04-18-2000 Workshop Agenda
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2999NE 191"Stred SuitdOO Avwtura.FL33180
City Commission
Workshop Meeting
April 18, 2000 Following Special Meeting.
Executive Conference Room
AGENDA
1. ROW Ordinance *
2. Causeway Safety Improvements*
3. Lebowitz Memorial*
4. Office Building Signs*
5. Emissions Testing (Mayor Snyder)*
6. Defibrillators (Commissioner Berger)
7. Railroad Crossing Issues (Commissioner
Berger)
8. Other Business
9. Board Reports
* Back-up Information Exists
Next Meeting - May 22, 2000
. Cultural Center Report
This meeting is open to the public. In accordance with the Americans with Disabilities Act of 1990, all persons who are
disabled and who need special accommodations to participate in this meeting because of that disability should contact
the Office of the City Clerk, 305-466-8901, not later than two days prior to such proceeding.
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~TY ADMINISTRATION
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OJ;u)DilAIlCEl NO. 0 0 -
AN ORDJ:mlWClIl OF '!!Hlil BOA:aD OF COtllftY
COMMX..:Z:~ or I'~ lillU.CD C>....u..~"', Jr'LOR~
PRov:xDZJiIQ" rem. sHOaT 'rZ"rLB, PROV'%D:tNG !"OR
PCJlI'OSl< 1 I'ROVJ:01:lllO I'OR Wl:F:tNZ'1'J:~S 1 paov.rOJ:NO
FOR REGXS'1'lU'.'l'J:ON lI'OR ~SB OF RrGB'1'-OF-WA'r;
l'R.OVJ:PDlG FOR NA=aB OJ!" RBGJ:S'1'2Ul.TrON;
l'ROVXl)J:IiCiI rea lIlJPT!!lC'l'J:VBSBSS OJI' IUlG:z:S....IUl.TJ:OH'
PROV%:D:QIQ rOR '1'JlJUIS~ or "'G:l:STJlJl.'1'r~l
PROv:J:P:tNG lI'OR BX:tB'l':tNG '1'ZlL~CA"'J:OIllS
FACJ:LZ'l':alS = RXGB'l'-OP-WAY I PROV1:IInl'G I'OR
SUQ_aJ:~ 011' IPB1IKt'l'S J l'ROv.r:c:tNG POll UPllALS 1
1'aDV%D:tHG II"OR lPBIIlB TO COUN"Z'Y J I'ROVJ:l)DllJ FOR
CONS'l'ROC'l'XON J:N '1'_ IU:GKT-OJil'-W1YJ PROv.IDnl'G
FOR :tNlroJUlNC2 AKD ~QA'1'J:ClH; paOVJ::cDlG
J'OR !i'1D1AL'1'XSS rOR VJ:OLA.'l':r:oN; PROv.rD:aJG rOR
&BVEIlABXL:t'l"Y 1 l'ROVX:CJ:NG FOR J:NCLtl'S:tON :IN !l.'HE
COI)JI or LAifS AIllD OJUlJ:KAMClOS; paOV%!:l~ FOR
ElFFSC'l'riB :DATE.
~, section 2S3(c) of the Te~ecommunications Ace leaves
to St:,a.te and local goverrunent the a.utho:r:ity to mana'i'8 Public
Right-of-Way and to require fair and reasonable compensat~on from
Telecommunications Providers, on a competitively neutral and
and
nondiscriminato~ basis. for the use of the Public Righe-of-Way;
WVW"D~S, pal.m Beach CQuney dssiZ:lBs to require f.air and
reasonable compensation from TQlecomm~nica~ioos Providers for ~he
uSe of the PuDlic Righe-of-W~y, on a non-discr~>inaeory basis.
WU"'1"~l1111S, in accordance with the Congressional intent of
section 253 of the '1'eJ.eQommunicatior..s Act and. seccion 337.401,
Florida Statutes, Palm Seach County desires co place certain
reasonable rules and regulations en ~he use of che Public
Righ~-of-Way by Telecommunications Providers; ano
WlIlillU!:AS, section 337.401, l"lorida Statutes, provides that
local ~ovBrnmenes
~re auehori~ed to prescribe
ana. Iitnforce
reasonable rules and regulations with reference to the pl~ci~g and
maincaininq of utilit.ies along, across, or on any road at"~d may
grant to a residen~ or corpora cion organized or licensed in ~lorida
the use of the Righe-of-Way in accordance with 5ioSid r\.,;.les and
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regulations; and
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WBKRZAS, Palm aeach Councy is a Charter councy'~nd has a:l
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powers of loca~ se1f-government; and
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WVVDK.S, pursuant to the auchority set forth in sec~ion 253 of
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ehe Telecommunicacions Act and s9ccion 337.40l. Floriaa Statutes.
~he County desires to impose reasonable rules and regulations and
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;/ ~ecover
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COS1:S
for
e.he
use
of
che
Public
Right-of-Way
by
Telecommunic.tions Providers in a non-discrimin~tory manner.
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HOW,
TII'JIREI"ORE,
BB
:I'1'
OR,WU!lBl)
BY
'1'HE
BQlUU)
011'
COUWTY
w
COMMZSS%ORBRS OP ~ALM BBACH COUNTY, I1'LO~.
that:
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Secti.on 1 -
Short ~it:l.e
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This Ordinance ahall be known and cited ~n the fu~ure as the
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Palm Beach County Telecommun1cacions Righe-of-Way Ordinance.
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Sec:e.10D ::z -
Pur'Do..
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Tha purpose ot this Ordinance is:
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(a) ~o e8tabl~sh a competicively neutral po1icy for the use of
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the Public Right-ot-Way for Che provision of local exchanqe
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c.l.communieat~ons services and toll te1ephone ta~Qcommun1caciQ~5
services;
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(b) eo p~o~ect the County's investment in the Public Righc~of-
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Way by providing for che payment of non-discriminatory fees ~or the
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use of the Right-of-Way by Telecommunications Providers and ma~age
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and receive reasonab~e compensation for access ~o and use of ~u~lic
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Right-of-way by Tele~ow~unications Providers to ensure and protect
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Che public healch, sa~ety ~nd welfare;
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(el to regulate the placement of struce.ures and fac11i"ies ir:
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che Public Riqht-of-Way pu~su~nc Co secC10n 125.01,
Florida
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seaeut.e.s;
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(d} Co prescribe r~asonable rules for such uses pursuant to
sections 337.401 and 364.03.61,. Florida Statuces, so as to minimizE<
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disruption of services in the Pub1~e RighC-o:-WaYI r~9u~~te the use
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of t.be public Right.-of-Way by Telecomwun:i.eat.ions p~ovi.ders, and
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regulate the conscruction,
installation, mainten~ea,
repa.ir,
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remova1 and replacement of faci1ities in the PUQlic Right-af-way.
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SGC~~OD 3 - Definitions
~
Ca)
~County. shall mean Palm Beach Coun~y, Florida.
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(b)
.FCC~ Sh4~l mean the Fede~al commun1c~t.ions Commi~5ion.
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.OrQinan~ed sha1~ mean this Ordinance.
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(d)
'"person-
includes
indivic1.1als,
children,
fi.rms.
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assoC iat:.i.ons,
joint ventures.
parenersh.1ps.
estates,
erus cs ,
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I busine5s
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trusts.
syndicates,
fiduciaries.
corporal:.1ons,
and all
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other groups or combinations.
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(e)
.~ublic Right-of-Way' shall mean a public ri~ht-of-way.
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public utility
easement.
highway.
scree~
or
alley owned by PalC7l
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aeach County or for which the Councy ho1ds A property ince~e5~ and
ex.rcises
rig-hI;",
of
ma..nagliiUl\ent
or
control..
and
i!'lcludes
t.he
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surface. toha ai.r space over the surface a:ld the a.rea below che
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surface
of
all
pub1ic
roads,
streets.
bighways.
al~eys.
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boulevard"" bridges, I;u.lmels. public utility easements, and al:
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public grounds.
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( f)
"Regi:;.cra:a.t" shall mean a Telecornmuni.cations Compa:lY c.hat.
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I has ~eg15te~ea with cne Coun~y in accordance with the prOVisions of
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~hi.Sl Ord1.nance.
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(g)
"Registration'" and "Register'" shall meAn che process
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described in Section 4 whereby a Telscomm~nicat~on. p~ovidQr
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prov~des certain informAt~on co the County.
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(hl
"TelecommunicatlonsH shall me.n the tr~nsmission between
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or Among points specified by ehe user of in~Qrmat~Qn of the user's
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choosing, wit.houl: ehanQ"e in chs fo'rtl". or conten1:- of t.he ir.for:nac.:.o:r.
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as sene and received.
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(i)
"Te~ecorrununications Facilit.y", or '"Facility" shall. mea:'l
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t:hl:i: plant. equipment. and pro~erty.,. i.nelud..i:"l.g but ::'lot; lirr,it.ed t.o
I cables. wires, conduits, duct., fiber opt~cs. an~ennaa ~~d ocher
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equipment;. Qr pathway used to transmit, rece.iv8, diseribuee. prov.i::le
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or offer Tal$commun1cations Services.
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(j)
"Teiecommunications Prov1deru or "ProviderM shall me.~
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S
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any Person or entity that provides
local telephoce service
lhereinafcer referred'to &s a MLocal Service Provider") as defined
in seccion 203.012{3l. Flo~ida Scatutes. as may be a~eoded (~Loca:
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SeJ;;"Vice"'). or a.r..y PElr~on or entity that. provides toll te.lephone
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service (here1narcer referred to as a ~Toll Service Provider~l as
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defined in section 203.0~2(7), Florida Statutes. ~5 ~AY b~ arre~ded
("Toll Service.).
(k)
.Telecommunications Services~ shall maan cha o~feri~; of
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Telecommunications for a fee to the public or to such classes of
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users as to be effectively available d1.reccly co the public.
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regard~ess of ~be faci1ities used. Cable services ~na open video
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systems
are
expressly
excluded
from
the
dl'Bfinition
0=
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Tal$communications Services.
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See~~a~ 4 - RAai.tra~~on for Use o~ .idh~-or-Wav
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l.
Each Telecommunic~tions Provider that desires co erect,
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const~ct .
1nsta11.
maintain.
repair,
expand.
or
use
d:;'Y
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Te~ecommunicatLons Facil~ties in. under, ove~ or Across any rublic
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Right-of-Way in the County shall ~irse Regis~er with ch= Co~ncy ~~
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accordance wich ~h. terms of this OrdinAnce.
As ~o Toll Service
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Providers. such Registration sh~l~ be accepted by ~he County as a~
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ordtnane. of the Boara o~ County Comm~s.ion.rB.
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Subject to t:.he term. and. condicions cont.ained in chis
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Ordinance. a Regist..ant. may erect, coost:ruct., install, repair,
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ma1.neain. e.xpiLnd and. use the Telecommunicatior'.s Sy~t.ern in. on.
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over, under, and across the designaced publie Right-of-way.
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3.
Registrants thac are Local Service Providers shall pay ~
. ., ,.
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fee payable annually in an 4rnounc equal to 1% of the gross rece1pcs
on rec~rring local 5e~ice ~evenues p~ovided in che unineorpor~ted
areA of Palm Beach. Count;y as .set forth in Section 11 of t.hi s
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4.
Registrants enat:. a.r-e Toll service ?rovi.ders" shQll pa.y a
fee payab~e annually in an amo~nt aqua~ to $SOO per l~near mile of
any cable. fibar optic, or other pathway that make5 phys~eal use of
the Public Right-of~Way as see forch in Section l~ of chis
Ordi.nanc..
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SGGe~on 5 - N&~Ure of Rea~Rtration
A ~eg1stration sha~~ not convey t1tle. equitable or legal.
the Public Right-of-Way.
Regis"rants may only occupy Public
Rights-of-Way for Telecommunications Facilities. Registration does
not excuse a Telecommunication" Provider from obtai""ing appropria"e
access or pole attachment agr88meneS before locaeing its facilieies
.! on anothlitr Person' S
,
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Reqist~ation aoes
facilities.
not excuse a
w1th
all
.pp~icable
Palm
BeAoh Councy
Provic1eJ;
complying
from
ordinances,
including this Ordinance.
SectioB . - aeaiatrationr Effectiveness o~ Re~~.trat~on
1.
Raai!!l~:ra.tian.
Any Telecommunications Provider deasiring to uSE! the Public
Rignt-of-Way shall fi~e a Registration with "he County which shall
inc~ude the fo~owing information:
(al identity of the app~ican" and name. address and telephone
n\.Ut\ber of app1icant..' s primary contac t. person 1:') connecC;l.on wi th cae
Regist:.rationi
(b) general description of the services to be prov~ded (ie
o.;her words, if appli.car"..t is or expact:s to be a Local Service
~rovid8r and/or a Toll Serv~ce Provider);
(e) evidence of the insurance coverage required under this
O~dinance ~~d agreement: co indemnify the Councy as required under
chis: Ordina.nce.
(d) a copy of ~ede~a~ and~or.se4te cereif~caeio~ autho~izing
the applicant to provide Telecommunications. Services.
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2 Rea~stration Aonlicat~on Fees.
Each applicant ~or a Regiacration or renewal
thereof
sha~~
i
'I
I submi t
,I
'f
'i
with
the
appLica~ ion;
dpplieat.ion
non-refu.ndab~e
!:e..
a
credited
due
under
a.ga.i.nst
fees
fa..
may
be
the
provided
that
as-cab~ished
by
below.
sha.ll
be
F....
Section
J.l(J.)
amounts
Resolution of the Board of County Commissioners but in no eve~t
"hall
exceed ehe County's costs
incurred in reviewir.g
the
app~:LC'.tj,on.
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Review bv Countv.
The Cou.nt.y wi.l~ review the informacion submitted by the
appl.icant.
Such review will be by che County Engineer or his ~r
her designee. If the app11eant submits information in accordance
with Section 6(ll above. the Registration shall be effeccive a~d
the
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"haJ.J.
not5.fy
",.
"-he
app' ~ r.Ant':
nf
th@
liiIfflOle'!".ivp."'A~,!:;
County
wrieing.
in
Regi.stration
determines
chat.
l'f
the
County
t.:J.e
informacion ~s ~ot been Bubmitted in accordance wi~h Section 6(~)
above t
the
shall
notify
Count:.y
the
applicanc
of
the
non-
effectiveness
of
Regist:.raticn.
for
the
and
reasons
:1,0:1-
effectiveness,
in writing.
The Count.y shall so reJ:Jly Co a...
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i applicant withi,n thirty
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,
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f
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(30)
days after receiPt of
regisc.raticn
informati.on
from
applicanc.
the
Registrant
ca.."1cel
A
may
"
Rec;Ji 5 t:.:rati.on
wr:i"eten
to
noe1ce.
th~ CQunty no~i.cLng thac
i,,-
u.pcn
will
longer
provide
Local
Service
Toll
Service
in
no
or
unincorporaeed areas of the County and will no longer need to pu:l
permits to perform work in Public Right-o~-Way.
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l'Jonexclusive
R~.\s~r8.tion.
Registration
with
the
County
shall
be
nonexclusive.
Registracion does noe es~ablish any pr~oriey for the use of tr.e
Pub1ic Right-of-W4Y by a Regi$trant or any other Registrants.
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R@n~wAl of Re~is~rAein9'
ReQ'.istriUlcS
"hall renew
chair ~eQ",is"t:.ra1::i~,n with the County
;1 every
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,
llO)
ten
years i.n
accord.~e wi~h
t:he
Regiet;..acior.
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requirements 1.n Ch.i.:a: OX'oinan.ce.
R~qis~rations are expreBsly
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subject to any future amendment to or replacement of ehiG Ordinance
and furthe~ subject to any additiona~ County Ordinances; as well as
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any state or federal laws that may be enacted Quring the term of
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the Registration.
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6.
p@Ymit:s.
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In accordance with appliCAble County :odes and regulations.
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perJnits sbal~ be requi.red of any 'I"elecommunications :e>rovider. that
desires to place, extend or locate its Facilities in any Public
g
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Right-of-Wa.y.
For Teleeommunication~ providers, an effective
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Reg~strat~on shall De a condition of obtaining a permit.
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SBe~1Oft 7 - ~ansfer of Reaistration
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14
IS
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If the Regi~tran~ tranafers or assigns its aegistration
~ncidenc co a sale or othe~ transfer of che Registrant's assecs,
~he cransferee or assignee shall be obligated to comp~y with ~he
terms of ch~s Ordinance.
Writcen notice of any such prospective
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cransfer or assignment shall De provided to the County at le~~t
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twenty (20) dey~ in advance of ~he date of such transfer.
In order
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for the transfer of Registrat:ion to be effective, such w~itt:.e!1
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notice must inc~ude the idencity of the proapective ~~ansferee or
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assignee.
evidence of insurance coverage and inde~~ific~~ion
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agreement as ~e~i~ed in Section 6 of this 04oinance.
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S_Ce~~D 8 - __~.ti~ T_1_cammu~iaat~n~R ..d~1L~~_a ~n Riah~-
o:f_Wav
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Lines or caD~es of Telecommunications Facilities which have
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been constructed o~ placed 1n the Public Right-of-Way prior to ~he
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Effective Date of this Ordinance may remain in ~he Right-of-Way
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providQd
the
Telecommunications
Provider
compli.es
with
che
Z9
Regis~raeion provisio~s of chis ordinance. Prov1ders wich ex~sti=g
lines and c4b~es have nine~y (90} day~ from ehe Effactiv€ Date of
this Ordin~nce co comp~y with the te~s of' this 'Ordinance, O~ be ~n
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II
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vio~~~1on cnQreof.
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section 9 - Su8Den.~oD of pe:mLea
Subject to section 10 balow, ehe Co~nty ~y suspend a permit
I for
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in
Publ.ic
for one or mO:!:"6 of
the
work
the
Ri'ilhts-of-W...y
fo~lowing reasons~
including cond~tions
set
I...J
viola~ion of pe~it condicionsi
forth .in this Ordina.nce o. other apJi)licM~e Count:y code:;;. or
regulacions governing use of Public R~ght-of-Way;
(b) m~sr.prasantation or fraud by Registrant in a Regiscrati~n
or permi~ applicacion to the County;
(c) viola.tion of provisions in this Ordinance requiring
payment of fees to the County;
(d)
fai~ure to relocate or ramove Facilities as may be
l.awful.ly required by the County; or
Section 10 _ 1~~e~s
Fina~4 writcen aecisions of Che County Engineer suspending a
perrni~. denying an application for a Reqistrat~on or denying an
applica~ion for renewal of a Registration are sUbjecc to appea~.
An a.ppeal muSt be filed with the County Engineer within thirty (30)
day~ of the date of the ,final, writeen decision ~o be appealed.
Any appeal not...timely fi1.ad as set: forth above shall. be waivitd.
The ~oard of CounCy Commissioners shall appo~nt a Hearing Officer
to consider the appeal as set fo~Ch in Pa~m Beach County Unified
Land Development Code, section 4.15.
S.ct:i.cn 11 - Cam'Dsnsa'tian '1:.01 eount:.v
1,
Annual Fee - Lo~al Service Provider.
In connection with a Local Service Provider's oecupancy a~d
use of certa.l.n Publ.ic Right-of-Way, the Local Service I'rovider
~~rees to pay l~ of tbe gro~a ~eceipts on recurring local service
revenues for services provided within the unincorporated ar~a of
Palm Beach County.
,Included ",itl:1in th~s It fee are all. "'axes,
l~censesi fees. in-kind eon~ributions ~ccepted pursuane to S8ction
337 _ 40~ (5) i Florida Statut:es. and oeher impo~itions excepl; ad
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valorem taxes and amount~ for assessments for $pec~al benefits such
as sidewa~k~f scraet pavings and other sim1lar LmprcveIDen~s, anc
occupationa~ ~icensa taxes levied or imposed oy the County upon ehe
2
4
Te~ecommunicat~on$ Provider,
5
6
2. Annual Faa - Toll Service Providers.
~n conneccion with a Toll Servic~ provider's occupancy and use
7
of eertain Pub~1c Right-af-Way, a To11 Service Provider agrees to
8
9
pay $500 per linear mile of any cable. filler optic. or ocher
pathwa.y thdt makes physical use of the Public Right-of-Way pursuant
10
II
to section 337.401(4). Florida Statute!>. as it Illay be amended.
This fee shall no~ apply in any manne~ co Local Se~ee Providers,
12
3 .
PaYment: .
13
The pi!Lymene to County of the a.nnua.1 fee for use of t:he
14
Right-of-Way shal~ be paid quarterly in single payments made not
15
laeer than farcy-five (45) calendar days aft'=lr the end of eo.ch
16
ealenc;lar
quarter.
The
first
quar~erly pa~ent
due
aft.tiL:;-
17
~egistration shall be prorated based upon the actual number of days
18
loc~l exchange service is prov1ded or Facili~ies are placed in the
'I Rj,ghe-of-Way by Toll Service Providers as appropriate,
4 Re~i.t~n~'9 Records.
19
lO
!I
upon request by che County or its auditors, Reqiecrant shall
!2
provide access to all of iea reco~d8 and data reason4bly necessary
!3
7
to verify the accuracy of ~he ree.
I
[
I
I
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Upon thirty (30) calendar days
'4
written nOCice,
the Registrant shall provid~ the County access to
5
6
all books and record. relaeed co the construction,
operat.ion.
or
repair of the Telecommunic~tions Facility so that the County may
.in.$pect. t.hese books and records '.
Any and all Don-pro~rie~ary or
8
"'
non-conridenti&~ books and records may be eopied by the County
These records sha.ll l:;,)e kept confidencial to the :na~imlJ.rn extent
)
allowed by Chapter 119. Floricia. Statutes.
The Registrant is
responsible ~or obeaining or main~&in~~g th~ necessary possess~on
or control Qf 411 boo~& and records relaeed to the construceion,
9
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that it \
To the
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13
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operation, O~ .ep&ir of the TeLecommunications Facility so
can proauce the dOC1.IlIIent5 upon request by the county.
extent poss~b1e, such records sha11 be made ava~lab18 to County a~
.! a location within Palm Beach County. o;t:" a.t:. local or regional
,
;j
of~~ces of the Registrant in Flocida.
Seat~o~ 12 _ COD.truct~~ ~n the R~ttht-o~-Wav
1 Permir.s to Construct.
The RegiBtrant may construct the Telecommunications System in
the Public Right-of-Way specifically identified in permits obtained
in accordance w~th app~icab1e provi~ion$ of this Ordinance or oth~r
app1icab~e County cocies and regu~ations. The permission, to use a.nd
construct in the Publi.e Right.-of-way is only for those areas
specifica11y iden~ified in the permit.
2 Comc1ianc@ With Countv codes and Rsaula~~on&.
Regi5trant agrees to comply with ~~l ~pplicable CQ~~ty codes
and regulations in cons eructing the Telecommunicaeions System in
th..
Public
Right-of-Way.
including,
limiced
to.
but
not
engineer~ng regulat~ons. permit requirements. contractor licensing
requi.~ments~ fire codas and zoning cedes.
3 RAaiA~~ant Muse Obtain Aoolicahle Permits.
Exc;:ept in the case of a.n emergency. Registrant shall not
commenc;:e any construction in the PlJ.blic Right-af-Way unt:.il all
Appl.icable permits have been issued by the County or ocher
appropriate authoriey.
The te=m emergency shall mean an out-of-
service condition or other condition thae may affecc che publ~c's
h&a~th. safety ana we~f~~e.
Registrant shall provide reasonable
advance nocice to che County of i~s intent to commence cons~~uc~ion
in the Right-of-Way 1n ehe event of an emergency.
Registrant.
acknowledges t:ha.e as a condition of granting such permits, t.he
count.y may impose conditions on the ,perm1t:.s as necessary and
reasona.ble for the c:onst.ruct.ion i,n t.he,Public Right.-of-Way.
10
bent by: GREENBERG TRAURIG
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FEB-14-2B~ 10:13
/~\...ITY ~DMINISTAATION
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4 Construction ~~Rnrl~rd~
2
Regis~raDt shall const~uct. rna1ncain~ install~ remove and/or
3
~epAi~ the TeIecommun~cationB system in the Public Righe-of-~ay in
4
I c:omp~iance
with
all
appl.icao:e
cons1:.ruction
6tandards
as
5
established oy a~~ ~ocal. state or federa~ law and in conformance
6
with ~he County COQes ~nd regu~ations.
Registrant shall use ano
7
exercise due caut~on~ care, sk~~~ and expertLse in performing wo~k
8
in the Public Righe-of-Way ana shall eake all reasonable sceps cO
9
safeguard work ~ite areas.
10
s.
"l'n!lll't.~1.1;:lt:~nn and Conat,uction Schedule. !ns-oectiol"'.s.
11
In che inceresC of Cne public's healch. safety ana welfare.
12
Registrant shal~ cooperate wi t.h County and County ~ s managem.ent:
13
actions in coordina.cing use of t.he Public; Right-of-Way.
upon
14
reQVe$~ of the coun~y. a Regi&t.ant GhG~l coordina~8 work under a
15
permit with any other construction, inscallaCion or repairs thac
16
17
may be occurring or scheduled to occur in the subjece Public
:Right-of-way and alter its construction sche'aul.e as necessary $0 as
L8
Co minimize disruptions and diseurbance in the O'ublic Right-ot-Way.
19
6
Ma.intenan~'Il!l:.
20
A Registr~ne shall maintain ies Facilities in the >'ubllc
21
Right-of-Way in a safe condition.
22
7
RS!3t:.nrat:.ion.
23
24
:1
:1 .subsc4.nt;ia~~y
,
original
condition after the complecion
of
any
A
Registrant
..hall
re3tore t.he !?u.blj,c Right-of-Way
to
it.s
25
construction, installation, repair or maintenanee in t.he Public
26
Righe-of-W...y_
27
8.
NO~1e~ to County.
Prior co any excavation in the Public
28
Right-of-Wa.y for constructi.on, inseaJ.lation. repair or ma1.ntenA.nce,
29
the Regiscrant muse eall prior to conscruction 4c~ivity to locate
30
any under9round e~ipment in accoroance with Chapter 556. F~orida
11
Statutes,
as ic may oe amended.
A Regist>;ant mllsc be a member of
l2
.1 Sunshine St:a,t:e One Call of Florida.
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,!
I
Inc.
(1-600-43~-4770)
, . '
or any
~~
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successor a~ert and wa..rn.i.ng system to protect and ~ocat.e its
2
und.erground equipmenC.
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9
Remnva1 of Recris~r~n~#s CAb~p.s/Lines in Riaht-of-wav.
4
To the extent:. a.uthorized by section 337.403. Florida Seat.uees.
5
6
County may require Reg~strant to remove O~ re~ocate, and Reg~strant
sh411. aC Councy's di~ection. remove or re1ocat& any cable, 1ine.
7
or ~nsta~~atian in the Public Right-of-Way when the County Engineer
8
determ1nes that such removal or ra~ocation is necessary to protect
9
or preserve the pub1ic health, safety and welfare, or co protec=
to
the proper operation of County's traffic signals or craffic contra:
11
devices or other County fac~lities.
County shall provide ninety
12
(90) days written noCice Co Registrane betore the 1ines must be
13
relocated or removed. If Regist.rant fail.s Co commence and complete
14
this remova.1 work by t:ha dates requested by the CO'l,J,nty :in it:s
15
written notice, or within thirty (30) days following Che expiration
16
or terminaeion of chis Registracion, then County shall have ~he
17
right ~o perrorm Chis removal work and charge Regiscrant ~or the
18
costs incurred by County in performing this work. Upon payment by
19
20
Registrant of the costs to County, CounCy shall promptly retur~ to
Registranc equ~ment removed by County pursuant to this p~ovision.
21
:to.
Restoration of Riaht-of-Wav.
22
Upon the completion at each inscallation.
conscruct;ion,
23
repa1r, ma1neenance. or removal in the Right-of-way# a Regiscranc
24
!
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i
,
sha11 restore che ~blic Right-ot-Way to a safe condition and to
25
the
County's
standard
spec::irj,cat:i.ons
for
Rigl:tt-of-way,
at
26
Registrant's expense. Registrant shall. at its own expense, repair
27
28
or rep1ace any ocher property d~sturbed O~ damaged on accounc of
29
"
~ca activit~es in the Pub~ic R~gh~-of-WAY.
11. Interference with Other us~s in Public Riaht-of-Wav.
A Registr~nc sh~ll use reasonable effcres not to distu~b or
otherwise disrupt tbe operation or ma~ntenance of any other
uc.ilities or uses in the Publ.ic RJ..ght-of-Wa~, inc~\.1ding', but not:
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~imited eo, sewers. storm drai.ns, gas or wa.ter mains, or other
2
~naerground q.D~es or eonduiCs.
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12. No W~rra~eie9 or Renresentations bv County.
4
,I
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County makes no warranties or raprassntations ragardi~g che
5
6
ficness or suieabiJ.1.t.y of COl.:.ne.y" s property for the 1nsta:t~ation of
7
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Regiatrant's cables or condui.l:.s an(j .sny performance of work or
costs incurred by Registrant or prOVision of services shall be at
Registrant's sole risk.
13.
MA:Os.
12
13
Within thirt.y (30) days of a request: by the County, the
Registrant shall provide the County with copies of maps on disk, in
a format specitied by the County Engineer. provided such format ~3
10
11
maintained g,y t.he RegJ.:st:-ant. Any such maint.ained gElographi.c data,
14
rnsdia and 1nformation will be provided at no cost to County. Ir. no
17
event shall any proprietary confidentiaJ.. information be required to
be disclosed pursuant to this section, except that the loc~tion of
Te~eQommunicat1ons Facilities previous~y ~14ced in che publie
1:1
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18
R.ight-of-way
..h&~J.
not
be
deemed
proprietary
confident.ial
19
inforrnation~
20
l4
RP-'o~~~ion of Facilities and ResQrvatian oE Cauncv Riahc.
21
(a)
The County reserves the right co lay, and permit to be
22
laid,
sewer,
gaS',
water,
e~ect.ric;:.,
storm
drainage.
23
~elecommunicae1ons, and other pipe~inee or cabl.. or eonduie. and
24
to do ana to permit. to be done any underground and overhead
25
installation or improvement that may be deemed necessary or proper I
26
by the county in.
across.
a.~ong~
over or under any Public
27
Right-of-Way occupied by the Reqistrant, and to change any curb or
28
sidewaLk ~r ehe ~rade of any streec.
The County, its contrac~ors
29
And subcontraccors shal~ be reQ~i~ed to cal~ S~nshine S~a~e One
Ca~l of Florida.. I:nc~ (1-800-432-4770). or successor a,1ert and
30
31
warning syst:.em. prior co e.x:c::.avatiOrl, in accordance with Chapter
556. F~orida Sta~utes. as ic may be amanded, in order to avo~d
32
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damages to ~eg~~~r~t's Faci~~t~e8.
2
(0) The Counr.y expressly reserves the right to change. 0..
ca.use
to
be
changed
through eXofilrcisa
of
its
police powers.
the
3
4
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I
i
.Ii gra.ding,
'I
installacion, relocaeion, or width of the County streets~
5
s idew-.J.ks ,
bi.1<::eways ~
alleys.
b)ul;.l~i.c
t:.horough.fares.
hi.ghwdYS
and
6
pub1~c W4YS ana p~ac.s w~ehin the present limLts of the Coun~y and
7
within ~aid limits as sama may from time to time be altered. and
8
the Registrant shall relocate, at Lt3 own expense where a110wed by
9
Section 337.403. Flo..ida Statutes. as it may be amended, its poles
10
wires~ cab1as, anchcrs, ~~oles. conduita, ~nd other Facilities
11
ana appurtenances in oraer to accommodate the installation,
12
relocat.i.on, w:idEllni.ng or C:hanginq of the grade of any public
13
streets,
.si.dew&~k.St
bikewa.ys,
alleys,
public
thorou.ghfares.
14
highways a.nd public ways and places,
incl~aing if ne~essary
15
relocating such poles, wires.
cables.
anchors. manho~es.
conduit.s
18
I
I
I
I
,
~
II machine:ry
I
the
edge
of
the pavement
co permit
a
reasonable work area
for
16
or othQr Faci~~t~es or appur~enance5 to A suff~ciene d1$tance from
17
and
indiviauals
engageQ
in
installinq,
re1.ocat:':1g.
19
widening,
or changing the grade of any such streQts.
sidewalks.
20
bikeways"
a.~1ay;s.
pub~ic thorouah~aras,
highways and public ways
21
~n~ places~ Upon notice ~n writing Erom Che Covnty that chAnges in
the Public Right-of~Way are reQUired pursuant to t.he County' S
22
23
police power in such a m~er as will necessitate ~he reloc&tion o~
24
2S
its E'aciliti.s i" the Public Righr.-of-Way, the Registrant shall
relocate the same ae no expense to the Ccuney. where ~11owed by
26
Section 337.403. F10riQa S~a~ute5, as i~ may be ~ended, so as to
27
per~i~ che conscruction of such improvements when ordered.
Snol..:.1.d
28
the Regist.ant fail to comply with such nocice. the Facilities may
be reloca~ed by the County and the cost thereof recoveree from Lhe
29
30
Regiscrant. where allowed by Section 337.403. Florida Statutes. as
31
it may be ame~dea~
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~TY ADMINISTRATION
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Se~~~OD 13 - rnsuranae and znd--~i~~aatian
2
1.
In.demrt1fica!:ion~
3
Re~iGtra.nt
shal.J.
a.gree
t.o
protect.
defend..
re~m.burse .
4
indemnify and hold countoy,
its: agents I
eznployees and elected
S
6
officers and each of chern ~ree and harm~QsS at all t~mes f~om and
against any and all suits.
act.ions,
lega~ or adm1nistracive
7
proceec.i.:ngs.
claim$. demands,
damages.
liabi1itias,
interest.,
8
attorneyfs fees, costs and expenses or whatsoever kind or nature
9
whether arising in any manner directly or indirecc.ly causeC..
10
II
occasioned or contribueed to in whole or in part. by reason of any
a.ct,
omissiop or fault. of -anyone acting under RegistranL's
12
direct:.ion or control, or on Regisl:.rant's behalf in any matcer I
13
re~4ted to Regiscrantls use of ehe Righ~-of-Way or any propercy
14
Reqist<rant is entitled or authorized too use as a result of ~he
15
Registration or other authorization.
Registranc's aforesaid
16
indemnity
and
ho~d
harmleGs
obligilltions,
or
portions
or
17
app1icaeions thereof. shall apply ~o ~he fullesc exten~ permitted
18
by law but in no event shall t<hey apply to liabilitoy caused by the
I!I
neqligence or willful misconduct of the Count:.y, i.ta respective
20
agents. servan~s. employees or officers, nor shall the liability
21
~imit5 set forth ~ section 768.28, ~lorida Stacutes. be waived.
22
23
2
!:nsu ran~e.
24
"
I
I
A Registrant shall main~ain in full fo~ce and affect general
liability
insurance
acceptable
to
tohe
County
Risk
Management
25
26
Department., which IiSpeci.ficalJ.y covers all exposures incident 1:.0 the
intent and responsibilieies under this Ordinance.
The Registrant.
27
shall add. and ma.intain County a.s an additional insured on ics
28
'I genera~ liabil.itoy insurance.
I
I
The aocumencation shall indicate ehat
29
Pa~m Beach County. a po1itical subdivision of the State of Florida,
30
is
an ddditional insurect as
its
inCerests may appear;
and s)-.al1
31
al50 providQ that insurance shall not: be canceled. limited or
32
non-renewed.unt11 after chircy (30) dpY~' writcen notice has oe.n
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given eo the County~
RegLstrant ID.Y a.t~sfy tbe insurance
2
reQUiremen~s and cond~tions of this Artic~e under a self-insurance
3
p~an.Reg~scr~nt shall agree to noti~y COUNTY; or indicate on che
4
5
Certificate of Insurance.
when self-insu~ance is relied upon or
when a ~e2f-insured retention or aeductib1e exceeds $100.000. The
6
COUNTY reserves the right, but not the obligation,
t.o req1..\e$t. and
7
review
a copy of Re9'~S tranC I s
mO.e.t recent annua.~ report or
8
audited financial ~tatements.
9
S.c~ion 14 - P8aa1tiAB for V~o1at~o~
10
Any violae~on of any of the provisions of this Ordinance may
II
be enforced as provided for in section 125.69, Florida Stat~tes.
12
Each day or fraction thereof the violat.ion continues shall be
13
cQDaidered as a separa~e offense.
14
In add1eion. the County can pursue a~~ other 1awful action.
l5
inc~~ding filing a compla1nt wi~h F~orida Public Service Commission
16
advisin~ of violaeion of County Ordinance. filing an injunction in
17
Circuit cou~e co enforce the terms of che Ordinance or Regi5tration
18
or to enjoin the use of the Public Right-of-Way, filing an action
19
20
in federal court to enforce payment of just compensation pursuant
to the Telecommunica.tion. Act I pursu.ing action before t:.he Code
21
Enforcement Board to impose daily finea, and/or denying permits or
22
23
Qevelopmene orders for other projeccs O~ use of che Right-of-Way by
the Provi.der.
These rsmsdies shall be cumu~ative.
24
Sad~1eD ~~ - Sav_rabi1itv
25
rf any section. paragraph, sentence, c~ause. phrase. or word
26
of this Ordinance is for any reason held by the Court. to be
27
unconseit.ut;ional, 1nope~ae1ve. or void. such holdi.ng shall not:
~8
affecc ehe remainder of ehis Ordin~~ce.
29
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I
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The provisions .of this Ordinance shAll .become ~d QIil ma.de a
Sece~OD16 - ~nc1ua~on ift ~he Code af LaW8 ~~A O~dinanceG
30
31
part of t:.hQ Coda o~ La.ws and Ordinan~es of Palm Seach Cou.ncy.
16
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4
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7
8
9
10
11
12
13
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IS
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19
:0
t'"t:..tJ-14-d\!l~ 1121: 15
1
r~TY ADMINISTRATION
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FJ.oriaa.
The sections of chis Ordina.nce may be renumbered or
relecCe>:ee! co a.ccompliSh Buch, ane! Che wore! .ore!inance" may be
'I
!
change~ to "section., "article-~ or any othe~ appropriate word.
Se~~10n 1? - Ef~_a~~ve nata
The provisions of ehi~ Ordinance shall become Bffec~~ve upo~
receipt by chs S~creearY or State.
AP~aOVXD AND ~PTB~ by the Board of County Commissioners of
?a~m Seach County, on the
,
day of
2000.
PALM BEACH COUNTY, F~ORIDA. BY ITS
BOARD OF COUNTY COHH~SSIONE~S
By:
Cha:l.r
APPROVED AS. TO F
LEGAL .~C~~ Y
~&.a. , .
Assistant County
By,
Aec.orney
E~FECT~VE PATE: Filed with the Department or State on the __
1: day of ,200, at
I -
c....1O' : 1oI'.......T':'Y...wpnl...tA...LANDUalil'L.l'&atCU\~.l:OH'....1..<::_..o"v
I
I
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.m.
17
Sent by: GREENBERG TRAURIG
04/04/00 2:02PM;Jedax
FEE-14-200a. 10' 15 ~y ADMINISTRR'r
., . FLORIDA ....~~1N IT ",,,"""~8"'__ __ ou - ("".4
. . . . . cOORS CODING'par-" ..7
954 765 1477j
#32oiPage 19/19
P.21/21
~
I~_ l"Iorlda'. Depanment ot State, Bur.... of Admlnl5traUv. Cod. h..
d.veloped _ County crdln_..a Data Retrleva' system (CODAS) '0 ....,lIt..t. the
tr.eklng of County ordinances In FIQricUl'. err Countle.. CODAS' d.ta b... I.
composed Qf over 25,000 county ordinance. .nacted alnce 1974.
We requesl your CCJOpar.t1Qn .n complellng thia coding form. It I. to be completed
whene"e, your county ."acts a new ordl".n.... Simply comp'ete this form and
Include.t w.th other pe"lnenl ordinance Info......tlon 'h.t I. aubmltted to Ih. Bure.u
. of Admlnlstratlv. Code.
To cod. mill form proper1y, pl._e refer to Ih. -".y1lelda- d....r1pUon ahaat Ut.1 has
b..n glvan to your County Auorn.y's omc.. .f you do nol have thla .heet pl....
contact me Buraau. W. will be happy to fax one to you for raferan..lng purpo....
Ple__ fill out \hI. form a. complet.'y as Is pO.illble.
Thank yoU for your assistance. Should you ne.d lurther an'atanc. pl..se conte..t
the Sureau of Administrative code, Department 01 State at (904)-48.8427 Dr
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TOTAL P.21
CITY OF AVENTURA
OFFICE OF THE CITY MANAGER
MEMORANDUM
TO: City Commission
FROM:
DATE: March 16,2000
SUBJECT: Right-ot-Way Ordinance
At the last Commission Meeting, at the request of Commissioner Jeff Perlow, the
Commission placed on the Workshop Agenda, the discussion of drafting a proposed
Rights-of-Way Ordinance utilizing portions of the defeated Telecommunications
Franchise Ordinance.
Attached is the defeated Telecommunications Franchise Ordinance.
At a minimum, a Right-of-Way Ordinance should address the following sections:
Section 5
Section 7
Section 8
Section 10
Section 12
Section 13
Section 14
Section 15
Fees
Underground Installation Relocation
Use of Rights-of-Way
Compliance With Other Laws
Insurance; Surety; Indemnifications
Security Fund
Construction Bond
Enforcement Remedies
The City Attorney or our Telecommunications Legal Specialist should be consulted on
the issue whether companies utilizing our rights-of-way should be required to obtain a
Franchise Agreement.
If you have any questions, please feel free to contact me.
EMS/aca
Attachment
CC0853-00
ORDINANCE NO.
AN ORDINANCE OF THE CITY OF AVENTURA, FLORIDA,
PROVIDING THE TERMS AND CONDITIONS FOR THE
ERECTING, CONSTRUCTING, MAINTAINING AND
OPERATING OF A TELECOMMUNICATIONS FACILITY IN,
ON, ACROSS, ABOVE OR IN ANY MANNER WHATSOEVER
USING THE CITY'S PUBLIC RIGHTS OF WAY FOR THE
PROVISION OF TELECOMMUNICATIONS SERVICE;
PROVIDING ASSURANCES THAT THE CITY'S PUBLIC
RIGHTS OF WAY ARE USED IN THE PUBLIC INTEREST;
PROVIDING FOR CONFORMANCE WITH APPLICABLE
LAW; PROVIDING FOR MUNICIPAL OWNERSHIP OF A
TELECOMMUNICATIONS SYSTEM; PROVIDING A
SAVINGS CLAUSE; PROVIDING FOR CODIFICATION;
PROVIDING FOR REPEAL OF ORDINANCES IN CONFLICT;
PROVIDING AN EFFECTIVE DATE.
WHEREAS, the City Commission of the City of Aventura has determined it is in the
public interest of the City to permit the placement of one (1) or more Telecommunications
Systems or Facilities in the Public Rights-Of-Way of the City; and
WHEREAS, it is the intent of the City Commission to encourage competition by
providing access to the Public Rights-Of-Way to the City on a nondiscriminatory basis; and
WHEREAS, Section 364.0361, Florida Statutes, requires that a local government
treat Telecommunications Companies in a nondiscriminatory manner when exercising the
authority to grant franchises to Telecommunications Companies; and
WHEREAS, it is the intention of the City Commission to recognize the interests of
Telecommunications Service Providers to install their facilities in Public Rights-Of-Way as a
means of promoting the use of such technology for the good of the people of the City; and
WHEREAS, it is the intent of the City Commission to exercise the City's authority
over the access of Telecommunications Service Providers and their occupancy of the
Public Rights-Of-Way; and
WHEREAS, these policies are in complete accord with both the letter and the spirit
of the Communications Act of 1934, as amended; and
WHEREAS, the enactment of the Telecommunications Act of 1996, amendments to
applicable statutes of the State of Florida and developments in telecommunications
technology and services have resulted in an increase in the number of persons certified by
the Florida Public Service Commission to provide Telecommunications Services; and
WHEREAS, various Telecommunications Service Providers have requested the right
to occupy the Public Rights-Of-Way of the City for the purpose of installing, maintaining and
operating Telecommunications Systems or Facilities; and
WHEREAS, it is the City's intent to treat each Telecommunications Service Provider
adopt reasonable rules and regulationS to the fullest extent allowed by Federal and State
on a com etitively neutral ana nondlscriminato basis in granting telecommunications
. .~
. I ordinllno@.
uni(ljIICln
f@l@eClmm DofInitlon"
,.ctlon 2.
2
For the purpose of this Ordinance, the following terms, phrases, words and
derivations shall have the meanings given herein. When not inconsistent with the context,
words used in the present tense include the future tense, words in the plural number
include the singular number, and words in the singular number include the plural number.
The words "shall" and "will" are mandatory, and "may" is permissive. Words not otherwise
defined herein or in any franchise agreement that might be granted hereunder shall be
given the meaning set forth in the Communications Act of 1934, 47 U.S.C. a 151 et sea.,
and as that Act may hereinafter be amended (collectively the "Communications Act"), and,
if not defined therein, as defined by Florida Statute; and, if not defined therein, be
construed to mean the common and ordinary meaning.
A. "Affiliate" means any person who directly or indirectly owns or controls any
part of a Franchisee, any person which a Franchisee directly or indirectly, in whole or in
part, owns or controls, or any person under common ownership or control with a
Franchisee.
B. "City" means the City of Aventura, an incorporated municipality of the State
of Florida, in its present form or in any later reorganized, consolidated, or enlarged form.
C. "Franchise" means the permission granted by the City to a Franchisee in a
Franchise Agreement to construct, maintain, operate and use Telecommunications
Facilities in the Public Rights-Of-Way within the Franchise Area. The term does not include
any license or permit that may be required by this Ordinance or other laws, ordinances or
regulations of the City for the privilege of transacting and carrying on a business within the
City or for disturbing or carrying out any work in the Public Rights-Of-Way.
3
D. "Franchise Agreement" means a contract entered into in accordance with
the provisions of this Ordinance between the City and a Franchisee that sets forth the
terms and conditions under which the Franchise will be exercised.
E. "Franchisee" means any person granted a franchise pursuant to this
Ordinance who has entered into a Franchise Agreement with the City.
F. "Grantor" shall mean the City of Aventura.
G. "Gross Receipts" shall mean all cash, credits or property of any kind or
nature without deductions, reported as revenue items to the Franchisee's audited income
statements arising from, or attributable to the sale, lease, rental, barter or exchange of
Telecommunications Service and equipment by Franchisee within the Franchise Area or in
any way derived from the operation of its Telecommunications Facility including, but not
limited to, any interconnection between the Franchisee's System and any system
whatsoever. Unless otherwise expressly prohibited by applicable law, the sum shall be the
minimum basis for computing the gross receipts on Recurring Local Service Revenues
imposed pursuant to any Franchise granted in accordance with this Ordinance and the City
reserves the right to amend the definition contained herein as permitted by applicable law.
H. "Law" means any local, State or Federal legislative, judicial or administrative
order, certificate, decision, statute, constitution, Ordinance, resolution, regulation, rule,
tariff, guideline or other requirements, as amended, now in effect or subsequently enacted
or issued including, but not limited to, the Communications Act of 1934, 47 U. S. C. 8 151 et
seq. as amended by the Telecommunications Act of 1996, Pub L. No. 104-1048 101(a), 110
Stat. 70 codified at 47 U.S.C., and all orders, rules, tariffs, guidelines and regulations
4
issued by the Federal Communications Commission or the governing State authority
pursuant thereto.
I. "Person" means any individual, corporation, partnership, association, joint
venture, organization or legal entity of any kind, and any lawful trustee, successor,
assignee, transferee or personal representative thereof, but shall not mean the City.
J. "PSC" means the Florida Public Service Commission.
K. "Public Rights-Of-Way" means the surface, the airspace above the surface
and the area below the surface of any public street, highway, road, boulevard, concourse,
driveway, freeway, thoroughfare, parkway, sidewalk, bridge, tunnel, park, waterway, dock,
bulkhead, wharf, pier, court, lane, path, alley, way, drive, circle, easement, public place, or
any other property in which the City holds any kind of property interest or over which the
City exercises any type of lawful control. "Public Rights-Of-Way" tshall not include any
real or personal City property except as described above and shall not include City
buildings, fixtures, and other structures or improvements, regardless of whether they are
situated in the Public Rights-Of-Way.
L. "Recurring Local Service Revenues*" means revenues from the monthly
recurring charges for local service, including but not limited to (1) recurring basic area
revenues derived from the provision of flat-rated basic area services; (2) recurring optional
extended area revenues derived from the provision of optional extended area services; (3)
local private line revenues derived from local services which provide communication
between specific locations, either through dedicated circuits, private switching
arrangements, predefined transmission paths, whether virtual or physical, or any other
5
method of providing such services; (4) revenues derived from charges for access to local
exchange facilities, except as provided herein; and (5) other local service revenues from
the provision of secondary features that are integrated with the telecommunications
network, including, without limitation, services such as call forwarding, call waiting, and
touchtone line service. Except as provided herein, revenues from all recurring local
services provided by a Franchisee over a Telecommunications Facility or System in the
Public Rights-of-Way shall constitute recurring local service revenues subject to this
Ordinance. Recurring local service revenues do not include revenues from (1) toll charges
for the transmission of voice, data, video, or other information; (2) access charges paid by
carriers for origination and/or termination of toll telephone service as defined in Section
203.012(7), Florida Statutes, or other charges required by the Federal Communications
Commission which are directly passed through to end users; (3) interstate service; (4)
ancillary services such as directory advertising, directory assistance, detailed billing
services, inside wire maintenance plans, bad check charges, and non-recurring charges
for installation, move, changes or termination services; (5) cellular mobile telephone or
telecommunications services; or specialized mobile telephone or telecommunications
service; or specialized mobile telephone or telecommunications services; or specialized
mobile radio, or pagers or paging service, or related ancillary services; (6) public telephone
charges collected on site; (7) teletypewriter or computer exchange services as defined in
Section 203.012(6), Florida Statutes; or (8) local message rated (message, unit or time
basis) and minutes of use charges in excess of the minimum flat-rated charges for similar
services.
6
M. "Telecommunications Company" has the meaning set forth in Section
364.02(12), Florida Statutes, as amended. The term "Telecommunications Company"
does not include an open video system.
N. "Telecommunications Service" shall include, without limitation, local
service, toll service as defined in Section 203.012(7) Florida Statutes, telegram or telegraph
service, teletypewriter service, private communication service as defined in Section
203.012(4) Florida Statutes, or any other provision of two-way communications services to
the public for hire. "Telecommunications Service", as contemplated herein, does not
include the provision of service via an open video system, which shall require separate
authorizations from the City.
O. "Telecommunications Service Provider" shall refer to any person providing
Telecommunications Services, as defined herein, through the use of a Telecommunications
Facility.
P.
"Telecommunications Facilities" "Facilities~" or "Systems" means cables,
conduits, converters, splice boxes, cabinets, handholds, manholes, vaults, equipment,
drains, surface location markers, appurtenances, and related facilities located, to be
located, used, or to be used, by the telecommunications provider in the Public Rights-Of-
Way of the City and used or useful for the transmission of Telecommunications Services.
Section 3. Grant of Franchise.
A. Unless otherwise authorized by applicable law, it shall be unlawful for any
person to construct, maintain or operate a Telecommunications System or Facility upon,
along, under and over the Public Rights-Of-Way without having obtained permission in the
7
form of a Franchise from the City Commission pursuant to this Ordinance or other such
Ordinance of the City as may be applicable.
B. Application for a Franchise. In order to obtain an initial or renewal franchise,
a Telecommunications Service Provider must apply for a franchise. The application must
contain the following information, and such information as the City may from time to time
require.
(1) Identity of the applicant; the names of the person or persons
authorized to act on behalf of the applicant with respect to the application, and the
Franchise when granted; the persons who exercise working control over the applicant;
(2) A proposal for construction of a telecommunications facility if
any, that sets forth at least the following:
(a) For purposes of determining the fee structure applicable
to the Applicant under Section 337.401, Florida Statutes, and this ordinance a description
of the services that are to be provided over the Facility.
(b) The location of proposed Facility and facility design,
including a description of the miles of plant to be installed, where it is to be located, and the
size of Facilities and equipment that will be located in, on, over, or above the Rights-Of-
Way.
(c) A description of the manner in which the System will be
installed, the time required to construct the System, and the expected effect on Rights-Of-
Way usage, including information on the ability of the Rights-Of-Way to accommodate the
proposed Systems, if available. Also, if appropriate given the System proposed, an,8
estimate of the availability of space in existing conduits and an estimate of the cost of any
necessary rearrangement of existing Facilities shall be included. Such plan shall include
the timetable for construction for each phase of the project, and the areas of the City W'hich
will be affected.
(d) In the case of a Telecommunications Service Provider
converting its facilities and seeking a new franchise to offer other services, a description,
W'here appropriate, of how services will be converted from existing Facilities to new
Facilities, and W'hat will be done with existing Facilities.
C. The City may request such additional information as it finds reasonably
necessary to review an application, and require such modifications to the system proposed
as may be necessary in the exercise of the City's authority to manage its Rights-of-way.
This section does not authorize the City to exercise authority it does not otherwise have
under applicable law. Once the information required by the City has been provided, the
application shall be promptly reviewed, and shall be granted if the City finds that
(1) The applicant accepts the modifications required by the City to its
proposed system or facility, if any.
(2) The applicant enters into a franchise agreement with the City, under
W'hich applicant shall agree to comply with the City's reasonable regulations of its Rights-of-
Way, including but not limited to the fees for use of those Rights-of-Way.
(3) The Applicant shall comply with any conditions precedent to the
effectiveness of the Franchise Agreement.
D. Upon execution and City adoption of a Franchise Agreement, a
9
Telecommunications Service Provider is granted a non-exclusive Franchise solely to
construct, maintain, and operate Telecommunications Facilities necessary for the provision
of Telecommunications Service upon, along, under, and over the Public Rights-Of-Way of
the City. For any other use of the Telecommunications Facility, a Telecommunications
Service Provider must obtain authorization from the City, unless the City is expressly
prohibited by applicable law from requiring such authorization.
E. Any Franchise Agreement executed pursuant to this Ordinance will
incorporate by reference all the terms and conditions of this Ordinance. A Franchise
granted hereunder shall not be construed to convey title, equitable or legal, in the Rights-
Of-Way of the City. The grant of rights under a franchise is only the personal right to
occupy the Public Rights-Of-Way for the purposes and for the period stated therein.
F. Failure to comply with this Section shall constitute a material violation of the
Ordinance and shall subject the Franchisee to the appropriate Enforcement Remedies
including revocation of the Franchise.
Section 4. Terms and Limits of Franchise.
The Grantor may grant a non-exclusive Franchise for a period not to exceed ten (10)
years. For purposes of this Ordinance, the Franchise Area shall constitute the entire area
within the legal boundaries of the City and such other areas as may hereinafter be annexed
or incorporated by the City during the term of the Franchise.
~ction 5. Franchise Fee Payments.
A. In consideration for the rights, privileges and permission granted herein, a
Telecommunications Company subject to a franchise granted hereunder shall pay to the
10
City annually a sum equal to one percent (1%) of Gross Receipts of the Franchisee on
Recurring Local Service Revenues for services provided within the corporate limits of the
City. Included within such one percent (1 %) maximum fee or consideration are all taxes,
licenses, fees, in-kind contributions accepted pursuant to Florida Statute 337.401 (5), and
other impositions except ad valorem taxes and amounts for assessments for special
benefits, such as sidewalks, street pavings, and similar improvements, and occupational
license taxes levied or imposed by the City upon a Franchisee. In the event that applicable
law currently permits or is amended to permit the City to collect a Franchise fee higher than
1 %, or permits the City to calculate the Franchise fee on revenues not specified herein, the
Franchisee agrees to automatically increase its Franchise fee payments to the City to that
higher amount on the effective date of such law. In the event applicable law is amended to
require the City to collect a Franchise fee lower than the current statutory limit, the City
shall take all necessary steps to conform the requirements hereof to applicable law. All of
the aforestated payments shall be made to the City quarterly or as may otherwise be set
forth in a Franchise Agreement, with such payments made within thirty (30) days following
the end of each calendar quarter. Payments received after the 31st day shall be subject to
interest and late charges of 1 0% per month.
B. In the event a Telecommunications Company provides Telecommunications
Services defined as toll services in Section 203.012 (7), Florida Statutes, as a condition for
granting permission to occupy or use the Public Rights-Of-Way of the City, the Franchisee
shall pay to the City annually no less than five hundred dollars ($500) per linear mile of any
cable, fiber optic, or other pathway that makes physical use of the municipal Rights-Of-
11
Way. Any fee or other consideration imposed by this subsection in excess of Five Hundred
Dollars ($500) per linear mile shall be applied in a nondiscriminatory manner and shall not
exceed the sum of:
(1) Costs directly related to the inconvenience or impairment solely caused
by the disturbance of the municipal Rights-Of-Way;
(2) The reasonable cost of the regulatory activity of the municipality; and
(3) The proportionate share of cost of land for such street, alley or other
public way attributable to utilization of the Public Rights-Of-Way by a Telecommunications
Service Provider.
The fee or other consideration imposed pursuant to this subsection shall not apply in
any manner to any Telecommunications Company which provides Telecommunications
Services as defined in Section 203.012 (3), Florida Statutes for any services provided by
such Telecommunications Company.
C. In the event a person provides Telecommunications Services other than as
defined in Section 203.012(3) or (7), Florida Statutes, as a condition for granting permission
to occupy or use the Public Rights-Of-Way of the City, the Franchisee shall pay to the City
annually no less than five percent (5%) of gross revenues of the Franchisee for services
provided within the corporate limits of the City unless otherwise prohibited by law, in which
case, Franchisee shall pay the maximum fee allowed by law. For purposes of this
Subsection, ogross revenuesD shall mean all cash credits or property of any kind or nature
without deductions, reported as revenue items to the Franchisee's audited income
statements, arising from, or attributable to the sale, rental, lease, barter or exchange of
12
Telecommunications Services and equipment by Franchisee within the Franchise Area or in
any way derived from the operation of its Telecommunications Facility including, but not
limited to, any interconnection between the Franchisee's Facility or System and any system
whatsoever. This minimum annual Franchise Fee is in addition to any other application
fees, renewal fees, transfer fees, and any State, county or City taxes or assessments. The
franchise fee specified herein is the minimum fair market value for the grant of a franchise
for use of the Public Rights-Of-Way, including all public easements, and other entitlements
to use, occupy or traverse public property, for the purpose of operating a
Telecommunications Facility.
D. Unless otherwise prohibited by Federal or State law, if Franchisee makes
payments to another jurisdiction in Florida at a higher rate or on a broader base of gross
receipts during the term(s) of agreement entered into with the City, the Franchisee agrees
to pay to the City such higher amount, effective on the date Franchisee makes such
payments to another jurisdiction.
E. Except to the extent prohibited by applicable law: (a) The franchise fee
payments to be made pursuant to this Section shall not be deemed to be in the nature of a
tax; (b) Such franchise fee payments shall be in addition to any and all taxes of a general
applicability and not applicable solely to Telecommunications Services within the City or
other fees or charges which a Franchisee shall be required to pay to the City or to any
State or Federal agency or authority, as required herein or by law, all of which shall be
separate and distinct obligations of a Franchisee unless prohibited by applicable Federal,
State or local law, (c) a Franchisee shall not have or make any claim for any deduction or
13
other credit of all or any part of the amount of said franchise fee payments from or against
any of said City taxes or other fees or charges of general applicability which a Franchisee is
required to pay to the City, except as required by law; and (d) The franchise fee specified
herein is the minimum fair market value for the grant of a franchise for use of the Public
Rights-Of-Way, including all public easements, for the purpose of operating a
Telecommunications Facility.
F. Except as prohibited by applicable law, in addition to the aforestated franchise
fee, a Franchisee shall reimburse the City for all reasonable costs including, but not limited
to, consultant costs, attorney's fees, accounting fees, and engineering fees related to the
grant, modification, transfer, or renewal of any Franchise granted hereunder. Therefore,
upon submission of a request for the grant of a Franchise Agreement or the renewal of a
Franchise Agreement, Grantee shall make a non-refundable payment to the City in the
amount of ten thousand dollars ($10,000). The Franchisee shall pay the actual cost of
these enumerated fees which exceed ten thousand ($10,000) dollars upon invoice by the
City. The purpose of this filing fee is to defray the City's costs reasonably incurred in
processing the request.
Section 6. Review and Inspection of Books and Records.
A. The City may, at its option, upon ten (10) days notice to the Franchisee, but in
no event more often than once per year, examine the records and accounting files, and
such other books and records, if such records relate to the calculation of Franchisee fee
payments or any other payments due to the City or to proper performance of any terms of a
Franchise. The examination of such books, accounts, records or other materials necessary
14
for determination of compliance with the terms, provisions, and requirements of a Franchise
shall be during regular hours of business of the Franchisee at an office of the Franchisee
located within the City, or at another location satisfactory to the City. In the event that the
City, pursuant to an audit, determines that there exists a discrepancy in the amount paid
and the amount owed to the City by the Franchisee in excess of 2%, Franchisee shall pay
all reasonable costs, fees and expenses of the audit.
B. No later than June 30th of each year, a Franchisee shall provide the City an
annual report concerning the previous calendar year that includes at minimum the
following:
(1) A financial statement, including a statement of income, and a
statement of sources of revenues. The statement shall be audited if Franchisee has
audited statements performed in its normal course of business. If not, the statement shall
be certified by the Franchisee's chief financial officer or other duly authorized financial
officer of the Franchisee. The statement shall include notes that specify all significant
accounting policies and practices upon which it is based. A summary shall be provided
comparing the current year with the previous two (2) years of the Franchise. This
requirement shall not apply to Telecommunications Service Providers making payments to
the City under Section 5 B or D hereof.
(2) A copy of updated maps depicting the location of the
Telecommunications Facilities, showing areas served, locations of all trunk lines and feeder
lines in the City, and an estimate of the availability of space in conduits. Upon request by
the City, such maps shall be provided to the City in digitized form, at Franchisee's expense.
15
(3) If the Franchisee is a corporation, a list of officers and members ofthe
board of directors; the officers and members of the board of directors of any parent
corporation; and if the Franchisee or its parent corporation's stock or ownership interests
are publicly traded, a copy of its most recent annual report.
(4) If the Franchisee is a partnership, a list of the partners, including any
limited partners, and their addresses; and if the general partner is a corporation, a list of the
officers and members of the board of directors of the corporate general partner, and the
officers and directors of any parent corporation; and where the general partner or its parent
corporation's ownership interests are publicly traded, a copy of its most recent annual
report.
C. Upon reasonable request, a Franchisee shall provide the following documents
to the City as received or filed, without regard to whether the documents are filed by the
Franchisee or an Affiliate:
(1) Annual report of the Franchisee or its parent or any Affiliate of
Franchisee which controls Franchisee and issues an annual report.
(2) Any and all pleadings, petitions, applications, communications,
reports and documents (collectively referred to as DfilingseJ) submitted by or on behalf of
the Franchisee to the Federal Communications Commission, Securities and Exchange
Commission, Florida Public Service Commission or any other State or Federal agency,
court or regulatory commission which filings may impact the Franchisee's operation of the
Franchisee's Telecommunications System in the City or that may impact the City's rights or
obligations under this Ordinance or the Franchise Agreement issued pursuant to this
16
Ordinance and any and all responses, if any, to the above mentioned filings.
(3) Any and all notices of hearing, deficiency, forfeiture, or
documents instituting any investigation, civil or criminal proceeding issued by any State or
Federal agency regarding the Franchisee, any Affiliate of the Franchisee, the Franchisee
Telecommunications Facilities or the Franchisee's use of
Telecommunications Facilities; provided, however, that any such notice or documents
relating to an Affiliate of Franchisee need to be provided only to the extent the same may
directly affect or bear on Franchisee's operations in the City.
(4) Any request for protection under bankruptcy laws, or any
judgment related to a declaration of bankruptcy.
D. Notwithstanding anything to the contrary, the Franchisee agrees to provide
the City, within thirty (30) days of filing or receipt of such, any documentthat may adversely
impact the construction, operation or maintenance of the Franchisee's Facilities or use of
Facilities.
E. A Franchisee under Section 5A or B hereof shall annually certify to the City
that it is not leasing excess capacity on the Telecommunications System or Facilities, or
leasing dark fiber on the System.
F. In addition, the City may, at its option, and upon reasonable notice to the
Franchisee, inspect the Franchisee's Facilities or the Facilities that the Franchisee uses in
the City, to ensure the safety of its residents.
G. The City agrees to keep any documentation, books and records of the
Franchisee confidential to the extent required under Florida Statutes.
17
rF~.~n 7. Unde",round Installetion; Reloo.tion.
A. Consistent with applicable law, a Franchisee may install Telecommunications
Facilities above ground in areas where existing utility facilities are above ground and shall
install Telecommunications Facilities underground in areas where existing utility facilities
are or will be installed underground.
B. Every Telecommunications Service Provider that places or constructs
Telecommunications Facilities underground shall maintain appropriate participation in the
regional notification center for subsurface installations. A Franchisee shall provide location
services for the City at no cost to the City, to the extent consistent with applicable law.
C. Any Telecommunications Facilities heretofore or hereafter placed upon,
under, over, or along any Public Rights-of-Way that is found by the City to be unreasonably
interfering in any way with the convenient, safe or continuous use or the maintenance,
improvement, extension or expansion, of such Public Rights-of-Way, shall, upon thirty (30)
days written notice to the Franchisee or its agent, be removed or relocated by such
Franchisee at its own expense except as explicitly provided under applicable law. The City
Manager, may waive or extend the time within which a Franchisee shall remove or relocate
a Telecommunications Facility, for good cause shown.
D. Whenever an order of the City requires such removal or change in the
location of any Telecommunications Facility from the Public Rights-of-Way, and the
Franchisee fails to remove or change the same at its own expense to conform to the order
within the time stated in the notice, the City shall proceed to cause the Telecommunications
Facility to be removed. The expense thereby incurred shall be paid out of any money
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available therefor, and such expense shall be charged against the owner of the
Telecommunications Facility and levied and collected by and paid to the City.
E. Whenever it shall be necessary for the City to remove or relocate any
Telecommunications Facility, the owner of the Telecommunications Facility, or the owner's
chief agent, shall be given notice of such removal or relocation and an order requiring the
payment of the costs thereof, and shall be given reasonable time, which shall not be less
than twenty (20) nor more than thirty (30) days in which to appear before the City
Commission to contest the reasonableness of the order. Should the owner or the owner's
representative not appear, the determination of the cost to the owner shall be final.
F. A final order of the City shall constitute a lien on any property of the owner
and may be enforced by filing an authenticated copy of the order in the office of the Clerk of
the Circuit Court of the County wherein the owner's property is located.
G. The City retains the right and privilege to cut or move any Facilities located
within the Public Rights-Of-Way of the City, as the City Manager in his/her sole discretion
may determine to be necessary, appropriate or useful in response to any public health or
safety emergency. If circumstances permit, the municipality shall attempt to notify the
Franchisee, if known, prior to cutting or removing a Facility and shall notify the Franchisee,
if known, after cutting or removing a Facility.
H. Upon abandonment of a Facility within the Public Rights-Of-Way of the City,
the Franchisee shall notify the City within ninety (90) days. Following receipt of such notice
the City may direct the Franchisee to remove all or any portion of the Facility if the City
determines that such removal will be in the best interest of the public health, safety and
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welfare. In the event that the City does not direct the removal of the abandoned Facility by
the Franchisee, the Franchisee, by its notice of abandonment to the City, shall be deemed
to consent to the alteration or removal of all or any portion of the Facility by another utility or
person.
(!:ction 8. Use of Rights-C>f-Way.
A. Franchisee agrees at all times to comply with and abide by all applicable
provisions of the State statutes, and local laws including, but not limited to, applicable
zoning regulations not inconsistent with State and Federal laws. No person shall construct
any Facility on, over, above, along, upon, under, across, or within any Public Right-of-Way
which (1) changes the location of the Facility, (2) installs or adds a new Facility, (3)
materially increases the amount of area or space occupied by the Facility on, over, above,
along, under across or within the Public Rights-Of-Way, or otherwise disrupts the Public
Rights-of-way without first filing an application with and obtaining a permit from the City
therefor, except as otherwise provided in this Ordinance. In case of the repair or
maintenance of an existing facility, the City may impose lesser requirements than those set
forth herein. Unless otherwise required by the South Florida Building Code or City Code,
no permit shall be required for installation and maintenance of service connections to
customers' premises where there will be no disruption of the Public Rights-Of-Way.
B. All of Franchisee's Facilities shall be installed, located and maintained so as
not to unreasonably interfere with the use of the Public Rights-Of-Way by the traveling
public and to cause minimum interference with the rights and convenience of property
owners who adjoin any of the Public Rights-Of-Way. The City may issue such rules and
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regulations concerning the installation and maintenance of a Telecommunications Facility
in the Public Rights-Of-Way, as may be consistent with the applicable Law. Such rules and
regulations may include, but are not limited to, reasonable requirements and restrictions
with respect to height, width and diameter of said Facilities.
C. All safety practices required by applicable Law or accepted industry practices
and standards shall be used during construction, maintenance, and repair of the
Telecommunications Facilities.
D. In the event that at any time during the term of the rights granted herein the
City shall lawfully elect to alter, or change the grade of, any Public Rights-Of-Way, a
Telecommunications Provider, upon reasonable notice by the City, shall make any
necessary removals, relaying and relocations of its Telecommunications Facilities at its own
expense in accordance with applicable law.
E. Franchisee shall obtain any and all required permits and pay any and all
required fees before commencing any construction on or otherwise disturbing any Public
Righ<s-Of-Way as a result of its construction or operations. Franchisee shall, at its own
expense, restore such property to as good a condition as existed prior to Franchisee's
commencement of work. If such restoration is not performed in a reasonable and
satisfactory manner within thirty (30) calendar days after the completion of construction, the
City may, after prior written notice to Franchisee, cause the repairs to be made at
Franchisee's expense. A permit from the City authorizes a Franchisee to undertake only
certain activities in accordance with this Ordinance on City Rights-of-Way, and does not
create a property right or grant authority to impinge upon the rights of others who may have
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an interest in the Public Rights-Of-Way.
F. Every Telecommunications Facility located in the Public Rights-Of-Way shall
be subject to the City's periodic inspection, upon no less than three (3) days written notice
to Franchise, for compliance with this Ordinance, any Franchise Agreement, or any
applicable provisions of the City Code.
G. Franchisee shall not place its facilities so as to interfere unreasonably with
any other person lawfully using the Public Rights-Of-Way serving the residents ofthe City.
H. Franchisee shall not permit any facilities to be affixed to any poles or other
facilities owned or otherwise under the control of Franchisee that would, in any manner,
effect a modification of said Facility including, but not limited to, increasing its height, width
or depth, notwithstanding, whether such equipment is the property of Franchisee or a third
party, without prior approval of the City Manager. In no event shall Franchisee permit any
such modification in violation of City zoning regulations now in effect or as may hereafter be
amended.
Section 9. Written Acceptance by the Franchisee.
A Franchisee shall, within ten (10) days prior to the effective date of a Franchise,
provide an executed acknowledgment of the binding effect of the terms and conditions of
this Ordinance and the Franchise to the City Manager in the form designated by the City.
Such acknowledgment shall be executed by a duly authorized officer of Franchisee and
shall represent the Franchise Agreement between the Franchisee and the City of Aventura.
Gection 10. Compliance with Other Laws; Police Power.
Franchisee shall at all times be subject to and shall comply with all applicable
Federal, State and local laws. Franchisee shall at all times be subject to all lawful
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exercises of the police power of the City, to the extent not inconsistent with applicable laws.
Section 11. Transfer of Control; Sale or Assignment.
A. Except in the case of a pro forma transfer as described in (B) below, the
Franchisee shall not sell, assign, or otherwise transfer any portion of its Facilities to
another, nor transfer any rights pursuant to a Franchise Agreement to another without the
prior written approval of the City Commission, which shall not be unreasonably withheld or
denied. Requests for transfer shall be filed in the office of the City Manager and shall
include: 1) a statement that the Assignee or the Transferee has accepted this Ordinance
and will operate pursuant to a Franchise Agreement and agrees to be bound by each and
every one of the terms and provisions thereof; 2) proof that the Assignee or Transferee has
met the insurance and indemnification requirements of this Ordinance and any Franchise
agreement; and 3) proof that the Assignee or Transferee has complied with all Federal and
State laws with regard to the transfer of a Certificate of Public Convenience and Necessity.
If the rights granted herein are transferred or assigned by the Franchisee to any third party
incident to a transfer, sale or assignment of the Franchisee's Facilities, the Transferee or
Assignee shall be obligated to comply with all of the terms and conditions of this Ordinance
and any applicable Franchise Agreement.
B. An application for approval of a pro forma Transfer of a Franchise shall be
considered granted on the thirty-first (31st) calendar day following the filing of such
application with the City unless, prior to that date, the City notifies the Franchisee to the
contrary. An application for approval of a pro forma Transfer of a Franchise shall clearly
identify the application as such, describe the proposed transaction, and explain why the
Applicant believes the Transfer is pro forma. A transfer shall be considered "pro forma" if it
23
involves a Transfer to a Person, group of Persons or business entity wholly owned or
controlled by the Franchisee and shall not result in a change in the control or ownership of
the Franchisee or Franchisee's system.
C. When considering an application for transfer of a Franchise, in addition to
those determinations set forth in Section 3, the City must also determine that:
(1) there will be no adverse effect on the City's interest in the franchise;
(2) transferee agrees to be bound by all the conditions of the franchise,
and to assume all the obligations of its predecessor; and
(3) any outstanding compliance and compensation issues are resolved or
preserved to the satisfaction of the City.
D. Notwithstanding anything in this Ordinance, pledges in trust or mortgages or
other hypothecations of the assets of the Franchisee to secure the construction operation
or repair of its Telecommunications Facilities may be made without the City's prior consent
hereunder, except that no such pledge, mortgage or other hypothecation may be made if
such arrangement would in any way prevent the Franchisee or its successor from
complying with the terms of a Franchise granted hereunder, or with this Ordinance or any
provision of the City Code. Any mortgage, pledge, lease or other encumbrance of the
Telecommunications Facilities shall be subject and subordinate to the rights of the City in
this Ordinance or other applicable law.
E. Requests for approval of a proposed transfer, sale or assignment shall be
accompanied by a payment of $5,000.00 to cover the City's administrative costs in
processing the transfer, sale or assignment.
Section 12. Insurance; Surety; Indemnification.
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A. A Franchisee shall maintain, and by its acceptance of the Franchise
specifically agrees that it will maintain throughout the entire term of the Franchise including
any renewals thereof, the following liability insurance coverage insuring the Franchisee and
naming the City as an additional insured; worker's compensation and employer liability
insurance to meet all requirements of Florida law and general comprehensive liability
insurance with respect to the construction, operation and maintenance of the
Telecommunications Facilities, and the conduct of Franchisee's business in the City, in the
minimum amounts of:
(1) $250,000 for property damage in anyone accident:
(2) $500,000 for personal bodily injury to anyone person: and
(3) $1,000,000 for personal bodily injury in anyone accident.
B. All insurance policies shall be with sureties qualified to do business in the
State of Florida; shall be with sureties with a minimum rating of A-1 in Best's Key Rating
Guide, Property/Casualty Edition except as provided in (0) below. The City may require
cove"age and amounts in excess of the above minimums where necessary to reflect
changing liability exposure and limits or where required by law.
C. A Franchisee shall keep on file with the City certificates of insurance which
certificates shall indicate evidence of payment of the required premiums and shall indicate
that the City, its officers, boards, Commission, Commission members, agents and
employees are listed as additional insureds. In the event of a potential claim such that the
City claims insurance coverage, Franchisee shall immediately respond to all reasonable
requests by the City for information with respect to the scope of the insurance coverage.
O. All insurance policies shall further provide that any cancellation or reduction in
25
coverage shall not be effective unless thirty (30) days prior written notice thereof has been
given to the City. A Franchisee shall not cancel any required insurance policy without
submission of proof that the Franchisee has obtained alternative insurance satisfactory to
the City Vllhich complies with this Ordinance. A Franchisee may self-insure all or a portion
of the insurance coverage and limit requirements required by this Section. A Franchisee
that self-insures is not required, to the extent of such self-insurance, to comply with the
requirement for the naming of additional insureds under this Section. A Franchisee that
elects to self-insure shall provide to the City evidence sufficient to demonstrate its financial
ability to self-insure the insurance coverage and limit requirements required under this
Section, such as evidence that the Franchisee is a ";tprivate self insurer" under the Workers
Compensation Act. For purposes of this Section, "private self insurer" ;tshall also include a
Franchisee that insures through a "captive insurer" as defined in Section 628.901, Florida
Statutes.
E. A Franchisee shall, at its sole cost and expense, indemnify, hold harmless,
and defend the City, its officials, boards, Commission, Commission members, agents, and
employees, against any and all claims, suits, causes of action, proceedings, judgments for
damages or equitable relief, and costs and expenses arising out of the construction,
maintenance or operation of its Telecommunications System or Facilities, the conduct of
Franchisee's business in the City, or in any way arising out of the Franchisee's enjoyment
or exercise of a Franchise granted hereunder, regardless of Vllhether the act or omission
complained of is authorized, allowed or prohibited by this Ordinance or a Franchise
agreement, provided, however, that Franchisee's obligation hereunder shall not extend to
any claims caused by the misconduct or negligence of the City, its officials, boards,
26
Commission, Commission members, agents or employees. In addition, and notwithstanding
anything to the contrary, any Franchisee granted a renewal of a Franchise on or after the
effective date of this Ordinance shall indemnify and hold harmless the City, its officials,
boards, Commission, Commission members, agents or employees from any claim arising
by a third party under Federal or State law. This provision includes, but is not limited to, the
City's reasonable attorneys' fees incurred in defending against any such claim, suit or
proceedings; and claims arising out of copyright infringements or a failure by the
Franchisee to secure consents from the owners, authorized distributors, or providers of
telecommunications services, and claims against the Franchisee for invasion ofthe right or
privacy, defamation of any person, firm or corporation, or the violation or infringement of
any copyright, trade mark, trade name, service mark or patent, or of any other right of any
person, firm, or corporation. City agrees to notify Franchisee, in writing, within ten (10)
days of 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 beliefthere exists
or may exist a conflict, potential conflict or appearance of a conflict.
Section 13. Security Fund.
A. A Franchise agreement may provide that, prior to the Franchise becoming
effective, the Franchisee shall post with the City a security fund. Such fund may be in the
form of a cash deposit, letter of credit, corporate guarantee, indemnity bond or surety bond
as determined by the City Manager in hislher sole discretion. The security fund will be
used to ensure the Franchisee's faithful performance of and compliance with all provisions
of this Ordinance, the Franchise agreement, and other applicable law, and compliance with
27
all orders, permits and directions of the City, and the payment by the Franchisee of any
claims, liens, fees, or taxes due the City which arise by reason of the construction,
operation or maintenance of the system. The amount of the security fund shall be no less
than Twenty-five Thousand Dollars ($25,000.00), which is the minimum amount that the
City determines is necessary to protect the public, to provide adequate incentive to the
Franchisee to comply with this Ordinance and the Franchise agreement, and to enable the
City to effectively enforce compliance therewith. The amount of the security fund may be
modified in a Franchise Agreement in the City's sole discretion, based on factors including
but not limited to, written recommendations from other local franchising authorities that
regulate the Franchisee and the Franchisee's compliance and/or noncompliance with the
regulations promulgated by other franchising authorities. The Franchise Agreement shall
provide for the procedures to be followed with respect to the security fund. Neither the
posting of the cash deposit or filing of an indemnity bond or any form of surety bond with
the City, nor the receipt of any damages recovered by the City thereunder, shall be
construed to excuse faithful performance by the Franchisee or limit the liability of the
Franchisee under the terms of its Franchise for damages, either to the full amount of the
bond or otherwise.
B. Notwithstanding any of the above, the City, upon thirty (30) days advance
written notice clearly stating the reason for, and its intention to exercise withdrawal rights
under this Subsection, may withdraw an amount from the Security Fund, provided that the
Franchisee has not reimbursed the City for such amount within the thirty (30) days notice
period. Withdrawals may be made if the Franchisee:
(1) Fails to make any payment required to be made by the Franchisee
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hereunder;
(2) Fails to pay any liens relating to the facilities that are due and unpaid;
(3) Fails to reimburse the City for any damages, claims, costs or expenses
which the City has been compelled to payor incur by reason of any action or non-
performance by the Franchisee; or
(4) Fails to comply with any provision of this Ordinance or Franchise
Agreement, which failure the City determines can be remedied by an expenditure of an
amount from the Security Fund.
C. Within thirty (30) days after receipt of written notice from the City that any
amount has been withdrawn from the Security Fund, the Franchisee shall restore the
Security Fund to the amount specified in this Section.
D. The rights reserved to the City with respect to the security fund or an
indemnity bond are in addition to all other rights of the City, whether reserved by this
Ordinance or authorized by other law or the Franchise agreement, and no action,
procf;eding or exercise of a right with respect to such security fund or indemnity bond will
affect any other right the City may have.
Section 14. Construction Bond.
A. A Franchise agreement shall provide that, prior to performing any work in the
Public Rights-of-Way, a Franchisee shall establish in the City's favor a construction bond in
an amount specified in the Franchise Agreement or other authorization as necessary to
ensure the Franchisee's faithful performance of the construction, upgrade, rebuild or other
work. The amount of the construction bond shall be no less than Fifty Thousand Dollars
($50,000.00). The amount of the construction bond may be modified in a Franchise
29
Agreement, in the City Manager's sole discretion, based on the amount, the value of the
construction to take place in the Public Rights-Of-Way, and any previous history of the
Franchisee concerning construction within the Public Rights-of-Way of the City.
B. In the event a Franchisee subject to such a construction bond fails to
complete the work in a safe, timely and competent manner in accord with the provisions of
the Franchise Agreement, 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 Franchisee, or the cost of completing the 'MJrk, plus a reasonable allowance
for attorneys 0 fees, up to the full amount of the bond. The City may also recover against
the bond any amount recoverable against the security fund pursuant to Section 13 hereof
where such amount exceeds that available under the security fund.
C. A Franchise agreement may specify that no less than six (6) months after the
completion of the construction of the Telecommunications Facility and payment of all
construction obligations to the satisfaction of the City, the City may eliminate the bond.
However, the City may subsequently require a new bond for any subsequent work in the
Public Rights-Of-Way.
D. 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
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bond of intent to cancel or not to renew.
E. The rights reserved by the City with respect to any construction bond
established pursuant to this section are in addition to all other rights and remedies the City
may have under this Ordinance, the Franchise Agreement, or at law or equity.
F. When the Franchise terminates for reasons including, but not limited to,
revocation, any security will be maintained by the Franchisee for one (1 ) year from the date
of termination and the remaining fund will be returned to Franchisee one (1) year from the
termination date of the Franchise, provided there is no outstanding default or unpaid
amounts owed to the City by Franchisee.
G. The rights reserved to the City under this section are in addition to all other
rights of the City, whether reserved in this Ordinance or Franchisee Agreement, or
authorized by other law, 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 15. Enforcement Remedies.
A. In addition to other remedies available at law or equity or provided in this
Ordinance, or in any Franchise Agreement, failure by the Franchisee to comply with any of
the provisions, terms and conditions of the Franchise granted hereunder may result in a
revocation of the Franchise, or, in the alternative, at the discretion of the City, the City may
impose liquidated damages for any violation by a Franchisee ofthis Ordinance, a Franchise
Agreement, or law applicable to users and/or occupants of the Public Rights-Of-Way, which
damages may be difficult to quantify but shall be determined in an amount no less than
One Hundred Dollars ($100.00) per day per violation.
B. Before imposing a fine pursuant to this Section, the City shall give Franchisee
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written notice of the violation and its intention to assess such damages, which notice shall
contain a description of the alleged violation. Following receipt of such notice, Franchisee
shall have thirty (30) days to cure the violation and the City shall make good faith
reasonable efforts to assist the Franchisee in resolving the violation. If the violation is not
cured within that thirty (30) day period, the City may collect all fines owed, beginning with
the first day of the violation, either by removing such amount from the security fund or
through any other means allowed by law.
C. In addition to any other remedies available at law or equity or provided in this
Ordinance or in any Franchise Agreement, the City may apply anyone or combination of
the following remedies in the event a Franchisee violates this Ordinance, its Franchise
Agreement, applicable State or Federal law, or applicable local law or order:
(1) Franchisee's failure to comply with Sections 3A, D and/or E herein
shall result in imposition of liquidated damages to be paid by the Franchisee to the City in
an amount of not less than One Thousand Dollars ($1,000.00) per day or part thereof that
the violation continues.
(2) Revoke the franchise pursuant to the procedures specified in Section
16 hereof.
(3) In addition to or instead of any other remedy, the City may seek legal
or equitable relief from any court of competent jurisdiction.
D. 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.
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E. Failure of the City to enforce any requirements of a Franchise Agreement or
this Ordinance shall not constitute a waiver of the City's right to enforce that violation or
subsequent violations of the same type or to seek appropriate enforcement remedies.
F. In any proceeding wherein there exists an issue with respect to a
Franchisee's performance of its obligations pursuant to this Ordinance, the Franchisee has,
throughout any such proceedings and appeals thereof, the burden of proving that said
Franchisee is in compliance with the terms of this Ordinance. The City Commission may
find a Franchisee that does not demonstrate compliance with the terms and conditions of
this Ordinance in default and apply anyone or combination of the remedies otherwise
authorized by this Ordinance.
Section 16. Revocation or Termination of Franchise.
A. A Franchise may be revoked by the City Commission for Franchisee's failure
to construct, operate or maintain the Telecommunications System or Facility as required by
this Ordinance or the Franchise Agreement, or for any other material violation of this
Ordirance or material breach of the Franchise Agreement or material violation of Federal,
State, or local law. To invoke the provisions of this subsection A, the City shall give the
Franchisee written notice, by certified mail at the last known address, that Franchisee is in
material violation of this Ordinance or material breach of the Franchise Agreement and
describe the nature of the alleged violation or breach with specificity. If within thirty (30)
calendar days following receipt of such written notice from the City to the Franchisee, the
Franchisee has not cured such violation or breach, or has not commenced corrective action
and such corrective action has not been actively and expeditiously pursued, the City may
give written notice to the Franchisee of its intent to revoke the Franchise, stating its
33
reasons. B. Prior to revoking a Franchise under subsection A hereof, the City
Commission shall hold a public hearing, upon thirty (30) days' calendar notice, at which
time the Franchisee and the public shall be given an opportunity to be heard. Following the
public hearing the City Commission may determine whether to revoke the Franchise based
on evidence presented at the hearing, and other evidence of record. If the City
Commission determines to revoke a Franchise it shall issue a written decision setting forth
the reasons for its decisions. A copy of such decision shall be transmitted to the
Franchisee.
C. Notwithstanding subsections A and B hereof, any Franchise may, at the
option of the City following a public hearing before the City Commission, be revoked 120
calendar days after an assignment for the benefit of creditors or the appointment of a
receiver or trustee to take over the business of the Franchisee, whether a receivership,
reorganization, bankruptcy assignment for the benefit of creditors, or other action or
proceeding unless within that 120 day period: (1) such assignment, receivership, or
trusteeship has been vacated; or (2) such assignee, receiver, or trustee has fully complied
with the terms and conditions of this Ordinance and Franchise Agreement and has
executed an agreement, approved by a court of competent jurisdiction, to be bound by the
terms and conditions of this Ordinance and the Franchise Agreement.
D. In the event of foreclosure or other judicial sale of any of the facilities,
equipment, or property of a Franchisee, the City may revoke the Franchise, following a
public hearing before the City Commission, by serving notice upon the Franchisee or the
successful bidder at the sale, in which event the Franchise and all rights and privileges of
the Franchisee will be revoked and will terminate thirty (30) calendar days after serving
34
such notice, unless the successful bidder has obtained the necessary certificates, and
other authorizations pursuant to applicable State, Federal and local laws, and: (1) the City
has approved the transfer of the Franchise to the successful bidder; or (2) the successful
bidder has covenanted and agreed with the City to assume and be bound by the terms and
conditions of the Franchise Agreement and this Ordinance.
E. If the City revokes the Franchise, or for any other reason a Franchisee
abandons, terminates or fails to operate or maintain its facilities for a period of six (6)
months following Franchisee's decertification as a Telecommunications Company by the
PSC, if applicable, the following procedures and rights are effective: (1) the City may
require the former Franchisee to remove its facilities and equipment at the former
Franchisee's expense; if the former Franchisee fails to do so within a reasonable period of
time, the City may have the removal done at the former Franchisee's and/or surety's
expense; (2) the City, by resolution of the City Commission, may acquire ownership or
effect the transfer of the Telecommunications Facility or System subject to the limitations
set forth in Section 18 herein and in any Franchise Agreement; or (3) if a
Telecommunications System is abandoned by a Franchisee the City may sell, assign, or
transfer all or part of the assets of the System subject to the limitations set forth in Section
18 herein or in any Franchise Agreement. Nothing herein shall be construed to limit the
City's right to petition the PSC for appropriate relief in the case of a Telecommunications
Company which abandons, terminates or fails to operate or maintain a Facility within the
Franchise Area for a period of twenty-four (24) months.
F. No adverse action against the Franchisee may be taken by the City, pursuant
to this Section, without notice and a public hearing at which the Franchisee is given an
35
opportunity to participate.
Section 17. Renewal of Franchise.
A. Upon receipt of the renewal application within sixty (60) days of the expiration
of an existing Franchise, the City shall publish notice of its receipt and make copies
available to the public. The City, following prior public notice, may hold one or more public
hearings on the renewal application.
B. The City Commission shall consider the renewal application at a public
hearing at which the City Commission will either (1) pass a resolution agreeing to renew the
Franchise, subject to negotiation of a Franchise Agreement satisfactory to the City and a
Franchisee; or (2) pass a resolution that makes an assessment that the Franchise shall not
be renewed.
C. The City reserves the right to consider any and all violations of Federal, State,
and local law and any and all pending violations of this Ordinance or of a Franchise granted
pursuant to such Ordinance in determining whether or not to grant the renewal of a
Franchise.
D. The City shall grant a renewal application upon a finding that:
(1) The City and the Franchisee shall agree on the terms of the Franchise
Agreement before such renewal becomes effective.
(2) Any outstanding compliance and compensation issues are resolved or
preserved to the satisfaction of the City.
E. If a renewal of a Franchise is lawfully denied, the City may acquire ownership
of the Telecommunications System or Facility, or effect the transfer of the ownership of the
System or Facility, or effect the transfer to another person upon approval of the City
36
Commission subject to the limitations set forth in Section 18 herein and in any Franchise
Agreement. The City may not acquire ownership of the System or Facility, or approve a
transfer during an appeal of a denial for renewal.
F. If a renewal of a Franchise is lawfully denied and no appeal to a court is
pending, and the City does not purchase the Telecommunications System or Facility, or
affect the transfer of the Telecommunications System or Facility to another person, the City
may require the former Franchisee to remove its Facilities and equipment at the former
Franchisee's expense. If the former Franchisee fails to do so within a reasonable period of
time, the City may have the removal done at the former Franchisee's or surety's expense.
Section 18. Municipal Ownership of Telecommunications Facility.
A. Upon the revocation of the Franchise, or termination thereof where a
Franchisee has not given timely written notice to the City that it will seek renewal of the
Franchise pursuant to Section 17 hereof, the City shall have the right and privilege, at its
option, to purchase the Telecommunications Facility hereby authorized, or other property
used under or in connection with a Franchise granted hereunder, or such part of such
property as the City may desire to purchase at a valuation of the property real and personal
desired, which valuation shall represent the fair market value.
B. A Franchise Agreement may provide that an entity other than the City has the
first option to purchase or to receive in a transfer agreement the Telecommunications
Facility in the event that a Franchise is terminated, revoked, not renewed or transferred.
Any such entity granted a first option to purchase or receive the Telecommunications
System or Facility must agree in writing on or before the effective date of the purchase or
transfer that it agrees to be bound by all terms and conditions of this Ordinance and any
37
Franchise granted pursuant to this Ordinance and all applicable Federal, State and local
laws. Any such entity granted a first option to purchase or to receive the
Telecommunications Facility must obtain all necessary franchises, permits, certificates,
licenses and other authorizations required by applicable Federal, State and local law prior
to purchasing or receiving the Telecommunications Facilities. The first option to purchase
or to receive the Telecommunications Facility shall be null and void if the option holder
does not fulfill all obligations under this Ordinance, a Franchise Agreement, and all laws
applicable to users and occupants of the Public Rights-Of-Way.
Section 19. Force Majeure.
In the event a Franchisee's performance of or compliance with any of the provisions
of this Ordinance or the Franchisee's Franchise Agreement is prevented by a cause or
event not within the Franchisee's control, such inability to perform or comply shall be
deemed excused and no penalties or sanctions shall be imposed as a result thereof,
provided, however, that Franchisee uses all practicable means to expeditiously cure or
correct any such inability to perform or comply. For purposes of this Ordinance and any
Franchise Agreement granted or renewed hereunder, causes or events not within a
Franchisee'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 Franchisee's control, and thus not falling within this
Section, shall include, without limitation, Franchisee's financial inability to perform or
comply, economic hardship, and misfeasance, malfeasance or nonfeasance by any of
Franchisee's directors, officers, employees, contractors or agents.
38
Section 20. Repeal of Conflicting Ordinances.
All Ordinances or part of Ordinances, and all resolutions or part of resolutions in
conflict herewith be and the same are hereby repealed to the extent of such conflict.
Section 21. Savings.
All fees, charges and financial obligations previously accrued pursuant to any
Ordinances and resolutions repealed pursuant to Section 20 above shall continue to be due
and owing until paid.
Section 22. 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 23. Reservation of Rights.
A. Both the City and the Franchisee reserve and may seek any and all remedies
available at Law. Neither the City nor the Franchisee shall be deemed to have waived any
rights or remedies at Law by virtue of accepting a Franchise Agreement pursuant to this
Ordinance.
B. The City reserves the right to amend this Ordinance as it shall find necessary
in the lawful exercise of its police powers.
C. Any additional regulations adopted by the City that are applicable to an entity
erecting, constructing, maintaining or operating facilities in the Public Rights-Of-Way shall
be incorporated into this Ordinance and complied with by all Franchisees within thirty (30)
39
days of the date of adoption of such additional regulations unless imposition of such
regulations would be otherwise prohibited by applicable Law.
Section 24. Effective Date.
This Ordinance shall be effective immediately upon adoption on second reading.
The foregoing Ordinance was offered by Vice Mayor Berger, who moved its
adoption on first reading. This motion was seconded by Commissioner Perlow, and upon
being put to a vote, the vote was as follows:
Commissioner Jay R. Beskin yes
Commissioner Ken Cohen yes
Commissioner Harry Holzberg yes
Commissioner Jeffrey M. Perlow yes
Commissioner Patricia Rogers-Libert yes
Vice Mayor Arthur Berger yes
Mayor Arthur I. Snyder yes
The foregoing Ordinance was offered by Commissioner , who
moved its adoption on second reading. This motion was seconded by Commissioner
and upon being put to a vote, the vote was as follows:
Commissioner Jay R. Beskin
Commissioner Ken Cohen
Commissioner Harry Holzberg
Commissioner Jeffrey M. Perlow
Commissioner Patricia Rogers-Libert
Vice Mayor Arthur Berger
Mayor Arthur I. Snyder
PASSED AND ADOPTED on first reading this 4h day of January, 2000.
PASSED AND ADOPTED on second reading this 1st day of February, 2000.
ATTEST:
ARTHURI.SNYDER,MAYOR
TERESA M. SOROKA, CMC/AAE
CITY CLERK
APPROVED AS TO LEGAL SUFFICIENCY:
CITY ATTORNEY
40
CITY OF AVENTURA
COMMUNITY SERVICES DEPARTMENT
MEMORANDUM
TO: Eric M. Soroka, City Manager
DATE: April 13, 2000
FROM: Robert M. Sherman, Director of Community Servic
SUBJECT: Lehman Causeway Guardrail Options
Pursuant to your direction, our consulting engineers have prepared a work
authorization to study this issue. They have prepared two alternatives for
consideration. To summarize, Alternate "A" addresses the relocation of the exercise
path and Alternate "B" is performing a study of traffic, speed and weaving patterns to
develop alternate safety features, obtaining input from FOOT, and then preparing a
report to the City.
Alternate "A":
This option evaluates the relocation of the existing pedestrian pathway for
approximately 2,000 feet on the westbound service road of the Lehman Causeway to
the north. This alternative will also tell us if we need to fill in the adjacent lake and
quantify the area of any easements that need to be obtained from the Country Club to
accomplish this. This proposal includes the necessary schematic layouts and sketches
to clearly indicate the alternatives for this project. This proposal does not include
construction plans or design.
COST: $11,285.00
Alternate "B":
This option is a safety study that consists of the tasks necessary to study the existing
traffic conditions in the area of the westbound service road of the Lehman Causeway
between East and West Country Club Drives and develop traffic alternatives for better
vehicular and pedestrian safety features. Some possibilities could be tubular
delineators, bollards or alternative signage. This alternate consists of performing traffic
studies, speed studies and a speed and weaving analysis. Our engineers would then
obtain input from FOOT and prepare a report to the City with their findings and
recommendations.
COST: $29,415.00
RMS/gf
Attachment
RMS00024
KEITH and SCHNARS, P.A.
ENGINEERS ~ PLANNERS - SURVEYORS
WORK AUTHORIZATION NO. 15414.70
The City of Aventura has requested Work Authorization No. 15414.70, as provided for in
the agreement between the City of Aventura and Keith and Schnars, P.A. and approved
by the City Commission on August 20, 1996.
This Work Authorization No. 15414.70 provides for technical services in accordance with
Articles 3 and 4 of the agreement as further detailed in the scope of services in Exhibit A.
Payment for such services shall be in accordance with Article 5 of the agreement.
Alternate A
Surveying Services
Engineering Services
$4,755.00
$6,530.00
Alternate B
Traffic Engineering Services
$8,815.00
$20,100.00
$500.00
Total estimated labor expenses are
Total estimated reimbursables are
The time period for this work authorization will be:
Construction Phase
30 Days
CITY:
ATTEST
CITY OF AVENTURA, FLORIDA
through its City Manager
BY
BY
City Clerk
City Manager
Teresa M. Soroka. CMC. ME
Eric M. Soroka
day of
,2,000
6500 North Andrews Avenue. Ft. Lauderdale, Florida 33309-2132
(954) 776-1616. (800) 488-1255. Fax (954) 771-7690
APPROVED AS TO FORM
BY
Notice to Proceed
Yes
City Attorney
Weiss Serota & Helfman. PA
Project Initiation Date
RECOMMENDED through its
Director of Community Services
BY
No
Director of Community Services
Robert M. Sherman
day of
and
,2,000
Exhibit A
WORK AUTHORIZATION NO. 15414.70
Lehman Causeway Safety Improvements
Scope of Consulting Services
between
The City of Aventura, Florida
and
Keith and Schnars, P.A.
April 10, 2000
P.A.
Ff[)
Exhibit A
WORK AUTHORIZATION NO. 15414.70
Lehman Causeway Safety Improvements
SCOPE OF CONSULTING SERVICES
PREAMBLE
Alternate A
The CONSULTANT proposes to provide professional services associated with evaluating
the feasibility of relocating the existing pedestrian pathway (for approximately 2,000 feet
on the north side of the service road of Lehman Causeway) to the north. Upon completion
of the conceptual phase, the CONSULTANT shall present the alternatives to the City for
review.
1.0 Surveying Services:
1.01 Toooaraohic Survey
The CONSULTANT shall perform a topographic survey for conceptual
design purposes of the relocated pedestrian walkway along the north side of
N .E. 192nd Street (William Lehman Causeway) from West Country Club Drive
easterly approximately 2,000':t. Services shall include locations and
elevations approximately 25' north of existing walkway (including trees) and
location of existing lane lines on westbound N.E. 192nd Street. Survey
deliverables shall be an electronic design survey base file added to the
design survey file of Country Club Drive.
1.02 Sketch and Descriotion
The CONSULTANT shall prepare a sketch and description of the proposed
easement for the relocated pedestrian walkway.
2.0 Engineering Services:
Conceotual Desian Phase
2.01 The CONSULTANT shall meet with the City of Aventura to clarify and define
the City's requirements for the project.
P.A.
y,^j
2.02 Prepare schematic layouts and sketches with appropriate exhibits to indicate
clearly the alternates for this project.
2.03 Evaluate each design for conformance with existing engineering design
standards.
2.04 Present alternatives to City in a letter format with preliminary cost estimates
for each alternative.
Please note, this task does not include construction plans/design.
Alternate B
Lehman Causewav Service Road Safetv Alternatives
This safety study shall consist of those efforts necessary to develop existing traffic
conditions in the area of the westbound service road of the Lehman Causeway between
East and West Country Club Drive in the City of Aventura, develop alternatives to address
concerns over vehicular and pedestrian safety, obtain input from the Florida DOT, and
prepare a letter report to the City.
3.0 Traffic Engineering Services:
3.01 Data Collection Services
The CONSULTANT shall perform traffic data collection services to consist
of two-day traffic volume counts recorded on a 15-minute basis on the
Lehman Causeway westbound service road, the westbound off ramp and
downstream of the westbound on-ramp. Traffic speed studies will be
conducted on the westbound off ramp and the westbound service road
between the off and on ramps.
3.02 Sketch of Existing Conditions
The CONSULTANT shall develop a sketch of existing conditions in the study
area by supplementing the existing survey information with non-survey level
field measurements.
3.03 Speed Analvsis
Using the information collected in Tasks 2 and 3, the CONSULTANT shall
perform a speed analysis and weaving analysis for the service road. This
analysis shall be used to support any resulting requests to the Florida
Department of Transportation (FOOT).
and
A.
3.04 Alternative Treatments
The CONSULTANT shall develop alternative treatments forthe service road
to address the safety issues identified. The alternatives will be based on the
data analysis, existing conditions and accepted professional design
standards and practice. Three alternatives will be developed, to include
preliminary cost estimates.
3.05 Meetinas
The CONSULTANT will meet with City of Aventura staff to present and
discuss, at a preliminary level, the results of the analyses and the identified
alternatives. The CONSULTANT will meet with FDOT staff to present and
discuss the preliminary results and obtain input from that agency.
3.06 Report
The CONSULTANT shall present the results of the data collection and
analyses, the alternatives developed including planning level costs, a
summary of agency meeting(s) and a recommended course of action. This
presentation shall be in the form of a letter report.
Final design and construction plans are not a part of this proposal.
and SCHNARS,
,
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FEB-29-00 18,37 FROM TURNBERRY ASSOCIATES
ID'3059335511
PAGE 2/2
..... -- --................---. . ...............-.
TIJ...IE..Y A..O~.ATE.
NEf..IIAlI.I)N
-- -.. ..-
TO: ERIC SOROKA
FROM. GEORGE J. BERLIN /)1
RE: EUGENE LEBOWITZ MEMORIAL
DATE: 02/29/00
cc:
As we recently discussed, the family of the late Eugene Lebowitz has contacted me
regarding the establishment of an appropriate memorial in Founders' Park. As you may
know, Eugene Lebowitz was one of the original founders of the Aventura property. The
family would like to make a contribution of $30,000.00
Please give me a call to further discuss this matter.
/d
185018"""" BIwd./ .sulte 4OO/A'Illnllul, fl. 33180/(305) 837-6200/Fu (305) 133-5511
CITY OF AVENTURA
COMMUNITY DEVELOPMENT DEPARTMENT
DATE: April 12, 2000
TO: Eric M. Soroka, Ci~
FROM: Brenda Kelley, Co
SUBJECT: Office Building Wall Signage
After recent discussions with staff regarding office building wall signage, it was discovered
that Section 901.11 (b)(3) allows non-conforming office building wall signs to be continued as
an exception to the amortization schedule.
I have attached a copy of the code section for your reference.
Please feel free to contact me with any questions you may have.
lmemQlsoroka 041200 office sJgns
revoked by the City Manager upon the determination that the Sib'11 is
not in full compliance ",th the provisions of this Section. Further, if
the Sib'11 authorized by any pennit has not been constructed ",thin
three months after the date of issuance of that pennit, the pennit shall
automatically be revoked and a new permit required.
(I) App".:ll< of Arlmini<trativ" OPe;<ioo<. Anyone appealing an
administrative decision relating to a Sign application or the pennitting
process may appeal such decision to the City Commission by filing a
request with the City Clerk ",thin 15 calendar days of the decision of
the City Manager. The Clerk shall place such item on the next
available City Commission agenda
(g) V arian~", Anyone seeking a variance of the provisions of this
Section shall file such application ",th the City Manager. An
application for variance shall be made pursuant to the City's
procedure for requesring a zoning variance and shall be scheduled for
a hearing by the City Commission who shall grant or deny such
variance using the following criteria
(h) rriteria A Variance may be granted upon a sho",ng by the
applicant that the Sign Variance maintains the basic intent and
purpose of these regulations, particularly as it affects the stability and
appearance of the City and provided that the Variance ",II be
otherwise compatib:e with the surrounding land uses and would not
be detrimental to the community. No showing of unnecessary
hardship to the land is required.
901.11
Non-conforming Sign< All future changes to any Signs ",II require
confonnity to this Section.
(a) Amortintion of Sign rorle Non-conformitie, The follo",ng
Non-confonning Signs that existed at the time the Sign Code
Ordinance became effective may be continued, although it does not
conform to all the provisions hereof, provided that no structural
alterations or text are made thereto and that all such Non-confonning
Signs shall be completely removed from the premises or made to
conform by June 3, 2000:
1) Any Non-conforming Sign;
2) Those Signs that display services or products as opposed to the
business name;
3) Nonresidential Monument Signs
(b) FX(,R:ption to ~mnrtl7.at;()n ~hf".rllllf>:.
1 ) Channel letter signs that otherwise meet all requirements of
this Section provided that the Sign Area is not more than t\>1ce
the square footage allowed by this Section and that existed at
the time this Section became effective may be continued,
although it does not conform to all the provisions hereof,
provided that no structural or text alterations ate made thereto
I.and Ut'Hlopmt'nt Regulations
Cit~: of A n'ntura. Florida
Pal:C 9-21
Lmd De,'e1upment Regulations
City of Aventura., J.'lurida
and that all such Non-conforming Signs shall be completely
removed from the premises or made to conform by June 3,
2002.
2) N -conforming Signs that are caused to be relocated as a
lrect result of a governmental com' 'rnnation will be amortized
according to the schedule that would have applied to the
original location
The following Non-conforming Signs that existed at the time
this Section became effective may be continued, although it
does not conform to all the provisions hereof: provided that no
structural or text alterations are made thereto:
4) Monument signs located in residential districts
5) Residential, Hospital and Office Building Wall Signs;
6) Flagpoles ,hat existed at the time of the adoptio
Section.
Non-conforming Portable Signs, B , Flags, traffic hazard
, all paper win ' P ay Signs, and service station
pump advertising and promotional Signs, shall be removed
within three months of the effective date of this Section. All
illegal Signs shall be removed immediately,
(c) Other termination of Non-conforming Signs,
1) By abandonment - Abandonment of a Non-conforming Sign
shall terminate its Non-conforming status.
2) By damage or poor condition - The Non-conforming status of
a Sign shall cease whenever the Sign is damaged beyond 50
percent as determined by the City Manager from any cause
whatever, or to the extent the Sign becomes a hazard or
danger
3) Abandoned and damaged Signs, as described in this Section,
shall be removed by owners in accordance with the
requirements of this Section.
(d) Maintenance of Non-conforming Signs Non-conforming Signs
shall be maintained in a safe condition and may be repaired or
otherwise maintained provided the Sign structure is not moved,
altered or replaced; provided, however, that no repair or alteration
shall be made unless first approved by the City Commission, except
when an emergency repair is needed for preservation of public safety,
as certified by the Building Official and City Manager Unauthorized
repair or alteration will result in the termination of Non-conforming
status.
(e) Non-conformities created by amendments to this Sign Section.
Any Sign which becomes Non-conforming as a result of any
subsequent amendments to this Section shall be completely removed
from the premises, or altered to conform, not later than three vears
from the date such Sign becomes non-conforming.
(t) Registration Required- All Non-conforming Signs that are not
Page 9-22
~ 34-51 AVENTURA CODE
\,
,
b. Those signs that display services or products as opposed to the business name;
c. Nonresidential monument signs.
(2) Exception to amortization schedule.
a. Channel letter signs that otherwise meet all requirements of this article provided
that the sign area is not more than twice the square footage allowed by this article
and that existed at the time this article became effective may be continued,
although it does nut conform to all the provisions hereof, provided that no
structural or text alterations are made thereto and that all such nonconforming
signs shall be completely removed from the premises or made to conform by June
3, 2002.
b. Nonconforming signs that are caused to be relocated as a direct result of a
governmental condemnation will be amortized according to the schedule that
would have applied to the original location.
c. The following nonconforming signs that existed at the time this article became
effective may be continued, although it does not conform to all the provisions
hereof, provided that no structural or text alterations are made thereto:
1. Monument signs located in residential districts.
2. Residential, hospital and office building wall signs;
3. Flagpoles that existed at the time of the adoption of this article.
d. Nonconforming portable signs, banners, flags, traffic hazard signs, all paper
window display signs, and service station pump advertising and promotional
signs, shall be removed within three months ofthe effective date of this article. All
illegal signs shall be removed immediately.
(3) Other termination of nonconforming signs.
a. By abandonment: Abandonment of a nonconforming sign shall terminate its
nonconforming status.
b. By damage or poor condition: The nonconforming status of a sign shall cease
whenever the sign is damaged beyond 50 percent as determined by the City
Manager from any cause whatever, or to the extent the sign becomes a hazard or
danger.
c. Abandoned and damaged signs, as described in this article, shall be removed by
owners in accordance with the requirements of this article.
(4) Maintenance of nonconforming signs. Nonconforming signs shall be maintained in a
safe condition and may be repaired or otherwise maintained provided the sign
structure is not moved, altered or replaced; provided, however, that no repair or
alteration shall be made unless first approved by the City Commission, except when an
emergency repair is needed for preservation of public safety, as certified by the
Building Official and City Manager. Unauthorized repair or alteration will result in
the termination of nonconforming status.
Supp. No_ 2
CD34:30
CITY OF A VENTURA
COMMUNITY DEVELOPMENT DEPARTMENT
MEMORANDUM
TO: City Commission
FROM: Eric M. Soroka, City Manager
BY: Brenda Kelley, Community Development Director
DATE: April 14, 2000
SUBJECT: Wall Signs on Office Buildings
Non-Conforming Signs Pursuant to Section 901.11 (b) 3)
Land Development Regulations
Further to my memorandum of April 12, 2000, I have attached a list of existing office
building wall signs that are permitted to remain according to the LOR Section noted
above.
OFFICE BUILDING WALL SIGNS
NON-CONFORMING SIGNS PERMITTED TO REMAIN
BY SECTION 901.11 (b) 3)
LAND DEVELOPMENT REGULATIONS
Point East Professional Building
2 story building
17971 Biscayne Boulevard
Biscayne Medical Arts Center
4 stories
21110 Biscayne Boulevard
Aventura Corporate Center
(north building)
5 stories
20801 Biscayne Boulevard
Aventura Corporate Center
(south building)
5 stories
20801 Biscayne Boulevard
Mount Sinai North
1 story office building
19084 NE 29 Avenue
Dental Care Group
2 stories
2797 NE 206 Street
Mount Sinai Aventura
2 stories
2845 Aventura Boulevard
Police DptlAventura Medical Center
2 stories
2956 Aventura Boulevard
Washington Mutual
2 stories
18301 Biscayne Boulevard
Jaffe Office Building
2 stories
18999 Biscayne Boulevard
First Union Bank
3 stories
2925 Aventura Boulevard
1 existing wall sign
approximately 17 square feet in area
1 existing wall sign
approximately 27 square feet in area
2 existing wall signs
approximately 63 square feet each
1 existing wall sign
approximately 68 square feet
3 existing wall signs
approximately 22 square feet each
4 existing wall signs
1 on south side, approx. 15.5 square feet
3 on east side, 24 square feet, 22 square
feet and 13.5 square feet
2 existing wall signs
approximately 114 square feet each
2 existing wall signs
approximately 54 square feet each
1 existing wall sign
approximately 160 square feet
8 existing wall signs
2 on south side, approx. 110 square feet
and 105 square feet
1 on east side, approx. 64 square feet
1 on north side, approx. 80 square feet
3 on west side, 60 square feet, 64 square
feet and 110 square feet
3 existing wall signs
approximately 47.5 square feet each
Building Name/Location
Turnberry Bank
3 stories
20295 NE 29 Place
City National Bank
10 stories
2875 NE 191 Street
3 existing wall signs
approximately 175 square feet on west
side
63 square feet on north and south sides
2 existing wall signs
approximately 656 square feet each
City of North Miami Beach, Florida
COUNCILMAN KENNETH A. DE FILLlPO
April 7, 2000
MAYOR ARTHUR SNYDER
& COMMISSIONERS
CITY OF A VENTURA
2999 NE 191 ST, STE 500
A VENTURA FL 33180
Dear Mayor and Commissioners:
Enclosed is a copy of an article that appeared in The Miami Herald on March 9,
2000, suggesting that Florida's auto emissions testing program be eliminated or
drastically reduced.
We are all aware that clean air is essential to our quality of life and for the future
generations.
I am asking for your support and assistance and urging you to retain the emissions
testing program as stated in the resolution.
Sincerely,
/"1
~/~~
KENNETH A. DE FILLIPO
COUNCILMAN
KAD:ss
Enclosures
c: Mayor and Council, w/at
17011 N.E. 19 Avenue' North Miami Beach. Florida 33162-3100' (305) 948-2986' FAX (305) 787-6036' INTERNET 10 JOWS54F@Prodi9y.Com
QIifu lIf ~lIrf4 JlIthttui ~eat4, JlfllIri~a
17011 N.E. 19th AVENUE
NORTH MIAMI BEACH. FLORIDA 33162
(305) 948-2986
FAX (305) 787-6036
From the Office ot
VICE MAYOR
KENNETH~Pfl FHi;<2000
MAYOR ARTHUR SNYDER
& COMMISSIONERS
CITY OF A VENTURA
2999 NE 191 ST, STE 500
A VENTURA FL 33180
Dear Mayor and Commissioners:
With reference to my letter of April 7, 2000, concerning Florida auto emissions, I
regret that we failed to include a copy of the enclosed news article which was
mentioned.
I apologize for this error and look forward to your cooperation on this issue.
Sincerely,
K~::f~
KENNETH A. DE FILLIPO
COUNCILMAN
KAD:ss
Enclosures
c: Mayor and Council, w/at
Emissions tests
can end, EPA says;
..
,"
-
~...
Decision affects Dade, Broward}
, Federal regulators have giv-
qn Florida tentative approval
for the elimination of auto
emissions tests in Miami-Dade,
Broward and other counties
along the state's Atlantic Coast,
a state environmental official
said Wednesday.
The Environmental Protec-
tion Agency's approval of the
plan puts the future of the
emissions tests into the hands
of this year's Florida Legisla-
ture, said Dotty Diltz, chief of
air monitoring for the state's
Department' of Environmental
Protection.
With approval of the EPA,
the state is free to stop testing
cars in Miami-Dade, Broward,
Palm Beach and Duval coun-
ties,where air quality now
meets federal standards, Diltz
said. (Monroe County does not
conduct auto emission tests.)
The EPA decision won't be fi-
nal until later this spring - af-
ter the decision is published in
the Federal Register and the
.
public is given 30 days to com~
ment on it. The Federal Regis'.
ter notice is expected to be,
published in a week or two.
The EPA's tentative decisio!\
does not include the Tampa.
Bay area - Pinellas and Hill...
borough counties - where air
quality is stilI not up to snuff.
The state DEP plans to continl
ue requiring emissions tests,
there. - ~
. :".
. State Sen. Ron Klein, D-Boca
Raton; Rep. Edward Healey, D'
. Palm Springs, and Rep. Jim
Fuller, R-Jacksonville, are
sponsoring bills to eliminate
the tests. If the legislation pass,.
es, the tests would end June 30.
Their legislation is opposed
by the American Lung Associ~
tion of Florida and the two
companies that have state con-
tracts to run the tests, Gordon~
Darby and Envirotest Technol-
ogies. Emissions tests are a $50-
million-a-year operation state-
wide.
..
~ ~(M~'ql 'JdJo '.;
TTM
PROPOSAL FOR THE CITY OF AVENTURA, FLORIDA
Initiative
Public Access Defibrillation Program and Deployment for the citizens
and community of A ventura.
Goal
IT IS ABOUT SAVING LIVES. To service all Aventura community
members and condominium residents in the event of Sudden Cardiac
Arrest (SCA) in a more timely, efficient way while awaiting EMS
response.
History
About 250,000 people die each year (:I: 700 a day) from Sudden
Cardiac Arrest (SCA). Cardiac arrest results from an abnormal heart
rhythm, most commonly ventricular fibrillation.
When cardiac arrest occurs, the victim loses consciousness, has no pulse, and stops
breathing. Death follows within minutes, brain death within 4-6 minutes.
Defibrillation is the only known treatment and therapy for ventricular fibrillation.
For every minute that passes, survivability decreases by 10%.
Public Access Defibrillation is now made possible with a new generation
(technology) that makes it possible for trainees and lay rescuers to deliver the
defibrillation. This is an important way to save lives ofthousands of sudden cardiac
arrest victims even with the most effective EMS system response. Nationally,
effective and efficient EMS response time is between 9-14 minutes.
Complient, the nation's leading environmental health and safety services organization
has a turnkey solution - THE EMERGENCY MEDICAL RESPONSE SYSTEM.
The EMRS is an integrated system that can handle up to 95% of sudden
emergencies, and allows immediate response to the victim within seconds to a few
minutes. This response is delivered by trained lay-persons or the employees at the
site.
www.complient.com
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Liability
The growing trend toward the Public Access Device Program may eventually
increase liability for companies and facilities that are not equipped with AED's and
are prepared to respond appropriately to a Sudden Cardiac Arrest (SCA).
This is an increased standard and level of care.
In 1997, the State of Florida enacted the Florida Public Access Defibrillation Law
that states that any person who uses an AED not be held liable for any civil damages
as the result of such care.
An automatic external defibrillator may be used by any person (trained) for the
purpose of saving the life of another person in cardiac arrest.
See Attachment #1
Another consideration is one of duty. Duty in negligence law is defined as "an
obligation to which the law will give recognition and effect, to conform to a
particular standard of conduct toward another". In the absence of legal duty, no
liability can be imposed. From Defibrillators Enter the Business Marketplace
Occupational Health and Safety. August 1997.
See Attachment #2
Additional immunity from liability extends from the "Good Samaritan Act".
See Attachment #3
COMPigwT'"
International Medical Consulting
~
,-
hltp:Jlwww.medicalconsulting.net/docsIPADSwnmlFLSumm.htmJ
INTERNATIONAL MEDICAL CONSULTING, INC.
~;/aJ,nJr..flh
~V,H'hUs'ltilll. Dislr,'I'to} COluN:bia - !..'III dotJ. I:"'J~hl~d
Florida Public Access Defibrillation Law Summary
On April 30, 1997, the Governor of the State of Florida signed House Bill 411 which
"provides legislative intent that automatic external defibrillators may be used by any
person...and providing immunity from liability for certain persons". This bill repeals
Section 401.291 of the Florida Statutes and amends Section 768.13. The following is a
summary.
[Definition of the AEDl [Requirements of Personnel and Notification] fTraininq Requirements] [Liabilitv]
Definition of the AED
Not discussed in this legislation.
Reauirements of Personnel and Notification
The owner of the AED "is encouraged to register with the local emergency medical
services medical director the existence and location of the AED."
"Any person who uses an AED is required to activate the emergency medical services
system as soon as possible.....
Trainina Reauirements
"All persons who have access to or use an automatic external defibrillator must
obtain appropriate training, to include completion of a course in cardiopulmonary
resuscitation or successful completion of a basic first aid course that includes
cardiopulmonary resuscitation trainin, and demonstrated proficiency in the use of an
automatic external defibrillator."
Liabilitv
Any person who uses an AED "shall not be held liable for any civil damages as the
result of such care or as a result of any act or failure to act in providing or arranging
further medical treatment where the person acts as an ordinary reasonably prudent
person would have acted under the same or similar circumstances."
Other
"It is the intent of the Legislature that an automatic external defibrillator may be used
by any person for the purpose of saving the life of another person in cardiac arrest."
-END-
,,-,- .
IIITERllAno~LIIEDlCALcaNSUUlllG
"The connection betW'1'en compalljes
and the people !.bey care for"
1,.,;'
917199 11:32 AM
a a.,AM~..1- 1/).
Defibrillators Enter the
Business Marketplace
An evolving legal trend may ultimately lead to higher risks for businesses
that fail to purchase and use AEDs.
ow, a /leW wave of small.
portable defibrillators is
being developed....Man-
ufacturers even envision a
day when the devices. tech-
/Iically known as aulomatic
external defibrillators and
emoting $2,500 to $4,000 each, will be as
comm01l as fire extinguishers.
The Wall Street Journal
Aug. 5. 1996
In 1990, the American Heart Ass-
ociation challenged the medical device
industry to develop a state-of-the-art auto-
maled external defibrillator (AED)
capable of being used by virtually anyone.
As The Wall Street Journal noted, the
industry responded in a manner leading to
significant advances in AED technology.
Smaller. lighter, cheaper, easier, sturdier
and more effective AEDs are now avail-
able, As a result, many businesses are now
considering the benefits associated with
the purchase of AEDs for use by trained
individuals on site.
Despite technological progress, (on lia~
bilit)' r~ars create impediments to the wide-
spread deployment and use of these life-
sa\'ing machines within the commercial
business environment In other words,
bdore AEDs can become "as common as
tire extinguishers," legal concerns must be
acknowledged. understood. and addressed.
AEDs In the Land 01 Torts
One significant obstacle to large-scale
AED distribution in the business world is
fear of exposure to negligence liability
lawsuits, Would~be AED purchasers app-
eJr [0 perceive heightened legal risk flow-
ing from the acquisition, deployment, and
use at the device,
Prudent businesses must certainly ana-
lyze relative risks and benefits when con-
sidering whether to adopt or not adopt
AED programs. In this context, two recent
jury verdicts suggest an evolving legal
trend that may ultimately lead to higher
risks for businesses that fail to purchase
and use AEDs, A basic negligence primer
helps explain why.
In order for a plaintiff to successfully sue
an AED purchaser or user, four essential
elements must be proven. These include
duty, breach of duty, causation of injury, and
legally recognized damages. The failure to
prove anyone of these elements is fatal to a
plaintiff's case, The element of greatest
import in the AED context is that of duty.
Duty in negligence law is defined as
"an obligation, to which the law will give
recognition and effect, to conform to a
particular standard of conduct toward an-
other," In the absence of a legal duty, no
liability can be imposed, In other words,
one cannot be successfully sued for failing
to perform an act in the absence of a
legally mandated obligation to .perfonn
the act in the first place,
In the context of duty, businesses con-
templating the purchase of AEDs must
consider whether a legal obligation to ren.
der medical aid to patrons exists and, if so,
the scope of the obligation. In effect, this
constitutes an analysis of legal risk.
While bystanders generally have no
legal obligation to provide affirmative
medical aid to ill or injured persons, the
existence of certain relationships between
a victim and one in a position to render aid
may create a duty to provide assistance.
Business sectors including common car-
riers (airlines, passenger rail lines, cruise
ship lines, etc,), innkeepers (hotels,
motels, etc.), and commercial business
establishments open to the public (most
other businesses) may be compelled by
law to render a minimum level of first aid
BIf RICHARD A. LAZAR
care and to time.ly summon outside emer-
gency medical assistance. The scope of
this duty is generally defined by appellate
court case law, trial courts and juries,
Historically, appellate courts have been
generally resistant to requiring common
carriers, innkeepers, and commercial busi-
nesses faced with ill or injured patrons to
do more than summon an ambulance, Two
recent trial court verdicts, however, sug-
gest an evolving trend toward higher stan-
dards requiring the protection of customer
health and safety in the commercial busi-
ness environment.
In June 1996. a Florida jury found Busch
Gardens negligent for not properly training
its employees to provide emergency care
and for failing to have essential medical
equipment, including a defibrillator. on the
premises. The jury awarded the plaintiff
$500,000 in damages for the resulting
death of her 13-year-old daughter.
In another recent case, a federal judge
found Lufthansa Airlines negligent for
failing to timely provide treatment for a pas-
senger suffering a cardiac emergency and
awarded $2,7 million in damages. In light of
this case and a variety of other factors, the
Federal Aviation Administration is currently
considering the mandatory deployment uf
AEDs on all commercial aircraft.
While it is unclear whether the Busch
Gardens and Lufthansa verdicts will survive
court appeals, modem advances in AED
technology coupled with low cost and the
proven ability of these devices to save lives
may persuade more and more trial and
appellate courts to sanction businesses that
fail to adopl AED programs. Pruden< busi-
nesses can avoid this legal risk by pur.
chasing AEDs and training employees in
their use.
Balancing Risks and Benefits
Legal risks associated with adoption and
implementation of business-based AED
Reprinted Irom Occupational Health & Safely, Augusl1997
#. -liAJ, IYJf"'.J- If ~
FL ST s 768.13
West's F.S.A. ~ 768.13
Page 1
WEST'S FLORIDA STATUTES ANNOTATED
TITLE XLV. TORTS
CHAPTER 768. NEGLIGENCE
PART I. GENERAL PROVISIONS
Copr. "West Group 1999. All rights reserved.
Current through End of 1999 1st Reg. Sess.
768.13. Good Samaritan Act; immunity from civil liability
(1) This act shall be known and cited as the "Good Samaritan Act. "
(2Xa) Any person, including those licensed to practice medicine, who gratuitously and in good faith
renders emergency care or treatment either in direct response to emergency situations related to and
arising out of a state of emergency which has been declared pursuant to s. 252.36 or at the scene of
an emergency outside of a hospital, doctor's office, or other place having proper medical equipment,
without objection of the injured victim or victims thereof, shall not be held liable for any civil
damages as a result of such care or treatment or as a result of any act or failure to act in providing or
arranging further medical treatment where the person acts as an ordinary reasonably prudent person
would have acted under the same or similar circumstances.
(b) 1. Any hospital licensed under chapter 395, any employee of such hospital working in a clinical
area within the facility and providing patient care, and any person licensed to practice medicine who
in good faith renders medical care or treatment necessitated by a sudden, unexpected situation or
occurrence resulting in a serious medical condition demanding immediate medical attention, for
which the patient enters the hospital through its emergency room or trauma center, shall not be held
liable for any civil damages as a result of such medical care or treatment unless such damages result
from providing, or failing to provide, medical care or treatment under circumstances demonstrating a
reckless disregard for the consequences so as to affect the life or health of another.
2. The immunity provided by this paragraph does not apply to damages as a result of any act or
omission of providing medical care or treatment:
a. Which occurs after the patient is stabilized and is capable of receiving medical treatment as a
nonemergency patient, unless surgery is required as a result of the emergency within a reasonable
time after the patient is stabilized, in which case the immunity provided by this paragraph applies to
any act or omission of providing medical care or treatment which occurs prior to the stabilization of
the patient following the surgery; or
b. Unrelated to the original medical emergency.
3. For purPoses of this paragraph, "reckless disregard" as it applies to a given health care provider
rendering emergency medical services shall be such conduct which a health care provider knew or
should have known, at the time such services were rendered, would be likely to result in injury so as
to affect the life or health of another, taking into account the following to the extent they may be
present;
a. The extent or serious nature of the circumstances prevailing.
b. The lack of time or ability to obtain appropriate consultation.
Wesf~V\T.
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WestlaV\
FL ST s 768.13
Page 2
c. The lack of a prior patient-physician relationship.
d. The inability to obtain an appropriate medical history of the patient.
e. The time constraints imposed by coexisting emergencies.
4. Every emergency care facility granted immunity under this paragraph shall accept and treat all
emergency care patients within the operational capacity of such facility without regard to ability to
pay, including patients transferred from another emergency care facility or other health care
provider pursuant to Pub.L. No. 99-272, s. 9121. [FN1] The failure of an emergency care facility to
comply with this subparagraph constitutes grounds for the department to initiate disciplinary action
against the facility pursuant to chapter 395.
(c) Any person who is licensed to practice medicine, while acting as a staff member or with
professional clinical privileges at a nonprofit medical facility, other than a hospital licensed under
chapter 395, or while performing health screening services, shall not be held liable for any civil
damages as a result of care or treatment provided gratuitously in such capacity as a result of any act
or failure to act in such capacity in providing or arranging further medical treatment, if such person
acts as a reasonably prudent person licensed to practice medicine would have acted under the same
or similar circumstances.
(3) Any person, including those licensed to practice veterinary medicine, who gratuitously and in
good faith renders emergency care or treatment to an injured animal at the scene of an emergency on
or adjacent to a roadway shall not be held liable for any civil damages as a result of such care or
treatment or as a result of any act or failure to act in providing or arranging further medical
treatment where the person acts as an ordinary reasonably prudent person would have acted under
the same or similar circumstances.
(4) Any person, including those licensed to practice medicine, who gratuitously and in good faith
renders emergency care or treatment by the use of or provision of an automatic external defibrillator,
without objection of the injured victim or victims thereof, shall not be held liable for any civil
damages as a result of such care or treatment or as a result of any act or failure to act in providing or
arranging further medical treatment where the person acts as an ordinary reasonably prudent person
would have acted under the same or similar circumstances.
CREDlT(S)
1999 Electronic Pocket Part Update
Amended by Laws 1997, c. 97-34, ~ 3, elf. April 30, 1997; Laws 1997, c. 97- 102, ~ 1164, efr. July I,
1997.
[FN1] See 42 U.S.C.A. ~ 1395dd.
< General Materials (GM) - References, Annotations, or Tables>
HlSTORICAL AND STATUTORY NOTES
1999 Electronic Pocket Part Update
Laws 1997, c. 97-34, ~ 3, efr. April 30, 1997, added subsec. (4).
Laws 1997, c. 97-102, efr. July 1, 1997, removed gender-specific references applicable to human
.0......----
Westlaw:
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Copr." West 2000 No Claim to Orig. U.s. Gevt. Works
Westlav
FL ST s 401.2915
West's F.B.A. ~ 401.2915
WEST'S FLORIDA STATUTES ANNOTATED
TITLE XXIX. PUBLIC HEALTH
CHAPTER 401. MEDICAL TELECOMMUNICATIONS AND TRANSPORTATION
PART III. MEDICAL TRANSPORTATION SERVICES
Page 1
Copr. C West Group 1999. All rights reserved.
CUlTent through End of 1999 1st Reg. Sess.
401.2915. Automatic external defibrillators
It is the intent of the Legislature that an automatic external defibrillator may be used by any person
for the purpose of saving the life of another person in cardiac arrest. In order to ensure public health
and safety:
(1) All persons who have access to or use an automatic external defibrillator must obtain appropriate
training, to include completion of a course in cardiopulmonary resuscitation or successful completion
of a basic first aid course that includes cardiopulmonary resuscitation training, and demonstrated
proficiency in the use of an automatic external defibrillator;
(2) Any person or entity in possession of an automatic external defibrillator is encouraged to register
with the local emergency medical services medical director the existence and location of the
automatic external defibrillator; and
(3) Any person who uses an automatic external defibrillator is required to activate the emergency
medical services system as soon as possible upon use of the automatic external defibrillator.
<General Materials (GM). References, Annotations, or Tables>
HISTORICAL AND STATUTORY NOTES
1997 Main Volume
Derivation:
Laws 1997, c. 97.34, ~ 1.
Prior Laws:
Fla.st.1995, ~ 401.291.
CROSS REFERENCES
Immunity from civil liability for use of automatic external defibrillator, see ~ 768.13.
West's F. S. A. ~ 401.291q
FL ST ~ 401.2915
END OF DOCUMENT
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Westlaw
Implementation
It is the sole intent of Complient to partner, collaborate, cooperate and assist the City
of A ventura in the implementation of a Public Access Device Initiative.
It is our proposal that we vertically and horizontally integrate a PAD program with
the inclusion of Education to all security agencies that protect and serve the
condominium associations, buildings, and residents in the City of A ventura.
We will host a meeting in conjunction with the City Commission and Police
Department of A ventura for any and all employed security agencies operating within
the City.
The sole purpose of this meeting is to educate all involved on PAD and the
associated objectives. Above all, the intent to create the need for accessibility of
automatic external defibrillators within the City. This can be done either through
purchase of the EMRS by the contracted, employed security agency or through
purchase by the actual condominium association (with training provided to the
Contractor, employed security agency, who will act as the first responder while
activating EMS).
COMPi:gNT"
Summary
Complient's Emergency Medical Response System is a totally comprehensive, readily and
easily accessible to use svstem.
We welcome the opportunity to partner with the City of Aventura in this initiative, and
welcome any ideas, suggestions, or alternatives that the Commission feels appropriate.
Thanking you in advance for your time and consideration. I eagerly await hearing from you
regarding this life-saving project.
MELODY M. COMBS, RN
Account Representative
Complient/Miami
COM~T"