O-405-M
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CITY OF CLERMONT
ORDINANCE
NO. 405-M
AN ORDINANCE OF THE CITY OF CLERMONT, LAKE COUNTY, FLORIDA,
GRANTING A FRANCHISE TO ADELPHIA BUSINESS SOLUTIONS OF
FLORIDA, L.L.C. FOR THE PURPOSE OF ERECTING, MAINTAINING AND
OPERATING A TELECOMMUNICATIONS SYSTEM IN THE CITY OF
CLERMONT, FLORIDA, SETTING FORTH CONDITIONS ACCOMPANYING
THE GRANT OF AUTHORITY, PROVIDING FOR SEVERABILTY AND
PROVIDING FOR AN EFFECTIVE DATE
The City Council of the City of Clennont, Lake County, Florida hereby ordains that:
SECTION 1. STATEMENT OF INTENT AND PURPOSE; AUTHORITY
1.0 I Statement of Intent and Purpose. The City of Clennont, Florida ("Grantor")
intends, by the adoption of this Authorization, to authorize the construction, operation,
maintenance and expansion of a Telecommunications System by Adelphia Business Solutions of
Florida, L.L.c. ("Grantee").
1.02 Authority. Insofar as the State of Florida has delegated to Grantor the right to
consent to authorize Telecommunications System operation within the Grantor's territorial
boundaries, the Grantor hereby exercises its authority to grant a non-exclusive authorization
pennitting the operation of a Telecommunications System within the City of Clennont.
SECTION 2. SHORT TITLE
This Ordinance shall be known and cited as the "City of Clennont Telecommunications
Authorization Ordinance." Within this document it shall also be referred to as "this
Authorization. "
SECTION 3. DEFINITIONS
For the purpose of this Authorization, the following tenns, phrases, words and their
derivations shall have the meaning given herein. Words not defined shall be given their meaning
according to common usage within the telecommunications industry. Words not defined that
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have no meaning within the telecommunications industry shall be given their common and
ordinary meaning.
3.01 "Authorization" shall mean the pennission granted under this Ordinance.
3.02 "Telecommunications Service" shall mean the transmission, between or among
points specified by the user, ofinfonnation of the user's choosing, without change in the fonn or
content of the infonnation as sent and received.
3.03 "City" shall mean the area within the City limits of the City ofClennont, in Lake
County in the State of Florida, including areas annexed during the tenn of this Authorization.
3.04 "FCC" shall mean the Federal Communications Commission.
3.05 "Grantor" shall mean the City ofClennont.
3.06 "Grantee" shall mean Adelphia Business Solutions of Florida, L.L.C., and its
successors, transferees or assignees.
3.07 "Development" shall mean a real estate development, and a condominium,
cooperative, mobile home park or multi-unit dwelling of four or more units.
3.08 "Resident" shall mean a natural person who lives within the City.
3.09 "Owner" shall mean a person with a legal or equitable interest in ownership of
real property.
3.10 "Person" shall mean any corporation, partnership, proprietorship, individual or
organization, governmental organization, or any natural person.
3.11 "Public Property" shall mean any real property owned by Grantee other than a
street.
3.12 "Public Right-of-Way" shall mean the surface, air space above the surface, and
the area below any public street, road, highway, freeway, lane, path, public way, alley, court,
sidewalk, boulevard, parkway, drive, bridge, tunnel, park, parkway, waterway, easement or right-
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of-way now or hereafter held by Grantor, or dedicated for use by the Grantor, use by the general
public, or use compatible with Telecommunications System operations.
3.13 "Service" means any Telecommunications Service that is offered to any Person in
conjunction with, or distributed over, the System.
3.14 "Signal" means any transmission of radio frequency energy or of optical
infonnation.
3.15 "System" shall mean a system of antennas, cables, Wires, lines, towers,
waveguides or other conductors, converters, equipment or facilities, used for distributing
Telecommunications Services within the City.
SECTION 4. GRANT OF AUTHORITY
4.01 Grant of Authorization. For the purposes of constructing, operating and
maintaining a System in the City, Grantee may erect, install, construct, repair, replace,
reconstruct and retain in, on, over, under, upon, across and along the Public Rights-of-Way in the
City such lines, cables, conductors, ducts, conduits, vaults, manholes, amplifiers, appliances,
pedestals, attachments and other property and equipment as are necessary and appropriate to the
operation of the System.
4.02 Authorization Tenn. The initial tenn of this Authorization shall commence upon
, 200_, and shall expire fifteen (15) years from said date, unless renewed as herein
provided.
4.03 Conditions of Authorization. The rights afforded to Grantee by Sections 4.01 and
4.02 are granted subject to the conditions hereinafter provided.
SECTION 5. FRANCHISE FEE
5.01 Payment of Fees to City.
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A. In consideration of the rights and privileges herein granted, and for the use of the streets,
the Grantee shall pay to the City a fee which shall not exceed I percent of the gross
receipts on recurring local service revenues for services provided within the corporate
limits of the City by the Grantee. Included within such I-percent maximum fee or
consideration are all taxes, licenses, fees, in-kind contributions accepted pursuant to
Section 337.401(5), and other impositions except ad valorem taxes and amounts for
assessments for special benefits, such as sidewalks, street pavings, and similar
improvements, and occupational license taxes levied or imposed by a municipality upon
the telecommunications company. Payments to the City shall be made on or before the
thirteenth day of each calendar quarter on recurring local service revenues levied and
collect the proceeding quarter.
B. "Recurring local service revenues" are defined as all revenues received by the Grantee from
its customers for providing the local transport of voice and data signals within the City limits,
specifically those revenues derived from telecommunication services defined in Florida Statute
Section 203.012(2)(a), excluding those services defined in Florida Statutes 203.012(2)(b).
SECTION 6. CONSTRUCTION, OPERATION AND MAINTENANCE
6.01 Construction. Operation. and Maintenance Requirements.
A. Grantee shall construct, operate and maintain its Telecommunications
System in compliance with all applicable laws, ordinances, rules and regulations.
B. No construction or other activity on or related to the Telecommunications
System, including any activity within a Public Right-of-Way, shall be commenced by the
Grantee until all required pennits and approvals have been obtained from the Grantor and other
applicable authorities. Any such pennit or approval may impose conditions that are necessary to
protect structures in the Public Right-of-Way, to ensure the proper restoration of the Public
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Right-of- Way and any structures located therein, to provide for protection and the continuity of
pedestrian and vehicular traffic, and otherwise to protect the public's utilization of the Public
Right -of-Way. The Grantor shall cooperate and use its best efforts in granting any pennits or
approvals required.
C. Grantee shall at all times take reasonable precautions to prevent failures
and accidents which are likely to cause damage or injury to the public, to employees of the
Grantee and to public or private property.
D. Any Public Right-of-Way or public property that is disturbed or damaged
during, or as a result of, the construction, reconstruction, repair, replacement, relocation,
operation or maintenance of the Telecommunications System, shall be promptly repaired by the
Grantee, at its sole expense.
E. Grantee shall make use of existing poles and other facilities that are
available to Grantee. Grantee may erect its own poles and install its own conduit, with approval
of the Grantor, which approval shall not be unreasonably withheld. All poles and conduit
installed within the City shall be made available for attachment or use by Grantee, at just and
reasonable rates that are applied to public utilities under the fonnula presently established in 47
U.S.c. § 224.
F. In areas of the City where all cables, wires or other like facilities of public
utilities are placed underground, Grantee shall place its cables, wires, or other facilities
underground.
G. Grantee may cut or trim trees and vegetation interfering with National
Electrical Safety Code and other clearance requirements.
H. In the event it is necessary to temporarily move or remove any of
Grantee's wires, cables, poles, or other facilities placed pursuant to this Authorization, for the
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purpose of lawfully moving a large object, vehicle, building or other structure over the streets of
City, Grantee shall be given thirty (30) days prior notice by Grantor. Grantee shall move those
facilities as may be required to facilitate such movements at the expense of the person requesting
the temporary removal.
1. In the event the Grantor requests that Grantee relocate its facilities,
Grantee shall be reimbursed for such relocation to the extent other utilities are reimbursed.
6.02 Perfonnance Bond or Letter of Credit. Prior to any construction, upgrade, rebuild
or other telecommunications-related work in the Public Rights-of-Way, the Grantor may require
the Grantee to establish in the Grantor's favor a perfonnance bond or letter of credit, in an
amount not to exceed ten (10) percent of the total cost of the work, to ensure the Grantee's
faithful perfonnance of the construction, upgrade, rebuild or other work. Upon completion of
the construction, upgrade, rebuild or other work in the Public Rights-of-Way and payment of all
construction obligations of the Grantee, the Grantor shall eliminate the bond or letter of credit.
6.03 Resident's Right of Access.
A. In cases of new construction or property development where utilities are to
be placed underground, the developer or property owner shall give Grantee reasonable notice of
not less than thirty (30) days prior to such construction or development, of the particular date on
which open trenching will be available for Grantee's installation of conduit, pedestals and/or
vaults and laterals to be provided at Grantee's expense. Grantee shall provide specifications as
needed for trenching.
B. No developer or property owner shall preclude Grantee from having
access to public or general utility easements for the construction, installation, maintenance and
repair of the Telecommunications System and for the provision of Telecommunications Services
to residents, tenants, and other potential subscribers within the Development. Such conditions
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relating to use of rights-of-way or utility easements shall be imposed by operation of law as a
condition to subdivision, construction, development, zoning changes, variances and special use
pennits.
c. Each resident, tenant, and other potential subscriber in a Development
shall be provided with the continuing option to receive Telecommunications Service from any
authorized provider of such services.
D. The Grantee is authorized to enforce the provision of this subsection 6.03.
Anyone who violates these subsections also shall be liable to the Grantee or any aggrieved
resident for injunctive relief, damages, and all costs and expenses required to ensure the rights
afforded hereunder.
E. If any portion of this Section is held to be void or unenforceable by a
court of competent jurisdiction, it shall be deemed severed from the remainder, which shall
continue in full force and effect.
SECTION 7. INSURANCE, INDEMNITY
7.01 Indemnity.
A. Scope of Indemnity. To the extent pennitted by law, and except for
matters arising out of the Grantor's negligence, or the negligence of Grantor's agents and
employees, Grantee shall, at its sole cost and expense, indemnify, hold hann1ess, and defend the
Grantor, its officers, boards, commissions, agents and employees, against any and all claims,
causes of action, proceedings, and judgments for damages or equitable relief arising out of the
construction, repair, maintenance, or operation of the System.
B. Duty to Give Notice and Tender Defense. The Grantor must give the
Grantee timely written notice of the making of any claim or of the commencement of any action,
suit or other proceeding covered by the indemnity of this Section. In the event such claim arises,
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the Grantor or any other indemnified party shall tender the defense thereof to the Grantee and the
Grantee shall have the right to defend, settle or compromise any claims arising hereunder and the
Grantor shall cooperate fully therein.
7.02 Insurance.
A. The Grantee shall maintain throughout the duration of the tenn of the
Authorization, liability insurance covering the Grantee against any and all claims, injury or
damage to persons or property, both real and personal, caused by the construction, erection,
operation or maintenance of any aspect of the Telecommunications System, in amounts no less
than the following:
B. Comprehensive General Liabilitv; combined single limit of not less than one
million dollars ($1,000,000);
Comprehensive Automobile Liability; combined single limit of not less than
one mi1lion dollars ($1,000,000);
Workers Compensation Policy; combined single limit of not less than five
hundred thousand dollars ($500,000).
C. All policies shal1 contain such deductibles as are ordinary and reasonable in
keeping with industry standards.
D. Grantee shall provide thirty (30) days advance notice to the Grantor in the
event of material alteration, or cancel1ation of any coverage.
E. Evidence of al1 insurance required hereunder shall be furnished upon request
to Grantor.
SECTION 8. REMEDIES
8.01 Notice of Violation. Grantor shall provide Grantee with a detailed written notice
of any Authorization violation upon which it proposes to take action, and a ninety (90) day
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period within which Grantee may: (I) demonstrate that a violation does not exist or cure an
alleged violation, or (2) if the nature of the violation prevents correction of the violation within
90 days, to initiate a reasonable plan of action to correct such violation (including a projected
date by which it will be completed) and notify the Grantor of such plan of action.
8.02 Default. If Grantee fails to disprove or correct the violation within ninety (90)
days or, in the case of a violation which cannot be corrected in 90 days and Grantee has failed to
initiate a reasonable plan of corrective action and to correct the violation within the specified
time frame, then Grantor may declare the Grantee in default, which declaration must be in
writing. In the event that the Grantor declares Grantee in default, the Grantor shall have the right
to institute legal proceedings to collect damages from the date of declaration of default, or to
exercise any other rights and remedies afforded to the Grantor in law or equity, provided,
however, that the Grantor may institute revocation proceedings against Grantee only after
declaration of default, pursuant to Section 8.06 and only on the grounds set forth therein.
8.03 Hearing Available to Grantee. Within fifteen (15) days after receipt of a written
declaration of default from the Grantor, Grantee may request, in writing, a hearing before the
Grantor or its agent, in a full public proceeding affording due process. Such hearing shall be
held within thirty (30) days of the receipt of the request therefor and a decision rendered within
ten (10) days after the conclusion of the hearing. Any decision shall be in writing and shall be
based upon written findings of fact.
8.04 Appeal of Default. Grantee may appeal a declaration of default to any state or
federal agency or court of competent jurisdiction for de novo review.
8.05 Revocation. The Grantor may revoke the Authorization only after declaration of
default and only for defaults by Grantee arising from the following circumstances:
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A. Material misrepresentation by Grantee to Grantor in infonnation required to
be provided under the Authorization.
B. Grantee willfully and persistently violates any material orders or rulings of
any regulatory body having jurisdiction over the Authorization.
C. Grantee willfully fails to acquire the insurance required by the Authorization.
8.06 Procedures Governing Revocation.
A. Grantor shall give written notice to the Grantee of its intent to revoke the
Authorization and the lawful grounds therefor. Grantee shall have ninety (90) days from such
notice to object, in writing, and to state its reasons for such objection. In the event the Grantor
has not received a response satisfactory to it, it may then proceed to place its request for
tennination of the Authorization at a Council meeting. Grantor shall cause to be served upon the
Grantee, at least ten (10) days prior to the time and place of such meeting, a written notice of this
intent to request such tennination, and the time and place of the meeting. Notice shall be
published by the Grantor at least once, no later than ten (IO) days prior to such a meeting, in a
newspaper of general circulation within the City.
B. In addition to the Grantee's right to appeal any declaration of default to
arbitration proceedings under Section 8.04, if the Grantor orders the tennination of this
Authorization, the Grantee shall have the right to appeal the detennination of the Grantor within
thirty (30) days to any agency or court of competent jurisdiction for de novo review. The
Grantor's detennination to tenninate this Authorization shall not be effective pending final
resolution of all appeals under this Section.
8.08 Unauthorized Operations. It shall be unlawful for any person to establish, operate
or to carry on the business of distributing to any persons in the City any Signals by means of a
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System unless an Authorization therefor has first been obtained, and unless such Authorization is
in full force and effect.
SECTION 9. VARIANCE
9.01 Variance. Applications for a variance to this Authorization, to accommodate a
significant change in circumstances, to prevent unreasonable hardship to Grantee, may be made
by the Grantee to Grantor. Grantor shall review such application within fourteen (14) calendar
days, or earliest meeting of the City Council, issue a report of the findings and act on a request
within thirty (30) days. If Grantee cannot reach agreement with the Grantor on the variance
within such time, it may resort to the procedure of Section 8.03 for resolution of the dispute.
SECTION 10. RENEWAL
10.01 Renewal.
A. This Authorization may be renewed for an additional fifteen (15) years if the
Grantee has substantially complied with the material tenns of the existing Authorization and
with applicable law;
B. In any renewal proceeding, the Grantee shall be afforded adequate notice and
the Grantee and the Grantor, or its designee, shall be afforded fair opportunity for full
participation, including the right to introduce evidence, to require the production of evidence,
and to question witnesses. A transcript shall be made of any such proceeding.
C. A proceeding under this subsection shall be completed within twelve (12)
months of its commencement, within which time the Grantor shall issue a written decision
granting or denying the proposal for renewal based upon the record of such proceeding, and
transmit a copy of such decision to the Grantee. Such decision shall state the reasons therefor.
D. Any denial of a proposal for renewal shall be based on one or more adverse
findings made with respect to the factors described in subsection A, pursuant to the record of the
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proceeding under subsection A. Grantor may not base a denial of renewal on a failure to
substantially comply with the material tenns of the Authorization under subsection A or on
events considered under subsection A unless the Grantor has provided Grantee with notice and
the opportunity to cure, or in any case in which it is documented that the Grantor has waived its
right to object, or Grantee gives written notice of a failure or inability to cure and the Grantor
fails to object within a reasonable time after receipt of such notice.
E. Grantee expressly reserves its rights of appeal under federal and state law. In
addition to such rights, this Authorization shall remain in effect at all times during which a
renewal proceeding or appeal remains pending.
F. Grantee shall at all times retain ownership of the Telecommunications System
and upon expiration or non-renewal shall be afforded a reasonable time to remove its facilities
from the Public Rights of Way, or alternatively, sell the System to a qualified buyer consistent
with applicable law.
SECTION-1t.
MISCELLANEOUS
11.01 Severability. If any law, ordinance, regulation or court decision renders any
provision of this Authorization invalid, the remaining provisions of the Authorization shall
remain in full force and effect.
11.02 Force Majeure. Grantee shall not be deemed in default, non-compliance, or in
violation with any provision of this Authorization where perfonnance was rendered impossible
by war or riots, civil disturbances, natural catastrophes or other circumstances beyond the
Grantee's control.
11.03 Nonexclusive.
A. This Authorization and the right it grants to use and occupy the Public Rights-
of- W ay shall not be exclusive and do not, explicitly or implicitly, preclude the issuance of other
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Authorizations to operate Telecommunications Systems within the City. Provided, however, that
Grantor shall not authorize or pennit another Person to construct, operate or maintain a
Telecommunications System, or otherwise to utilize the Public Rights-of-Way for the delivery to
subscribers of any Service, on material tenns and conditions which are more favorable or less
burdensome than those applied to Grantee.
B. In the event another Person provides Services on tenns and conditions that,
with respect to any of the specific matters identified above, are more favorable or less
burdensome than the tenns and conditions applicable to Grantee under this Authorization, the
Grantor shall adjust the tenns and conditions in any other Authorization or in this Authorization
so that the tenns and conditions under which such other Person operates are not more favorable
or less burdensome than those that are applicable to Grantee.
11.04 No Waiver.
A. The failure of either party on one or more occasions to exercise a right or
to require compliance or perfonnance under this Authorization, or any other applicable law, shall
not be deemed to constitute a waiver of such right or a waiver of compliance or perfonnance by
such party, unless such right or such compliance or perfonnance has been specifically waived in
writing.
B. Both the Grantor and the Grantee expressly reserve all rights they may
have under law to the maximum extent possible; neither the Grantor nor the Grantee shall be
deemed to have waived any rights they may now have or may acquire in the future by entering
into this Authorization.
11.05 Entire Agreement.
This Authorization and all attachments hereto represent the
entire understanding and agreement between the parties hereto with respect to the subject matter
hereof, supersedes all prior oral negotiations between the parties, and can be amended,
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supplemented, modified or changed only by an agreement in writing which makes specific
reference to this Authorization or the appropriate attachment and which is signed by the party
against whom enforcement of any such amendment, supplement, modification or change is
sought.
11.06 Laws Governing. This Authorization shall be governed by and construed III
accordance with the laws of the State of Florida, and applicable federal law.
11.07 Effective Date. This Authorization shall be effective when adopted for the tenn
set forth in Section 4.02.
PASSED AND ORDAINED BY THE CITY COUNCIL OF THE CITY OF CLERMONT,
LAKE COUNTY, FLORIDA THIS ~AY OF JANUARY, 2000.
~ ()J
. ~TURVILLE, JR., MAYOR
OiL r óL<S> ltAA
ATTEST:
~
~PH E. V
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