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2000-21 ORDINANCE NO. 2000-21 AN ORDINANCE OF THE CITY OF AVENTURA, FLORIDA, AMENDING CHAPTER OF THE CITY CODE BY ADDING SECTIONS I THROUGH 15; PROVIDING THE TERMS AND CONDITIONS FOR THE ERECTING, CONSTRUCTING, AND MAINTAINING 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 REPEALER, SEVERABILITY, CODIFICATION; PROVIDING FOR AN EFFECTIVE DATE; AND FOR OTHER PURPOSES. 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 manage the Public Rights-of-Way; and WHEREAS, it is the intention of the City Commission to recognize thc 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 Ordinance No. 2000-21 Page 2 WHEREAS, it is the intent of the City Commission to exercise the City's authority over the Telecommunications Service Providers' 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 on a competitively neutral and nondiscriminatory basis in granting access for use of the City's Public Rights-of-Way; and WHEREAS, the Public Rights-of-Way subject to the control of the City (1) are criticalto the travel of persons and the transport of goods and other tangibles in the business and social life of the community by all citizens; (2) are a unique and physically limited resource and proper management by the City is necessary to maximize efficiency, minimize the costs to the taxpayers of the foregoing uses, and to minimize the inconvenience to and negative effects upon the public from such facilities' construction, placement, relocation, and maintenance in the Public Rights-of-Way; (3) are intended for public uses and must be managed and controlled consistently with that intent; and Ordinance No. 2000-21 Page 3 WHEREAS, it is the intent of the City to exercise its authority to impose fees and adopt reasonable roles and regulations to the fullest extent allowed by Federal and State law. BE IT ORDAINED BY TIlE CITY COMMISSION OF TIlE CITY OF AVENTURA, FLORIDA, AS FOLLOWS: SECTION 1. Creation. Sections through are hereby created as follows: Section 1. Title. This Ordinance shall be known and may be cited as the City of Aventura Telecommunications Ordinance. Section 2. Intent and Purpose. It is the intent of the City of Aventura to promote the public health, safety, and gcn~rai welfare by providing for the use of the City's Public Rights-of-Way, to adopt and administer reasonable regulations consistent with State and Federal Law, including Section 337.401, Florida Statutes, and the City's home-rule authority in accordance with the provisions of the Telecommunications Act of 1996, to provide for the payment of compensation and other consideration by a Telecommunications Service Provider to the City for the cost of maintaining the Public Rights-of-Way and for the privilege of using the City's Public Rights-of-Way for construct'mg and maintaining Telecommunications Fa¢ilitiesg and to establish the reasonable regul&t'lons concerning the use o£the Public Rights-of-Way by all Telecommunications Service Providers granted aRer the effective date of this Ordinance. In regulating its Public Rights-of-Way, thc City shall be govem~ by and shall comply with all applicable Federal, State and local laws and regulations. Ordinance No. 2000-21 Page 4 Section 3. Definitions. 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 permit that might be granted hereunder shall be given the meaning set forth in the Communications Act of 1934, 47 U.S.C. § 151 et seq., as 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. "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. B. "Registrant" or "Facility Owner" shall mean a Telecommunications Company that has Registered with the City in accordance with the provisions of this Ordinance. C. "Registration" and "Register" shall mean the process described in Section 4 whereby a Telecommunications Provider provides certain information to the City. D. "Gross Receipts" shall mean all cash, credits or property of any kind or nature, with deductions for bad debt expense, reported as revenue items to the Registrant's audited income statements arising from, or attributable to Recurring Local Service Revenues of Registrant within the City. The City reserves the fight to amend the definition contained herein as permitted by applicable Law. The definition herein shall not be applicable as of October 1, 2001; or such other date as provided by law, provided that Section 337.401, Florida Statues is amended effective October 1, Ordinance No. 2000-21 Page 5 2001, as set forth in Florida Senate Bill 1338, enacted by the Florida Legislature on May 5, 2000. E. "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. § 151 et seq. as amended by the Telecommunications Act of 1996, Pub L. No. 104-104 § 101 (a), 110 Stat. 70 codified at 47 U.S.C., and all orders, rules, tariffs, guidelines and regulations issued by the Federal Communications Commission or the governing State authority pursuant thereto. "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. G. "PSC" means the Florida Public Service Commission. H. "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, public 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 and may lawfully grant access to pursuant to applicable law. "Public Rights-of-Way" shall 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. Ordinance No. 2000-21 Page 6 I. "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 sexwices; (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 vixtual or physical, or any other method of providing such services; (4) revenues from the sale of local services for resale; 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 Registrant 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 carders 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 radio, or pagers or paging service, or related ancillary services; (6) public Ordinance No. 2000-21 Page 7 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 fiat-rated charges for similar services. This definition shall not be applicable as of October 1, 2001, or such other date as provided by law, provided that Section 337.401, Florida Statutes is amended effective October 1, 2001, as set forth in Florida Senate Bill 1338, enacted by the Florida Legislature on May 5, 2000. J. "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. K. "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. L. "Tdecommunications Service Provider" shall refer to any person providing Telecommunications Services, as defined herein, through the use ora Telecommunications Facility. M. "Telecommunications Facilities", "Facilities" or "Systems" means cables, conduits, converters, splice boxes, cabinets, handholes, manholes, vaults, equipment, drains, surface location markers, appurtenances, and related facilities located, to be located, used, or to be used, by a Telecommunications Service Provider in the Public Rights-of-Way of the City and used or useful for Ordinance No. 2000-21 Page 8 the transmission of Telecommunications Services. Section 4. Registration. A. Each Telecommunications Service Provider that desires to erect, construct, install, maintain, repair, expand, or use any Telecommunications Facilities in, under, over or across any Public Right-of-Way in the City shall first Register with the City in accordance with the terms of this Ordinance. As to Toll Service providers, such Registration shall be accepted by the City as an ordinance of the City Commission. B. Any Telecommunications Provider desiring to use the Public Right-of-Way shall file a Registration with the City which shall include the following information: (1) identify of the applicant and name, address and telephone number of applicant's primary contact person in connection with the Registration; (2) general description of the services to be provided (in other words, if applicant is or expects to be a Local Service Provider and/or a Toll Service Provider); (3) evidence of the insurance coverage required under this Ordinance and acknowledgment that Registrant has received and reviewed a copy of this Ordinance; provided that such acknowledgment shall not be deemed an agreement; (4) a copy of Federal and/or State Certification authorizing the applicant to provide Telecommunications Services. C. The City will review the information submitted by the applicant. Such review will be by the City Manager or his or her designee. If the applicant submits information in accordance with Section B above, the Registration shall be effective and the City shall notify the applicant of the Ordinance No. 2000-21 Page 9 effectiveness of Registration in writing. If the City determines that the information has not been submitted in accordance with Section 4B above, the City shall notify the applicant of the non- effectiveness of Registration, and reasons for the non-effectiveness, in writing. The City shall so reply to an applicant within thirty (30) days after receipt of registration information from the applicant. A Registrant may cancel a Registration upon written notice to the City noticing that it will no longer provide Local Service or Toll Service using Public Rights-of-Way in the City and will no longer need to pull permits to perform work in Public Right-of-Way. D. A Registration shall not convey title, equitable or legal, in the Public Right-of-Way. Registrants may only occupy Public Rights-of-Way for Telecommunications Facilities. Registration does not excuse a Telecommunications Provider from obtaining appropriate access or pole attachment before locating its Facilities on another Person's facilities. Registration does not excuse a Provider from complying with all applicable City ordinances, including this Ordinance. E. Each applicant for a Registration or renewal thereof shall submit a non-refundable application fee with the application in the amount of $2,500; provided that the fee may be credited against fees due under Section 5 below. Fee amounts shall be established by Resolution of the City Commission but in no event shall exceed the City's costs incurred in reviewing the application F. Registration with the City shall be nonexclusive. Registration does not establish any priority for the use of the Public Right-of-Way by a Registrant or any other Registrants. Registrations are expressly subject to any future amendment to or replacement of this Ordinance and fu~er subject to any additional City Ordinances, as well as any state or federal laws that may be enacted during the term of the Registration. Ordinance No. 2000-21 Page 10 Section 5. Fees and Payments. A. In consideration for the rights, privileges and permission granted hereunder, a Registrant hereunder shall pay to the City annually a sum equal to one percent (1%) of Gross Receipts of the Registrant 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 Registrant. In the event that applicable law currently permits or is amended to permit the City to collect a fee higher than one percent (1%), or permits the City to calculate the fee on revenues not specified herein, the Registrant agrees to increase, following written notice fromthe City, its 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 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, with such payments made within twenty (20) days following the end of each calendar quarter. Payments received after the 31a day shall be subject to interest at the maximum allowed by law. B. In the event a Registrant 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 Registrant 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 Ordinance No. 2000-21 Page 11 physical use of the Public Rights-of-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 Public Rights-of-Way; (2) The reasonable cost of the regulatory activity of the City; 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. Notwithstanding anything herein to the contrary, the City shall at all times hereby require the maximum compensation allowed under applicable law. D. Except to the extent prohibited by applicable law: (1) the fee payments to be made pursuant to this Section shall not be deemed to be in the nature of a tax; (2) such fee payments shall be in addition to any and all taxes ora general applicability; (3) a Registrant shall not have or make any claim for any deduction or other credit of all or any part of the amount of said fee payments from or against any of said City taxes or other fees or charges of general applicability which a is required to pay to the City, except as required by Law; and (4) the fee specified herein is the minimum Ordinance No. 2000-21 Page 12 consideration for use of the Public Rights-of-Way, including all public easements, for the purpose of installing and maintaining a Telecommunications Facility. E. The payments required under this Section shall not apply as of October 1, 2001, or such other date as provided by law, provided that Section 337.401, Florida Statutes is amended effective October 1,2001, as set forth in Florida Senate Bill 1338, enacted by the Florida Legislature on May 5, 2000. Section 6. Reports and Records. A. The City may, at its option, upon sixty (60) days notice to the Registrant, but in no event more often than once per year, examine the records and accounting files, and such other books and records, if suer records relate to the calculation of fee payments or any other payments due to the City under the terms ofthis Ordinance. Thc examination of such books, accounts, records or other materials necessary for determination of compliance with the terms, provisions, and requirements of this Ordinance shall be during regular hours of business of the Registrant at an office of the Registrant 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 Registrant in excess of five percent (5%), Registrant shall pay all reasonable costs, fees and expenses of the audit. This Section shall not apply for periods after October 1, 2001 or such other date as provided by law, provided that Section 337.401~ Florida Statutes is amended effective October 1,2001, as set forth in Florida Senate Bill 1338, enacted by the Florida Legislature on May 5, 2000. B. Upon reasonable request, a Registrant shall provide the following documents to the Ordinance No. 2000-21 Page 13 City as received or filed: (1) Any pleadings, petitions, notices, applications, communications, reports and documents, and responses thereto, which may directly impact the obligations under this Ordinance. (2) Any request for protection under bankruptcy laws, or any judgment related to a declaration of bankruptcy. C. In addition, the City may, at its option, and upon reasonable notice to the Registrant, inspect the Facilities in the Public Rights-of-Way to ensure the safety of its residents. D. The City shall keep any documentation, books and records of the Registrant confidential to the extent required under Florida Statutes. Section 7. Underground Installation; Relocation. A. To the extent required by applicable FPSC rules and regulations, a Registrant shall install its Facilities underground. B Every Registrant which places or constructs Telecommunications Facilities underground shall maintain appropriate participation in the regional notification center for subsurface installations. 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 Registrant or its agent, be removed or relocated by such Registrant at its own expense except as explicitly provided under Ordinance No. 2000-21 Page 14 Section 337.403, Florida Statutes. The City Manager may waive or extend the time within which a Registrant shall remove or relocate a Telecommunications Facility, for good cause shown. D. Subject to Section 337.403, Florida Statutes, 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 Facility owner 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 may proceed to cause the Telecommunications Facility to be removed. The expense thereby incurred except as provided in Section 337.403(1)(a)- (c), shall be paid out of any money available therefor, and such expense shall be charged against the owner of the Telecommunications Facility and levied, collected and paid to the City. E. Subject to Section 337.403, Florida Statutes, 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 file an appeal with the City Commission to contest the reasonableness of the order. Upon receipt ora written appeal, the City Commission shall place the matter on the Commission's agenda for consideration within forty-five (45) working days. Should the owner or the owner's representative not appear, the determination ofthe cost to the owner shall be final, in accordance with Section 337.404, Florida Statutes. 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. Ordinance No. 2000-21 Page 15 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 reasonable discretion may determine to be necessary, appropriate or useful in response to any public health or safety emergency. If circumstances permit, the City shall attempt to notify the owner of the Facility, if known, prior to cutting or removing a Facility and shall notify the owner of the Facility, if known, after cutting or removing a Facility. H. Upon abandonment of a Facility within the Public Rights-of-Way of the City, the owner of the Facility shall notify the City within ninety (90) days. Following receipt of such notice, the City may direct the Facility owner 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 welfare. In the event that the City does not direct the removal of the abandoned Facility by the owner of the Facility, such owner, 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. I. Notwithstanding anything to the contrary, a Facility owner agrees to provide the City, within thirty (30) days of filing or receipt of such, any document that may prevent compliance with the requirements of a permit in connection with the installation, construction or maintenance of its Facilities, or use of Facilities in the Public Right-of-Way. This obligation shall only extend to such work in the Public Right-of-Way for which a Facility owner has applied for, or obtained a permit f~om the City. Section 8. Use of Rights-of-Way. A. A Facility owner agrees at all times to comply with and abide by all applicable Ordinance No. 2000-21 Page 16 provisions of the State statutes and local laws including, but not limited to, applicable zoning regulations not inconsistent with State and Federal laws. B. Except in the case of an emergency, which shall include without limitation an out of service condition affecting 911 service, and which shall require subsequent notification to the City, no Telecommunications service provider shall construct any Facility on, over, above, along, upon, under, across, or within any Public Right-of-Way which disrupts the Public Rights-of-Way without first filing an application with and obtaining a permit from the City therefor, pursuant to applicable permitting requirements of the City, including but not limited to Section 28-2 of the City Code, 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 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. C. As part of any permit application, the Facility owner shall provide a proposal for construction of the Telecommunications Facility that sets forth at least the following: (1) The location of the proposed Facility, including a description of the feet of plant to be installed, where it is to be located, and the approximate size of Facilities and equipment that will be located in, on, over, or above the Public Rights-Of-Way. (2) A description of the manner in which the System will be installed (i.e. anticipated construction methods and/or techniques), the time required to construct the System, a maintenance of traffic plan for any disruption of the Public Rights-of-Way, including information on the ability of the Public Rights-of-Way to accommodate the proposed System, if available (such Ordinance No. 2000-21 Page 17 information shall be provided without certification as to correctness, to the extent obtained from other users of the Public Rights-of-Way). Also, if appropriate given the System proposed, an estimate of the cost of restoration to the Public Rights-of-Way. Such plan shall include the timetable for construction for each phase of the project, and the areas of the City which will be affected. D. The City may request such additional information as it finds reasonably necessary to review an application for a permit to perform work in the Public Rights-of-Way. The City shall have the power to prohibit or limit the placement of new or additional facilities within the Public Rights-of- Way if there is insufficient space to accommodate all of the requests ofpermittees to occupy and use the rights-of-way. The City shall strive to the extent possible to accommodate all existing and potential users of the Public Rights-of-Way, but may prohibit or limit placement of new or additional facilities in any Public Right-of-Way as required because of condition of the Public Rights-of-Way, the protection of existing facilities in the Public Rights-of-Way, and future City plans for public improvements and development projects which have been determined by the City to be in the public interest. E. All 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 use of trenchless technology (i.e., directional bore method) for the installation of Facilities in the Public Rights-of-Way as well as joint trenching and/or the co-location of facilities in existing conduit is strongly encouraged, and should be employed wherever possible. The City may issue such rules and regulations concerning the installation and maintenance of a Telecommunications Ordinance No. 2000-21 Page 18 Facility in the Public Rights-of-Way, as may be consistent with applicable Law. F. 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. G. 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, 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. H. A Facility owner shall obtain any and all required permits and pay any and all required fees before commencing any construction on or otherwise disturbing any Public Rights-of-Way as a result of its construction, except as provided herein. The Facility owner shall, at its own expense, restore such property to as good a condition as existed prior to 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 Registrant, cause the repairs to be made at the Facility's owner expense. A permit from the City constitutes authorization to undertake only certain activities on Public Rights-of-Way in accordance with this Ordinance, and does not create a property right or grant authority to impinge upon the rights of others who may have an interest in the Public Rights-of-Way. Nothing herein shall prohibit the City from negotiating with a Facility owner for the installation of a City conduit in any open trench that may be permitted; or prohibit a Facility owner from exercising its rights under 47 U.S.C. Section 224. I. Ail ongoing installation, construction and maintenance of a Telecommunications Ordinance No. 2000-21 Page 19 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 the Facility owner, for compliance with this Ordinance, or any applicable provisions of the City Code. J. A Facility owner shall not place its Facilities so as to interfere unreasonably with any other person lawfully using the Public Rights-of-Way of the City. K. To the extent the installation of new facilities differs in any material respect from the plans delivered to the City during the permitting process, a Registrant shall deliver to the City, upon completion of any installation or construction of new facilities, as-built plans showing the location of such facilities, or other such plans acceptable to the City Manager. Such plans may be provided in digitized format or other format acceptable to the City Manager. The City will provide advance written notice to Registrants indicating the format desired. L. Suspension of Permits. Subject to Subsection M below, the City may suspend a permit for work in the Public Rights-of-Way for one or more of the following reasons: (1) violation of permit conditions, including conditions set forth in this Ordinance or other applicable provisions of the City Code or regulations governing use of Public Rights-of-Way; or (2) misrepresentation or fraud by Registrant in a Registration or permit application to the City; or (3) failure to relocate or remove facilities as may be lawfully required by the City. M. Final, written decisions of the City suspending a permit or denying an application for a Registration are subject to appeal. An appeal must be filed with the City within thirty (30) days of the Ordinance No. 2000-21 Page 20 date of the final, written decisions to be appealed. Any appeal not timely filed as set forth above shall be waived. Section 9. Compliance with Other Laws; Police Power. A Facility owner shall at all times be subject to and shall comply with all applicable Federal, State and local Laws. A Facility owner shall at all times be subject to all lawful exercises of the police power of the City, to the extent not inconsistent with applicable Laws. Section 10. Transfer of Control; Sale or Assignment. A. If the Registrant transfers or assigns its Registration incident to a sale or other transfer of the Registrant's assets, the transferee or assignee shall be obligated to comply with the terms of this Ordinance. Written notice of any such prospective transfer or assignment shall be provided to the City at least twenty (20) days in advance of the date of such transfer. In order for the transfer of Registration to be effective, such written notice must include the identity of the prospective transferee or assignee, evidence of insurance coverage and acknowledgment as required in Section 4 of this Ordinance. B. Notwithstanding anything in this Ordinance, pledges in trust or mortgages or other hypothecations of the assets of the Registrant to secure the construction, operation or repair of its Telecommunications Facilities may be made to any person without notice to the City. Any mortgage, pledge, lease or other encumbrance of the Telecommunications Facilities shall be subject and subordinate to the rights of the City by virtue of this Ordinance or other applicable law. Section 11. Insurance; Surety; Indemnification. A. A Facility owner shall at all times maintain the following liability insurance coverage Ordinance No. 2000-21 Page 21 insuring the Registrant and naming the City, its officers, boards, Commission, Commission members, agents and employees 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 Registrant's business in the City, in the minimum amounts (1) $250,000 for property damage in any one accident: (2) $500,000 for personal bodily injury to any one person: and (3) $1,000,000 for personal bodily injury in any one 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 (D) below. The City may require coverage and amounts in excess of the above minimums where necessary to reflect changing liability exposure and limits or where required by law. A Registrant may provide a portion of the insurance coverage required by Section 11 (A) through excess or umbrella policies of insurance and where such policies are in a form acceptable to the City's Risk Manager. C. A Registrant 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, the Facility owner shall immediately respond to all reasonable requests by the City for information with respect to the scope of the insurance coverage. D. All insurance policies shall further provide that any cancellation or reduction in Ordinance No. 2000-21 Page 22 coverage shall not be effective unless thirty (30) days' prior written notice thereof has been given to the City. A Registrant shall not cancel any required insurance policy without submission ofproofthat the Registrant has obtained alternative insurance satisfactory to the City which complies with this Ordinance. A Registrant that elects to self-insure all or a portion of the insurance coverage and limit requirements required by this Section 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 Registrant 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 Registrant is a "private self insurer' under the Workers Compensation Act. For purposes of this Section, "self-insure" shall also include a Registrant which insures through a "captive insurer" as defined in Section 628.901, Florida Statutes. E. A Registrant 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, regardless of whether the act or omission complained of is authorized, allowed or prohibited by this Ordinance, provided, however, that a Facility owner's obligation hereunder shall not extend to any claims caused by the misconduct or negligence of the City, its officials, boards, Commission, Commission members, agents or employees. In addition, and notwithstanding anything to the contrary, any Telecommunications service provider seeking initial or renewal registration on or after the effective date of this Ordinance shall indemnify and hold harmless Ordinance No. 2000-21 Page 23 the City, its officials, boards, Commission, Commission members, agents or employees from any claim arising by a third party under Federal or State law, provided, however, that Registrant's obligation hereunder shall not extend to any claims caused by the misconduct or negligence of the City, its officials, boards, Commission, Commission members, agents or employees. This provision includes, but is not limited to, the City's reasonable attorneys' fees incurred in defending against any such claim, suit or proceedings, claims arising out of copyright infringements or a failure by the Registrant to secure consents from the owners, authorized distributors, or providers of telecommunications services, and claims against the Registrant for invasion of the fight of privacy, defamation of any person, finn or corporation, or the violation or infringement of any copyright, trade mark, trade name, service mark or patent, or of any other fight of any person, firm, or corporation. City agrees to notify the Registrant, in writing, within a reasonable time of City receiving notice, of any issue it determines may require indemnification. Nothing in this Section shall prohibit the City from participating in the defense of any litigation by its own counsel and at its own cost if in the City's reasonable belief there exists or may exist a conflict, potential conflict or appearance of a conflict. Section 12. Construction Bond. A. Except in the case of an emergency, which shall include without limitation an out of service condition affecting 911 service, or as otherwise set forth in the City Code where a penuit may not be required, prior to performing any work in the Public Rights-of-Way, a Registrant shall establish in the City's favor a construction bond in an amount specified in an engineering permit or other authorization as necessary to ensure the Registrant's faithful performance of the construction or other Ordinance No. 2000-21 Page 24 work in the Public Rights-of-Way, in accordance with Section 510 of the Land Development Regulations of the City. The amount of the construction bond, if required, shall be as set forth in the engineering permit, and may be modified, in the City Manager's reasonable discretion, based on the cost of the construction to take place in the Public Rights-Of-Way, and any previous history of the Registrant concerning construction within the Public Rights-of-Way of the City. B. In the event a Registrant subject to such a construction bond falls to complete the work in a safe, timely and competent manner in accordance with the provisions of the permit, there shall be recoverable, jointly and severally from the principal and surety of the bond, any damages or loss suffered by the City as a result, including the full amount of any compensation, indemnification or cost of removal or abandonment of any property of the Registrant, or the cost of completing the work, plus a reasonable allowance for attorneys' fees, up to the full amount of the bond. C. 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 orA-1 in Best's Key Rating Guide, Property/Casualty Edition; shall be subject to the approval of the City Attorney; and shall provide that: "This bond may not be canceled, or allowed to lapse, until sixty (60) days after receipt by the City, by certified mail, return receipt requested, of a written notice from the issuer of the bond of intent to Ordinance No. 2000-21 Page 25 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, or at law or equity. F. The fights reserved to the City under this Section are in addition to all other rights of the City, whether reserved in this Ordinance, or authorized by other law, and no action, proceeding or exercise of a right with respect to the construction bond will affect any other fight the City may have. Section 13. Enforcement Remedies. A. In addition to any other remedies available at law or equity or provided in this Ordinance, the City may apply one or combination of the following remedies in the event a Registrant violates this Ordinance, or applicable local law or order related to use of the Public Rights-of-Way: ( 1 ) Failure to comply with the provisions of this Ordinance or other law applicable to users and/or occupants of the Public Rights-Of-Way, may result in imposition of penalties to be paid by the Registrant to the City in an amount of not less than One Hundred Dollars ($100.00) per day or part thereof that the violation continues. (2) In addition to or instead of any other remedy, the City may seek legal or equitable relief from any court of competent jurisdiction. B. Before imposing a fine pursuant to this Section, the City shall give written notice of the violation and its intention to assess such penalties, which notice shall contain a description of the alleged violation. Following receipt of such notice, the Registrant shall have thirty (30) days to cure the violation and the City shall make good faith reasonable efforts to assist in resolving the violation. Ordinance No. 2000-21 Page 26 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 through any means allowed by law. C. 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. D. Failure of the City to enforce any requirements of 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. E. In any proceeding before the City Commission wherein there exists an issue with respect to a Registrant's performance of its obligations pursuant to this Ordinance, the Registrant shall be given the opportunity to provide such information as it may have concerning its compliance with the terms of the Ordinance. The City Commission may find a Registrant that does not demonstrate compliance with the terms and conditions of this Ordinance in default and apply any one or combination of the remedies otherwise authorized by this Ordinance. F. The City Manager or his/her designee shall be responsible for administration and enforcement of this Ordinance, and is authorized to give any notice required by Law. Section 14. Force Majeure. In the event a Registrant's performance of or compliance with any of the provisions of this Ordinance is prevented by a cause or event not within the Facility owner's control, such inability to perform or comply shall be deemed excused and no penalties or sanctions shall be imposed as a result Ordinance No. 2000-21 Page 27 thereof, provided, however, that such owner uses ail practicable means to expeditiously cure or correct any such inability to perform or comply. For purposes of this Ordinance, causes or events not within a Facility owners control shall include, without limitation, acts of God, floods, earthquakes, landslides, hurricanes, fires and other naturai disasters, acts of public enemies, riots or civil disturbances, sabotage, strikes and restraints imposed by order of a governmental agency or court. Causes or events within Registrant's control, and thus not falling within this Section, shail include, without limitation, Registrant's financial inability to perform or comply, economic hardship, and misfeasance, maifeasance or nonfeasance by any of Registrant's directors, officers, employees, contractors or agents. Section 15. Reservation of Rights. A. The City reserves the right to amend this Ordinance as it shall find necessary in the lawful exercise of its police powers. B. This Ordinance shall be applicable to ail Telecommunications Facilities permitted to be placed in the Public Rights-of-Way, on or after the effective date of this Ordinance, and shail apply to all existing Telecommunications Facilities in the Public Rights-of-Way prior to the effective date of this Ordinance, to the full extent permitted by State and Federai Law, but shail not operate to impair rights expressly granted by prior City Ordinance for the duration of such authorization. In the event of any inconsistency between the terms and provisions of this Ordinance and an existing franchise or other authorization, the existing franchise or other authorization shail prevail for the duration of such franchise or other authorization. Providers with existing lines and cables have one hundred and twenty (120) days from the Effective Date of this Ordinance to comply with the terms of this Ordinance No. 2000-21 Page 28 Ordinance, or be in violation thereo£ SECTION 2. Repeal of Conflicting Ordinances. All ordinances or part of ordinances, and all resolutions or part of resolutions in conflict herewith are hereby repealed to the extent of such conflict. SECTION 3. Savings. All fees, charges and financial obligations previously accrued pursuant to any ordinances and resolutions repealed pursuant to Section 2 above shall continue to be due and owing until paid. SECTION 4. 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. This Ordinance shall be effective immediately upon adoption on second reading. The foregoing Ordinance was offered by Commissioner Beskin, who moved its adoption on first reading. This motion was seconded by Commissioner Berger, and upon being put to a vote, the vote was as follows: Commissioner Arthur Berger yes Commissioner Jay R. Beskin yes Commissioner Ken Cohen absent Commissioner Harry Holzberg yes Commissioner Patricia Rogers-Libert yes Vice Mayor Jeffrey M. Peflow yes Mayor Arthur I. Snyder yes Ordinance No. 2000-21 Page 29 The foregoing Ordinance was offered by Commissioner Beskin , who movedits adoption on second reading. This motion was seconded by Commissioner ~x§eerr[- , and upon being put to a vote, the vote was as follows: Commissioner Arthur Berger yes Commissioner Jay R. Beskin yes Commissioner Ken Cohen yes Commissioner Harry Holzberg yes Commissioner Patricia Rogers-Libert yes Vice Mayor Jeffrey M. Peflow yes Mayor Arthur I. Snyder yes PASSED AND ADOPTED on first reading this llth day of July, 2000. PASSED AND ADOPTED on second reading this lst,day of August, 2000. ARTHUR I. sNYDER, MAYOR APPROVED AS TO FORM AND LEGAL SUFFICIENCY: CITY ATTORNEY