O01-29 1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
ORDINANCE NO. OI .-. ~
AN ORDINANCE OF THE CITY OF BOYNTON BEACH,
FLORIDA, REGULATING THE USE OF PUBLIC RIGHTS-OF-
WAY FOR COMMUNICATIONS FACILITIES; REPEALING
CHAPTER 25 ORDINANCE O 00-32; PROVIDING FOR TITLE;
PROVIDING FOR INTENT AND PURPOSE; PROVIDING FOR
DEFINITIONS; PROVIDING FOR REGISTRATION FOR
PLACING OR MAINTAINING COMMUNICATIONS
FACILITIES IN PUBLIC RIGHTS,OF-WAY; PROVIDING FOR
TRANSFER, SALE OR ASSIGNMENT OF ASSETS IN PUBLIC
RIGHTS-OF-WAY; PROVIDING FOR PLACEMENT OR
MAINTENANCE OF A COMMUNICATIONS FACILITY IN
PUBLIC RIGHTS-OF-WAY; PROVIDING FOR SUSPENSION
OF PERMITS; PROVIDING FOR APPEALS; PROVIDING FOR
CONDITIONAL USE OF PUBLIC RIGHTS-OF-WAY;
PROVIDING FOR INVOLUNTARY TERMINATION OF
REGISTRATION; PROVIDING FOR EXISTING
COMMUNICATIONS FACILITIES IN PUBLIC RIGHTS-OF-
WAY; PROVIDING FOR INSURANCE; PROVIDING FOR
INDEMNIFICATION; PROVIDING FOR CONSTRUCTION
BOND; PROVIDING FOR SECURITY FUND; PROVIDING
FOR ENFORCEMENT REMEDIES; PROVIDING FOR
ABANDONMENT OF A COMMUNICATIONS FACILITY;
PROVIDING FOR FORCE MAJEURE; PROVIDING FOR
RESERVATION OF RIGHTS ~ REMEDIES; PROVIDING
FOR CODIFICATION; PROVIDING FOR CONFLICTS;
PROVIDING FOR SEVERABILITY; PROVIDING FOR
EFFECTIVE DATE.
WHEREAS, effective January 1, 2001, Section 337.401, Florida Statutes (2000),
is amended to state that because federal and state law require the nondiscriminatory
treatment of providers of telecommunications services and because of the desire to
promote competition among providers of telecommumcations services, it is the intent of
the Legislature that municipalities and counties treat telecommunications companies in a
nondiscriminatory and competitively neutral manner when imposing rules or regulations
governing the placement or maintenance of telecommunications facilities in the public
roads or rights-of-way. Rules or regulations imposed by a municipality or county relating
to telecommunications companies placing or maintaining telecommunications facilities in
C:\WINDOWS\TEMPX,BB FLC - Mdl Commncatns Rghts-of-Wy Ord 060101 cln.doc
- 1 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
its roads or rights-of-way must be generally applicable to all telecommunications
companies and, notwithstanding any other law, may not require a telecommunications
company to apply for or enter into an individual license, franchise, or other agreement with
the municipality or county as a condition of placing or maintaining telecommunications
facilities in its roads or rights-of-way; and
WHEREAS, effective October 1, 2001, Section 337.401, Florida Statutes (2000),
is further amended to state that because of the unique circumstances applicable to
providers of communications services and the fact that federal and state law require the
nondiscriminatory treatment of providers of telecommunications services, and because of
the desire to promote competition among providers of communications services, it is the
intent of the Legislature that municipalities and counties treat providers of communications
services in a nondiscriminatory and competitively neutral manner when imposing rules or
regulations governing the placement or maintenance of communications facilities in the
public roads or rights-of-way. Rules or regulations imposed by a municipality or county
relating to providers of communications services placing or maintaining communications
facilities in its roads or rights-of-way must be generally applicable to all providers of
communications services and, notwithstanding any other law, may not require a provider
of communications services, except as otherwise provided for providers of cable service, to
apply for or enter into an individual license, franchise, or other agreement with the
municipality or county as a condition of placing or maintaining communications facilities
in its roads or rights-of-way; and
WHEREAS, it is the intent of the CITY to exercise the CITY's authority over
communications services providers' placement and maintenance of facilities in the Public
C:\WINDOWS\TEMPkBB FLC - Mdl Commncatns Rghts-of-Wy Ord 060101tin.doc
2
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
Rights-of-Way so as to not interfere with existing CITY utilities and/or systems currently
serving its residents; and
WHEREAS, it is the CITY's intent to treat each communications services provider
in a nondiscriminatory and competitively neutral manner in exercising such authority; and
WHEREAS, the Public Rights-of-Way subject to the jurisdiction and control of
the CITY: (1) are critical to the travel of persons and the transport of goods and other
tangibles in the business and social life of the community by all citizens; (2) are a unique
and physically limited resource and proper management by the CITY is necessary to
maximize efficiency, minimize the costs to the taxpayers of the foregoing uses, and to
minimize the inconvenience to and negative effects upon the public from such facilities'
placement and maintenance in the Public Rights-of-Way; and (3) are intended for public
uses and must be managed and controlled consistently with that intent; and
WHEREAS, it is the intent of the CITY to exercise its authority to adopt
reasonable rules and regulations to the fullest extent allowed by Federal and State law; and
WHEREAS, it is the intent of the CITY that this Ordinance shall not apply to
cable service providers.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF
THE CITY OF BOYNTON BEACH, FLORIDA, THAT:
Section 1 - The foregoing "WHEREAS" clauses are hereby ratified and confirmed
as being true and correct and are hereby made a specific part of this Ordinance.
Section 2- Repealer
Chapter 25.1 (Ordinance O 00-32) of the Code of Ordinances is repealed.
C:\W1NDOWS\TEMPXBB FLC - Md! Commncams Rghts-of-Wy Ord 060101cln.doc -3 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
Section 3 - Title
This Ordinance shall be known and may be cited as the City of Boynton Beach
Communications Rights-of-Way Ordinance.
Section 4 - Intent and Purpose
It is the intent of the CITY to promote the public health, safety and general welfare
by: providing for the placement or maintenance of Communications Facilities in the Public
Rights-of-Way within CITY; adopting and administering reasonable rules and regulations
not inconsistent with State and Federal law, including Section 337.401, Florida Statutes
(2000), as it may be amended, CITY's home-rule authority, and in accordance with the
provisions of the Federal Telecommunications Act of 1996 and other Federal and State
law; establishing reasonable rules and regulations necessary to manage the placement or
maintenance of Communications Facilities in the Public Rights-of-Way by all
Communications Services Providers; and minimizing disruption to the Public Rights-of-
Way.
Section 5 - Definitions
For the purposes of this Ordinance, 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
def'med 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
C:\WINDOWS~TEMPX~BB FLC - Mdl Commaacatns Rghts-of-Wy Ord 060101cln.doc -4-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
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 government actions,
however nominated, and include laws, ordinances and regulations now in force or
hereinafter enacted or amended.
1. "Abandonment" shall mean the permanent cessation of all uses of a
Communications Facility; provided that this term shall not include cessation of all use of a
Facility within a physical structure where the physical structure continues to be used. For
example, cessation of all use of a cable within a conduit, where the conduit continues to be
used, shah not be "Abandonment" of a Facility in Public Rights-of-Way.
2. "CITY" shall mean City of Boynton Beach, Florida.
3. "Communications Services" shall mean the transmission, conveyance or
routing of voice, data, audio, video, or any other information or signals to a point, or
between or among points, by or through any electronic, radio, satellite, cable, optical,
microwave, or other medium or method now in existence or hereafter devised, regardless
of the protocol used for such transmission or conveyance. Notwithstanding the foregoing,
for purposes of this Ordinance "cable service", as defined in Section 202.11(2), Florida
Statutes (2000), as it may be amended, is not included in the definition of
"Communications Services" and cable service providers or providers of service via an open
video system may be subject to other ordinances of the CITY.
4. "Communications Services Provider" shall mean any Person providing
Communications Serv/ces through the placement or maintenance of a Communications
Facility in Public Rights-of-Way. "Communications Services Provider" shall also include
C :\WINDOWS\TEMP~BB FLC - Mdl Commncatns Rghts-of-Wy Ord 060101 cln.doc -5-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
any Person that places or maintains a Communications Facility in Public Rights-of-Way
but does not provide Communications Services.
5. "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 maintained 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.
6. "FCC" shall mean the Federal Communications Commission.
7. "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.
8. "Ordinance" shall mean this Ordinance.
9. "Person" shall include any individual, child, finn, association, joint venture,
parmership, 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 CITY to the extent the CITY acts as a
communications services providerl.
10. "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 relocate. 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
C:\WINDOWS\TEMPkBB FLC ~Mdl Comnmcatns Rghts-of-Wy Ord 060101cln.doc -6-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
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.
11. "Public Rights-of-Way" shall mean a public right-of-way, public utility
easement, public highway, street, lane, bridge, sidewalk, 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 surface and the area below the surface to the extent the
CITY holds a property interest therein. "Pubhc 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 shall 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.
12. "Registrant" shall mean a Communications Services Provider or other
person that has Registered with the CITY in accordance with the provisions of this
Ordinance.
13. "Registration" or "Register" shall mean the process described in this
Ordinance whereby a Communications Services Provider provides certain information to
the CITY.
C:\WINDOWS\TEMPXBB FLC - Mdl Commncatns Rghts~of-Wy Ord 060101cln.doc -7-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
Section 6 -- Registration for Placing or Maintaining Communications Facilities
in Public Rights-of-Way
1. A Communications Services Provider that desires to place or maintain a
Communications Facility in Public Rights-of-Way in the CITY shall first Register with the
CITY in accordance with this Ordinance. Subject to the terms and conditions prescribed in
this Ordinance, a Registrant may place or maintain a Communications Facility in Public
Rights-of-Way. A Communications Services Provider with an existing Communications
Facility in the Public Rights-of-Way of the CITY as of the Effective Date of this
Ordinance shall comply with this Ordinance within sixty (60) days from the Effective Date
of this Ordinance, including, but not limited to, Registration, or be in violation hereof.
2. A Registration shall not convey any title, equitable or legal, to the
Registrant in the Public Rights-of-Way. Registration under this Ordinance governs only
the placement or maintenance of Communications Facilities in Pubhc Rights-of-Way.
Registration does not excuse a Communications Services Provider from obtaining
appropriate access or pole attachment agreements before locating its Facilities on the
CITY's or another Person's facilities. Registration does not excuse a Communications
Services Provider from complying with all applicable CITY ordinances, codes or
regulations or submitting fight-of-way permit applications, including this Ordinance.
3. Each Communications Services Provider that desires to place or maintain a
Communications Facility in Public Rights-of-Way in the CITY shall file a single
Registration with the CITY which shall include the following information:
(a) name of the applicant;
C:\W1NDOWS\TEMPkBB FLC -Mdl Commncatns Rghts--of-Wy Ord 060101cln.doc -8-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
(b) name, address and telephone number of the applicant's primary
contact person in connection with the Registration and the person to contact in case of an
emergency;
(c) for Registrations submitted prior to October 1, 2001, the applicant
shall state whether it provides local service or toll service or both;
(d) evidence of the insurance coverage required under this Ordinance
and acknowledgment that Registrant has received and reviewed a copy of this Ordinance;
(e) a copy of the applicant's certificate of authorization or license to
provide Communications Services issued by the Florida Public Service Commission, the
Federal Communications Commission, or other Federal or State authority, if any;
(f) for an applicant that does not provide a Florida Public Service
Commission certificate of authorization number, if the applicant is a corporation, proof of
authority to do business in the State of Florida, including the number of the certificate of
incorporation; and
(g) a Security Fund in accordance with this Ordinance.
4. The Utilities and Engineering Departments shall review the information
submitted by the applicant. If the applicant submits information in accordance with
subsection 3 above, the Registration shall be effective and the CITY shall notify the
apphcant of the effectiveness of Registration in writing. If the CITY determines that the
information has not been submitted in accordance with subsection 3 above, the CITY shall
notify the applicant of the non-effectiveness of Registration, and reasons for the non-
effectiveness, in writing. The CITY shall so reply to an applicant within thirty (30) days
after receipt of registration information fi.om the applicant.
5. A Registrant may cancel a Registration upon written notice to the CITY
stating that it will no longer place or maintain any Communications Facilities in Public
Rights-of-Way within the CITY and will no longer need to obtain permits to perform work
in Public Rights-of-Way. A Registrant cannot cancel a Registration if the Registrant
continues to place or maintain any Communications Facilities in Public Rights-of-Way.
C:\WINDOWS\TEMP~BB FLC ~ Mall Commncatns Rghts-o£-Wy Ord 060101cln.doc
9
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
6. Registration shall not in itself establish any right to place or maintain or
priority for the placement or maintenance of a Communications Facility in Public Rights-
of-Way within the CITY, but shall establish for the Registrant a right to apply for a permit,
if permitting is required by the CITY. Registrations are expressly subject to any future
amendment to or replacement of this Ordinance 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 Ordinance, 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 subsection 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 renew 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 Ordinance.
8. In accordance with applicable CITY ordinances, codes or regulations and
this Ordinance, 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 permit.
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 permits 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.
C:\WlNDOWS\TEMP',BB FLC -Mdl Comnmcatns Rghts-of-Wy Ord 060101cln.doc
-10-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
2O
21
22
23
24
25
Section 7 - Transfer, Sale or Assignment of Assets in Public Rights-of-Way
If a Registrant transfers, sells or assigns its assets located in Public Rights-of-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 Ordinance. Written notice of
any such transfer, sale or assignment shall be provided by such Registrant 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 transferee, buyer or assignee is not a current
Registrant, then the transferee, buyer or assignee shall Register as provided in Section 4
within sixty (60) days of the transfer, sale or assignment.
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.
Any encumbrance on the Communications Facilities of the Registrant in the Public
Rights- of-Way shall be subject and subordinate to thc rights of the CITY under this
Ordinance and applicable law.
Section 8 - 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
C:~,WINDOWS\TEMP~BB FLC - Mdl Commncatns Rghts-of-Wy Ord 060101cln.doc
-11-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
"emergency" shall mean a condition that affects the public's health, safety or welfare,
which includes an unplanned out-of-service condition of a pre-existing service. Registrant
shall provide prompt notice to the CITY of the placement or maintenance of a
Communications Facility in Public Rights-of-Way in the event of an emergency and shall
be required to obtain an after-the-fact permit if a permit would have originally been
required to perform the work undertaken in Public Rights-of-Way in connection with the
emergency. Registrant acknowledges that as a condition of granting such permits, the
CITY may impose reasonable rules or regulations governing the placement or maintenance
of a Communications Facility in Public Rights-of-Way. Permits shall apply only to the
areas of Public Rights-of-Way specifically identified in the permit. The CITY may issue a
blanket permit to cover certain activities, such as routine maintenance and repair activities,
that may otherwise require individual permits.
3. As part of any permit application to place a new or replace an existing
Communications Facility in Public Rights-of-Way, the Registrant shall provide the
following:
(a) An engineering plan signed and sealed by a Florida Registered
Professional Engineer, or prepared by a person who is exempt from such registration
requirements as provided in Section 471.003, Florida Statutes, identifying the location of
the proposed Facility, including a description of the Facilities to be installed, where it is to
be located, and the approximate size of Facilities and equipment that will be located in
Public Rights-of-Way;
(b) A description of the manner in which the Facility will be installed
(i.e. anticipated construction methods or techniques);
C:\W1NDOWS\TEMP\BB FLC -Mdl Cornmncatns Rghts-of-Wy Ord 060101¢ln.doc
- 12-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
(c) A maintenance of traffic plan for any disruption of the Public
Rights-of-Way;
(d) Information on the ability of the Public Rights-of-Way to
accommodate the proposed Facility, if available (such information shall be provided
without certification as to correctness, to the extent obtained from other Persons with
facilities in the Public Rights of Way);
(e) If appropriate given the Facility proposed, an estimate of the cost of
restoration to the Pubhc Rights-of-Way;
(f) The timetable for construction of the project or each phase thereof,
and the areas of the CITY which will be affected; and
(g) Such additional information requested by the CITY that the CITY
f'mds reasonably necessary to review such permit application.
4. To the extent not otherwise prohibited by State or Federal law, the CITY
shall have the power to prohibit or limit the placement of new or additional
Communications Facilities within a particular area of Public Rights-of-Way. The CITY
shall have the power to prohibit or limit the placement of new or additional
Communications Facilities within the Public Rights-of Way if there is insufficient space to
accommodate all of the requests to place and maintain Facilities in that area of the Public
Rights-of-Way, for the protection of existing Facilities in the Public Rights-of-Way or to
accommodate CITY plans for public improvements or projects that the CITY determines
are in the public interest.
5. All Communications Facilities shall be placed and maintained so as not to
interfere with the use of the Public Rights-of-Way by the public and with the rights and
convenience of property owners who adjoin any of the Public Rights-of-Way. All Facilities
shall be placed underground to the extent that similarly situated utilities (electric,
communications, etc.) are so required. The CITY may require the use of trenchless
C:\WINDOWS\TEMPkBB FLC ~Mdl Commncatns Rghts-of-Wy Ord 060101cln.doc
- 13-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
technology (i.e., directional bore method) for the installation of Facilities in the Public
Rights-of-Way as well as joint trenching or the co-location of Facilities in existing conduit.
The Registrant shall be liable for the displacement, damage or destruction of any property,
irrigation system or landscaping as a result of the placement or maintenance of its Facility
within the Public Rights-of-Way. The CITY may promulgate reasonable rules and
regulations concerning the placement or maintenance of a Communications Facility in
Public Rights-of-Way consistent with this Ordinance and other applicable law. All
Facilities shall be placed underground to the extent not inconsistent with the rules of the
Public Service Commission.
6. All safety practices required by
practices and standards shall be used during
Communications Facilities.
7. A Registrant shall, at its 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 Section 337.402, Florida Statutes (2000), 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 relocation at the direction of the CITY of a Registrant's
Communications Facility in Public Rights-of-Way shall be governed by the provisions of
Sections 337.403 and 337.404, Florida Statutes (2000); as they may be amended.
9. A permit from the CITY constitutes authorization to undertake only certain
activities on Public Rights-of-Way in accordance with this Ordinance, and does not create
applicable law or accepted industry
the placement or maintenance of
C:\WINDOWS\TEMPkBB FLC - Mdl Commncams Rghts-of-Wy Ord 060101cln.doc
- 14-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
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 Registrant 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, comply with the Underground Facility Damage Prevention and
Safety Act set forth in Chapter 556, Florida Statutes (2000), 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 estabhshed 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 shall 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 timeframe in the subject Public Rights-of-Way.
The CITY may require Registrant to alter its placement or maintenance schedule as CITY
determines to be 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 maintain 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 occupying the Public Rights-of-Way of the CITY.
15. CITY makes no warranties or representations regarding the fitness,
suitability, or availability of CITY's Public Rights-of-Way for the Registrant's
Communications Facilities and any performance of work or costs incurred by Registrant or
provision of services shall be at Registrant's sole risk. Nothing in this Ordinance shall
C:\WINDOWS\TEMPkBB FLC -Mdl Commncams Rghts-of-Wy Ord 060101cln.doc
-15-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
2O
21
22
23
24
25
26
27
28
affect the CITY's authority to add, vacate or abandon Public Rights-of-Way and CITY
makes no warranties or representations regarding the availability of any added, vacated or
abandoned Public Rights-of-Way for Communications Facilities
16. The CITY shall have the fight to make such inspections of Communications
Facilities placed or maintained in Public Rights-of-Way as it finds necessary to ensure
compliance with this Ordinance. 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 considered to be an emergency or danger to the public health, safety or
welfare, the CITY will provide Registrant at least three (3) days written notice setting forth
the violation and requesting correction.
17. A permit application to place a new or replace an existing Communications
Facility in Public Rights-of-Way shall include plans showing the location of the proposed
installation of Facilities in the Public Rights-of-Way. If the plans so provided require
revision based upon actual installation, the Registrant shall promptly provide revised plans.
The plans shall be in a hard copy format or an electronic format specified by the CITY,
provided such electronic format is maintained by the Registrant. Such plans in a format
maintained by the Registrant shall be provided at no cost to the CITY. The plans shall be
in a digitized format showing the two-dimensional location of the Facilities based on the
CITY's Geographical Database, or other format acceptable to the CITY. The CITY shall
maintain the confidentiality of such plans and any other information provided in
accordance with Section 202.195, Florida Statutes (2000), as it may be amended.
18. The CITY reserves the right to place and maintain, and permit to be placed
or maintained, sewer, gas, water, electric, storm drainage, communications, and other
facilities, cables or conduit, and to do, and to permit to be done, any underground and
overhead installation or improvement that may be deemed necessary or proper by the
CITY in Public Rights-of-Way occupied by the Registrant. Registrant shall, if Registrant
so agrees, allow CITY facilities to be co-located within CITY's Public Rights-of-Way
through the use of a joint trench during Registrant's construction project. Such joint trench
C:\WlNDOWS\TEMPkBB FLC - Mdl Commncatns Rghts-of-Wy Ord 060101 cln.doc
-16-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
projects shall be negotiated in good faith by separate agreement between Registrant and
CITY and may be subjected to other CITY rights-of-way requirements. The CITY further
reserves without limitation the right to alter, change, or cause to be changed, the grading,
installation, relocation, or width of the Public Rights-of-Way within the limits of the CITY
and within said limits as same may from time to time be altered.
19. A Registrant shall, on the request of any Person holding a permit issued by
the CITY, temporarily raise or lower its Communications Facilities to permit 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 authority
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 CITY requests a
temporary raising or lowering of a Facility for a public purpose, CITY shall not be charged
for the temporary raising or lowering of the Facility.
Section 9 - Suspension of Permits
1. Subject to Section 10 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.
this Ordinance
placement or
Failure to satisfy permit conditions, including conditions set forth in
or other applicable CITY ordinances, codes or regulations governing
maintenance 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
permit application to the CITY;
by the CITY;
or fraud by Registrant in a Registration or
failure to properly renew or ineffectiveness of Registration;
failure to relocate or remove Facilities as may be lawfully required
C:\WINDOWS\TEMPkBB FLC -Mdl Commncatns Rghts-of-Wy Ord 060101cln.doc
-17-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
days.
failure to commence work within 180 days of securing permit; or
abandonment of project or suspension of work for more than 180
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.
Section 10 - Appeals
1. Final, written decisions of theDirector of Engineering, or his designee,
suspending or denying a permit, denying an application for a Registration or denying an
application for renewal of a Registration are subject to appeal, as set forth in Chapter 1,
Article VII, of the CITY's Land Development Regulations, as amended. 2. Nothing
in this Ordinance shall effect the remedies the CITY has available under applicable law.
Section 11 - Conditional Use of Public Rights-of-Way
1. In the event Registrant desires to use its existing Facilities or to construct
new facilities for thc purpose of providing other utility or non-utility services to existing or
potential consumers or resellers, by providing any other services other than the provision
of Communications Service, or for providing any other use to existing or potential
consumers, a Registrant shall seek such additional and separate authorization from CITY
for such activities as may bc required by applicable law.
2. To the extent that a Registrant leases or otherwise uses the facilities of a
Person that is duly registered or otherwise authorized to place or maintain facilities in thc
Public Rights-of-Way of the CITY, Registrant shall make no claim, nor assert any right,
which will impede the lawful exercise of the CITY's rights, including requiring the
removal of such facilities from the Public Rights-of-Way of the CITY, regardless of the
effect on Registrant's ability to place or maintain its own Communications Facilities in
Public Rights-of-Way of thc CITY.
C:\W1NDOWS\TEMP~B FLC - Mdl Commncatns Rghts-of-Wy Ord 060101cln.doc
-18-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Section 12 - Involuntary Termination of Registration
1. The CITY may terminate a Registration if:
(a) a Federal or State authority suspends, denies, or revokes a
Registrant's certification or license to provide Communications Services;
(b) the Registrant's placement or maintenance of a Communications
Facility in the Public Rights-of-Way presents an extraordinary danger to the general public
or other users of the Public Rights-of-Way and the Registrant fails to remedy the danger
promptly after receipt of written notice; or
(c) the Registrant ceases to use all of its Communications Facilities in
Public Rights-of-Way and has not complied with Section 19 of this Ordinance.
2. Prior to termination, the Registrant shall be notified by theDirector of
Engineering, or his designee, with a written notice setting forth all matters pertinent to the
proposed termination action, including which of (a) through (c) above is applicable as the
reason therefore, and describing the proposed action of the CITY with respect thereto. The
Registrant shall have thirty (30) days after receipt of such notice within which to address or
eliminate the reason or within which to present a plan, satisfactory to the Director of
Engineering, or his designee, to accomplish the same. If the plan is rejected, the Director
of Engineering, or his designee, shall provide written notice of such rejection to the
Registrant and shall make a recommendation to the CITY Commission regarding a final
decision as to termination of Registration. A decision by the CITY to terminate a
Registration may only be accomplished by an action of the CITY Commission. A
Registrant shall be notified by written notice of any decision by the CITY Commissi°n to
terminate its Registration. Such written notice shall be sent within seven (7) days after the
decision.
3. In the event of termination, the former Registrant shall: (a) notify the CITY
of the assumption or anticipated assumption by another Registrant of ownership of the
Registrant's Communications Facilities in Public Rights-of-Way; or (b) provide the CITY
with an acceptable plan for disposition of its Communications Facilities in Public Rights-
C:\WINDOWS\TEMPkBB FLC -Mdl Commncatns Rghts-of-Wy Ord 060101cln.doc
- 19-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
of-Way. If a Registrant fails to comply with this subsection 3., the CITY may exercise any
remedies or rights it has at law or in equity, including but not limiting to taking possession
of the Facilities, requiring the Registrant's bonding company within 90 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, and is properly registered with the
CITY for such certificated or licensed service, where required.
Section 13 - Existing Communications Facilities in Public Rights-of-Way
A Communications Services Provider with an existing Communications Facility in
the Public Rights-of-Way of the CITY has sixty (60) days from the Effective Date of this
Ordinance to comply with the terms of this Ordinance, including, but not limited to,
Registration, or be in violation thereof.
Section 14 - 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 sub-contract until all
similar such insurance required of the same has been obtained and approved. The required
C:\WlNDOWS\TEMPkBB FLC ~ Mdl Commncatns Rghts-of-Wy Ord 060101cln.doc
- 20 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
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 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 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 laws 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 presentation 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.
5. 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.
6. A Registrant and its contractors or subcontractors engaged in work on the
C:\WINDOWS\TEMP\BB FLC -Mdl Commncatns Rghts-of-Wy Ord 060101cln.doc
-21 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
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,
Coverage must be
operations, products/completed operations, and certain contracts.
written on an occurrence basis, with the following limits of liability:
a.
bo
C°
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
Personal Injury
Annual Aggregate $3,000,000
d. 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 completion of the work for the Registrant (in the case of a contractor or
subcontractor).
e. Property Damage Liability Insurance shall include Coverage for the
following hazards: X - explosion, C - Collapse, U - underground.
2. 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:
a. Workers' Compensation Statutory
C:\WlNDOWS\TEMP~BB FLC - Mdl Commncatns Rghts-o£-Wy Orr 060101cln.doc
- 22 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
2O
21
22
23
24
25
26
27
Employer's Liability $ 500,000 per occurrence
3. COMPREHENSiVE AUTO LIABILITY
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.
7. 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.
8. This Section shall not be construed to affect in any way the CITY's rights,
privileges and immunities as set forth in Section 768.28, Florida Statutes. 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
Section 15 - Indemnification
A Registrant shall, at its sole cost and expense, indemnify, hold harmless,
and defend the CITY, its officials, boards, members, agents, and employees, against any
and all claims, suits, causes of action, proceedings, judgments for damages or equitable
relief, and costs and expenses incurred by the CITY arising out of the placement or
C:\WINDOWS\TEMPX~BB FLC - Mdl Commncatns Rghts-of-Wy Ord 060101cln.doc
- 23 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
2O
21
22
23
24
maintenance of its Communications System or Facilities in Public Rights-of-Way,
regardless of whether the act or omission complained of is authorized, allowed or
prohibited by this Ordinance, provided, however, that a Registrant's obligation hereunder
shall not extend to any claims caused by the gross negligence or wanton or willful acts of
the CITY. This provision includes, but is not limited to, the CITY's reasonable attorneys'
fees incurred in defending against any such claim, suit or proceedings. CITY agrees to
notify the Registrant, in writing, within a reasonable time of CITY receiving notice, of any
issue it determines may require indemnification. Nothing in this Section shall prohibit the
CITY fi:om participating in the defense of any litigation by its own counsel and at its own
cost if in the CITY's reasonable belief there exists or may exist a conflict, potential conflict
or appearance of a conflict. Nothing contained in this Section shall be construed or
interpreted: (a) as denying to either party any remedy or defense available to such party
under the laws of the State of Florida; (b) as consent by the CITY to be sued; or (c) as a
waiver of sovereign immunity beyond the waiver provided in Section 768.28, Florida
Statutes (2000), as it may be amended.
2. The indemnification requirements shall survive and be in effect after the
termination or cancellation of a Registration.
Section 16 - Construction Bond
1. Prior to issuing a permit where the work under the permit will require
restoration of Public Rights-of-Way, CITY may require a construction bond to secure the
restoration of the Public Rights-of-Way. Notwithstanding the foregoing, a construction
bond hereunder shall only be required to the extent that the cost of the restoration exceeds
the amount recoverable against the Security Fund as provided in Section 17.
2. In the event a Registrant subject to such a construction bond fails to
C:\WINDOWS\TEMPXaBB FLC -Mdl Commncatns Rghts-of-Wy Ord 060101cln.doc
- 24 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
complete the work in a safe, timely and competent manner in accordance with the
provisions of the permit, there shall be recoverable, jointly and severally from the principal
and surety of the bond, any damages or loss suffered by the CITY as a result, including the
full amount of any compensation, indemnification or cost of removal or abandonment of
any property of the Registrant, or the cost of completing the work, plus a reasonable
allowance for attorney's fees, up to the full amount of the bond.
3. No less than twelve (12) months after completion of the construction and
satisfaction of all obligations in accordance with the bond, the Registrant may request the
Director of Engineering to remove the requirement to continue the construction bond.
Notwithstanding, the CITY may require a new bond for any subsequent work performed in
the Public Rights-of-Way.
4. The construction bond shall be issued by a surety having a minimum rating
of A-1 in Best's Key Rating Guide, Property/Casualty Edition; shall be subject to the
approval of the CITY Attorney; and shall provide that:
"This bond may not be canceled, or allowed to lapse, until sixty (60) days
after receipt by the CITY, by certified mail, return receipt requested, of a
written notice from the issuer of the bond of intent to cancel or not to
renew."
5. The rights reserved by the CITY with respect to any construction bond
established pursuant to this Section are in addition to all other rights and remedies the
CITY may have under this 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. Section 17 - Security Fund
At or prior to the time a Registrant receives its first permit to place or maintain a
Communications Facility in Public Rights-of-Way after the effective date of this
C:\WINDOWS\TEMP~BB FLC - Mdl Commncatns Rghts-of-Wy Ord 060101cln.doc
- 25 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Ordinance, the Registrant may be required to file with the CITY, for CITY approval, an
annual bond, cash deposit or irrevocable letter of credit in the sum of Twenty-Five
Thousand Dollars ($25,000) having as a surety a company qualified to do business in the
State of Florida, and acceptable to the CITY, which shall be referred to as the "Security
Fund." The Security Fund shall be conditioned on the full and faithful performance by the
Registrant of all requirements, duties and obligations imposed upon Registrant by the
provisions of this Ordinance. 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 performance at all times. In the event a Registrant fails to perform its duties and
obligations imposed upon the Registrant by the provisions of this Ordinance, subject to the
provisions of Section 17 of this Ordinance, there shall be recoverable, jointly and
severally from the principal and surety of the bond, any damages or loss suffered by the
CITY as a result, including the full amount of any compensation, indemnification or cost
of removal or abandonment of any property of the Registrant, plus a reasonable allowance
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.
Section 18 - Enforcement Remedies
1. A Registrant's failure to comply with provisions of this Ordinance shall
constitute a violation of this Ordinance and shall subject the Registrant to the code
enforcement provisions and procedures as provided in Chapter 162, Florida Statutes
(2000), Section 166.0415, Florida Statutes (2000) and Section 2-72, et.seq, of the City
Code of Ordinances, as they may be amended. In addition, violation of this Ordinance
C:\WINDOWS\TEMP23B FLC -Mdl Commncatns Rghts-of-Wy Ord 060101cln.doc
- 26 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
may be punishable by a fine not to exceed $500.00 or by imprisonment not to exceed 60
days or by both as provided.
2. In addition to any other remedies available at law, including but not limited
to Section 166.0415, Florida Statutes, and Chapter 162, Florida Statutes, or equity or as
provided in this Ordinance, the CITY may apply any one or combination of the following
remedies in the event a Registrant violates this Ordinance, or applicable local law or order
related to the Public Rights-of-Way:
(a) Failure to comply with the provisions of the Ordinance 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 ($100.00) 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 10 of this Ordinance 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.
5. In determining which remedy or remedies are appropriate, the CITY shall
take into consideration the nature of the violation, the person or persons bearing the impact
of the violation, the nature of the remedy required in order to prevent further violations,
and such other matters as the CITY determines are appropriate to the public interest.
6. Failure of the CITY to enforce any requirements of this Ordinance shall not
C:\WINDOWS\TEMP'~BB FLC -Mdl Commncatns Rghts-of-Wy Ord 060101cln.doc
- 27 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
constitute a waiver of the CITY's right to enforce that violation or subsequent violations of
the same type or to seek appropriate enforcement remedies.
7. In any proceeding before the CITY where there exists an issue with respect
to a Registrant's performance of its obligations pursuant to this Ordinance, the Registrant
shall be given the opportunity to provide such information as it may have concerning its
compliance with the terms and conditions of this Ordinance. The CITY may f'md a
Registrant that does not demonstrate compliance with the terms and conditions of this
Ordinance in default and apply any one or combination of the remedies otherwise
authorized by this Ordinance.
8. The CITY Manager or designee shall be responsible for administration and
enforcement of this Ordinance, and is authorized to give any notice required by law.
Section 19 - Abandonment of a Communications Facility
1. Upon Abandonment of a Communications Facility owned by a Registrant in
Public Rights-of-Way, the Registrant shall notify the CITY within ninety (90) days.
2. The CITY may direct the Registrant to remove all or any portion of such
Abandoned Facility at the Registrant's sole expense if the CITY determines that the
Abandoned Facility's presence interferes with the public health, safety or welfare, which
shall include, but is not limited to: (a) compromises safety at any time for any Public
Rights-of-Way user or during construction or maintenance in Public Rights-of-Way; (b)
prevents another Person from locating facilities in the area of Public Rights-of-Way where
the Abandoned Facility is located when other alternative locations are not reasonably
available; or (c) creates a maintenance condition that is disruptive to the Public Rights-of-
Way's use. In the event of (b), the CITY may require the third Person to coordinate with
the Registrant that owns the existing Facility for joint removal and placement, where
agreed to by the Registrant.
C:\WINDOWS\TEMPkBB FLC - Mdl Corrnnncatns Rghts-of-Wy Ord 060101cln.doc
- 28 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
3. In the event that the CITY does not direct the removal of the Abandoned
Facility, the Registrant, by its notice of Abandonment to the CITY, shall be deemed to
consent to the alteration or removal of all or any portion of the Facility by the CITY,
another utility or Person at such third party's cost.
4. If the Registrant fails to remove all or any portion of an Abandoned Facility
as directed by the CITY within a reasonable time period as may be required by the CITY
under the circumstances, the CITY may perform such removal and charge the cost of the
removal against the Registrant.
Section 20 - Force Maieure
In the event a Registrant's performance of or compliance with any of the provisions
of this Ordinance is prevented by a cause or event not within the Registrant's control, such
inability to perform or comply shall be deemed excused and no penalties or sanctions shall
be imposed as a result, provided, however, that such Registrant uses all practicable means
to expeditiously cure or correct any such inability to perform or comply. For purposes of
this Ordinance, causes or events not within a Registrant's control shall include, without
limitation, acts of God, floods, earthquakes, landslides, hurricanes, fires and other natural
disasters, acts of public enemies, riots or civil disturbances, sabotage, strikes and restraints
imposed by order of a governmental agency or court. Causes or events within Registrant's
control, and thus not falling within this Section, shall include, without limitation,
Registrant's financial inability to perform or comply, economic hardship, and misfeasance,
malfeasance or nonfeasance by any of Registrant's directors, officers, employees,
contractors or agents.
C:\WINDOWS~TEMPkBB FLC -Mdl Commncatns Rghts-of-Wy Ord 060101cln.doc
- 29 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
Section 21 - Reports and Records.
1. Each Registrant 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, 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 Section 202.195, Florida
Statutes, as amended, such books and records shall be kept confidential and exempt from
the provisions of Section 119.07(1), Florida Statutes. 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 period
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 agreement.
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
C:\WINDOWS\TEMP\BB FLC -Mdl Commncatns Rghts-of-Wy Ord 060101cln.doc
- 30-
1
2
3
4
5
6
7
8
9
I0
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
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:
1) notices of deficiency or forfeiture related to the
operation of the Facility; and
2) 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 corporation 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.
Section 22 - Reservation of Rights and Remedies
1. The CITY reserves the right to amend this Ordinance as it shall find
necessary in the lawful exercise of its police powers.
2. This Ordinance shall be applicable to all Communications Facilities placed
in the Public Rights-of-Way on or after the effective date of this Ordinance and shall apply
to all existing Communications Facilities in the Public Rights-of-Way prior to the effective
date of this Ordinance, to the full extent permitted by State and Federal law.
3. The adoption of this Ordinance 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 Ordinance shall affect the remedies the CITY has available
under applicable law.
C:\WlNDOWS\TEMPkBB FLC - Mdl Commncatns Rghts-of-Wy Ord 060101cln.doc
-31 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
Section 23 - 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 accomphsh such intentions.
Section 24 - Conflicting Ordinances
All prior ordinances or resolutions or parts thereof in conflict herewith are hereby
repealed to the extent of such conflict.
Section 25 - Severability
The provisions of this Ordinance are declared to be severable and if any section,
sentence, clause or phrase of this Ordinance shall, for any reason, be held to be invalid or
unconstitutional, such decision shall not affect the validity of the remaining sections,
sentences, clauses and phrases of this Ordinance but shall remain in effect, it being the
legislative intent that this Ordinance shall stand notwithstanding the invalidity of any part.
Section - 26 Effective Date
This Ordinance shall be effective immediately upon passage and adoption.
FIRST READING this [t~ day of ~t~L~ ,2001.
\\CHLMAIN\SHRDATA\CA\ORDL~kdministrative~BB FLC - Mdl Commncams Rghts-o£-Wy Ord 060101 cln.doc
- 32 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
1'7
18
19
20
21
SECOND, FINAL READING and PASSAGE this
~ ,2001.
ATTEST:
day of
CITY OF BOYNTON BEACH,
FLOyA / // /f
qommissioner
Commissioner
\\CH2vlAIN~SHRDATA\CA\ORDkAdministmtiveXBB FLC - Mdl Commncams Rghts-of-Wy Ord 060101cln.doc
-33 -