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HomeMy WebLinkAboutItem VI (E01) First Reading of Ordinance, Second Readind and Public Hearing will be on December 15, 1992 - Ordinance No 92-22, relating to the United Telephone Co of FL Franchise AGENDA 12-1-92 1 - Item VI E 1 ! FOLEY & LARDNER I11 NORTH ORANGE AVENUE,SUITE 1800 POST OFFICE BOX 2193 ORLANDO, FLORIDA 32802-2193 JACKSONVILLE, FLSORIDA TELEPHONE 14071 423-7656 IS A MEMBER OF GLOBALEX TALLAHASSEE, FLORIDA FACSIMILE 14071 648-1743 WITH MEMBER OFFICES IN TAMPA, FLORIDA WEST PALM BEACH, FLORIDA LONDON, ENGLAND MILWAUKEE, WISCONSIN PARIS, FRANCE MADISON, WISCONSIN BERLIN, GERMANY CHICAGO, ILLINOIS STUTTGART, GERMANY WASHINGTON, D.C. DRESDEN, GERMANY ALEXANDRIA, VIRGINIA SINGAPORE ANNAPOLIS, MARYLAND MEMORANDUM TAIPEI, TAIWAN / TO: The Honorable Mayor and City Commissioners of the City of Ocoee FROM: Paul E. Rosenthal, Esq. , City Attorney r DATE: November 25, 1992 RE: Ordinance No. 92-22 Extension of Telephone Franchise with United Telephone Company of Florida The City of Ocoee has heretofore entered into a certain License Agreement dated July 6, 1972 with Florida Telephone Corporation ("the License Agreement") . United Telephone Company of Florida is the successor to the interest of Florida Telephone Corporation under the terms of the License Agreement. The License Agreement was for a twenty (20) year term which expired on July 6, 1992 . The City Commission has previously extended the term of the agreement to December 18, 1992 so that a new Franchise Ordinance could be finalized in accordance with the terms of the Ocoee City Charter. For your information, attached hereto is a copy of the current License Agreement. City Staff and United Telephone have agreed upon the terms of the Ordinance extending the existing franchise. Attached hereto is proposed Ordinance No. 92-22 which is scheduled for an advertised public hearing on December 15, 1992. The highlights of the proposed Franchise Ordinance are as follows: (1) A twenty (20) year telephone, telegraph and telephonic radio communication franchise will be granted to United Telephone. (2) The City will receive a franchise fee equal to 1% of United Telephone's gross annual receipts on recurring local exchange service revenues generated from conventional business and residence subscribers located within the corporate limits of the City. This franchise fee will be paid monthly. Florida Statutes establishes a maximum fee of 1%. 4 0 TO Q A f f A Z Y E A E S Z 1)U (3) In the event a higher franchise fee is granted to another municipality, the City would be entitled to require that a new Franchise Agreement be entered into at the higher franchise fee. (4) The operations of United Telephone are subject to the provisions of Sections 337.402 - 337.404, inclusive, Florida Statutes. These provisions relate to the applicable franchise fee, damage to public roads caused by the utility, and relocation of utilities. These statutory provisions are incorporated into the proposed Franchise Ordinance. The proposed Franchise Ordinance is consistent with the types of provisions contained in the existing electric utility franchise ordinance with Florida Power Corporation. The proposed Franchise Ordinance has been approved by representatives of United Telephone Company of Florida and Montye Beamer. RECOMMENDATION: It respectfully is recommended that the Honorable Mayor and City Commission approve and adopt Ordinance No. 92-22. enclosure -2- f/ 7-6/c A pp,c / -<<,,,c. • LICENSE AGREEMENT THIS AGREEMENT, entered into as of the sixth day of July , 1972, by and between the CITY OF OCOEE, FLORIDA, hereinafter referred to as the "City", and FLORIDA TELE- PHONE CORPORATION, a Florida Corporation, hereinafter referred to as the "Company"; WITNESSETH: WHEREAS, the Company presently uses and wishes to continue using the streets, avenues, alleys and public places belonging to the City, for the purpose of constructing and maintaining a telephone system, and for providing communication services to the businesses and residences of Ocoee; and WHEREAS, the City, desires to receive compensation for such use and to issue a license therefor; and WHEREAS, the Company is willing to pay for such license, provided for hereinafter, and the other mutual covenants and conditions set forth hereinafter, it is covenanted and agreed as follows: 1. The City hereby grants to the Company, its succes- sors and assigns, the right to construct and maintain a telephone system along, under and across the City's streets, avenues, alleys and public places for a period of twenty (20) years, provided, however, that the City may terminate this agreement at the end of ten (10) years by giving the Company written notice of its intention to do so posted at least one (1) year prior to the end of the first ten years of the agreement. 2. The Company agrees to pay the City a license fee per annum equal to one percent (1%) of its gross local service recurring • • revenues during each uarter of the calendar year from such customers located within the corporate limits of the City, as recorded to Account 500, provided for in Part 31 of the Uniform System of Accounts prescribed by the Federal Communications Commission, and concurred in by the Florida Public Service Commission. Such payments shall be made not more than thirty (30) days after the end of each calendar quarter. The payment of said license fee to the City as hereinabove stated shall be the only license, inspection, or similar type fee required of the Company by the City, and shall be in lieu of any telephone service provided at no charge, or at a rate below tariff rates. 3. This license is granted subject to all rules and regulations now in effect governing the construction, main- tenance, operation, expansion, control and regulation of telephone companies according to the laws of the State of Florida. 4. The location of all poles, underground cables and other outside plant facilities shall be made with the approval of the City and such locations shall be determined by the.Company in such a manner so that there will be no interference with other public uses of said areas within the City of Ocoee. 5. Whenever in view of the necessity of moving a building or other structure along any such public areas within the City of Ocoee, the City shall serve notice in writing of such re- quirement to the Company directed to its general offices in the City of Ocala, Florida, whereupon the Company shall move such outside plant facilities as may be necessary, providing that the owner or mover (other than the City) of said building or structure -2- • so to be moved shall first deposit with the Company an amount equal to the cost of moving and replacing such outside plant facilities as estimated by the Company. Any amount unexpended in making such alterations shall be returned to the person, firm or corporation making such deposit. 6. The Company, its successors and assigns, shall at all times during the term of this agreement hold the City free and harmless from all liability and damages to persons or property on account of the construction, maintenance, and operation of the said telephone system. 7. The City shall be allowed free use of the said poles within the corporate limits of the City of Ocoee for the erection and maintenance thereon of a fire alarm system at all times during the term of this agreement, provided said fire alarm system does not interfere with the proper maintenance, construction and operation of the telephone system for which said poles are intended. 8. The work of constructing plant facilities under this license shall be done subject to the supervision of the City, and the Company shall replace any sidewalk or street that may be displaced by reason of such work, and upon failure of the Company so to do after reasonable notice in writing shall have been given by the City to the Company at its general offices in the City of Ocala, Florida, the City may repair such portions of the sidewalk or street that may have been disturbed by the Company, and collect the cost so incurred from the Company. • -3- • • IN WITNESS WHEREOF, the parties hereto have caused this agreement to be properly executed by their respective corporate officers and the corporate seals to be hereunto affixed, as of the day and year first above written. Signed, sealed and delivered in the presence of: CITY OF OCOEE, FLORIDA By .s ( r ,.2t Mayo�"2 / Attest: /..�'�'i .; �//j.As to City City C1,7__ (Corporate Seal) FLORIDA TELEPHONE CORPORATION ./lt, c,�, �r�ct Z,.'(__ By / • 54, '(resident `7.1;_ As to Company .� Attest: ✓� 1e// Secretary (Corporate Seal) • • • -4- ORDINANCE NO. 92-22 AN ORDINANCE OF THE CITY OF OCOEE, FLORIDA GRANTING TO UNITED TELEPHONE COMPANY OF FLORIDA, A FLORIDA CORPORATION, ITS SUCCESSORS AND ASSIGNS, THE RIGHT, PRIVILEGE AND FRANCHISE TO CONSTRUCT, MAINTAIN AND OPERATE TELEPHONE, TELEGRAPH AND TELEPHONIC RADIO AND OTHER TYPES OF COMMUNICATION SYSTEMS IN THE CITY OF OCOEE, ORANGE COUNTY, FLORIDA, FOR A PERIOD OF TWENTY (20) YEARS; ESTABLISHING A FRANCHISE FEE; PROVIDING FOR INDEMNIFICATION OF THE CITY; PROVIDING FOR CERTAIN CONDITIONS RELATING TO THE FRANCHISE; PROVIDING FOR THE INCLUSION OF LANDS WHICH MAY HEREAFTER BE ANNEXED INTO THE CITY OF OCOEE; PROVIDING FOR COMPLIANCE WITH APPLICABLE FLORIDA STATUTES; PROVIDING FOR CONFLICTS; PROVIDING FOR SEVERABILITY; CONFIRMING COMPLIANCE WITH CHARTER REQUIREMENTS; PROVIDING AN EFFECTIVE DATE. BE IT ENACTED BY THE CITY COMMISSION OF THE CITY OF OCOEE, FLORIDA, AS FOLLOWS: SECTION 1. The City Commission of the City of Ocoee has the authority to adopt this Ordinance pursuant to Section H of Article II of the Charter of the City of Ocoee, Article VIII of the constitution of the State of Florida and Chapter 166, Florida Statutes. SECTION 2. The City of Ocoee, a municipal corporation created and existing pursuant to the laws of the State of Florida, its successors and assigns (hereinafter called the "City") does hereby give and grant to UNITED TELEPHONE COMPANY OF FLORIDA, a corporation organized and existing under the laws of Florida, its successors and assigns (hereinafter called "Grantee") , the right, privilege, and franchise for a period of twenty (20) years from and after the effective date of this Ordinance to construct, maintain, and operate (a) a communications system or systems in, over, upon, under and across the present and future streets, alleys, avenues, easements for public utilities, highways, bridges, other public places and upon such public facilities as poles and conduits in the City of Ocoee, and (b) any and all necessary telephone, telegraph, telephonic radio and other methods and means of communication, together with all necessary or desirable poles, towers, cables, wires, transmission lines, and all necessary or desirable appurtenances thereto, for the purpose of supplying telephone, telegraph, telephonic radio, or other means of communication services to the City, the inhabitants thereof, and the persons and corporations beyond the corporate limits thereof, for domestic, commercial and other purposes. SECTION 3. This grant is made in consideration of the construction, maintenance and operation of telephone lines or other facilities by the Grantee as now and heretofore existing and as herein provided for and for the benefits and conveniences of the inhabitants of the City as a result thereof. SECTION 4. As a further consideration for the granting of this franchise, Grantee, by acceptance of this franchise, agrees to pay to the City an annual sum equal to one percent (1%) of the Grantee's gross annual receipts on recurring local exchange service revenues generated from the conventional business and residence subscribers located within the corporate limits of City. The annual sums due City shall be paid on or before the fifteenth (15th) of each month for the preceding month. The payment of said fee to the City as hereinabove stated shall be the only franchise, inspection or similar type fee required of the Grantee by the City, and shall be in lieu of any telephone service provided at no charge, or at a rate below tariff rates; provided, however, that the payment of the franchise fee shall not exempt Grantee from the payment of (a) any applicable ad valorem taxes, and (b) amounts for assessments for special benefits, such as sidewalks, street pavings and similar improvements, and (c) occupational license taxes levied or imposed by the City. SECTION 5. In the event Grantee shall hereafter accept a franchise ordinance for telephone, telegraph, telephonic radio and other methods or means of communication from any municipality providing for the payment of franchise fees in excess of the amount provided for in Section 4 above, then Grantee shall be obligated to accept from the City a new twenty (20) year franchise agreement providing for the payment of the same increased franchise zees. The Grantee shall give written notice to the City of any such r anchise fee increase within thirty (3 0) days of the date thereof. SECTION 6. By acceptance of this franchise, the Grantee hereby covenants and agrees to hold the City completely harmless and to indemnify it from any and all liability, loss and damage of every nature whatsoever resulting from the Grantee's operations and facilities of every nature whatsoever, including, but not limited to, the operation, placing and repair of the Grantee's equipment, poles, lines, guy wires, conduits and holes and declivities and breaks in pavement and other changes or alterations in the streets, sidewalks and property of the City. SECTION 7. All of Grantee's poles, towers, and wires shall be located so as to interfere as little as practicable with normal use of said streets, avenues, alleys, highways, bridges, and other public places, and so as to preserve reasonable means of egress and ingress to abutting property; PROVIDED, HOWEVER, that 2 this grant is made subject to the right of the City (a) to at all times control the distribution of space in, over, upon, under, and across the streets, avenues, alleys, and other public places of the City; and (b) to make such reasonable regulations affecting and governing the use of said streets, alleys, avenues, and other public places by the Grantee for its property and appliances as may, in the opinion of the City and its governing body, be required for the reasonable protection of the public health, safety, and accommodation of the community, and when in the opinion of the City and its governing body the public necessity or reasonable convenience so requires, to demand the removal, reconstruction, and relocation of such property and facilities. By acceptance of this franchise, Grantee agrees that it shall properly replace or repair any sidewalks, streets and/or public or private utilities that are displaced, destroyed, or damaged by the Grantee in connection with the installation, inspection or repair of its poles, lines, conduits or other facilities; and upon failure so to do after thirty (30) days notice, in writing, shall have been given by the duly constituted authority of the City to the Grantee, the City may repair the same at the cost of the Grantee. SECTION 8. In the event of the annexation of any territory to the present corporate limits of the City of Ocoee, such annexed territory and all portions of the Grantee's system for telephone, telegraph, telephonic radio and other methods or means of communications located therein shall become subject to all of the terms and conditions of this franchise and Ordinance as of the time such annexation becomes effective. It shall be the responsibility of the City to notify Grantee in writing within thirty (30) days after the effective date of every such annexation. SECTION 9. This Agreement is subject to and shall not be co sidev d as a modification of the provisions of Sections 337.402, 337.403 and 337.404, Florida Statutes, which are incorporated herein by reference and made a part hereof. This Ordinance shall not be construed to grant to Grantee any rights or privileges to establish a cable system, as defined in Section 337.4061, Florida Statutes, within the corporate limits of the City. SECTION 10. Conflicts. All ordinances and parts of ordinances in conflict herewith be and the same are hereby repealed. SECTION 11. Severability. If any section, subsection, sentence, clause, phrase or portion of this Ordinance is for any reason bold invalid or unconstitutional by any court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and such holding shall not affect the validity of the remaining portion hereto. 3 SECTION 12 . Compliance with Charter Requirements. This Ordinance and franchise has been approved by the Ocoee City Commission at a public hearing preceded by at least thirty (30) days notice of the hearing and the proposed action by publication once a week for four (4) consecutive weeks in a newspaper of general circulation in the City, all pursuant to and in accordance with the provisions of Section H of Article II of the Charter of the City of Ocoee. SECTION 13. Effective Date. This Ordinance shall become effective immediately upon passage and adoption. PASSED AND ADOPTED this day of December, 1992. APPROVED: ATTEST: CITY OF OCOEE, FLORIDA Jean Grafton, City Clerk S. Scott Vandergrift, Mayor (SEAL) ADVERTISED NOVEMBER 15, 22 . and 29, 1992 AND DECEMBER 6, 1992 READ FIRST TIME DECEMBER 1, 1992 READ SECOND TIME AND ADOPTED , 1992 . FOR USE AND RELIANCE ONLY BY THE UXT3f OF OCOEE, FLORIDA Ak RRO s,O .A TO ORM AND LEGALITY this day of December, 1992. FOLEY & LARDNER APPROVED BY THE OCOEE CITY COMMISSION AT A MEETING HELD ON , 1992 By: UNDER AGENDA ITEM NO. City Attorney C:\WP51\DOCS\OCOE\LEASES\UNfl'ED.ORD 11125/921 GINNYE I PER:`e 4