HomeMy WebLinkAboutCity of Tamarac Ordinance O-2001-006Temp. Ord. #1922
March 6, 2001
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CITY OF TAMARAC, FLORIDA
ORDINANCE NO. 0-2001- p(
AN ORDINANCE OF THE CITY COMMISSION OF THE
CITY OF TAMARAC, FLORIDA; AMENDING CHAPTER
5.6 OF THE CITY CODE, ENTITLED
"TELECOMMUNICATIONS" CLARIFYING THE INTENT
OF EXISTING LANGUAGE; PROVIDING FOR
CODIFICATION; PROVIDING FOR CONFLICTS;
PROVIDING FOR SEVERABILITY; AND PROVIDING
FOR AN EFFECTIVE DATE.
WHEREAS, the City Commission of the City of Tamarac adopted
Telecommunications Ordinance 0-2001-01 on January 10, 2001 which governs the use of
the City's Rights -of -Way relative to Telecommunications Facilities (attached hereto as
Exhibit 1); and
WHEREAS, the Industry Representatives have suggested amendments to the
Telecommunication Ordinance; and
WHEREAS, the City of Tamarac is in agreement with such amendments; and
WHEREAS, the City's Special Counsel for Telecommunications, Leibowitz &
Associates, drafted the amendments with input from the industry and recommends
approval; and
WHEREAS, the City Manager recommends approval; and
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Temp. Ord. #1922
March 6, 2001
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WHEREAS, the City Commission of the City of Tamarac deems it to be in the best
interest of the citizens and residents of the City of Tamarac to amend Chapter 5.6 of the
City Code of Ordinances, entitled "Telecommunications."
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE
CITY OF TAMARAC, FLORIDA:
SECTION 1: That the foregoing "WHEREAS' clauses are hereby ratified and
confirmed as being true and correct and are hereby made a specific part of the Ordinance
upon adoption hereof:
SECTION 2: Chapter 5.6 of the City Code, entitled "Telecommunications,"
Sections 1 through 16, are hereby amended as follows:
Section 3. Definitions.
F. "Person" means any individual, corporation, partnership, association,
joint venture, estate, trust, syndicate, fiduciary, organization or legal entity of any kind,
and any lawful trustee, successor, assignee, transferee or personal representative
thereof, and all other groups or combinations, but shall not mean +he Gi y
H. "Public Rights -of -Way" means the surface, the airspace above the
surface and the area below the surface of any public street, highway, road, boulevard,
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March 6, 2001
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concourse, driveway, freeway, thoroughfare, parkway, sidewalk, bridge, tunnel, paF
pier,watepway, dGGk, bulkhead, wharf, court, lane, path, alley, way, drive, circle, public
easement, public place, or any other property for which the City is the authority that has
jurisdiction and control and may lawfully grant access to such property pursuant to
applicable law. "Public Rights -of -Way" shall not include any real or personal City
property except as described above and shall not include City buildings, fixtures, or
other structures or improvements, regardless of whether they are situated in the Public
Rights -of -Way.
Section 4. Registration.
A. Each Telecommunications Service Provider that desires to Ip_ __ace, erect,
construct, install, locate, maintain, repair, extend, expand, or relocate use any
Telecommunications Facilities in, under, over or across any Public Right -of -Way in the
City shall be considered to be using the Rights -of -Way and shall be required to first
register with the City in accordance with the terms of this Ordinance.
D. The Registrant shall not in any way displace, damage, or destroy any
facilities, including, but not limited to, gas, sewer, water main, pipe, cable, conduit, fiber
optic, or other pathway or any other facilities belonging to the City, OF to aRY third pa Fty
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March 6, 2001
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with a'! of the requirements whinh onnnrnp—any S Unh expFess „,+h„ri+.,. The Registrant
shall be liable to the City for the costs of any repairs made necessary by any such
displacement, damage or destruction, of facilities belonging to the City, and the
Registrant shall pay costs upon demand. In case of an emergency, the City may
commence repairs without any prior notice to the Registrant. The term emergency shall
mean a condition that may affect the public's health, safety or welfare. In the event of
an emergency the City may cause the repairs to be made at the Facility's owner
expense, utilizing City employees, agents or contractors, charge any and all costs, and
require reimbursement within thirty (30) days after the submission of the bill by the City
to the Registrant. In all other non -emergency circumstances, the Registrant shall be
given prior written notice. If such repairs are not performed in a reasonable and
satisfactory manner within (30) calendar days after receiving notice, the City may,
cause the repairs to be made at the Facility's owner expense, utilizing City employees,
agents or contactors, charge any and all costs and require reimbursement within thirty
(30) days after the submission of the bill by the City to the Registrant.
Section 7. Underground Installation; Relocation.
Upon abandonment of a Facility within the Public Rights -of -Way of the
City, the owner of the Facility shall notify the City within ninety (90) days. Fallowing
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March 6, 2001
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receipt of such notice, the City may direct the Facility owner to remove all or any portion
of the Facility if the City determines that such removal will be in the best interest of the
public health, safety and welfare. In the event that the City does not direct the removal
of the abandoned Facility by the owner of the Facility and the Facility owner chooses
not to remove its facilities, then such owner, by its notice of abandonment to the City,
shall be deemed to consent to the alteration or removal of all or any portion of the
Facility by another utility or person.
Section 8. Use of Rights -of -Way
D. To the extent not otherwise prohibited by State or Federal law, the City
shall have the power to prohibit or limit the placement of new or additional facilities
within the Public Rights -of -Way, if there is insufficient space to accommodate all of the
requests to occupy or use the Rights -of -Way, for the protection of existing facilities in
the Public Rights -of -Way, or for City plans for public improvements or development
prejeEts which have been determined by the City to be in the public interest.
E. All Facilities shall be installed, located and maintained so as not to
unreasonably interfere with the use of the Public Rights -of -Way by the public and to
cause unreasonable interference with the rights and convenience of property owners
who adjoin any of the Public Rights -of -Way. The Registrant shall_ be liable for costs and
expenses for the displacement, damage or destruction of any irrigation system,
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March 6, 2001
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driveway or landscaping within the Public Rights -of -Way, -to the extent not covered by
the construction bond. The Registrant shall make such repairs -upon request of the
affected property owner. In the event the Registrant fails to _make_ the appropriate
repairs, the affected property owner may file a complaint with the City Manager or a
designee. If such repairs are not performed in a reasonable and_satisfacto_ry manner
within the thirty (30) calendar days after receiving notice, the City may cause the repairs
to be made at the Facility's owner expense, utilizing City employees, agents nts or
contractors, charge any and all costs, and require reimbursement within thirty) days
after the submission of the bill by the City to the Registrant. After thirty 30 days, the
City may obtain reimbursement from the security fund. The "prior written notice"
described in this paragraph shall be considered a final written decision for purposes of
the appellate rights outlined in Subsection (0) of this Section.
Q. To the extent that any Person or Registrant Leases or otherwise uses the
facilities of an entity that is duly registered or otherwise authorized to place and
maintain facilities in the Public Rights -of -Way of the City, the Person or Registrant shall
make no claim, nor assert any right, which will impede the lawful exercise of the City's
rights, including requiring the removal of such facilities from the Public Rights -of -Way of
the City, regardless of the effect of the Person's ability to provide service or on the
Registrant's ability to maintain its own telecommunications facilities in the Public Rights -
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March 6, 2001
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of -Way of the City. Any Person or Registrant leasing or otherwise using the facilities of
a Registrant or other entity authorized to place and maintain facilities in the Public
Rights -of -Way, may rovide the City with notice of its use of such facilities describing
the location of the facilities_ used and providing the City with an address to which notices
from the -City should be sent. In the event the City exercises its lawful authority to
require the removal or relocation of any such facilities, such Person or Registrant
leasing or otherwise using the facilities of a Registrant or other entity authorized to
place and maintain facilities in the Public Rights -of -Way, shall receive notice from the
City of such removal or relocation of such facilities. The failure of the City to provide
notice under this paragraph, shall not render the Cit 's actions under this paragraph
invalid.
Section 9. Involuntary Termination of Registration
Termination of Registration. The involuntary termination of a registration may
only be accomplished by an action of the City Commission. The City may declare the
registration terminated and revoke and cancel all privileges granted under that
registration if (a) a federal or state authority suspends, denies, or revokes a Registrant's
certification to provide telecommunications service, (b) the Registrant's use of the public
right-of-way presents an extraordinary danger to the general public or other users of the
right-of-way, or (c) the Registrant abandons all of its facilities. Prior to such termination
by the City resulting from a violation of any of the provisions of this subparagraph, the
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March 6, 2001
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Registrant shall be notified by the City Manager with a written notice setting forth all
matters pertinent to such violation, and describing the action of the City with respect
thereto. The Registrant shall have sixty (60) days after receipt of such notice within
which to cure the violation, or within which to present a plan, satisfactory to the City
Commission, to accomplish the same. In the event of an emergency, the City may take
appropriate action in accordance with Section 7(D) of this Ordinance. In the event of a
vote by the City Commission to terminate, the Registrant shall, within a reasonable time
following such termination, remove or abandon the facilities and take such steps as are
necessary to render every portion of the facilities remaining within the public right-of-
way of the City safe. If the Registrant has either abandoned its facilities or chooses to
abandon its facilities, the City may either (1) require the Registrant's bonding company
to remove some or all of the facilities from the public right-of-way and restore the public
right-of-way to its proper condition or (2) the City may require that some or all of the
facilities be removed and the public right-of-way restored to its proper condition at the
Registrant's expense, utilizing City employees, agents or contractors, and charge any
and all costs, and require reimbursement. The obligations of the Registrant and
bonding company hereunder shall survive, fora period of twenty four 24 months from
the termination of the registration. In the event of a termination of registration, this
provision does not permit the City to cause the removal of any facilities that are used to
provide another service for which the Registrant holds a valid certification with the
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March 6, 2001
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governing federal and state telecommunications agencies and is properly registered
with the City, for such certificated service, under this Ordinance.
Section 12. Insurance; Surety; Indemnification.
F. The indemnification requirements shall survive and be in effect after the
termination or cancellation of a Reaistration.
Section 13. Construction Bond.
A. Except in the case of an emergency, which shall include without limitation
an out of service condition affecting 911 service, prior to performing any work in the
Public Rights -of -Way, a Registrant shall establish in the City's favor a construction bond
in an amount specified in an engineering permit or other authorization as necessary to
ensure the Registrant's faithful performance of the construction or otheF work in the
Public Rights -of -Way, in accordance with applicable sections of the City Code. The
amount of the construction bond shall be as set forth in the engineering permit, and
may be modified in the City Manager's reasonable discretion, based on the cost of the
restoration to take place in the Public Rights -Of -Way, and any previous history of the
Registrant concerning restoration within the Public Rights -of -Way of the City.
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March 6, 2001
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Section 14. Security Fund.
At the time of the Registrant's application, the Registrant shall file with the City,
for City approval, a cash security, a bond, or irrevocable letter of credit, in the sum of
Twenty Five Thousand Dollars ($25,000.00), in a form acceptable to the City Manager
or a designee. The cash security, bond, or irrevocable letter of credit, shall be to
secure the full and faithful performance by the Registrant of all requirements, duties and
obligations imposed upon Registrant by the provisions of this Ordinance, and to pay
any taxes, fees or liens owed to the City. The bond or irrevocable letter of credit shall
be furnished annually, or as frequently as necessary, and shall provide a continuing
guarantee of the Registrant's full and faithful performance at all times. Should the City
draw upon the cash security, bond, or irrevocable letter of credit, the City shall promptly
notify the Registrant, and the Registrant shall promptly restore the cash security, annual
bond, or irrevocable letter of credit, to full required amount. In the event a Registrant
fails to perform its duties and obligations imposed upon the Registrant by the provisions
of this Ordinance, subject to Section 15 below, there shall be recoverable, jointly and
severally from the principal and surety of the bond, any damages or loss up to the full
amount of the bond. The cash security, bond or letter of credit may be waived by the
City where the City determines that the Security Fund is not necessary to secure the
required performance under this Ordinance. In iio„ ^f +ha Gash con„rity, hood o
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1
1
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March 6, 2001
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letter Of Gredit, bond or guaFaRte FeAH.Fed by this- SeGtian, the City rnay4R
rating of no looms+ than e. The City may from time to time increase the amount of the
security fund to reflect the increased risks to the City and to the public.
SECTION 3: That it is the intention of the City Commission and it is hereby
ordained that the provisions of this Ordinance shall become and be made a part of the
Code of Ordinances of the City of Tamarac, Florida, and that the Sections of this
Ordinance may be renumbered, relettered, and the word "Ordinance" may be changed to
"Section", "Article" or such other word or phrase in order to accomplish such intention.
SECTION 4: All Ordinances or parts of Ordinances in conflict herewith are
hereby repealed to the extent of such conflict.
SECTION 5: If any provision of this Ordinance or the application thereof to
any person or circumstance is held invalid, such invalidity shall not affect other provisions
or applications of this Ordinance that can be given affect without the invalid provision or
application, and to this end the provisions of this Ordinance are declared to be severable.
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March 6, 2001
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SECTION 6: This Ordinance shall become effective immediately upon its
passage and adoption.
PASSED, FIRST READING this 141h day of March, 2001.
PASSED, SECOND READING this 281h day of March, 2001.
7E—SCHREIBER, MAYOR
ATTEST:
RECORD OF COMMISSION VOTE:
MAYOR SCHREIBER
MA}kIQN- WENSON, CMC DIST 1: COMM. PORTNER
CITY_ CLERK DIST 2: COMM. MISHKIN
DIST 3: V/M SULTANOF
1 HEREBY CERTIFY that have DIST 4: COMM. ROBERTS
approved tWs`RESOLUT ON as
MITCHELL S. KRAi
CITY ATTORNEY
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Temp. Ord. # 1917 — December 5, 2000
Revislon # 9 — January 4, 2001
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CITY OF TAMARAC, FLORIDA
ORDINANCE NO. 0-2001- 01
AN ORDINANCE OF THE CITY COMMISSION OF THE CITY
OF TAMARAC, FLORIDA, CREATING CHAPTER 5.6 OF THE
CITY CODE, ENTITLED "TELECOMMUNICATIONS,"
SECTIONS 1 THROUGH 16, PROVIDING THE TERMS AND
CONDITIONS FOR THE ERECTING, CONSTRUCTING, AND
MAINTAINING OF A TELECOMMUNICATIONS FACILITY IN
THE CITY'S PUBLIC RIGHTS OF WAY FOR THE
PROVISION OF TELECOMMUNICATIONS SERVICE;
PROVIDING FOR CODIFICATION; PROVIDING FOR
CONFLICTS; PROVIDING FOR SAVINGS; PROVIDING FOR
SEVERABILITY; AND PROVIDING FOR AN EFFECTIVE
DATE.
WHEREAS, the City Commission of the City of Tamarac has determined it is in the
public interest of the City to permit the placement of one (1) or more Telecommunications
Systems or Facilities in the Public Rights -of -Way of the City; and
WHEREAS, it is the intent of the City Commission to encourage competition by
providing access to the Public Rights -of -Way to the City on a nondiscriminatory basis; and
WHEREAS, Section 364.0361, Florida Statutes, requires that a local government
treat Telecommunications Companies in a nondiscriminatory manner when exercising the
authority to manage the Public Rights -of -Way; and
WHEREAS, Section 337.29 (3), Florida Statutes, provides that a municipality shall
have the same governmental, corporate, and propriety powers with relation to any public
road or right-of-way within the municipality that the municipality has with relation to other
public roads and rights -of -way within the municipality; and
Temp. Ord: # 1917 — December 5, 2000
Revision # 8 — January 3, 2001
Page 2
WHEREAS, it is the intention of the City Commission to recognize the interests of
Telecommunications Service Providers to install their facilities in Public Rights -of -Way as a
means of promoting the use of such technology for the good of the people of the City; and
WHEREAS, it is the intent of the City Commission to exercise the City's authority
over the Telecommunications Service Providers' occupancy of the Public Rights -of -Way;
and
WHEREAS, these policies are in complete accord with both the letter and the spirit
of the Communications Act of 1934, as amended; and
WHEREAS, the enactment of the Telecommunications Act of 1996, amendments to
applicable statutes of the State of Florida and developments in telecommunications
technology and services have resulted in an increase in the number of persons certified by
the Florida Public Service Commission to provide Telecommunications Services; and
WHEREAS, various Telecommunications Service Providers have requested the
right to occupy the Public Rights -of -Way of the City for the purpose of installing,
maintaining and operating Telecommunications Systems or Facilities; and
WHEREAS, it is the City's intent to treat each Telecommunications Service Provider
on a competitively neutral and nondiscriminatory basis in granting access for use of the
City's Public Rights -of -Way; and
WHEREAS, the Public Rights -of -Way subject to the jurisdiction and control of the
City (1) are critical to the travel of persons and the transport of goods and other tangibles
in the business and social life of the community by all citizens; (2) are a unique and
Temp. Ord. # 1917 — December 5, 2000
Revision # 8 — January 3, 2001
Page 3
physically limited resource and proper management by the City is necessary to maximize
efficiency, minimize the costs to the taxpayers of the foregoing uses, and to minimize the
inconvenience to and negative effects upon the public from such facilities' construction,
placement, relocation, and maintenance in the Public Rights -of -Way; and (3) are intended
for public uses and must be managed and controlled consistently with that intent; and
WHEREAS, it is the intent of the City to exercise its authority to impose fees and
adopt reasonable rules and regulations to the fullest extent allowed by Federal and State
law; and
WHEREAS, the City Manager recommends approval; and
WHEREAS, the City Commission of the City of Tamarac, Florida deems it to be in
the best interest of the citizens and residents of the City of Tamarac to create Chapter 5.6
of the City Code of Ordinances, entitled "Telecommunications."
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE
CITY OF TAMARAC, FLORIDA, THAT:
SECTION 1. Creation.
Chapter 5.6 of the City Code, entitled "Telecommunications," Sections 1 through 16,
is hereby created as follows:
Temp. Ord. # 1917 — December 5, 2000
Revision # 8 — January 3, 2001
Page 4
Section 1. Title.
This Ordinance shall be known and may be cited as the City of Tamarac
Telecommunications Ordinance.
Section 2. Intent and Purpose.
It is the intent of the City of Tamarac to promote the public health, safety, and
general welfare by providing for the use of the Public Rights -of -Way within the City, to
adopt and administer reasonable regulations consistent with State and Federal Law,
including Sections 337.401, 362.01, and 337.29(3) Florida Statutes, and the City's home -
rule authority in accordance with the provisions of the Telecommunications Act of 1996, to
provide for the payment of compensation and other consideration by a
Telecommunications Service Provider to the City for the cost of regulating and maintaining
the Public Rights -of -Way and for the privilege of using the Public Rights -of -Way within the
City for constructing and maintaining Telecommunications Facilities, and to establish the
reasonable regulations concerning the use of the Public Rights -of -Way by all
Telecommunications Service Providers after the effective date of this Ordinance. In
regulating its Public Rights -of -Way, the City shall be governed by and shall comply with all
applicable Federal, State and local laws and regulations.
Section 3. Definitions.
For the purpose of this Ordinance, the following terms, phrases, words and
derivations shall have the meanings given herein. When not inconsistent with the context,
words used in the present tense include the future tense, words in the plural number
Temp. Ord. # 1917 — December 5, 2000
Revision # 8 — January3, 2001
Page 5
include the singular number, and words in the singular number include the plural number.
The words "shall" and "will" are mandatory, and "may" is permissive. Words not otherwise
defined herein or in any permit that might be granted hereunder shall be given the meaning
set forth in the Communications Act of 1934, 47 U.S.C. § 151 et seq., as amended
(collectively the "Communications Act"), and, if not defined therein, as defined by Florida
Statute; and, if not defined therein, be construed to mean the common and ordinary
meaning.
A. "City" means the City of Tamarac, an incorporated municipality of the State
of Florida, in its present form or in any later reorganized, consolidated, or enlarged form.
B. "Registrant" or "Facility Owner" shall mean a Telecommunications
Company or other person which seeks to use or occupy the Public Rights -of -Way that has
registered with the City in accordance with the provisions of this Ordinance.
C. "Registration" and "Register" shall mean the process described in Section
4 whereby a Telecommunications Service Provider provides certain information to the City.
D. "Gross Receipts" shall mean all cash, credits or property of any kind or
nature, with deductions for bad debt expense, reported as revenue items to the
Registrant's audited income statements arising from, or attributable to Recurring Local
Service Revenues of Registrant within the City. The City reserves the right to amend the
definition contained herein as permitted by applicable Law. The definition herein shall not
be applicable as of October 1, 2001; or such other date as provided by law, provided that
Temp. Ord. # 1917 — December 5, 2000
Revision # 8 — January 3, 2001
Page 6
Section 337.401, Florida Statutes is amended effective October 1, 2001, as set forth in
Chapter 00-260, Laws of Florida, 2000.
E. "Law" means any local, State or Federal legislative, judicial or administrative
order, certificate, decision, statute, constitution, ordinance, resolution, regulation, rule, tariff,
guideline or other requirements, as amended, now in effect or subsequently enacted or
issued including, but not limited to, the Communications Act of 1934, 47 U.S.C. § 151 et
seq. as amended by the Telecommunications Act of 1996, Pub L. No. 104-104 § 101(a),
110 Stat. 70 codified at 47 U.S.C., and all orders, rules, tariffs, guidelines and regulations
issued by the Federal Communications Commission or the governing State authority
pursuant thereto.
F. "Person" means any individual, corporation, partnership, association, joint
venture, estate, trust, syndicate, fiduciary, organization or legal entity of any kind, and any
lawful trustee, successor, assignee, transferee or personal representative thereof, and all
other groups or combinations, but shall not mean the City.
G. "PSC" means the Florida Public Service Commission.
H. "Public Rights -of -Way" means the surface, the airspace above the surface
and the area below the surface of any public street, highway, road, boulevard, concourse,
driveway, freeway, thoroughfare, parkway, sidewalk, bridge, tunnel, park, waterway, dock,
bulkhead, wharf, pier, court, lane, path, alley, way, drive, circle, public easement, public
place, or any other property for which the City is the authority that has jurisdiction and
control and may lawfully grant access to such property pursuant to applicable law. "Public
Temp. Ord. # 1917 — December 5, 2000
Revision # 8 — January 3, 2001
Page 7
Rights -of -Way" shall not include any real or personal City property except as described
above and shall not include City buildings, fixtures, or other structures or improvements,
regardless of whether they are situated in the Public Rights -of -Way.
I. "Recurring Local Service Revenues" means revenues from the monthly
recurring charges for local service, including but not limited to (1) recurring basic area
revenues derived from the provision of flat -rated basic area services; (2) recurring optional
extended area revenues derived from the provision of optional extended area services; (3)
local private line revenues derived from local services which provide communication
between specific locations, either through dedicated circuits, private switching
arrangements, predefined transmission paths, whether virtual or physical, or any other
method of providing such services; (4) revenues from the sale of local services for resale;
and (5) other local service revenues from the provision of secondary features that are
integrated with the telecommunications network, including, without limitation, services such
as call forwarding, call waiting, and touchtone line service. Except as provided herein,
revenues from all recurring local services provided by a Registrant over a
Telecommunications Facility or System in the Public Rights -of -Way shall constitute
Recurring Local Service Revenues subject to this Ordinance. Recurring Local Service
Revenues do not include revenues from (1) toll charges for the transmission of voice, data,
video, or other information; (2) access charges paid by carriers for origination and/or
termination of toll telephone service as defined in Section 203.012(7), Florida Statutes, or
other charges required by the Federal Communications Commission which are directly
Temp. Ord. # 1917 -- December 5, 2000
Revision # 8 — January 3, 2001
Page 8
passed through to end users; (3) interstate service; (4) ancillary services such as directory
advertising, directory assistance, detailed billing services, inside wire maintenance plans,
bad check charges, and non -recurring charges for installation, move, changes or
termination services; (5) cellular mobile telephone or telecommunications services; or
specialized mobile telephone or telecommunications service; or specialized mobile radio,
or pagers or paging service, or related ancillary services; (6) public telephone charges
collected on site; (7) teletypewriter or computer exchange services as defined in Section
203.012(6), Florida Statutes; or (8) local message rated (message, unit or time basis) and
minutes of use charges in excess of the minimum flat -rated charges for similar services.
This definition shall not be applicable as of October 1, 2001, or such other date as provided
by law, provided that Section 337.401, Florida Statutes is amended effective October 1,
2001, as set forth in Chapter 00-260, Laws of Florida, 2000.
J. "Telecommunications Company" has the meaning set forth in Section
364.02(12), Florida Statutes, as amended. The term "Telecommunications Company"
does not include an open video system or a cable service provider.
K. "Telecommunications Service" shall include, without limitation, the
transmission, conveyance or routing of voice, data, audio, video, or any other information
or signals to a point, or between or among points, by and through electronic, radio,
satellite, cable optical, microwave, or other medium or method now in existence or
hereafter devised, regardless of the protocol used for such transmission or conveyance.
"Telecommunications Service", as contemplated herein, does not include the provision
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Revision # 8 — January 3, 2001
Page 9
of service via an open video system or a cable service which shall require separate
authorizations from the City.
L. "Telecommunications Service Provider" shall refer to any person making
available or providing Telecommunications Services, as defined herein, through the use of
a Telecommunications Facility in the Public Rights -of -Way.
M. "Telecommunications Facilities", "Facilities" or "Systems" means any
facility, equipment or property, including, but not limited to, cables, conduits, converters,
splice boxes, cabinets, handholes, manholes, vaults, equipment, drains, surface location
markers, appurtenances, located, to be located, used, or intended to be used, in the Public
Rights -of -Way of the City to transmit, convey, route, receive, distribute, provide or offer
Telecommunications Services.
Section 4. Registration.
A. Each Telecommunications Service Provider that desires to erect, construct,
install, maintain, repair, expand, or use any Telecommunications Facilities in, under, over
or across any Public Right -of -Way in the City shall first Register with the City in accordance
with the terms of this Ordinance.
B. Any Telecommunications Service Provider desiring to use the Public Right -of -
Way shall file a Registration with the City, which shall include the following information:
1. identity of the applicant and name, address and telephone number of
applicant's primary contact person in connection with the Registration;
Temp. Ord. # 1917 — December 5, 2000
Revision # 8 — January 3, 2001
Page 10
2. a statement of whether the applicant is or expects to be a Local Service
Provider, and/or a Toll Service Provider, for registrations submitted prior to October 1,
2001;
3. evidence of the insurance coverage required under this Ordinance and
acknowledgment that Registrant has received and reviewed a copy of this Ordinance;
4. a copy of Federal and/or State Certification authorizing the applicant to
provide Telecommunications Services; and
5. a Security fund in accordance with this Ordinance.
C. The City will review the information submitted by the applicant. Such review
will be by the City Manager or his or her designee. If the applicant submits information in
accordance with Section 4(B) above, the Registration shall be effective and the City shall
notify the applicant of the effectiveness of Registration in writing. If the City determines
that the information has not been submitted in accordance with Section 4(B) above, the
City shall notify the applicant of the non -effectiveness of Registration, and reasons for the
non -effectiveness, in writing. The City shall so reply to an applicant within thirty (30) days
after receipt of registration information from the applicant. A Registrant may cancel a
Registration upon written notice to the City noticing that it will no longer maintain Facilities
in the Public Rights -of -Way and will no longer need to pull permits to perform work in
Public Right -of -Way. Within 30 days of any change in the information required to be
submitted pursuant to Section 4(B), Registrant shall provide updated information to the
City.
Temp. Ord. # 1917 — December 5, 2000
Revision # 8 -- January 3, 2001
Page 11
D. A Registration shall not convey title, equitable or legal, in the Public Right -of -
Way. Registrants may only occupy Public Rights -of -Way for Telecommunications
Facilities, Registration does not excuse a Telecommunications Provider from obtaining
appropriate access or pole attachment before locating its Facilities on another Person's
facilities. Registration does not excuse a Provider from complying with all applicable City
ordinances, including this Ordinance.
E. Each application for Registration or transfer shall be accompanied by a non-
refundable application fee in the amount of Eight Hundred Dollars ($800.00). The fee
amount shall be equal to the City's costs and expenses incurred in connection with
approving the Registration or transfer. If the application fee is insufficient to coverall costs
or expenses incurred by the City in connection with approval of the Registration or transfer
the applicant shall reimburse the City for any such costs and expenses in excess of the
application fee. Fee amounts, may be amended from time to time, by Resolution of the
City Commission. This application fee may be credited against fees due under Section 5.
F. Registration with the City shall be nonexclusive. Registration does not
establish any priority for the use of the Public Right -of -Way by a Registrant or any other
Registrants. Registrations are expressly subject to any future amendment to or
replacement of this Ordinance and further subject to any additional City Ordinances, as
well as any state or federal laws that may be enacted during the term of the Registration.
Temp. Ord. # 1917 — December 5, 2000
Revision # 8 -- January 3, 2001
Page 12
Section 5. Fees and Payments.
A. In consideration for the rights, privileges and permission granted hereunder, a
Registrant hereunder shall pay to the City annually a sum equal to one percent (1%) of
Gross Receipts of the Registrant on Recurring Local Service Revenues for services
provided within the corporate limits of the City. Included within such one percent (1 %)
maximum fee or consideration are all taxes, licenses, fees, in -kind contributions accepted
pursuant to Florida Statute 337.401(5), and other impositions except ad valorem taxes and
amounts for assessments for special benefits, such as sidewalks, street pavings, and
similar improvements, and occupational license taxes levied or imposed by the City upon a
Registrant. In the event that applicable law currently permits or is amended to permit the
City to collect a fee higher than one percent (1 %), or permits the City to calculate the fee
on revenues not specified herein, the Registrant shall pay, following written notice from the
City, its fee payments to the City to that higher amount on the effective date of such law. In
the event applicable law is amended to require the City to collect a fee lower than the
current statutory limit, the City shall take all necessary steps to conform the requirements
hereof to applicable law. All of the aforestated payments shall be made to the City
quarterly, with such payments made within twenty (20) days following the end of each
calendar quarter. Payments received after the due date stated herein shall be subject to
interest in accordance with Section 55.03, Florida Statutes, or its successors.
B. A Registrant, other than a Registrant providing services as defined in Section
203.012(3), Florida Statutes, for occupying and using the Public Rights -of -Way shall pay
Temp. Ord. # 1917 — December 5, 2000
Revision # 8 — January 3, 2001
Page 13
to the City annually no less than Five Hundred Dollars ($500) per linear mile of any cable,
fiber optic, or other pathway that makes physical use of the Public Rights -of -Way. The City
may adopt additional fees or other consideration, provided that any fee or other
consideration imposed by the City in excess of Five Hundred Dollars ($500) per linear mile
shall be applied in a nondiscriminatory manner and shall not exceed the sum of:
(1) Costs directly related to the inconvenience or impairment solely
caused by the disturbance of the Public Rights -of -Way;
(2) The reasonable cost of the regulatory activity of the City; and
(3) The proportionate share of cost of land for such street, alley or other
public way attributable to utilization of the Public Rights -of -Way by a Telecommunications
Service Provider.
The fee or other consideration imposed pursuant to this subsection shall not apply in
any manner to any Telecommunications Company that provides Telecommunications
Services as defined in Section 203.012(3), Florida Statutes for any services provided by
such Telecommunications Company.
C. Notwithstanding anything herein to the contrary, the City shall at all times
hereby require the maximum compensation allowed under applicable law.
D. Except to the extent prohibited by applicable law: (1) the fee payments to be
made pursuant to this Section shall not be deemed to be in the nature of a tax; (2) such fee
payments shall be in addition to any and all taxes of a general applicability; (3) a Registrant
shall not have or make any claim for any deduction or other credit of all or any part of the
Temp. Ord. # 1917 -- December 5, 2000
Revision # 8 — January 3, 2001
Page 14
amount of said fee payments from or against any of said City taxes or other fees or
charges of general applicability which Registrant is required to pay to the City, except as
required by Law; and (4) the fee specified herein is the consideration for use of the Public
Rights -of -Way, including all public easements, forthe purpose of installing and maintaining
a Telecommunications Facility.
E. The payments required under this Section shall not apply as of October 1,
2001; or such other date as provided by law, provided that Section 337.401, Florida
Statutes is amended effective October 1, 2001, as set forth in Chapter 00-260, Laws of
Florida, 2000.
Section 6. Reports and Records.
A. The City may, at its option, upon sixty (60) days notice to the Registrant, but
in no event more often than once per year, examine the records and accounting files, and
such other books and records, if such records relate to the calculation of fee payments.
The examination of such books, accounts, records or other materials necessary for
determination of compliance with the terms, provisions, and requirements of this Ordinance
shall be during regular hours of business of the Registrant at an office of the Registrant
located within the County, or at another location satisfactory to the City. In the event that
the City, pursuant to an audit, determines that there exists a discrepancy in the amount
paid and the amount owed to the City by the Registrant in excess of two percent (2%),
Registrant shall pay all reasonable costs, fees and expenses of the audit. This paragraph
shall not apply for periods after October 1, 2001, or such other date as provided by law,
Temp. Ord. # 1917 — December 5, 2000
Revision # 8 - January 3, 2001
Page 15
provided that Section 337.401, Florida Statutes is amended effective October 1, 2001, as
set forth in Chapter 00-260, Laws of Florida, 2000.
B. Upon reasonable request, a Registrant shall provide the following documents
to the City as received or filed:
(1) Any pleadings, petitions, notices, and documents, regarding any legal
proceeding involving any provisions of this Ordinance and which are reasonably necessary
for the City to protect its interests under this Ordinance.
(2) Any request for protection under bankruptcy laws, or any judgment
related to a declaration of bankruptcy.
(3) Nothing in this section shall affect the remedies the Registrant has
available under applicable law.
C. In addition, the City may, at its option, and upon reasonable notice to the
Registrant, inspect the Facilities in the Public Rights -of -Way to ensure the safety of its
residents.
D. The City shall keep any documentation, books and records of the Registrant
confidential to the extent required under Florida Statutes.
Section 7. Underground Installation; Relocation.
A. To the extent required by applicable City rules and regulations and not
inconsistent with applicable PSC rules and regulations, a Registrant shall install its
Facilities underground.
Temp. Ord. # 1917 — December 5, 2000
Revision # 8 — January 3, 2001
Page 16
B. Every Registrant that places or constructs Telecommunications Facilities
underground shall maintain appropriate participation in the regional notification center for
subsurface installations.
C. Any Telecommunications Facilities heretofore or hereafter placed upon,
under, over, or along any Public Rights -of -Way that is found by the City to be unreasonably
interfering in any way with the convenient, safe or continuous use or the maintenance,
improvement, extension or expansion of such Public Rights -of -Way shall, upon written
notice to the Registrant or its agent, be removed or relocated, within thirty (30) days of
such notice, by such Registrant at its own expense in accordance with Section 337.403,
Florida Statutes. The City Manager may extend the time within which a Registrant shall
remove or relocate a Telecommunications Facility, for good cause shown.
D. The Registrant shall not in any way displace, damage, or destroy any
facilities, including, but not limited to, gas, sewer, water main, pipe, cable, conduit, fiber
optic, or other pathway or any other facilities belonging to the City, or to any third party who
placed such facilities therein by express authority of the City and in compliance with all of
the requirements which accompany such express authority. The Registrant shall be liable
to the City for the costs of any repairs made necessary by any such displacement, damage
or destruction, of facilities belonging to the City, and the Registrant shall pay such costs
upon demand. In the case of an emergency, the City may commence repairs without any
prior notice to the Registrant. The term emergency shall mean a condition that may affect
the public's health, safety or welfare. In the event of an emergency the City may cause the
Temp. Ord. # 1917 -- December 5, 2000
Revision # 8 — January 3, 2001
Page 17
repairs to be made at the Facility's owner expense, utilizing City employees, agents or
contractors, charge any and all costs, and require reimbursement within thirty (30) days
after the submission of the bill by the City to the Registrant. In all other non -emergency
circumstances, the Registrant shall be given prior written notice. If such repairs are not
performed in a reasonable and satisfactory manner within the thirty (30) calendar days
after receiving notice, the City may, cause the repairs to be made at the Facility's owner
expense, utilizing City employees, agents or contractors, charge any and all costs, and
require reimbursement within thirty (30) days after the submission of the bill by the City to
the Registrant.
E. Subject to Section 337.403, Florida Statutes, whenever an order of the City
requires such removal or change in the location of any Telecommunications Facility from
the Public Rights -of -Way, and the Facility owner fails to remove or change the same at its
own expense to conform to the directive within the time stated in the notice, the City may
proceed to cause the Telecommunications Facility to be removed. The expense thereby
incurred except as provided in Section 337.403(1)(a)-(c), shall be paid out of any money
available therefor, and such expense shall be charged against the owner of the
Telecommunications Facility and levied, collected and paid to the City.
F. Subject to Section 337.404, Florida Statutes, whenever it shall be necessary
for the City to remove or relocate any Telecommunications Facility, the owner of the
Telecommunications Facility, or the owner's chief agent, shall be given written notice of
such removal or relocation and requiring the payment of the costs thereof, and shall be
Temp. Ord. # 1917 — December 5, 2000
Revision # 8 — January 3, 2001
Page 18
given reasonable time, which shall not be less than twenty (20) nor more than thirty (30)
days in which to file an appeal with the City Commission to contest the reasonableness of
the order. Upon receipt of a written appeal, the City Commission shall place the matter on
the Commission's agenda for consideration within forty-five (45) working days. Should the
owner or the owner's representative not appear, the determination of the cost to the owner
shall be final in accordance with Section 337.404, Florida Statutes.
G. A final order of the City imposed pursuant to Florida Statutes, and applicable
provisions of the City Code, if any, shall constitute a lien on any property of the owner and
may be enforced as provided therein.
H. The City retains the right and privilege to cut or remove any Facilities located
within the Public Rights -of -Way of the City, as the City Manager in his/her reasonable
discretion may determine to be necessary, appropriate or useful in response to any public
health or safety emergency. If circumstances permit, the City shall attempt to notify the
owner of the Facility, if known, prior to cutting or removing a Facility and shall notify the
owner of the Facility, if known, after cutting or removing a Facility.
Upon abandonment of a Facility within the Public Rights -of -Way of the City,
the owner of the Facility shall notify the City within ninety (90) days. Following receipt of
such notice, the City may direct the Facility owner to remove all or any portion of the
Facility if the City determines that such removal will be in the best interest of the public
health, safety and welfare. In the event that the City does not direct the removal of the
abandoned Facility by the owner of the Facility, such owner, by its notice of abandonment
Temp. Ord. # 1917 — December 5, 2000
Revision # 8 — January 3, 2001
Page 19
to the City, shall be deemed to consent to the alteration or removal of all or any portion of
the Facility by another utility or person.
Section 8. Use of Rights -of -Way.
A. A Facility owner agrees at all times to comply with and abide by all applicable
provisions of the State statutes and local laws including, but not limited to, applicable
zoning regulations not inconsistent with State and Federal laws.
B. Except in the case of an emergency, which shall include without limitation an
out of service condition affecting 911 service, and which shall require subsequent
notification to the City, no Telecommunications Service Provider shall construct any Facility
on, over, above, along, upon, under, across, or within any Public Right -of -Way which
disrupts the Public Rights -of -Way without first filing an application with and obtaining a
permit from the City therefor, pursuant to applicable permitting requirements of the City,
and other applicable requirements, except as otherwise provided in this Ordinance. In
case of the repair or maintenance of an existing Facility, the City may impose lesser
requirements than those set forth herein. Unless otherwise required by the City Code, no
permit shall be required for installation and maintenance of service connections to
customers' premises where there will be no disruption of the Public Rights -of -Way.
C. As part of any permit application, with respect to new or existing facilities,
where applicable, in the Public Rights -of -Way, the Registrant shall provide a proposal for
construction of the Telecommunications Facility that sets forth at least the following:
Temp. Ord. # 1917 — December 5, 2000
Revision # 8 -- January 3, 2001
Page 20
(1) An engineering plan signed and sealed by a Florida Registered
Professional Engineer or prepared by a person who is exempt from such registration
requirements as provided in Section 471.003, Florida Statutes, identifying the location of
the proposed Facility, including a description of the Facilities to be installed, where it is to
be located, and the approximate size of Facilities and equipment that will be located in, on,
over, or above the Public Rights -of -Way.
(2) A description of the manner in which the System will be installed (i.e.
anticipated construction methods and/or techniques), the time required to construct the
System, a maintenance of traffic plan for any disruption of the Public Rights -of -Way,
information on the ability of the Public Rights -of -Way to accommodate the proposed
System, if available (such information shall be provided without certification as to
correctness, to the extent obtained from other users of the Public Rights -of -Way), and, if
appropriate given the System proposed, an estimate of the cost of restoration to the Public
Rights -of -Way. Such plan shall include the timetable for construction for each phase of the
project, and the areas of the City which will be affected.
(3) The City may request such additional information as it finds reasonably
necessary to review an application for a permit to perform work in the Public Rights -of -
Way.
D. The City shall have the power to prohibit or limit the placement of new or
additional facilities within the Public Rights -of -Way, if there is insufficient space to
accommodate all of the requests to occupy or use the rights -of -way, for the protection of
Temp. Ord. # 1917 — December 5, 2000
Revision # 8 — January 3, 2001
Page 21
existing facilities in the Public Rights -of -Way, or for City plans for public improvements or
development projects which have been determined by the City to be in the public interest.
E. All Facilities shall be installed, located and maintained so as not to
unreasonably interfere with the use of the Public Rights -of -Way by the public and to cause
unreasonable interference with the rights and convenience of property owners who adjoin
any of the Public Rights -of -Way.
F. The use of trenchless technology (i.e., directional bore method) for the
installation of Facilities in the Public Rights -of -Way as well as joint trenching and/or the co -
location of facilities in existing conduit is strongly encouraged, and should be employed
wherever possible. The City Manager may issue such additional rules and regulations
concerning the installation and maintenance of a Telecommunications Facility in the Public
Rights -of -Way, as may be consistent with applicable Law and not inconsistent with this
Ordinance.
G. All safety practices required by applicable Law or accepted industry practices
and standards shall be used during construction, maintenance, and repair of the
Telecommunications Facilities.
H. In the event that at any time during the term of the rights granted herein the
City shall lawfully elect to alter, or change the grade of, any Public Rights -of -Way, upon
reasonable notice by the City, the Registrant shall make any necessary removals, relaying
and relocations of its Telecommunications Facilities at its own expense, in accordance with
applicable Law.
Temp. Ord. # 1917 -- December 5, 2000
Revision # 8 — January 3, 2001
Page 22
A Facility owner shall obtain any and all required permits and pay any and all
required fees before commencing any construction on or otherwise disturbing any Public
Rights -of -Way as a result of its construction, except as provided herein. The Facility owner
shall, at its own expense, restore such property to as good a condition as existed prior to
commencement of work. A Registrant shall guarantee its restoration for a period of twelve
(12) months after the completion of such restoration. If such restoration is not performed in
a reasonable and satisfactory manner within thirty (30) calendar days after the completion
of construction, the City may, after prior written notice to Registrant, cause the repairs to be
made at the Facility's owner expense, utilizing City employees, agents or contractors,
charge any and all costs, and require reimbursement within thirty (30) days after the
submission of the bill by the City to the Registrant. A permit from the City constitutes
authorization to undertake only certain activities on Public Rights -of -Way in accordance
with this Ordinance, and does not create a property right or grant authority to impinge upon
the rights of others who may have an interest in the Public Rights -of -Way.
J. All ongoing installation, construction and maintenance of a
Telecommunications Facility located in the Public Rights -of -Way shall be subject to the
City's periodic inspection, upon reasonable written notice to the Facility owner, for
compliance with this Ordinance, or any applicable provisions of the City Code,
K, A Facility owner shall not place its Facilities so as to interfere unreasonably
with any other person lawfully using the Public Rights -of -Way of the City.
Temp. Ord. # 1917 — December 5, 2000
Revision # 8 — January 3, 2001
Page 23
L. A Facility owner shall cooperate with the City by providing timely and
complete information requested under this subparagraph. Upon completion of any
installation or construction of new facilities in Public Right -of -Way, at no cost to the City,
the Facility Owner shall provide such information, as may be requested, showing the exact
location of its facilities and structures, including but not limited to, as -built plans, maps,
geographical information systems, plats, construction documents, drawings and any other
information the City may find reasonably necessary. Such plans shall be provided in
digitized format showing the two-dimensional location of the Facilities based on the City's
Geographical Database datums, or other format acceptable to the City Manager. All
information required by this section shall be maintained in accordance with Section
202.195, Florida Statutes.
M. Suspension or denial of Permits. Subject to Subsection (0) below, the City
Manager or a designee may suspend or deny a permit for work in the Public Rights -of -Way
for one or more of the following reasons:
(1) violation of permit conditions, including conditions set forth in this
Ordinance or other applicable provisions of the City Code or regulations governing use of
Public Rights -of -Way; or
(2) misrepresentation or fraud by Registrant in a Registration or permit
application to the City; or
(3) failure to relocate or remove facilities as may be lawfully required by
the City; or
Temp. Ord. # 1917 -- December 5, 2000
Revision # 8 — January 3, 2001
Page 2.4
(4) failure of Registrant, its employees, agents or subcontractors, in
connection with the subject permit, to (a) place barricades or signs around the work area,
(b) take reasonable safety precautions to alert the public of work at the work site, or (c)
repair, replace and restore any sidewalk, street, alley, pavement, water, sewer or other
utility line or appurtenance, soil, landscaping, dirt or other improvement, property or
structure of any nature. In the event of such failure, the City may perform the work utilizing
City employees, agents or contractors, charge any and all costs, and require
reimbursement within thirty (30) days after the submission of the bill by the City to
Registrant.
N. Immediately after the suspension or denial of permit pursuant to this Section,
the City shall provide written notice of the violation, which notice shall contain a description
of the violation. A final written decision of the City Manager suspending a permit or
denying a permit application is subject to appeal. Upon correction of any violation that
gave rise to a suspension or denial of permit, the suspension or denial shall be lifted.
O. An appeal must be filed with the City within thirty (30) days of the date of the
final written decision(s) to be appealed. Any appeal not timely filed shall be waived. The
City Commission shall hear the appeal no later than forty-five (45) days from the end of the
thirty (30) day appeal period, unless waived by the Registrant.
P. In the event Registrant desires to use its existing facilities or to construct new
facilities for the purpose of providing other utility or non -utility services to existing or
Potential consumers, by providing cable services, or any other services other than the
Temp. Ord. # 1917 — December 5, 2000
Revision # 8 — January 3, 2001
Page 25
provision of telecommunications service, or for providing any other use to existing or
potential consumers, a Registrant shall seek such additional and separate authorization
from City for such activities as may required by applicable law. In the event that a
Registrant is acting in its proprietary function as a retail provider of telecommunications
equipment or appliances, Registrant shall seek the appropriate permits and licenses from
the City.
Q. To the extent that any Person or Registrant leases or otherwise uses the
facilities of an entity that is duly registered or otherwise authorized to place and maintain
facilities in the Public Rights -of -Way of the City, the Person or Registrant shall make no
claim, nor assert any right, which will impede the lawful exercise of the City's rights,
including requiring the removal of such facilities from the Public Rights -of -Way of the City,
regardless of the effect on the Person's ability to provide service or on the Registrant's
ability to maintain its own telecommunications facilities in the Public Rights -of -Way of the
City.
Section 9. Involuntary Termination of Registration
Termination of Registration. The involuntary termination of a registration may only
be accomplished by an action of the City Commission. The City may declare the
registration terminated and revoke and cancel all privileges granted under that registration
if (a) a federal or state authority suspends, denies, or revokes a Registrant's certification to
provide telecommunications service, (b) the Registrant's use of the public right-of-way
presents an extraordinary danger to the general public or other users of the right-of-way, or
Temp. Ord. # 1917 — December 5, 2000
Revision # 8 -- January 3, 2001
Page 26
(c) the Registrant abandons all of its facilities. Prior to such termination by the City
resulting from a violation of any of the provisions of this subparagraph, the Registrant shall
be notified by the City Manager with a written notice setting forth all matters pertinent to
such violation, and describing the action of the City with respect thereto. The Registrant
shall have sixty (60) days after receipt of such notice within which to cure the violation, or
within which to present a plan, satisfactory to the City Commission, to accomplish the
same. In the event of an emergency, the City may take appropriate action in accordance
with Section 7(D) of this Ordinance. In the event of a vote by the City Commission to
terminate, the Registrant shall, within a reasonable time following such termination, remove
or abandon the facilities and take such steps as are necessary to render every portion of
the facilities remaining within the public right-of-way of the City safe. If the Registrant has
either abandoned its facilities or chooses to abandon its facilities, the City may either (1)
require the Registrant's bonding company to remove some or all of the facilities from the
public right-of-way and restore the public right-of-way to its proper condition or (2) the City
may require that some or all of the facilities be removed and the public right-of-way
restored to its proper condition at the Registrant's expense, utilizing City employees,
agents or contractors, and charge any and all costs, and require reimbursement. The
obligations of the Registrant hereunder shall survive the termination of the registration. In
the event of a termination of registration, this provision does not permit the City to cause
the removal of any facilities that are used to provide another service for which the
Registrant holds a valid certification with the governing federal and state
Temp. Ord. # 1917 -- December 5, 2000
Revision # 8 — January 3, 2001
Page 27
telecommunications agencies and is properly registered with the City, for such certificated
service, under this Ordinance.
Section 10. Compliance with Other Laws; Police Power.
A Facility owner shall at all times be subject to and shall comply with all applicable
Federal, State and local Laws. A Facility owner shall at all times be subject to all lawful
exercises of the police power of the City, to the extent not inconsistent with applicable
Laws.
Section 11. Transfer of Control; Sale or Assignment.
A. If the Registrant transfers or assigns its Registration incident to a sale or
other transfer of the Registrant's assets, the transferee or assignee shall be obligated to
comply with the terms of this Ordinance. Written notice of any transfer, sale or assignment
shall be provided to the City within twenty (20) days of the effective date of the transfer,
sale or assignment. In order for the transfer of Registration to be effective, the transferee
or assignee must comply with the registration requirements under Section 4 of this
Ordinance.
B. Notwithstanding anything in this Ordinance, pledges in trust or mortgages or
other hypothecations of the assets of the Registrant to secure the construction, operation
or repair of its Telecommunications Facilities may be made to any person without notice to
the City. Any mortgage, pledge, lease or other encumbrance of the Telecommunications
Facilities shall be subject and subordinate to the rights of the City by virtue of this
Ordinance or other applicable law.
Temp. Ord. # 1917 — December 5, 2000
Revision # 8 - January 3, 2001
Page 28
Section 12. Insurance; Surety; Indemnification.
A. A Facility owner shall at all times maintain the following liability insurance
coverage insuring the Registrant and naming the City, its officers, boards, Commission,
Commission members, agents and employees as an additional insured: worker's
compensation and employer liability insurance to meet all requirements of Florida law and
commercial general liability insurance with respect to the construction, operation and
maintenance of the Telecommunications Facilities, and the conduct of Registrant's
business in the City, in the minimum amounts of:
(1) $1,000,000 for property damage in any one accident:
(2) $1,000,000 for personal bodily injury to any one person: and
(3) $1,000,000 for personal bodily injury in any one accident.
B. All insurance policies shall be with sureties qualified to do business in the
State of Florida and shall be with sureties with a minimum rating of AVI in Best's Key
Rating Guide, Property/Casualty Edition except as provided in (D) below. The City may
require coverage and amounts in excess of the above minimums where necessary to
reflect changing liability exposure and limits or where required by law. A registrant may
provide a portion of the insurance coverage required by Section 12(A) through excess or
umbrella policies of insurance and where such policies are in a form acceptable to the
City's Risk Manager.
C. A Registrant shall keep on file with the City certificates of insurance which
certificates shall indicate that the City, its officers, boards, Commission, Commission
Temp. Ord. # 1917 — December 5, 2000
Revision # 8 — January 3, 2001
Page 29
members, agents and employees are listed as additional insureds. In the event of a
potential claim such that the City claims insurance coverage, the Facility owner shall
immediately respond to all reasonable requests by the City for information with respect to
the scope of the insurance coverage.
D. The certificates of insurance shall further provide that any cancellation or
reduction in coverage shall not be effective unless thirty (30) days' prior written notice
thereof has been given to the City. A Registrant shall not cancel any required insurance
policy without submission of proof that the Registrant has obtained alternative insurance
satisfactory to the City, which complies with this Ordinance. A Registrant that elects to
self -insure all or a portion of the insurance coverage and limit requirements required by this
Section is not required, to the extent of such self-insurance, to comply with the requirement
for the naming of additional insureds under this Section. A Registrant that elects to self -
insure shall provide to the City evidence sufficient to demonstrate its financial ability to self -
insure the insurance coverage and limit requirements required under this Section, such as
evidence that the Registrant is a "private self insurer" under the Workers Compensation
Act. For purposes of this Section, "self -insure" shall also include a Registrant that insures
through a "captive insurer" as defined in Section 628.901, Florida Statutes.
E. A Registrant shall, at its sole cost and expense, release, indemnify, hold
harmless, and defend the City, its officials, boards, members, agents, and employees,
against any and all claims, suits, causes of action, proceedings, judgments for damages or
equitable relief, and costs and expenses sustained by the City arising out of the
Temp. Ord. # 1917 -- December 5, 2000
Revision # 8 — January 3, 2001
Page 30
construction, maintenance or operation of its Telecommunications System or Facilities in
the Public Rights -of -Way, regardless of whether the act or omission complained of is
authorized, allowed or prohibited by this Ordinance, provided, however, that a Facility
Owner's obligation hereunder shall not extend to any claims caused by the negligence of
the City. City agrees to notify the Registrant, in writing, within a reasonable time of the City
receiving notice, of any issue it determines may require indemnification. Nothing in this
Section shall prohibit the City from participating in the defense of any litigation by its own
counsel and at its own cost if in the City's reasonable belief there exists or may exist a
conflict, potential conflict or appearance of a conflict. Nothing contained in this provision
shall be construed or interpreted (1) as denying to either party any remedy or defense
available to such party under the laws of the State of Florida, and (2) as a waiver of
sovereign immunity beyond the waiver provided in Section 768.28, Florida Statutes.
Section 13. Construction Bond.
A. Except in the case of an emergency, which shall include without limitation an
out of service condition affecting 911 service, prior to performing any work in the Public
Rights -of -Way, a Registrant shall establish in the City's favor a construction bond in an
amount specified in an engineering permit or other authorization as necessary to ensure
the Registrant's faithful performance of the construction or other work in the Public Rights -
of -Way, in accordance with applicable sections of the City Code. The amount of the
construction bond shall be as set forth in the engineering permit, and may be modified in
the City Manager's reasonable discretion, based on the cost of the restoration to take place
Temp. Ord. # 1917 — December 5, 2000
Revision # 8 — January 3, 2001
Page 31
in the Public Rights -Of -Way, and any previous history of the Registrant concerning
restoration within the Public Rights -of -Way of the City.
B. In the event a Registrant subject to such a construction bond fails to complete
the work in a safe, timely and competent manner in accordance with the provisions of the
permit, there shall be recoverable, jointly and severally from the principal and surety of the
bond, any damages or loss suffered by the City as a result, up to the full amount of the
bond.
C. No less than twelve (12) months after completion of the construction and
satisfaction of all obligations in accordance with the bond, the City may eliminate the bond.
Notwithstanding, the City may require a new bond for any subsequent work performed in
the Public Right -of -Way.
D. The construction bond shall be issued by a surety having a minimum rating of
AVI in Best's Key Rating Guide, Property/Casualty Edition; shall be subject to the approval
of the City Attorney; and shall provide that:
"This bond may not be canceled, or allowed to lapse, until sixty
(60) days after receipt by the City, by certified mail, return
receipt requested, of a written notice from the issuer of the
bond of intent to cancel or not to renew".
E. The rights reserved by the City with respect to any construction bond
established pursuant to this Section are in addition to all other rights and remedies the City
may have under this Ordinance, or at law or equity.
F. The rights reserved to the City under this Section are in addition to all other
rights of the City, whether reserved in this Ordinance, or authorized by other law, and no
Temp. Ord. # 1917 — December 5, 2000
Revision # 8 — January 3, 2001
Page 32
action, proceeding or exercise of a right with respect to the construction bond will affect any
other right the City may have.
Section 14. Security Fund.
At the time of the Registrant's application, the Registrant shall file with the City, for
City approval, a cash security, a bond, or irrevocable letter of credit, in the sum of Twenty
Five Thousand Dollars ($25,000.00), in a form acceptable to the City Manager or a
designee. The cash security, bond, or irrevocable letter of credit, shall be to secure the full
and faithful performance by the Registrant of all requirements, duties and obligations
imposed upon Registrant by the provisions of this Ordinance, and to pay any taxes, fees or
liens owed to the City. The bond or irrevocable letter of credit shall be furnished annually,
or as frequently as necessary, and shall provide a continuing guarantee of the Registrant's
full and faithful performance at all times. Should the City draw upon the cash security,
bond, or irrevocable letter of credit, the City shall promptly notify the Registrant, and the
Registrant shall promptly restore the cash security, annual bond, or irrevocable letter of
credit, to full required amount. In the event a Registrant fails to perform its duties and
obligations imposed upon the Registrant by the provisions of this Ordinance, subject to
Section 15 below, there shall be recoverable, jointly and severally from the principal and
surety of the bond, any damages or lass up to the full amount of the bond. In lieu of the
cash security, bond, or irrevocable letter of credit, bond or guarantee required by this
Section, the City may in its reasonable discretion accept a corporate guarantee of the
Registrant or its parent company, if the Registrant is a publicly traded company and
Temp. Ord. # 1917 — December 5, 2000
Revision # 8 — January 3, 2001
Page 33
maintains an insurance rating of no less than A-. The City may from time to time increase
the amount of the security fund to reflect the increased risks to the City and to the public.
Section IS. Enforcement Remedies.
A. In addition to any other remedies available at law or equity or provided in this
Ordinance, the City may apply any one or combination of the following remedies in the
event a Registrant violates this Ordinance, or applicable local law or order related to use of
the Public Rights -of -Way:
(1) Failure to comply with the provisions of this Ordinance or other law
applicable to users and/or occupants of the Public Rights -Of -Way may result in imposition
of penalties to be paid by the Registrant to the City in an amount of not less than One
Hundred Dollars ($100.00) per day or part thereof that the violation continues.
(2) In addition to or instead of any other remedy, the City may seek legal
or equitable relief from any court of competent jurisdiction.
B. Before imposing a fine pursuant to this Section, the City shall give written
notice of the violation and its intention to assess such penalties, which notice shall contain
a description of the alleged violation. Following receipt of such notice, the Registrant shall
have thirty (30) days to cure the violation and the City shall make good faith reasonable
efforts to assist in resolving the violation. If the violation is not cured within that thirty (30)
day period, the City may collect all fines owed, beginning with the first day of the violation,
through any means allowed by law.
Temp. Ord. # 1917 — December 5, 2000
Revision # 8 — January 3, 2001
Page 34
C. In determining which remedy or remedies are appropriate, the City shall take
into consideration the nature of the violation, the person or persons bearing the impact of
the violation, the nature of the remedy required in order to prevent further violations, and
such other matters as the City determines are appropriate to the public interest.
D. Failure of the City to enforce any requirements of this Ordinance shall not
constitute a waiver of the City's right to enforce that violation or subsequent violations of
the same type or to seek appropriate enforcement remedies.
E. In any proceeding before the City Commission wherein there exists an issue
with respect to a Registrant's performance of its obligations pursuant to this Ordinance, the
Registrant shall be given -the opportunity to provide such information as it may have
concerning its compliance with the terms of the Ordinance. The City Commission may find
a Registrant that does not demonstrate compliance with the terms and conditions of this
Ordinance in default and apply any one or combination of the remedies otherwise
authorized by this Ordinance.
F. The City Manager or his/her designee shall be responsible for administration
and enforcement of this Ordinance, and is authorized to give any notice required by Law.
G. Nothing in this Ordinance shall affect the remedies the Registrant has
available under applicable law.
Section 16. Force Majeure.
In the event a Registrant's performance of or compliance with any of the provisions
of this Ordinance is prevented by a cause or event not within the Facility owner's control,
Temp. Ord. # 1917 — December 5, 2000
Revision # 8 — January 3, 2001
Page 35
such inability to perform or comply shall be deemed excused and no penalties or sanctions
shall be imposed as a result thereof, provided, however, that such owner uses all
practicable means to expeditiously cure or correct any such inability to perform or comply.
For purposes of this Ordinance, causes or events not within a Facility owners control shall
include, without limitation, acts of God, floods, earthquakes, landslides, hurricanes, fires
and other natural disasters, acts of public enemies, riots or civil disturbances, sabotage,
strikes and restraints imposed by order of a governmental agency or court. Causes or
events within Registrant's control, and thus not falling within this Section, shall include,
without limitation, Registrant's financial inability to perform or comply, economic hardship,
and misfeasance, malfeasance or nonfeasance by any of Registrant's directors, officers,
employees, contractors or agents.
Section 17. Reservation of Rights.
A. The City reserves the right to amend this Ordinance as it shall find necessary
in the lawful exercise of its police powers.
B. This Ordinance shall be applicable to all Telecommunications Facilities
permitted to be placed in the Public Rights -of -Way, on or after the effective date of this
Ordinance, and shall apply to all existing Telecommunications Facilities in the Public
Rights -of -Way prior to the effective date of this Ordinance, to the full extent permitted by
State and Federal Law. Providers with existing lines and cables have one hundred and
twenty (120) days from the Effective Date of this Ordinance to comply with the terms of this
Ordinance, or be in violation thereof.
Temp. Ord. # 1917 — December 5, 2000
Revision # 8 — January 3, 2001
Page 36
C. The City reserves to itself the right to intervene, in any suit, action or
proceeding involving any provision of this Ordinance. Registrant agrees to advise City of
any such suits.
SECTION 2. Inclusion in the Code of Laws and Ordinances.
Specific authority is hereby granted to codify this Ordinance. It is the intention of the
City of Tamarac that the provisions of this Ordinance shall become and be made a part of
the City of Tamarac's Code or Ordinances; and that the sections of this Ordinance may be
renumbered or relettered and the word "ordinance" may be changed to "section," "article,"
or such other appropriate word or phrase in order to accomplish such intentions.
SECTION 3. Repeal of Conflicting Ordinances.
All ordinances or part of ordinances, and all resolutions or part of resolutions in
conflict herewith are hereby repealed to the extent of such conflict.
SECTION 4. Savings.
All fees, charges and financial obligations previously accrued pursuant to any
ordinances and resolutions repealed pursuant to Section 2 above shall continue to be due
and owing until paid.
Temp. Ord. # 1917 — December 5, 2000
Revision # 9 — January 4, 2001
Page 37
SECTION 5. Severability.
The provisions of this Ordinance are declared to be severable and if any section,
sentence, clause or phrase of this Ordinance shall, for any reason, be held to be invalid or
unconstitutional, such decision shall not affect the validity of the remaining sections,
sentences, clauses, and phrases of this Ordinance but shall remain in effect, it being the
legislative intent that this Ordinance shall stand notwithstanding the invalidity of any part.
SECTION 6. Effective Date.
This Ordinance shall be effective immediately upon passage.
PASSED, FIRST READING this 13' day of December, 2000.
PASSED, SECOND READING this 10' day of January, 2001.
ATTEST:
:' ARLOI*sWE SON, CIVIC
"tiTY CLERK
''AF'PRO\j(8D AS TO FOR
AND L UFFICIE
MIkCHVLL S. K04T
CITY ORNEY
IJOA SGHREIBER
( AYOR
RECORD OF COMMISSION
MAYOR SGHREIBER
DIST 1: COMM. PORTNER
DIST 3: COMM. SULTANOF
DIST 4: V/M ROBERTS
No Text