Section 66-1. Franchise agreements and right-of-way use agreements.
(a) Definitions. The following terms contained herein, unless otherwise indicated, shall be defined as follows:
Activities. Shall include the installation or maintenance of any assets, structures or facilities in the public right-of-way.
Applicant. The entity requesting the grant of a franchise or right-of-way use agreement.
Facility. Shall include, but shall not be limited to, all structures, equipment, and assets, towers and structures, pipes and wires and appurtenances thereof for transmission and distribution of electrical energy, signals and other methods of communication, for gas, steam and liquid fuels, for water, sewer, reclaimed water, and other private and publicly owned and operated systems for public service.
Franchise. A contractual agreement, under the authority of F.S. Ch. 337, between a utility and the city setting forth the terms and conditions under which the city grants the utility authority to install and maintain facilities in the public right-of-way.
Grantee. An applicant that has been granted a franchise or right-of-way use agreement.
right-of-way use agreement. A contractual agreement between a utility and the city setting forth the terms and conditions under which the city grants the utility authority to install and maintain facilities in the public right-of-way. The applicant shall not be authorized to open cut any roadways in the city unless the applicant can demonstrate to the building official that directional bore installation is not possible.
Utility. Entities owning or operating, or proposing to own or operate, facilities that comprise a system or systems for public service.
(b) Franchise or right-of-way use agreement required. It shall be unlawful to construct, install, maintain or operate any facility in, on, above or below the public right-of-way without a valid franchise or right-of-way use agreement obtained pursuant to the provisions of this section and subsequent amendments. No utility shall be granted a permit to perform any activities in, on, under, or above the public right-of-way without first obtaining and maintaining a valid franchise or right-of-way use agreement. All permits to work in, on, under or above the public right-of-way will be restricted to those practices specifically enumerated in the applicant's franchise or right-of-way use agreement.
(1) In regards to any entity exempted from municipal franchising authority by the operation of state or federal law, such entity must still comply with the building permit requirements established by city ordinances and shall be eligible for permits as required by that ordinance only if it has obtained from the city a valid "right-of-way use agreement." The procedures for gaining a "right-of-way use agreement" shall be those set out in this section, including any applicable fee.
(2) The city council may, by resolution, authorize the city manager, or his designee, to execute a letter of agreement exempting entities operating in the city on the effective date of this section from the franchise or right-of-way use agreement requirements of this section for a period not greater than one year from the effective date of this section.
(c) Filing of applications. Applications for a franchise or right-of-way use agreement will be considered pursuant to the procedures set forth in this article and amendments hereto. For good cause, the city council may elect, by resolution, to waive any requirement set forth herein unless otherwise required by applicable law.
(1) An application may be filed at any time.
(2) The city may request additional information from an applicant for a franchise or right-of-way use agreement at any time.
(3) Applications shall be delivered to the city clerk, and shall be accompanied by a $2,000.00 application fee. Notwithstanding the foregoing, if the city incurs expenses, including, but not limited to, attorney's fees exceeding this sum, the applicant shall be responsible for such fees.
(d) Content of application. Any application made pursuant to this section shall contain all the information required from time to time by the city manager.
(e) Consideration of applications.
(1) The city will consider each application for a new or renewed franchise or right-of-way use agreement where the application is found to be in substantial compliance with the requirements of this chapter. In evaluating an application, the city will consider, among other things:
a. The applicant's past service record in the city and in other communities;
b. The nature of the proposed facilities and services;
c. The proposed area of service;
d. The proposed rates; and
e. Whether the proposal would adequately serve the public needs and the overall interests of the city residents.
In addition, where the application is for a renewed franchise or right-of-way use agreement, the city shall consider whether:
a. The applicant has substantially complied with the material terms of the existing franchise or right-of-way use agreement and with applicable law;
b. The quality of the applicant's service, response to consumer complaints, and billing practices;
c. The applicant has the financial, legal and technical ability to provide the services, facilities and equipment as set forth in the application; and
d. The applicant's proposal is reasonable to meet the future community needs and interests, taking into account the cost of meeting such needs and interests.
(2) If the city determines that an applicant's proposal, including the proposed service area, would serve the public interest, it may grant a franchise or right-of-way use agreement to the applicant, subject to terms and conditions as agreed upon between the applicant and the city. No franchise or right-of-way use agreement shall be deemed granted unless and until an agreement has been fully executed by all parties. The franchise or right-of-way use agreement will constitute a contract, freely entered into, between the city and the grantee. Any such franchise or right-of-way use agreement must be approved by ordinance of the city council in accordance with applicable law.
(f) Length of agreement. The period of a franchise or right-of-way use agreement shall be as specified in the specific agreement, but shall not exceed 15 years. If a grantee seeks authority to operate in the city beyond the term of its franchise or right-of-way use agreement, it shall file an application or a new agreement not earlier than 36 nor later than 30 months prior to the expiration of its terms.
(g) Franchise fee.
(1) A grantee, in consideration of the privilege granted under a franchise for the use of public right-of-way and the privilege to construct and/or operate in the city, shall pay to the city an amount set forth in the franchise agreement, not to exceed the maximum allowed by law, for each year during the term of the franchise.
(2) A grantee shall file, no later than May 30th of each year, the grantee's financial statements for the preceding year. If the city reasonably determines, after examination of the financial statements provided, that a material underpayment of franchise fees may exist, the city may require a grantee to submit a financial statement audited by an independent public accountant. If the city's determination of underpayment is ultimately correct, the grantee shall bear the cost of such audit.
(3) The city shall have the right, upon reasonable notice, to inspect a grantee's income records, to audit any and all relevant records, and to recompute any amounts determined to be payable under a franchise and this article.
(4) In the event that any franchise payment is not received by the city on or before the applicable due date, interest shall be charged from such date at the statutory rate for judgments.
(5) In the event a franchise is revoked or otherwise terminated prior to its expiration date, a grantee shall file with the city, within 90 days of the date of revocation or termination, a verified or, if available, an audited financial statement showing the gross revenues received by the grantee since the end of the previous year and shall make adjustments at that time for the franchise fees due up to the date of revocation or termination.
(6) Nothing in this section shall limit the city's authority to tax a grantee, or to collect any fee or charge permitted by law, and no immunity from any such obligation shall attach to a grantee by virtue of this section.
Secs. 66-2--66-25. Reserved.
ARTICLE II. StreeTS*
DIVISION 1. GENERALLY