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Agenda Packet 5-22-2006hi' loolo1101111111 111 M� CITY OF ATLANTIC BEACH CITY COMMISSION MEETING MAY 22, 2006 AGENDA Call to order Invocation and pledge to the flag 1. Approve minutes of the Regular Commission meeting of May 8, 2006. 2. Courtesy of Floor to Visitors A. Proclamation for National Public Works Week 3. Unfmished Business from Previous Meetings A. City Manager's Follow-up Report (City Manager) B. Report on Hurricane Protection (City Manager) 4. Consent Agenda ALL MATTERS LISTED UNDER THE CONSENT AGENDA ARE CONSIDERED TO BE ROUTINE BY THE CITY COMMISSION AND WILL BE ENACTED BY ONE MOTION IN THE FORM LISTED BELOW. THERE WILL BE NO SEPARATE DISCUSSION OF THESE ITEMS. IF DISCUSSION IS DESIRED, THAT ITEM WILL BE REMOVED FROM THE CONSENT AGENDA AND WILL BE CONSIDERED SEPARATELY. SUPPORTING DOCUMENTATION AND STAFF RECOMMENDATIONS HAVE BEEN PREVIOUSLY SUBMITTED TO THE CITY COMMISSION ON THESE ITEMS A. Acknowledge receipt of Monthly Financial Report, Utility Sales Report and Public Safety Report for April 2006 (City Manager) B. Acknowledge receipt of Annual Water Quality Report (City Manager) 5. Committee Reports A. Cultural Arts and Recreation Advisory Committee Report (R. Pritchett) 6. Action on Resolutions None 7. Action on Ordinances ; A. Ordinance No. 90-06-193, Public Hearing and Final Reading AN ORDINANCE OF THE CITY OF ATLANTIC BEACH, FLORIDA, AMENDING CHAPTER 24 OF THE CODE OF ORDINANCES, ZONING, SUBDIVISION AND LAND DEVELOPMENT REGULATIONS, ARTICLE II, LANGUAGE AND DEFINITIONS, SEC. 24-17, DEFINITIONS, BY ADDING A NEW DEFINITION OF SHORT TERM RENTALS; AND FURTHER AMENDING ARTICLE III, ZONING REGULATIONS, DIV. 4, GENERAL PROVISIONS AND EXCEPTIONS, BY ADDING A NEW SUBSECTION (1) UNDER SEC. 24-82, GENERAL RESTRICTIONS UPON LAND, BUILDINGS AND STRUCTURES, TO PROHIBIT SHORT TERM RENTALS, AND PROVIDING AN EFFECTIVE DATE 1 B. Ordinance No. 40-06-21, Public Hearing and Final Reading AN ORDINANCE OF THE CITY OF ATLANTIC BEACH, FLORIDA, CREATING RULES FOR CABLE TELEVISION FRANCHISES, ADOPTING CUSTOMER SERVICE STANDARDS, ESTABLISHING OBJECTIVE REMEDIES AND STANDARD ENFORCEMENT PROCEDURES, REQUIRING PERFORMANCE AND INSURANCE GUARANTIES, REQUIRING OTHER PROVISIONS CONSISTANT WITH MODERN TECHNOLOGY AND INDUSTRY DEVELOPMENTS, AND FOR OTHER PURPOSES 8. Miscellaneous Business A. Approval of Franchise Renewal Agreement for Cable System with Comcast of Greater Florida/Georgia Inc. (City Manager) B. Proposed revision to Chapter 24, Land Development Regulations, Article IV, Subdivision Regulations, Section 24-189 in accordance with recommendation of the Community Development Board (City Manager) C. Bicycle Path Construction — Location and Construction Recommendations Discussion (City Manager) D. Hurricane Protection for Commission Chambers (City Manager) E. Interlocal Agreement with the City of Jacksonville for Construction of a Handicap Accessible Beach Walkover at Third Street (City Manager) 9. City Manager A. City Manager's Report 10. Reports and/or requests from City Commissioners and City Attorney Adjournment If any person decides to appeal any decision made by the City Commission with respect to any matter considered at any meeting, such person may need a record of the proceedings, and, for such purpose, may need to ensure that a verbatim record of the proceedings is made, which record shall include the testimony and evidence upon which the appeal is to be based. Any person wishing to speak to the City Commission on any matter at this meeting should submit a request to the City Clerk prior to the meeting. For your convenience, forms for this purpose are available at the entrance to the Commission Chambers. Every effort is made to indicate what action the City Commission is expected to take on each agenda item. However, the City Commission may act upon any agenda subject, regardless of how the matter is stated on the agenda. In accordance with the Americans with Disabilities Act and Section 286.26, Florida Statutes, persons with disabilities needing special accommodation to participate in this meeting should contact the City Clerk by 5:00 PM, Friday, May 19, 2006. 2 Attendance Call to Order/Pledge MINUTES REGULAR CITY COMMISSION MEETING May 8, 2006 CITY HALL, 800 SEMINOLE ROAD IN ATTENDANCE: Mayor Donald Wolfson Mayor Pro Tem J. Dezmond Waters III Commissioner Mike Borno Commissioner Jamie Fletcher Commissioner Sylvia N. Simmons City Manager Jim Hanson City Clerk Donna L. Bussey City Attorney Alan C. Jensen Mayor Wolfson called the meeting to order at 7:16 p.m. The Invocation, given by Commissioner Waters, was followed by the Pledge of Allegiance to the Flag. 1. Approval of the minutes of the Regular Commission Meeting on Approval of Minutes April 24, 2006. Mayor Wolfson corrected the statement on page two, paragraph five, by clarifying that the Governor has not yet addressed the dip in Mayport Road but has been asked to take action on it. Motion: Approve the minutes of the Regular Commission Meeting on April 24, 2006 as amended. Moved by Simmons, seconded by Borno Votes: Aye: 5 - Borno, Fletcher, Simmons, Waters, Wolfson Nay: 0 MOTION CARRIED Courtesy of the Floor 2. Courtesy of the Floor to Visitors Joan Carver, 46 Fifteenth Street, commented on the 15th Street access issue. She stated she has received no information regarding the issue and would like all the neighbors involved to be informed before the Commission acts on it. Karen Perrin, 1502 Beach Avenue, addressed the 15th Street beautification plan and referred the Commission to her email stating that she and her husband have received no communication or information regarding the committee, even though her husband is incorrectly listed as the Vice President. She asked that the issue be deferred until a committee is formed and the neighbors are informed. May 8, 2006 REGULAR COMMISSION MEETING Page 2 Michael Hoffmann, 176 Camelia Street, thanked the Mayor and Commissioners for holding the neighborhood chats. He indicated that the Jordan Park area needs attention given to roads, sidewalks, and paving and believed the Community Development Block Grant funds could have been used for those projects. He supported a citizen's suggestion for a pool in the Donner area and asked the Mayor to consider the possibility of working with the City of Jacksonville to put a pool along Mayport Road. Mr. Hoffmann addressed the new cable franchise contract. He questioned the $20,000 immediate payment from Comcast in the current contract and discussed the issue of the cable company broadcasting government meetings. He complained about the noise in his neighborhood from the six - lane Atlantic Boulevard flyover and suggested the Commission ask the Department of Transportation to install sound barriers, similar to Jacksonville Beach's request for Butler Boulevard. Mae Jones, 126 Fifteenth Street, concurred with the comments from the citizens regarding the Fifteenth Street access issue. She reiterated that the residents were not informed and had no voice in the issue. She asked to have the item deferred. Stephen Kuti, 1132 Linkside Drive, expressed concerns regarding the possibility of Walmart moving into Neptune Beach and its potential impact on the Atlantic Beach community. He suggested that language be included in the resolution in order to emphasize that a 'Big Box' retailer on Atlantic Boulevard would prevent Neptune Beach and Atlantic Beach from extending Town Center down Atlantic Boulevard to Mayport Road and would interfere with the beautification of the main entryway to the cities. Carol Mikell, 1771 Sea Oats Drive, introduced herself as the chairperson for the Save Atlantic Beach group. She asked the Commission to take a non-binding straw vote from the residents in the Core City district, asking whether they prefer the current or a more restrictive ordinance regarding Community Character. She believed the City could then review the responses and act accordingly. Mayor Wolfson responded by noting that he has discussed that idea with the City Manager and it is currently under consideration. He pointed out that the Commission and citizens involved are just now being able to have discussions and that, up to this point, the process has centered around receiving input and advice. Mayor Wolfson stressed that the discussion will begin to move forward at the workshop tomorrow night. Nancy Garcia, Government Affairs Director for Northeast Florida Association of Realtors (NEFAR), 7801 Deercreek Club Road, Jacksonville, expressed her displeasure at the misinformation presented from city officials regarding NEFAR. She clarified the purpose and membership of the association and stressed that they are not under the jurisdiction of the State's Department of Business and Professional Regulations. She addressed incorrect and misleading information stated by May 8, 2006 REGULAR COMMISSION MEETING Page 3 the City administration and officials regarding NEFAR, including a quote by the City Manager in a Beaches Shorelines May 6th newspaper article. She emphasized that the Save Atlantic Beach group is not a realtor organization. She asked that the City verify any future information regarding NEFAR by contacting them directly and refrain from using inflammatory language or misleading information regarding their association. Steve Rosenbloom, 1417 Beach Avenue, expressed concern that the proposed standards will make most lots in the Core City nonconforming. He suggested display boards be used at the workshop tomorrow to show how the current and proposed regulations affect different lot sizes. He believed the City Manager's statements in the newspaper were not appropriate for a professional administrator to make. City Manager Hanson responded to the comments regarding his quote in the newspaper. He indicated he was misquoted and did not intcnd to present any political opinion regarding the Save Atlantic Beach group. He clarified that his statement was making a point about two separate groups, but that the article left out "and" in between the words, Save Atlantic Beach and NEFAR. Jane Wytzka, 352 2n1 Street, thanked the Commission for moving forward with the 35 foot height charter amendment. She commended the City Manager for the staff report regarding the history of subdivision regulations in Atlantic Beach. She expressed concern that it was difficult for her to comprehend NEFAR's position after reading their website. She indicated the difficulty in attending all the City meetings she would like to attend. She discussed her displeasure at a particular house being built on Sixth Street and thanked the Commission for their efforts on the Community Character project. Bryan Barker, 1225 Selva Marina Circle, requested that the City Manager make an effort to correct the misquote in the newspaper. He disagreed with statements made by the Mayor and Commissioner Fletcher and stated that the Community Character issue concerns all of Atlantic Beach. Unfinished Business 3. Unfmished Business from Previous Meeting from Previous Meeting A. City Manager's Follow-up Report City Manager Jim Hanson referred the Commission to his written report, which is attached and made part of this official record as Attachment A. His report was a copy of an email from Wanda Forrest which provided the responses from the Metropolitan Planning Organization to the Commissioners' questions regarding the Transportation Improvement Project. He also distributed more information on the projects not included Consent Agenda May 8, 2006 REGULAR COMMISSION MEETING Page 4 in her report at the last meeting. This document is attached and made part of this official record as Attachment B. 4. Consent Agenda A. Acknowledge receipt of Public Safety Department Quarterly Report, Code Enforcement Investigation Report, Public Works and Utility Department Report and New Occupational Licenses issued in April (City Manager) B. Approve the Contract Between the City of Atlantic Beach and Habitat for Humanity of the Jacksonville Beaches, Inc. for Utility Installation at Sawgrass Chapel Place and authorize the Mayor to sign the contract (City Manager) C. Award Bid for the FY 2006 Resurfacing Project to APAC- Southeast (Bid No. 05D6-7 Rebid) and allocate the excess parking lot resurfacing funds to street resurfacing (—$9,000) (City Manager) Mayor Wolfson pulled Item 4B for discussion. Motion: Approve Consent Agenda Items A and C as presented. Moved by Borno, seconded by Simmons Votes: Aye: 5 - Borno, Fletcher, Simmons, Waters, Wolfson Nay: 0 MOTION CARRIED The Mayor questioned any recourse that the City might have if Beaches Habitat does not reimburse the City's funding. Donna Kaluzniak, Director of Public Utilities, responded that the City has a legal contract requiring Beaches Habitat to reimburse the City for any costs over $50,000. The City Manager noted that the City has control of the water and sewer lines for the project and the City Attorney added that the City could refuse to accept the utilities system if the contract was breached. The Mayor continued to express his concerns with the contract and discussed it further with the City Manager and City Attorney. Motion: Approve Consent Agenda Item B as presented. Moved by Borno, seconded by Waters Votes: Aye: 5 - Borno, Fletcher, Simmons, Waters, Wolfson Nay: 0 MOTION CARRIED May 8, 2006 REGULAR COMMISSION MEETING Page 5 Committee Reports 5. Committee Reports None. Action on Resolutions 6. Action on Resolutions A. Resolution No. 06-08 A RESOLUTION OF THE CITY OF ATLANTIC BEACH, FLORIDA, EXPRESSING CONCERN OVER THE TRAFFIC IMPACT OF POSSIBLE LARGE RETAIL DEVELOPMENTS ON ATLANTIC BOULEVARD AND REQUESTING CAREFUL STUDY BY THE FLORIDA DEPARTMENT OF TRANSPORTATION (Commissioner Fletcher) Commissioners Simmons and Waters both voiced support for the resolution because of the impact it could have on the City's traffic. Mayor Wolfson believed the wording, "... any large 'big box' retailer at the Beaches..." to be very broad language. He suggested incorporating language so that the resolution focuses specifically on the citizens and traffic issues of Atlantic Beach. Motion: To amend the resolution to include the following language after "... concern over any large 'big box' retailer at the Beaches" "that may adversely impact the traffic patterns of the citizens of Atlantic Beach". Moved by Wolfson, seconded by Borno Votes (on amendment): Aye: 5 - Borno, Fletcher, Simmons, Waters, Wolfson Nay: 0 MOTION CARRIED City Attorney Jensen cautioned the Commission from being pulled on another city's coattails into a potential lawsuit. Commissioner Fletcher asked the City Attorney for further clarification. City Attorney Jensen advised that any resolution which someone could characterize as being opposed to the Walmart in Neptune Beach could create legal ramifications for the City. Mayor Wolfson asked the City Attorney if the resolution could be written in a different manner that would make him more comfortable with the Commission adopting it. City Attorney Jensen responded no. Motion: To approve Resolution 06-08 as amended. Moved by Fletcher, seconded by Simmons May 8, 2006 REGULAR COMMISSION MEETING Page 6 Votes: Aye: 2 - Fletcher, Waters Nay: 3 —Borno, Simmons, Wolfson MOTION FAILED Mayor Wolfson noted that his vote against the resolution was based on the caution given by the City Attorney. Action on Ordinances 7. Action on Ordinances A. Ordinance No. 20-06-77, Final Reading and Public Hearing AN ORDINANCE AMENDING THE OPERATING BUDGET FOR THE CITY OF ATLANTIC BEACH, FLORIDA FOR FISCAL YEAR BEGINNING OCTOBER 1, 2005 AND ENDING SEPTEMBER 30, 2006 Mayor Wolfson read the ordinance by title only and opened the floor to a public hearing. There being no comments, the Mayor closed the public hearing and brought the item before the Commission for discussion. Commissioner Borno explained that the budget amendment would allow for expending $1,000 from the General Fund for the commissioning of the U.S.S. Farragut and $10,000 for the Friends of Atlantic Beach Elementary school. Motion: To approve Ordinance No. 20-06-77 on fmal reading. Moved by Simmons, seconded by Borno Votes: Aye: 5 - Borno, Fletcher, Simmons, Waters, Wolfson Nay: 0 MOTION CARRIED B. Ordinance No. 90-06-193, Introduction and First Reading AN ORDINANCE OF THE CITY OF ATLANTIC BEACH, FLORIDA, AMENDING CHAPTER 24 OF THE CODE OF ORDINANCES, ZONING, SUBDIVISION AND LAND DEVELOPMENT REGULATIONS, ARTICLE II, LANGUAGE AND DEFINITIONS, SEC. 24-17, DEFINITIONS, BY ADDING A NEW DEFINITION OF SHORT TERM RENTALS; AND FURTHER AMENDING ARTICLE III, ZONING REGULATIONS, DIV. 4, GENERAL PROVISIONS AND EXCEPTIONS, BY ADDING A NEW SUBSECTION (1) UNDER SEC. 24-82, GENERAL RESTRICTIONS UPON LAND, BUILDINGS AND STRUCTURES, TO PROHIBIT SHORT TERM RENTALS, AND PROVIDING AN EFFECTIVE DATE The Mayor read the ordinance by title only. May 8, 2006 REGULAR COMMISSION MEETING Page 7 Commissioner Borno expressed his full support of the ordinance and mentioned that short term rentals have been an ongoing problem in the City, particularly during the summer. City Manager Hanson clarified that people have begun advertising short term rentals on the internet and this proposed language would make it illegal to offer or advertise short term rentals in Atlantic Beach. Motion: To approve Ordinance No. 90-06-193 on first reading. Moved by Simmons, seconded by Borno Votes: Aye: 5 - Borno, Fletcher, Simmons, Waters, Wolfson Nay: 0 MOTION CARRIED C. Ordinance No. 40-06-21, Introduction and First Reading AN ORDINANCE OF THE CITY OF ATLANTIC BEACH, FLORIDA, CREATING RULES FOR CABLE TELEVISION FRANCHISES, ADOPTING CUSTOMER SERVICE STANDARDS, ESTABLISHING OBJECTIVE REMEDIES AND STANDARD ENFORCEMENT PROCEDURES, REQUIRING PERFORMANCE AND INSURANCE GUARANTIES, REQUIRING OTHER PROVISIONS CONSISTANT WITH MODERN TECHNOLOGY AND INDUSTRY DEVELOPMENTS, AND FOR OTHER PURPOSES The Mayor read the ordinance by title only. City Manager Hanson explained the rationale behind the $20,000 payment included in this contract. He noted that once the ordinance is approved, the franchise will then be placed on the agenda for action. At the request of the Mayor, the City Manager explained how the cap for liquidated damages was determined. Motion: To approve Ordinance No. 40-06-21 on first reading. Moved by Borno, seconded by Simmons Votes: Aye: 5 - Borno, Fletcher, Simmons, Waters, Wolfson Nay: 0 MOTION CARRIED Miscellaneous Business 8. Miscellaneous Business May 8, 2006 REGULAR COMMISSION MEETING Page 8 A. Discussion of 35 -foot height limitation language to be considered within the ordinance authorizing a voter referendum amendment to the City Charter (City Manager) The City Manager asked Sonya Doerr, Director of Planning and Zoning, to present the information in her staff report. Ms. Doerr explained there is a timeline that needs to be met in order to put this issue before the voters. She reviewed the recommendation of the Community Development Board and the language added by the City Attorney in order to address any structures that might be above the current height limit based upon changes made to the code over the years. Commissioner Waters objected to the language limiting the height of any expansion of the Sea Turtle Inn. He discussed the importance of the Sea Turtle to the City and strongly suggested leaving the Sea Turtle Inn as an exception to the height limit and removing any language placing further limitations on its expansion. Commissioner Borno pointed out there was no need to change the language addressing the Sea Turtle Inn because the current owner has reviewed and has no objections to the proposed ordinance. The City Manager and the Director of Planning and Zoning both confirmed this. Extensive discussion ensued regarding to what extent, if any, to limit the height of the Sea Turtle Inn and if certain architectural design elements should be approved to go above the proposed height limit. City Manager Hanson summarized that the Commission would like language drafted so that certain architectural elements in commercial areas that have been approved over the height limit would still be allowed and clarifying the input received relating to the Sea Turtle Inn. Mayor Wolfson asked the Commission to think about whether or not to keep the 25 foot height limit for the commercial zoned areas in Town Center. B. Request for a Waiver for 824 Sherry Drive from City Code Section 19-7 Prohibition on Parking Aprons Along Through Streets (City Manager) Rick Carper, Director of Public Works, presented the background of this request and explained the staff recommendation to deny the request for a waiver. He pointed out that the driveway modifications were installed without a permit and staff recommends requiring the owner to remove the 15 -foot section of pavers placed on the north end of the right of way. Commissioner Borno asked about the pavers and their relation to the impervious surface of the property. Commissioner Simmons believed that both sections of pavers on the right of way should be removed and Commissioner Fletcher concurred. May 8, 2006 REGULAR COMMISSION MEETING Page 9 Mr. Carper noted that the applicant was in the audience and asked if he wished to address the Commission. Ian McAfee, 824 Sherry Drive, stated the ordinance was not in effect when he first started the project. He discussed the variances he received and indicated that the lot now has more pervious surface than before he began construction. He claimed there was not much parking space on his lot and that grass would not grow in the paved section, even without the pavers. Mr. McAfee pointed out that all of the property was concrete before he began. Motion: To deny the request for a waiver for 824 Sherry Drive from City Code Section 19-7 prohibiting parking aprons along through streets. Moved by Simmons, seconded by Fletcher Motion: To amend the motion to deny the request for a waiver at 824 Sherry Drive from City Code Section 19-7 prohibiting parking aprons along through streets and to require the property owner to remove both sections of the pavers he installed —15 foot and 10 foot sections. Moved by Simmons, seconded by Fletcher Commissioner Waters believed the amendment to be harsh and supported the original staff recommendation. Commissioner Simmons called the question. Votes (on amendment): Aye: 4 - Borno, Fletcher, Simmons, Wolfson Nay: 1 - Waters MOTION CARRIED Votes (on Amended Motion): Aye: 4 - Borno, Fletcher, Simmons, Wolfson Nay: 1 - Waters MOTION CARRIED Commissioner Waters expressed his opinion that government entities need to do better at informing people of the law. C. Request from the 15th Street Beach Access Committee for matching funds of $4,000 for improvements at 15th Street Beach Access (City Manager) Timmy Johnson, Director of Parks and Recreation, provided background on the request from Greg Saig to beautify 15th Street access. He noted that Mr. Saig could not attend the meeting that evening but would like to defer May 8, 2006 REGULAR COMMISSION MEETING Page 10 the item to a later date in order to allow time for the neighbors to communicate and bring it back to the City. Motion: To defer action on the request from the 15th Street Beach Access Committee until it is brought back to the Commission. Moved by Simmons, seconded by Borno Votes: Aye: 5 - Borno, Fletcher, Simmons, Waters, Wolfson Nay: 0 MOTION CARRIED D. History of regulations related to the division of Land and Subdivision platting or re -platting procedures (City Manager) City Manager Hanson commended Sonya Doerr, Director of Planning and Zoning, on the effort and time she devoted to researching the details of the issue and clarifying the complicated subject. He asked Ms. Doerr to give an overview of her findings. Ms. Doerr reviewed the information in her staff report and pointed out that the highlighted area in Map B is a large portion of the City. Mayor Wolfson also commended Ms. Doerr on a job well done and commented on the citizen frustrations and misunderstandings regarding this topic. He thanked Ms. Doerr for sharing the history of the changes and their evolving process. E. Proposed revision to Chapter 24, Land Development Regulations, Article IV, Subdivision Regulations, Section 24-189 in accordance with recommendation of the Community Development Board (City Manager) Sonya Doerr, Director of Community Development, explained the recommendation from the Community Development Board, as presented in the staff report. She stated that the CDB recommended that two -lot divisions go to a public hearing before the Community Development Board for consideration and action, and that a process for appeal to the City Commission would be provided if a property owner's request was denied. She noted that this ordinance revision has been discussed for a number of months. In response to Commissioner Borno's question, Ms. Doerr explained that the lot sizes would be determined by whatever zoning district requirements are in place for that particular lot. Commissioner Waters asked if the process for two -lot subdivision would still remain ministerial in nature. May 8, 2006 REGULAR COMMISSION MEETING Page 11 City Attorney Jensen clarified that this would require the requests to go before the Community Development Board as a quasi-judicial hearing, allowing the City, the owner and citizens to speak and present their positions. City Manager Hanson explained that the range of authority is still ministerial and somewhat limited. He noted that the requests would be approved if they met the necessary requirements. The City Attorney confirmed that it would still be an administrative type of decision but would now allow for a public hearing on each request. Ms. Doerr emphasized that these proposed regulations would apply only to subdivisions and not to replats. The Commission continued to discuss the issue of checks and balances and public input as they relate to administrative decisions. Motion: To defer action on the item for two weeks. Moved by Waters, seconded by Fletcher Votes: Aye: 5 - Borno, Fletcher, Simmons, Waters, Wolfson Nay: 0 MOTION CARRIED F. Funding Approval for Computer Network Data Transmission (City Manager) Chief Thompson reviewed the information in his staff report and explained the reliability problems with the wireless network as it currently exists. He described the proposed solution to run fiber optic cables from City Hall to the Public Works and Water Plant #1 locations. He stressed the benefits and importance of moving forward quickly with the project. Motion: To approve $29,000 in funding from the General Fund Reserves to be utilized for the fiber optic cable as recommended and to authorize the IT Division to advertise bids for running the fiber cable as discussed. Moved by Borno, seconded by Waters Votes: Aye: 5 - Borno, Fletcher, Simmons, Waters, Wolfson Nay: 0 MOTION CARRIED City Manager 9. City Manager Reports/Requests City Commissioners City Attorney May 8, 2006 REGULAR COMMISSION MEETING Page 12 A. City Manager's Report The City Manager had no written report, however, he announced an emergency issue on which the Commission needed to take action this evening. He reported that, at the last meeting, the Commission approved committing 25% of the purchase price of the Buckman Trust property and that the application deadline is tomorrow. He introduced Alexa Graf, of England Thames and Miller engineering firm, as the individual writing the grant. He indicated that, in order to earn enough points for the application to be funded, Ms. Graf has stated that the City needs to make additional commitments. She has recommended that they add some recreational facilities on Dutton Island, and the construction of nature trails and canoe tie-ups on Crying Child Island. He indicated that a map of the improvements was distributed to the Commissioners that evening. This document is attached and made part of this official record as Attachment C. He described the additional facilities for Dutton Island as being a small playground and a horseshoe pit, the least invasive amenity proposed. He noted that the cost of these amenities will not come from the grant, which is just for the property acquisition. He believed that the biggest cost would come from operating this new park as it is situated on an island. He did not have an estimated cost of the operations yet, but since the grant application deadline is tomorrow, he asked the Commission to consider this as an emergency issue and approve the additional commitments. The Mayor asked questions relating to the extent of the potential development and accessibility of the park. Ms. Graf answered his questions and provided the information pertaining to the grant application. Motion: To declare an emergency situation and waive the rules in order to approve the commitment for installation of additional amenities within the Buckman Trust property as described and for the operation and maintenance of those amenities on the island as a small park for kayakers/canoeists to use. Moved by Fletcher, seconded by Borno Votes: Aye: 5 - Borno, Fletcher, Simmons, Waters, Wolfson Nay: 0 MOTION CARRIED 10. Reports and/or requests from City Commissioners and City Attorney A. Recommendation for appointments to the Cultural Arts and Recreational Advisory Committee, the Community Development Board and the Code Enforcement Board (Mayor) May 8, 2006 REGULAR COMMISSION MEETING Page 13 Commissioner Waters was sad to announce that Rusty Pritchett will be resigning as chair of the Cultural Arts and Recreation Advisory Committee. City Manager Hanson informed the Commission that the first recommended appointment to the Cultural Arts and Recreation Advisory Committee would fulfill the remaining two months of an expiring term and also be reappointed for the following term. Motion: To appoint Kelly Mannel to fill the current vacancy for its remaining two months and to be reappointed for a full term beginning in July. Moved by Wolfson, seconded by Borno Votes: Aye: 5 - Borno, Fletcher, Simmons, Waters, Wolfson Nay: 0 MOTION CARRIED He noted that they will make the next recommendation in July to appoint Jolyn Johnson to fill that future vacancy on the Cultural Arts & Recreation Advisory Committee. Motion: To appoint Richard Ouellette as a regular member of the Code Enforcement Board. Moved by Wolfson, seconded by Borno Votes: Aye: 5 - Borno, Fletcher, Simmons, Waters, Wolfson Nay: 0 MOTION CARRIED Commissioner Borno ❖ Reminded everyone that the Northeast Florida League of Cities will hold their next meeting at the Sea Turtle Inn on May 18`h. Commissioner Waters ❖ Announced the speakers at the NEFLC meeting will be State Senator Jim King and President of the Florida League of Cities, Julio Robaina. He urged everyone to attend. ❖ Mentioned an upcoming meeting in Orange Park on May 15th allowing public officials to share ideas on how to make the State better for the cities. He recommended that someone from the City attend and offered to forward the information to anyone interested. ❖ Reiterated the need for a pedestrian crossing timer for the intersection of Mayport Road and Plaza and asked staff pursue that. May 8, 2006 REGULAR COMMISSION MEETING Page 14 •:• Supported the idea of sound walls and suggested pressuring the FDOT to install them along Atlantic Boulevard. ❖ Reported a request from the Town Center Agency to present the overlay to the Commission. The Mayor responded they are welcome to make a presentation however he reminded them that the City chose not to prioritize that item as part of its Strategic Plan. Mayor Wolfson ❖ Thanked the Commissioners and the City Clerk for attending and participating in the neighborhood chats. Indicated that he will submit a report from the chats to the City Manager and have it distributed to the department heads regarding significant concerns that need to be addressed in the various parts of town. ❖ Gave a brief follow up report on a meeting he had last Friday at the Beaches with City Manager Hanson, Jacksonville Councilman Alvarez, Adam Hollingsworth, and an auditor from the City of Jacksonville. He described it as a frank and candid conversation in which he told Councilman Alvarez that he would not negotiate with his financial requests while the Alvarez resolution regarding the interlocal agreement is still on the table for consideration. ❖ Asked for a report of the City's status regarding emergency preparedness for hurricane season. Adjournment There being no further discussion, the Mayor declared the meeting adjourned at 10:33 p.m. Donald M. Wolfson, Mayor/Presiding Officer ATTEST: Donna L. Bussey City Clerk rncCamatinn AGENDA ITEM 2A MAY 22, 2006 WHEREAS, public works services provided in our community are an integral part of our citizens' everyday lives; and WHEREAS, the support of an understanding and informed citizenry is vital to the efficient operation of public works systems and programs such as water, sewers, streets and highways, public buildings, solid waste collection, storm drainage, and beach access; and WHEREAS, the health, safety, and comfort of this community greatly depends on these facilities and services; and WHEREAS, the quality and effectiveness of these facilities, as well as their planning, design, and construction, is vitally dependent upon the efforts and skill of public works officials; and WHEREAS, the efficiency of the qualified and dedicated personnel who staff public works departments is materially influenced by the people's attitude and understanding of the importance of the work they perform. WHEREAS, this year's theme "The Heart of Every Community", is a tribute to the positive improvements public works employees have made to our communities. NOW, THEREFORE, I, Donald M. Wolfson, Mayor of the City of Atlantic Beach, Florida, do hereby proclaim the week of May 21 through May 27, 2006 as NATIONAL PUBLIC WORKS WEEK in the City of Atlantic Beach, and call upon all citizens and civic organizations to acquaint themselves with the issues involved in providing our public works and to recognize the contributions which public works officials make every day to our health, safety, comfort, and quality of life. IN WITNESS WHEREOF, I have hereto set my hand and caused the official seal of the City of Atlantic Beach to be affixed this 8th day of May, 2006. DONALD M. WOLFSON MAYOR AGENDA ITEM 3A MAY 22, 2006 May 15, 2006 MEMORANDUM TO: The Honorable Mayor and Members of the City Commission SUBJECT: Follow-up Ieport Staff Report with Proposed Language for Height Referendum; The Mayor and Commission asked the city staff at the last meeting to bring back proposed language for an ordinance calling for a referendum to establish a height limit in the city charter. One of the issues that was to be resolved was how to deal with the Sea Turtle Hotel. Since that time, discussions have occurred with the management of the Sea Turtle. They asked that the staff delay this report for a couple of weeks to give them time to have additional input. Their input would be helpful in preparing a draft and consequently, the staff report is not ready for your review at this time. We do anticipate having a staff report for your review at the next regular meeting 011 June 12, 2006. Pedestrian Crossing for Plaza/Mayport Intersection; The question was raised at the last commission meeting about what type of pedestrian crossing would be installed in the future at the intersection of Plaza and Mayport Road. The City of Atlantic Beach, the FDOT and the City of Jacksonville have an agreement for installation of medians along Mayport Road to improve both traffic and pedestrian safety and the FDOT has a companion project to upgrade the signals at the intersections along Mayport Road. As a result of those projects, a new pedestrian crossing will be installed. Specifically, pedestrians will be allowed to cross the street without having any signalized left hand turn traffic at the same time. Additionally, we have been informed that the new crossing will have a "countdown type head". Essentially, this feature will include a countdown "clock" showing how many seconds are left for the pedestrian to get across the street. Copies of a picture of a similar pedestrian light are attached along with the instruction sign that will be located at the crosswalk buttons. AGENDA ITEM 3A MAY 22, 2006 START CROSSING Watch For Vehicles ' ' ; DON'T START : Finish Crossing 'FLASHING' If Started TIME REMAINING To Finish Crossing 08 TIMER STEADY r DON'T CROSS TO CROSS PUSH BUTTON R10 -3e .A.GENDA ITEM 3A. MAY 222(Oh ,i1011 111111111111 C1,11Q ,1,11.11y111111111111........1 looloolooloolooloo110111111111:111:1111(1'111 111,1„011,1 111 000o1 [11111111 001111111111looloo)))))))))))))))oomoulooloVIA, doconoon000luv,11111,1,1,1,1,1111111,1:1,11ffi 'mY0001',1,1,1,10111 11111111111 .....„1'„1111111111j11111111vv 1111111,111111111,1111111111I) blV6 City of Atlantic Beach FINANCIAL REPORT April, 2006 AGENDA ITEM 4A MAY 22, 2006 Cash Balances Fund(s) General Tree Replacement Convention Development Tax Local Option Gas Tax Better Jax 1/2 Cent Sales Tax Police Training, Forfeit, etc. Grants Debt Service Utility Sanitation Storm Water Pension - Police Pension - General Total Total Restricted Cash Total Unrestricted. Cash Prior 03/31/06 $6,108,922 30,978 170,151 438,077 925,396 1,619 (36,202) 50,875 3,720,054 543,846 2,827,017 4,813 41,838 $14,827,384 Current 04/30/06 $6,063,148 30,978 151,437 455,861 904,493 (904) (35,824) 56,908 3,561,231 537,021 2,780,346 (715) 58,100 Dollar Change ($45,774) 0 (18,714) 17,784 (20,903) (2,523) 378 6,033 (158,823) (6,825) (46,671) (5,528) 16,262 $14,562,080 ($265,304) $6,557,002 $8,005,078 Cash and Investments Account Bank of America - Depository SBA Cash on Hand Subtotal Police Pension Investments General Pension Investments Subtotal Prior 3/31/06 $159,337 14,665,497 2,550 14,827,384 4,941,110 7,280, 047 12,221,157 Current 4/30/06 $202,906 14,356,624 2,550 14,562,080 5,032,742 7,435,389 12,468,131 Dollar Change Rate of Return % $43,569 3.84 (308,873) 4.85 0 (265,304) 91,632 155,342 246,974 Total $27,048,541 $27,030,211 ($18,330) (1) FYTD rate of return through 03/31/06 5.60 (1) 5.90 (1) City of Atlantic Beach FINANCIAL REPORT April, 2006 Revenues AGENDA ITEM 4A MAY 22, 2006 Fund / (Footnote) Annual Estimate YTD - 58% of Estimate YTD Actual Dollar Variance Percent Variance General (1) Tree Replacement Convention Development Tax Local Option Gas Tax Better Jax 1/2 Ct Sales Tax Police Training, Forfeit, etc. Grants (2) Debt Service Utility (3) Sanitation Storm Water (4) Pension - Police Pension - General (5) Total $9,951,978 0 128,000 564,042 702,336 31,800 508,111 71,100 6,685,534 1,362,300 1,067,868 702,355 1,015,029 $22,790,453 $5,802,003 0 74,624 328,836 409,462 18,540 296,228 41,451 3,897,667 794,221 622,567 409,473 591,762 $13,286,834 $7,190,399 0 45,124 322,622 440,171 13,468 76,312 42,147 3,709,398 762,245 437,080 513,943 902,670 $14,455,579 $1,388,396 23.93% 0 100.00% (29,500) -39.53% (6,214) -1.89% 30,709 7.50% (5,072) -27.36% (219,916) -74.24% 696 1.68% (188,269) -4.83% (31,976) -4.03% (185,487) -29.79% 104,470 25.51% 310,908 52.54% $1,168,745 Analysis of Major Variances (1) The $1,388,396 positive variance in the General Fund resulted from having received 95.8% of the year's budgeted property taxes by April, 2006. Typically the majority of these taxes are received from the City of Jacksonville in December & January. (2) The $219,916 negative variance in the Grant Funds resulted from either items not having been purchased or reimbursement requests not having been filed as of April 30, 2006. (3) The $188,269 negative variance in the Utility F!ands- resulted from lower consumption than budgeted. Consumption is billed in arrears and typically increases in the spring and summer months. (4) The $185,487 negative variance in the Stormwater Fund resulted from the award of a grant in fiscal year 2006 that has not been received. (5) The $310,908 positive variance in the General Employee Pension Fund resulted from changes in the market values of the investments. City of Atlantic Beach FINANCIAL REPORT April, 2006 Expenses AGENDA ITEM 4A MAY 22, 2006 Annual YTD - 58% YTD Dollar Percent Department / (Footnote) Estimate of Estimate Actual Variance Variance Governing Body $45,938 $26,782 $27,573 ($791) -2.95% City Administration 2,119,933 1,235,921 1,132,178 103,743 8.39% General Government (1) 2,240,185 1,306,028 817,748 488,280 37.39% Planning and Building (2) 684,579 399,109 294,872 104,237 26.12% Public Safety (3) 4,736,835 2,761,576 2,099,146 662,430 23.99% Parks and Recreation 1,022,247 595,971 531,839 64,132 10.76% Public Works (4) 6,214,842 3,623,253 2,642,135 981,118 27.08% Public Utilities 7,172,599 4,181,625 4,083,851 97,774 2.34% Pension - Police 400,936 233,746 232,477 1,269 0.54% Pension - General 405,798 236,580 237,136 (556) -0.24% Total $25,043,892 $14,600,591 $12,098,955 $2,501,636 Resource Allocation Annual YTD - 58% YTD Dollar Percent Estimate of Estimate Actual Variance Variance Personal Services $7,899,947 $4,605,670 $4,225,207 $380,463 8.26% Operating Expenses (2) & (3) 9,457,695 5,513,837 4,390,396 1,123,441 20.37% Capital Outlay (1) & (3) 5,218,937 3,042,640 1,367,746 1,674,894 55.05% Debt Service (4) 1,678,236 978,412 1,655,310 (676,898) -69.18% Transfers 789,077 460,032 460,296 (264) -0.06% Total $25,043,892 $14,600,591 $12,098,955 $2,501,636 Analysis of Major Variances (1) The positive variance in the General Government departments resulted from not having begun the various budgeted projects — see the Project Activity Schedule. (2) The positive variance in the Public Safety department is due to the payment for the City of Jacksonville fire contract being paid quarterly, the lifeguard expenses being seasonal and no expenditures in some of the grants. (3) The majority of the positive variance in the Public Works department resulted from not having begun the various budgeted projects — see the Project Activity Schedule. Also, the waste management contract and First Vehicle are not billed and paid until the month after the services are provided. (4) The negative variance in the Debt Service departments resulted from the payment of principal and interest on the Utility Revenue Bonds in the months of October & April. City of Atlantic Beach FINANCIAL REPORT April, 2006 Project Activity - Current Year Activity Only AGENDA ITEM 4A MAY 22, 2006 Project Name Project Number YTD YTD YTD Budget Actual Balance Status Parks and Recreation: Beautification PR0601 45,000 0 45,000 Subtotal 45,000 0 45,000 Public Safety Police Building Renovations PS0504 475,000 2,570 472,430 D Homeland Security Items PS0601 138,000 0 138,000 Subtotal 613,000 2,570 610,430 Public Works: Plaza Entrance/Post Office PW0305 54,686 54,686 0 C Hopkins Creek Basin Pond PW0309 1,300,000 0 1,300,000 E Mayport Road Medians PW0401 346,858 55,858 291,000 E Welcome Sign and Landscaping PW0405 78,000 52 77,948 I Ocean/13th - Coast Drive/12th PW0409 141,816 141,797 19 I Five Points Intersection Improvement PW0502 346,599 310,154 36,445 I Sidewalks - New PW0503 26,175 26,175 0 C Plaza Drive Phase 2 Pedestrian Path PW0504 37,500 37,109 391 I Sidewalks - Replacements PW0505 5,864 5,864 0 C Seminole Ditch Headwall PW0507 12,974 12,974 0 C Pathway - Plaza (West of Mayport Road) PW0508 27,144 27,144 0 C Concrete Floor for Shed PW0601 8,800 8,800 0 C Medians Rehab - Atlantic Boulevard PW0602 3,500 0 3,500 Roll Off Concrete Pads PW0603 10,000 0 10,000 Sidewalks & Curbs PW0604 50,000 3,592 46,408 Paving of City Hall Parking Lot PW0605 84,000 0 84,000 Pathways PW0606 149,000 0 149,000 Sidewalks - Sailfish,Royal Palm & Frances PW0607 90,800 446 90,354 I Selva Tierra Ditch Improvements . PW0608 25,954 25,954 0 I Pathway - Seminole Road Phase 1 PW0609 63,000 62,973 27 C Pathway - Seminole Road Phase 2 PW0610 47,652 44,700 2,952 C Pathway - Seminole Road Phase 2 PWO611 17,000 0 17,000 I Traffic Isle - Mandalay Park 2,927,322 818,278 2,109,044 Public Utilities: Security Upgrade/Water Plants PU0305 2,485 2,485 0 C Headwork Improvements at WWTP2 PU0310 52,027 52,027 0 C Water Line at 10th Street & Beach Avenue PU0503 83,446 83,446 0 C Fence Replacement at Water Plant 1 PU0601 70,000 0 70,000 Water Main at Sailfish Drive & Plaza PU0602 65,703 484 65,219 I Sewer Crossing Ditch at Palm Landing PU0603 30,000 0 30,000 Genset at Lift Station B PU0604 44,650 0 44,650 I Clarifier Rehabilitation PU0605 100,000 0 100,000 Fence Replacement at WWTP 1 PU0606 15,000 0 15,000 Sludge Container Refurbishment PU0607 15,000 0 15,000 Beach Habitat Subdivision PU0608 120,595 0 120,595 Subtotal 598,906 138,442 460,464 Status Key B - Bid Awarded C - Project Completed D - Design Completed Total $4,184,228 $959,290 $3,224,938 E - Design Phase I - Project In -progress R - Re -budget Next Fiscal Year AGENDA ITEM 4A MAY 22, 2006 City of Atlantic Beach, FI. Utility Sales Report .�..�,.. Water Sales T .. ._, Accounts a "�' m- L_-....e''2v:.,.. April Gallons (000) 2006 *+- April 2005 Actual Revenue Revenue Per 1,000 gl Accounts _. .�3^.. Gallons (000) Actual Revenue Revenue Per 1,000 gl Atlantic Beach Buccaneer 5,574 2,609 47,473 25,524 $113,915 $68,561 $2.40 - $2.69 5,507 2,705 40,357 26,301 $93,951 $68,293 $2.33 $2.60 Total Water Sales Water Plant Production 8,183 72,997 $182,476 $2.50 8,212 66,658 $162,244 $2.43 Gallons (000) Gallons (000) Atlantic Beach Buccaneer Total Production Total Water Billed Water Loss for month: Percentage Loss Total 12 mo. Avg. Loss 62,394 25,495 59,916 20,754 87,889 80,670 72,997 66,658 14,892 14,012 16.94% 17.37% 10.18% 10.11% Sewer Sales Accounts Gallons (000) Actual Revenue Revenue Per 1,000 gl Accounts Gallons (000) Actual Revenue Revenue Per 1,000 gl Atlantic Beach Buccaneer 5,040 2,491 37,493 24,167 $167,538 $131,797 4.47 5.45 4,961 2,591 32,560 24,452 $141,937 $127,580 4.36 5.22 Total Sewer Sales Sewer Treatment 7,531 61,660 $299,335 $4.85 7,552 57,012 $269,517 $4.73 71.63 81.10 Millions of Gallons Rev. per 1,000 Gallons $4.18 $3.32 Code Enforcement (See Attached) C) 2co N 0 104uo0 leW!UV n at. N 3 m 3 m 0 0 ID N 3 d 0. 0 m 3 C) m 72 - W o) W N N W tr N O W co W A CO 0) N N w O V O { D N O O A v 0) 4) 03 W -4 W N W A 0 N O O N v 0) W A O v CO N (0 N W A NI ND { 1 D 0 00) 'D w to co CVO v to 1 (, 0 0 ID -i 3 c N a A 0) CO W w m 0) N 4a m a) ti c) N N W V 03 O co N V to coW CO W t0 0 0 W co W N J anosab pue aJnd apinuos pep { N O O W v 1 D N O O A v w CO N w W 0) W { D N O O N '0 0 T :. D ID C) N N 0 CA 2 V 00)) N CO N O O N v W 03 0N) W J N (n V 0) A m 0 m O N O O W v CO(13 CD 00)) 03 V N W a) t0 CO N 0 N N 0 0 A '0 W 0) N.3 0) W cn W v N to AGENDA ITEM 4A MAY 22, 2006 saw!Jo papodab N D 0 -1 d W In D CO m 0. 0) 0 Q m 0 0 CDco N co CO N N N O O W V A t0 O O O V J N N N O O 0) W N N 03 W V N O W N t0 tlt to W N O { 1 N O O W v 1 D N O O A a { { 1 1 p A�rn D N O O N D '0 Ns°D A V 0 A co co w W 0 v -4 W A N v N O W co O O O CO CO A O to W O N O O N v awl' sou AouabJaw3 aoljod N 0 O O W a) D v a c m '0 N N W CO A W O O { { { 1 CO -{ p 0 O "W CD W W ON tOO' to w O salnuiw E£E'Z N O 00) 'claps ofignd 40 uawpedaa podaa Aitouoyj U7 W W U7 CO O) 0 CO CO W W W A W CO 0 n r r z cn A A 0 W U7 W O) 0 O U7 A A N W O) W CO 0 0 0 0 0) CAO A 0 m_ ov 9 m z cnT m 0 Cr A co O O U7 W W W 0 ✓ • D r ZO) 0 W 0 0 O co A U7 m W 0 W W v O 0 O 0 0 63 IV W O 0 m - ' v O m D z en T m 0 0 A W CO N v O 0 O 0 1 cnr z 0 0 0 0 0 A O W W W 0, N v 0 O O 0 0 0 0 0 w rn n m � v m D z �m m 0 W 0 v 03 W W Cr A 0 0 0 cnr r Z 0 0 0 W 0 co O 0 W N A W 0 O 0 0 0 - z r cn -ncn m O 0 O N co co W W O) 0 O W 0 0 0 0 0 O 0 0 0 co co O 0 W N O O m U7 O O W 0 0 0 0 0 c_ 0 rn AGENDA ITEM 4A MAY 22, 2006 M 30 tot sS° SNs9OV, tvyd M ‘,40 -004 db° 0 sed ypI- °N N 0 O cn w mOzD—r13300 � W A co AC), G) z — v z m G)z—rDmvvD CODE ENFORCEMENT INVESTIGATION REPORT FOR APRIL 2006 CITY OF ATLANTIC BEACH CITY COMMISSION MEETING STAFF REPORT AGENDA ITEM: Annual Water Quality Report SUBMITTED BY: Donna Kaluzniak, Utility Directo DATE: May 15, 2006 AGENDA ITEM 4B MAY 22, 2006 BACKGROUND: A copy of the 2005 Water Quality Report for the City of Atlantic Beach is provided for the City Commission's review. The Florida Department of Environmental Protection requires annual water quality reports be mailed to all customers by the first of July every year. The City is required to test for over 80 drinking water contaminants, but only those detected during analysis are included in the report. As shown, detected values were within the levels allowed and we had no violations of water quality limits. BUDGET: A total of $4,000 is budgeted in the Water Fund for printing and mailing the reports, under account numbers 400-5502-533-4200 and 400-5502-533-4700. RECOMMENDATION: No action necessary. The report is provided for information only. ATTACHMENTS: 1. 2005 Atlantic Beach Water Quality Report REVIEWED BY CITY MANAGER: 1 z I v r of 9�g 61 II 5 n ��C 6 o-^ E0 s rs�o rD nyo Bye -n z 0 r Picocuries per liter (pCi/I) — Measure of the radioactivity in water. F'd £ y o o G' • X 09 o�ie b kg c,9. ,i'. -.d a„z wo F o A v o ❑ � o � o a e ^'O D I o O g �'o �C F^ 0 n 5 o' o 'o' o ° i n , 0 0, P. aC O w P. 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O.*C�'t'.4:�a. h�PvP v 0P ey "O 0 p .0 00P N 0 C adp� prt • 0.h CI) .+ rP v 0 0 0 n 0 4 I._ 0weh O p G ` CD n OF° „„0O ,+o0 w�o°cD a_ • rt UQ 3 `C o CDp n W 0 „n n h - 0< a o r. p o yo C0 ti 0 <ArtA tE tas oci ' o 0 gee0 "d P fa, n (D Ga CD v' g 0 AI Al a nCD o CD O .o c0 CD ,- 0 0 0 < n �a n • a ~ rt co b a • ,s- � b " G,_'•.o w° <O CD Cr' w' '°o n CD - rt •CrtP)' Qi - O 1 -i CD 1 O D. 1 Dw-d 0 700moO on, vs -1 CD O+ co 1 C ' CD O apo o o H ' << = a 0 CITY OF ATLANTIC BEACH AGENDA ITEM 7A MAY 22, 2006 ORDINANCE NO 90-06-193 AN ORDINANCE OF THE CITY OF ATLANTIC BEACH, FLORIDA, AMENDING CHAPTER 24 OF THE CODE OF ORDINANCES, ZONING, SUBDIVISION AND LAND DEVELOPMENT REGULATIONS, ARTICLE II, LANGUAGE AND DEFINITIONS, SEC. 24-17, DEFINITIONS, BY ADDING A NEW DEFINITION OF SHORT TERM RENTALS; AND FURTHER AMENDING ARTICLE III, ZONING REGULATIONS, DIV. 4, GENERAL PROVISIONS AND EXCEPTIONS, BY ADDING A NEW SUBSECTION (1) UNDER SEC. 24-82, GENERAL RESTRICTIONS UPON LAND, BUILDINGS AND STRUCTURES, TO PROHIBIT SHORT TERM RENTALS, AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City's Comprehensive Plan states in Objective A.1.3. that the City shall encourage future development and redevelopment which retains the exceptionally high quality of life and the predominantly residential character of the City of Atlantic Beach, and WHEREAS, the City's Comprehensive Plan also states in Objective A.1.3.1. that additional commercial or industrial development shall be permitted only on those lands that are zoned to permit such development, and WHEREAS, it is in the best interests of the public health, welfare and safety to restrict any commercial uses in the residential areas of the City of Atlantic Beach. NOW THEREFORE, BE IT ENACTED BY THE CITY COMMISSION ON BEHALF OF THE PEOPLE OF THE CITY OF ATLANTIC BEACH, FLORIDA: ,SECTION 1- The Code of Ordinances of the City of Atlantic Beach, Florida, is hereby amended by adding a new definition to define short term rentals in Sec. 24-17, Definitions, which shall read as follows: "Short term rentals shall mean any residential rental nr lease the term of which is less than ninety (90) clays Shnrt term rentals shall be considered to be "commercial uses" as are hotel, motel, mntnr lodge, resort rental, hed and breakfast or tourist court uses " SECTION 2- The Code of Ordinances of the City of Atlantic Beach, Florida, is hereby amended by adding a new subsection to Sec. 24-82, General restrictions upon land, buildings and structures, to be lettered subsection (1), which subsection shall read as follows: "(1) Short term rentor prohibitpft, Private hnmes, including hut not . - . 11 1 S 11 . 1 .... - 1 $ - . 111.11 1 11 .1I like, shall not he rented or leased for a term or period of less than ninety (90) days_ No one shalt offer nr advertise a private hnme fnr rent nr lease fnr a term or period of less than ninety (90) days" Ordinance No. 90-06-193 Page 1 of 2 AGENDA ITEM 7A MAY 22, 2006 SECTION 3. This Ordinance shall take effect immediately upon its final passage and adoption. 2006. PASSED by the City Commission on first reading this day of PASSED by the City Commission on second and final reading this day of , 2006. ATTEST: Donna L. Bussey, City Clerk Donald M. Wolfson, Mayor Approved as to form and correctness: ALAN C. JENSEN, ESQUIRE City Attorney Ordinance No. 90-06-193 Page 2 of 2 AGENDA ITEM: SUBMITTED BY: DATE: BACKGROUND: AGENDA ITEM 7B&8A MAY 22, 2006 CITY OF ATLANTIC BEACH CITY COMMISSION MEETING STAFF REPORT Second Reading and Adoption of Ordinance No. 40-06-21 Creating Rules for Cable Television Franchises and Approval of Franchise Renewal Agreement for Cable System with Comcast of Greater Florida/Georgia Inc. Jim Hanson, May 15, 2006 The staff report presented to the city commission several weeks ago described the need to adopt an ordinance creating rules for cable television franchises and for other purposes as well as to adopt a franchise agreement renewal with Comcast. Because the proposed ordinance establishes several of the parameters upon which the franchise renewal is based, it is appropriate for the Mayor and Commission to first adopt the ordinance before approving the franchise agreement. State law also requires local governments to consider several factors before granting franchise agreements with cable television providers. The relevant portions of State Code Section 166.046 "Definitions; Minimum standards for cable television franchises imposed upon counties and municipalities." includes the following: (2) No municipality or county shall grant a franchise for cable service to a cable system within its jurisdiction without first, at a duly noticed public hearing, having considered; (a) the economic impact upon private property within a franchise area; (b) the public need for such a franchise, if any; (c) the capacity of public rights-of-way to accommodate the cable system; (d) the present future use of the public rights-of-way to be used by the cable system; (e) the potential disruption to existing users of the public rights- of-way to be used by the cable system and the resulting inconvenience which may occur to the public; (f) the financial ability of the franchise applicant to perform; (g) other societal interests as are generally considered in the cable television franchising; (h) such other additional matters, both procedural and substantive, as the municipality or county may, in its sole discretion, determine to be relevant. BUDGET: AGENDA ITEM 7B&8A MAY 22, 2006 (3) No municipality or county shall grant any overlapping franchises for cable service within its jurisdiction on terms or conditions more favorable or less burdensome than those in any existing franchise within such municipality or county. Most of the items listed in the state law are not relevant in this case because the Comcast cable TV system has been in existence for many years. Disruption of public rights-of-way for installation of the new system, capacity of the rights-of-way to accommodate another system and other similar items are not applicable. As to the financial ability of the franchise applicant to perform; Comcast is a large multi -state company with assets that include numerous cable systems in other cities and counties and they have been providing the cable service in our community satisfactorily for several years. There are no anticipated changes to the city's budget as a result of the adoption of the cable TV ordinance or approval of the franchise agreement. Atlantic Beach receives approximately $100,000 per year in franchise fees from Comcast through the State Communications Services Tax. The city will receive a one time payment of approximately $22,800 as a result of this franchise agreement. Atlantic Beach had received in past years sponsorships from the cable system totaling $5,000 per year. The new state law instituting the Communications Services Tax eliminated the ability of cities to require payment of these "sponsorships" and other fees, regardless of whether or not they were included in a previous franchise agreement. RECOMMENDATION: First, approve Ordinance No. 40-06-21 Creating Rules for Cable Television Franchises and authorize the City Manager to sign the franchise agreement with Comcast of Greater Florida/Georgia Inc. ATTACHMENT: (1) A copy of Ordinance 40-06-21 is listed under the second reading on this agenda. The proposed franchise agreement is also attached. AGENDA ITEM 7B&8A MAY 22, 2006 ORDINANCE NO. 40-06-21 AN ORDINANCE OF THE CITY OF ATLANTIC BEACH, FLORIDA, CREATING RULES FOR CABLE TELEVISION FRANCHISES, ADOPTING CUSTOMER SERVICE STANDARDS, ESTABLISHING OBJECTIVE REMEDIES AND STANDARD ENFORCEMENT PROCEDURES, REQUIRING PERFORMANCE AND INSURANCE GUARANTIES, REQUIRING OTHER PROVISIONS CONSISTANT WITH MODERN TECHNOLOGY AND INDUSTRY DEVELOPMENTS, AND FOR OTHER PURPOSES. City of Atlantic Beach Cable Television Ordinance Section 1 Grant of authority 3 Section 2 Definitions 3 Section 3 Construction system design standards. 5 Section 4 Technical and operational standards. 6 Section 5 Installation and modification of system. 9 Section 6 Service area and extension of service. 11 Section 7 Regulation of system and customer service requirements. 14 Section 8 Franchise fees 27 Section 9 Rights reserved to City 28 Section 10 Application criteria, qualifications, procedure and costs. 29 Section 11 Franchise required for operation 32 Section 12 Provision of supplemental services within the City 33 Section 13 Parental control devices 33 Section 14 Education and Government Channels 34 Section 15 Liquidated Damages 35 Section 16 Alternative to Revocation of the Franchise Agreement 40 Section 17 Citation 40 Section 18 Amendments. 40 Section 19 Effective Date. 40 Ordinance No. 40-06-21 2 CHAPTER CABLE TELEVISION [Ordinance Number] Section 1 Grant of authority. (a) The City of Atlantic Beach herein sets forth the conditions for the grant of a nonexclusive franchise to construct, operate and maintain a cable television system for the city and its residents, the system to be located in, upon, along, across, over and under the streets and roads of the City and all extensions and additions thereto for a period not to exceed ten (10) years commencing with the effective date of the Franchise Agreement issued pursuant to this chapter, subject to the rights, obligations, conditions and restrictions as hereinafter provided and as provided in the written Franchise Agreement. Should there be a conflict between the terms of this Chapter and the Franchise Agreement, the Franchise Agreement shall prevail. (b) The City retains authority to provide for the regulation and control of the cable television system as prescribed herein in accordance with Federal and State law subsequent to the award of the Franchise and the City Commission and the City retain the authority to review the performance of the Franchisee periodically for compliance with the Franchise Agreement. (c) The City assumes jurisdiction, to the fullest extent allowed by law, to enforce all laws and regulations relating to cable televisionservice in the City. Section 2 Definitions. For purposes of this Chapter, unless the context otherwise requires: (a) "Access Channels" mean any, channel designated for non-commercial use as educational or local government channels. (1) "Educational Access Channel" means any designated channel for noncommercial use by local educational authorities; (2) "Government Access Channel" means any designated, noncommercial channel for local government use; Ordinance No. 40-06-21 3 (b) `Billing complaint" means a Subscriber complaint regarding errors in billing. (c) "Cablecasting" means programming carried on a cable television system (d) "Cable System" or "Cable Television System" means as defined in 47 U.S.C. Sections 521 et seq., (the "Cable Act"), as may be amended from time to time (e) "Channel" means a portion of the electromagnetic frequency spectrum which is used in a Cable System and which is capable of delivering a television channel, as defined by the FCC, and: (1) "Leased Access Channel" means a channel or a portion of a channel which is available for lease in accordance with Section 612 of the Cable Act (47 U.S.C. §532); (f) (g) "Director" means the City Director of Public Works or his designee. "Manager" means the City Manager, or the City Manager's designee. (h) "FCC" means the Federal Communications Commission, or any successor governmental entity thereto. (i) "Franchisee" means the person or entity that is awarded a franchise by the City to construct and operate a Cable Television System within the City in accordance with the provisions of all applicable law and enters into a Franchise Agreement. (j) "Franchise Area" means the legal boundaries of the City of Atlantic Beach, Florida. (k) "Public Proceeding" means a meeting open to the general public with prior announcement of the time and place at which members of the public are provided an opportunity to be heard. (1) "Service Complaint" means a complaint by a Subscriber or an applicant for subscription on the availability of obtaining service or signal quality but does not include complaints about programming selection. (m) "Public Right -of -Way" shall mean the surface of, and the space above and below, any public street, highway, freeway, bridge, alley, court, boulevard, sidewalk, Ordinance No. 40-06-21 4 lane, public way, drive, circle or other public right-of-way including, but not limited to, public utility easements, dedicated utility strips, or rights-of-way dedicated for compatible uses and any temporary or permanent fixtures or improvements located thereon now or hereafter held by the City in the Franchise Area, which shall entitle the City and the Franchisee to the use thereof for the purpose of installing, operating, repairing, and maintaining the Cable System. "Public Right -of -Way" shall also mean any easement now or hereafter held by the Franchising Authority within the Franchise Area for the purpose of public travel, or for utility or public service use dedicated for compatible uses, and shall include other easements or rights-of-way as shall, within their proper use and meaning, entitle the City and the Franchisee to the use thereof for the purposes of installing, operating, and maintaining the Franchisee's Cable System over poles, wires, cables, conductors, ducts, conduits, vaults, manholes, amplifiers, appliances, attachments, and other property as may be ordinarily necessary and pertinent to the Cable System. Notwithstanding the foregoing, "Public Right -of -Way" shall be limited to such locations where Franchisee may use, install, operate, repair, and maintain the Cable System without the violation of any law, ordinance of general applicability, easement, or right-of-way. (n) "Subscriber" means a person lawfully receiving any service delivered over the Cable Television System in exchange for payment. Any of the terms used herein, and the definitions thereof, that are defined in Section 76.5 of the rules of the FCC as amended from time to time, or in the Cable Act, and not mentioned in the above definitions, are incorporated herein by reference. Section 3 Construction system design standards. (a) The Cable System will be designed for a minimum of 78 video channels. The system shall be two-way capable. An applicant for a franchise is free to propose a Cable System plan that best accomplishes a modern broadband communications system that meets the reasonable needs and interests of the community. Ordinance No. 40-06-21 5 (b) The Franchisee shall provide all local broadcasting television stations as may be required by the FCC or federal law. Section 4 Technical and operational standards. The policy of the City with respect to technical and operational standards is to require that the Cable Television System be safely constructed and operated and that the system's components be durable and reliable. Signal reception standards and subscriber reviewing standards shall be maintained at all times by the Franchisee at a level at least equal to the minimum standards prescribed by the FCC now and hereafter. Overall technical performance of the system shall be assessed in relation to these standards. The Franchisee shall meet all FCC technical and operational standards. Subject to any pole attachment agreement between Franchisee and the owner of the applicable utility pole(s), Franchisee shall remove all cable lines, and any and all appurtenances and connections thereto, from any and all poles subject to pole change outs within 45 days of notice to Franchisee of such pole change out. (a) Construction standards and specifications. Methods of construction, installation and maintenance of the City's Cable Television System shall comply with all applicable federal, state and generally applicable local laws and regulations, and shall comply with the National Electrical Safety Code (NESC) and generally applicable local laws regulating_'the construction, installation and maintenance of electric supply and communication lines. (1) Tower. The following standards may be modified only with the written approval of the City Manager: (i) A tower constructed in the City for use of the Cable Television System shall comply with the standards contained in Structured Standards for Steel Antenna Supporting Structures, EIA Standards RS -222-A, as published by the Engineering Department of the Electronics Industries Association, 2001 I Street, N.W., Washington, D.C. and as amended from time to time. Any tower shall also comply with all generally applicable City of Atlantic Beach zoning and land use regulations. Ordinance No. 40-06-21 6 (ii) Installation and physical dimensions of a tower constructed for use in the City's Cable Television System shall comply with all appropriate Federal Aviation Agency regulations, as amended from time to time. The tower shall also comply with all generally applicable City of Atlantic Beach zoning and land use regulations. (iii) An antenna structure constructed in the City and used for the cable television system used in the City's cable television system shall comply with Construction, Marketing and Lighting of Antenna Structure, 47 CFR 17.1 et seq. (b) FCC standards. The system shall meet all applicable federal standards for reception of broadcast signals, as currently prescribed in 47 CFR 76.601 et seq., as amended from time to time. The signal reception standards as now existing or hereafter issued by the FCC are incorporated into and made a part of this chapter. Grading of the quality of each locally receivable signal against the performance of the system in delivering that signal to Subscribers shall be measured by FCC tests upon written request by the City Manager. (c) The Franchisee shall comply with all appropriate technical standards of the FCC as published in subpart K of 47 C.F.R. § 76. To the extent those standards are altered, modified, or amended during the term of this Franchise Agreement, the Franchisee shall comply with such alterations, modifications or amendments within a reasonable period after their adoption by the FCC. As provided in these rules, the Franchising Authority shall have, upon written request, the right to obtain a copy of tests and records required to be performed pursuant to the FCC's rules. (d) On the effective date :of this Ordinance, it is acknowledged that Franchisee has above ground transmission and distribution facilities as referenced in the attached Exhibit "A," a large scale copy of which will be provided to the City by Franchisee upon entering into the Franchise Agreement. However, if all of the transmission and distribution facilities of all of the respective public or municipal utilities in said area of the Franchise Area are to be placed underground after the effective date of Ordinance No. 40-06-21 7 this Ordinance, the Franchisee shall place its Cable Systems' transmission and distribution facilities underground within a reasonable period; provided that such underground locations are actually capable of accommodating the Franchisee's cable and other equipment without technical degradation of the Cable System's signal quality. If all of the transmission and distribution facilities of all of the respective public or municipal utilities in any area of the Franchise Area are placed underground at a subsequent date, then Franchisee shall use its best efforts to place its Cable Systems' transmission and distribution facilities underground within forty-five (45) days of written notice by the City, provided that all of the public or municipal electric utility's transmission and distribution facilities are underground prior to Franchisee's placement of its Cable Systems' transmission and distribution facilities underground. It is the policy of the City to encourage underground installation wherever practicable. Franchisee may, at any time, install its cable plant underground in areas where other utilities are aerial. If aerial facilities are required to be moved underground by the City pursuant to a beautification or other public improvement project, the City will use reasonable efforts to assist Franchisee in recovering the costs of relocation from any private, local, state or federal funds available for the project but is not itself required to pay for such cost unless such funds are passed through the City or its department specifically for the relocation of Franchisee's utilities, including the passage of funds through the City or its department for the relocation of private utilities which would include, by implication, the relocation of Franchisee's utilities. Nothing in this Section shall be construed to require the Franchisee to construct, operate, or maintain underground any ground -mounted appurtenances such as customer taps, line' extenders, system passive devices, amplifiers, power supplies, pedestals, or other related equipment. Underground installation shall be done in accordance with the following requirements: (1) Underground installation shall be done as follows: Ordinance No. 40-06-21 8 (i) All cable television lines, cables and wires, except those referenced above in the attached Exhibit "A" shall be installed underground. The cost of all installations shall be born by the Franchisee. (2) The Franchisee's cable television distribution system in the public streets shall comply with all federal, state and generally applicable local laws and regulations in the Franchise Area. (e) In accordance with FCC requirements, the Cable System shall include an emergency alert capability which will permit the City to override, by remote control, the video and audio of all channels simultaneously except those involved in retransmission of television broadcast programming. This provision shall be implemented in a manner consistent with and to the extent permitted by federal and state emergency alert requirements. (f) The Franchisee shall maintain equipment capable of providing standby power for headend, transportation and trunk amplifiers for a minimum of two (2) hours. Section 5 Installation and modification of system. (a) The Franchisee shall obtain a permit from the Director of Public Works and give prior written notice of proposed construction within the time frame required by City code and regulations of general applicability prior to the construction so as to coordinate all work between the City and the Franchisee. The City Manager shall have the right to inspect all construction by the Franchisee in the streets, and to make such periodic inspections as the City deems necessary to ensure compliance with the terms of its franchise and other pertinent provisions of law of general applicability. Such inspections shall be performed in a manner so as to avoid interference with a Franchisee's construction activities and with the delivery of services to customers. Franchisee may have a right to be present at time of inspection. (b) A Franchisee shall, at its expense, protect, support, temporarily or permanently disconnect or relocate in the same street or other public place any property of the Franchisee or component of the Cable System by reason of traffic conditions, Ordinance No. 40-06-21 9 public safety, street closing, street construction, change or establishment of street grade, installation of sewers, drains, construction of buildings, water pipes, power or signal lines, and further provided that if federal or state funds are available to any person impacted by the change for the purpose of defraying costs related thereto, the City will upon request assist Franchisee in applying for such funds. (c) All wires, conduits, cables and other property and facilities of the Franchisee shall be so located, constructed, installed and maintained as not to endanger or interfere with the usual and customary traffic and travel upon the streets and public places of the City and so as not to endanger or interfere with the quality of the street, its surface, curbs, and any adjacent materials as the City Manager shall see fit. Upon request of the City, the Franchisee will plainly and visibly mark the location all wires, conduits, cables and other property and facilities of the Franchisee. The Franchisee shall keep and maintain all of its property in good condition, order and repair. The Franchisee shall keep accurate maps and records of all its facilities. Upon prior written notice, Franchisee shall provide the City Manager with strand and trench maps showing the location of its strand, trenches and vaults. The Franchisee shall not place equipment where they will interfere with the rights of property owners, with gas, electric or telephone fixtures or with water hydrants or mains or sewer or existing or planned construction by the City or its agencies or officers. Franchisee shall adhere to City's permitting process of general applicability and will restore land to original or similar condition. (d) The City shall give the Franchisee reasonable prior written notice of plans for street improvements where paving or resurfacing of a permanent nature is involved. The notice shall describe the nature and-eharacter of the improvements, the streets upon which the improvements are to be made, the extent of the improvements and the work schedule for the project. The notice shall give the Franchisee thirty (30) days to make any additions, alterations or repairs to its facilities, so as to permit the Franchisee to maintain continuity of service. If the Franchisee shall fail, refuse or neglect to comply within the thirty (30) day notice period, upon seven (7) days written notice, the City may Ordinance No. 40-06-21 10 make the changes in the Franchisee's facilities at the Franchisee's cost and, absent gross negligence, the City shall not be liable to the Franchisee for damages resulting from the removal, alterations or relocation. All costs in connection therewith shall be paid by the Franchisee within thirty (30) days from receipt of the invoice therefore, with interest accruing at prime rate plus one percent (1 %) thereafter. (e) The Franchisee shall, on the written request of any person holding lawful a building moving permit, temporarily raise or lower its wires to permit the moving of the building. The expense of temporary removal or raising or lowering of wires shall be paid by the person requesting it, and the Franchisee may require payment in advance. The Franchisee shall be given not less than ten (10) business days' notice of a contemplated move to arrange for temporary wire changes. (f) The Franchisee shall have the authority to trim trees and small limbs upon and overhanging streets, alleys, sidewalks and other public places of the City so as to prevent the branches of the trees from coming in contact with its wires and cables. Franchisee shall obtain written approval of the City prior to removing any trees or cutting limbs either of which is over four (4) inches in diameter. City may require Franchisee to install its lines underground to accommodate and avoid the need to trim larger trees. In the event of an emergency, such as storm damage to trees near the Cable System, Franchisee may trim dead trees without advance notice to the minimum extent required to alleviate the threat. Nothing herein waives or modifies the requirement for the Franchisee to obtain any necessary permits or licenses. Section 6 Service area and extension of service. (a) Initial service area. For any initial franchise granted to an applicant not already providing cable service to a majority of the residents of the City, a Franchise Agreement shall provide for an initial service area comprised of all parts of the Franchise Area with a minimum density of thirty (30) homes per mile to be fully constructed and activated with services being offered to all residents in the area within a reasonable time to be set forth in a Franchise Agreement. The initial service area shall be designated in Ordinance No. 40-06-21 11 such a way as to ensure a Franchisee is not red -lining or excluding any neighborhoods based on economic, racial, multiple dwelling unit densities or other criteria. (b) Extension of service outside initial service area. The Franchisee shall extend its plant and make service available to any new areas of the City having density of seven (7) or more dwelling units per linear street mile within sixty (60) days after such areas are built out. Franchisee shall offer Cable Service to all new homes or previously un -served homes located within one hundred twenty-five (125) feet of the Franchisee's distribution cable. The Franchisee may elect to provide Cable Service to areas not meeting the above density standards. The Franchisee may impose an additional charge in excess of its regular installation charge for any service installation requiring a drop or line extension in excess of the above standards. Any such additional charge shall be computed on a time plus materials basis (actual costs) to be calculated on that portion of the installation that exceeds the one hundred twenty-five (125) foot standard set forth above. (c) Progress and status reports. (1) A Franchise Agreement containing construction requirements as set forth above shall include as an exhibit a construction plan, indicating the timetable for construction of the various segments of the system. This plan may not be amended without the approval of the City Manager, in a formal writing, with a revised schedule attached. The schedule shall be in sufficient detail to provide the dates for each element of work. (2) From the date of commencement of construction through the completion of the construction timetable, -the Franchisee upon request shall furnish to the City Manager progress reports at three-month intervals. The reports shall indicate, in detail, the progress of construction. (d) Construction Delay. Upon expiration of the construction schedule attached to a Franchise Agreement without construction having been completed, the City shall give a Franchisee written notice of non-compliance. Failure to cure the non-compliance Ordinance No. 40-06-21 12 within thirty (30) days from receipt of the written notice shall result in the assessment of liquidated damages in the amount of Two Thousand Dollars ($2,000) per day, starting the 31st day after receipt of notice of noncompliance. (e) Indemnity and insurance. (1) The Franchisee shall at all times indemnify, protect and save harmless the City from any and all penalty, damage or charges (including attorneys' fees, costs, and such fees and costs incurred by an appeal) arising out of claims, suits or causes of action, of award of damages whether compensatory or punitive, or expenses arising therefrom, either at law or in equity, which might be claimed now or in the future, including any payments required by the workers' compensation law, which may arise out of or be caused by the erection, location, maintenance, repair, installation, replacement or removal of the Cable Television System within the Franchise Area or by any act or omission of the Franchisee, its agents or employees, and recognizes that the granting of this Franchise is good and valuable consideration for giving this indemnity, and that a portion of the value of the Franchise otherwise paid to the City was reduced for this indemnity This indemnification shall not apply to any direct City gross negligence or willful misconduct. (2) Concomitant with the execution of the Agreement, and at all times during the term of the franchise, the Franchisee shall obtain, pay all premiums for, and file with the City Manager certificates of insurance evidencing payment of the premium of a comprehensive general liability policy issued by a company authorized to do business in the State of Florida, of not less than (i) One Million Dollars ($1,000,000) for property damages for any one accident; -(i) One Million Dollars ($1,000,000) for each person; and (iii) Five Million Dollars ($5,000,000) for each occurrence for liability due to personal injury or death. This insurance shall protect the City from and against all claims, demands, actions, judgments and liabilities, which may arise or result, directly or indirectly, from or by reason of loss, injury or damages. In lieu of insurance, the Franchisee may deposit in a manner approved in writing by City cash or securities Ordinance No. 40-06-21 13 providing the security called for in this paragraph. All insurance required hereby shall include the City as an insured party. (f) Construction Bond. If required by the City Public Works Director, prior to any Cable System construction, upgrade, rebuild in the streets, excluding work connected with normal operation and maintenance of the System such as line extensions and general repair, Franchisee shall furnish a construction bond in favor of the City in an amount equal to the lesser of the projected cost or One Hundred Thousand Dollars ($100,000). If such construction bond is not furnished to the City ten (10) days prior to the start of any such construction, construction shall be delayed until such time as the construction bond is provided in a form approved by the City or its designee. The construction bond shall be maintained until said construction work is completed and activated for a period of six (6) months thereafter at which point it will be automatically released. (g) Fair employment practices. The Franchisee shall comply with all lawful federal and state law regarding affirmative action in employment. Section 7 Regulation of system and customer service requirements. (a) To the extent permitted by federal and state law, the City shall have continuing regulatory jurisdiction and supervision over the operation of any franchise granted hereunder and may from time to time adopt such reasonable rules for the conduct of the business contemplated hereunder so long as the modification does not diminish benefits or increase obligations of Franchisee. (b) The continuing day-to-day regulatory jurisdiction of the City shall be exercised by the City Manager, who shall' have the following responsibilities and duties and such other responsibilities and duties as the City may assign in accordance with law: (1) Establishing reasonable customer service standards as permitted by federal and state law. Ordinance No. 40-06-21 14 (2) Making proposals to the Franchisee and Subscriber in order to facilitate the resolution of disputes or disagreements between the Franchisee and Subscriber, which are brought before the City Manager by a Subscriber. (3) Reviewing all reports and filings submitted to the City as required hereunder and such other correspondence as may be submitted to the City concerning the operation of the system and reviewing the rules and regulations set by the Franchisee under the provision herein. (4) Assuring that all rates and rules pertinent to the provision of service are communicated to the public at reasonable hours and upon reasonable request in accordance with the FCC's requirements. (5) Conferring and coordinating with the Franchisee on the efforts to interconnect the City's Cable System with other communications systems with respect to public, educational and governmental programming as set forth in this Ordinance. (6) Reviewing annual FCC reports regarding the technical performance of the system upon written request. in order to assess whether the system is maintaining required technical standards. (c) Customer Service Requirements. The following requirements shall apply under "Normal Operating Conditions," which under this subsection means those service conditions that are within the control of the cable operator and as prescribed in subsection (4) of this subsection. Those conditions that are not within the control of the cable operator include, but are not limited to, natural disasters, civil disturbances, power outages, and telephone network outages and severe or unusual weather conditions -Those conditions that are ordinarily within the control of the cable operator include, but are not limited to, special promotions, pay-per- view events, rate increases, regular peak or seasonal demand periods, and maintenance or upgrade of the Cable System. (1) Franchisee shall maintain all parts of its system in good condition and in accordance with standards promulgated by the FCC and as may be set forth in the Ordinance No. 40-06-21 15 City Code if mutually agreed upon with Franchisee and of general applicability and a Franchise Agreement. Sufficient employees shall be retained to provide safe, adequate, and prompt service for all customers and facilities. The customer service standards set forth herein are applicable to all Cable Services and any Franchise Agreement. (2) A Franchisee shall maintain at least one (1) conveniently located bill payment location in the City of Atlantic Beach or the City of Jacksonville Beach or the City of Neptune Beach with a staffed customer service counter for the distribution and receipt of equipment, payments and customer service complaints. A Franchisee may negotiate with other commercial establishments (e.g. supermarkets, shopping centers) to establish payment centers at their locations to satisfy these requirements. (3) Franchisee shall maintain a listed local, toll-free telephone number and employ a sufficient number of telephone lines, personnel and answering equipment or service to allow reasonable access by Subscribers and members of the public to contact the Franchisee on a full-time basis, twenty-four (24) hours per day, seven (7) days per week. (4) Franchisee shall answer all customer service and repair telephone calls made under Normal Operating Conditions within thirty (30) seconds, including wait time and within an additional thirty (30) seconds to transfer the call to a live customer service representative. For purposes of this Chapter, the term "Normal Operating Conditions" shall have the definition contained in the Code of Federal Regulations, at 47 C.F.R. 76.309 (c) (4) (ii) as amended from time to time. These standards shall be met no less than ninety percent (90%) of the time under Normal Operating Conditions, measured on a quarterly basis. Under Normal Operating Conditions, the customer will receive a busy signal less than three percent (3%) of the time. Upon request, Franchisee shall submit reports showing its performance under this subsection on a monthly basis; however, its performance shall be measured for purposes of compliance with the above standard on a quarterly basis. Ordinance No. 40-06-21 16 (5) Franchisee shall employ and maintain sufficient qualified personnel and equipment to be available (i) to accept payments; (ii) to exchange or accept converters or other equipment; (iii) to receive Subscriber complaints or requests for service or repairs on a full-time basis, twenty-four (24) hours per day, seven (7) days per week; (iv) to initiate and undertake normal repairs, and initiate action with respect to any Subscriber service complaints within twenty-four (24) hours; (v) to enable a service technician to respond to service calls twenty-four (24) hours per day, seven (7) days a week, including holidays when multiple Subscribers serviced from the same, nearest active electrical device such as an amplifier, call with the same complaint (6). Franchisee must meet each of the following standards no less than ninety-five percent (95%) of the time under normal operating conditions as measured on a quarterly basis: (i) Standard installation work shall be performed within seven (7) business days after an order has been placed except in those instances where a Subscriber specifically requests an installation date beyond the seven (7) business day period. "Standard" installations are up to one hundred twenty-five (125) feet from the existing distribution system. If scheduled installation is neither started nor completed as scheduled, a representative of the Franchisee will contact the Subscriber. (ii). Franchisee will begin working on Service Interruptions promptly and in no event later than twenty-four (24) hours after the interruption becomes known. "Service Interruptions" shall be defined as in 47 C.F.R. 76.309 (c) (4) (iii) as amended from time to time. Franchisee will begin working on other service problems no event later than forty-eight (48) hours after the problem becomes known. Franchisee shall make best efforts to undertake normal repairs and initiate action within a reasonable time period of such interruption and, to the extent they are within the Franchisee's reasonable control, Service Interruptions, and service problems will be responded to, addressed, and Normal Operating Conditions will be restored within seventy-two (72) hours after receipt of a complaint. Ordinance No. 40-06-21 17 (iii) The appointment window alternatives made available for installations, service calls, repairs, and other installation activities will be either a specific time, a three (3) hour time block during Normal Business Hours, or at the election and discretion of the Subscriber, "all day". "Normal Business Hours" shall be defined as in 47 CFR Section 76.309 (c) (4)(i) as amended from time to time. (iv) Franchisee may not cancel an appointment with a Subscriber after the close of business on the business day prior to the scheduled appointment without first attempting to contact the Subscriber; and (v) If at any time an installer or technician is running late for a scheduled appointment, the customer will be contacted and the appointment rescheduled, if necessary, at a time that is convenient for the customer. (vi) Franchisee shall submit reports, upon request, to the City Manager showing its performance under this subsection on a monthly basis, however, its performance shall be measured for purposes of compliance with the above standard on a quarterly basis. (vii) A Franchisee shall implement a policy of providing credits for customers who complain to Franchisee about service outages in a pro -rated amount of that customer's normal monthly bill representing the number of days the customer was affected. (7) Subscribers who, under Normal Operating Conditions, have experienced one (1) missed installation or service appointment due to the fault of Franchisee shall receive installation free of charge. If the installation was to have been provided free of charge or if the appointment was for service or repair, the Subscriber shall receive a credit on its bill of Twenty Dollars ($20.00). An appointment shall be considered missed if the technician arrives more than fifteen (15) minutes later than the designated time block. (8) Disconnection. (i) Voluntary Disconnection. Ordinance No. 40-06-21 18 (A) A Subscriber may terminate service at any time. (B) A Franchisee shall promptly disconnect any Subscriber who so requests from the Cable System of the Franchisee. No period of notice prior to voluntary termination of service may be required of Subscribers by any Franchisee. So long as the Subscriber returns equipment within five (5) business days of the disconnection, no charge may be imposed by any Franchisee for such voluntary disconnection, or for any cable services delivered after the date of disconnect request. (C) Any security deposit and/or other funds due the Subscriber shall be refunded on disconnected accounts after any Franchisee equipment on customer premises, including all converters but excluding wiring, have been recovered by the Franchisee. Refund checks will be issued promptly, but no later than either the customer's next billing cycle or thirty (30) days whichever is earlier. (ii) Involuntary Disconnection. If a Subscriber fails to pay a monthly Subscriber or other fee or charge, the Franchisee may disconnect the service outlet of the Subscriber; however, such disconnection shall not be effected until both thirty-five (35) days after the due date of the monthly Subscriber fee or other charge, and ten (10) days advance written notice of intent to disconnect to the Subscriber in question. If the Subscriber pays the balance due within thirty-five (35) days of the due date or within ten (10) days after notice of disconnection has been given, the Franchisee shall not disconnect. After disconnection, upon payment by the Subscriber in full of all proper fees or charges, including the payment of the reconnection charge, if any, the Franchisee shall reinstate service. Franchisee reserves the right to deny service to any customer who has been repeatedly disconnected for non-payment of services to the extent such rights are consistent with applicable state and federal law. (iii) Nothing in this Ordinance shall be construed to prevent the Franchisee from removing its property from a premises of a Subscriber upon the termination of service consistent with FCC rules and regulations and any other applicable law. At the request of a Subscriber, a Franchisee shall remove its Subscriber equipment Ordinance No. 40-06-21 19 from the premises of the Subscriber within thirty (30) calendar days of the request. Where removal is impractical, such as with buried cable or internal wiring, facilities and equipment may be disconnected and abandoned rather than removed, unless there is a written agreement stating otherwise, provided, however, that such agreement must be consistent with applicable law and FCC rules. (9) Franchisee shall intentionally interrupt service only for good cause and for the shortest time possible. Franchisee shall use its best efforts to ensure that such interruptions shall occur only during the hours of 1:00 a.m. to 6:00 a.m., except during a rebuild or upgrading of the Cable System. Franchisee shall maintain a written or electronic log for all intentional service interruptions. (10) Franchisee shall cause all of its field employees or subcontractors to wear a picture identification badge indicating employment or engagement by Franchisee. This badge shall be clearly visible to the public. All service vehicles of such persons shall be clearly marked with the name or logo of the Franchisee. (11) A Franchisee shall develop written procedures for the investigation and resolution of all Subscriber or City resident complaints, including, but not limited to, those regarding the quality of service, equipment malfunction and security deposits, which procedures shall be provided in advance of distribution to the City. A Subscriber or City resident who has not been satisfied by following the procedures of the Franchisee may submit a complaint with the City. The good faith or lack thereof of the Franchisee in attempting to resolve Subscriber and resident complaints in a fair and equitable manner will be considered in connection with the renewal application of the Franchisee. Upon request, Franchisee shall maintain a complete list showing the number of billing complaints received by category. (12) The City, or its designated representatives, shall have the right to review and audit the customer service call center numbers. If such audit concludes that Franchisee has a five percent (5%) or greater margin of error in its reporting of customer service numbers, Franchisee shall reimburse the City for its audit expenses. Ordinance No. 40-06-21 20 (13) Franchisee shall abide by the following requirements governing communications with customers, bills and refunds: (i) Each Franchisee shall provide to Subscribers written information in each of the following areas at the time of installation, at least once annually, and at any future time upon request by the Subscriber: (A) How to use the cable service; (B) Installation and service maintenance policies; (C) The products and services offered; (D) Prices and service options; (E) Channel positions of programming carried on the system; (F) The procedures of the Franchisee for the receipt and resolution of customer complaints, the address of the Franchisee and telephone number to which complaints may be reported, and the hours of operation; (G) The telephone number and address of the City office designated to handle cable television complaints and inquiries shall be printed on the back of the bill; (H) The availability of a parental control options; (I) The Franchisee's information collection and disclosure policies for the protection of the privacy of the Subscriber. (ii) Franchisee bills will be clear, concise and understandable. (iii) Refund checks,will be issued promptly, and in no later than thirty (30) days or the next billing cycle- of the customer following the resolution of a refund request, or the return of the equipment supplied by the Franchisee if service is terminated. (iv) Credits for service will be issued no later than the next billing cycle of the customer following the determination that a credit is warranted. Ordinance No. 40-06-21 21 (v) A Franchisee shall provide Subscribers, the City, and the City Manager with at least thirty (30) days advance written notice of any changes in rates, charges, or channel lineup, or changes of cable services offered over the Cable System in the manner required by FCC rules. (14) A Franchisee shall provide a pro -rated twenty-four (24) hour credit upon request by the Subscriber to the account for any period of four (4) hours or more within a twenty-four (24) hour period during which a Subscriber experienced and reported an outage of service or substantial impairment of service due to a system malfunction. (15) Billing (i) The first billing statement of the Franchisee after a new installation or service change shall be pro -rated as appropriate and shall reflect any security deposit. (ii) The billing statement of the Franchisee must be fully itemized, with itemizations including, but not limited to, basic and premium service charges and equipment charges. Invoices will also clearly delineate all activity during the billing period, including optional charges, rebates and credits. (iii) The billing statement of the Franchisee must show a specific due date not earlier than ten (10) days after the date of the beginning of the service period. Any balance not received within ten (10) days after the due date may be assessed an administrative charge or late fee not to exceed Five Dollars ($5.00). The charge will appear on the billing statement of the following month. (A) Subscribers shall not be charged an administrative fee, a late fee or otherwise penalized for any failure by the Franchisee, its employees, or contractors, including failure to timely or correctly bill the Subscriber, or failure to properly credit the Subscriber for a payment timely made. Ordinance No. 40-06-21 22 (iv) The Franchisee must notify the Subscriber that payment can be remitted in person at the office of the Franchisee and inform the Subscriber of the address of the nearest office where payment can be made. (16) Alterations in Cable Service. (i) If a Franchisee wishes to alter the service being provided to a Subscriber (including by re -tiering, restructuring a tier or otherwise) in such a way that the Subscriber will no longer be able to obtain the same package of services, then the Franchisee must provide the Subscriber with thirty (30) days notice of such alteration, explain the substance and the full effect of the alteration, and provide the Subscriber the right within the thirty (30) day period following notice, to opt to receive any other combination of services offered by the Franchisee. (ii) Except as provided herein, or under applicable federal or state law, no charge may be made for any service or product which the Subscriber has not affirmatively indicated, in a manner separate and apart from payment of the regular monthly bill that it wishes to receive. (17) Where a Franchisee offers and/or advertises any product or service in the City, such products and services must be made available to all customers in the Franchise Area. Failure to provide any product or service to a customer consistent with the material terms and conditions of the offers and advertisements, upon request and agreement to pay, shall be considered a violation of this Ordinance. This section shall not apply to new products and services being offered on a trial or experimental basis not to exceed a twelve (12) month period in a limited area for purposes of testing, assessing customer interest, or other legitimate business reason for such new products. (18) Franchisee, through its local manager or other person responsible for the operation of the Cable System, shall certify in writing to the City bi-annually that based upon internal due diligence by the Franchisee that to the best of knowledge of the Franchisee, it is in substantial compliance with the standards set forth in the customer service requirements of this Ordinance. At the request of the City, the Franchisee shall Ordinance No. 40-06-21 23 submit such documentation, as may be reasonably required, to demonstrate compliance of the Franchisee with this Section. This documentation shall be submitted within forty- five (45) days of the receipt of the written request of the City to the City Manager. (19) Excessive customer complaints to the City. If in any single month the number of Service Complaints and Billing Complaints from different individuals received by the City exceeds eleven (11) under Normal Operating Conditions, the City Manager may notify Franchisee in writing and request a meeting with Franchisee's system manager within five (5) business days to determine the cause of the high call volume and to establish a plan to cure or commence to cure within thirty (30) days the cause of the high call volume. Complaints to the City, that Franchisee demonstrates are unsubstantiated, by any third party, organization, group or the City shall not count toward assessment of the damages set forth herein. (20) Where the Franchisee has knowledge of any funds collected from Subscribers by Franchisee in excess of that which is lawfully allowed under applicable federal, state or local law, rules, regulations or by contract or agreement, Franchisee shall issue to Subscriber cash refunds no later than the next billing cycle or forty-five (45) days, which ever is greater. (21) Responsibility for the administration of this Ordinance and the Franchise agreement, and for the investigation and assistance in resolving complaints against the Franchisee regarding the quality of service, equipment malfunctions, and related matters, including the authority to order fines, is hereby delegated to the City Manager, who is empowered, among other things, to settle, or compromise any controversy arising from operations of the -Franchisee, on behalf of the City in accordance with the best interests of the public. The City Manager may require compliance with specific obligations of this Ordinance and the Franchise Agreement, provided that the Franchisee, may appeal the matter to the City Commission for determination. No adjustment, settlement, or compromise, whether instituted by the City Manager or by the City Commission, shall be contrary to the provisions of the Ordinance or any Franchise Ordinance No. 40-06-21 24 Agreement issued pursuant to the Ordinance, and neither the City Manager nor the City Commission, in the adjustment, settlement, or compromise of any controversy shall have the right or authority to add to, modify or delete any provision of the Ordinance or of the Franchise Agreement. (22) In addition to complying with the customer service standards set forth in this Ordinance or in any Franchise Agreement issued pursuant to this Ordinance, a Franchisee shall comply with all FCC customer service standards applicable to Cable Systems and any other applicable federal or state law concerning customer service standards, consumer protection, and unfair or deceptive trade practices, as the same shall be amended from time to time. (23) The City expressly reserves the right to consider violations of the customer service requirements in evaluating any renewal, modification or transfers of any Franchise Agreement. (24) Subscriber Privacy. (i) A Franchisee shall at all times protect the privacy of all Subscribers to the full extent required by Section 631 of the Cable Act, 47 U.S.C. 551, and state law. A Franchisee shall not condition Subscriber or other service on the grant of permission of the Subscriber to disclose information that, pursuant to federal or state law, cannot be disclosed without the explicit consent of the Subscriber.. No penalties or extra charges may be invoked by the Franchisee for a failure of the Subscriber to grant consent. (ii) Unless otherwise permitted by federal or state law, neither the Franchisee nor its agents or employees shall, without the prior and specific written authorization of the Subscriber involved, sell, or otherwise make available for commercial purposes the names, addresses or telephone numbers of any Subscriber or Subscribers, or any information which identifies the individual viewing habits of any Subscriber or Subscribers. Ordinance No. 40-06-21 25 (25) All data and information required by this Ordinance to be provided to the City by Franchisee shall reflect only the operations of the Cable System within the City. The City shall maintain the confidentiality of any information provided by a Franchisee that has been designated as Confidential or Trade Secret information, subject to State or Federal law. (26) Regarding customer service standards adopted by other Franchising Authorities located within Duval County only, the Franchisee shall amend the Franchise Agreement with the City to provide City with the same terms, upon the City's written request. (27) Franchisee may pass through to Subscribers any costs arising from customer service standards greater than those set forth in federal law by the' FCC. In the event that Franchisee intends to pass through to Subscribers any such additional costs, the Franchisee must provide at least thirty (30) days prior written notice to the City and shall provide the City with such documentation as may be reasonably required by the City to substantiate such additional cost. Upon request, the customer service requirements at issue shall be suspended while the City evaluates any information provided by Franchisee. (28) No Third -Party Beneficiaries. Nothing in this Ordinance or any Franchise Agreement is or was intended to confer third -party beneficiary status on any member of the public to enforce the terms of such Ordinance or Franchise Agreement. (29) The Franchisee shall designate channel capacity for Leased Access in accordance with the requirements of Section 612 of the Cable Act, as amended. (30) All system monitoring shall be in compliance with Federal and State privacy and surveillance laws. (31) Franchisee shall permit the City designee to inspect the technical equipment and facilities of the system upon reasonable prior written notice, not to be, unless required by exigent circumstances, less than seventy-two (72) hours. Ordinance No. 40-06-21 26 Section 8 Franchise fees. The Florida Simplified Communications Services Tax Act preempts Section 8 of this Ordinance. If, however, the Florida Communications Services Tax Law is amended or repealed so that a local franchising authority is allowed to impose and collect franchise fees, then forty-five (45) days after the effective date of any such statutory amendment or repeal, this Section 8 of the Ordinance will become effective with respect to all Franchise Agreements or at such time as stated in said amendment or repeal of the Florida Communications Services Tax Law. Unless otherwise provided by law, Franchisee shall collect and remit franchise fees for the entire period following the effective date of the aforementioned change in law, even if some collection and payment must be done in arrears to allow for changes to the billing process. The intent of this section is to ensure the City is not deprived of any franchise fees to which it would otherwise be entitled following a change in state law. (a) The Franchisee shall pay, as fair compensation for a franchise granted pursuant to this Ordinance, and in consideration of permission to use the streets and public ways of the City for the construction, operation, maintenance and reconstruction of a Cable System within the City, an annual franchise fee not to exceed the maximum fee permitted by law based upon Franchisee's provision of cable television services within the City. The exact amount of this franchise fee shall be set forth in the Franchise Agreement between the City and Franchisee. Any increase in the franchise fee shall be voted on at a public hearing of the Commission following the notice and opportunity for public comment required by law. Franchise fee payments shall be made to the Finance Officer. (b) Payments due the City under this provision shall be computed quarterly, for the preceding quarter, as of January 1, April 1, July 1 and October 1. Each quarterly payment shall be due and payable no later than forty-five (45) days after the relevant computation date. Each payment shall be accompanied by a brief report to the City Manager showing the basis for the computation and such other relevant facts as may be required by the City. Ordinance No. 40-06-21 27 (c) No acceptance of a payment shall be construed as an accord that the amount paid is, in fact, the correct amount, nor shall the acceptance of payment be construed as a release of any claim the City may have for further or additional sums payable under the provisions of this chapter. All amounts paid shall be subject to audit and re -computation by the City. In the event that re -computation results in additional revenue to be paid to the City, the amount shall be subject to a surcharge, charged for each day for which the payment was delayed, calculated in accordance with the prime rate of interest as published in the Wall Street Journal as of the date of re -computation. (d) Annual revenue statements, acceptable to the City Manager, shall be submitted within forty-five (45) days after completion of the Franchisee's year-end close verifying revenues generated under the Franchise Agreement. (e) Nothing in this section shall limit a Franchisee's liability to pay other local taxes of general applicability. Any tax, fee or assessment that is imposed by the City upon any Franchisee or its Subscribers solely because of their status as such, shall be treated as a franchise fee. (f) Franchisee shall have the right to designate that portion of a Subscriber's bill attributable to the franchise fee as a separate item on the bill and shall have the right to pass through to Subscribers the full amount of the franchise fee. Section 9 Rights reserved to City. Without limitation upon the rights that the City might otherwise have, the City does hereby expressly reserve the following rights, powers and authorities: (a) To exercise its lawful governmental powers now or hereafter to the full extent that these powers may be vested inror granted to the City. (b) To grant additional franchises within the City to other persons for the conduct of cable television in accordance with federal and state law. (c) To exercise any other rights, powers or duties required or authorized to the City under the State Constitution or the Charter. Ordinance No. 40-06-21 28 Section 10 Application criteria, qualifications, procedure and costs. (a) The City shall award an initial franchise to an applicant only after a public hearing on the application and information filed therewith, and the award shall be based on the satisfaction of the criteria contained herein. No franchise shall be awarded except upon a showing by the applicant of satisfaction of these criteria among others. (b) In accordance with FCC rules, evidence must be presented assuring the City that the applicant is a United States citizen or corporation. (c) The applicant shall present character qualifications, as follows: (1) Applicants shall present evidence as to whether or not the applicant or any officer, director or principal has ever been convicted in a criminal proceeding where felonies or misdemeanors were charged. (2) Evidence shall be presented as to whether the applicant or any officer, director or principal has ever been a party to a civil proceeding in which it was held there were unfair or anticompetitive business practices; antitrust violations; violations of securities laws; or false or misleading advertising. (3) Evidence shall be presented as to whether applicant has ever had a business license (including FCC licenses) revoked. (d) The applicant shall file twelve (12) copies of the application for the cable television franchise for the City with the City Manager during the time period designated by the City, which notice shall be published affording notice to all prospective applicants. The applications shall be reviewed by the City and the applicants afforded proper time during a public proceeding before the City ,to explain their application. The City may utilize consultants knowledgeable in the' field of cable television for analysis of the applicants' proposals. The City Commission shall endorse an applicant and authorize the City's entrance into a contract for the cable television franchise if the applicant satisfies the criteria established herein and the City determines that grant of application will serve the public convenience, safety and general welfare. Ordinance No. 40-06-21 29 (e) The applicant shall submit details of the applicant's financial background, Subscriber rates, proposed system technical configuration and operational system description, construction timetable proposed to complete service to the initial service area, proposed administrative practices, and delineate the applicant's employment practices and policies. Existing Franchisees operating in the City are not required to provide the application or follow the application procedures described herein. The applicant shall present additional evidence to assist the City in evaluating the effect of an additional cable television operator. Such evidence shall include, but is not limited to: (1) The extent of installation of facilities and equipment of existing cable operator(s) detailing the per -strand -mile density of areas served, unserved areas and the per -strand -mile density of such, and the location of the facilities of the existing operator(s). (2) The per -strand -mile densities of the areas the applicant proposes to serve and the extent to which the applicant intends to utilize bulk rate contracts. (3) The extent to which the applicant intends to overbuild existing cable operator(s). (4) The detailed economic and financial information and assumptions of the applicant. (5) The technical or physical limitations of rights-of-way, the frequency and extent of disruption of rights-of-way, and the potential conflicts with other rights-of-way users (including vehicular traffic). (6) The effects of competition in the cable industry, including the cost of duplication of facilities and equipment, services, personnel, etc., and the extent to which overbuilds have historically survived, and the potential for loss of or degradation of cable service to existing or potential Subscribers. (7) The extent to which existing cable operator(s) are meeting the community needs and interests and the mariner and extent to which the applicant proposes to meet community needs and interests. Ordinance No. 40-06-21 30 (8) The ability of the City to regulate multiple franchises, including the permitting processes of the City, the ability to readily locate and determine the owner of facilities and equipment, and the extent of conflicts of utility and cable installations. (9) Any other evidence pertinent to the City's evaluation of the application. (f) If applicant proposes to serve an area then served or planned to be served by another Franchisee, the application shall be submitted with proof of service of a copy of its application upon the incumbent Franchisees. (g) In evaluating an application, the City shall consider the applicant's legal, financial, technical, and other qualifications, the adequacy of its proposed system, and shall balance pro -competitive impact of additional franchisees, with the continued ability of residents to obtain high quality cable services at the lowest economic price and the possible increased diversity of information with the: (1) Ability of the City to regulate multiple cable operators and services, (2) Disruption of public and private property by multiple cable operators, (3) Economic viability of cable operators so as to make available high- quality cable services to the greatest number of City residents at the lowest economically. feasible price taking into consideration all existing competition, including OVS, SMATV and direct broadcast satellite providers. (i) Consideration will be given an installation plan that provides flexibility needed to adjust-' to new developments, establishes quality maintenance practices and provides marketable services that would be available to Subscribers and the community immediately and in the future. (h) Consideration will be given to applicants with the most reasonable installation and Subscriber rate schedule that is, at the same time, justified in the financial pro forma statements by use of realistic levels of penetration. Ordinance No. 40-06-21 31 (i) Consideration will be given to applicants presenting evidence of financial resources that assure initial service area within five (5) years of receiving required FCC franchise approvals. (j) Consideration will be given to applicants that can give evidence of providing efficient, satisfactory and dependable services to other communities and a management background that gives evidence of excellent construction practices, ability to meet deadlines and good planning and marketing practices. (k) Applicants proposing services and technical standards exceeding the minimum required in this chapter will be given added weight in the evaluation if these services and standards are guaranteed and are within the financial capability of the system as shown by a pro forma statement, and are also within the guidelines of acceptability as defined by FCC's description of extra service packages. (1) Each application shall be accompanied by a filing fee in the amount of five thousand dollars ($5,000). This fee shall be used to pay the cost of processing the application, including consultation fees, and the time and materials of City departments required for the processing. Any part of the filing fee that is not required to meet the cost of processing shall be returned pro rata to the applicant following the selection process. Each applicant shall be required, as a condition to the award of a franchise, to post with the City a construction bond, acceptable to the City Attorney, or, in lieu thereof, cash in the full amount of the cost of construction, and such additional corporate guarantees as the City may require as surety for the faithful performance and discharge by it of all of its construction obligations. The bond shall remain in force and in effect until construction is completed and approved by the City. Section 11 Franchise required for operation. No Cable Television System may operate within the City without grant of a franchise pursuant to this chapter and in accordance with applicable law. Ordinance No. 40-06-21 32 Section 12 Provision of supplemental services within the City. A Franchisee will provide, free of charge to the City, the following supplemental services on an annual basis. (a) "Expanded Basic" service to each public and private school, but no "home" school, located in the Franchise Area located within one hundred twenty-five (125) feet of Franchisee's distribution cable. (b) "Expanded Basic" service to each municipal building and community center located in the Franchise Area located within one hundred twenty-five (125) feet of Franchisee's distribution cable. Section 13 Parental control devices. It is the declared public policy of the City that each person's home is a place of refuge and privacy subject to the unique control of the homeowner and the occupants and that these values are especially important as they pertain to the parenting of children and the supervision of children. (a) Each Franchisee shall provide for sale or lease a parental control device, defined below, to each and every Subscriber requesting such device for use as part of their cable subscription and shall provide assistance on the use of all parental control devices supplied by the Franchisee. A parental control device shall mean a converter or other equipment or software or combination thereof, which enables the adult user to electronically block either channels or programs or other services from being shown on such receivers. (b) A Franchisee shall, verbally and upon request in writing, inform potential Subscribers and renewing Subscribers regarding the available option to obtain a parental control device, the rates and terms for such devices and reasonable and clear information with regard to use of such devices. If applicable, the Franchisee shall install a parental control device within fifteen (15) days after receiving an order for such device from a Subscriber. The parental control devices to be made available by the Franchisee shall be reliable equipment, which is available at a reasonable and affordable price to the vast majority of Subscribers to the Cable Television System in the City of Atlantic Beach. Ordinance No. 40-06-21 33 (c) Upon written request by customer, Franchisee shall provide parental control devices and the installation thereof at a nominal cost. (d) As parental control devices are improved and new technology becomes available, the Franchisee shall upgrade the parental control device it makes available to its Subscribers so that such devices shall continue to be affordable and easy to own, rent, use and operate by a parent for the protection of the family and especially children of the family and children which are guests in the home. (e) It is the intent of the City Commission that each Subscriber shall have the option to control by mechanical or electronic means known only to the designee of the Subscriber, the channels and programs received by the television receivers of such Subscribers. Franchisee shall take reasonable steps to make parental control devices available to Subscribers on an affordable and user friendly basis. Section 14 Education and Government Channels. In accordance with Section 611 of the Cable Act (47 U.S.C. Section 531) the Franchisee agrees to provide to Atlantic Beach, Jacksonville Beach and Neptune Beach throughout the term of this Franchise Agreement, for their non-exclusive use, one (1) Access Channel to be shared among them, to be used for non-commercial, local governmental access programming. Atlantic Beach, Jacksonville Beach, and Neptune Beach, individually or collectively, shall give Franchisee ninety (90) days written notice of the intent to initially start the use of the channel. Franchisee shall cover fifty percent (50%) of the cost for the equipment and connectivity and all other associated costs, and the requesting City or Cities will cover the balance. Franchisee and Franchise Authority expressly agree that such capacity is not required to be placed on the most basic tier and may be placed on other tiers, including digital tiers not subscribed to by every customer, subject to Franchisee's discretion. If such capacity is placed on the most basic tier, than Franchisee may broadcast such programming in a digital format so that Subscribers must have the necessary digital box or terminal to view the channel Because blank or under utilized Government channels are not in the public interest, in the event that Atlantic Ordinance No. 40-06-21 34 Beach, Jacksonville Beach and Neptune Beach elect not to fully program its channel capacity, meaning eight (8) hours -a -day, non -repetitive, locally produced programming Monday through Saturday for a minimum of six (6) consecutive weeks, Franchisee may program unused time so long as Atlantic Beach, Jacksonville Beach and Neptune Beach's programming is not preempted. Section 15 Liquidated Damages. (a) Calculation of Damages. Subject to the annual cap pursuant to Subsection (d) of this Section, liquidated damages shall be calculated in the following manner: (1) Excessive Customer Complaints to the City. If in any single month the number of Service Complaints and Billing Complaints from different individuals received by the City exceeds eleven (11) under Normal Operating Conditions, the City Manager may notify Franchisee in writing and request a meeting with Franchisee's system manager within five (5) business days to determine the cause of the high call volume and to establish a plan to cure or commence to cure within thirty (30) days the cause of the high call volume. If following such a meeting the call volume nevertheless exceeds eleven (11) the following month, the City Manager may assess liquidated damages of One Thousand Dollars ($1000). If following such a meeting the call volume continues to exceed eleven (11) calls for any one month, the liquidated damages amount shall reset to One Thousand Dollars ($1,000) for the next violation. Complaints to the City that Franchisee demonstrates are unsubstantiated by any third party, organization, group or the City shall not count toward assessment of the damages set forth herein. No liquidated damages may be assessed if the City has not notified the Franchisee and held the above-mentioned meeting. If it appears that call volume to the City continues to exceed eleven (11) calls per month in consecutive months despite Franchisee's best efforts to remedy any problem, or in the absence of an identifiable cause, Franchisee may request the City for a new call volume threshold in the City's reasonable discretion. The assessment of liquidated damages for excessive customer Ordinance No. 40-06-21 35 complaints shall not preclude Franchisee's obligation to issue customer credits pursuant to this Ordinance or the Franchise Agreement. (2) Failure to comply with customer service requirements. For a failure to comply with the requirements of Section 7 customer service requirements, the City Manager may assess Franchisee liquidated damages in the amount of Five Hundred Dollars ($500) per violation for each day the violation remains uncured unless liquidated damages in another amount is specifically set forth herein. (i) Prior to assessing any liquidated damages, the City Manager shall mail to the Franchisee a written notice by certified or registered mail of the alleged violation and the proposed liquidated damage, specifying the violation at issue and any liquidated damages will commence as of the date of such notice. Notwithstanding, unless a customer service violation cannot be cured, such as a violation of Subscriber privacy, the Franchisee shall have thirty (30) days from the date of receipt of the written notice to cure or commence to cure, as is appropriate depending on the nature of the violation, the alleged violation or file a written response to the notice of violation by the City Manager refuting the alleged violation or explaining why additional time for cure is necessary. In the case of violations of requirements measured on a quarterly or longer period, Franchisee shall have thirty (30) days from the date of receipt of the written notice to commence to cure the alleged violation and Franchisee shall cure the violation in no less than one such period. (ii) Prior to assessing liquidated damages, the City Manager shall consider any justification or mitigating factor advanced in the written response of the Franchisee, including but not limited :to rebates or credits to the Subscriber. The City Manager may, after consideration of the response of the Franchisee, waive or reduce any proposed liquidated damage in the event the violation has not been cured. The City Manager may not assess any liquidated damage if the Franchisee has reasonably responded to the complaint or cured or commenced to cure, as may be appropriate, the violation within a reasonable time frame not to exceed thirty (30) days or for violations of Ordinance No. 40-06-21 36 requirements measured on a quarterly or longer period, commenced to cure within thirty (30) days and cured within one such period, following receipt of written notice from the City, unless some other cure period is approved by the City Manager. (3) Fraud. A practice of intentional misrepresentation, fraud or deceit by a Franchisee in connection with the customer service standards set forth in Section 7 shall be grounds for franchisee revocation and a fine in an amount not to exceed Ten Thousand Dollars ($10,000). (4) Construction Delay. Upon expiration of the construction schedule attached to a Franchise Agreement without construction having been completed, the City shall give a Franchisee written notice of non-compliance. Failure to cure the non- compliance within thirty (30) days from receipt of the written notice shall result in the assessment of liquidated damages in the amount of Two Thousand Dollars ($2,000) per day, starting the 31st day after receipt of notice of noncompliance. However, Franchisee may apply for, and the City will not unreasonably deny, an extension of time to complete construction where the failure to meet the established deadlines is caused by federal, state or municipal action (including delays in permitting or make-ready steps), act of God, riot or other civil disturbance, or by any other cause, contingency or circumstance beyond its control which prevents or hinders the construction of the Cable Television System; provided, however, that difficulties or delays caused by subcontractors do not warrant a waiver of the damages hereunder. (5) Construction and installation violations. For failure to complete construction and installation of the cable system and to commence operations in accordance with the terms of the Franchise Agreement, unless the City Commission, upon the recommendation of the Manager, approves a construction delay because of reasons beyond the control of the Franchisee, Franchisee shall pay liquidated damages in the amount of Two Thousand Dollars ($2,000) per day for each day construction or commencement of operations is late. The City shall give a Franchisee written notice by certified mail of an alleged violation. A Franchisee shall have thirty (30) days to cure or Ordinance No. 40-06-21 37 commence to cure as may be appropriate the alleged violation or to seek a reasonable extension of time in which to complete construction or commence operations, which extension shall not be unreasonably denied. No liquidated damages shall be assessed if the alleged violation is cured or commencement to cure has begun, as may be appropriate within the allotted time. Further, nothing in this paragraph limits the otherwise applicable remedies available to the City for this or any other breach of the Franchise Agreement, including but not limited to revocation and liquidated damages set forth in this Ordinance. (6) Breach not otherwise provided for. Unless otherwise provided in this Ordinance or a Franchise Agreement, substantial breaches of material provisions of a Franchise Agreement or this Chapter, other than the customer service Section or any other Section already providing for fines or liquidated damages, shall subject a Franchisee to liability for liquidated damages not to exceed Five Hundred Dollars ($500) for each violation, calculated on a calendar day basis with each day of a continuing violation constituting a separate violation. In the case of violations based on failure to meet monthly or quarterly requirements, the violation shall be calculated as a continuing violation for each month or quarter of such continuing violation. The City shall provide written notice of any alleged violation describing in detail the basis of the violation. A Franchisee shall have an opportunity to cure the alleged violation within thirty (30) days, contest the existence of a violation, or to request such adaitional time as is reasonably necessary to implement a cure, which request shall not be unreasonably denied. For purposes of this Section, a "material provision" is one that sets forth requirements the violation of which may substantially prevent or impair the delivery of cable services to more than one percent (1%) of the Subscribers in the Franchise Area served or to be served by a Franchisee in a manner or at a quality consistent with the terms of this Ordinance as it existed on the effective date of the Franchise Agreement, and the Franchise Agreement issued pursuant thereto. Ordinance No. 40-06-21 38 (b) Payment and enforcement. Upon expiration of the cure period without a cure or commencement of a cure, as may be appropriate, with consideration of the response of the Franchisee, if any, the Manager may issue an assessment of the liquidated damages in writing delivered by certified mail. The liquidated damage shall be paid within thirty (30) days of written notice of assessment to the Franchisee. This fine shall constitute liquidated damages to the City for the violation and the City may enforce payment of the liquidated damage in any court having jurisdiction, including enforcement against the letter of credit provided by a Franchisee. It is the intent of the City to determine liquidated damages as a reasonable estimate of the damages suffered by the City, whether actual or potential, that are difficult to measure. (c) Appeals. Franchisee may appeal any decision of the Manager directly to the City Commission within thirty (30) days of notice of the assessment to the Franchisee. Within thirty (30) days of exhaustion of all administrative remedies, which includes the appeal to the City Council, Franchisee may appeal to a court of competent jurisdiction. Franchisee's obligation to pay the liquidated damages assessed shall not be stayed pending resolution of the appeal. (d) Annual cap on liquidated damages. (1) Amount of Cap. The Manager is responsible for assessing and collecting liquidated damages in an amount no greater than Fifteen Thousand Dollars ($15,000) annually. In no event shall the total annual liquidated damages imposed by the City exceed Fifteen Thousand Dollars ($15,000). (2) Availability of alternative remedies. To the extent that the City elects to assess liquidated damages as provided in this Ordinance and such liquidated damages have been paid, such damages shall be the City's sole and exclusive remedy. Notwithstanding the foregoing, nothing in this Section is intended to preclude the City from exercising any other right or remedy with respect to recover damages pursuant to any provision of this Ordinance for a breach that exceeds the maximum amount allowable pursuant to this Section. Ordinance No. 40-06-21 39 Section 16 Alternative to Revocation of the Franchise Agreement. In the event of violations of provisions of this Ordinance by the Franchisee that, pursuant to this Ordinance or the Franchise Agreement, would give the City the option to revoke the Franchise Agreement, the City Commission reserves the right as an alternative to revocation of the Franchise Agreement to ask Franchisee to propose rebates to be paid to Subscribers reflecting the seriousness of the violation. Section 17 Citation. This Ordinance No. shall be known and may be cited as the "Atlantic Beach Cable Television Ordinance." Section 18 Amendments. The City Manager be, and hereby is, authorized to execute a non-exclusive renewal franchise agreement between the City of Atlantic Beach and Comcast of Greater Florida/Georgia, Inc., which shall be subject to the Atlantic Beach Cable Television Ordinance. Section 19 Effective Date. This Ordinance shall take effect immediately upon its final passage and adoption. PASSED by the City Commission on first reading this day of , 2006. PASSED by the City Commissioner on second and final reading this day of , 2006. ATTEST: DONNA L. BUSSEY DONALD M. WOLFSON City Clerk Mayor, Presiding Officer Approved as to form and correctness: ALAN C. JENSEN, ESQUIRE City Attorney Ordinance No. 40-06-21 40 AGENDA ITEM 7B&8A MAY 22, 2006 FRANCHISE RENEWAL AGREEMENT FOR CABLE SYSTEM BY AND BETWEEN THE CITY OF ATLANTIC BEACH, FLORIDA AND COMCAST OF GREATER FLORIDA/GEORGIA, INC. TABLE OF CONTENTS Section 1 - Definitions Section 2 — Grant of authority Section 3 - Payments to City Section 4 - Franchise fees Section 5 = Upgrade, extension requirements and construction Section 6 - Annual Revenue Statements Section 7 - Violations of Franchise Agreement, Ordinance Section 8 - Revocation of Franchise Section 9 - Abandonment Section 10- Technical Violation Section 11— Force Majeure Section 12 — Foreclosure and Receivership Section 13 —No Waiver Section 14 — Notices Section 15 — Miscellaneous Provisions Section 16 — Entire Agreement Section 17 — Modification of franchise Section 18 — Renewal of Franchise Section 19 — Conveniently Located Office or Business Agent Section 20 — Local Event Sponsorship Section 21— Reports and public records Section 22 — Transfers, sales and assignments Section 23 — Other Agreements THE FRANCHISE AGREEMENT This Franchise Agreement is made and entered into this day of 2006, by and between the City of Atlantic Beach, Florida, a municipal corporation and government under the laws of the State of Florida, together with its agents, employees and elected or appointed officials (the "City") and Comcast of Greater Florida/Georgia, Inc., a Florida corporation, authorized to do business in Florida, formerly known as MediaOne of Greater Florida, Inc., and whose offices are Located at 6805 Southpoint Parkway, Jacksonville, FL 32216 ("Franchisee"). WITNESSETH: WHEREAS, the City entered into a cable franchise agreement dated February 1, 1993, between- the City and Franchisee, as successor to Continental Cablevision of Jacksonville (the "1993 Franchise Agreement"); and WHEREAS, MediaOne was an indirect subsidiary of AT&T Corporation ("AT&T"), which company entered into an agreement with Comcast Corporation to spin- off the AT&T cable operations and merge the former AT&T cable company with Comcast Corporation. Subsequently, MediaOne became an indirect subsidiary of the newly combined parent company, now named Comcast Corporation. MediaOne's name has been changed to Comcast of Greater Florida/Georgia, Inc.; and WHEREAS, Franchisee and City have agreed that the 1993 Franchise Agreement should be renewed as provided herein, with this document replacing the 1993 Franchise Agreement in its entirety. Now therefore, in consideration of the premises and covenants, the parties agree as follows: Section 1. Definitions. For the purpose of this Franchise Agreement, capitalized terms, phrases, words, and abbreviations that are not defined herein shall have the meanings ascribed to them in the City of Atlantic Beach, Ordinance Code, Chapter (the "Cable Ordinance"), and the Cable Communications Policy Act of 1984, as amended from time to time, 47 U.S.C. §§ 521 et seq. (the "Cable Act"). "Director" means the City's Director of Public Works or Director's designee. "Manager" means the City's Manager, or Manager's designee. "Effective Date" means the date on which the City and Franchisee have executed and delivered this Franchise Agreement. 2 "Franchise Agreement" means this Agreement and any amendments or modifications hereto. "Franchise Area" means the present legal boundaries of the City as of the Effective Date, and shall also include any later additions thereto, by annexation or other legal means. "Gross Revenues" means the revenue derived by the Franchisee from the operation of the cable system in the Franchise Area to provide cable service, calculated in accordance with generally accepted accounting principles, including, but not limited to, monthly basic, premium and pay-per-view service fees, installation fees, equipment rental fees (including but not limited to high definition television fees, digital video recorder fees, installation and service activation fees, and all other service and repair fees), advertising and home shopping revenue. Gross Revenue shall not include refundable deposits, bad debt, investment income, nor any taxes, fees or assessments imposed or assessed by any governmental authority. "Person" means any natural person or any association, firm, partnership, joint venture, corporation, or other legally recognized entity, whether for-profit or not -for profit, but shall not mean the City. "Public Right -of -Way" or "Street" shall mean the surface of, and the space above and below, any public street, highway, freeway, bridge, alley, court, boulevard, sidewalk, lane, public way, drive, circle or other public right-of-way including, but not limited to, public utility easements, dedicated utility strips, or rights-of-way dedicated for compatible uses and any temporary or permanent fixtures or improvements located thereon now or hereafter held by the City in the Franchise Area, which shall entitle the City and the Franchisee to the use thereof for the purpose of installing, operating, repairing, and maintaining the Cable System. "Public Right -of -Way" shall also mean any easement now or hereafter held by the City within the Franchise Area for the purpose of public travel, or for utility or public service use dedicated for compatible uses, and shall include other easements or rights-of-way as shall, within their proper use and meaning, entitle the City and the Franchisee to the use thereof for the purposes of installing, operating, and maintaining the Franchisee's Cable System over poles, wires, cables, conductors, ducts, conduits, vaults, manholes, amplifiers, appliances, attachments, and other property as may be ordinarily necessary and pertinent to the Cable System. Notwithstanding the foregoing, "Public Right -of -Way" shall be limited to such locations where Franchisee may use, install, operate, repair, and maintain the Cable System without the violation of any law, ordinance of general applicability, easement, or right-of- way. Section 2. Grant of Authority. 2.1. The City hereby grants to the Franchisee pursuant to and in accordance with the Cable Act, Cable Ordinance and this Franchise Agreement, a nonexclusive Franchise, which authorizes the Franchisee to construct and operate a Cable System 3 within the Franchise Area, and for that purpose to install underground cable television lines, cables and wires and to construct, repair, replace, reconstruct, maintain, or retain, under any Public Right -of -Way and all extensions thereof and additions thereto, such wires, cables, conductors, ducts, conduits, vaults, manholes, and for the purpose to construct, repair, replace, reconstruct, maintain, or retain above ground any pedestals, amplifiers, appliances, and other related property or equipment as may benecessary or appurtenant to the Cable System as technically required, subject to approval by the City. Nothing in this Franchise shall be construed to prohibit the Franchisee from offering any service over its Cable System that is not prohibited by federal, state or local law. 2.2. Term. The term of this Franchise Agreement shall commence on the Effective Date and shall continue for a period of ten (10) years, having an expiration date of , 2016, unless extended as described below or terminated in accordance with the terms of this Franchise Agreement and the Cable Ordinance. 2.3. Renewal. Any renewal of this Franchise Agreement shall be governed by and comply with the provisions of Section 626 of the Cable Act, as amended. 2.4. Cable Ordinance. This Franchise Agreement is issued pursuant to, and shall be subject to the terms and conditions of the Cable Ordinance. Unless the Franchise contains different terms and conditions, and in such case the Franchise shall control. Franchisee shall comply with each of the provisions of the Cable Ordinance, only as it exists on the Effective Date of this Franchise Agreement, with the exception of the customer service standards in Section 7(c) of the Cable Ordinance, for which the City reserves its rights to amend to the extent so permitted by federal law, and Franchisee shall be bound by such provisions as amended. In the event of a direct conflict or direct inconsistency as between this Franchise Agreement and the Cable Ordinance, the Franchise Agreement shall control. Nothing in this Franchise Agreement shall (A) abrogate the right of the City to perform any public works or public improvements of any description, (B) be construed as a waiver of any codes or ordinances of general applicability promulgated or to be promulgated by the City, or (C) be construed as a waiver or release of the rights of the City in and to the Public Right -of -Ways. Section 3. Payments to City. Franchisee shall make all Franchise Fee payments to the City within forty-five (45) days of the required date, with interest accruing at eight percent (8%) per annum on past -due amounts, unless otherwise expressly provided herein. Section 4. Franchise Fees. The Florida Simplified Communications Services Tax Act preempts Section 8 of the Cable Ordinance which calls for certain Franchise Fees to be paid. If, however, the Florida Communications Services Tax Law is amended or repealed so that a local franchising authority is allowed to impose and collect franchise fees, then this Section 4 of the Franchise Agreement will become effective as outlined in the Ordinance. 4.1. Amount. Franchisee shall pay the City a franchise fee of five percent (5%) of Franchisee's Gross Revenues derived from the operation of the Cable System. 4 Franchise fee payments shall be paid on a quarterly basis (January 1, April 1, July 1, and October 1) no later than forty-five (45) days after the end of each quarter. Each payment shall be accompanied by a report to the Finance Officer showing the basis for the payment computation. 4.2 Increase. The City shall have the option of increasing the franchise fee to the maximum amount permitted by law following a public hearing and vote by the City Commission, which change shall take effect no sooner than forty-five (45) days following such vote and written notice to Franchisee. 4.3 Inspection of Records. Upon reasonable prior written notice, during normal business hours, at Franchisee's principal Duval County business office, the City shall have the right to inspect the Franchisee's financial records used to calculate the franchise fees; provided, however, that any such inspection shall take place within two (2) years from the date the City receives such payment, after which period any such payment shall be considered final. 4.4 Report of Findings. Upon the completion of any such inspection by the City, the City shall provide to the Franchisee a final report setting forth the City's findings, including any and all substantiating documentation. The Franchisee shall have thirty (30) business days from the receipt of the report to provide the City with a written response, including any substantiating documentation. Any "Finally Settled Amount(s)" due to the City as a result of such inspection shall be paid to the City by the Franchisee within thirty (30) business days from receipt of written notice of the acceptance of such Finally Settled Amount from the City. For purposes of this Section 4 the term "Finally Settled Amount(s)" shall mean the mutually agreed upon underpayment, if any, to the City by the Franchisee as a result of any such inspection. Section 5. Upgrade, Extension Requirements and Construction. 5.1. Initial Service Area. Notwithstanding the provisions of Cable Ordinance Section 6(a), "Initial Service Area" means that area of the corporate City limits defined by the description and the map set forth on to this Franchise Agreement. 5.2 Extension of Service. The Franchisee shall extend its plant and make service available to any new areas of the City having density of seven (7) or more dwelling units per linear street mile as measured from Franchisee's distribution plant within sixty (60) days after such areas are built out. Given the unique character of the City's geography, Franchisee may be relieved from the density and extension requirements pursuant to this section should barriers, such as ecological or environmental areas of importance or the non-existence of public Rights -of -Ways contemplated by this Franchise and the Cable Ordinance, significantly frustrate the performance of such extensions. 53 Construction Bond/Liability for Subcontractors. Any construction bonds shall be provided in accordance with the requirements of all applicable laws, unless otherwise agreed to by both parties. Franchisee shall be liable for all acts and omissions 5 of its agents, employees or subcontractors, and shall indemnify and hold harmless the City from and against any liabilities (including attorneys' fees, costs and such fees and costs incurred by an appeal) arising out of any such acts or omissions. Franchisee shall comply, and shall require all subcontractors and agents to comply, with any applicable City codes or ordinances on construction bonds. 5.4 Construction Reports. From the date of commencement of any construction through completion, the Franchisee shall furnish to the Director construction progress reports, upon request, at one-month intervals. The reports shall indicate, in reasonable detail, the progress of construction and shall be accompanied by a map depicting the area of construction completed since the prior report as compared with the construction that remains to be completed as set forth above. All construction projects shall be subject to the terms and conditions of the Cable Ordinance. 5.5 No Discrimination. Neither the Franchisee nor any of its employees, agents, representatives, contractors, subcontractors, or consultants, nor any other Person, shall discriminate or permit discrimination between or among any Persons in the availability of Cable Services provided in connection with the Cable System in the Franchise Area. It shall be the right of all Persons to receive all available services provided on the Cable System so long as such Person's financial or other obligations to the Franchisee are satisfied. 5.6 New Developments. The City will use reasonable efforts to provide the Franchisee with written notice of the issuance of building or development permits for planned developments within the Franchise Area requiring undergrounding of cable facilities upon application by Franchisee. The City will request the developer give the Franchisee access to open trenches for deployment of cable facilities and at least ten (10) business days notice of the date of availability of open trenches. The Franchisee shall be responsible for engineering and deployment of labor applicable to its cable facilities. 5.7 Facility Relocation. In the event of any City road widening or other projects making it appropriate in the City's reasonable discretion for Franchisee to relocate its equipment or infrastructure, Franchisee shall do so on thirty (30) days written notice by the City. Franchisee shall apply for all necessary permits within seven (7) business days of the City's written notice. In the event the Franchisee's equipment or infrastructure endangers or interferes with any equipment or project of the City, Franchisee will immediately move its equipment and infrastructure at its own expense. 5.8 Supplemental Services. The parties agree that the following provisions are in addition to all of the other requirements set forth in the Cable Ordinance. Franchisee agrees that within ninety (90) days of the Effective Date of this Franchise Agreement it will provide the Manager with an audit of all supplemental services listed below that are currently being provided by Franchisee in municipal or other City -owned public and community center buildings and public and private schools in the Franchise Area. In addition, during the term of this Franchise Agreement, Franchisee agrees that it will not reduce those supplemental services currently being provided by it to municipal buildings, community centers and public and private schools. 6 5.9 Service to School Buildings. The Franchisee shall provide free "Basic" and "Expanded Basic" tier Cable Service, and free installation of one (1) outlet, to each K-12 public and private school (but not including any "home school") located, now or later, in the Franchise Area within one hundred twenty five (125) feet of Franchisee's distribution plant. 5.10 Service to Government and Community Facilities. The Franchisee shall provide free "Basic" and "Expanded Basic" tier Cable Service for four (4) outlets and one (1) free installation to each municipal building and community center located in the Franchise Area within one hundred twenty five (125) feet of Franchisee's distribution plant. Section 6. Annual Revenue Statements. Notwithstanding the preemption by State law of Section 8 of the Cable Ordinance, Franchisee nevertheless agrees to provide the City, upon request, with annual revenue statements, which shall be submitted within forty-five (45) days after completion of the Franchisee's year-end close. The Franchisee's senior financial manager responsible for financial reporting shall certify the accuracy of the revenue statements and shall be conversant with the details of such statements. Section 7, Violations of Franchise Agreement, Ordinance. 7.1 Notice of Violation or Default. Unless otherwise provided herein, in the event the City believes that the Franchisee has not complied with the terms of the Franchise Agreement or the Cable Ordinance, it shall notify the Franchisee in writing by certified mail with specific details regarding the exact nature of the alleged noncompliance or default. 7.2 Franchisee's Right to Cure or Respond. Unless otherwise provided herein, Franchisee's right to cure or respond shall be consistent with and in accordance with the notice and cure provisions of Section 15, and subsections thereof, of the Ordinance Code . In the event that, by nature of the default, such default cannot be cured in the time prescribed in the Ordinance, Franchisee shall initiate reasonable steps to remedy the default and notify the City of the steps being. taken and the projected date that they will be completed, in which case, if acceptable to the City, which acceptance shall not unreasonably be withheld, the City shall grant an extension of the cure period. 7.3 Appeal. Unless otherwise provided herein, Franchisee may appeal any default decision of the Manager directly to the City Council within thirty (30) days of notice of the decision. The City shall schedule a public hearing to investigate the alleged default. The City shall notify the Franchisee in writing of the time and place of such meeting and provide the Franchisee with a reasonable opportunity to be heard. Subject to applicable federal and state law and appeal, if any, by Franchisee to a court of competent jurisdiction, in the event the City Council, after such meeting, determines that the Franchisee is in default of any provision of the Franchise, the City may: 7 (i). seek specific performance of any provision, which reasonably lends itself to such remedy, and/or seek damages or seek other equitable relief; or (ii). in the case of a substantial default of a material provision of the Franchise, declare the Franchise Agreement to be revoked in accordance with Section 8. Section 8. Revocation of Franchise. 8.1 In addition to all of the rights and powers reserved by or pertaining to the City, the City reserves as an additional and as a separate and distinct power the right to terminate and/or revoke the franchise and all rights and privileges of the Franchisee hereunder in any of the following events or for any of the following reasons, in the manner allowed by federal law, with notice, opportunity to cure, and subject to all due process rights including a public hearing: (i) - Should the Franchisee, by act or omission or breach of any material term or condition, exhibit a practice of intentional misrepresentation, fraud or deceit by a Franchisee in connection with such reports in one (1) calendar year. (ii) Should the Franchisee become insolvent, unable or unwilling to pay its debts or be adjudged bankrupt or should all or a substantial part of the Franchisee's facilities be sold under an instrument to secure a debt. In such an instance, the value of the Franchise can be calculated only on the value of Franchisee's hard assets (excluding the cost and/or value of the installation of the hard assets) and not on the value of the subscriber base. (iii) Should the Cable System in the Franchise Area or any substantial portion thereof within the Franchise Area fail to meet in total the minimum FCC signal standards for two (2) such tests in any, three (3) year period, or if any one (1) such individual failure is not corrected within ninety (90) days. With respect to the foregoing, every six (6) months, Franchisee shall conduct a test to determine whether the Cable System in the Franchise Area or any substantial portion thereof within the Franchise Area meets the minimum FCC signal standards. Within five (5) business days from conducting such test, Franchisee shall submit the results of each test to the City. (iv) Should the Cable System in the Franchise Area or any substantial portion thereof within the Franchise Area experience a substantial pattern of non- compliance with customer service standards or requirements. 8.2 The City shall give written notice to the Franchisee of its intent to revoke the Franchise on the basis of a pattern of noncompliance by the Franchisee, including one (1) or more instances of substantial noncompliance with a material provision of this Franchise Agreement. The notice shall set forth with specificity the exact nature of the noncompliance. The Franchisee shall have sixty (60) days from the receipt of such notice to object in writing and to state its reasons for such objection. In the event the City has not received a satisfactory response from the Franchisee, it may then seek termination of this Franchise Agreement at a public hearing. The City shall cause to be served upon the 8 Franchisee, at least ten (10) days prior to such public hearing, a written notice specifying the time and place of such hearing and stating its intent to request termination of the Franchise. 8.3 At the designated hearing, the City shall give the Franchisee an opportunity to state its position on the matter, present evidence and question witnesses, after which it shall determine whether or not the Franchise shall be revoked. The public hearing shall be on the record and a written transcript, at the cost of Franchisee shall be made available to the Franchisee within ten (10) business days. The decision of the City shall be in writing and shall be delivered to the Franchisee in the manner set forth in Section 14 herein. The Franchisee may appeal such determination to an appropriate court, which shall have the power to review the decision of the City. Such appeal to the appropriate court must be taken within sixty (60) days of the issuance of the determination of the City. 8.4 In the event of a revocation or lawful termination or expiration of the Franchise Agreement in accordance with federal law, the City shall issue a request for proposals for a new franchisee. Franchisee's Cable System may otherwise be sold to the City or subsequent Franchisee for fair market value; provided, however, no value shall be attributed to the franchise itself, and the fair market value shall be for the cost of hard assets less the cost and/or fair market value for the installation of the hard assets as set forth in the "Cable Act" specifically Title VI of the Communications Act of 1934, as amended from time to time, 47 U.S.C. Sections 547(a)(1) et seq. 8.5 The City may, at its sole discretion, take any lawful action that it deems appropriate to enforce its rights under the Franchise in lieu of revocation. Section. 9. Abandonment. In the event of abandonment of the Cable System or any portion of the Cable System, Franchisee shall remove the Cable System and restore the right of way, private property or easement to its previous condition. Franchisee may petition the City for a waiver of this obligation if the removal of the Cable System or portion of the Cable System would create more damage or disruption to the right of way, private property or easement and City may grant such waiver in its reasonable discretion. Section 10. Technical Violation. The City agrees that it is not its intention to subject the Franchisee to penalties, fines, forfeitures or revocation of the Franchise for so- called "technical" breach(es) or violation(s) of the Franchise, which shall include, but not be limited, to the following: in instances or for matters where a violation or a breach of the Franchise by the Franchisee was good faith error that resulted in no or minimal negative impact on the Customers within the Franchise Area; or where there existed circumstances reasonably beyond the control of the Franchisee and which precipitated a violation by the Franchisee of the Franchise, or 9 which were deemed to have prevented the Franchisee from complying with a term or condition of the Franchise. Section 11. Force Majeure. The. Franchisee shall not be held in default under, or in noncompliance with, the provisions of this Franchise Agreement, nor suffer any enforcement or penalty relating to noncompliance or default (including termination, cancellation or revocation of the Franchise), where such noncompliance or alleged defaults occurred or were caused by the following events if not reasonably within the control of Franchisee: strike, riot, war, earthquake, flood, tidal wave, unusually severe rain or snow storm, hurricane, tornado or other catastrophic act of nature, labor disputes, failure of utility service necessary to operate the Cable System, governmental, administrative or judicial order or regulation or other event that is reasonably beyond the Franchisee's ability to anticipate or control. This provision also covers work delays caused by waiting for utility providers to service or monitor their own utility poles on -which the -Franchisee's cable and/or equipment is attached, as well as unavailability of materials andior qualified labor to perform the work necessary, but only to such extent such work delays are caused by one of the force majeure events listed in this section This provision does not cover situations, such as Normal Operating Conditions, where Franchise is expected to have enough materials and labor on hand. Section 12. Foreclosure; Receivership. Upon receiving notice of an intended foreclosure or judicial sale, or intended appointment of a receiver or trustee whether in receivership, reorganization, bankruptcy or other action or proceeding or intended proceeding, concerning operations in the Franchise Area, the Franchisee shall immediately notify the City of this fact, and the notification shall be treated as a material breach and default, with the opportunity being given to cure such default within thirty (30) days of the notice to Franchisee from the third party. If Franchisee fails to cure such default within thirty (30) days of the notice to Franchisee from the third party, Franchisee's Cable System may otherwise be sold to the City or subsequent Franchisee for fair market value as determined in Section 8(d) hereof. Section 13. No Waiver. Failure or delay by City in enforcing any provision of this Franchise Agreement shall not be a waiver, forfeiture or estoppel or otherwise restrict or prevent the City from enforcing any such provision related thereto. There can be no waiver, forfeiture or estoppel of any provision in the absence of an amendment to this Agreement executed with the same formalities as done herein. Section 14. Notices. All notices to the City shall be addressed to: City Manager 800 Seminole Road Atlantic Beach, Florida 32233 All notices to Franchisee shall be to: 10 Area Vice President 6805 Southpoint Parkway Jacksonville, Fl. 32216 Facsimile: (904) 374-7622 With a copy to: Division Vice President of Government Affairs Comcast Cable Communications, Inc. 360 Interstate North Parkway, Suite 600 Atlanta, GA 30339 Facsimile: (678) 385-5101 Sr. Vice President — Law Department Comcast Cable Communications, Inc. 1500 Market Street Philadelphia, PA 19102 Facsimile: 215-640-4050 Section 15. Miscellaneous Provisions. 15.1 It shall be the Franchisee's responsibility to obtain at its cost any permits, licenses or any other authorizations required under the Charter or Ordinance Code or any other law of general applicability and if contrary to the franchise agreement, mutually agreed upon in writing with Franchisee. 15.2 All approvals, licenses or permits required to construct the system shall be timely applied for by the Franchisee in order to ensure compliance with the Agreement. 15.3 It shall be the . Franchisee's responsibility to obtain at its expense permission to use any facilities or property belonging to the City or other entities. Section 16. Entire Agreement. This Franchise Agreement and the Cable Ordinance as written and in effect on , embodies the entire understanding and agreement of the City and the Franchisee with respect to the subject matter hereof and supersedes all prior understandings, agreements and communications, whether written or oral. All ordinances or parts of ordinances, including, Ordinance Code , that are in conflict with the provisions of this Franchise Agreement are superseded by this Franchise Agreement. This Franchise Agreement may not be amended or altered, whether by resolution, ordinance, or other means, without the written consent of the City and Franchisee. Section 17. Modification of Franchise. Any modification of this Franchise Agreement shall be in accordance with the provision of Section 625 of the Cable Act (47 U.S.C. §545), unless otherwise agreed in writing as between the City and Franchisee. 11 Section 18. Renewal of Franchise. Franchise Agreement renewals shall be done in accordance with the informal or formal requirements of §626 of the Cable Act (47 U.S.C. §546). Section 19. Conveniently Located Office or Business Agent. As long as it continues to operate the system or any portion thereof in the Franchise Area, the Franchisee shall maintain in either Atlantic Beach, Jacksonville Beach or Neptune Beach, a conveniently located office or local business agent. The City shall immediately be notified of the location of the office or any change thereof. Section 20. Local Event Sponsorship. The Franchisee shall provide to City a one-time payment in the sum of Twenty Two Thousand Eight Hundred and Thirty Eight Dollars ($22,838) for the purpose of the sponsorship of community events within ninety (90) days of the effective date of this agreement. In turn, Comcast shall receive recognition of its sponsorship from the City through signage, advertising, announcement, posters or other reasonable means. Section 21. Reports and Public Records. 21.1 Availability of Books of Franchisee. (i) The Franchisee shall keep complete and accurate records as required by the FCC's rules as 47 CFR §76.1700 et seq. and 47 CFR §76.1800 et seq. (ii) The City or its duly authorized representative shall have access to all of the records as required in section one (1) herein on request, or at a minimum, by written request on three business days notice. The Franchisee shall provide access during the hours of 9:00 a.m. to 5:00 p.m. from Monday through Friday. 21.2 Concomitant with a filing or submission by the Franchisee of an annual report or any other petition or communication having direct bearing on the Cable System operated under this Agreement in the Franchise Area, with any governmental body, including all reports required to be filed with the FCC, it shall file, upon request, a copy of the document in written or electronic format with the City Manager. Section 22. Transfers, Sales and Assignments. 22.1 No transfer, sale, change of control, merger or assignment of any interest in a Franchise Agreement or Franchisee shall occur without prior approval of the City. Such approval shall not be unreasonably withheld. For purposes of this entire section "control" of a Franchisee or applicant means the possession of the ability to direct or cause the direction of the management or policies of a Franchisee or applicant, or the operation of the Franchisee's system(s), whether through operational control in whatever manner exercised or ownership of voting securities, by contract or understanding, or in 12 any other manner Notwithstanding the foregoing, prior approval of the City shall not be required for a wholly intra -corporate transfer. A wholly intra -corporate transfer is defined as a transfer between two direct or indirect wholly owned subsidiaries of the same parent corporation involving no change of control as defined in this section. 22.2 An application for a transfer, sale or assignment of any interest of a Franchise Agreement shall meet the requirements of subsection 22.6 hereof, and provide complete information on the proposed transaction, including details on the legal, financial, and technical qualifications of the transferee, and on the potential impact of the transfer on Subscriber rates and service. The application shall provide, at a minimum, the information required in subsection 22.6 hereof and such other information as is specified in the Ordinance and this Franchise Agreement. 22.3 In making a determination on whether to grant an application for a transfer of a Franchise Agreement, the City Commission shall consider the legal, financial, and technical qualifications of the transferee to operate the system; whether the incumbent cable operator is in substantial compliance with the material terms of its Franchise Agreement and the Ordinance and, if not, the proposed commitment of the Transferee to cure such noncompliance; and whether operation by the Transferee would adversely affect cable services to subscribers, or otherwise be contrary to the public interest. 22.4 No application for a transfer of a Franchise Agreement shall be granted unless the Transferee agrees in writing to abide by and accept all terms of the Ordinance, as it existed on the effective date of this Franchise Agreement, and the Franchise Agreement, and to assume all obligations and liabilities of the previous Franchisee, regardless of whether such was disclosed to the transferee by the transferor, under the Ordinance, as it existed on the effective date of the Franchise Agreement any other subsequent agreements with the City. The City shall certify to Franchisee, upon request, all issues of Franchisee's performance that are known and pending. 22.5 Subject to applicable law, approval by the City of a transfer of a Franchise Agreement does not constitute a waiver or release of any of the rights of the City under the Ordinance or the Franchise Agreement, whether arising before or after the date of the transfer 22.6 Applications for Transfer of Franchise Agreement. (i) A written application shall be filed with the City for the transfer or change of control of a Franchise Agreement. Unless otherwise prohibited by law, a Transferee shall pay up to Five Thousand Dollars ($5,000) of the City's actual costs to process the application. (ii) To be acceptable for filing, a signed original of the application shall be submitted together with twelve (12) copies, and contain all required information. All applications shall include the names and addresses of the persons authorized to act on behalf of the applicant with respect to the application. 13 (iii) All applications accepted for filing shall be made available by the City for public inspection. (iv) An application for the transfer of a Franchise Agreement shall contain, at minimum, the following information: (a) Name and address of the applicant and identification of the ownership and control of the applicant, including: the names and addresses of all persons with five percent (5%) or more ownership interest in the applicant, including the names and addresses of parents . or subsidiaries holding such ownership interests directly or indirectly; the persons who control the applicant; all officers and directors of the applicant; and any other Cable System. For purposes of this entire section, "person" means any individual, corporation, partnership, association, joint venture, organisation or legal entity of any kind, and any lawful trustee, successor, assignee, transferee or personal representative thereof. (b) A demonstration of the technical, legal and financial ability of the applicant to construct and/or operate the proposed Cable System; (c) A statement prepared by a certified public accountant or duly authorized financial officer of the Applicant regarding the financial ability of the applicant to comply with the terms and conditions of the. Ordinance and Franchise Agreement, and if applicable to complete the construction and/or upgrade and maintain operation of the Cable System; (d) A description of the prior experience of the applicant in Cable System ownership, construction and operation, and identification of communities in which the applicant or any person having a controlling interest in the applicant or having more than a ten percent (10%) ownership interest in the applicant has, or has had, a cable Franchise Agreement or Franchise Agreement or any interest therein; (e) For informational purposes, the proposed rate structure, including projected charges for each Service Tier, installation, converters, and other equipment or services, and the ownership interest of the applicant in any proposed program services to be delivered over the Cable System; (f) A description of cable services offered by the applicant or its parent, affiliate or subsidiary, and applicant's plan with respect to the availability of services to subscribers in the Franchise Area; (g) Where the Transferee is not a publicly traded company, pro forma financial projections for the first three (3) years of the Franchise Agreement term, including a statement of projected income, and a schedule of planned capital additions, with all significant assumptions explained in notes or supporting schedules; 14 (h) If an applicant proposes to provide cable service to an area already served by an existing cable Franchisee, the identification of the area where the overbuild would occur, the potential subscriber density in the area which would encompass the overbuild, and the ability of the streets to accommodate an additional system; (i) Any other information as may be reasonably necessary to demonstrate compliance with the requirements of this Franchise provided that any such further requests yshall not toll the time limit for the City to approve or deny the application, in accordance with federal law; and (j) An affidavit or declaration of the applicant or authorized officer certifying the truth and accuracy of the information in the application, acknowledging the enforceability of application commitments, and certifying that to the best of the person's knowledge the proposal meets all federal and state law requirements. _ Section 23. Other Agreements. If, at any time from and after the execution date of this Franchise Agreement, Franchisee enters into a cable Franchise agreement with either the City of Neptune Beach or the City of Jacksonville Beach to provide services comparable to those provided under this Franchise Agreement, and if- such agreement has terms that are in any respect more favorable to such city than the terms established in this Franchise Agreement, Franchisee agrees that Franchisee shall notify the City and, at the City's option, the terms of this Franchise Agreement shall be amended to provide for terms equivalent to those specified in the agreement with the other city. This provision would also apply to the terms of any Cable Ordinance incorporated by reference in any such Franchise Agreement entered into with the City of Jacksonville Beach or the City of Neptune Beach. 15 IN WITNESS WHEREOF, the parties have executed this Amended and Restated Franchise Agreement as of the date first written above. ATTEST: COMCAST OF GREATER FLORIDA/ GEORGIA, INC. By: Its: ATTEST: CITY OF ATLANTIC BEACH Reviewed and Approved: City Manager Approved: City Attorney Franchise Agreement Atlantic Beach 01/27/06 By: City Manager 16 AGENDA PEM 8B MAY 22, 2006 CITY OF ATLANTIC BEACH CITY COMMISSION STAFF REPORT AGENDA ITEM: Proposed revision to Chapter 24, Land Development Regulations, Article IV, Subdivision Regulations, Section 24-189 in accordance with recommendation of the Community Development Board. SUBMITTED BY: Sonya Doerr, AICP )Q Community Development Director DATE: April 21, 2006 BACKGROUND: The Community Development Board was requested to reconsider their previous recommendation related a revision to the Subdivision regulations, which has been pending since November. This proposed revision would remove the administrative approval for certain types of lot divisions, and establish a procedure to consider and act upon such requests at a public hearing. The Community Development Board has recommended that this provision of the Subdivision regulations be amended so that such two -lot divisions go to public hearing before the Community Development Board for consideration and action, and that a process for appeal to the City Commission of a final decision made by the Community Development Board be provided. The attached proposed draft ordinance incorporates those recommendations. BUDGET: No budget issues. RECOMMENDATION: Direction to staff to schedule and notice for first/second reading of Ordinance 90-06-192, amending Section 24-189 of Land Development Regulations, Article IV, Subdivision Regulations, in accordance with recommendation of Community Development Board. ATTACHMENTS: Draft minutes of the April 18, 2006 Community Development Board meeting, underlined draft indicating revisions and draft proposed Ordinance. REVIEWED BY CITY MANAGER: May 08, 2006 regular meeting AGENDA ITEM 8B MAY 22, 2006 DRAFT Sec. 24-189. Exemptions from the requirement for approval and recording of a Final Subdivision Plat or Replat. (a) Building Permits may be issued following divisions of Land without the need for approval of a Final Subdivision Plat or a Replat only in accordance with each of following provisions (1) through (8). (1) Approval at a public hearing by the Community Development Board of a Certified Survey depicting the proposed new lots and upon finding that each of the following requirements and conditions are demonstrated. The Certified Survey shall also depict the location of all Private Protected Trees, as defined by Chapter 23 of this Code of Ordinances. (2) The Certified Survey shall demonstrate that each proposed new lot contains sufficient area to meet all minimum Yard. Requirements and that removal of no Private Protected Trees, as defined by Chapter 23-16, shall be required solely for the purpose of creating sufficient buildable area on the new lots. The Survey shall also identify the general intended building footprint location in relation to existing Private Protected Trees. (3) The division results in no more than two (2) contiguous Lots or Parcels, and no division of any portion of the lands subject to such a request under this Section shall have been divided during the preceding twenty-four (24) months. (4) The resultant new Lots, comply with the Minimum Lot Area, Width and Depth, and access requirements of the applicable Zoning District, the Comprehensive Plan and all other applicable requirements of these Land Development Regulations, as may be amended. (5) The resultant new lots are generally consistent in size, width, depth and shape with surrounding development and established platting patterns. (6) The division and the resultant new Lots shall not create any Nonconforming Structures or any other Nonconforming characteristic. (7) Such Certified Survey shall be submitted to and approved the Community Development Board prior to recording of a deed for transfer of ownership of Lands, and shall be recorded as an addendum to the deed(s). It shall be the responsibility of the property owner(s) to provide evidence • of the approved Certified Survey along with any application for Building Permits. (8) Notice of such requests to divide lots under the terms of this Section shall be provided as set forth in Section 24-52 (c) of this Chapter. (b) Appeals. An Applicant may appeal a decision of the Community Development Board made pursuant to this Section to the City Commission. Such appeal shall be filed in writing with the City Clerk within thirty (30) days after rendition of the final order of the Community Development Board, and shall be heard at public hearing before the City Commission. (bc)Townhouses and residential Dwellings held in Fee -Simple Ownership. Townhouses and Two-family Dwellings, when divided in ownership, shall not constitute a division of Lands requiring approval of a Final Subdivision Plat or a Replat, provided that such Dwellings are otherwise in compliance with these Land Development Regulations and the Comprehensive Plan. DRAFT Minutes of April 18, 2006, Connnunity Development Board Meeting 5d. Reconsideration of Community Development Board's recommendation related to proposed revisions to Section 24-189 of the Land Development Regulations related to the approval process for two -lot divisions of property. (At the request of Mayor Wolfson.) Sonya Doerr, Community Development Director, mentioned that she had distributed to the Board some correspondence from Mayor Wolfson received this morning, addressing this item. She provided the background on this issue and explained the Replat Exemption ordinance. She advised that the Mayor's intent was to have the CD Board and the Commission process a replat exemption request similar to that used for a Use -by -Exception, where such requests would come before the CD Board; the CD Board would make a recommendation to the Commission, and the City Commission would take final action on the request. AGENDA ITEM 8B MAY 22, 2006 Carolyn Woods motioned to recommend to the Commission that lot divisions of any type come to the Community Development Board for a recommendation to the Commission. Chairman Jacobson advised that he believed that a new motion had to be made by a Board member on the prevailing side of their original motion on the issue. Ms. Woods acknowledged that she was not on the prevailing side of this matter when previously considered by the CD Board. Ms. Doerr continued to explain the current status of the Code regarding lot divisions and indicated that there would not be a large number of these lot division requests as there are few lots large enough to meet the size requirements for such lot divisions. The Board discussed the information presented in the memo from the Mayor and the Commission meeting minutes. Chairman Jacobson believed that the issue was referred back to the Board for a decision on which type of review process should be applied to these two -lot division requests. Ms. Doerr explained the procedures through which lot divisions creating more than two lots are currently reviewed by the CD Board, either through the platting or re -platting process, and advised that the CD Board now and has always been required to make a recommendation as part of these procedures. The Board discussed the possible effects and results of the various processes. Resident Kevin Byrnes, 391 Eighth Street, made comments addressing the minutes from a meeting on March 8, 2004. Chairman Jacobson motioned to recommend that requests for two -lot divisions come before the Community Development Board for final action, subject to the applicant's right to appeal the CD Board's decision to the City Commission. Mr. Burkhart seconded the motion and it passed by a 4:2 vote, with Chris Lambertson and Dave Maclnnes dissenting. Chairrnan Jacobson brought up the Winter and Company consultant and suggested that the board recruit or organize a group of architects and builders to look at what is recommended and advise the board on the Community Character project. The Board discussed and agreed with this idea. The meeting adjourned at 9:15 pm. Signed Attest 4 AGENDA ITEM 8B MAY 22, 2006 ORDINANCE NUMBER 90-06-192 AN ORDINANCE OF THE CITY OF ATLANTIC BEACH, COUNTY OF DUVAL, STATE OF FLORIDA, AMENDING ARTICLE IV, SUBDIVISION REGULATIONS, DIVISION 1, OF CHAPTER 24, THE ZONING, SUBDIVISION AND LAND DEVELOPMENT REGULATIONS AS INITIALLY ADOPTED BY ORDINANCE NUMBER 90-01-172, SPECIFICALLY AMENDING SECTION 24-189, PROVIDING FOR RECORDATION AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the appropriate and lawful division of Land is a vital step in the progress of the community's development, it is the intent of the City to establish reasonable and equitable standards and procedures for the division of land that will encourage stable communities and healthy living environments, and which preserve the natural beauty of the City of Atlantic, Beach. NOW THEREFORE, BE IT ENACTED BY THE CITY COMMISSION ON BEHALF OF THE PEOPLE OF THE CITY OF ATLANTIC BEACH, FLORIDA: SECTION 1. Municipal Code, Chapter 24, the Zoning, Subdivision and Land Development Regulations, Article IV, Division 1, Section 24-189, is hereby amended and upon enactment shall read as follows. Sec. 24-189. Exemptions from the requirement for approval and recording of a Final Subdivision Plat or Replat. (a) Building Permits may be issued following divisions of Land without the need for approval of a Final Subdivision Plat. or a Replat only in accordance with each of following provisions (1) through (8). (1) Approval at a public hearing by the Community Development Board of a Certified Survey depicting the proposed new lots and upon finding that each of the following requirements and conditions are demonstrated. The Certified Survey shall also depict the location of all Private Protected Trees, as defined by Chapter 23 of this Code of Ordinances. (2) The Certified Survey shall demonstrate that each proposed new lot contains sufficient area to meet all minimum Yard Requirements and that removal of no Private Protected Trees, as defined by Chapter 23-16, shall be required solely for the purpose of creating sufficient buildable area on the new lots. The Survey shall also identify the general intended building footprint location in relation to existing Private Protected Trees. (3) The division results in no more than two (2) contiguous Lots or Parcels, and no division of any portion of the lands subject to such a request under this Section shall have been divided during the preceding twenty-four (24) months. Page 1 of 2 Ordinance Number 90-06-192 AGENDA ITEM 8B MAY 22, 2006 (4) The resultant new Lots, comply with the Minimum Lot Area, Width and Depth, and access requirements of the applicable Zoning District, the Comprehensive Plan and all other applicable requirements of these Land Development Regulations, as may be amended. (5) The resultant new lots are generally consistent in size, width, depth and shape with surrounding development and established platting patterns. (6) The division and the resultant new Lots shall not create any Nonconforming Structures or any other Nonconforming characteristic. (7) Such Certified Survey shall be submitted to and approved the Community Development Board prior to recording of a deed for transfer of ownership of Lands, and shall be recorded as an addendum to the deed(s). It shall be the responsibility of the property owner(s) to provide evidence of the approved Certified Survey along with any application for Building Permits. (8) Notice of such requests to divide lots under the terms of this Section shall be provided as set forth in Section 24-52 (c) of this Chapter. (b) Appeals. An Applicant may appeal a decision of the Community Development Board made pursuant to this Section to the City Commission. Such appeal shall be filed in writing with the City Clerk within thirty (30) days after rendition of the final order of the Community Development Board, and shall be heard at public hearing before the City Commission. (c) Townhouses and residential Dwellings held in Fee -Simple Ownership. Townhouses and Two-family Dwellings, when divided in ownership, shall not constitute a division of Lands requiring approval of a Final Subdivision Plat or a Replat, provided that such Dwellings are otherwise in compliance with these Land Development Regulations and the Comprehensive Plan. SECTION 2. This Ordinance shall take effect immediately upon its final passage and adoption and shall be recorded in a book kept and maintained by the Clerk of the City of Atlantic Beach, Duval County, Florida, in accordance with Section 125.68, Florida Statutes. Passed upon first reading and public hearing by the City Commission of the City of Atlantic Beach this day of , 2006. Passed upon final reading and public hearing this day of , 2006. DONALD M. WOLFSON Mayor/Presiding Officer Approved as to form and correctness: ATTEST : ALAN C. JENSEN, ESQUIRE City Attorney DONNA BUS SEY City Clerk Page 2 of 2 Ordinance Number 90-06-192 CITY OF ATLANTIC IrEACH CITY COMAIIISSION MEETIN STAFF REPORT AGENDA ITEM: icycle Path Construction — Location and Construction Reciommendation.s SUILMITTED BY: Rick. Carper, P.E., Publit Works Director DATE: May 12, 2006 AGENDA rrEm NC AY 22, 2006 BACKGROUND: Bike, path construction for prior year projects is oomplete The Plaza Road section now extends, from Orchid Street '(Rose Park) to the 5 Points intersection, while the Seminole Road path extends 'fro Garden Lane South ID Dceanforest Drive North.. The City's plan for bike paths west of Mayport Road has been to provide a link between the parks at Tideviews and Dutton Island, by way of Main Street. Staff's recommendation for connecting the existlng bike path to Main Street is to construct a bike path along the north bank of the West Plaza Ditch. In addition to being away from traffic, this option also provides the opportunity for construction of rest areas / pocket parks where the street ends of Violet and Stocks Streets intersect the West Plaza Right of Way. After briefing the Commission about this possible location. Staff invited residents adjacent to the right of way to an informational meeting at City Hall. There were no attendees. Only one resident adjacent to the proposed bikepath has expressed an opinion. This resident, who lives on Hibiscus Street adjacent to the ditch, contacted Staff to indicate his iconcern for being able to get his motor horn,e from his back yard to the adjacent street. He also wrote to the ayor to express opposition because of the impact to his property's esthetics and his concern for damage to the value of his property. Staff believes, with proper planning and design, landscaping can be installed that will mitigate any conce s and, in fact, enhance the value of this property and others, along the path. RECOMMENDATION: Staff be directed to design and construct a bike path along the north bank of the West Plaza Ditch, Because of excessive costs with recent bid results on bike paths and sidewalks, Staff req ests that the City's Purchasing requirement tor seeking bids for any project costing in excess of $10,00D be waived and Staff be allowed to use the Annual Concrete Contractor (Gruhn May) for construction of the bike path. A similar waiver was previously approved for the Frances, Royal Palms and Sailfish sidewalk installations. ATTAC ENTS: 1) GIS Piot of proposed Bike Path additions 2) Overhead Photos of Proposed West Plaza Ditch Location 3) Photo of Hib'scus Street area of concern BUDGET: Current Year: $150„000 has been allocated in Account 001-5002-541- 6300 for bike path construction in FY 2005: Sh;ft estimates this path can be constructed for less than $100,000 REVIEWED BY CITYMANAGER: 1n h,F qq, °C)Q6fUj°'6 N-0; ILLU$1644 .AGENDA rr MAY 22, 24)D6 LL rei Sidewalks & Bike Paths Legend Proposed SideWalk Comments ----- 2006 — Future Years — This Year Note — —•- Bridge —•—•- Future (?) In Progress —•—•- Proposed —•—•- Proposed Alternative ® Sidewalk — Bike Path 11141 461=111 ti tilt in a VOILA mnnnun� nlmasrr •.ntnunnr WRt1111111Pam I O INA trA 1`• 111►\I... Mo. 'IB!.a',. 1111011011. `�` j LIM ■itil'f3+! ���2 � 111ILS -r 7iT� 13i3r ri!ImntptpppNnnni �z111 �1�'ILJIt11�P rOCA �%,,l+ue n1111U"..Unt G �41111111111111�1 Tounsa'; w .�o lnie e► !;a1 via ur. " *41 40a. 1111)1181111kos tlalstalltias 40311)1M2 I■IIA: � „r 2311,.1+_. 3,900 1,950 0 3,900 Feet AGENDA ITEM 8C MAY 22 2084 loni11111i11111111a ,,011111,1111111111011Q1111111 011111111111117mvu,,,,,,4 Hibiscus to Main re /1,4".ETANly30A2211:1":+0116NC: Ji,e4 Milfiv4410,4 AGENDA ITEi : SUBMTTED Y: DATE: CITY OF ATLANTIC BEACH CITY COIttll ilSSIIN IVIEETING STAFF REPORT Hurricane Protection for Commission Chambers Rick Carper, P.E., Director of Public Works May 5, 2006 AGENDA ITEM SD MAY 22, 2 BACKGROUND: During budget workshops last summer, Staff proposed to acquire commercial products for protection of the Commission Chambers during hurricane conditions. The Commission approved in concept but because of concerns over the changing technology, requested Staff evaluate additional products and bring a proposal, along with comparisons and evaluations, back to the Commission for final approval. Staff compared two products, Windshield HPS, a high strength, low weight, translucent solid covering and Armor Screen, a fabric netting system. Windshield HPS is available in 10 -mil and 16 -mil thickness; with either a Textron bolted fastener or a dual lock fastener (super velcro) system. The 16 -mil panel with Textron fastener fully meets the Miami - Dade County wind requirements and is Florida Building Code (FBC) approved. Use of the Textron fastener would result in permanently installed screws around every protected window, resulting in a safety hazard. The dual lock fastener is not FBC approved because it is glued to the window frame rather than being mechanically fastened. Both Windshield and Armor screen systems pass the missile impact tests for the 120 MPH wind zone Atlantic Beach is located in. Because it is netting rather than a solid covering, the Armor Screen system allows full visibility through protected windows or doors. The Armor Screen fasteners are removable'/" stainless steel eyebolts. A third type of protection, aluminum storm panels, had been investigated after the 2004 hurricane season. This system was not pursued, because it allows no Tight passage into the protected space. REC®IlfiltflENDATiN: Staff recommends procuring the Windshield HPS system with the dual lock fastener system. Because the Commission Chamber window frames are inset inside cedar outer frames, the panels would be protected from wind shear behind pushing them out. The dual lock system is available in a black or translucent color and would be the least noticeable. TTACHMENTS: BIS is 1) Windshield HPS and Armor Screen Frequently Asked Questions 2) Cost Comparison 3) Pictures of Installed Products GET: There is $10,000 allocated in Account 131-0000-519-64-00 for Commission Chamber hurricane protection in FY 2006. REVIEINED BY CITY ItflANAGER: 1O May 22, 2006 Regular Meeting AGENDA ITEM 813 MAY 22, 2N6 Commission Chamber Window / Door Protection C.st Comparison May 22, 2006 Regular Meeting System Type Cost Windshield HPS Translucent panel $8,700.00 Armor Screen Netting $14,000.00 Aluminum Storm panels (quote dated 10/2004) Opaque panel $9.726.00 May 22, 2006 Regular Meeting AGENDA 111 EMi 8D MAY 22,2006 WN MELD HPS FREQUENTLY ASKED QUESTIONS 1. What is indshi&Id? Windshield HPS is a revolutionary new system for protecting windows and doors from damaged caused by flying debris during a storm. The system consist of three (3) basic components: The rigid ultra -light sheeting serves as the panel that stops or deflects flying debris. Positive mechanical fasteners attach thepanel securely to the window or door opening. The nylon tie - on -base loop makes it simple to remove the panel for storage. Unlike many other storm protection products, Windshield HPS is a protection system and as such is measured, cut and pre-installed by our professionally trained representatives. Windshield is not a film. It is a strong rigid lightweight panel capable of stopping or deflecting projectiles before they strike the glass. 2. What is the process? Once you have selected the Windshield HPS, a representative will arrange to measure the windows and doors you wish protected. During the measuring process a small permanent window identification label will be installed on the frame, usually in the lower left corner of the opening. Your panels will be precision cut to fit and marked in the lower left corner with their corresponding window identification label. Each panel will then be installed in its designated opening and left in place for at least 24 hours to allow the adhesives to cure. After curing the panels can be easily removed and conveniently stored. 3. How much does it cost? The price depends on the size opening and whether it is on the ground or upper floor. We invite you to contact us for a free quote for your particular needs. 4. How long does it last? Each of the three primary components has been utilized successfully in other many applications and individually would last indefinitely. When combined to form the Windshield HPS it would be safe to assume that the panels, unless damaged in the act of stopping or deflecting substantial flying debris, should last for many years: The fasteners should also last through many applications. 5. Can I do it myself? Yes, although we recommend that one of our trained representative perform the installation. AGENDA ITEM 8D MAY 22, 2006 8. hat are the benefits and advantages? Extremely light weight Translucent, allows light to enter Panel is extremely strong, more resistant to damage than ordinary plywood Will not crack, split or warp Easily removed Requires no tools to install Installs in minutes 7. How on does it take? Depending on our workload you can expect a WindShield HPS representative to measure your home within a few days ofyour request. Your panels should be pre-cut and ready for their initial installation within a few weeks of placing your order. The pre -installation will take two or three hours depending upon the size of your home. Once installed you should allow at least 24 hours for the adhesives to properly bond before removing and storage. In time of need the homeowner should be able to re -install each panel in just a few minutes. 8. l have my indShiield panels in storage. Can 0 hire Windshield to re- install them prior to a storm? If time permits we will be happy to fill your request. Normally this will be scheduled on a first call basis unless we have a prearranged or absentee owner agreement in place. Please call for details. AGENDA ITEM 8D MAY 22, 2006 AR OR SCREEN FREQUENTLY ASKED QUESTIONS Him does Armor Screen compare in cost t,.r other systems? A basic Armor Screen system is priced competitively at the low to medium price range compared to other methods of hurricane protection. There are many factors that can influence the installed price of a system. Armor Screen is a versatile product, often used to provide other benefits such as sun screening and daily wind reduction. Consequently, site conditions vary immensely and may affect price. Other factors such as color, geographic location, optional mounting accessories such as track and roll -ups affect the price. Even the standard of protection requested can vary. Is Armor Screen available in stores? Armor Screen is a custom product installed by skilled dealers. We feel the many benefits of the product are best made available by trained dealers. Can I install Armor Screen myself? The mounting systems for Armor Screen are important to it's strength and they must be installed according to our specifications depending on the architectural issues and constraints. Also, each screen is custom manufactured to fit each opening. As a result, we only allow qualified Armor Screen Dealers to install our products to ensure your safety. ill Armor Screen stop wind -driven rain from penetrating my windows and doors? Yes! Wind -driven rain is one of the biggest problems in a storm. Doors and windows are not designed to withstand the onslaught of water with that much wind pressure. Armor Screen reduces the wind and water by 95%. We even have a report after Hurricane Ivan of Armor Screen successfully protecting a condominium from 6 hours of "green water" waves crashing onto an Armor Screen protected porch. How difficult is it to deplby and how long does it take? All Armor Screen systems are easy to deploy. The screens are light weight and the mounting systems typically require no special tools or devices. Because we offer such a wide array of mounting systems it's impossible to estimate how long your system will take to deploy. Some systems are pulled across on a track and attached in a couple of minutes. Others are stored in bags that must be retrieved from storage and attached. But even this type of system can be deployed easily and quickly. Whole office buildings can be protected in a few hours with a small crew. Most homes can be fully protected in less than one hour by one person. AGENDA ITEMi SID MAY 22, 2)© hat anchors are installed into my building Anchors can be installed in an inconspicuous manner and designed to not detract from the aesthetics of your structure. If desired, anchors can be removable from the skin of your building. Color matched caps can be supplied to cover the threaded insert. Stainless steel is the heart of our anchoring system. All anchors are corrosion resistant and are protected from electrolysis. Ground anchors in grass are installed below ground level into a plastic receptacle (somewhat like a putting cup) and can be mowed over. What kind of maintenance does your system have? Armor Screen is designed to be maintenance free. The basic system has no moving parts to clean, lubricate, or jam just when you are deploying in a hurry. The fabric is practically impervious to the elements. Traditional rigid systems, of all types, often must be replaced if they are hit with flying debris. Armor Screen just bounces back. Maintenance free savings add to the value of Armor Screen. 111111101111111,1111,[1,11111[1[10111,11101011[111111111111[11111111111111111111111111111111111111111111 11111111111, 1111" 11[M11[11111 011111111111111111,11,111111111 11010100,011.111[111.111:11111111:111:111[1[1111 ............„,,,,,,,,,,,,,,,,,[„[111111111111111111111111111100011111111111101111 11111100000000Poriu1010 1[0000010 1101111111111111110 oo11111[1011111m1,1111111111111111111i111.1111[,11',iji11'(I,,,I,rilg 111[1'iii[1'1'111:11010i[111[1,1,1,11,11,1,1,1,11[111[1[111111[1111111111[111111111,[iii[ 1111111111100111,11[[ [ 111111 1111111100°, ,..... iiiiiiii,ii,i,i,i,i,iiii,i,i,...i,...i,....,...!...11,...1.!...1,. 1111117111111111111111111111111,(11,i1110,,.11(,,.1,,.11,..01.1.,."......,0:1.f",::::, 11:11(1/\1111111),11(.1(1(1(.., .1" 1111111.1111111(,11111111111111111111'11111111111111.11:0'1111111.11,011111111r0'1,111/(1:2"111'111 0.1,',',"."1111,,,",10,1011100 ° 11" 1°,111111111:1;."1.1 111 • .1.1.131., iiilliiiiiiiiiiiiii 11111111 ""1111111111111111111111111111 1111.1,101,111,0111,, 1111111111 111111111111111111111»1 1,11 111111111111111111111!10i ,'..„„1 111 \ ( 11111111111111111111111111 1111111111'111 t Ni ....,19 1 ,f' j \. 4 , , [ [4„...[[![;[. 1[„[..:„[... 41[1,[1))...„,[,, 11,[1,[1[1.1[1„,,, 1[1,1[1[„[[[[,,j,[11;[[[:., [1111 [Ill ,,1p,1:1:11111111111:110,1,1111, ' , 111111111.1 11; 11''11'111111111111°1111°It'l'I':' i 1111 1111,'1,11(111111;11111“"oll'10:,1,[5::1) [ 0111111 111011111 0 110 0111 ,00,000000011111 000 1,1111111111„ .0,,,,,,[1:11[1:111111111111111111'1"1° 1°1 1'6 1 111111P1H11111111111111111)y11p,k .411 m)of4ililoilj„)))11t (11)1 (I, fff 11)1' 1111!'!'k '1[1414iP 10w [4:1[6110, III 1111[11[111 111111111111111[1[1[11ol000f [[[[[[['...[„[1([[[[1[[:1[[[[[[[[[([[?•[[,[,.;[,[,[[;../[,[... 1'11,44 1;i[ 1 1111111111111111111111 0000000000011[011[1[1[1[1[1[1[1[1[1[1[1[1 1111111111111111111111111 1-111111111111111111111111111111110111111111111111111111111111011111111111111""'l oo[11111111[1[11.oloommomio 1111 )11"'"111111filloovioot00000l1,, )01.1.1"i[1111,1[11111[1[[[[["[N11111[1[1:1[[[[[1:0[1:["1[1:11[1:1"1"1"1"1:0[0:00[0,[01[10ok 111111111111101111,0,0,011111111,014,111111o101000,,000. „A.GANIM ITEM 81.) MAY 22, 2006 III III111011 ( koT 100 111161 (11111,11 11„)111 1111111( 1110 000111 111111111h1 11 0 110000T 11h 01 11111P 1)111 1 111 0100111011111111101111111 11001011 111 100 t, „„1:11111.111111:1,111,110,„11110„,,q1,1q.,...1„11,1,1111111‘.1111:11111111.11111 11111111,..,111111111111111111111111111111?1111.) ,,,if1111112,11111' 11111111,1111111111111111 1„,11110100110111110010111111,01„1,11,0001001101111111111001111111111111011101010000 111111111,11111111111,11,11,?q,„,„,„„„„„ ulovio 1 000000000001000,1,1,011111'00000 R111 11111111111111110 AGENDA ITEM 8111 MAY 22, 2006 2 0,14C1,1,1,11,1,1,1,11111, 000010001,H 1,,‘t10 '110 101 INN41104 1014,,\ ,42=1111:1, wv,V6Aimme.,,10.4011,1, 111111,;(1,1,1,(1,1,11,ip, 11111,1,1:) f?4 • loolooll.11,1.)11,1!111 ily04:01.141:::%00 A GErv318111:.A221,1'211tolV168.11) 3 AGENDA ITEM: AGENDA ITEM 8E MAY 22, 2006 CITY OF ATLANTIC BEACH CITY COMMISSION MEETING STAFF REPORT Interlocal Agreement with the City of Jacksonville for Construction of a Handicap Accessible Beach Walkover at Third Street S MITTED BY: Jim Hanson, Ci M DATE: BACKGROUND: BUDGET: May 15, 2006 Several months ago, the city was approached by residents in the 3rd Street area requesting that a handicap accessible beach walkover be installed at the 3rd Street access. The request appeared to have some merit because the area between Ahem Street and 6th Street is the farthest distance in Atlantic Beach between handicap accessible beach accesses. Third Street is in the middle of that distance. All of the handicap beach walkovers in recent years have been built through grants received from the City of Jacksonville. Hoping to receive funding for this walkover also, Councilmember Art Graham was approached to see if funds were available. He responded with a considerable amount of work in researching the availability of the grants and ultimately having an agreement prepared and approved by Jacksonville to pay up to $48,000 for the construction of the walkover at 3rd Street. We have now received a proposed interlocal agreement from the City of Jacksonville for this purpose. A copy is attached. There have been several discussions with 3rd Street residents in recent months about the possible construction of a beach walkover. While most have expressed support for the walkover, some have been opposed. One owner on the east side of Beach Avenue has expressed opposition because it would partially obstruct his view of the beach. Another person has expressed concern that improving the beach access would encourage more traffic on 3rd Street. Because of these concerns, city staff distributed a survey to 3rd Street residents asking for their input. A total of 30 responses were received. Of those, 22 were in favor of the walkover, 7 were against and one did express an opinion either way. A copy of the survey is also attached for your review. A notice of this proposed agreement being considered by the city commission at this meeting has been posted at the 3rd Street beach access. Some residents both for and against the proposal may attend the city commission meeting. The estimate for construction of this walkover is $48,000. The Interlocal Agreement with the City of Jacksonville will provide up to $48,000 for this project. Atlantic Beach has built several similar access walkovers in recent years and our estimate of cost is based upon that work. AGENDA ITEM 8E MAY 22, 2006 RECO IMENDATION: Authorize Mayor Wolfson to sign the Interlocal Agreement with the City of Jacksonville to provide funding for the construction of a handicap accessible beach walkover at 3rd Street and authorize the city staff to take bids for that project. ATTACHMENT: (1) Interlocal Agreement between the City of Jacksonville and the City of Atlantic Beach for construction of a handicap accessible beach walkover at 3rd Street (2) Survey form of residents along 3rd Street Prepared by and Return to: R. William Crowe Office of General Counsel 117 West Duval Street, Suite 480 Jacksonville, Florida 32202 INTERLOCAL AGREEMENT BETWEEN THE CITY OF JACKSONVILLE AND THE CITY OF ATLANTIC BEACH AGENDA ITEM 8E MAY 22, 2006 THIS AGREEMENT ("Agreement"), is made and entered into this day of 2006, and is by and between the CITY OF JACKSONVILLE, a municipal corporation in Duval County, Florida, with its principal office at 117 West Duval Street, Jacksonville, Florida 32202 ("COJ") and the CITY OF ATLANTIC BEACH, a municipal corporation in Duval County, Florida, with its principal office at 800 Seminole Road, Atlantic Beach, Florida 32233 ("COAB"). WITNESSETH: WHEREAS, the COJ has made funds available to the COAB, as specified below, to assist in funding a portion of the costs to construct a handicap accessible beach walkover at the Third Street beach access point in COAB ("Project"), as more particularly described in Exhibit A. The beach walkover will be 160' x 5' and handicap accessible, and will be located at the end of Third Street, which property is owned by the COAB ("Premises"); and WHEREAS, funding, in the amount of $48,000.00, is presently available through the 2004 ETR bond Council District 13 Discretionary Project Account Number CCCP36313720 by and through Section 106.315, Ordinance Code of the City of Jacksonville ("Ordinance Code') and Section 2(dd) of COJ Ordinance 2004-998-E; and WHEREAS, Section 2(dd) of COJ Ordinance 2004-988-E has been amended by Ordinance 2005-1044-E to permit Discretionary Projects to be located on property owned by any municipality within Duval County; and 'WHEREAS, it is in the COJ's best interest to provide funding for the Project, and to make and enter into a contract with the COAB, as is required in Section 106.315 (a), Ordinance Code; now Page 1 of 8 AGENDA ITEM 8E MAY 22, 2006 therefore IN CONSIDERATION of the mutual promises contained herein and for other good and sufficient consideration, the parties agree that: 1. Incorporation of Recitals. The above stated recitals are true and correct and, by this reference, are incorporated herein and made a part hereof. 2. Effective Date. This Agreement shall become effective on the day and year first written above and shall continue in full force until construction of the Project is complete, unless terminated earlier as provided in this Agreement; provided however, this Project shall be completed no later than September 30, 2007. 3. Assistance with Funding the Project. The COJ shall provide funding, in a total amount not -to -exceed FORTY-EIGHT THOUSAND AND 00/100 DOLLARS ($48,000.00) to the COAB for the purpose of assisting with the funding of the Project as described in Exhibit A. The COJ will not maintain, repair, or support the Project during construction or at any time thereafter. Such maintenance, repair and support of the Project shall be the sole and exclusive responsibility of the COAB, with no additional cost or expense to the COJ. The COAB shall spend this funding, provided, by the COJ, only on the Project and for no other matters. Expenditure of the funds on any other matter than the Project shall be a material breach and default of this Agreement and shall result in refunds as specified in this Agreement. The funding, provided in this Agreement must be the last funds spent by the COAB after all other funds, from whatsoever sources, are spent and exhausted. 4. COAB Compliance. The COAB shall comply with all applicable bond covenants/restrictions, federal, state, and local laws, rules, regulations, ordinances, including, but not by way of limitation the provisions of Section 118.204 and 118.205, Ordinance Code and Chapter 118, Parts 3, 4, and 5, Ordinance Code. In the event of a conflict between or among the provisions of this Agreement and the provisions of the cited provisions in Chapter 118, Ordinance Code, the stricter and more stringent provision will apply. The cited provisions of Chapter 118, Ordinance Code are contained in Exhibit B. 5. Project Improvements. The COAB shall comply with the construction standards and priority schedule as stated in Exhibit A. 6. Payment on Draw or Reimbursement Basis. The COD's contribution for the Project, pursuant to this Agreement, shall be on a "draw for work done" basis or on a "cost for reimbursement" basis. Payments will be made within thirty (30) days of the COAB's submittal to the COJ of documentation, including bills, invoices and other documents satisfactory to the COJ's General Accounting Division, to justify withdrawal or reimbursement payment to the COAB. 7. COJ Representative. The COJ's Public Works Department shall be responsible for overseeing, administering and implementing this Agreement. The COJ shall by subsequent Page 2 of 8 AGENDA ITEM SE MAY 22, 2006 written notice advise the COAB of the contact person in the Public Works Department. 8. Accounting/Report. The COAB shall provide the Public Works Department and the Council Auditor with a full accounting/report. Such accounting/report shall be in a form approved by the Council Auditor and shall include, but not be limited to, copies of all invoices and checks. Such accounting/report shall be submitted within thirty (30) days after the day and year first above written and shall continue at thirty (30) day intervals until the funds are spent in their entirety. 9. Returned Unspent COJ Funds. Any unspent funds from the $48,000.00 contribution, in the possession of the COAB, on September 30, 2007 shall be immediately returned to the COJ. Any funds, that are unspent, and which are still being held by the COJ on September 30, 2007 shall lapse. 10. Maximum Indebtedness. The COJ shall be indebted under this Agreement to the maximum amount of FORTY-EIGHT THOUSAND AND 00/100 DOLLARS ($48,000.00). 11. Indemnification. 11.01. The COAB shall hold harmless, indemnify, and defend the COJ, including without limitation, its officers, directors, members, representatives, affiliates, agents and employees, successors and assigns against any and all claims, suits, demands, judgments, losses, costs, fines, penalties, damages, liabilities and expenses (including all costs for investigation and defense thereof including, but not limited to, court costs, reasonable expert witness fees and attorney fees) which may be incurred by, charged to or recovered from and against any of the following arising directly or indirectly out of any of the COAB's operations, work or services performed in connection with this Agreement including, but not limited to: 11.01.01. Any and all claims for damages as a result of the injury to or death of any person or persons, or damage to or destruction of any property which arises as a result of any negligence act or omission on the part of the COAB, its agents, affiliates or assigns, regardless of where the damage, injury or death occurred; or arising out of the failure of the COAB's to keep, observe or perforin any of its obligations under this Agreement or in any other document or instrument delivered by the COAB pursuant to this Agreement. 11.01.02. Any and all claims, suits, demands, judgments, losses, costs, fines, penalties, damages, liabilities and expenses (including all costs of cleanup, containment or other remediation, and all costs for investigation and defense thereof including, but not limited to, court costs, reasonable expert witness fees and attorney fees) arising from or in connection with (a) the COAB's, including, but not limited to, its agents, affiliates or assigns ("Parties"), actions or activities that result in a violation on any environmental law, ordinance, rule, or regulation or that leads to an environmental claim or citation or to damages due to the Page 3 of 8 AGENDA ITEM 8E MAY 22, 2006 COAB's or other Parties' activities, (b) any environmental, health and safety liabilities arising out of or relating to the operation or other activities performed in connection with this Agreement by the COAB or any Party at any time on or prior to the Effective Date, or (c) any bodily injury (including illness, disability and death, regardless of when any such bodily injury occurred, was incurred or manifested itself), personal injury, property damage (including trespass, nuisance, wrongful eviction and deprivation of the use of real property) or other damage of or to any person in any way arising from or allegedly arising from any hazardous activity conducted by the COAB or any Party. The COJ will be entitled to control any remedial action, any proceeding relating to an environmental claim. 11.01.03. Any and all claims, suits, demands, judgments, losses, costs, fines, penalties, damages, liabilities and expenses (including all costs for investigation and defense thereof including, but not limited to, court costs, reasonable expert witness fees and attorney fees) arising from or based upon the violation of any federal, state, or municipal laws, statute's, resolutions, or regulations, by the COAB or those under their control. 11.01.04. Any and all claims, suits, demands, judgments, losses, costs, fines, penalties, damages, liabilities and expenses (including all costs for investigation and defense thereof including, but not limited to, court costs, reasonable expert witness fees and attorney fees) which may be incurred by, charged to or recovered from any of the foregoing, arising directly or indirectly out of (a) any breach of any representation or warranty made by the COAB in connection with this Agreement or in any certificate, document, writing or other instrument delivered by the COAB pursuant to this Agreement or (b) any breach of any covenant or obligation of the COAB set forth in this Agreement or any other any certificate, document, writing or other instrument delivered by the COAB pursuant to this Agreement. 11.02. The indemnifications contained in Section 11.01, above, are separate and apart from, and is in no way limited by, any insurance provided pursuant to this Agreement or otherwise. This Section 11, relating to Indemnification shall survive the term of this Agreement, and any holdover and/or contract extensions thereto, whether such term expires naturally by the passage of time or is terminated earlier pursuant to the provisions of this Agreement. 11.03. The indemnifications given by COAB are subject to the provisions and limitations of Section 768.28, Florida Statutes, and shall not be construed as, and is not, a further waiver of COAB's sovereign immunity beyond the limited legislative waiver thereof in Section 768.28, Florida Statutes. 12. COAB Operations. The COAB shall, at no additional cost or expense to the COJ, operate and maintain the Premises as a public street and right-of-way and such Premises shall be open and available to all residents and visitors to the COS, with no discrimination on the basis of Page 4of8 AuEN11A I'I'EM 8E MAY 22, 2006 race, creed, color, sex, religion, national origin, marital status, age, disability or residence. 13. COAB Responsibilities. The COAB shall be solely responsible for all maintenance and repairs to the Project at no additional cost to the COJ including, but not limited to: (a) The COAB shall maintain and keep the Project in good repair and shall provide all required maintenance and repair of whatsoever kind of nature. (b) The COAB shall without limiting its liability hereunder, agrees to procure, keep and maintain adequate insurance types, including, but not limited to fire insurance, and in coverage amounts, as required by the COJ's Risk Management Division. During the construction term, the COAB shall require any contractor to carry and maintain all risk builders' risk insurance equal to the replacement cost value of the project which at no time will be less than the contribution as defined in Section 10 of this Agreement, naming the COJ as an additional insured. Upon completion of construction, the COAB will maintain all risk property insurance at replacement cost value, which at no time will -be less Than the contribution as defined in Section 10 of this Agreement. 14. Non -Waiver. The waiver, by either party, of any breach of this Agreement, by the other party, shall not be construed as a waiver of any subsequent breach of duty or covenant imposed by this Agreement. 15. Right of Entry. The COJ, at reasonable times, has the right to enter into and upon the Premises for the purposes of viewing the same and for the purpose of verifying compliance by the COAB of its obligations under this Agreement. 16. COAB Default. If the COAB shall neglect or fail to perform or observe any requirement or violate any provision of this Agreement and such default shall continue for a period of thirty (30) days after written notice thereof is given by the COJ to the COAB, then the COJ may, immediately, or at any time thereafter, and without further notice or demand, terminate this Agreement without prejudice to any remedy which might otherwise be used by the COJ to recover for any breach of the COAB's covenants herein contained. Should this Agreement be terminated as a result of the COAB 's breach of Section 3, of this Agreement, then, and in such event, the COAB must refund and return all funds provided by the COJ. Such refund and return shall be made within fifteen (15) days after notice and request for refund, by the COJ. 17. Taxes/Insurance Premiums. The COAB shall pay all real estate taxes, if any, and other taxes, if any, and fire insurance premiums on the Premises. COAB shall not be liable to carry fire insurance on the person or property of the COJ or any other person or property which may now or hereafter be placed in the Premises. 18. Notices. All notices, as required under this Agreement shall be by certified mail return receipt requested: Page 5 of 8 As to the COJ: As to the COAB: Edgar Hall, P. E. 220 East Bay Street Jacksonville, FL 32202 Timmy Johnson 716 Ocean Boulevard Atlantic Beach, FL 32233 n�Li�i/t1 11 L' AYl OL! MAY 22, 2006 19. Termination for Convenience. The COJ shall have the absolute right to terminate this Agreement without cause upon giving sixty (60) days advance written notice to the COAB. In the event that this Agreement is terminated for convenience, the COAB shall return, to the COJ, all unspent funds, provided under this Agreement, and received by the COAB. 20. Actions of Mayor and Corporation Secretary. The Mayor and Corporation Secretary shall have the authority to terminate this Agreement under any circumstances in which the COJ has a legal right to terminate this Agreement in accordance with the provisions hereof. 21. Construction of Agreement Terms. The p-arties agree that they have had meaningful discussion and/or negotiations of the provisions, terms and conditions contained in this Agreement. Therefore, doubtful or ambiguous provisions, if any, contained in this Agreement, shall not be construed against the party who physically prepared this Agreement. The rule commonly known as "Fortius Contra Proferentium" shall not be applied to this Agreement or any interpretation thereof. 22. Entire Agreement. This Agreement represents the entire agreement by and between the parties concerning the receipt and expenditures of the funds specified herein. No agreement, statement, representation, course of action or course of statement, representation, course of action or course of conduct by either of the parties hereto, or by their authorized representatives, shall be binding if it is not in writing and contained in this Agreement. This Agreement may be amended by written instrument signed by the parties or their lawfully authorized representatives. 23. Severability. If any section, paragraph, sentence or other part of this Agreement is declared to be unenforceable or unlawful by a court of competent jurisdiction, then, in such event, such section, paragraph, sentence or other part shall be severed from this Agreement and shall not affect other terms and conditions herein. 24. Section/Paragraph Headings. All section/paragraph headings herein are provided for convenience only and shall not be used in the interpretation or construction of the Agreement. 25. Exhibits. All exhibits which are attached hereto and which are specifically and expressly reference in the text of this Agreement, are incorporated into this Agreement as if fully set forth herein. 26. Governing Law/Venue. This Agreement shall be governed by the law of the State of Florida. Venue for litigation of this Agreement shall be in a court of competent jurisdiction in Jacksonville, Florida. Page 6 of 8 AL EINDA ITEM 8E .-MAY 22, 2006 27. Survival of Provisions. The provisions of Sections 8, 11, 12, and 13 shall survive the termination of this Agreement. IN WITNESS WHEREOF, the parties, by and through their lawfully authorized representatives have executed this Agreement on the day and year first above written. ATTEST: CITY OF JACKSONVILLE By: By: Neill W. McArthur, Jr., John Peyton, Mayor, Corporation Secretary ATTEST: CITY OF ATLANTIC BEACH ley: Donna L. Bussey, City Clerk Donald M. Wolfson, Mayor In compliance with the Charter of the COJ of Jacksonville, I do hereby certify that there is an unexpended, unencumbered, and unimpounded balance in the appropriation sufficient to cover the foregoing Agreement, and provision has been made for the payment of the monies provided therein to be paid. Form Approved: GAG Office eneral Counsel Director of Administration and Finance, City of Jacksonville perations\WCrowe\Public Works\COAB Walkover\atlantic beach interlocal agreement.031706A.doc Page 7 of 8 STATE OF FLORIDA ) )ss. COUNTY OF DUVAL) AIiL' 1V1JA 11 LIV1 iSL� MAY 22, 2006 The foregoing instrument was acknowledged before me this day of 2006, by John Peyton and Neill W. McArthur, Jr., the Mayor and Corporation Secretary respectively, of the City of Jacksonville, a municipal corporation in Duval County, Florida. Such persons: (notay must check applicable box) ❑ are personally known to me; or ❑ produced a current ❑ produced driver's license as identification; or as identification NOTARY PUBLIC STATE OF FLORIDA ) )ss. COUNTY OF DUVAL) (Sign) (Print) My Commission expires: (NOTARIAL SEAL) The foregoing instrument was acknowledged before me this day of 2006, by Donald M. Wolfson and Donna L. Bussey, the Mayor and City Clerk respectively, of the City of Atlantic Beach, a municipal corporation in Duval County, Florida. Such persons: (notary must check applicable box) ❑ are personally known to me; or ❑ produced a current ❑ produced driver's license as identification; or as identification (Sign) (Print) NOTARY PUBLIC My Commission expires: (NOTARIAL SEAL) Page 8 of 8 3rd St Beach Access tXHILil'1' A Page 1 of 4 AGENDA ITEM 8E MAY 22, 2006 0 62.5 125 - 250 Feet m m O 0 0 0 -Q m Sh O =i 0 n co me SEE DETAILS M0 C 0 �m m r O O D Z cy r 0 041 Z M 07]NO m=zo vi?< zmFcmF, y 0 m= m In In- i m 3-.*rz rn F LA N& IE L EVATI ® IN EXHIBIT A Page 2 of 4 AGENDA ITEM 8E MAY 22, 2006 sut 1/8" - 1' -0 - vie 08/16/2000 crn CITY OF ATLANTIC B EAC H ATLANTIC B E A C H, FLORIDA noc xw.00c d M BILL -WA 004 Z40 007x, ti 1,4 rx..u„c .wu�n TWOS JIHdVeI€ 69 3.7Yd ''S )100 !S N0079 'zt 107 EDGE OF EXHIBIT A Page 3 of 4 AGENDA ITEM 8E MAY 22, 2006 WASHED OUT.�DUrE { • yx nen N Z 11 n f`1 N 3 m0 � Z .Tf X033• .0V N0O33S 1:01ld Ll/I N.3u 0 t Cr) m Z z c, rn n m— ci0 os > 03 a 7 N o . a o, — n. tr. MODIFICATION C IV O F- P.TLANTI C B EAC = 20• r„« 03/10/2002 THIRTEENTH STREET DUNE WALKOVER ATLANTIC B E A C H, FLORIDA M ,. h: JIM GILLIAM 904 249 0072 r- 0 4 - P.I.AvoaC 1S08 9X9 'Iwno 4' VARIES 1251S SS31NNaS 30 1 2p17.3 P1 t Llococo • 13 0 00 Lf EXHIBIT A Page 4 of 4 AGENDA ITEM 8E MAY 22, 2006 DETAILM 1,4x: 3/4' 0 8 / 1 6 / 2 DOD CITY OF ATLANTIC BEACH ATLANTIC BEACH, FLORIDA ,ADM ILLIAM 904 0-49 0070 AGENDA ITEM 8E MAY 22, 2006 Dune Walkover Opinion Form Attn: Mr. Timmy Johnson Parks Dept. City of Atlantic Beach With regard to the construction of a dune walkover at the Third Street Beach Access: Please check one of the following. I approve I disapprove I have no opinion [ 1 Comments: Signatures (optional) Address: (required) ush sac;ns bill that limits local condemn tions oi/err AGENDA ITEM 9A MAY 22, 2006 By BILL KACZOR, Associated Press Writer, 5/12 A bill that will immediately limit the ability of local governments to condemn homes and other property for private redevelopment projects became law Thursday with Gov. Jeb Bush's signature. The legislation, similar to measures introduced or enacted in most other states, is in response to a U.S. Supreme Court decision approving the use of eminent domain for economic development. "The law severely restricts state and local governments' power to take private property and transfer (it) to another private entity," Bush said in a statement. "The right to own. property is fundamental to freedom. Property ownership is the ultimate reward for hard work." Besides the bill, the Legislature has placed a proposed state constitutional amendment also restricting eminent domain on the Nov. 7 ballot. While the new law is filled with details and specific restrictions, the amendment is a more general ban on the taking of property and conveying it to another private owner. The amendment, which would not go into effect until Jan. 2, lets the Legislature make exceptions to the ban only by a three-fifths vote in each house. The new law prohibits the use of condemnation to eliminate slums or blighted areas. It allows cities and counties to sell, through a bidding procedure, property obtained through condemnation only after it has been held for at least 10 years. Riviera Beach Mayor Michael Brown said his city may have preserved its ability to use eminent domain for a $2.4 billion redevelopment project by signing a contract Wednesday night. It could displace more than 5,000 residents with condominiums, shops and a marina. Brown said he believed the city had a contract with Viking Inlet Harbor Properties before then but signed additional documents just in case. That still may not help because condemnation proceedings have not yet begun. "Pm sure we'll end up in court," Brown said. AGENDA ITEM 9A MAY 22, 2006 PRESS RELEASE FROM MAYOR WOLFSON ATLANTIC (:•EACH FIRE RATING IMPROVED May 15, 2006 The City of Atlantic Beach fire rating has been improved to a class three by the Insurance Service Office (ISO). Fire ratings from the ISO range from 1 to 10, with 1 being the best. According to the ISO, only 3.4 percent of ratings given nationwide are Class 3 or better. Many insurance companies that offer residential and commercial policies use the ISO rating as one of their criteria for setting the rates that customers in t1antic Beach pay and this will certainly be good news for those policy holders. This rating will take effect on September 1St The last ISO inspection done in Atlantic Beach was in 1996 which resulted in a Class 4 rating. The fire rating consists of scores both for the fire service as well as the water system. The scores for both have improved since 1996. According to David Thompson, Public Safety Director for Atlantic Beach "The primary purpose of contracting fire services with Jacksonville was to provide a higher level of fire protection and emergency medical service for the citizens of Atlantic Beach. The improved ISO rating represents an independent confirmation that we are achieving that goal." Donna Kaluzniak, Utilities Director for Atlantic Beach, said "The most dramatic improvement was the inspection frequency and condition of the hydrants followed by the overall water system, including capacity and hydrant distribution. I believe the replacement of old, undersized water mains, including installing new hydrants, and the addition of a new elevated tank contributed greatly to the higher rating of the water system and hydrant condition." Mayor Wolfson noted that "Providing good fire protection is one of the main purposes of local government and this improved rating is just another example of why Atlantic Beach is such a great place to live. The Water Department staff have been working for years to accomplish many of the projects in our long term plan and are due our appreciation for a job well done. Also, David Thompson, and members of the Jacksonville Fire Department have made great strides to provide top notch service." May 4, 2006 [N AGENDA ITEM 9A MAY 22, 2006 SURANCE SERVICES OFRCE9 Li o 4 B EVES DRIVE SUITE 200 MARLTON , NJ 08053 (856) 985-5600 FAX (856) 985-6464 Mr. Jim Hanson, Manager City of Atlantic Beach 800 Seminole Road Atlantic Beach, FL 32233 RE: Public Protection Classification Results Atlantic Beach, Duval County, FL Dear Mr. Hanson: We wish to thank you and the other community officials for your cooperation during our recent Public Protection Classification (PPC) survey. ISO is the leading supplier of statistical, underwriting, and actuarial information for the property/casualty insurance industry. Most insurers use the PPC classifications for underwriting and calculating premiums for residential, commercial and industrial properties. ISO has completed its analysis of the structure fire suppression delivery system provided in your community. We would like to report that the resulting classification is a Class 3. This classification number applies to all properties in the classified area with a needed fire flow of 3,500 gpm or less. The private and public protection at properties in the jurisdiction with larger fire flows is individually evaluated and may vary from the jurisdiction classification. Congratulations on your commitment to serve the needs of your community's property owners and residents. ISO will advise its subscribing insurers of this classification change within the next 30 -days and assign an effective date of September 1, 2006. This date allows insurers the necessary lead time to incorporate the Public Protection Classification change into their policy rating systems. Enclosed is a summary of the ISO analysis of your fire suppression services. If you would like to know how your community's classification could improve, or if you would like to learn about the potential effect of proposed changes to your fire suppression delivery system, please call us at the phone number listed below. The PPC program is not intended to analyze all aspects of a comprehensive structure fire suppression delivery system program. It is not for purposes of determining compliance with any state or local law, nor is it for making recommendations about loss prevention or life safety. AGENDA ITEM 9A MAY 22, 2()06 If you -have any questions about your classification, please let us know. Sincerely, Public Protection Department (856) 985-5600 Ext. 403 of Encl. cc: Chief Richard A. Barrett/Director, Jacksonville Fire & Rescue Department Ms. Dolma Kaluzniak, Utility Director, City of Atlantic Beach Mr. David E. Thompson, Director of Public Safety Ms. Denise R. Coney, Communications Manager, Jacksonville Fire Dispatch AGENDA ITEM 9A MAY 22, 2006 THE ISO PUBLIC ''ROTECTION CLASSIFICATION (PPC) OGRAM ISO's PPC program evaluates communities according to a unifousi set of criteria defined in the Fire Suppression Rating Schedule (FSRS). This criteria incorporates nationally recognized standards developed by the National Fire Protection Association and the American Water Works Association. Using the FSRS, ISO objectively reviews the fire suppression capabilities of a community and assigns a Public Protection Classification — a number from 1 to 10. Class 1 represents exemplary fire protection, and Class 10 indicates that the area's fire suppression program does not meet minimum recognition criteria. The FSRS allocates credit by evaluating the following three major features: Fire alarm and communication system. This review accounts for 10% of the total classification which centers upon a community's facilities and support for handling and dispatching fire alainus. o Fire department. This review accounts for 50% of the total classification which focuses upon items such as engine companies, ladder or service companies, distribution of fire stations and fire companies, equipment carried on apparatus, pumping capacity, reserve apparatus, department manning, and training. a Water supply system. This review accounts for 40% of the total classification highlighting the water supply a community uses for fire suppression, including hydrant size, type, and installation, as well as the inspection frequency and condition of fire hydrants. When ISO develops a single classification for a community, all of the community's properties receive that classification. In many communities, ISO develops a split classification (for example, 5/9). Generally, the first class, (Class 5 in the example) applies to properties within a defined distance (5 -road miles in most states) of a fire station and within 1000 feet of a fire hydrant. The second class (Class 9 in the example) applies to properties beyond 1000 feet of a hydrant but within the defined distance of a fire station. ISO generally assigns Class 10 to properties beyond the defined distance of a fire station. Countrywide Public Protection Classification Summary 34.3% 35.0%-x- 30.0%-1 25.0%% 20.0%-i 15.0%-'I 10.0%% ? 6% 5.0%1 0.1% . 0.7% 0.0% 1 2 3 16.3%16.0% 6.9% 8.5°4 3.1 % i 4 5 6 7 8 9 10 Classifications Grading Sheet For: Atlantic Beach, FL Duval County Public Protection Class: 3 Surveyed: February, 2006 AGENDA ITEM 9A MAY 22, 2006 Credit Maximum Feature Assigned Credit Receiving and Handling Fire Alarms 8.31% 10.00% Fire Department 36.28% 50.00% Water Supply 38.10% 40.00% *Divergence -4.54% Total Credit 78.15% 100.00% The Public Protection Class is based on the total percentage credit as follows: Class 1 90.00 or more 2 80.00 to 89.99 3 70.00 to 79.99 4 60.00 to 69.99 5 50.00 to 59.99 6 40.00 to 49.99 7 30.00 to 39.99 8 20.00 to 29.99 9 10.00 to 19.99 10 Oto 9.99 *Divergence is a reduction in credit to reflect a difference in the relative credits for Fire Department and Water Supply. The above classification has been developed for use in property insurance premium calculations. 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