications system operator or owner (other than a cable television operator or owner franchised by the Village) not affiliated with the Company for any service the Company utilizes in connection with its provision of services hereunder. Section 4. Company shall make available for examination by the Village or its authorized representative or agent, during normal business hours, the books, records and accounts and other documentation of Company that are necessary to determine the accuracy of the gross receipts on recurring local service revenues upon which the fee payment set out in Section 3 of this Ordinance is based. Both the Village and Company acknowledge that the Village must comply with the provisions of the Chapter 119, Florida Statutes, the Public Records Law and to the extent that records supplied by Company contains the name, address and telephone number of subscribers, such information shall remain confidential and exempt from public disclosure as provided by sections 119.07(3)(r) and 166.231(9)(c), Florida Statutes, as amended. Section 5. Nothing in this Ordinance shall serve to prohibit Company from maintaining or operating lines for the purpose of engaging in toll telephone service as defined by Section 203.012(7), Florida Statutes, as amended, other than intrastate toll telephone service. However, in the event Company uses Village rights-of-way for the purpose of providing toll telephone service as defined in Section 203.012(7), Florida Statutes, Company shall pay to Village the fee provided by Section 337.401(4), Florida Statutes, to the extent such fee is applicable. Section 6. (a) The Village shall not at any time be liable for any injury or damage occurring to any person or property from any cause whatsoever, arising from the use, operation, or condition of the Company's Telephone System or services provided by Company hereunder. (b) The Company shall indemnify, save, and hold harmless and defend the Village from all liens, charges, claims, damages, demands, suits, actions, fines, penalties, losses, costs, including but not limited to, reasonable legal fees and court costs, including legal fees and court costs on appeal, judgments or liabilities, in law or equity, of any and every kind and nature whatsoever, arising out of or in any connected with the installation, operation, maintenance or condition of the Company's Telephone System, the adoption of this Ordinance 2 or the exercise of the privileges conferred herein. The adoption of this Ordinance is consideration for the granting of this covenant of indemnity. (c) Upon the acceptance of this Ordinance and at all times during the term of operation of this Ordinance, the Company shall obtain, pay all premiums for, and file with the Village Clerk written evidence of payment of premiums and executed certificate of insurance or duplicate copies of the following: (1) A general comprehensive liability policy indemnifying, defending and saving harmless the Village, its officers, boards, commissions, agents and employees from and against all claims by any person whomsoever for personal injury (including death) or occasioned by the operation of Company under this Ordinance, or alleged to have been so caused or occurred with a minimum liability of Three Million Dollars ($3,000,000) combined single limit for personal injury or death. (2) Property damage insurance, indemnifying, defending, and saving harmless the Village, its officers, boards, commissions, agents, and employees from and against all claims by any person whomsoever for property damage occasioned by the operation of Company under this Ordinance or alleged to have been so caused or occurred, with a minimum liability of Five Hundred Thousand Dollars ($500,000) combined single limit for property damage. (d) All insurance policies required herein shall be in a form satisfactory to the Village Clerk and shall require thirty (30) days advance written notice of any cancellation or material change to both the Village and the Company. The Company shall in the event of any such notice of cancellation or material change, obtain, pay all premiums for, and file with the Village, written evidence of the continuation or replacement of such policies within thirty (30) days following receipt by the Village or the Company of any notice of cancellation or material change. (e) As proof of financial responsibility, in lieu of the insurance policies as required by and referenced in subparagraphs (c) and (d) above, the Company may submit (1) a certification by a qualified independent actuary, acceptable to the Village Clerk, which indicates that Company has established an "actuarially sound" self-insurance program with adequate reserves and resources to provide coverage and protection equal to or better than the requirements contained in subparagraphs (c) and(d) above, or(2) other documentation and proof acceptable to the Village Manager and the Village Clerk which indicates that Company has a self-insurance program with adequate reserves and resources to provide coverage and protection equal to or better than the requirements contained in subparagraphs (c) and (d) above. Section 7. Unless the Company supplies other acceptable financial guarantees or demonstrates the sufficiency of existing financial guarantees or demonstrates financial 3 responsibility satisfactory to the Village, the Company shall file bonds solely for the protection of the Village with a surety company or trust company or companies as surety or sureties in an amount sufficient to protect the Village from any and all damages or costs suffered or incurred by the Village as a result thereof, including, but not limited to, attorney's fees and costs of any action or proceeding, and including the full amount of compensation, indemnification, cost of removal or abandonment of property or other costs which may be in default, up to the full penal sum of such bond which shall be in the amount of $50,000.00; and the condition shall be a continuing obligation during the entire term of this Ordinance. None of the provisions of this section nor any bond accepted by the Village pursuant hereto, nor any damages recovered by the Village thereunder, shall be construed to excuse the faithful performance by or limit the liability of the Company under this Ordinance. Section 8. The Company shall file with the Village Clerk of the Village its acceptance of this Ordinance, in a form approved by the Village Attorney, within ninety (90) days from the adoption of this Ordinance and shall thereupon enjoy the benefits hereof. Section 9. Village and Company understand that this Ordinance shall expire upon the earlier of five (5) years or the adoption of a telecommunications ordinance, including any right-of-way construction and administration ordinances, which may be adopted by the Village consistent with applicable state or federal law. Neither parry waives the right to challenge any provisions of any future applicable ordinances which are inconsistent with state or federal law. Section 10. Company shall not assign or transfer its rights under this Ordinance without the written consent of the Village, which consent will not be unreasonably withheld; except that upon written notice to the Village, Company may make such assignment to: (a) a subsidiary, affiliate or parent company of the Company; or (b) any firm or corporation which Company controls, is controlled by, or is under common control with; or (c) any partnership in which it has a majority interest; or (d) to any entity which succeeds to all or substantially all or its assets whether by merger, sale or otherwise. Consent will be deemed granted within 120 days of written request unless the Village finds that the proposed assignee or transferee lacks the legal, financial or technical qualifications to operate Company's system. Section 11. Events of Default. Company shall be in default if during the term of this Ordinance, Company fails to perform or observe any term, covenant, agreement or condition of this Ordinance, on the part of Company to be performed within thirty (30) days after prompt written notice thereof from the Village, unless such performance shall reasonably require a longer period, in which case Company shall not be deemed in default if Company commences the required performance promptly and thereafter pursues and diligently completes such action. If Company fails to cure the default after written notice within the time set out in this section, the Village shall have the right to revoke this Ordinance and any permission granted to Company hereunder for use of the Village public rights-of-way and recover any actual damages sustained. 4 0 Section 12. Jurisdiction. This Ordinance grants no rights or privileges to the Company for the provision of the telephone services above and beyond the Village's police power or proprietary rights to control the use of its rights-of-way. Nothing herein shall be construed to obviate the necessity for Florida Public Service Commission approval under Chapter 364 F.S. prior to commencing service regulated by the FPSC. Nothing in this franchise ordinance purports or is intended to give company the authority to provide any services which are not otherwise permitted by State or Federal law. Section 13. Severability. If any word, clause, phrase, sentence, paragraph or section of this Ordinance is held to be invalid by a court of competent jurisdiction, such declaration of invalidity shall not affect any other word, clause, phrase, sentence, paragraph or section of this Ordinance, except that this Ordinance shall not be effective if the franchise fees imposed herein are found invalid. Section 14. Rte. All ordinances or parts of ordinances in conflict herewith or inconsistent herewith are hereby repealed, but only insofar as such ordinances may be inconsistent or in conflict with this Ordinance. Section 15. Effective Date. This Ordinance shall be effective upon passage by the Village Council on second reading. PASSED AND ADOPTED by 5-0 vote of the Village Council on the first reading this 16 day of March , 1999. PASSED AND ADOPTED by 40 vote of the Village Council on second reading this 6 day of April 1999. J' MAYOR ATTEST: VILLAGE CLERK APPROVED AS TO FORM: VILLAGE ATTORNEY FTL1-321289.4 5 Ordinance No. 610-99 ACCEPTANCE BY GRANTEE Grantee, TCG SOUTH FLORIDA, hereby accepts the terms and conditions of the foregoing Franchise Ordinance on this 29 day of Apra 1999, and hereby agrees to comply with and be bound by the obligations of Grantee thereunder. WITNESSES: TCG SOUTH FLORIDA c.-t'A A Gti� By: Print Name: fury iso 1:. Title: V ���;`P���,�� -6- FTL1 #429831 v1