HomeMy WebLinkAbout01071998 City of Sebastian
1225 MAIN STREET g SEBASTIAN, FLORIDA 32958
TELEPHONE (561) 589-5330 r~ FAX (561) 589-5570
SEBASTIAN CiTY COIINClL
WORKSHOP
AGENDA
WEDNESDAY, JANUARY 7, 1998 - 7:00 P,M.
CITY COUNCIL CHAMBERS
1225 MA.IN STREET, SEBASTIAN, FLORIDA
3[0 public input ia allowed at a Workshop, unless approved by consensus of City Council at the beginning of the Workshop. Substantive
decisions may not be made at Workshops On accordance with R-97-21).
1. CALL TO ORDER
2. PLEDGE OF ALLEGIANCE
3. ROLL CALL
4. ¥~'ORKSHOP iTEMS
98.001/ A. R~vicw Proposed Telecommunications Ordinance (City Manager 12/17/97 Memo and Proposed
97.054 Ordinaace Previously Distributed)
5. ADJOURN
,43ff PERSON ~FHO DECJDF..$ TO APPEAL ANY DECZ~ON MADE BY THE C!TT COUNCIL F/1TH RF_.~ECT TO ,4NY M,4T'IF_.R CONSIDERED
,4T ~ A,tF..ATING (OR HE.4RING) [triLL ArEED A RECORD OF THE PROC~'g;-r)INGS AND MAY N;~__n TO ENSURE TH. dT ,4 VERBAJTIM
RECORD OF ZHE PROCgTzr}ING$ IS MADE, YtTtlCH RECORD INCLUDES 71-lE ~ONY AND EF1DENCE UPON Ye'HICH TttE APPEAL
1S TO BE t.IEARD. (286.0105F.$.)
1N COM~LIgNCE FF1TH THE d. M~RICAN$ W1TH DISABIIdTI~ ACT (ADA), ANYONE FHO NR~_DS A SFECJ. AL ACCOt~WODATION FOR
THIS 3dF. ETING ,.KHOULD CONTACT TH'F. CITY'S ADA COORDINATOR AT 589-5330 AT LEAST 48 HOURS IN ADVANCE OF THIS ~G.
Hearing Assistance Headphones are Available in Council Chambers for all Government Meetings.
~pcommg 3,[eetingU
Regular Meeting - Wednesday, danuary 14, 1998 (~ 7pm
Special Meeting - Wednesday, January 21, 1998 ~ 7pm
Workshop on Riverfront Performance Overlay District and Zoning - Thursday, danuary 22, 1998 ~ 7pm
Regular Meeting - Wednesday, danuary 28, 1998 ~ 7pm
City of Sebastian
1225 MAIN STREET [] SEBASTIAN, FLORIDA 32958
TELEPHONE (561) 388-8203 [] FAX [561)'589-5570
MEMORANDUM
DATE:
TO:
FROM:
SUBJECT:
December 17, 1997
The Honorable City council
Thomas W. Frame, City Manager
Proposed Telecommunications
Attached is a copy of the proposed telecommunication ordinance for the. City as prepared by the
City Attorney. The Council is being requested to set a workshop date for Wednesday, January 7,
1998.
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ORDINANCE NO. 0-97-
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
SEBASTIAN, FLORIDA, CRF2%TiNG A NEW CHAPTER OF THE CITY OF
SEBASTIAN CODE OF ORDINANCES ENTITLED "TELECOMMUNICATIONS
ORDINANCE"; ESTABLISHING A LOCAL POLICY CONCERNING
TELECOMMUNICATIONS PROVIDERS AND SERVICES; ESTABLISHING
GUIDELINES, STANDARDS AND TIME FRAMES; PROVIDING FOR
DEFINITIONS; PROVIDING FOR REGISTRATION OF
TELECOMMUNICATIONS CARRIERS AND PROVIDERS; PROVIDING
REQUIREMENT OF TELECOMMUNICATIONS LICENSE; PROVIDING
REQUIREMENTS FOR TELEC~ICATIONS FRANCHISE; PROVIDING
FOR FEES AND COMPENSATION; PROVIDING CONDITIONS OF GRANT;
PROVIDING CONSTRUCTION STANDARDS; PROVIDING FOR REPEAL OF
INCONSISTENT PROVISIONS; PROVIDING FOR SEVERABILITY;
PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, the City Council of the City of Sebastian, Florida
("City"), finds that it is in the best interest of its citizens to
establish a local policy concerning telecommunications providers
and services; and
WHEREAS, the City Council desires to establish clear local
guidelines, standards and time frames for the exercise of local
authority with respect to the regulation of telecommuniCations
providers and services and to promote competition in
telecommunications; and
WHEREAS, the City Council desires to permit and manage
reasonable access to the public ways of the City for
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telecommunications purposes on a competitively neutral basis, while
conserving the limited physical capacity of the public ways held in
public trust by the City; and
WHEREAS, the City Council finds that it is in the best
interest of its citizens to assure that the City's current and
ongoing costs of granting and regulating private access to and use
of the public ways are fully paid by the persons seeking such
access and causing such costs; and
WHEREAS, the City Council desires to obtain fair and
reasonable compensation to the City and the residents of the City
for permitting private use of the public ways; and
WHEREAS, the City Council desires assurance that all
telecommunications carriers providing facilities or services within
the City comply with the ordinances, rules and regulations of the
City; and
WHEREAS, the City Council desires to enable the City to
discharge its public trust consistent with rapidly evolving federal
and state regulatory policies, industry competition and
technological development;
NOW, THEREFORE, BE IT ORDAINED BY City Council of the City of
Sebastian, Florida, as follows:
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Section 1: A new Chapter 32 the Code entitled
"Telecommunications Ordinance" is hereby created as follows:
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ARTICLE I. In General
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~ec.32-1. Definitions,
For the purpose of this Chapter, and the interpretation and
enforcement thereof, the following words and phrases shall
have the following meanings, unless the context of the
sentence in which they are used shall indicate otherwise:
"Affiliate" means a person that (directly or indirectly)
owns or controls, is owned or controlled by, or is under
common ownership or control with another person.
"Annual gross revenue"
"Cable Act" shall mean the Cable Communications Policy
Act of 1984, 47 U.S.C. Section 532, et. seq., as now and
hereinafter amended.
"Cable operator" means a telecommunications carrier
providing or offering to provide "cable service" within
the City as that term is defined in the Cable Act.
"Cable service" for the purpose of this Chapter shall
have the same meaning provided by the Cable Act.
"City" means the City of Sebastian.
"City property" means and includes all real property
owned by the City, other than public streets and utility
easements as those terms are defined herein, and all
property held in a proprietary capacity by the City,
which are not subject to right-of-way licensing and
franchising as provided in this Chapter.
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"Corporate Authorities" means the City Council of the
City of Sebastian.
"Excess capacity" means the volume or capacity in any
existing or future duct, conduit, manhole, handhole or
other utility facility within the public way that is or
will be available for use for additional
telecommunications facilities.
"FCC" or "Federal Communications Commission" means the
Federal administrative agency or lawful successor,
authorized to regulate and oversee telecommunications
carriers, services and providers on a national level.
"Florida Public Service Commission" means the State
administrative agency, or lawful successor, authorized to
regulate and oversee telecommunications carriers,
services and providers in the State of Florida.
"Other ways" means the highways, streets, alleys, utility
easements or other rights-of-way within the City, but
under the jurisdiction and control of a government entity
other than the City.
"Overhead facilities" means utility poles, utility
facilities and telecommunications facilities located
above the surface of the ground, including the
underground supports and foundations for such facilities.
"Person" means and includes corporations, companies,
associations, joint stock companies or associations,
firms, partnerships, limited liability companies and
individuals and includes their lessors, trustees and
receivers.
"Public street" means any highway, street, alley or other
public right of way for motor vehicle travel under the
jurisdiction and control of the City which has been
acquired, established, dedicated or devoted to highway
purposes not inconsistent with telecommunications
facilities.
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"Public way" means and includes all public streets and
utility easements, as those terms are defined herein, now
or hereafter owned by the City, but only to the extent of
the City's right, title, interest or authority to grant
a license or franchise to occupy and use such streets and
easements for telecommunications facilities.
"State" means the State of Florida.
"Surplus space" means that portion of the usable space on
a utility pole which has the necessary clearance from
other pole users, as required by the orders and
regulations of the Florida Public Service Commission, to
allow its use by a telecommunications carrier for a pole
attachment.
"Telecommunications carrier" means and includes every
person that directly or indirectly owns, controls,
operates or manages plane, equipment or property within
the City, used or to be used for the purpose of offering
telecommunications service.
"Telecommunications facilities" means the plant,
equipment and property, including but not limited to,
cables, wires, conduits, ducts, pedestals, antennae,'
electronics and other appurtenances used or to be used to
transmit, receive, distribute, provide or offer
telecommunications services.
"Telecommunications provider" means and includes every
person who provides telecommunications service over
telecommunications facilities without any ownership or
management control of the facilities.
"Telecommunications service" means the providing or
offering for rent, sale or lease, or in exchange for
other value received, of the transmittal of voice, data,
image, graphic and video programming information between
or among points by wire, cable, fiber optics, laser,
microwave, radio, satellite or similar facilities, with
or without benefit of any closed transmission medium.
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"Underground facilities" means utility and
telecommunications facilities located under the surface
of the ground, excluding the underground foundations or
supports for Overhead Facilities.
"Usable space" means the total distance between the top
of a utility pole and the lowest possible attachment
point that provides the minimum allowable vertical
clearance as specified in the orders and regulations of
the Florida Public Service Commission.
"Utility easement" means any easement owned by the City
and acquired, established, dedicated or devoted for
public utility purposes not inconsistent with
telecommunications facilities.
"Utility facilities" means the plant, equipment and
property, including but not limited to the poles, pipes,
mains, conduits, ducts, cables, wires, plant and
equipment located under, on or above the surface of the
ground within the public ways of the City and used to be
used for the purpose of providing utility or
telecommunications services.
Sec. 32-2 Registration.
Except as otherwise provided herein, all
telecommunications carriers and providers engaged in the
business of transmitting, supplying or furnishing of
telecommunications originating or terminating in the City
shall register with the City pursuant to Article 2 of
this Chapter.
Sec. 32-3 Telecommunioat~on$ LiGgn~9
Except as otherwise provided herein, any
telecommunications carriers who desire to construct,
install, operate, maintain, or otherwise locate
telecommunications facilities in, under, over or across
any public way of the City for the sole purpose of
providing telecommunications service to persons and areas
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outside the City shall first obtain a license granting
the use of such public ways from the City pursuant to
Article 3 of this Chapter.
Sec. 32-4 Telecom~unications Franchise.
Except as otherwise provided herein, any
telecommunications carriers who desire to construct,
install, operate, maintain or otherwise locate
telecommunications facilities in, under, over or across
any public way of the City, and to also provide
telecommunications service to persons or areas in the
City, shall first obtain a franchise granting the use of
such public Ways from the City pursuant to Article 4 of
this Chapter.
Sec. 32-5 Cable T~levision Franchise.
Except as otherwise provided herein, any
telecommunications carrier who desires to construct,
install, operate, maintain or locate telecommunications
facilities in any public way of the City for the purpose
of providing cable service to persons in the City shall
first obtain a cable franchise from the City as provided
in Article 5 of this Chapter.
Sec. 32-6 Application to Existing Franchise Ordinances
and Agreements~
This Chapter shall have no effect on any existing
franchise ordinance or franchise agreement until the
expiration of said franchise ordinance or agreement or an
amendment to an unexpired franchise ordinance or
franchise agreement, unless both parties agree to defer
full compliance to a specific date not later than the
present expiration date.
Sec. 32-7 Penalties,
Any person found guilty of violating, disobeying,
omitting, neglecting or refusing to comply with any of
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the provisions of this Chapter shall be fined not less
than One Hundred Dollars ($100.00) or more than
Hundred Dollars ($ ) for each offense. A separate
and distinct offense shall be deemed committed each day
on which a violation occurs or continues.
Article II.
Registration of Telecommunications
Carriers and Providers
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~ec. 32-8 - Reg~ration Required:
Ail telecommunications carriers and providers that offer or
provide any telecommunications service for a fee directly to
the public, either within the City, or outside the City limit
from telecommunications facilities within the City, shall
register with the City pursuant to this Article on forms to be
provided by the City Clerk, which shall include the following:
(a) The identity and legal status of the registrant,
including any affiliates.
(b) The name, address and telephone number of the officer,
agent or employee responsible for the accuracy of the registration
statement.
(c) A description of registrant's existing or proposed
telecommunications facilities within the City.
(d) A description of the telecommunications service that the
registrant intends to offer or provide, or is currently offering or
providing, to persons, firms, businesses or institutions within the
City.
(e) Information sufficient to determine that the applicant
has applied for and received any construction permit, operating
license or other approvals required by the Federal Communications
Commission or the State of Florida to provide telecommunications
services or facilities within the City.
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(f)
require.
Such other information as the City Clerk may reasonably
Section 32-9: ~egistration Fee:
Each application for registration as a telecommunications
carrier or provider shall be accompanied by a fee of Twenty-
Five Dollars ($25.00).
Section 32-10~ Purpose of R~gis~ration.
Purpose of Registration: The purpose of registration under
this Chapter is to provide the City with accurate and current
information concerning the telecommunications carriers and
providers who offer or provide telecommunications services
within the City, or that own or operate telecommunication
facilities within the City; to assist the City in enforcement
of this Chapter; to assist the City in the collection and
enforcement of any municipal taxes, franchise fees, license
fees or charges that may be due to the City; and to assist the
City in monitoring compliance with local, State and Federal
laws.
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Article III: Telecommunications License
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Sec.32-11: Telecommunications License:
A telecommunications license shall be required of any
telecommunications carrier who desires to occupy specific
public ways of the City for the sole purpose of providing
telecommunications services to persons or areas outside of
the City.
~ec. 32-12: License Application:
Any person that desires a telecommunications license
pursuant to this Article 3 shall file an application with
the City which shall include the following information:
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(a) The identity of the license applicant, including all
affiliates of the applicant.
(b) A description of the telecommunications services that are
or will be offered or provided by licensee over its
telecommunications facilities.
(c) A description of the transmission medium that will be used
by the licensee of offer or provide such telecommunications
services.
(d) Preliminary engineering plans, specifications and a
network map to the facilities to be located within the City, all in
sufficient detail to identify:
The location and route requested for applicant's
proposed telecommunications facilities.
The location of all overhead and underground
public utility, telecommunication, cable, water,
sewer, drainage and other facilities in the public
way along the proposed route.
The location(s), if any, for interconnection with
the telecommunications facilities of other
telecommunications carriers.
The specific trees, structures, improvements,
facilities and obstructions, if any, that applicant
proposes to temporarily or permanently remove or
relocate.
(e) If applicant is proposing to install overhead facilities,
evidence that surplus space is available for locating its
telecommunications facilities on existing utility poles along the
proposed routs.
(f) If applicant is proposing an underground installation in
existing ducts or conduits within the public ways, information in
sufficient detail to identify:
1. the excess capacity currently available in such
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ducts or conduits before installation
applicant's telecommunications facilities;
of
the excess capacity, if any, that will exist in
such ducts or conduits after installation .of
applicant's telecommunications facilities.
(g) If applicant is proposing an underground installation
within new ducts or conduits to be constructed within the public
ways:
the location proposed for the new ducts
conduits;
the excess capacity, that will exist in such ducts
or conduits after installation of applicant's
telecommunications facilities.
(h)
date.
A preliminary construction schedule and completion
(i) A preliminary traffic control plan in accordance with
the FDOT Manual on Uniform Traffic Control Devices.
(j) Financial statements prepared in accordance with
generally accepted accounting principals demonstrating the
applicant's financial ability to construct, operate, maintain,
relocate and remove the facilities.
(k) information in sufficient detail to establish the
applicant's technical qualifications, experience and expertise
regarding the telecommunications facilities and services described
in the application;
(1) Information to establish that the applicant has btained
all other governmental approvals and permits to construct and
operate the facilities and to offer or provide the
telecommunications services.
(m) Ail fees, deposit or charges required pursuant to Article
6 of this Chapter.
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(n) Such other and further information as may be required by
the City Manager.
~ec_._ 32-13: D~e~ination by the City:
Within 120 days after receiving a complete application, the
City Council shall issue a written determination granting or
denying the application in whole or in part, applying the
following standards. If the application is denied, the
written determination shall include the reasons for denial.
(a) The financial and technical ability of the applicant.
(b) The legal ability of the applicant.
(c)
utility
granted.
The capacity of the public ways to accommodate additional
and telecommunications facilities if the license is
(d) The damage or disruption, if any, of public or private
facilities, improvements, service, travel or landscaping if the
license is granted.
(e) The public interest in minimizing the cost and disruption
of construction within the public ways.
(f) The service that applicant will provide to the community
and region.
(g) The effect, if any, on public health, safety and welfare
if the license is granted.
(h) The availability of alternate routes and/or locations
for the proposed facilities.
(i) Applicable federal and state telecommunications laws,
regulations and policies.
(j) Such other factors as may demonstrate that the grant to
use the public ways will serve the community interest.
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Seca 32-14 Agreement:
No license granted hereunder shall be effective until the
applicant and the City have executed a written agreement
setting forth the particular terms and provisions under which
the license to occupy and use public ways of the City will be
granted.
~ec. 32-15 Nonexclusive Grant:
No license granted under this Article shall confer any
exclusive right, privilege, license or franchise to occupy or
use the public ways of the City for delivery of
telecommunications services or any other purposes.
Sec~ 3-16 Rights Granted:
No license granted under this Article shall convey any right,
title or interest in the public ways, but shall be deemed a
license only to use and occupy the public ways for the limited
purposes and term stated in the grant. Further, no license
shall be construed as any warranty of title.
~e~ 3-17 Terms of Grant~
Unless otherwise specified in a license agreement, a
telecommunications license granted hereunder shall be in
effect for a term of five (5) years.
Sec. 3-18 License Route:
A telecommunications license granted under this Article shall
be limited to a grant of specific public ways and defined
portions thereof.
Sec. 5-19 Lo¢~tim~ 9~ F~cili~ies:
Unless otherwise specified in a license agreement, all
facilities shall be constructed, installed and located in
accordance with the following terms and conditions:
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(a) Telecommunications facilities shall be installed within
an existing underground duct or conduit whenever excess capacity
exists within such utility facility.
(b) A licensee with permission to install overhead facilities
shall install its telecommunications facilities on pole attachments
to existing utility poles only, and then only if surplus space is
available.
(c) Whenever any existing electric utilities, cable facilities
or telecommunications facilities are located underground within a
public way of the City, a licensee with permission to occupy the
same public way must also locate its telecommunications facilities
underground.
(d) Whenever any new or existing electric utilities, cable
facilities or telecommunications facilities are located underground
within a public way of the City, a grantee that currently occupies
the same public way shall relocate its facilities underground
within a reasonable period of time, which shall not be later than
the end of the grant term. Absent extraordinary circumstances or
undue hardship as determined by the City Engineer, such relocation
shall be made concurrently to minimize the disruption of the public
ways.
(e) Whenever new telecommunications facilities will exhaust
the capacity of a public street or utility easement to reasonably
accommodate future telecommunications carriers or facilities, the
grantee shall provide additional ducts, conduits, manholes and
other facilities for nondiscriminatory access to future
telecommunications carriers.
Sec. 32-20 ~Qnstr~ction Permits.
Ail licensees are required to obtain construction permits for
telecommunications facilities as required in Article 7 of this
Chapter provided, however, that nothing in this Article shall
prohibit the City and a licensee from agreeing to alterative
plan review, permit and construction procedures in a license
agreement, provided such alternative procedures provide
substantially equivalent safe guards for responsible
construction practices.
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S~c. 32-21 CQmp~n~&on to G%tX,
Each license granted under this Article is subject to the
City's right, which is expressly reserved, to annually fix a
fair and reasonable compensation to be paid for the property
rights granted to the licensee; provided, nothing in this
Article shall prohibit the City and a licensee from agreeing
to the compensation to be paid.
Sec. 32-22 Service to City Users:
A licensee may be permitted to offer or provide
telecontmunications services to persons or areas within the
City upon submitting an application for approval pursuant to
Article 4 hereof.
Sec. 32-23: Amendment of Grant:
A new license application and grant shall be required of any
telecommunications carrier that desires to extend or relocate
its telecommunications facilities in public ways not included
in a previously granted license, the City shall grant a
license amendment without further application.
Sec. 32-34: Renewal Applications:
A grantee that desires to renew its license under this article
shall, not more than 180 days nor less than 90 days before
expiration of the current license, file an application with
the City for renewal of its license which shall include the
following information:
(a) The information required pursuant to Sec.
Article.
-2 of this
(b) Any information required pursuant to the license agreement
between the City and the grantee.
Se=. 32-35: Renewal Determinat%Qns:
Within 90 days after receiving a complete application under
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Sec. .14 hereof, the City shall issue a written determination
granting or denying the renewal application in whole or in
part, applying the following standards. If the renewal
application is denied, the written determination shall include
the reasons for non - renewal.
(a) The financial and technical ability of the applicant.
(b) The legal ability of the applicant.
(c) The continuing capacity of the public ways to accommodate
the applicant's existing facilities.
(d) The applicant's compliance with the requirements of this
Title and the license agreement.
(e) Applicable federal, state and local telecommunications
laws, rules and policies.
(f) Such other factors as may demonstrate that the continued
grant to use the public ways will serve the community interest.
Section 32-36: Obli~at~QB ~Q ~r9 As a Condi~%QD of Renewal;
No license shall be renewed Until any ongoing violations or
defaults in the licensee's performance of the license
agreement, or of the requirements of this Title, have been
cured, or a plan detailing the corrective action to be taken
by the grantee has been approved by the City.
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Article IV: Telecommunications Franchise
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Sect%9~ $~-$7: Telecommunioations Franchise:
A telecommunications franchise shall be required of any
telecommunications carrier who desires to occupy public ways
of the City and to provide telecommunications services to any
person or area in the City.
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Section 32-38: FranchiseA~plicationL
Any person that desires a telecommunications franchise
pursuant to this Article 4 shall file an application with the
City which shall include the following information:
(a) The identity of the franchise applicant, including
all affiliates of the applicant.
(b) A description of the telecommunications services that are
or will be offered or provided by the franchise applicant over its
existing or proposed facilities.
(c) A description of the transmission medium that will be
used by the franchisee to offer or to provide such
telecommunications services.
(d) Preliminary engineering plans, specifications and a
network map of the facilities to be located within the City, all in
sufficient detail to identify:
(1)
the location and route requested for applicant's
proposed telecommunications facilities.
(2)
the location of all overhead and underground public
utility, telecommunications, cable, water, sewer
drainage and other facilities in the public way
along the proposed route.
(3)
the location(s), if any, for interconnection with
the telecommunications facilities of other
telecommunications carriers.
(4)
the specific trees, structures,improvements,
facilities and obstructions, if any, that applicant
proposes to temporarily or permanently remove or
relocate.
(e) If applicant is proposing to install overhead facilities,
evidence that surplus space is available for locating its
telecommunications facilities on existing utility poles along the
proposed route.
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(f) If applicant is proposing an underground installation in
existing ducts or conduits within the public ways, information in
sufficient detail to identify:
(1)
the excess capacity currently available in such
ducts or conduits before installation of
applicant's telecommunications facilities;
(2)
the excess capacity, if any, that will exist in such
ducts or conduits after installation of applicant's
telecommunications facilities.
(g) If applicant is proposing an underground installation
within new ducts or conduits to be constructed within the public
ways:
(1) the location proposed for the new ducts or conduits;
(2)
the excess capacity that will exist in such ducts or
conduits after installation of applicant's
telecommunications facilities.
(h) A preliminary traffic control plan in accordance with the
FDOT Manual on Uniform Traffic Control Devices.
(i) Financial statements prepared in accordance with
generally accepted accounting principles demonstrating the
applicant's financial ability to construct, operate, maintain,
relocate and remove the facilities.
(j) Information in sufficient detail to establish the
applicant's technical qualifications, experience and expertise
regarding the telecommunications facilities and services described
in the application.
(k) Information to establish that the applicant has obtained
all other governmental approvals and permits to construct and
operate the facilities and to offer or provide the
telecommunications services.
(1) Whether the applicant intends to provide cable service,
video dialtone service or other video programming service, and
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sufficient information to determine whether such service is subject
to cable franchising.
(m) An accurate map showing the location of any existing
telecommunications facilities in the City that applicant intends to
use or lease.
(n) A description of the services or facilities that the
applicant will offer or make available to the City and other
public, educational and governmental institutions.
(o) A description of applicant's access and line extension
policies.
(p) The area or areas of the City the applicant desires to
serve and a schedule for build-out to the entire franchise area.
(q) Ail fees, deposits or charges required pursuant to
Article 6 of this Title.
(r) Such other and further information as may be requested by
the City Manager.
SectiQn 32-39: D~rminatior~ ~y the City:
Within 150 days after receiving a complete application the
City Council shall issue a written determination granting or
denying the application in whole or in part, applying the
following standards. If the application is denied, the written
determination shall include the reasons for denial.
(a) The financial and technical ability of the applicant.
(b) The legal ability of the applicant.
(c) The capacity of the public ways to accommodate the
applicant's proposed facilities.
(d) The capacity of the public ways to accommodate additional
utility and telecommunications facilities if the franchise is
granted.
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(e) The damage or disruption, if any, of public or private
facilities, improvements, service, travel or landscaping if the
franchise is granted.
(f) The public interest in minimizing the cost and disruption
of construction within the public ways.
(g) The effect, if any, on public health, safety and welfare
if the franchise requested is granted.
(h) The availability of alternate routes and/or locations for
the proposed facilities.
(i) Applicable federal and state telecommunications laws,
regulations and policies.
(j) Such other factors as may demonstrate that the grant to
use the public ways will service the community interest.
Section 32r40: Agreement:
No franchise shall be granted hereunder unless the applicant
and the City have executed a written agreement setting forth
the particular terms and provisions under which the franchise
to occupy and use public ways of the City will be granted.
SgG~ion 32-41: Nonexclusive Grant:
No franchise granted under this Article shall confer any
exclusive right, privilege, license or franchise or occupy or
use the public ways of the City for delivery of
telecommunications services or any other purposes.
SectiQn 3~-42: Term o~ Gran~;
Unless otherwise specified in a franchise agreement, a
telecommunications franchise granted hereunder shall be valid
for a term of (10) years.
Section 32-43: Righta Grantgd:
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No franchise granted under this Article shall convey any
right, title or interest in the public ways, but shall be
deemed a franchise only to use and occupy the public ways for
the limited purposes and term stated in the grant. Further,
no franchise shall be construed as any warranty of title.
Section 32-44: Franchise Territory:
A telecommunications franchise granted under this Article
shall be limited to the specific geographic area of the City
to be served by the franchise grantee, and the specific public
ways necessary to serve such areas.
Section 32-45: LocatioNQ~ F~cil~i~s:
Unless otherwise specified in a franchise agreement, all
facilities shall be constructed, installed and located in
accordance with the following terms and conditions:
(a) Telecommunications facilities shall be installed within
an existing underground duct or conduit whenever excess capacity
exists within such utility facility.
(b) A franchisee with permission to install overhead
facilities shall install its telecommunications facilities on pole
attachments to existing utility poles only, and then only if
surplus space is available.
(c) Whenever an existing electric utilities, cable facilities
or telecommunications facilities are located underground within a
public way of the City, a franchisee with permission to occupy the
same public way must also locate its telecommunications facilities
underground.
(d) Whenever any new or existing electric utilities, cable
facilities or telecommunications facilities are located underground
within a public way of the City, a grantee that currently occupies
the same public way shall relocate its facilities underground
within a reasonable period of time, which shall not be later than
the end of the grant term. Absent extraordinary circumstances or
undue hardship as determined by the City Engineer, such relocation
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shall be made concurrently to minimize the disruption of the public
ways.
(e) Whenever new telecommunications facilities will exhaust
the capacity of a public street or utility easement to reasonably
accommodate future telecommunications carriers or facilities, the
grantee shall provide additional ducts, conduits, manholes and
other facilities for nondiscriminatory access to future carriers.
Section 32-4~; ConstructioB permits:
Ail franchisees are required to obtain construction permits
for telecommunications facilities as required in Article 6 of
this Title provided, however, that nothing in this Article
shall prohibit the City and a franchisee from agreeing to
alternative plan review, permit and construction procedures in
a franchise agreement, provided such alternative procedures
provide substantially equivalent safeguards for responsible
construction practices.
32-47: Compgnsation to City:
Each franchise granted under this Article is subject to the
City's right, which is expressly reserved, to annually fix a
fair and reasonable compensation to be paid for the property
rights granted to the franchisee; provided, nothing in this
Article shall prohibit the City and a franchisee from agreeing
to the compensation to be paid.
~iQn 32-&8: Nondiscrimination:
A franchisee shall make its telecommunications services
available to any customer within its franchise area who shall
request such service, without discrimination as to the terms,
conditions, rates or charges for grantee's services; provided,
however, that nothing in this Article shall prohibit a
franchise from making any reasonable classifications among
differently situated customers.
Section 32-49: S~rvice to ~hg Cit¥l
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A franchise shall make its telecommunications services
available to the City at its most favorable rate for similarly
situated users, unless otherwise provided in a license or
franchise agreement.
Section 32-50: Amendment of Grant:
(a) A new franchise application and grant shall be required
of any telecommunications carrier that desires to extend its
franchise territory or to locate its telecommunications facilities
in public ways of the City which are not included in a franchise
previously granted under this Title.
(b) If ordered by the City to locate or relocate its
telecommunications facilities in public ways not included in a
previously granted franchise, the City shall grant a franchise
amendment without further application.
Section 32-~: Renewal Applications:
A grantee that desires to renew its franchise under this
Article shall, not more than 240 days nor less than 150 days
before expiration of the current franchise, file an
application with the City for renewal of its franchise which
shall include the following information:
(a) The information required pursuant to Section .... 2 of
this Article.
(b) Any information required pursuant to the franchise
agreement between the City and the grantee.
Section 32-52: Renewal Determinations:
Within 150 days after receiving a complete application under
Section .... 15 hereof, the City Council authorities shall
issue a written determination granting or denying the renewal
application in whole or in part, applying the following
standards. If the renewal application is denied, the written
determination shall include the reasons for non-renewal.
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(a) The financial and technical ability of the applicant.
(b) The legal ability of the applicant.
(c) The continuing capacity of the public ways to accommodate
the applicant's existing facilities.
(d) The applicant's compliance with the requirements of this
Title and the franchise agreement.
(e) Applicable federal, state and local telecommunications
laws, rules and policies.
(f) Such other factors as may demonstrate that the continued
grant to use the public ways will serve the community interest.
Section 32-53: Qb~igation to ~ure As a Qgndition of Ren~w~:
No franchise shall be renewed until any ongoing violations or
defaults in the grantee's performance of the franchise
agreement, or of the requirements of this Title, have been
cured, or a plan detailing the corrective action to be taken
by the grantee has been approved by the City.
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Article V: Cable Franchise
18 Reserved
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SectiQn ~-~4: P~rpose:
It is the purpose of this Article to provide for the payment
and recovery of all direct and indirect costs and expenses of
the City related to the enforcement and administration of this
Title.
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Section 32-55: App~Gation and Review Fee~
(a) Any applicant for a license or franchise pursuant to
Articles 3 or 4 of this Title shall pay a fee of
($ ) or percent (__~) of the estimated cost of
applicant's proposed telecommunications facilities, as certified
by the applicant's professional engineer, whichever is greater.
(b) The application and review fee shall be deposited with
the City as part of the application filed pursuant to Article 3
or Article 4 of this Title.
(c) An applicant whose license or franchise application has
been withdrawn, abandoned or denied shall, within sixty (60) days
of its application and review fee written request, be refunded
the balance of its deposit under this section, less:
(1) ($ ) and
(2) Ail ascertainable costs and expenses incurred by
the City in connection with the application.
Section 32-56] Other City Costs:
All license or franchise grantees shall, within thirty. (30)
days after written demand therefor, reimburse the City for all
direct and indirect costs and expenses incurred by the City in
connection with any modification, amendment, renewal or
transfer of the license or franchise or any license or
franchise agreement.
Section 32-57: Reserved QompensatiQn fQr Public Wa¥$~
The City reserves its right to annually fix a fair and
reasonable compensation to be paid for the property rights
granted to a telecommunications license or franchise grantee.
Nothing in this Article shall prohibit the City and a grantee
from agreeing to the compensation to be paid for the granted
property rights.
S~tion 32-58: Compensation for City Property:
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If the right is granted, by lease, license, franchise or other
manner, to use and occupy City Property for the installation
telecommunications facilities, the compensation to be paid
shall be fixed by the City.
Section 32-59: Construction Permit Fee:
Prior to issuance of a construction permit, the permittee
shall pay a permit fee equal to Dollars ($ ) or
percent ( %) of the estimated cost of constructing the
telecommunications facilities, as certified by the applicant's
engineer and approved by the City Engineer, whichever is
greater.
Section 32-~0: Annual Fees:
Unless otherwise agreed in a license or franchise grant
agreement, each license or franchise grantee shall pay an
annual license fee to the City equal to as
reimbursement for the City's costs in connection with
reviewing, inspecting and supervising the use and occupancy of
the public ways in behalf of the public and existing or future
users.
Sec~QD 32-61 Cable F~es:
Cable television franchisees shall be subject to the franchise
fees, payments and costs provided in Article 5 of this Title.
Section 32-62: Regulatory F~es and Compensa~Qn Not a T~
The regulatory fees and costs provided for in this Article,
and any compensation charged and paid for the public ways
provided for in Section ..... 4 of this Article, are separate
from, and additional to, any and all federal, state, local and
City taxes as may be levied, imposed or due from a
telecommunications carrier or provider, its customers or
subscribers, or an account of the lease, sale, delivery or
transmission of telecommunications services.
Article VII: Conditions for Grant
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~ection 32-63: LocatioD of Facilities:
Ail facilities shall be constructed, installed and located in
accordance with the following terms and conditions, unless
otherwise specified in a license or franchise agreement:
(a) A grantee shall install its telecommunications facilities
within an existing underground duct or conduit whenever excess
capacity exists within such utility facility.
(b) A grantee with permission to install overhead facilities
shall install its telecommunications facilities on pole attachments
to existing utility poles only, and then only if surplus space is
available.
(c) Whenever an existing electric utilities, cable facilities
or telecommunications facilities are located underground within a
public way of the City, a guarantee that currently occupies the
same public way shall relocate its facilities underground within a
reasonable period of time, which shall not be later than the end of
the grant term. Absent extraordinary circumstances or undue
hardship as determined by the City Engineer, such relocation shall
be made concurrently to minimize the disruption of the public ways.
(d) Whenever new telecommunications facilities will exhaust
the capacity of a public street or utility easement to reasonably
accommodate future telecommunications carriers or facilities, the
grantee shall provide additional ducts, conduits, manholes and
other facilities for nondiscriminatory access to future carriers.
Section 32-64: ConstructioR permits:
Ail license or franchise grantees are required to obtain
construction permits for telecommunications facilities as
required in Article 8 of this Title. However, nothing in this
Article shall prohibit the City and a grantee from agreeing to
alternative plan review, permit and construction procedures in
a license or franchise agreement, provided such alternative
procedures provide substantially equivalent safeguards for
responsible construction practices.
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Sect~Qn 32-65:I~terfer~nce with the Public Ways;
No license or franchise grantee may locate or maintain its
telecommunications facilities so as to unreasonably interfere
with the use of the public ways by the City, by the general
public or by other persons authorized to use or be present in
or upon the public ways. All such facilities shall be moved
by the grantee, temporarily or permanently, as determined by
the City Engineer.
~G~ion 32-66:Da~ag9 to Property:
No license or franchise grantee nor any person acting on a
grantee's behalf shall take any action or permit any action to
be done which may impair or damage any City Property, public
ways of the City, Other Ways or other property located in, on
or adjacent thereto.
~ect%9~ 32-67: NQtice of Work:.
Unless otherwise provided in a license or franchise agreement,
no license or franchise grantee, nor any person acting on the
grantee's behalf, shall commence any non-emergency work in or
about the Public Ways of the City or Other Ways without ten
(10) working days advance notice to the City.
Section 32-68; Repair and E~grgencyWork:
In the event of an unexpected repair or emergency, a grantee
may commence such repair and emergency response work as
required under the circumstances, provided the Grantee shall
notify the City as promptly as possible, before such repair or
emergency work or as soon thereafter as possible if advance
notice is not practicable.
~9~tion 32-69: MaiDtenaDce of Facilities:
Each license or franchise grantee shall maintain its
facilities in good and safe condition and in a manner that
complies with all applicable federal, state and local
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requirements.
Se=~Qn 32-70: Relocation or Removal of Facilities;
Within thirty (30) days following written notice from the
City, a license or franchise grantee shall, at its own
expense, temporarily or permanently remove, relocate, change
or alter the position of any telecommunications facilities,
the City Council shall have determined that such removal,
relocation, change or alteration is reasonably necessary for:
(a) The construction, repair, maintenance or installation of
any City or other public improvement in or upon the public ways.
(b) The operations of the City or other governmental entity
in or upon the public ways.
Sect~Qn 32-~1: Removal of Un~gthorized Facilities:
Within thirty (30) days following written notice from the
City, any grantee, telecommunications carrier, or other person
that owns, controls or maintains any unauthorized
telecommunications system, facility or related appurtenances
within the public ways of the City shall, at its own expense,
remove such facilities or appurtenances from the public ways
of the City. A telecommunications system or facility is
unauthorized and subject to removal in the following
circumstances.
(a) upon expiration or termination of the grantee's
telecommunications license or franchise.
(b) Upon abandonment of a facility within the public ways
of the City.
(c) if the system or facility was constructed or installed
without the prior grant of a telecommunications license or
franchise.
(d) If the system or facility was constructed or installed
without the prior issuance of a required construction permit.
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(e) If the system or facility was constructed or installed
at a location not permitted by the grantee's telecommunications
license or franchise.
Section 32-72: Emergency Removal or Relocation of
Facilities~
The City retains the right and privilege to cut or move any
telecommunications facilities located within the public ways
of the City, as the City may determine to be necessary,
appropriate or useful in response to any public health or
safety emergency.
32-73: Dam~g~ to Grantee's Facilities:
Unless directly and proximately caused by the willful,
intentional or malicious acts by the City, the City shall not
be liable for any damage to or loss of any telecommunications
facility within the public ways of the City as a result of or
in connection with any public works, public improvements,
construction, excavation, grading, filling, or work of any
kind in the public ways by or on behalf of the City.
Section 32-74: RestQration of Public Ways, Other Ways and City
Property
(a) When a license or franchise grantee, or any person acting
on its behalf, does any work in or affecting any Public Ways, Other
Ways or City Property, it shall, at its own expense, promptly
remove any obstructions therefrom and restore such ways or property
to as good a condition as existed before the work was undertaken,
unless otherwise directed by the City.
(b) If weather or other conditions do not permit the complete
restoration required by this Section, the grantee shall temporarily
restore the affected ways or property. Such temporary restoration
shall be at the Licensee's sole expense and the Licensee shall
promptly undertake and complete the required permanent restoration
when the weather or other conditions no longer prevent such
permanent restoration.
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(c) A grantee or other person acting in its behalf shall use
suitable barricades, flags, flagmen, lights, flares and other
measures as required for the safety of all members of the general
public and to prevent injury or damage to any person, vehicle or
property by reason of such work in or affecting such ways or
property.
Section 32-75: Facilities Maps:
Each license or franchise grantee shall provide the City with
an accurate map or maps certifying the location of all
telecommunications facilities within the public ways. Each
grantee shall provide updated maps annually.
~ection 32-76: Duty ~o Provide Information:
Within ten (10) days of a written request from the City
Manager, each license or franchise grantee shall furnish the
City with information sufficient to demonstrate:
(a)
Title.
That grantee has complied with all requirements of this
(b) That all municipal sales, message and/or
telecommunications taxes due the City in connection with the
telecommunications services and facilities provided by the grantee
have been properly collected and paid by the grantee.
(c) Ail books, records, maps and other documents, maintained
by the grantee with respect to its facilities within the public
ways shall be made available for inspection by the City at
reasonable times and intervals.
Section 32-77: L~ased C~pac~y:
A license or franchise grantee shall have the right, without
prior City approval, to offer or provide capacity or bandwidth
to its customers; provided:
(a) Grantee shall furnish the City with a copy of a such
lease or agreement.
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(b) The customer or lessee has complied, to the extent
applicable, with the requirements of this Title.
~tion 32-7~; Grante~ Insurance:
Unless otherwise provided in a license or franchise agreement,
each grantee shall, as a condition of the grant, secure and
maintain the following liability insurance policies insuring
both the grantee and the City, and its elected and appointed
officers, officials, agents and employees as coinsureds:
(a) Comprehensive general liability insurance with limits not
less than
(i)
Five Million Dollars ($5,000,000) for bodily
injury or death to each person;
(2)
(3)
Five Million Dollars ($5,000,000) for property
damage resulting from any one accident; and,
Five Million Dollars ($5,000,000) for all
other types of liability.
(b) Automobile liability for owned, non - owned and hired
vehicles with a limit of Three Million Dollars ($3,000,000) for
each person and Three Million Dollars ($3,000,000) for each
accident.
(c) Worker's compensation within statutory limits and
employer's liability insurance with limits of not less than One
Million Dollars ($1,000,000).
(d) Comprehensive form premises-operations, explosions and
collapse hazard, underground hazard and products completed hazard
with limits of not less than Three Million Dollars ($3,000,000).
(e) The liability insurance policies required by this section
shall be maintained by the grantee throughout the term of the
telecommunications license or franchise, and such other period of
time during which the grantee is operating without a franchise or
license here under, or is engaged in the removal of its
telecommunications facilities. Each such insurance policy shall
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contain the following endorsement:
"it is hereby understood and agreed that this policy may not
be canceled nor the intention not to renew be stated until 90
days after receipt by the City, by registered mail, of a
written notice addressed to the City Manager of such intent to
cancel or not to renew."
(f) Within sixty (60) days after receipt by the City of said
notice, and in no event later than thirty (30) days prior to said
cancellation, the grantee shall obtain and furnish to the City
replacement insurance policies meeting the requirements of this
Section.
Section 32-79; General Inde4~nification£
Each license or franchise agreement shall include, to the
extent permitted by law, grantee's express undertaking to
defend, indemnify and hold the City and its officers,
employees, agents and representatives harmless from and
against any and all damages, losses and expenses, including
reasonable attorney's fees and costs of suit or defense,
arising out of, resulting from or alleged to arise out of or
result from the negligent, careless or wrongful acts,
omissions, failures to act or misconduct of the grantee or its
affiliates, officers, employees, agents, contractors or
subcontractors in the construction, operation, maintenance,
repair or removal of its telecommunications facilities, an din
providing or offering telecommunications services over the
facilities or network, whether such acts or omissions are
authorized, allowed or prohibited by this Title or by a grant
agreement made or entered into pursuant to this Title.
Section 3~-80: Performance and Constru~Qn $uret¥:
Before a license or franchise granted pursuant to this Title
is effective, and as necessary thereafter, the grantee shall
provide and deposit such monies, bonds, letters of credit or
other instruments in form and substance acceptable to the City
as may be required by this Title or by an applicable license
or franchise agreement.
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Section 32-81: $~curity Fund:
Each grantee shall establish a permanent security fund with
the City by depositing the amount of $50,000 with the City in
cash, an unconditional letter of credit, or other instrument
acceptable to the City, which fund shall be maintained at the
sole expense of grantee so long as any of grantee's
telecommunications facilities are located within the public
ways of the City.
(a) The fund shall serve as security for the full and complete
performance of this Title, including any costs, expenses, damages
or loss the City pays or incurs because of any failure attributable
to the grantee to comply with the codes, ordinances, rule,
regulations or permits of the City.
(b) Before any sums are withdrawn from the security fund, the
City shall give written notice to the grantee:
(i)
describing the act, default or failure to be
remedied, or the damages, cost or expenses
which the City has incurred by reason of
grantee's act or default;
(2)
providing a reasonable opportunity for grantee
to first remedy the existing or ongoing
default or failure, if applicable;
(3)
providing a reasonable opportunity for grantee
to pay any monies due the City before the City
withdraws the amount thereof from the security
fund, if applicable;
(4)
that the grantee will be given an opportunity
to review the act, default or failure
described in the notice with the City Manager
or his designee.
(c) Grantees shall replenish the security fund within
fourteen (14) days after written notice from the City that there is
a deficiency in the amount of the fund.
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32-82: Construction and Completion Bond:
Unless otherwise provided in a license or franchise agreement,
a performance bond written by a corporate surety acceptable to
the City equal to at least 100% of the estimated cost of
constructing grantee's telecommunications facilities within
the public ways of the City shall be deposited before
construction is commenced.
(a) The construction bond shall remain in force until sixty
(60) days after substantial completion of the work, as determined
by the City Engineer, including restoration of public ways and
other property affected by the construction.
(b) The construction
satisfaction of the City:
bond shall guarantee, to the
(1) timely completion of construction;
(2)
construction in compliance with applicable plans,
permits, technical codes and standards;
(3)
proper location of the facilities as specified by
the City;
(4)
restoration of the public ways and other property
affected by the construction;
(5)
the submission of "as -built" drawings after
completion of the work as required by this Title
(6) timely payment and satisfaction of all claims,
demands or liens for labor, material or services provided
in connection with the work.
Section 32-83; Coordination of ConstructiO~ Activities:
Ail grantees are required to cooperate with the City and with
each other.
(a) By February 1 of each year, grantees shall provide the
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City with a schedule of their proposed construction activities in,
and around or that may affect the public ways.
(b) Each grantee shall meet with the City, other grantees and
users of the public ways annually or as determined by the City to
schedule and coordinate construction in the public ways.
(c) Ail construction locations, activities and schedules
shall be coordinated, as ordered by the City Engineer, to minimize
public inconvenience, disruption or damages.
Section 32-84: Assignments or Tran~fgrs of Grant:
Ownership or control of a telecommunications system, license
or franchise may not, directly or indirectly, be transferred,
assigned or disposed of by sale, lease, merger, consolidation
or other act of the grantee, by operation of law or otherwise,
without the prior consent of the City, which consent shall not
be unreasonably withheld or delayed, as expressed by ordinance
and then only on such reasonable conditions as may be
prescribed therein.
(a) No grant shall be assigned or transferred in any manner
within twelve (12) months after the initial grant of the license or
franchise, unless otherwise provided in a license or franchise
agreement.
(b) Absent extraordinary and unforeseeable circumstances, no
grant, system or integral part of a system shall be assigned or
transferred before construction of the telecommunications system
has been completed.
(c) Grantee and the proposed assignee or transferee of the
grant or system shall provide and certify the following information
to the City not less than one hundred and fifty (150) days prior to
the proposed date of transfer.
(1)
Complete information setting forth the nature, terms
and condition of the proposed transfer orassignment;
(2)
Ail information required of a telecommunications
license or franchise applicant pursuant Articles 3
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or 4 of this Title with respect to the proposed
transferee or assignee;
(3)
Any other information reasonably required by the
City.
(d) Unless otherwise provided in a license or franchise
agreement, the grantee shall reimburse the City for all direct and
indirect fees, costs, and expenses reasonably incurred by the City
in considering a request to transfer or assign a telecommunications
license or franchise.
(e) Any transfer or assignment of a telecommunications grant,
system or integral part of a system without prior approval of the
City under this Section or pUrsuant to a license or franchise
agreement shall be void and is cause for revocation of the grant.
Section 32-8~: TraB~ction is Affecting CQn~rol of Grant:
Any transactions which singularly or collectively result in a
change of ten percent (10%) or more of the ownership or
working control of the grantee, of the ownership or working
control of telecommunications license or franchise, of the
ownership or working control of affiliated entities having
ownership or working control of the grantee or .of a
telecommunications system, or of control of the capacity or
bandwidth of grantee's telecommunications system, facilities,
or substantial parts thereof, shall be considered an
assignment or transfer requiring City approval pursuant to
Section .... 22 hereof. Transactions between affiliated
entities are not exempt from City approval.
Section 32-86: Re~ocat$on or Termin~%gn of Grant:
A license or franchise granted by the City to use or occupy
public ways of the City may be revoked for the following
reasons:
(a) Construction or operation in the City or in the public
ways of the City without a license or franchise grant of
authorization.
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(b) Construction or operation at .any unauthorized location.
(c) Unauthorized substantial transfer of control of the
grantee.
(d) Unauthorized assignment of a license or franchise.
(e) Unauthorized sale, assignment or transfer of grantee's
franchise or license assets, or a substantial interest therein.
(f) Misrepresentation or lack of candor by or on behalf of a
grantee in any application to the City.
(g) Abandonment of telecommunications facilities in the
public ways.
(h) Failure to relocate or remove facilities as required by
this Title.
(i) Failure to pay taxes, compensation, fees or costs when
and as due the City.
(j) Insolvency or bankruptcy of the grantee.
(k) Violation of material provisions of this Title.
(1) Violation of the material terms of a license or franchise
agreement.
~on 32-87: NQ~e and Duty to Cure:
In the event that the City Manager believes that grounds exist
for revocation of a license or franchise, he shall give the
grantee written notice of the apparent violation or
noncompliance, providing a short and concise statement, of the
nature and general facts of the violation or noncompliance,
and providing the grantee a reasonable period of time not
exceeding thirty (30) days to furnish evidence:
(a) That corrective action has been, or is being actively and
expeditiously pursued, to remedy the violation or noncompliance.
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(b) That rebuts the alleged violation or noncompliance.
(c) That it would be in the public interest to impose some
penalty or sanction less than revocation.
Section 32-88: Hearing:
In the event that a grantee fails to provide evidence
reasonably satisfactory to the City Manager as provided in
Section ..... 26 hereof, the Manager shall refer the apparent
violation or non-compliance to the City Council. The City
Council shall provide the grantee with notice and a reasonable
opportunity to be heard concerning the matter.
Section 32-89: Standards for RevocatiQn o= Lesser Sanctions:
If persuaded that the grantee has violated or failed to comply
with material provisions of this Title, or of a franchise or
license agreement, the City Council shall determine whether
to revoke the license or franchise, or to establish some
lesser sanction and cure, considering the nature,
circumstances, extent and gravity of the violation as
reflected by one or more of the following factors:
(a) Whether the misConduct was egregious.
(b) Whether substantial harm resulted.
(c) Whether the violation was intentional.
(d) Whether there is a history of prior violations of the
same or the requirements.
(e)
(f)
or cured.
Whether there is a history of overall compliance.
Whether the violation was voluntarily disclosed, admitted
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Article VIII: Construction Standards
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Section 32-90: Gene=alj
No person shall commence or continue with the construction,
installation, or operation of telecommunications facilities
within the City except as provided in this Article.
Section 32-91: Construction Codes:
Telecommunications facilities shall be constructed, installed,
operated and maintained in accordance with all applicable
federal, state and local codes, rules and regulations
including the National Electrical Safety Code.
SectiQn 32-92: Construction Permits:
No person shall construct or install any telecommunications
facilities within the City without first obtaining a
construction permit therefor, provided, however.
(a) No permit shall be issued for the construction or
installation of telecommunications facilities within the City
unless the telecommunications carrier has filed a registration
statement with the City pursuant to Article 2 of this Title.
(b) No permit shall be issued for the construction or
installation of telecommunications facilities in the public ways
unless the telecommunications carrier has applied for and received
a license or franchise pursuant to Articles 3, 4 or 5 of this
Title.
(c) No permit shall be issued for the construction or
installation of telecommunications facilities without payment of
the construction permit fee established in Section 6.6 of this
Title.
Section 32-93: Applications:
Applications for permits to construct telecommunications
facilities shall be submitted upon forms to be provided by the
City and shall be accompanied by drawings, plans and
specifications in sufficient detail to demonstrate:
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(a) That the facilities will be constructed in accordance
with all applicable codes, rules and regulations.
(b) The location and route of all facilities to be installed
on existing utility poles.
(c) The location and route of all facilities to be located
under the surface of the ground, including the line and grade
proposed for the burial at all points along the route which are
within the public ways.
(d) The location of all existing underground utilities,
conduits, ducts, pipes, mains and installations which are within
the public ways along the underground route proposed by the
applicant.
(e) The location of all other facilities to be constructed
within the City, but not within the public ways.
(f) The construction methods to be employed for protection of
existing structures, fixtures, and facilities within or adjacent to
the public ways.
(g) The location, dimension and types of all trees within or
adjacent to the public ways along the route proposed by the
applicant, together with a landscape plan for protecting, trimming,
removing, replacing and restoring any trees or areas to be
disturbed during construction.
Section 32-94: Engineer's Certi~icatioJl:
Ail permit applications shall be accompanied by the
certification of a registered professional engineer that the
drawings, plans and specifications submitted with the
application comply with applicable technical codes, rules and
X.
Section 32,95: Traffic Control Plan:
Ail permit applications which involve work on, in, under,
across or along any public ways shall be accompanied by a
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traffic control plan demonstrating the protective measures and
devices that will be employed, consistent with Uniform Manual
of Traffic Control Devices, to prevent injury or damage to
persons or property and to minimize disruptions to efficient
pedestrian and vehicular traffic.
~ection 32.96: Is~Dce of Permit:
Within forty-five (45) days after submission of all plans and
documents required of the applicant and payment of the permit
fees required by this Title, the City Engineer, if satisfied
that the applications, plans and document comply with all
requirements of this Title, shall issue a permit authorizing
construction of the facilities, subject to such further
conditions, restrictions or regulations affecting the time,
place and manner of performing the work as he may deem
necessary or appropriate.
Section 32.97: Construction ~¢hedule:
The permittee shall submit a written construction schedule to
the City Engineer 10 working days before commencing any work
in or about the public ways. The permittee shall further
notify the City Engineer not less than 2 working days in
advance of any excavation or work in the public ways.
$9~ion 32,98: Complianc~ with Perrait:
Ail construction practices and activities shall be in
accordance with the permit and approved final plans and
specifications for the facilities. The City Engineer and City
representatives shall be provided access to the work and such
further information as he or she may require to ensure
compliance with such requirements.
Section 32.99: Display of Permit:
The permittee shall maintain a copy of the construction permit
and approved plans at the construction site, which shall be
displayed and made available for inspection by the City
Engineer or his representatives at all times when construction
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work is occurring.
$~g~ion 32.10Q: Survey of Underground Facilitigs:
If the construction permit specifies the location .of
facilities by depth, line, grade, proximity to other
facilities or other standard, the permittee shall cause the
location of such facilities to be verified by a professional
Florida land surveyor. The permittee shall relocate any
facilities which are not located in compliance with permit
requirements.
~tion 32.101: Nonqomplying Work:
Upon order of the City Engineer, all work which does not
comply with the permit, the approved plans and specifications
for the work, or the requirements of this Title, shall be
removed.
Sec~Qn 32. 102: Com~!~ioo of Construction:
The permittee shall promptly complete all construction
activities so as to minimize disruption of the City ways and
other public and private property. All construction work
authorized by a permit within City ways, including
restoration, must be completed within 120 days of the date of
issuance.
Section 32.103: As-Built Drawings:
Within sixty (60) days after completion of construction, the
permittee shall furnish the City with two (2) complete sets of
plans, drawn to scale and certified to the City as accurately
depicting the location of all telecommunications facilities
constructed pursuant to the permit.
SeG~ion_ 32L104: R~Dration of improvements:
Upon completion of any construction work, the permittee shall
promptly repair any and all public and provide property
improvements, fixtures, structures and facilities in the
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public ways or otherwise damaged during the course of
construction, restoring the same as nearly as practicable to
its condition before the start of construction.
Section 32-105: LandscaDe ~estoration:
(a) Ail trees, landscaping and grounds removed, damaged or
disturbed as a result of the construction, installation
maintenance, repair or replacement of telecommunications
facilities, whether such work is done pursuant to a franchise,
license, permit replaced or restored as nearly as may be
practicable, to the condition existing prior to performance of
work.
(b) All restoration work within the public ways shall be done
in accordance with landscape plans approved by the'City Engineer.
S~tion 32-106:~n~ruction Surety:
Prior to issuance of a construction permit, the permittee
shall provide a performance bond, as provided in Section 7.21
of this Title.
Section 3~-107: Exceptions:
Unless otherwise provided in a license or franchise agreement,
all telecommunications carriers are subject to the
requirements of this Article 8.
Section 32-108: ResDon~b~lity
The owner of the facilities to be constructed and, if
different, the license or franchise grantee, are responsible
for performance of and compliance with all provisions of this
Article.
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