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ORDINANCE 0ID - 3 0~
ORDINANCE OF THE CITY COMMISSION OF THE CITY OF
BOYNTON BEACH, FLORIDA CREATING CHAPTER 25.1 OF THE
CODE OF ORDINANCES OF THE CITY OF BOYNTON BEACH,
ENTITLED "TELECOMMUNICATIONS", REGARDING THE
FRANCHISING AND LICENSING OF TELECOMMUNICATIONS
SERVICE PROVIDERS USING PUBLIC RIGHTS OF WAY AND
PRIVATE COMMUNICATIONS SYSTEMS; ESTABLISHING
REQUIREMENTS AND CONDITIONS UPON THE USE OF PUBLIC
RIGHTS OF WAY BY SUCH ENTITIES; AND ESTABLISHING
PROCEDURES FOR PROTECTING THE PUBLIC INTEREST IN SUCH
FRANCHISES AND LICENSEES; PROVIDING FOR CONFLICT;
PROVIDING FOR SEVERABILITY; PROVIDING FOR INCLUSION;
PROVIDING FOR EFFECTIVE DATE.
WHEREAS, the public streets, alleys, easements and other rights-of-way within
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) can be partially occupied by utilities and other public service entities for
facilities Used in the delivery, conveyance, and transmission of utility and public services
rendered for profit, to .the enhancement of the health, welfare, and general economic well-
being of the City and its citizens; and
(3) are a tmique and physically limited resource so that proper management by
the City is necessary to maximize the efficiency and to 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, emplacement, relocation, and maintenance in the
rights-of-way; and
(4) are intended for public uses and must be managed and controlled consistent
with that intent; and
WHEREAS, the right to place facilities and fixtures in such rights-of-way for the
business of providing telecommunications services for hire, is a valuable economic right to
use a unique public resource that has been acquired and is maintained at great expense to
the City and its taxpayers, the economic benefit of which should be shared with the
taxpayers of the City; and
WHEREAS, the CITY OF BOYNTON BEACH ("City") is authorized by state and
local law to control the use of public rights-of-way, and to franchise operators of
telecommunications systems, which use such rights-of-way; and
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WHEREAS, the City Commission of the CITY OF BOYNTON BEACH finds that
it is in the interest of the public to franchise and to establish standards for franchising such
operators and licensing private communications systems in a manner which:
(1) to the extent permitted by state and federal law, provides for a stmcture that
compensates the City for the fair market value of such property used while also reserving
the right to recover ongoing costs associated with the use of that property;
(2) encourages competition by establishing terms and conditions under which
an operator of a telecommunications system, may use valuable public property to serve the
public;
(3) fully protects the public and the City from any harm that may flow from
such private use of rights-of-way;
(4) protects and carries out the regulatory authority of the City, in a manner
consistent with federal and state law; and
(5) otherwise protects the public interests in the development and use of the
City's infrastructure; and
WHEREAS, the City Commission of the City finds that it is appropriate for various
operators to obtain separate franchises based on the type of service provided, in order to
ensure that similarly situated operators can be treated as similarly as possible, and to avoid
confusion as to regulatory authority applicable to each type of franchise; and
WHEREAS, in light of federal and state law, and the changes to local procedures
required by them, the City finds that it is necessary and appropriate to apply the provisions
hereof to existing franchisees and licensees as far as is possible and to apply it to those with
pending applications to place facilities in public rights-of-way for communications
purposes.
NOW, TI-I~REFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY
OF BOYNTON BEACH, FLORIDA:
Section 1. The foregoing "WHEREAS" clauses are true and correct and hereby
ratified and confirmed by the City Commission.
Section 2. Chapter 25.1 Article I of the Code of Ordinances of the CITY OF
BOYNTON BEACH, entitled "General", is hereby created to read as follows:
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ARTICLE I - GENERAL
Sec. 25.1-1. Definitions.
(1) Generally. For the purposes of this Chapter, the following terms,
phrases, words, and abbreviations shall have the meanings given herein, unless otherwise
expressly stated. When not inconsistent with the context, words used in the present tense
include the future tense; words in the plural number include the singular number; and words
in the singular number include the plural number; and the masculine gender includes the
feminine gender. "And" and "or" may be read conjunctively or disjunctively. The words
"shall" and "will" are mandatory, and "may" is permissive. Unless otherwise expressly
stated, words not defined in this Ordinance shall be given the meaning set forth in Title 47
of the United States Code, and, if not defined therein, their common and ordinary meaning.
References to governmental entities (whether persons or entities) refer to those entities or
their successors in authority. If specific provisions of law referred to herein are
renumbered, then the reference shall be read to refer to the renumbered provision.
References to laws, ordinances or regulations shall be interpreted broadly to cover
govemment actions, however nominated, and include laws, ordinances and regulations now
in force or hereinafter enacted or amended.
(2) Affiliate, means a person that, (directly or indirectly), owns or controls, is
owned or controlled by, or is under common ownership or control with, another person.
(3) Annual occupancy fee means an annual charge against (a) the operator of
communications facilities that are excused from paying the full franchise fee required under
this ordinance; and (b) the owner of a private communications system. The fee recovers an
apportioned share of the costs to the City for maintaining those portions of the public rights-
of-way used by the operator of a communications facility and the owner of a private
communications system.
(4) Construction, operation or repair. "Construction, operation or repair" and
similar formulations of that term means the named actions interpreted broadly,
encompassing, among other things, installation, extension, maintenance, replacement of
components, relocation, undergrounding, grading, site preparation, adjusting, testing, make-
ready, and excavation.
(5) Communications facility refers to a telecommunications facility or a private
communications system, but does not include a franchised cable system to the extent the
same is used to provide cable serviCe.
(6) Franchise refers to the authorization granted by the City to a properly
licensed operator of a telecommunications facility, giving the operator the non-exclusive
right to use public rights-of-way in the City to provide, through physical facilities located
therein, telecommunication services or such other service as may be specified in the
franchise itself within a franchise area. Any such authorization, in whatever form granted,
shall not mean or include: (i) any other permit or authorization required for the privilege of
transacting and carrying on a business within the City required by the ordinances and laws
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of the City; (ii) any permit, agreement or authorization required in connection with
operations on public streets or property including, without limitation, permits and
agreements for placing devices on or in poles, conduits or other structures, whether owned
by the City or a private entity, or for excavating or performing other work in or along public
rights-of-way.
(7) Franchise Agreement means a contract entered into in accordance with the
provisions of this Chapter between the City and a Franchisee that sets forth, subject to this
Chapter, the terms and conditions under which a Franchise will be exercised.
(8) Franchisee refers to a person holding a Franchise issued under this Chapter,
or a Franchise issued prior to this Ordinance, subject to the provisions of Section 25.1-7
hereof.
(9) Franchise Area means the area of the City that a Franchisee is authorized
to serve by its Franchise Agreement.
(10) FCC means the Federal Communications Commission or its designee.
(11) Gross Revenues means any and all revenue, of any kind, nature or form.
(12) License refers to the legal authorization, terminable at will, to use a
particular, discrete and limited portion of the public rights-of-way.
(13) Operator, when used with reference to a system, refers to a person (a) who
provides service over a communications facihty and directly or through one or more
affiliates owns a significant interest in such facility; or (b) who otherwise controls or is
responsible for, through any arrangement, the management and operation of such a facility.
A person that leases a communications facility or a specific portion of a communications
facility to provide telecommunications services shall be treated as an telecommunications
facility operator for purposes of this ordinance.
(14) Person includes any individual, corporation, partnership, association, joint
stock company, trust, or any other legal entity, but not the City.
(15) Private communications system means a facility placed in whole or in part in
the public right of way for the provision of communications in connection with a person's
business, but not encompassing in any respect the provision of telecommtmications
services.
(16) Private communications system owner means a person that owns or leases a
private communications facility.
(17) Public rights-of-way means the surface, the area above, and the area below
the surface of any public street, highway, lane, path, alley, sidewalk, boulevard, drive,
bridge, tunnel, parkway, waterway, public easement, or similar property in which the City
now or hereafter holds any property interest, which, consistent with the purposes for which
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it was dedicated, may be used for the purpose of constructing, operating and repairing a
communications facility. Public rights of way do not include buildings, parks, or other
property owned or leased by the City. No reference herein, or in any franchise agreement,
to a public right-of-way shall be deemed to be a representation or guarantee by the City that
its interest or other right to control the use of such property is sufficient to permit its use for
such purposes, and a franchisee shall be deemed to gain only those rights to use as are
properly in the City and as the City may have the undisputed right and power to give.
(18) Reseller refers to any person that provides telecommunications service over
a communications facility for which a separate charge is made, where that person does not
own or lease the underlying communications facility used for the transmission.
(19) Transfer means any transaction in which: (i) all or a portion of the
communications facility is sold or assigned (except a sale or assignment that results in
removal ora particular portion of the facility from the public rights-of-way); (ii) there is any
change, acquisition, or direct or indirect transfer of control of the franchisee or licensee; or
(iii) the rights and/or obligations held by the franchisee or licensee under the franchise or
license are transferred, sold, assigned, or leased, in whole or in part, directly or indirectly, to
another party. In, succeeding provisions of this ordinance, all these activities are referred to
as franchise transfers.
(20) Telecommunications facility means a facility that is used to provide one or
more telecommunications services, any portion of which occupies public rights of way.
The term telecommunications facility includes radio transmitting towers, other supporting
structures, and associated facilities used to transmit telecommunications signals.
(21) Telecommunications services means the transmission for hire, of information in
electronic or optical form, including, but not limited to, voice, video, or data, whether or not
the transmission medium is owned by the provider itself. Telecommunications service
includes telephone service but does not include over-the-air broadcasts to the public-at-large
from facilities licensed by the Federal Communications Commission or any successor
thereto, cable service or open video service licensed or franchised by the City.
Sec. 25.1-2. Franchise Required.
(1) Every operator must obtain. An operator of a telecommunications facility
must obtain a franchise prior to constructing a telecommunications facility or providing
telecommunications services. In addition, every private communications system owner
must obtain a license. So long as it pays the compensation required, a reseller may use
other's facilities to conduct business in the right-of-way without obtaining a written
franchise or license, so long as it does not own or lease facilities in the right-of-way and is
not involved in constmction or repair of facilities in the right-of-way. The fact that a
particular communications facility may be used for multiple purposes does not obviate the
need to obtain a franchise, license or other authorization for those other purposes. By way
of illustration and not limitation, an operator of a telecommunications facility must obtain a
separate franchise if it wishes to provide cable service, even if it uses the same facilities or
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shares facilities that are used to provide telecommunications services. No franchise shall
become effective without the franchisee entering into a franchise agreement with the City.
(2) Purpose and characteristics. The purpose of requiring authorizations by
service is to ensure as far as possible and appropriate that persons providing similar services
are treated similarly, considering differences in circumstances, and to comply with
requirements of federal law which may require the City to separate its authority over cable
systems from its authority over other providers of telecommtmications services. The
revocation of a franchise for one particular type of system in and of itself will not affect the
authority of a franchise holder to continue to operate another type of system for which it
holds another franchise. No franchise shall be exclusive and competition shall be
encouraged. The issuance of a franchise shall not affect the City's right to itself constmct,
operate, or repair any communications facility, with or without a franchise.
(3) Exceptions. A franchise requirement may be waived for a
telecommunications facility, that is not designed to provide service in the City, and that
does not provide service in the City; or a facility, such as an antenna or pole top
attachments, where the use of the right-of-way is de minimis. For such facilities, the City
may issue a license. Every license issued, including a license for a private communications
system, shall require the licensee to obtain a franchise if it is determined that the license is
being used in a manner that creates a competitive advantage for that operator or otherwise
unduly discriminates in favor of such operator. In any case, the license must provide that if
limitations of license are violated, the licensee must pay the maximum franchise fee
required by Articles II and III of this Chapter and otherwise bring itself into compliance
with this Chapter.
(4) Nature of grant. Neither a franchise nor a license shall convey title,
equitable or legal, in the rights-of-way. The right is only the personal right to occupy
rights-of-way, for the purposes and for the period stated in the franchise or license; the right
license or franchise may not be subdivided or subleased.
Sec. 25.1-3. Compensation Required.
(1) Every operator mustpay. Every operator of a telecommunications facility;
and every private communications owner; and every reseller must pay fees for use of the
rights-of-way as provided in this Section and the specific compensation provisions of
Articles II and III. This Article establishes a two-part fee structure. An annual occupancy
fee is intended to recover ongoing right-of-way costs to the City caused by burdens users
place upon the right-of-way. A franchise fee is intended to reflect the value of the right-of-
way. To the extent that state law validly limits the amount a particular operator, owner or
reseller can be required to pay to use the rights-of-way, such operator, owner or reseller
shall pay the maximum amount permitted under state law, for the period such state law limit
remains in lawful effect. In all other cases, operators of telecommunications facilities and
private communications facilities must pay the greater of the annual occupancy fee or the
franchise fee required by this Article and Articles II and III, unless a franchise or license
provides otherwise. The franchise fee applies without regard to whether the operator, owner
or reseller is a franchisee, licensee or uses the rights-of-way pursuant to some other
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authorization. The franchise fee shall be based on gross revenues, except as provided in
Section 25.1-3(3).
(2) Establishment of fees. The City may, unless otherwise negotiated and set
forth in a franchise or license, fix fi:om time-to-time by resolution, the annual occupancy
fee, and the market value fee contemplated by section 25.1-3(3)(B), each of which shall be
charged on a per linear foot basis for communications facilities in the public rights-of-way
for each major geographic subdivision of the City. The City may from time to time issue
exemptions from an obligation to pay an annual occupancy fee where levying the fee would
result in a double payment for the same facility.
(3)
paid if:
Exceptions. The franchise fees required under Articles II and HI need not be
(A) State law or charter requires otherwise; or during any transition
period for a current franchise holder. In cases subject to this exception, the highest
permissible fee shall be paid.
(B) In the case of a telecommunications facility that is not designed to
provide service in the City, and that does not provide service in the City, or where a
particular facility makes de minimis use of public rights-of-way, and is licensed pursuant to
Section 25.1-2(3). De minimus use of the rights-of-way shall include, but shall not be
limited to pole top attachments. The City shall establish a fee in lieu of the fees specified in
Articles II and 1II that recovers an amount equivalent to the fair market value of the
property used in the City and reserves the right to charge additional fees as contemplated by
Section 25.1-3(5).
(4) Application to persons that provide different types of services. The fact that
a fee is paid on one type of service provided over a communications facility, does not
excuse an operator fi:om its duty to pay fees on other types of services provided over that
facility. As an example, and not as a limitation of the foregoing, the operator of a
con'ununications facility must pay a cable-franchise fee to the extent it provides cable
services to subscribers via a cable system, in addition to the fees required hereunder.
(5) General rules for payment of fees.
(A) Unless otherwise specified in state law, a franchise agreement or a
license, the fees required under this Article shall be paid to the City quarterly in a single
payment made not later than forty-five (45) calendar days after the end of each calendar
quarter.
(B) Unless a franchise agreement or license provides otherwise, each
payment shall be accompanied by a statement showing the manner in which the payment
was calculated.
(C) No acceptance by the City of any payment shall be construed as an
accord that the amount paid is in fact the correct amount, nor shall such acceptance of such
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payment be constmed as a release of any claim the City may have for additional sums
payable.
(D) The payment is not a payment in lieu of any tax, fee or other
assessment except as specifically provided in this title, or as required by applicable law. By
way of example, and not limitation, permit fees and business license taxes are not waived
and remain applicable and other fees and assessments to recover costs associated with the
operation and maintenance of the right-of-way that may be established from time to time by
Resolution of the City Commission.
(E) Within ninety (90) calendar days following the end of the calendar
year, each person which paid a fee based upon gross revenues, or gross receipts, shall
submit a statement, attested to by a certified public accountant or the chief financial officer
of such person, setting forth gross revenues of the communications facility, by category,
and describing what revenues were included and what revenues, if any, generated or derived
from operations in the City were excluded in the fee calculation, and any adjustments made
to gross revenues. If payments are late, in addition to paying any applicable penalties or
damages, the person that owes the fee shall pay interest on the amount owed at the statutory
interest rates applicable to judgments.
(F) The City may, upon fifteen (15) calendar days advance written
notice, inspect and examine any and all books and records reasonably necessary to the
determination of whether fees have been accurately computed and paid.
(G) Notwithstanding the foregoing, in the event that a person that is
obligated to pay a fee ceases to provide service for any reason (including as a result of a
transfer), such person shall make a final payment of any amounts owed to the City within
ninety (90) calendar days of the date its operations in the City cease, and shall, to the extent
that such fees are based on gross revenues or gross receipts, provide a statement of gross
revenues for the calendar year through the dates operations ceased which statement shall
contain the information and certification required by Section 25.1-3(5)(E).
Sec. 25.1-4. General Conditions.Upon Use of Rights-of-Way
(1) Responsibility for costs. Except as expressly provided otherwise, in this
Ordinance or under State law, any act that a communications facility operator, its
contractors or subcontractors are required to perform under this Section 25.1-4 shall be
performed at their cost. Ifa communications facility operator fails to perform work that it is
required to perform within the time provided for performance, the City may perform the
work, and bill the communications facility operator therefor. The communications facility
operator shall pay the amounts billed within 30 calendar days, subject to the rights, if any,
under Sections 337.403 and 337.404, Florida Statutes, as amended.
(2) Construction procedures and placement of facilities; obligation to minimize
interference with use of rights-of-way.
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(A) The construction, operation and repair of communications facilities
are subject to the supervision of all of the authorities of the City that have jurisdiction in
such matters, and shall be performed in compliance with all laws, ordinances, departmental
rules and regulations and practices affecting such system. By way of example, and not
limitation, this includes zoning codes and safety codes. In addition, the construction,
operation and repair shall be performed in a manner consistent with high industry standards.
Persons engaged in the construction, operation or repair of communications facilities shall
exercise reasonable care in the performance of all their activities, and use commonly
accepted methods and devices for preventing failures and accidents that are likely to cause
damage, injury, or nuisance to the public or to property.
(B) All permits required by the City code or regulations shall be
obtained from the proper City officials and all required permits and associated permit fees
paid before any work on a commtmications facility commences, and all work performed
shall be performed in strict accordance with such permits. In any permit so issued, the City
may impose as a condition of the granting of the permit such conditions and regulations as
may be necessary to the management of the right-of-way including, by way of example and
not limitation, conditions requiring notice to affected property owners, conditions imposed
for the purpose of protecting any structures in the public rights-of-way, for the proper
restoration of such public rights-of-way, and for the protection of the City and the
continuity of pedestrian and vehicular traffic.
(C) Without limiting the foregoing, all work on communications
facilities within the City shall be performed in accordance with good engineering practices.
No work on the facilities shall be performed except by experienced and properly trained
personnel. The operator of a communications facility is responsible for all the acts of its
contractors and subcontractors, and for ensuring that its contractors and subcontractors
perform all work in compliance with this ordinance and any applicable franchise agreement.
(D) Operators of communications facilities must follow City-established
requirements for placement of facilities in rights-of-way, and must in any event install
facilities in a manner that minimizes interference with the use of the rights-of-way by
others, including others that may be installing communications facilities. The City may
require that facilities be installed at a particular time, place, or manner as a condition of
access to a particular right-of-way, and may require a person using the right-of-way to
cooperate with others to minimize adverse impacts on the right-of-way through joint
trenching and other arrangements.
0E) In no case may additional poles or conduit be installed in the right-of-
way without the permission of the City. Provided that, this provision shall not limit rights to
place poles or conduit expressly granted by state or federal law. Any person who is
permitted to install poles or conduit that is not subject to the requirements of 47 U.S.C.
Section 224 or the equivalent provisions of state law must lease capacity on those poles or
in the conduit to others, at a rate not higher than the rate that would be permitted if 47
U.S.C. § 224 applied.
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(F) Except as City may direct otherwise, communications facilities may be
constructed overhead where poles exist and electric or lines of a local exchange carder
franchised before 1990 are overhead, but where both electric or such telephone lines are
underground, or are being initially placed underground (whether voluntarily or at the City's
direction), other communications facilities shall be constructed underground. Except as City
may direct otherwise, Whenever and wherever the owner of the poles upon which aerial
facilities are located moves its plant from overhead to underground placement in an area, all
communications facilities in that area shall be similarly moved underground.
(G) Any and all public rights-of-way, public property, or private property
that is disturbed or damaged during the construction, operation or repair of a
communications facility shall be promptly repaired by the communications facility
operator.
Code.
(H) Tree trimming shall be performed in strict accordance with the City
(3) Relocation offacilities.
(A) A communications facility operator shall, by a time specified by the
City, protect, support, temporarily disconnect, relocate, or remove any of its property when
required by the City by reason of traffic conditions; public safety; public right-of-way
construction; public right-of-way repair (including resurfacing or widening); or for any
municipal project including a change of public right-of-way grade; construction, installation
or repair of sewers, drains, water pipes, publicly-owned power lines, signal lines, tracks, or
any other type of government-owned communications system, public work or improvement
or any government-owned utility; public right-of-way vacation; or for any other purpose
where the work involved would be aided by the removal or relocation of the
communications facility. Collectively, such matters are referred to below as the "public
work".
1. Except in the case of emergencies, the City shall provide written
notice describing where the public work is to be performed at least thirty (30) calendar days
prior to the deadline by which a communications facility operator must protect, support,
temporarily disconnect, relocate or remove its facilities. A communications facility
operator may seek an extension of the time to perform such tasks where they cannot be
performed in thirty (30) calendar days, and such request for an extension shall not be
unreasonably refused.
2. In an emergency, or where a communications facility creates
or is contributing to an imminent danger to health, safety, or property, the City may protect,
support, temporarily di-sconnect, remove, or relocate any or all parts of the communications
facility without prior notice, and charge the communications facility operator for costs
incurred. In case of such emergency, where in the judgment of the City, conditions permit,
the City shall reasonably attempt to notify the communications facility operator. The
determination as to what constitutes an emergency is a matter solely within the discretion of
the City, in the exercise of its police powers.
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(B) If any person (other than a governmental entity) that is authorized to
place facilities in the fight-of-way requests another communications facility operator
receiving the request to protect, support, temporarily disconnect, remove, or relocate its
facilities to accommodate the construction, operation, or repair of the facilities of such other
person, the communications facility operator shall, after thirty (30) calendar days' advance
written notice, take action to effect the necessary changes requested. Unless the matter is
governed by a valid contract or a state or federal law or regulation, or in other cases where
the communications facility that is being requested to move was not properly installed, the
cost of the same shall be borne by the party requesting the protection, support, temporary
disconnection, removal, or relocation and at no charge to the City.
(C) A communications facility operator shall, on the request of any
person holding a valid permit issued by a governmental authofity, temporarily raise or
lower its wires to permit the moving of buildings or other objects. The expense of such
temporary removal or raising or lowering of wires shall be paid by the person requesting the
same. A communications facility operator shall be given not less than seven (7) calendar
days advance notice to arrange for such temporary wire changes.
(D) A communications facility operator may abandon any property in place
upon notice to the City, unless the City determines, in the exercise of its reasonable
discretion within ninety (90) calendar days of the notice of abandonment from the operator,
that the safety, appearance, functioning or use of the public fight-of-way and facilities in the
public fight-of-way will be adversely affected thereby, in which case the operator must
remove its property within a reasonable period of time specified by the City.
(E) If a state statute requires the City to compensate a person for the cost of
relocation or removal, nothing in this Chapter shall be read to abrogate any right such
person may have to that compensation.
(4) Facility subject to inspection; operator must provide information. Every
communications facility shall be subject to the fight of periodic inspection by the City to
determine compliance with the provisions of this Chapter, a franchise or license agreement,
or other applicable provisions of the City Code. Each operator must respond to requests for
information regarding its system and plans for the system as the City may from time to time
issue, including requests for information regarding its plans for construction, operation and
repair and the purposes for which the plant is being constructed, operated or repaired.
(5) Underground Services Alert. Each operator of a communications facility
that places facilities underground shall be a member of the regional notification center for
subsurface installations (Underground Services Alert) and shall field mark the locations of
its underground communications facilities upon request. The operator shall locate its
facilities for the City at no charge.
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(6) Publicizing Work.
(A) Except where entry is pursuant to a permit, before entering onto any
private property to perform work, a communications facility operator shall use its best
efforts to contact the property owner or (in the case of residential property) the resident at
least one (1) day in advance, and describe the work to be performed, or as far in advance as
is possible, where the entry is required in order to perform work that must be completed in
less than one day.
(B) Each commtmications facility owner shall provide the City a plan for
any initial system construction, or for any substantial rebuild, upgrade or extension of its
facility, which shall show its timetable for construction of each phase of the project, and the
areas of the City that will be affected.
(7) No discrimination.
Subject to State and Federal law limitations, if any, on the City's authority:
(A) A communications facility operator shall not deny service, deny
access, or otherwise discriminate against subscribers, programmers, or residents of the City
on the basis of race, color, creed, national origin, sex, age, conditions of physical handicap,
religion, ethnic background, marital status, or sexual orientation.
(B) A communications facility operator shall not discriminate among
persons or the City or take any retaliatory action against a person or the City because of that
entity's
exercise of any right it may have under federal, state, or local law, nor may the operator
require a person or the City to waive such rights as a condition of taking service.
(C) A communications facility operator shall comply with all federal,
state, and local laws and regulations governing equal employment opportunities, as the
same may be fi:om time to time amended.
Sec. 25.1-5. Protection of the City and residents.
(1) Indemnification.
(A) The City may not enter into any fi:anchise, or otherwise authorize
any communications facility operator to use the public rights of way, until and unless the
City obtains an adequate indemnity fi:om such operator. The indemnity must at least:
1. release the City fi:om and against any and all liability and
responsibility related to or in any way arising out of the communications facility operator's
use of the rights-of-way or any property it is authorized or entitled to use as a result of the
fi:anchise or other authorization.
2. indemnify and hold harmless the City, its trustees, elected and
appointed officers, agents, and employees, fi:om and against any and all claims, demands, or
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causes of action of whatsoever kind or nature, and the resulting losses, costs, expenses,
reasonable attorneys' fees, reasonable paralegal expenses, liabilities, damages, orders,
judgments, or decrees, sustained by the City or any third party arising out of, or by reason
of, or resulting fi:om or of the acts, errors, or omissions of the communications facility
operator, or its agents, independent contractors or employees related to or in any way
arising out of the communications facility operator's use of the fights-of-way or any
property it is authorized or entitled to use as a result of the franchise or other authorization.
3. provide that the covenants and representations relating to the
indemnification provision shall survive the term of any agreement and continue in full force
and effect as to the party's responsibility to indemnify.
(2) Insurance. The City may not enter into any fi:anchise, or otherwise
authorize any communications facility operator to use the public rights-of-way, until and
unless the City obtains assurance that such operator (and those acting on its behalf) have
adequate insurance. At a minimum, the following requirements must be satisfied.
(A) A communications facility operator shall not commence construction
or operation of the facility without obtaining all insurance required under this section and
approval of such insurance by Risk Management of the City, nor shall a communications
facility operator allow any contractor or subcontractor to commence work on its contract or
sub-contract until all similar such insurance required of the same has been obtained and
approved. The required insurance must be obtained and maintained for the entire period the
communications facility operator has facilities in the right-of-way, and for a period
thereafter as specified in the minimum coverages described below. If the operator, its
contractors or subcontractors do not have the required insurance, the City may order such
entities to stop operations until the insurance is obtained and approved.
(B) Certificates of insurance, reflecting evidence of the required
insurance, shall be filed with the Risk Manager Coordinator. For entities that are entering
the market, the certificates shall be filed prior to the commencement of construction and
once a year thereafter, and as provided below in the event of a lapse in coverage. For
entities that have facilities in the right-of-way as of the effective date of this chapter, the
certificate shall be filed within sixty (60) calendar days of the adoption of this chapter,
annually thereafter, and as provided below in the event of a lapse in coverage, unless a pre-
existing franchise agreement provides for filing of certificates in a different manner.
(C) These certificates of insurance shall contain a provision that
coverages afforded under these policies will not be canceled until at least thirty (30)
calendar days prior written notice has been given to the City. Policies shall be issued by
companies authorized to do business under the laws of the State of Florida. Financial
Ratings must be no less than "A" in the latest edition of "Bests Key Rating Guide",
published by A.M. Best Guide. Any communications facility operator may self-insure.
Self insured status must be confirmed with certification of same by presentation of financial
statements which are not more than one (1) year old and signed by the Communications
Facility Operator's Chief Financial Officer or designee. Information contained therein is
subject to review and approval by City's Risk Management Division.
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(D) In the event that the insurance certificate provided indicates that the
insurance shall terminate or lapse during the period Of this contract, then in that event, the
communications facility operator shall furnish, at least thirty (30) calendar days prior to the
expiration of the date of such insurance, a renewed certificate of insurance as proof that
equal and like coverage for the balance of the period of the fi'anchise or license under which
communications facility operates.
(E) A communications facility operator, and its contractors or
subcontractors engaged in work on the operator's behalf in, on, under or over public rights-
of-way, shall maintain the following minimum insurance:
1. COMPREHENSIVE GENERAL LIABILITY insurance to
cover liability bodily injury and property damage. Exposures to be covered are: premises,
operations, products/completed operations, and certain contracts. Coverage must be written
on an occurrence basis, with the following limits of liability:
ao
Bodily Injury
i. Each Occurrence $1,000,000
ii. Annual Aggregate 3,000,000
bo
Property Damage
i. Each Occurrence $1,000,000
ii. Annual Aggregate 3,000,000
Co
Personal Injury
Annual Aggregate
$3,000,000
do
Completed Operations and Products Liability shall be maintained for two (2)
years after the termination of the fi:anchise agreement or license agreement
(in the case of the communications facility operator) or completion of the
work for the communications facility operator (in the case of a contractor or
subcontractor).
eo
Property Damage Liability Insurance shall include Coverage for the
following hazards: X - explosion, C - Collapse, U - underground.
2. WORKERS' COMPENSATION insurance shall be
maintained during the life of this contract to comply with statutory limits for all employees,
and in the case any work is sublet, each communications facility operator shall require the
Subcontractors similarly to provide Workers' Compensation Insurance for all the latter's
employees unless such employees are covered by the protection afforded by each
communications facility operator. Each communications facility operator and its
contractors and subcontractors shall maintain during the life of this policy Employers
Liability Insurance. The following limits must be maintained:
a. Workers' Compensation Statutory
b. Employer's Liability $ 500,000 per occurrence
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3. COMPREHENSIVE AUTO LIABILITY
ao
Bodily Injury
i. Each Occurrence $1,000,000
ii. Annual Aggregate 3,000,000
Property Damage
i. Each Occurrence $1,000,000
ii. Annual Aggregate 3,000,000
Coverage shall include owned, hired and non-owned vehicles.
(F) Each communications facility operator shall hold the City, its agents, and
employees, harmless on account of claims for damages to persons, property or premises
arising out of its construction, operation or repair of its communications facility and name
the City as an additional insured.
(3) Performance/payment bonds. Every operator of a communications facility
may be required to obtain performance bonds and, if necessary, payment bonds to ensure
the faithful performance of its responsibilities under this ordinance and any franchise
agreement or license for an initial build, any substantial rebuild, upgrade or extension of its
facility, or when construction plans show that there would be more than 1,000 feet of open
trenching in the right of way at any given time. The amount of the performance and
payment bonds shall be set by the City Manager in light of the nature of the work to be
performed, and is not in lieu of any additional bonds that may be required through the
permitting process. The bond shall be in a form acceptable to the City attomey. The City
may from time to time increase the amount of the required performance bond to reflect
increased risks to the City and to the public.
(4) Security fund. Every communications facility operator shall establish a
$25,000 cash security fund, or provide the City an irrevocable letter of credit in the same
amount, to secure the payment of fees owed, to secure any other performance promised in a
franchise agreement, and to pay any taxes, fees or liens owed to the City. The letter of
credit shall be in a form and with an institution acceptable to the City attorney and director
of financial management. Should the City draw upon the cash security fund or letter of
credit, it shall promptly notify the communications facility operator, and the
communications facility operator shall promptly restore the fund or the letter of credit to the
full required amount. This security fund/letter of credit may be waived or reduced by the
City for a franchisee or licensee where the City determines in its discretion that a $25,000
security fund/letter of credit is not necessary to secure the required performance. The City
may from time to time, upon reasonable notice after the communications facility operator
has had an opportunity to respond thereto, increase the amount of the required security
fund/letter of credit to reflect increased risks to the City and to the public.
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Sec. 25.1-6. Enforcement and Remedies.
(1) Administration. The City manager or its designee is responsible for
enforcing and administering this chapter, and the City manager or its designee is authorized
to give any notice required by law or under any franchise agreement. The City manager or
its designee is also authorized to seek information fi:om any communications facility
operator, to establish forms for submission of applications and other information, and to
take all other actions necessary or appropriate to the administration of this ordinance.
Franchises may only be issued or revoked by action of the City commission.
(2) Application for a franchise.
(A) An application must be filed for an initial franchise or license; for a
transfer; or for renewal of a franchise or license. Each entity that is required to hold a
franchise or license must submit an application therefore to the financial management
department or as otherwise designated by the City, in accordance with the requirements of
Titles Articles II and III. To be accepted for filing, an original and six copies of a complete
application must be submitted to the purchasing division, financial management
department. All applications shall be available for public inspection. All applications shall
include the names and addresses of persons authorized to act on behalf of the applicant with
respect to the application.
(B) An application may be filed by any person on that person's own
initiative or in response to a request for proposals. The Purchasing Administrator is
authorized to issue requests for proposals fi:om time to time.
(C) Every application shall be accompanied by a nonrefundable fee in
amounts established from time to time by resolution of the City Commission.
(D) An applicant that is awarded a franchise or license, shall pay to the City
a sum of money sufficient to reimburse it for all publication expenses incurred by it in
connection with the granting of a franchise or license pursuant to the provisions of this
article. Such payment shall be made within thirty (30) calendar days after the City furnishes
the franchisee or licensee with a written statement of such expenses by delivery of same to
the City clerk.
(E) Notwithstanding any other provision of this chapter, pledges in tmst
or mortgages of the assets of a franchised or licensed communications facility to secure the
construction, operation or repair of the system may be made without application and
without the City's prior consent; except that no such arrangement may be made if it would
in any respect under any condition prevent the communications facility operator or any
successor from complying with the franchise or license and applicable provisions of the
City Code, nor may any such arrangement permit a third party to succeed to the interest of
the operator, or to own or control the communications facility, without the prior consent of
the City. Any mortgage, pledge or lease shall be subject and subordinate to the rights of the
City under this chapter or other applicable law.
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(3) Minimum contents of every franchise or license. In addition to satisfying the
other applicable requirements of Articles I-III, every franchise agreement or license for a
communications facility may contain the following provisions:
(A) The franchise agreement or license shall provide that neither the
granting of any franchise or license, or any provision thereof, shall constitute a waiver or
bar to the exercise of any governmental fight or power, police power, or regulatory power
of the City as may exist at the time the franchise is issued or thereafter be obtained.
(B) The franchise agreement or license shall only authorize occupancy of
the right-of-way to provide the services and for the purposes described in the franchise or
license.
(C) A franchise or license shall be a privilege that is held in the public tmst
and personal to the original franchisee. The franchise agreement or license shall ensure that
no transfer of the franchise or license may occur, directly or indirectly, without the prior
consent of the City, which consent shall not be unreasonably withheld, except as
contemplated by Section 25.1-6(2)(E).
(D) The franchise agreement or license shall ensure that any person placing
communications facilities in the right- of-way will not discriminate in hiring, in contracting,
or in the provision of services.
(E) The franchise agreement or license shall contain appropriate provisions
for enforcement, compensation, and protection of the public, consistent with the other
provisions of this ordinance.
(F) The franchise or license shall be for a specified term, set forth in the
franchise agreement or license. No franchise issued under this chapter shall be for a term of
longer than ten years; no license issued under this ordinance shall be for a term of longer
than ten years.
(4) Penalties.
Any person who violates any provision of this ordinance shall be fined for
each day the violation continues in accordance with Chapter 162 of the 1996 Florida
Statutes, as amended.
(5) Revocation, reduction of term, or forfeiture of franchise or license.
(A) Where, after written notice and providing the licensee or franchisee
an oppommity to be heard (if such opportunity is timely requested by a franchisee or
licensee), the City finds that the facility is being operated in substantial violation of this
chapter or substantial violation of the terms of the franchise agreement or license, the City
may make an appropriate reduction in the remaining term of the franchise or license or to
revoke the franchise or license. The City manager is authorized to establish and conduct a
proceeding that comports with the requirements of this Section 25.1-6(5)(A), and to issue a
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recommended decision, but any such decision may be appealed to the City commission.
Any appeal must be filed within thirty (30) calendar days of the decision of the City
Manager or it shall be deemed waived. Notwithstanding the foregoing, the franchise or
license may not be rendered or revoked unless the franchisee or licensee:
1. was given notice of the default;
2. was given thirty (30) calendar days to cure the default; and
3. failed to cure the default, or to propose a schedule for curing the default
acceptable to the City where it is impossible to cure the default in thirty (30) calendar days.
The required notice may be given before the City conducts the proceeding required by this
section. No opportunity to cure is required for repeated violations, and fraud shall be
deemed incurable.
03) Notwithstanding the foregoing, the City may declare a franchise or
license forfeited where the franchisee or licensee:
1. fails to begin to exercise its rights under the franchise or license within a
period specified in the franchise agreement or license;
2. stops providing service it is required to provide in the fi:anchise or license;
3. without the prior consent of the City, transfers the franchise or license; or
4. fails to pay any fees required hereunder, including, but not limited to,
annual occupancy fees, franchise fees, license fees, application fees, or permit fees.
(C) The City shall give a franchisee or licensee thirty (30) calendar days
notice of an intent to declare a franchise or license forfeited, and shall provide the franchisee
or licensee an opportunity to show cause why the franchise or license should not be
forfeited.
(D) Notwithstanding the foregoing, any franchise or license may, at the
option of the City following a public heating before the City commission, be revoked one
hundred twenty (120) calendar days after an assignment for the benefit of creditors or the
appointment of a receiver or trustee to take over the business of the franchisee or licensee,
whether in a receivership, reorganization, bankruptcy assignment for the benefit of
creditors, or other action or proceeding, unless within that one hundred twenty (120)
calendar day period:
1. Such assignment, receivership or trusteeship has been vacated; or
2. Such assignee, receiver or trustee has fully complied with the terms
and conditions of this chapter and the franchise agreement or license and has executed an
agreement, approved by a court having jurisdiction, assuming and agreeing to be bound by
the terms and conditions of this chapter and the franchise agreement or license.
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(E) Notwithstanding the foregoing, in the event of foreclosure or other
judicial sale of any of the facilities, equipment or property of a franchisee or hcensee, the
City may revoke the franchise or license, following a public hearing before the City
commission, by serving notice upon the franchisee or licensee and the successful bidder at
the sale, in which event the franchise or license and all rights and privileges of the franchise
or license will be revoked and will terminate thirty (30) calendar days after serving such
notice, unless:
1. The City has approved the transfer of the franchise or license
to the successful bidder; and
2. The successful bidder has covenanted and agreed with the
City to assume and be bound by the terms and conditions of the franchise agreement or the
license and this chapter.
(6) Effect of termination or forfeiture. Upon termination or forfeiture of a license
or franchise, whether by action of the City as provided above, or by passage of time, the
franchisee or licensee shall be obligated to cease using the communications facilities for the
purposes authorized by the franchise. The City may either take possession of some or all of
the licensee's or franchisee's facilities in the public rights-of-way after furnishing the
communications facility operator with written notice and granting the communications
facility operator a reasonable period of time, but in no event more than thirty (30) days to
remove same, or require the licensee or franchisee or its bonding company to remove some
or all of the licensee's or franchisee's facilities from the public rights-of-way and restore the
public rights-of-way to their proper condition. Should the franchisee or licensee neglect,
refuse, or fail to remove such facility, the City may remove the facility at the expense of the
franchisee or licensee. The obligation of the licensee or franchisee to remove shall survive
the termination of the franchise or license for a period of two years. Provided that, the City
may not take possession of, or require the franchisee or licensee to remove, any facilities
that are used to provide another service for which the franchisee holds a valid franchise or
license issued by the City.
(7) Remedies Cumulative Remedies Cumulative. All remedies under this chapter
and any franchise agreement or license are cumulative unless otherwise expressly stated.
The exercise of one remedy shall not foreclose use of another, nor shall the exercise of a
remedy or the payment of liquidated damages or penalties relieve a communications facility
operator of its obligations to comply with its Franchise or License. Remedies may be used
singly or in combination; in addition, the City may exercise any rights it has at law or
equity. Recovery by the City of any amounts under insurance, the performance bond, the
security fund or letter of credit, or otherwise does not limit a communications facility
operator's duty to indemnify the City in any way; nor shall such recovery relieve a
communications facility operator of its obligations under a franchise or license, limit the
amounts owed to the City, or in any respect prevent the City from exercising any other right
or remedy it may have. Nothing herein shall be read to authorize the double-recovery of
damages.
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(8) Access to books and records.
(A) Each communications facility operator shall, upon thirty (30)
calendar days written notice, if reasonably possible, but in no event less than five (5)
business days written notice, provide the City access to all books and records related to the
construction, operation, or repair of the communications facility so that the City may
inspect these books and records. Any and all non-proprietary or non-confidential books and
records may be copied by the City. To the maximum extent permitted by Section
166.231(10)(e), Florida Statutes, such books and records shall be kept confidential and
exempt from the provisions of Section 119.07(1), Florida Statutes. The operators'
obligation includes the obligation, to the extent that the franchise fees or license fees are
based upon gross revenue or gross receipts, to produce all books and records related to
revenues derived from the operation of the communications facility. An operator is
responsible for obtaining or maintaining the necessary possession or control of all books
and records related to the construction, operation or repair of the communications facility,
so that it can produce the documents upon request. Books and records must be maintained
for a period of five (5) years, except that any record that is a public record must be
maintained for the period required by state law; and a franchise may specify a shorter period
for certain categories of voluminous books and records where the information contained
therein can be derived simply from other materials.
(B) For purposes of this chapter, the terms "books and records" shall be
read expansively to include information in whatever format stored. Books and records
requested shall be produced to the City at City Hall, except by agreement or pursuant to
section 25.1-6.(8)(C).
(C) If any books and records are too voluminous, or for security reasons
cannot be copied and moved, then a communications facility operator may request that the
inspection take place at some other location mutually agreed to by the City and the operator,
provided that the operator must make necessary arrangements for copying documents
selected by the City after its review; and the operator must pay all travel and additional
copying expenses incurred by the City in inspecting those documents or having those
documents inspected by its designee.
(D) Without limiting the foregoing, the operator of a communications
facility shall provide the City the following within ten (10) calendar days of their receipt or
(in the case of documents created by the operator or its affiliate) filing:
1. notices of deficiency or forfeiture related to the operation of
the communications facility; and
2. copies of any request for protection under banlcmptcy laws,
or any judgment related to a declaration of bankruptcy by the operator or by any partnership
or corporation that owns or controls the operator directly or indirectly.
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(9) Retention of Records; Relation to Privacy Rights. Each communications
facility operator shall take all reasonable steps required, if any, to ensure that it is able to
provide the City all information which must be provided or may be requested under this
chapter, a fi:anchise or license agreement, or applicable law, including by providing
appropriate Subscriber privacy notices. Each operator shall be responsible for redacting any
data that applicable law prevents it from providing to the City. Nothing in this section shall
be read to require an operator to violate state or federal law protecting subscriber privacy.
(10) Reports. The City may require operators of communications facilities to
maintain records, and to prepare reports relevant to determining the compliance of the
communications facility operator with the terms and conditions of this chapter and a
franchise or license agreement.
(11) Maps. Each communications facihty operator shall maintain accurate maps
and improvement plans which show the location, size, and a general description of all
facilities installed in the rights-of-way and any power supply sources (including voltages
and connections). Maps shall be based upon post-construction inspection to verify location.
The operator of each communications facility shall provide a map to the City showing the
location of its facilities, in such detail and scale as may be directed by the City engineer.
New maps shall be promptly submitted to the City when the facility expands or is relocated.
Copies of maps shall be provided On disk, in a format specified by the City engineer.
(12) Compliance with laws. Each franchisee or licensee shall comply with all
City laws and regulations heretofore and hereafter adopted or established during the entire
term of its franchise or license.
(13) Reservation of authority. The City may do all things which are necessary and
convenient in the exercise of its jurisdiction under this article. The City manager or its
designee is hereby authorized and empowered to adjust, settle or compromise any
controversy involving performance or charges arising from the operations of any fi:anchisee
or licensee under this article on behalf of the City. The City commission may accept, reject
or modify the decision of the City manager, and the City commission may adjust, settle or
compromise any controversy or cancel any charge arising from the operations of any
franchisee or licensee or from any provision of this article.
(14) No waiver. The failure of the City to insist on timely performance or
compliance by any person holding a license or franchise shall not constitute a waiver of the
City's right to later insist on timely performance or compliance by that person or any other
person holding such a license or franchise.
(15) Ordinance not a contract. The City expressly reserves the right to amend
this chapter from time-to-time in the exercise of its lawful powers. This and any ordinance
adopting provisions of this chapter shall not be construed to be a contract.
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Sec. 25.1-7. Transitional Provisions.
(1) Persons operating without a franchise or license. The operator of any
facility, the operation of which is required to be franchised or hcensed under this chapter,
other than a person holding a lease under Section 25.1-7(3), shall have three months from
the effective date of this chapter to file one or more applications for a franchise or a license
under this chapter. Any operator or private communications system owner timely filing
such an apphcation shall not be subject to a penalty under Section 25.1-6(4) hereof for
failure to have such a franchise or license as long as said application remains pending.
(2) Persons holding franchises or licenses. Any person holding an outstanding
franchise or license from the City for a communications facility to provide specified
services or for a private communications system may continue to operate under the existing
franchise or license to the conclusion of its present term (but not any renewal or extension
thereof) with respect to those activities expressly authorized by the franchise or license;
provided, however, that such franchisee or licensee may elect at any time to apply for a
superseding franchise or license under this chapter, and must seek additional franchises or
licenses to provide other services; and provided further that, such person shall be subject to
the other provisions of this chapter to the extent permitted by law. Provided further, that
licenses that are revocable at will may be revoked by the City, and the licensee may be
required to obtain a new license under this chapter.
(3) Persons holding leases for property in the right-of-way. Any lessee under a
lease from the City for an antenna site located in the right-of-way that is valid and in force
on the effective date of this chapter may continue to occupy such antenna site to the
conclusion of the term of the lease (but not any renewal or extension thereo0, in accordance
with the terms of such lease; provided, however, that such lessee may elect at any time to
apply for a superseding lease, franchise or license under this chapter.
(4) Persons with pending applications. Pending applications shall be subject to
this chapter. A person with a pending application shall be provided thirty (30) calendar
days from the effective date of this chapter to submit additional information to comply with
the requirements of this goveming applications chapter.
Sec. 25.1-8. Special Rules For Government Entities.
Nothing herein requires the City to apply the provisions of these articles to a
government entity if the City determines that it is not in the pubhc interest to do so, and
nothing in this chapter shall be read to require a government entity to comply with this
chapter, where the City cannot enforce the chapter against such entity as a matter of law.
Secs. 25.1-9. - 25.1-19. Reserved.
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Section 3. Chapter 25.1-20, Article II of the Code of Ordinances of the CITY OF
BOYNTON BEACH, entitled" Special Rules Applicable to Telecommunications Facilities
and Telecommunications Service Providers", is hereby created to read as follows:
ARTICLE II - SPECIAL RULES APPLICABLE TO
TELECOMMUNICATIONS FACILITIES AND
TELECOMMUNICATIONS SERVICE PROVIDERS
Sec. 25.1-20. Application for a franchise.
(1) Contents of application for initial or renewal franchise. In order to obtain
an initial or renewal franchise, an operator of a telecommunications facility must apply for
a franchise. The application must contain the following information, and such information
as the City may from time to time require.
(A) Identity of the applicant; the persons who exercise working control over
the applicant; and the persons who control those persons, to the ultimate parent.
(B) A proposal for construction of a telecommunications facility, that sets
forth at least the following:
1. A description of the services that are to be provided over the
facility.
2. The location of proposed facility and facility design, including a
description of the miles of plant to be installed, where it is to be located, and the size of
facilities and equipment that will be located in, on, over, or above the rights-of-way.
3. A description of the manner in which the system will be installed,
and the time required to construct the system, and the expected effect on right-of-way
usage, including information on the ability of the rights of way to accommodate the
proposed system, including, as appropriate given the system proposed, an estimate of the
availability of space in conduits and an estimate of the cost of any necessary rearrangement
of existing facilities.
4. A description, where appropriate, of how services will be
converted fi:om existing facilities to new facilities, and what will be done with existing
facilities.
(C) Proof, attested to by a certified public accountant, that the applicant has
the financial resources to complete the proposed project, and to construct, operate and repair
the proposed facility over the franchise term. It is not the intent of the City to require an
applicant to prove that the services it proposed to offer will succeed in the marketplace.
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(D) Proof that applicant is technically qualified to construct, operate and
repair the proposed facility. At a minimum, the applicant must show that it has experience
or resources to ensure that work is to be performed adequately, and can respond to
emergencies during and after construction is complete.
(E) Proof that the applicant is legally qualified, which proof must include a
demonstration that the applicant:
has received, or is in a position to receive, necessary
authorizations fi:om state and federal authorities;
has not engaged in conduct (fraud, racketeering, violation of
antitrust laws, consumer protection laws, or similar laws)
that allows City to conclude the applicant cannot be relied
upon to comply with requirements of franchise, or provisions
of this article; and
is willing to enter into a fi:anchise, to pay required
compensation and to abide by the applicable provisions of
the City Code and regulations, including those relating to the
construction, operation or maintenance of its facilities; and
has not entered into any agreement that would prevent it
fi:om doing so.
(F) An affidavit or declaration of the applicant or authorized officer thereof
certifying the troth and accuracy of the information in the application, and certifying that the
application meets all requirements of applicable law.
(2) Additional information regarding affiliates; presumptions. To the extent that
the applicant is in any respect relying on the financial or technical resources of another
person, including another affiliate, the proofs required by sections 25.1-20(1)(C)-(E) should
be provided for that person. An applicant will be presumed to have the requisite financial,
or technical or legal qualifications to the extent such qualifications have been reviewed and
approved by the Florida Public Service Commission; or if applicant is a holder of a
franchise in the City for a cable system or open video system, and conduct under other
franchise provides no basis for additional investigation. An applicant that is leasing
existing facilities fi:om a fi:anchised communications facility operator, where the applicant
will have no responsibility for any activity that involves work in the rights-of-way, may rely
upon the franchisee's technical qualifications, and will be presumed to have the necessary
financial qualifications.
(3) Applications for transfer. An application for a transfer of a franchise must
contain the same information required by Section 25.1-20(1), except that, if the transferor
submitted an application pursuant to Section 25.1-20(1), to the extent information provided
by the transferor under Section 25.1-20(1) remains accurate, the transferee may simply
cross-reference the earlier application.
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(4) City review. The City may request such additional information as it finds
necessary, and require such modifications to the system proposed as may be necessary in
the exercise of the City's authority over telecommunications facilities. Once the
information required by the City has been provided, the application shall be promptly
reviewed and shall be granted if the City finds that:
(A) The applicant has the qualifications to construct, operate and repair the
system proposed in conformity with applicable law. The City shall provide a reasonable
opportunity to an applicant to show that it would be inappropriate to deny it a franchise
under Section 25.1-20(E)2, by virtue of the particular circumstances surrounding the matter
and the steps taken by the applicant to cure all harms flowing therefrom and prevent their
recurrence, the lack of involvement of the applicant's principals, or the remoteness of the
matter from the operation of telecommunications facilities. An application for a franchise
area shall not be granted if the franchisee has no plans for constructing a system within the
entire area for which the franchise is sought.
(B) The applicant accepts the modifications required by the City to its
proposed system. This section does not authorize the City to exercise authority it does not
otherwise have under applicable law.
(C) The applicant enters into a franchise agreement and complies with any
conditions precedent to its effectiveness.
(D) In the case of a transfer, the City must also determine that:
1. there will be no adverse effect on the public interest, or the City's
interest in the franchise;
2. transferee agrees to be bound by all the conditions of the
franchise and to assume all the obligations of its predecessor; and
3. any outstanding compliance and compensation issues are
resolved or preserved to the satisfaction of the City.
(E) An applicant shall not be issued a franchise if it files or in the
previous three (3) years filed materially misleading information in a franchise application or
intentionally withheld information that the applicant lawfully is required to provide.
(5) Compensation.
(A) Subject only to the exceptions set out in Article I of this chapter, every
operator of a telecommunications facility must pay compensation to the City as negotiated
in a franchise or license agreement.
(B) The City may accept or require compensation in-kind from an operator
of a telecommunications facility; provided, that, the City shall not accept in-kind payments
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from any operator without providing other applicants that apply or have applied within
twelve (12) months an opporttmity to make an equivalent in-kind payment.
(C) A reseller shall pay compensation to the City equal to ten percent (10%)
of gross revenues or as otherwise negotiated in a franchise agreement.
(D) Gross revenues, for purposes of this Article II, includes all revenue
derived directly or indirectly by the operator or, in the case of a reseller, the reseller; or
derived directly or indirectly by their affiliates, subsidiaries, parent companies, and any
person in whom the operator or reseller has a financial interest, or revenues received by the
operator or reseller from a person with whom operator or reseller has a revenue-producing
agreement, from the provision of telecommunications services via the telecommunications
facility, which provision shall be interpreted to include all services and ancillary equipment;
provided, however, that this term shall not include taxes imposed directly upon any
subscriber or user by the federal, state, county, or other governmental unit and required to
be collected by the operator or reseller; provided further that a franchisee may deduct from
its gross revenues, revenues received from a lessee that holds a franchise under this chapter,
or a reseller, if that lessee or reseller submits a certificate to the telecommunications
operator stating that it has paid the fees it owes the City for the applicable reporting period.
If said lessee or reseller fails to pay the fees it owes the City for the applicable reporting
period, the franchisee shall not deduct from its gross revenues, revenues received from said
lessee or reseller. Copies of the certificate must be provided to the City.
the City.
(E) The compensation paid by each provider shall be publicly disclosed by
Secs. 25.1-21.w25.1-29. Reserved.
Section 4. Chapter 25.1-30, Article 1II, of the Code of Ordinances of the CITY OF
BOYNTON BEACH, entitled "Private Communications Facilities", is hereby created to
read as follows:
ARTICLE III - PRIVATE COMMUNICATIONS FACILITIES
Sec. 25.1-30. Application for license.
A person wishing to construct, emplace, operate, replace, reconstruct, or maintain a
private communications system must obtain a license therefor. The license shall only
authorize placement of the system in a specific portion of the public right-of-way for a
limited and specific purpose in connection with the person's business but not encompassing
in whole or in part the carriage of telecommunications for hire in the public right-of-way,
and for a limited period of time. Such application must be in the form provided for by
regulation and must be accompanied by a filing fee, the mount of which must be fixed
designated by regulation, promulgated from time-to-time by the City.
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Sec. 25.1-31. Conditions of license.
Any license shall be subject to such conditions as the City may fi:om time to time
establish, shall be expressly subordinate to the use of the rights-of-way by operators of
commtmications facilities, and shall otherwise conform to the requirements of this
ordinance. Subject to the foregoing, the provisions of Article I, sections 25.1-4(1)-(6) shall
apply to a private communications system as if it were a communications facility.
Sec. 25.1-32. Compensation.
The owner of a private communications facility shall pay, in addition to the annual
occupancy fee, a fee established by the City from time to time to reflect the fair market
value of the property used.
Section 5. Conflicting Ordinances
All prior ordinances or resolutions or parts thereof in conflict herewith are hereby repealed
to the extent of such conflict.
Section 6. Severability.
If any section, sentence, clause, or phrase of this Ordinance is held to be invalid or
unconstitutional by any court of competent jurisdiction, then said holding shall in no way
affect the validity of the remaining portions of this Ordinance.
Section 7. Inclusion in Code.
It is the intention of the City Commission of the CITY OF BOYNTON BEACH, Florida,
that the provisions of this Ordinance shall become and be made a part of the CITY OF
BOYNTON BEACH Code of 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 8. Effective Date.
This Ordinance shall become effective thirty (30) calendar days
after adoption by the City Commission.
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FIRST READING this ~; day of '~'~4r~ , 2000.
SECOND, FINAL READING AND PASSAGE this ~'~ day of ...~',~-, 2000.
ATTEST:
CITY OtFBOYNTON B~EACH, FLORIDA
Mayo~~,~---
C~~er
Commissioner
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