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Boynton.251.1 Chapter 25.1 COMMUNICATIONS RIGHTS-OF-WAY Sec. 25.1-1. Title. This Chapter shall be known and may be cited as the City of Boynton Beach Communications Rights-of-Way Ordinance. (Ord. No. 01-29, § 3, 7-3-01) Sec. 25.1-2. 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 the city; adopting and administering reasonable rules and regulations not inconsistent with state and federal law, including Florida Statutes § 337.401, as it may be amended, the 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. (Ord. No. 01-29, § 4, 7-3-01) Sec. 25.1- 3. Definitions. (1) Generally. For the purposes of this chapter, the following terms, phrases, words, and abbreviations shall have the meanings given herein, unless otherwise expressly stated. When not inconsistent with the context, words used in the present tense include the future tense; words in the plural number include the singular number; and words in the singular number include the plural number; and the masculine gender includes the feminine gender. “And” and “or” may be read conjunctively or disjunctively. The words “shall” and “will” are mandatory, and “may” is permissive. Unless otherwise expressly stated, words not defined in this chapter shall be given the meaning set forth in Title 47 of the United States Code, and, if not  defined therein, their common and ordinary meaning. References to governmental entities (whether persons or entities) refer to those entities or their successors in authority. If specific provisions of law referred to herein are renumbered, then the reference shall be read to refer to the renumbered provision. References to laws, ordinances or regulations shall be interpreted broadly to cover government actions, however nominated, and include laws, ordinances and regulations now in force or hereinafter enacted or amended. (2) Definitions. 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, shall not be Abandonment of a facility in public rights-of-way. City shall mean City of Boynton Beach, Florida. 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 chapter cable service, as defined in Florida Statutes § 202.11(2), 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. Communications Services Provider shall mean any person providing communications services through the placement or maintenance of a 2001 S-16 1 2 Boynton Beach Code communications facility in public rights-of-way. 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 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. 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, partnership, 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 acts 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 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 use of 2001 S-16  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, 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. 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 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. 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 Register 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 3 Sec. 25.1-4. 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 chapter. Subject to the terms and conditions prescribed in this chapter, 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 chapter shall comply with this chapter within sixty (60) days from the effective date of this chapter, 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 chapter governs only the placement or maintenance of communications facilities in public 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 right-of-way permit applications, including this chapter. (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; (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; 2001 S-16  (d) Evidence of the insurance coverage required under this chapter and acknowledgment that registrant has received and reviewed a copy of this chapter; (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 chapter. (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 applicant 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 from 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. (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  4 Boynton Beach Code 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 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 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 chapter. (8) In accordance with applicable city ordinances, codes or 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 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. (Ord. No. 01-29, § 6, 7-3-01) 2001 S-16  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-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 chapter. 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 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 affects 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 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 Florida Statutes § 471.003, 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) 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); 2001 S-16  (e) If appropriate given the facility proposed, an estimate of the cost of restoration to the public 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 finds 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 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 chapter and other applicable law. All facilities shall be placed underground to the extent not inconsistent with the rules of the Public Service Commission.  6 Boynton Beach Code (6) All safety practices required by applicable law or accepted industry practices and standards shall be used during the placement or maintenance of 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 Florida Statutes § 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 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 Florida Statutes §§ 337.403 and 337.404 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 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 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 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 established 2001 S-16  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 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 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) 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 work 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 regarding 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 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 Florida Statutes § 202.195, 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 the city facilities to be co-located within the city’s public rights-of-way through the use of a joint trench during registrant’s construction project. Such joint trench projects shall be negotiated in good faith by separate agreement between registrant and the city and maybe 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 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 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 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 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 or fraud 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 work 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)  8 Boynton Beach Code Sec. 25.1-8. Appeals. (1) Final, written decisions of the Director 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 chapter shall effect the remedies the city has available under applicable law. (Ord. No. 01-29, § 10, 7-3-01) Sec. 25.1-9. Conditional Use of Public Rights-of-Way. (1) In the event registrant desires to use its existing facilities or to construct new facilities for the purpose of providing other utility or non-utility services to existing or potential consumers 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 the city for such activities as may be 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 the 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 the city. (Ord. No. 01-29, § 11, 7-3-01) Sec. 25.1-10. Involuntary Termination of Registration (1) The city may terminate a registration if: 2001 S-16  (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 25.1-17 of this chapter. (2) Prior to termination, the registrant shall be notified by the Director 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 Commission 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-of-way. If a registrant fails to comply with this subsection, the city may exercise any remedies or rights it has at law or in equity, including  Communications Rights-of-Way 9 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. (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 existing 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. 01-29, § 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 2001 S-16 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 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. (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.  10 Boynton Beach Code (5) A registrant and its contractors or subcontractors engaged in work on the operator’s behalf in, on, under or over public rights-of-way, shall maintain the following minimum insurance: (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. Coverage 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 aggregate $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 completion 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 2001 S-16  registrant and its contractors and subcontractors shall maintain employers liability insurance. The following limits must be maintained: 1. Workers’ compensation 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 occurrence $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 and 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. (1) 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 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 chapter, 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. The city agrees to notify the registrant, in writing, within a reasonable time of the city receiving notice, of any issue it determines may require indemnification. Nothing in this Section shall prohibit the city from participating in the defense of any litigation by its own counsel and at its own cost if in the city’s reasonable belief there exists or may exist a conflict, potential conflict or appearance of a conflict. Nothing contained in this 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 Florida Statutes § 768.28, as it may be amended. (2) The indemnification requirements shall 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 rights-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 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 25.1-15. (2) In the event a registrant subject to such a construction bond fails to complete the work in a safe, timely and competent manner in accordance with the provisions of the permit, there shall be recoverable, jointly and severally from the principal and surety of the bond, any damages or loss suffered by the city as a result, 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 b e canceled, or allowed to lapse, until sixty (60) days after receipt by the city, by certified mail, retur n 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. (Ord. No. 01-29, § 15, 7-3-01)  12 Boynton Beach Code Sec. 25.1-15. 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 chapter, 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 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 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 chapter, subject to the provisions of Section 25.1-15 of this chapter, 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. (Ord. No. 01-29, § 17, 7-3-01) Sec. 25.1-16. Enforcement Remedies. (1) A registrant’s failure to comply with provisions of this chapter shall constitute a violation of this chapter and shall subject the registrant to the code enforcement provisions and procedures as provided in Florida Statutes Chapter 162, Florida Statutes § 166.0415 and Section 2-72, et. seq. of the City Code of Ordinances, as they may be amended. In addition, 2001 S-16 violation of this chapter may be punishable 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 Florida 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 chapter 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 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.  Communications Rights-of-Way 13 (5) Failure of the city to enforce any requirements of this chapter shall not constitute a waiver of the city’s right to enforce that violation or subsequent violations of the same type or to seek appropriate enforcement remedies. (6) In any proceeding before the city where there exists an issue with respect to a registrant’s performance of its obligations pursuant to this chapter, 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 chapter. The city may find a registrant that does not demonstrate compliance with the terms and conditions of this chapter in default and apply any one or combination of the remedies otherwise authorized by this chapter. (7) The City Manager or designee shall be responsible for administration and enforcement of this chapter, and is authorized to give any notice required by law. (Ord. No. 01-29, § 18, 7-3-01) Sec. 25.1-17. 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- 2001 S-16  way’s use. In the event of (d), 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. (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. (Ord. No. 01-29, § 19, 7-3-01) Sec. 25.1-18. Force Majeure. In the event a registrant’s performance of or compliance with any of the provisions of this chapter 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 chapter, 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. (Ord. No. 01-29, § 20, 7-3-01)  14 Boynton Beach Code Sec. 25.1-19. 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 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 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 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: 2001 S-16  (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 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. (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 communications 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 permitted 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)