Boynton.251.1 Chapter 25.1
COMMUNICATIONS RIGHTS - OF - WAY
Sec. 25.1 - 1. Title.
defined therein, their common and ordinary meaning.
This Chapter shall be known and may be cited as References to governmental entities (whether persons
the City of Boynton Beach Communications Rights - or entities) refer to those entities or their successors in
of - Way Ordinance. authority. If specific provisions of law refer red to
(Ord. No. 01 - 29, § 3, 7 - 3 - 01) herein are renumbered, then the reference shall be
read to refer to the renumbered provision. References
to laws, ordinances or regulations shall be interpreted
Sec. 25.1 - 2. Inten t and Purpose. broadly to cover government actions, however
nominated, and include laws, ordinances and
It is the intent of the city to promote the public regulations now in force or hereinafter enacted or
health, safety and general welfare by providing for amended.
the placement or maintenance of communications
facilities in the public rights - of - way within the city; (2) Definitions.
adopting and administering reason able rules and
regulations not inconsistent with state and federal Abandonment shall mean the permanent
law, including Florida Statutes § 337.401, as it may cessation of all uses of a communications facility;
be amended, the city’s home - rule authority, and in provided that this term shall not include cessation of
accordance with the provisions of the Federal all use of a facility within a physical structure where
Telecommunications Act of 1996 and othe r federal the physical structure continues to be used. For
and state law; establishing reasonable rules and example, cessation of all use of a cable within a
regulations necessary to manage the placement or conduit, where the conduit continues to be used, shall
maintenance of communications facilities in the not be Abandonment of a facility in public rights - of -
public rights - of - way by all communications services way.
providers; and minimizing disruption to the publ ic
rights - of - way. City shall mea n City of Boynton Beach,
(Ord. No. 01 - 29, § 4, 7 - 3 - 01) Florida.
Communications Services shall mean the
Sec. 25.1 - 3. Definitions. transmission, conveyance or routing of voice, data,
audio, video, or any other information or signals to a
(1) Generally. For the purposes of this chapter, point, or between or among points, by or through any
the following terms, phrases, words, and electronic, radio, s atellite, cable, optical, microwave,
abbreviations shall have the meanings given herein, or other medium or method now in existence or
unless otherwise expressly stated. When not hereafter devised, regardless of the protocol used for
inconsistent with the context, words used in the such transmission or conveyance. Notwithstanding
present tense include the future tense; words in the the foregoing, for purposes of this chapter cable
plural number include the singular number; and service , as defined in Florida Statutes § 202.11(2), as
words in the singular number include the plural it may be amended, is not included in the definition
number; and the masculine gender includes the of Communications Services and cable service
fem inine gender. “And” and “or” may be read providers or providers of service via an open video
conjunctively or disjunctively. The words “shall” and system may be subject to other ordinances of the city.
“will” are mandatory, and “may” is permissive.
Unless otherwise expressly stated, words not defined Communicati ons Services Provider shall
in this chapter shall be given the meaning set forth in mean any person providing communications services
Title 47 of the United States Code, and, if not through the placement or maintenance of a
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communications facility in public rights - of - way. 2001 S - 16
Communications Services Provider shall also include
any person that places or maintains a communications
facility in public rights - of - way but does not provide
communications services.
Communications Facility or Facility or
System shall mean any permanent or temporary plant,
equipment or property , including but not limited to
cables, wires, conduits, ducts, fiber optics, poles,
antennae, converters, splice boxes, cabinets, hand
holes, manholes, vaults, drains, surface location
markers, appurtenances, and other equipment or
pathway placed or mainta ined or to be placed or
maintained in the public rights - of - way of the city and
used or capable of being used to transmit, convey,
route, receive, distribute, provide or offer
communications services.
FCC shall mean the Federal
Communications Commission.
In Public Rights - of - Way or in the Public
Rights - of - Way shall mean in, on, over, under or
across the public rights - of - way.
Ordinance shall mean this Ordinance.
Person shall include any individual, child,
firm, association, joint venture, partnersh ip, estate,
trust, business trust, syndicate, fiduciary, corporation,
organization or legal entity of any kind, successor,
assignee, transferee, personal representative, all other
groups or combinations, and shall include the city to
the extent the city ac ts as a communications services
provider
Place or maintain or placement or
maintenance or placing or maintaining shall mean to
erect, construct, install, maintain, grade, excavate,
place, repair, extend, replace, expand, remove,
occupy, locate or reloc ate. A communications
services provider that owns or exercises physical
control over communications facilities in public
rights - of - way, such as the physical control to
maintain and repair, is placing or maintaining the
facilities. A party providing service only through
resale or only through use of
a third party’s unbundled network elements is not
placing or maintaining the communications facilities
through which such service is provided. The
transmission and receipt of radio frequency signals
through the airspace of the public rights - of - way does
not constitute placing or maintaining facilities in the
public rights - of - way.
Public Rights - of - Way shall mean a public
right - of - way, public utility easement, public highway,
street, lane, bridge, si dewalk, road, waterway, tunnel,
alley, or similar 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, and includes the surface, the air space
over the sur face and the area below the surface to the
extent the city holds a property interest therein.
Public Rights - of - Way shall not include private
property. Public Rights - of - Way shall not include any
real or personal city property except as described
above and s hall not include city buildings, fixtures,
poles, conduits, facilities or other structures or
improvements, regardless of whether they are situated
in the public rights - of - way. No reference herein, or in
any permit, to public rights - 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 registrant 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.
Registrant shall mean a communications
services provider or other person that has registered
with the city in accordance with the provisions of this
chapter.
Registration or Regis ter shall mean the
process described in this chapter whereby a
communications services provider provides certain
information to the city.
(Ord. No. 01 - 29, § 5, 7 - 3 - 01)
Communications Rights - of - Way
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Sec. 25.1 - 4. Registration for Placing or Facilities in Public Rights -
Ma intaining of - Way.
Communications
(1) A communications services provider (d) Evidence of the insurance
that desires to place or maintain a communications coverage required un der this chapter and
facility in public rights - of - way in the city shall first acknowledgment that registrant has received and
register with the city in accordance with t his chapter. reviewed a copy of this chapter;
Subject to the terms and conditions prescribed in this
chapter, a registrant may place or maintain a (e) A copy of the applicant’s
communications facility in public rights - of - way. A certificate of authorization or license to provide
communications services provider with an existing communications services issued by the Florida Public
communications facility in the public rig hts - of - way Service Commissio n, the Federal Communications
of the city as of the effective date of this chapter shall Commission, or other federal or state authority, if
comply with this chapter within sixty (60) days from any;
the effective date of this chapter, including, but not
limited to, registration, or be in violation hereof. (f) For an applicant that does
not provide a Florida Public Service Commission
(2) A registration shal l not convey any certificate of authorization number, if the applicant is
title, equitable or legal, to the registrant in the public a corporation, proof of autho rity to do business in the
rights - of - way. Registration under this chapter governs State of Florida, including the number of the
only the placement or maintenance of certificate of incorporation; and
communications facilities in public rights - of - way.
Registration does not excuse a commu nications (g) A security fund in accordance with this
services provider from obtaining appropriate access chapter.
or pole attachment agreements before locating its
facilities on the city’s or another person’s facilities. (4) The Utilities and Engineering Departments
Registration does not excuse a communications shall review the information submitted by the
services provider from complying with all applicable applicant. If the applicant submits information in
city ordinances, codes or regulations or submitting accordance with subsection (3) above, the registration
right - of - way permit applications, including this shall be effective and the city shall notify the
chapter. applicant of the effectiveness of registration in
writing. If the city determines that the informati on
(3) Each communications services has not been submitted in accordance with subsection
provider that desires to place or maintain a (3) above, the city shall notify the applicant of the
communications facility in public rights - of - way in th e non - effectiveness of registration, and reasons for the
city shall file a single registration with the city which non - effectiveness, in writing. The city shall so reply
shall include the following information: to an applicant within thirty (30) d ays after receipt of
registration information from the applicant.
(a) Name of the applicant;
(5) A registrant may cancel a registration upon
(b) Name, address and telephone written notice to the city stating that it will no longer
number of the applicant’s primary contact person in place or maintain any communications facilities in
connection with the registration and t he person to public rights - of - way within the city and will no
contact in case of an emergency; longer need to obtain permits to perform work in
public rights - of - way. A registrant cannot cancel a
(c) For registrations submitted registration if the registrant continues to place or
prior to October 1, 2001, the applicant shall state maintain any communications facilities in public
whether it provides local service or toll service or rights - of - way.
both;
(6) Registration sh all not in itself establish any
2001 S - 16 right to place or maintain or priority for the
placement or maintenance of a communications
facility in public
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rights - of - way within the city, but shall establish for 2001 S - 16
the registrant a right to app ly for a permit, if
permitting is required by the city. Registrations are
expressly subject to any future amendment to or
replacement of this chapter and further subject to any
additional city’s ordinances, as well as any state or
federal laws that may be enacted.
(7) A registrant shall renew its registration with
the city by April 1 of even numbered years in
accordance with the registration requirements in this
chapter, except that a registrant that initially registers
during the even numbered year when renewal would
be due or the odd numbered year immediately
preceding such even numbered year shall not be
required to renew until the next even numbered year.
Within thirty (30) days of any change in the
information required to be submitted pursuant to
subs ection (3), except, as of October 1, 2001,
subsection (3)(c), a registrant shall provide updated
information to the city. If no information in the then -
existing registration has changed, the renewal may
state that no information has changed. Failure to
ren ew a registration may result in the city restricting
the issuance of additional permits until the
communications services provider has complied with
the registration requirements of this chapter.
(8) In accordance with applicable city
ordinances, codes o r regulations and this chapter, a
permit shall be required of a communications services
provider that desires to place or maintain a
communications facility in public rights - of - way. An
effective registration shall be a condition precedent to
obtaining a pe rmit. Notwithstanding an effective
registration, permitting requirements shall continue to
apply. A permit may be obtained by or on behalf of a
registrant having an effective registration if all
permitting requirements are met. Individual rights - of -
way per mits shall be obtained from the Department of
Engineering on appropriate form currently in use.
(9) A registrant that places or maintains
communications facilities in the public rights - of - way
shall be required to pay compensation to the city as
required by applicable law and ordinances of the city.
(Ord. No. 01 - 29, § 6, 7 - 3 - 01)
Sec. 25.1 - 5. Transfer, Sale or Assignment of
Assets in Public Rights - of - Way.
(1) If a registrant transfers, sells or assigns its
assets located in public rights - o f - way incident to a
transfer, sale or assignment of the registrant’s assets,
the transferee, buyer or assignee shall be obligated to
comply with the terms of this chapter. Written notice
of any such transfer, sale or assignment shall be
provided by such re gistrant to the city within twenty
(20) days after the effective date of the transfer, sale
or assignment. If the transferee, buyer or assignee is a
current registrant, then the transferee, buyer or
assignee is not required to re - register. If the
transfere e, buyer or assignee is not a current
registrant, then the transferee, buyer or assignee shall
register as provided in Section 25.1 - 2 within sixty
(60) days of the transfer, sale or assignment.
(2) If permit applications are pending in the
registrant’s name, the transferee, buyer or assignee
shall notify the Engineering and Utilities Departments
that the transferee, buyer or assignee is the new
applicant.
(3) Any encumbrance on the communications
facilities of the registrant in the public rights - of - way
shall be subject and subordinate to the rights of the
city under this chapter and applicable law.
(Ord. No. 01 - 29, § 7, 7 - 3 - 01)
Sec. 25.1 - 6. Placement or Maintenance of a
Communications Facility in Public
Rights - of - Way.
(1) Registrant shall at all times comply with
and abide by all applicable provisions of state, federal
and local law and city ordinances, codes and
regulations in placing or maintaining a
communications facility in public rights - of - way.
(2) A registrant shall not commence to place or
maintain a communications facility in public rights -
of - way until all applicable permits, if any, have been
issued by the city or other appropriate authority,
except in the case of an emergency. The term
emergency shall mean a condition that affect s the
public’s health, safety or welfare, which includes an
unplanned out - of - service
Communications Rights - of - Way
5
condition of a pre - existing service. Registrant shall (e) If appropriate given the facility
provide prompt notice to the city of the placement or proposed, an estimate of the cost of restoration to the
maintenance of a communi cations facility in public public rights - of - way;
rights - of - way in the event of an emergency and shall
be required to obtain an after - the - fact permit if a (f) The timetable for construction of the
permit would have originally been required to project or each ph ase thereof, and the areas of the city
perform the work undertaken in public rights - of - way which will be affected; and
in connection with the eme rgency. Registrant
acknowledges that as a condition of granting such (g) Such additional information requested
permits, the city may impose reasonable rules or by the city that the city finds reasonably necessary to
regulations governing the placement or maintenance review such permit application.
of a communications facility in public rights - of - way.
Permits shall apply only to the a reas of public rights - (4) To the extent not otherwise prohibited by
of - way specifically identified in the permit. The city state or federal law, the city shall have the power to
may issue a blanket permit to cover certain activities, prohibit or limit the placement of new or additional
such as routine maintenance and repair activities, that communications facilities within a particular area of
may otherwise require individual permits. public rights - of - way. The city shall have the power to
prohibit or limit the placement of new or addit ional
(3) As part of any perm it application to place a communications facilities within the public rights - of
new or replace an existing communications facility in way if there is insufficient space to accommodate all
public rights - of - way, the registrant shall provide the of the requests to place and maintain facilities in that
following: area of the public rights - of - way, for the protection of
existing facilities in the pu blic rights - of - way or to
(a) An engineering plan signed and sealed accommodate city plans for public improvements or
by a Florida Registered Professional Engineer, or projects that the city determines are in the public
prepared by a p erson who is exempt from such interest.
registration requirements as provided in Florida
Statutes § 471.003, identifying the location of the (5) All communications facilities shall be
proposed facility, including a description of the placed and maintained so as not to interfere with the
facilities to be installed, where it is to be located, and use of the public ri ghts - of - way by the public and with
the approximate size of facilities and equipment that the rights and convenience of property owners who
will be located in public rights - of - way; adjoin any of the public rights - of - way. All facilities
shall be placed underground to the extent that
(b) A description of the manner in which similarly situated utilities (electric, communications,
the facility will be installed (i.e. anticipated etc.) are so required. The city may require the use of
construction methods or techniques); trenchless technology (i.e., directional bore method)
for the installation of facilities in the public rights - of -
(c) A maintenance of traffic plan for any way as well as joint trenching or the co - location of
di sruption of the public rights - of - way; facilities in existing conduit. The registrant s hall be
liable for the displacement, damage or destruction of
(d) Information on the ability of the public any property, irrigation system or landscaping as a
rights - of - way to accommodate the proposed facility, result of the placement or maintenance of its facility
if available (such information shall be provided within the public rights - of - way. The city may
without certification as to correctness, to the extent promulgate reasonable rules and regulatio ns
obtained from other persons with facilities in the concerning the placement or maintenance of a
public rights - of - way); communications facility in public rights - of - way
consistent with this chapter and other applicable law.
All facilities shall be placed underground to the
extent not inconsistent with the rules of the Public
2001 S - 16 Se rvice Commission.
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(6) All safety practices required by applicable established
law or accepted industry practices and standards shall
be used during the placement or maintenance of
communications facilities. 2001 S - 16
(7) A registrant shall, at it s own expense,
restore the public rights - of - way to at least its original
condition before such work after the completion of
any placement or maintenance of a communications
facility in public rights - of - way or each phase thereof.
If the registrant fails to make such restoration within
thirty (30) days following the completion of such
placement or maintenance, the city may perform such
restoration as it deems necessary and charge all costs
of the restoration against the registrant in accordance
with Florida S tatutes § 337.402, as it may be
amended. The registrant shall guarantee its
restoration work and shall correct any improper
restoration work at its own expense for twelve (12)
months following the original completion of the
work.
(8) Removal or relocatio n at the direction of
the city of a registrant’s communications facility in
public rights - of - way shall be governed by the
provisions of Florida Statutes §§ 337.403 and
337.404 as they may be amended.
(9) A permit from the city constitutes
authorization t o undertake only certain activities on
public rights - of - way in accordance with this chapter,
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.
(10) A regist rant shall maintain its
communications facility in public rights - of - way in a
manner consistent with accepted industry practice and
applicable law.
(11) In connection with excavation in the public
rights - of - way, a registrant shall, where applicable,
comp ly with the Underground Facility Damage
Prevention and Safety Act set forth in Florida Statutes
Chapter 556, as it may be amended.
(12) Registrant shall place or maintain a
communications facility in public rights - of - way in
compliance with all applicable standards as
by all local, state or federal law and in conformance
with the city ordinances, codes and regulations.
Registrant shall use and exercise due caution, care
and skill in performing work in the public rights - of -
way and s hall take all reasonable steps to safeguard
work site areas.
(13) In the interest of the public’s health, safety
and welfare, upon request of the city, a registrant
shall coordinate placement or maintenance activities
under a permit with any other work, construction,
installation or repairs that may be occurring or
scheduled to occur within a reasonable time frame in
the subject public rights - of - way. The city may require
registrant to alter its placement or maintenance
schedule as the city determines to b e reasonably
necessary so as to minimize disruptions and
disturbance in the public rights - of - way. The city may
provide a more definite time frame based on
individual city construction or maintenance
schedules.
(14) A registrant shall not place or maintai n its
communications facilities so as to interfere, displace,
damage or destroy any facilities, including but not
limited to, sewers, gas or water mains, storm drains,
pipes, cables or conduits of the city or any other
person’s facilities lawfully occupyin g the public
rights - of - way of the city.
(15) The city makes no warranties or
representations regarding the fitness, suitability, or
availability of the city’s public rights - of - way for the
registrant’s communications facilities and any
performance of wor k or costs incurred by registrant
or provision of services shall be at registrant’s sole
risk. Nothing in this chapter shall affect the city’s
authority to add, vacate or abandon public rights - of -
way and the city makes no warranties or
representations rega rding the availability of any
added, vacated or abandoned public rights - of - way for
communications facilities
(16) The city shall have the right to make such
inspections of communications facilities placed or
maintained in public rights - of - way as it finds
necessary to ensure compliance with this chapter. In
the event the city determines that a violation exists
with respect to registrant’s placement or maintenance
of facilities in the public rights - of - way that is not
Communications Rights - of - Way
7
considered to be an emergency or danger to the sewer, gas, water, electric, st orm drainage,
public health, safety or welfare, the city will provide communications, and other facilities, cables or
registrant at least three (3) days written notice setting conduit, and to do, and to permit to be done, any
forth the violation and requesting correction. underground and overhead installation or
improvement that may be deemed necessary or
(17) A permit application to place a new or proper by the city in public rights - of - way occupied by
replace an existing communications facility in public the registrant. Registrant shall, if registrant so agrees,
rights - of - way shall include plans showing the allow the city facilities to be co - located within the
location of the proposed installation of facilities in the city’s public rights - of - way through the use of a joint
public rights - of - way. If the plans so provided require trench during registrant’s construction project. Such
revision based upon actual installation, t he registrant joint trench projects shall be negotia ted in good faith
shall promptly provide revised plans. The plans shall by separate agreement between registrant and the city
be in a hard copy format or an electronic format and maybe subjected to other city rights - of - way
specified by the city, provided such electronic format requirements. The city further reserves without
is maintained by the registrant. Such plans in a format limitation the right to alter, change, or cause to be
maintained by the registrant shall be provided at no changed, the grading, installation ,. relocation, or
cost to the city. The plans shall be in a digitized width of the public rights - of - way within the limits of
format showing the two - dimensional location of the the city and within said limits as same may from time
facilities based on the city’s geographical database, or to time be altered.
other format acceptable to the city. The city shall
maintain the confid entiality of such plans and any (19) A registrant shall, on the request of any
other information provided in accordance with person holding a permit issued by the city,
Florida Statutes § 202.195, as it may be amended. temporarily rais e or lower its communications
facilities to permit
(18) The city reserves the right to place and
maintain, and permit to be placed or maintained, 2001 S - 16
the work authorized by the permit. The expense of
such temporary raising or lowering of facilities shall
be paid by the person requesting the same, and the
registrant shall have the authorit y to require such
payment in advance. The registrant shall be given not
less than thirty (30) days advance written notice to
arrange for such temporary relocation. If the city
requests a temporary raising or lowering of a facility
for a public purpose, the city shall not be charged for
the temporary raising or lowering of the facility.
(Ord. No. 01 - 29, § 8, 7 - 3 - 01)
Sec. 25.1. - 7. Suspension of Permits.
(1) Subject to Section 25.1 - 8 below, the
Director of Engineering, or his designee may suspend
a permit for work in the public rights - of - way for one
or more of the following reasons:
(a) Failure to satisfy permit conditions,
including conditions set forth in this chapter or other
applicable city ordinances, codes or regulations
governing placement or main tenance of
communications facilities in public rights - of - way,
including without limitation, failure to take
reasonable safety precautions to alert the public of
work at the work site, or to restore any public rights -
of - way;
(b) Misrepresentation or frau d by
registrant in a registration or permit application to the
city;
(c) Failure to properly renew or
ineffectiveness of registration;
(d) Failure to relocate or remove facilities
as may be lawfully required by the city;
(e) Failure to commence wo rk within 180
days of securing permit; or
(f) Abandonment of project or suspension
of work for more than 180 days.
(2) After the suspension of a permit pursuant to
this section, the Director of Engineering or his
designee shall provide written notice of the reason for
the suspension to the registrant.
(Ord. No. 01 - 29, § 9, 7 - 3 - 01)
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Sec. 25.1 - 8. Appeals. (a) A federal or state authority suspends,
denies, or revokes a registrant’s, certification or
(1) Final, written decisions of the Director of license to provide communications services;
Engineering, or his designee, suspending or denying a
permit, denying an a pplication for a registration or (b) The registrant’s placement o r
denying an application for renewal of a registration maintenance of a communications facility in the
are subject to appeal, as set forth in Chapter 1, Article public rights - of - way presents an extraordinary danger
VII, of the City’s Land Development Regulations, as to the general public or other users of the public
amended. rights - of - way and the registrant fails to remedy the
danger promptly after receipt of written notice; or
(2) Nothing in this chapter shall effect the
rem edies the city has available under applicable law. (c) The registrant ceases to use all of its
(Ord. No. 01 - 29, § 10, 7 - 3 - 01) communications facilities in public rights - of - way and
has not complied with Section 25.1 - 17 of this chapter.
Sec. 25.1 - 9. Conditional Use of Public (2) Prior to termination, the registrant shall be
Rights - of - Way. notified by the Director of Engineering, or his
designee, with a written notice setting forth all
(1) In the event registrant desires to use its matters pertinent to the proposed termination action,
existing facilities or to construct new facilities for the including which of (a) through (c) above is applicable
purpose of providing other utility or non - utility as the reason therefore, and describing the proposed
services to existing or potential consumers or action of the city with respect thereto. The registrant
resellers, by providing any other services other than shall have thirty (30) days after receipt of such notice
the provision of communications service, or for within which to address or eliminate the reason or
providing any other use to existing or potential within which to present a plan, satisfactory to the
consumers, a re gistrant shall seek such additional and Director of Engineering, or his designee, to
separate authorization from the city for such activities accomplish the same. If the plan is rejected, the
as may be required by applicable law. Director of Engineering, or his designee, shall
provide written notice of such rejection to the
(2) To the extent that a registrant leases or registrant and shall make a recommendation to the
otherwise uses the facilities of a person that is duly City Commission regarding a final decision as to
registered or othe rwise authorized to place or termination of registration. A decision by the city to
maintain facilities in the public rights - of - way of the terminate a registration may only be accomplished by
city, registrant shall make no claim, nor assert any an action of the City Commission. A registrant shall
right, which will impede the lawful exercise of the be notified by written notice of any decision by the
city’s rights, including requiring the removal of such City Commission to terminate its registration. Such
facilities f rom the public rights - of - way of the city, written notice shall be sent within seven (7) days after
regardless of the effect on registrant’s ability to place the decision.
or maintain its own communications facilities in
public rights - of - way of the city. (3) In the event of termination, the former
(Ord. No. 01 - 29, § 11, 7 - 3 - 01) registrant shall: (a) notify the city of the assumption
or anticipated assumption by another registrant of
ownership of the registrant’s communications
Sec. 25.1 - 10. Involuntary Termination of facilities in public ri ghts - of - way; or (b) provide the
Registration city with an acceptable plan for disposition of its
communications facilities in public rights - of - way. If a
(1) The city may terminate a registration if: registrant fails to comply with this subsection, the
city may exercise any remedies or rights it has at law
or in eq uity, including
2001 S - 16
Communications Rights - of - Way
9
but not limiting to taking possession of the facilities,
requiring the registrant’s bonding company within 90 2001 S - 16
days of the termination to remove some or all of the
facilities from the public rights - of - way and restore
the public rights - of - way to its original condition
before the removal, or requiring that some or all of
the facilities be removed and the public rights - of - way
restored to its original condition before the removal at
the registrant’s expense .
(4) In any event, a terminated registrant shall
take such steps as are necessary to render every
portion of the communications facilities remaining in
the public rights - of - way of the city safe.
(5) In the event of termination of a registration,
this provision does not permit the city to cause the
removal of any communications facilities that are
used to provide another service for which the
registrant holds a valid certification or license with
the governing federal or state agency, where required,
an d is properly registered with the city for such
certificated or licensed service, where required.
(Ord. No. 01 - 29, § 12, 7 - 3 - 01)
Sec. 25.1 - 11. Existing Communications Facilities
in
Public Rights - of - Way.
A communications services provider with an
exi sting communications facility in the public rights -
of - way of the city has sixty (60) days from the
effective date of this chapter to comply with the terms
of this chapter, including, but not limited to,
registration, or be in violation thereof.
(Ord. No. 0 1 - 29, § 13, 7 - 3 - 01)
Sec. 25.1 - 12. Insurance.
(1) A registrant shall not commence
construction, operation or maintenance 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 registrant allow
any contractor or subcontractor to commence work
on its contract or subcontract 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 registrant has
facilities in the public rights - of - way, and for a period
thereafter as specified in the minimum coverages
described below. If the registrant, 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.
(2) Certificates of insurance, reflecting
evidence of the required insurance, shall be filed with
the Risk Manager Coordinator. For entities tha t 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 public rights - 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.
(3) These certificates of insurance shall contain
a provision that coverages afforded under these
policies will not be canceled until at least forty - five
(45) calendar days prior written notice has been given
to the city. Policies shall be issued by companies
authorized to do business under the la ws of the State
of Florida. Financial Ratings must be no less than “A -
VI” in the latest edition of “Bests Key Rating Guide,”
published by A.M. Best Guide. A registrant may self -
insure. Self insured status must be confirmed with
certification of same by pre sentation of financial
statements which are not more than one (1) year old
and signed by the registrant’s Chief Financial Officer
or designee. Information contained therein is subject
to review and approval by city’s Risk Management
Division.
(4) 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 registrant shall furnish, at least thirty (30)
calendar days prior to the expiration of the date of
such insurance, a renewed certificate of insurance of
equal and like coverage.
Boynton Beach Code
10
(5) A registrant and its contractors or behalf in, on, under or over public rights - of - way,
subcontractors engaged in work on the operator’s sh all maintain the following minimum insurance:
2001 S - 16
(a) 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. Co verage must be written on an
occurrence basis, with the following limits of
liability:
1. Bodily injury
a. Each occurrence
$1,000,000
b. Annual aggregate
$3,000,000
2. Property damage
a. Each occurrence
$1,000,000
b. Annual aggr egate
$3,000,000
3. Personal injury
Annual Aggregate
$3,000,000
4. Completed operations and
products liability shall be maintained for two (2)
years after the abandonment of the facility by the
registrant (in the case of the registrant) or co mpletion
of the work for the registrant (in the case of a
contractor or subcontractor).
5. Property damage liability
insurance shall include coverage for the following
hazards: X - explosion, C - Collapse, U -
underground.
(b) Workers’ compensation insurance
shall be maintained to comply with statutory limits
for all employees, and in the case any work is sublet,
each registrant 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
registrant. Each
registrant and its contractors and subcontractors shall
maintain employers liability insurance. The following
limits must be maintained:
1. Workers’ compensat ion
Statutory
2. Employer’s liability $
500,000
per
occurrence
(c) Comprehensive auto liability
1. Bodily injury
a. Each occurrence $1,000,000
b. Annual aggregate $3,000,000
2. Property damage
................................ ................................ .................. a. Each o ccurrence $1,000,000
b. Annual aggregate $3,000,000
Coverage shall include owned, hired
and non - owned vehicles.
(6) 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.
(7) This Section shall not be construed to affect
in any way the city’s rights, privileges a nd
immunities as set forth in Florida Statutes § 768.28.
Insurance under this Section shall run continuously
with the presence of the registrant’s facilities in the
public rights - of - way and any termination or lapse of
such insurance shall be a violation of this Section and
subject to the remedies as set forth herein.
Notwithstanding the foregoing, the city may, in its
sole discretion, require increased or decreased levels
of insurance for any other object placed in the city’s
public rights - of - way by way of individual license
agreements
(Ord. No. 01 - 29, § 14, 7 - 3 - 01)
Communications Rights - of - Way
11
Sec. 25.1 - 13. Indemnification. bond hereunder shall only be required to the extent
that the cost of the restoration excee ds the amount
(1) A registrant shall, at its sole cost and recoverable against the security fund as provided in
expense, indemnify, hold harmless, and defend the Section 25.1 - 15.
city, its officials, boards , members, agents, and
employees, against any and all claims, suits, causes of (2) In the event a registrant subject to such a
action, proceedings, judgments for damages or construction bond fails to complete the work in a
equitable relief, and costs and expenses incurred by safe, timely and competent manner in accordance
the city arising out of the placement or maintenance with the provisions of t he permit, there shall be
of its communications sys tem or facilities in public recoverable, jointly and severally from the principal
rights - of - way, regardless of whether the act or and surety of the bond, any damages or loss suffered
omission complained of is authorized, allowed or by the city as a result, including the full amount of
prohibited by this chapter, provided, however, that a any compensation, indemnification or cost of removal
registrant’s obligation hereunder shall not extend to or abandonment o f any property of the registrant, or
any claims caused by th e gross negligence or wanton the cost of completing the work, plus a reasonable
or willful acts of the city. This provision includes, but allowance for attorney’s fees, up to the full amount of
is not limited to, the city’s reasonable attorneys’ fees the bond.
incurred in defending against any such claim, suit or
proceedings. The city agrees to notify the registrant, (3) No less than twelve (12) months after
in writing, within a reasonable time of the city completion of the construction and satisfaction of all
receiving notice, of any issue it determines may obl igations in accordance with the bond, the
require indemnification. Nothing in this Section shall registrant may request the Director of Engineering to
prohibit the city from participating in the defense of remove the requirement to continue the construction
any litigation by its own counsel and at its own co st if bond. Notwithstanding, the city may require a new
in the city’s reasonable belief there exists or may bond for any subsequent work performed in the
exist a conflict, potential conflict or appearance of a public right s - of - way.
conflict. Nothing contained in this Section shall be
construed or interpreted: (a) as denying to either party (4) The construction bond shall be issued by a
any remedy or defense available to such party under surety having a minimum rating of A - 1 in Best’s Key
the laws of the State of Florida; (b) as consent by the Rating Guide, Property/Casualty Edition; shall be
city to be sued; or (c) as a waiver of sovereign subject to the approval of the City Attorney; and shall
immunity beyond the waiver provided in Florida provide that:
Statutes § 768.28, as it may be amended.
(2) The indemnification requirements sh all
survive and be in effect after the termination or
cancellation of a registration.
(Ord. No. 01 - 29, § 15, 7 - 3 - 01)
Sec. 25.1 - 14. Construction Bond.
(1) Prior to issuing a permit where the work
under the permit will require restoration of public
right s - of - way, the city may require a construction
bond to secure the restoration of the public rights - of -
way. Notwithstanding the foregoing, a construction
2001 S - 16
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(5) The rights reserved by the city with resp ect
to any construction bond established pursuant to this
Section are in addition to all other rights and
remedies the city may have under this Section, or at
law or equity, and no action, proceeding or exercise
of a right with respect to the construction bond will
affect any other right the city may have.
(Ord. No. 01 - 29, § 15, 7 - 3 - 01)
Boynton Beach Code
12
Sec. 25.1 - 15. Security Fund. provisions of this chapter shall constitute a violation
of this chapter and shall subject the registrant to the
At or prior to the time a registrant receives its code enforcement provisions and procedures as
first permit to place or maintain a communications provided in Florida Statutes Chapter 162, Florida
facility in public rights - of - way after the effective date Statutes § 166.0415 and Section 2 - 72, et. seq. of the
of this chapter, the registrant may be required to file City Code of Ordinances, as they may be amended. In
with the city, for city approval, an annual bond, cash addition,
deposit or irrevocable letter of credit in the sum of
twenty - five thousand dollars ($25,000) havin g as a
surety a company qualified to do business in the State
of Florida, and acceptable to the city, which shall be 2001 S - 16
referred to as the “security fund.” The security fund
shall be conditioned on the full and faithful
performance by the registrant of all re quirements,
duties and obligations imposed upon registrant by the
provisions of this chapter. The bond or guarantee
shall be furnished annually or as frequently as
necessary to provide a continuing guarantee of the
registrant’s full and faithful performanc e at all times.
In the event a registrant fails to perform its duties and
obligations imposed upon the registrant by the
provisions of this chapter, subject to the provisions of
Section 25.1 - 15 of this chapter, there shall be
recoverable, jointly and sever ally from the principal
and surety of the bond, any damages or loss suffered
by the city as a result, including the full amount of
any compensation, indemnification or cost of removal
or abandonment of any property of the registrant, plus
a reasonable allo wance for attorneys’ fees, up to the
full amount of the security fund. The city may at its
reasonable discretion accept a corporate guarantee of
the registrant or its parent company, if the registrant
is a publicly traded company and maintains an
insurance rating of no less than A.
(Ord. No. 01 - 29, § 17, 7 - 3 - 01)
Sec. 25.1 - 16. Enforcement Remedies.
(1) A registrant’s failure to comply with
violation of this chapter may be p unishable by a fine
not to exceed five hundred dollars ($500) or by
imprisonment not to exceed sixty (60) days or by
both as provided.
(2) In addition to any other remedies available
at law, including but not limited to Florida Statutes §
166.0415, and F lorida Statutes Chapter 162, or equity
or as provided in this chapter, the city may apply any
one or combination of the following remedies in the
event a registrant violates this chapter, or applicable
local law or order related to the public rights - of - way :
(a) Failure to comply with the provisions
of the chapter or other law applicable to 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)
per day or part thereof that the violation continues.
(b) In addition to or instead of any other
remedy, the city may seek legal or equitable relief
from any court of competent jurisdiction.
(3) Before imposing a fine pursuant to
Subsection (2 )(a) of 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 either: (a) Cure the violation to the city’s
satisfaction and the city shall make good faith
reasonable efforts to assist in resolving the violation;
or (b) file an appeal with the city to contest the
alleged violation. Section 25.1 - 8 of this cha pter shall
govern such appeal. If no appeal is filed and if the
violation is not cured within the 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.
(4) In determi ning 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.
Communications Rights - of - Way
13
(5) Failure of the city to enforce any waiver of the city’s right to enforce that vio lation or
requirements of this chapter shall not constitute a subsequent violations of the same type or to seek
appropriate enforcement remedies. way’s use. In the event of (d), the cit y may require
the third person to coordinate with the registrant that
(6) In any proceeding before the city where owns the existing facility for joint removal and
there exists an issue with respect to a registrant’s placement, where agreed to by the registrant.
performance of its obligations pursuant to this
chapter, the r egistrant shall be given the opportunity (3) In the event that the city does not direct the
to provide such information as it may have removal of the abandoned facility, the registrant, by
concerning its compliance with the terms and its notice of abandonment to the city, shall be deemed
conditions of this chapter. The city may find a to consent to the alteration or removal of all or any
registrant that does not demonstrate compliance with portion of the facility by the city, another utility or
the terms and conditions o f this chapter in default and person at such third party’s cost.
apply any one or combination of the remedies
otherwise authorized by this chapter. (4) If the registrant fails to remove all or any
portion of an abandoned facility as directed by the
(7) The City Manager or designee shall be city within a reasonable time period as may be
responsible for administration and enforcement of required by the city under the circumstances, the city
this chapter, and is authorized to give any notic e may perform such removal and charge the cost of the
required by law. removal against the registrant.
(Ord. No. 01 - 29, § 18, 7 - 3 - 01) (Ord. No. 01 - 29, § 19, 7 - 3 - 01)
Sec. 25.1 - 17. Abandonment of a Communications Sec. 25.1 - 18. Force Majeure.
Facility.
In the event a registrant’s performance of or
(1) Upon abandonment of a communications compliance with any of the provisions of this chapter
facility owned by a registrant in public rights - of - way, is prevented by a cause or event not within the
the registrant shall notify the city within ni nety (90) registrant’s control, such inability to perform or
days. comply shall be deemed excused and no penalties or
sanctions shall be imposed as a result, provided,
(2) The city may direct the registrant to remove however, that such registrant uses all practicable
all or any portion of such abandoned facility at the means to expeditiously cure or correct any such
registrant’s sole expense if the city determines that inability to perform or comply. For purposes of this
the abandoned facility’s presence interferes with the ch apter, causes or events not within a registrant’s
public health, safety or wel fare, which shall include, control shall include, without limitation, acts of God,
but is not limited to: (a) compromises safety at any floods, earthquakes, landslides, hurricanes, fires and
time for any public rights - of - way user or during other natural disasters, acts of public enemies, riots or
construction or maintenance in public rights - of - way; civil disturbances, sabotage, strikes and restraints
(b) prevents another person from locating facilities in imposed by order of a governmental agency or court.
the area of publi c rights - of - way where the abandoned Causes or events within registrant’s control, and thus
facility is located when other alternative locations are not falling within this Section, shall include, without
not reasonably available; or (c) creates a maintenance limitation, registrant’s financial inability to perform
condition that is disruptive to the public rights - of - or comply, economic h ardship, and misfeasance,
malfeasance or nonfeasance by any of registrant’s
directors, officers, employees, contractors or agents.
(Ord. No. 01 - 29, § 20, 7 - 3 - 01)
2001 S - 16
Boynton Beach Code
14
Sec. 25.1 - 19. Reports and Records.
(1) Each registrant shall, upon thirty (30) 2001 S - 16
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, maintenance,
or repair of the facility to the extent the city review of
the books and records is necessary to manage its
rights - of - way.
(2) Any and all non - proprietary or non -
confidential books and records may be copied by the
city. To the maximum extent permitted by Florida
Statutes § 202.195, as amended, such books and
records shall be kept confidential and exempt from
the provisions of Florida Statutes § 119.07(1). A
registrant is responsible for obtaining or maintaining
the necessary possession or control of all books and
records related to the construction, maintenance or
repair of the 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 perio d required by state law.
(3) For purposes of this section, 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 agreeme nt.
(4) If any books and records are too
voluminous, or for security reasons cannot be copied
and moved, then a registrant may request that the
inspection take place at some other location mutually
agreed to by the city and the registrant, provided that
the registrant must make necessary arrangements for
copying documents selected by the city after its
review; and the registrant must pay all travel and
additional copying expenses incurred by the city in
inspecting those documents or having those
documents inspected by its designee.
(5) Without limiting the foregoing, a registrant
shall provide the city the following within ten (10)
calendar days of their receipt or (in the case of
documents created by the registrant or its affiliate)
filing:
(a) Notices of deficiency or forfeiture
related to the operation of the facility; and
(b) Copies of any request for protection
under bankruptcy laws, or any judgment related to a
declaration of bankruptcy by the operator or by any
partnership or corp oration that owns or controls the
operator directly or indirectly.
(6) 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.
(Ord. No. 01 - 29, § 21, 7 - 3 - 01)
Sec. 25.1 - 20. Reservation of Rights and Remedies.
(1) The city reserves the right to amend this
chapter as it shall find necessary in the lawful
exercise of its police powers.
(2) This chapter shall be applicable to all
comm unications facilities placed in the public rights -
of - way on or after the effective date of this chapter
and shall apply to all existing communications
facilities in the public rights - of - way prior to the
effective date of this chapter, to the full extent
pe rmitted by state and federal law.
(3) The adoption of this chapter is not intended
to waive any rights or defenses the city may have
under any existing franchise, license or other
agreements with a communications services provider.
(4) Nothing in this chapter shall affect the
remedies the city has available under applicable law.
(Ord. No. 01 - 29, § 22, 7 - 3 - 01)