Ord. No. 05-99-1679I
2 ORDINANCE NO. 5-99-1679
3
4 AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF
5 THE CITY OF SOUTH MIAMI, FLORIDA, RELATING TO RIGHTS OF
6 WAY; AMENDING CHAPTER 13 OF THE CODE OF ORDINANCES
7 OF THE CITY OF SOUTH MIAMI, ENTITLED "LICENSES" BY
8 ENACTING ARTICLE X, ENTITLED "TELECOMMUNICATIONS
9 SYSTEMS;" AUTHORIZING NON- EXCLUSIVE LICENSE
10 AGREEMENTS FOR USE OF PUBLIC RIGHTS -OF -WAY AND
11 STREETS FOR PURPOSE OF ERECTING, CONSTRUCTING,
12 MAINTAINING AND OPERATING LINES AND EQUIPMENT FOR
13 PROVISION OF TELECOMMUNICATIONS SERVICES AND LOCAL
14 EXCHANGE TELEPHONE SERVICES; PROVIDING FOR
15 SEVERABILITY, ORDINANCES IN CONFLICT, AND AN EFFECTIVE
16 DATE.
17
18
19
20 WHEREAS, the City of South Miami has and reserves the right to exercise
21 municipal police powers over the use of its highways, streets, alleys, Right -of -way and
22 public places and to receive a reasonable and nondiscriminatory rent for the use of all
23 Right -of -way; and,
24
25 WHEREAS, the City Right -of -way are valuable public properties acquired and
26 maintained by the City at great expense to City taxpayers, and the right to use Right -of-
27 way is a valuable property right without which providers would be required to invest
28 substantial capital and property acquisition costs; and,
29
30 WHEREAS, telecommunication service providers have requested permission from
31 the City to construct, maintain and operate private communications systems under and
32 along the Right -of -way to conduct business; and,
33
34 WHEREAS, these policies are in complete accord with both the letter and the
35 spirit of the Federal Telecommunications Act of 1996; and,
35
37 WHEREAS, the City desires to insure that the Right-of-way are utilized and
38 promptly restored to a safe and secure condition to protect the health, safety and welfare
39 of the City's citizens; and,
40
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WHEREAS, in certain instances local recurring revenues are insufficient
compensation for administration, management and use of Right-of-way where there is
little or no customer base within the jurisdictional limits of the City; and,
WHEREAS, it is the intent of the City in the adoption of this ordinance to allow
the use of the appropriate Right- of-way of the City to provide telecommunications
services within the City and, under its police powers, to regulate the use of Right -of -way
by providers and to charge providers reasonable and non - discriminatory rents for the use
of Right -of -way.
NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND CITY
COMMISSION OF THE CITY OF SOUTH MIAMI:
Section 1. Chapter 13 of the Code of Ordinances of the City of South Miami.,
entitled "Licenses," is amended by enacting Article X, entitled "Telecommunications
Systems," for the purpose of authorizing non - exclusive license agreements for the use of
public Right -of -way and streets to erect, construct, maintain and operate lines and
equipment for the provision of telecommunications services and local exchange telephone
service, as provided in this ordinance.
CHAPTER 13 LICENSES
ART. X - TELECOMMUNICATIONS SYSTEMS
See. 13-69. Purpose.
The purpose of this ordinance is to establish a competitively neutral policy for
usage of public Right- of-way for the provision of telecommunications services and
enable the City to:
(a) Permit non - discriminatory access to the public Right -of -way for providers of
telecommunications services; and,
(b) Manage the public Right -of -way in order to minimize the impact and cost to
the citizens of the placement of telecommunications facilities within the Right-
of-way; and,
(c) Obtain fair and reasonable compensation as allowed by federal and state law
for the commercial use of public Right -of -way in a non - discriminatory manner;
and,
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1 (d) Promote competition among telecommunications service providers and
2 encourage the universal availability of advanced telecommunications services
3 to all residents and businesses of the City; and,
4
5 (e) Minimize congestion, inconvenience, visual impact and other adverse effects
6 on the City's public Right -of -way.
7
s Sec. 13 -70. Applicable Scope.
9
10 This article applies to all telecommunications service providers under Title 11 of
11 the Communications Act of 1934, as amended (47 U.S.C. 201, et seq.), excluding
12 services provided solely by means of wireless transmission which do not use the
13 public Right -of -way. This article does not exempt providers of open video
14 systems service from the requirements of Title VI and applicable FCC rules and
15 regulations.
16
17
is See. 13-71. Definitions.
19
20 The following terms, phrases, words and derivations shall have the meanings given
21 in this article. Words not otherwise defined in this article or in any license
22 agreement that might be granted under this article shall be given the meaning
23 provided in Communications Act of 1934, 47 U.S.C. § 521, et seq., and the
24 Telecommunications Act of 1996, as amended (the laws are collectively referred to
25 as the Communications Act), and, if not defined there, as defined by Florida
26 Statutes, and, if not defined there, the words shall be given their common and
27 ordinary meaning.
29 (a) "Affiliate" means any person, directly or indirectly, controlling, controlled by,
30 or under common control with the provider; provided, affiliate shall in no event
31 mean any limited partner or shareholder holding an interest of less than 15% of
32 the provider, or any creditor of the provider solely by virtue of its status as a
33 creditor and which is not otherwise an affiliate by reason of owning a
34 controlling interest in, being owned by, or being under common ownership,
35 common management, or common control with the provider.
G.
37 (b) "Applicant" means any person who files an application with the City under the
38 section entitled "Application to Provide Telecommunications Services," in
39 order to obtain the necessary permission to use the public Right -of -way to
40 provide telecommunications services within the City, whether by means of the
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1 person's own facilities or by means of capacity obtained from another provider
2 of telecommunications services.
3
4 (c) "City Manager" means the City Manager of the City of South Miami, or his or
5 her designee.
6
7 (d) "City Requirements " means all laws, rules, regulations, policies and directives
8 of general application of the City, in effect at present or to be adopted in the
9 future by the City.
10
11 (e) "Collocation " means the shared use of facilities, including but not limited to
12 the placement of conduits owned by more than one provider in the same trench
13 and the placement of fiber owned by more than one provider in the same
14 conduit. Collocation does not include interconnection of facilities or the sale
15 or purchase of capacity, whether bundled or unbundled.
16
17 (f) "Facilities" means any portion of a system or of a private communication
18 system located in the Right -of- -way.
19
20 (f) "FCC" means the Federal Communications Commission, or any successor
21 agency.
22
23 (g) "Gross Revenue or Gross Receipts" means all revenue received by the
24 licensee on recurring local services provided within the corporate limits of the
25 City,
26
27 (h) "License" means the right granted by the City under the authority of Florida
28 Statutes section 337.401, et seq., to a licensee in a license agreement to
29 construct, maintain and operate a telecommunications system and the necessary
3o poles, conduits, cables, electrical conductors, fiber - optics and digital
31 technology fixtures under, on, and over streets, roads and any other public
32 ways, rights -of way, or easements within all or portions of the City. The term
33 does not include any license or permit that may be required by this article or
34 other laws, ordinances or regulations of the City for the privilege of transacting
35 and carrying on a business within the City or for disturbing or carrying out any
36 work on any public Right- of-way or for the installation, maintenance, operation
37 or provision of any telecommunications facility or service not expressly
38 granted by the City.
39
40 (i) "License Agreement" means a contract entered into in accordance with the
41 provisions of this article between the City and a licensee that sets forth the
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1 terms and conditions under which the license will be exercised. Any license
2 agreement issued in accordance with the provisions of this article shall be a
3 non - exclusive license agreement.
4
5 (j) "Licensee" or "Provider" means the holder of a license to use the public
6 Right -of -way under the provisions of this article.
s (k) "Municipal Rights -of Way Use License " means the right granted by the City to
9 use public Right-of-way to provide telecommunications services within the
10 City to the public or to other providers, as specified by the terms of this article.
11
12 (1) "Person " means any person, firm, partnership, association, corporation,
13 company or organization of any kind and includes a telecommunication
14 company, carrier or provider, but shall not mean the City.
15
16 (m) "Public Rights -of -way" means the surface, the space above the surface and
17 the area below the surface of any public street, highway, lane, path, alley,
18 sidewalk, drive, boulevard, bridge, Swale, canal, greenway, casement or similar
19 property in which the City holds any property interest, or over which it
20 exercises any rights of management or control.
21
22 (n) "Recurring Local Service Revenues " means the revenue derived by a provider
23 from local service, as defined by Florida Statutes, within the corporate limits of
24 the City.
25
26 (o) "Telecommunications" means the transmission, between or among points
27 specified by the user, of information without change in the form or content of
28 the information sent and received.
29
30 (p) "Telecommunications Company Carrier" or "Provider" means a corporation,
31 partnership, or other person and their lessees, trustees, or receivers appointed
32 by a court, or a political subdivision in the state, offering two -way
33 telecommunications service to the public for hire within this state by the use of
34 a telecommunications facility and who falls under the definition of Applicable
35 Scope, referred to in Sec. 13 -70. The term "telecommunications company"
36 does not include any entity which provides a telecommunications facility
37 exclusively to a certified telecommunications company, a commercial mobile
38 radio service provider, a facsimile transmission service, a private computer data
39 network company not offering service to the public for hire, or a cable
40 television company providing cable service as defined in 47 U.S.C. § 522.
41
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I (q) "Telecommunications Company Providing Local Exchange Service" means
2 any local exchange telecommunications company and any alternative local
3 exchange telecommunications company, as defined in Florida Statutes section
4 364.02.
5
6 (r) "Telecommunications Company Providing Toll Telephone Services" is as
7 defined in Florida Statutes section 203.012(7).
s
9 (s) "Telecommunications Network or Network" means all facilities placed in the
10 public Right -of -way and used to provide telecommunications services.
11
12 (t) "Telecommunications Services" means all telecommunication - related services
13 by a telecommunications company, as defined by Florida Statutes section
14 203.012 (5) and (7) and subject to the provisions of Florida Statutes section
15 337.401 (3) and (4).
T
17 (u) "Telecommunications System" means a system utilized by a
18 telecommunications company to provide telecommunications services and
19 includes any system of cables, wires, lines, towers, way guides, optic fiber,
20 microwave, laser beams, any associated converters, equipment or facilities
21 designed and constructed for the purpose of producing, receiving, amplifying
22 or distributing telecommunications services to or from subscribers or locations
23 within the City.
24
25 (v) "Trenchless Technology" means the use of directional boring, horizontal
26 driving and micro- tunneling and other similar techniques in the construction of
27 underground portions of facilities.
28
29 (w) "Underground Facilities " means all lines, cables, conduits, posts, tanks and
30 any other facilities owned or operated by persons other than the City which are
31 located wholly or primarily underneath Right-of-way.
32
33 Sec. 13 -72. Municipal Right- of-way Use License Required.
34
-35 (a) A license from the City is required, subject to the provisions of Florida Statutes
36 section 337.401, et. seq., to construct, operate, maintain, or occupy a public
37 Right - of-way with a system designed to deliver telecommunications services.
38 A person may not use the City's public Right -of -way to deliver
39 telecommunications services in the City by means of a network unless the
40 person obtains a Municipal Rights -of -Way Use License.
41
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I (b) The use of public Right -of -way for the delivery of any service not covered by
2 this article is subject to all other applicable City requirements.
3
4 (c) Notwithstanding any provision to the contrary in this article, providers desiring
s to provide cable services as defined pursuant to the provisions of the
6 Telecommunications Act must obtain a franchise agreement from the City
7 pursuant to the Cable Franchise Ordinance.
8
9 Sec. 13 -73. Rights Granted by License.
10
11 (a) It shall be unlawful for any person to construct or operate a
12 telecommunications system upon, along, under or over the public Right-of-
13 way of the City without having obtained permission from the City
14 Commission pursuant to this article or the other ordinance of the City as may
15 be applicable.
16
17 (b) Subject to all existing permitting processes, including, but not limited to,
18 zoning and building permit, the licensee is authorized to occupy, install, lay,
19 erect, construct, operate, remove, relocate and maintain in, on, over or upon
20 any and all of the public Right-of-way of the City as they exist now or may be
21 constructed, opened, laid out or extended within the present limits of the City,
22 or in the territory as may be added to the City, and any and all the conduits,
23 cables, fiber-optic lines, poles, wires, supports and other structures and
24 appurtenances as may be reasonably necessary for the construction,
25 maintenance and operation of a telecommunications system. A license
26 granted under this article does not convey the right to attach cable or conduit
27 to poles, or occupy or use real or personal property owned by the City.
28
29 (c) Any license granted under this article shall be non - exclusive, and the issuance
30 of a license will not expressly or implicitly preclude the City from issuing
31 other licenses or permits to telecommunications companies or affect the
32 City's right to authorize use of easements and public rights -of way for other
33 lawful purposes to other persons as it determines appropriate.
34
35 (d) A license issued under this article authorizes the provider to use the Right-of-
36 way to provide telecommunications services only. Use of the public Right -
37 of -way for any other purpose requires separate authorization.
38
39 (e) A licensee shall not sell, transfer, assign, lease, sublet or dispose of, in whole
40 or in part, either by forced or involuntary sale, or by ordinary sale,
41 consolidation or otherwise, a license granted pursuant to this article without
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4
5 Sec. 13 -74. Municipal Rights -of -Way Use License Application; Information
6 Required; Issuance.
7
s (a) Any person desiring to install or operate a telecommunications system by
9 using public Right-of-way in the City shall submit an application to the City
10 Manager for a license pursuant to this article. The application, in a form to be
11 prescribed by the City Manager, shall describe the services the applicant
12 desires to provide, describe applicant's proposed network and identify the
13 uses of, and potential impact on, the public Right -of -way. All applications to
14 construct, operate or maintain any telecommunications services system in the
15 City or to traverse any portion of the City for transmitting or conveying
16 service elsewhere shall be filed with the City Manager. To be acceptable for
17 filing, an original and two copies of the application must be submitted and be
18 accompanied by an application filing fee of $2,500.00. In addition, the City
19 may charge a supplementary application fee to reimburse the City for any
20 external costs it incurs in the course of receiving and rendering a decision on
21 the application.
22
23 (b) The City Manager shall have the duty to review applications submitted under
24 this article and administer its provisions regarding the granting or denial of a
25 Municipal Rights -of -Way Use License to applicants. The City Manager shall
26 issue Municipal Rights-of-Way Use Licenses and shall administer and
27 enforce compliance with respect to all licenses granted under this article.
28
29 (c) Each application for an initial license shall provide all information necessary
30 for review and approval, including the following:
31
32 (1) The name, address and telephone number of the applicant.
33
34 (2) The names and addresses of any parent corporation, parent entity, or
35 holding company that owns, or by ownership of other entities,
36 controls the applicant.
37
38 (3) A detailed description of the proposed plan of operation of the
39 applicant which shall include, but not be limited to, the following:
40
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I (i) A detailed map indicating all areas proposed to be served, a
2 proposed time schedule for the installation of all equipment
3 necessary to become operational throughout the entire area to
4 be served, a description of the construction of the proposed
5 system, including an estimate of the above and below ground
6 mileage and the projected total cost of construction of the
7 system.
8
9 (ii) A description of the services to be provided initially.
10
11 (iii) Any other information as requested in order for the City to
12 comply with state or federal law.
13
14 (4) A copy of federal and state certification authorizing the applicant to
15 provide telecommunications services.
16
17 (5) Any other reasonable information which could materially affect the
18 granting of the pig license and which is requested by the City.
19
20 (d) To the extent allowed by the public records law, the City shall maintain as
21 confidential all proprietary information provided by licensee. Licensee
22 shall specifically identify all information submitted which is exempt from
23 disclosure under federal and state public records law, and shall identify the
24 nature of the exemption provide citations to the specific sections of federal
25 and state law which apply.
26
27 (e) The City Manager shall prepare a report to the City Commission regarding
28 the award of a license which shall consider the criteria in this article and
29 shall contain the City Manager's recommendations concerning the
30 application. The City Manager shall schedule a hearing before the City
31 Commission to consider if the applicant has met the requirements of this
32 article. The City shall make a final determination on the application within
33 4 3 months of the date a completed application was received unless it is
34 determined that the applicant has caused the delay.
35
36 (f) The City Commission shall consider all factors required by federal or state
37 law, including, among other factors, the applicant's technical, legal and
38 financial qualifications to construct and operate the facilities proposed; the
39 nature of the proposed system; the capability of the public Right -of -way to
40 accommodate the proposed system; the present and future use of the public
41 Right -of -way to be used; and the applicant's ability to meet the
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requirements of this article. The City Commission shall approve, or
disapprove if it is determined that the applicant cannot comply with the
terms and conditions in this article, or take any other action it finds to be in
the public interest.
(g) Within 30 calendar days after the awarding of the license, the provider shall
file with the City Manager its written acceptance of the license, together
with the insurance policy and bonding documents required by this article
and its agreement to be bound by and to comply with all requirements
pursuant to the provisions of this - article and the license. All material
statements and declarations made in the application shall be incorporated as
conditions of the license. The acceptance and agreement shall be in form
and content satisfactory to and approved by the City Attorney.
Sec. 13 -75. Administration and Enforcement.
(a) The City Manager shall administer this article and enforce compliance with
a Municipal Rights -of -Way Use License granted under this article.
(b) A licensee shall report information that the City Manager requires in the
form and manner prescribed by the City Manager relating to the use of
public Right -of -way for the Right -of -way occupancy authorized by a
Municipal Rights-of-Way Use License granted under this article.
(c) The City Manager shall report to the City Commission the City Manager's
determination that a provider has failed to comply with this article.
Sec. 13 -76. Term of License — Termination.
(a) No license, including a renewal license, shall be issued for a term longer
than 7 years.
(b) A licensee shall have a right to renew provided:
(1) Licensee is authorized by the controlling regulatory authority to
provide telecommunications services in the City; and,
(2) Licensee has complied with all material provisions of the license. A
material breach shall not be the basis for a refusal to renew unless
the licensee has been provided 60 -days written notice and
opportunity to cure and has failed to cure the breach. Modifications
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I
to the license including new terms, provisions, or conditions as
2
allowed by the prevailing law at the time of renewal may also be
3
required by the City upon renewal. A license may be renewed for
4
additional successive periods not to exceed 7 years.
5
6
(3) Termination Events. The occurrence of any of the following
7
(collectively referred to as Termination Events) may result in the
s
termination of a license issued under this article: (1) the occurrence
9
of an Event of Default that remains uncured; (2) the purchase by the
10
City of the property and property rights of the licensee; or (3) the
11
licensee shall cease to operate the system within the City for any
12
consecutive period of 180 days during the term of the license.
13
14
(4) Termination Procedure. Upon the occurrence of a Termination
15
Event, the City may, at its option, terminate the agreement as
16
follows: (1) the City shall schedule a public hearing to be held
17
before the City Commission. The company shall be given at least 30
18
calendar days notice of the public hearing. The written notice shall
19
also describe the Event of Default or other event that the City alleges
20
is a Termination Event; (2) at the public hearing, the commission
21
shall hear and consider relevant evidence regarding the Termination
22
Event. If the commission finds that the alleged Termination Event
23
has occurred and that the company is not diligently proceeding to
24
fatly cure the Termination Event, the commission may terminate the
25
license agreement. In the event of the termination, the licensee shall,
26
within a reasonable time following demand by the City, remove or
27
abandon the telecommunications system and take the steps as are
28
necessary to render every portion of the telecommunications system
29
remaining within the public Right -of -way of the City safe, and shall
30
be deemed to have abandoned the system in its entirety; and the
31
system shall become the sole property of the City without payment
32
to the licensee. If the City agrees to abandonment, the licensee shall
33
incur, from that time forward, no future obligations with respect to
34
the telecommunications system.
35
36 Sec. 13 -76. License Fees.
37
38 To compensate the City for the use and occupancy of the public Right-of-way and
39 easements and in consideration for the rights, privileges and permission granted in
40 this article, a licensee shall pay a municipal Right -of -way rental fee calculated as
41 follows:
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(a) Rights-of-Way Rental Fee:
(1) Telecommunication Company Providing Local Exchange Service.
Subject to applicable federal and state law, each licensee which is a
telecommunications company providing local exchange services
shall be subject to a license fee equal to a 1% annual fee based on
gross receipts on recurring local service revenues for services
provided within the City. The fee shall be paid on a quarterly basis
in arrears. Included within the 1 % fee are all taxes, licenses, fees
and other impositions except ad valorem taxes, amounts for special
assessments for public improvements, occupational license taxes
levied or imposed by the City and paid during the preceding calendar
year, and permit fees. The license fee shall be imposed in
accordance with the standards provided in Florida Statutes section
337.401(3), as amended.
(2) Telecommunication Company Solely Providing Toll Telephone
Service.
(i) Except as otherwise provided in this article, it shall be a term
and condition of any license issued by the City that, as a part
of the consideration for the issuance of the license and the
City's permission to use the public Right -of -way, each
licensee that provides toll telephone service shall pay each
year to the City compensation and license fees. The
compensation and license fees for telecommunications
systems shall be in accordance with the standards provide in
Florida Statutes section 337.401 (4), as amended. The
amount of the compensation and fee shall be established and
adjusted from time to time after public hearing before the City
Commission and after public notice;
(ii) The City may adjust the license fee for private
communications systems annually by an amount not in
violation of Florida Statute section 337.401(4), subsequent to
the establishment of this license fee, or subsequent to the most
recent adjustment in the license fee for any and all subsequent
adjustments after the first adjustment, and only after a public
hearing and at least 60 -days prior written notice to all current
licensees. Except for new lines, cables or fiber-optic cables
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1 within a conduit or duct -bank owned by another permittee, the
2 license fee shall be based on the same amount for all non -
3 governmental entities subject to the requirements of this
4 article, except in no event, however, shall the fee be less than
5 $500.00 per linear mile per annum;
6
7
(iii) Upon the effective date of the adoption of this article and in
8
accordance with the provisions of the preceding sub - section
9
regarding "Toll Telephone Service," the following fee
10
schedule is established as follows:
11
12
ANNUAL FEE:
13
14
First 50 linear feet of pathway or less $250.00.
15
Each linear foot of pathway over 50 feet up to
16
and exceeding a linear mile $500.00
17
Each linear mile $500.00
18
19
(3) Non - Monetary Consideration: To the extent allowed by federal and
20
state law, the City may accept non - monetary consideration from each
21
provider, which shall be exclusively used by the City and shall not
22
be resold, assigned, transferred or used by third parties without the
23
express written consent of a licensee. To the extent not expressly
24
prohibited by applicable law and as provided in this article, a
25
licensee may agree to furnish to the City non - monetary consideration
26
in the farm of telecommunications services, network capacity,
27
conduit, or other infrastructure, valued at the provider's direct cost.
28
The City Manager shall apply a credit or an offset for any non-
29
monetary consideration received to the annual Right -of -way rental
30
fee. The City Manager shall publicly disclose the form of non-
31
monetary consideration and the credit amount.
32
33
(4) Fees From Certain other Telecommunications Services Providers.
34
Every person providing telecommunications services defined in
35
Florida Statutes section 203.012(7), or any private
36
telecommunications system, other than a provider receiving
37
recurring local service revenues within the City, shall pay as a fee to
38
construct or maintain its facilities, a fee equal to 12.5 ¢ quarterly per
39
linear foot of cable, fiber -optic or other pathway that makes physical
40
use of the public Right -of -way.
41
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I (b) In the event that the license fee authorized by federal, state or local law
2 shall be increased or decreased beyond the fee specified in this article or the
3 license agreement, the City shall be authorized to unilaterally amend this
4 article to provide for the license fee authorized by federal, state or local law.
5
6 (c) The license fee shall be due quarterly based upon licensee gross receipts
7 during the preceding quarter. The quarterly fees shall be submitted
s according to the following schedule and shall be made no later than 45 days
9 following the end of these periods: January -March fees due May 10th;
10 April -June fees due August 10th; July- September fees due November 10th;
11 October- December fees due February 10th of each year. Accompanying
12 each payment of license fees, the licensee shall file a report on a form
13 provided by the City Manager, of its calculation of the license fee payment,
14 stating its gross receipts, and how gross receipts were calculated, on
15 existing linear feet of cable, fiber- optic, or other pathway.
16
17 (d) If the license fee is not received by the City within the period, the licensee
18 shall pay interest on any the unpaid portion at the rate of 18 % per year,
19 from the day payment is due until the date of payment to the City. The
20 licensee shall reimburse the City for the actual and reasonable out -of- pocket
21 costs, including attorneys' fees, of the City associated with collecting any
22 sums of money the licensee is required to remit to the City, provided the
23 amount collected exceeds the amount paid by 5 %.
24
25 (e) The sums of money to be paid by the licensee to the City under this article
26 are compensation and consideration for the use by the licensee of the public
27 Right -of -way, for the construction, maintenance and operation of the
28 system and are not taxes, as allowed by the Florida Constitution, the general
29 or special laws of the State of Florida or any other ordinances of the City.
30 Payments by licensee shall be as allowed by Florida Statutes section
31 337.401 (1) and (3) and shall not exempt the licensee from the payment of
32 any other permit fee, occupational fees, tax or charge on the business,
33 occupation, property, activity, or income of the licensee that may be
34 imposed by federal, state, or local law to the extent allowed by the laws, or
35 for any special assessment.
36
37 Sec. 13 -77. Audits; Review, Inspection of Books, Records and System.
38
39 (a) All amounts paid under this article shall be subject to a yearly audit and re-
40 computation by the City on 30 -day's written notice. The licensee shall
41 make available to the City once per year, during normal business hours and
Page 14 of 35
I at the licensee's local office, the books, records, customer lists of customers
2 in the City from whom revenue is derived, accounts and other
3 documentation of the licensee (collectively referred to as the Reports) that
4 are necessary to determine the accuracy of the gross receipts upon which
5 the license fee payment is based. The licensee shall maintain its records in
6 the a manner as to clearly identify revenues derived from operations in the
7 City. The City may waive this requirement with any particular licensee if
8 an agreement is reached that other methods will be utilized the as audit
9 sampling techniques which can clearly isolate revenues to which the City is
10 entitled. In the event the reports are not made available within the City, the
11 licensee shall reimburse the City for the reasonable travel expense of the
12 City representative resulting from said representative's travel to the location
13 where the reports are maintained. The City shall maintain all books,
14 records, accounts and other documentation of licensee in strictest
15 confidence to the extent allowed under the Public Records Act and other
16 applicable Florida laws.
17
18 (b) A licensee shall keep complete and accurate books of accounts and records
19 of business and operations in accordance with generally accepted
20 accounting principles as required by the Florida Public Service Commission
21 (PSC) and the Federal Communications Commission (FCC). If the FCC
22 requires, a provider shall use the system of accounts and the forms of
23 books, accounts, records and memoranda prescribed in 47 CFR Part 32, as
24 amended.
25
26 (c) The City may, at its option, and upon reasonable notice to licensee at any
27 time, inspect the lines, facilities and equipment related to the operations of
28 the system in the City, along the public Right -of -way or other municipally -
29 owned property. Licensee shall have the right to have a representative
30 present for the inspection.
31
32 Sec. 13 -78. Annual Reports.
33
34 (a) Within 6 months of the close of its fiscal year, the licensee shall file an
35 annual report to the City Manager that includes the following information:
36
37 (1) A report of revenues that shall be specific as to the extent of
38 operations in the City and shall be of sufficient scope to allow
39 independent ascertainment of the licensee's compliance with the
40 license fee requirements of this article. All reports shall be prepared
Page 15 of 35
I in accordance with generally Accepted Accounting Principles
2 (GAAP).
3
4 (2) The full legal name of the licensee as of that date.
5
6
7 ,
8 99C,
9
10
11 Sec. 13 -79. Transfers of Control; Sale or Assignment.
12
13 Licensee shall have no right to assign the license, in whole or in part, without prior
14 written consent of the City, which shall not be unreasonably held or delayed. Any
15 attempt by licensee to assign the license without the consent shall be null and void.
16 Consent shall be deemed granted within 90 days of any request unless the City
17 finds that the proposed assignee or transferee lacks the legal, financial or technical
18 qualifications to operate license system. ,
19
20 , > >
21
22
23
24 Sec. 13 -80. Use of City Public Rights -of -way; Construction Requirements:
25 Alteration of System; Access by City.
26
27 (a) A licensee is subject to the police powers of the City, other governmental
28 powers, and the City's rights as a property owner under the state and federal
29 laws. A licensee is subject to all applicable federal, state and City
30 regulations, in connection with the construction, expansion, reconstruction,
31 maintenance or repair of facilities in the public Right -of -way.
32
33 (b) Subject to all applicable provisions and regulations of the City, the licensee
34 may perform all necessary work to construct, operate and maintain its
35 telecommunications system. The licensee must comply at all times with all
36 policies, procedures and directives of the Public Works Department, the
37 Building Department and the Planning and Zoning Department. Prior to the
38 installation, placement or removal of any conduits, cables or pole lines,
39 facilities, or the start of any other type of construction on City public Right -
40 of -way and easements, the licensee shall, pursuant to the requirements of
41 existing or subsequently enacted City ordinances, obtain all permits from,
Page 16 of 35
I and pay all fees to the City. The issuance of a permit by the City shall not
2 be construed by the licensee as a warranty that the placement by the
3 licensee of its conduits, cables or pole lines, facilities, or the start of
4 construction, is in compliance with any applicable rules, regulations or
5 laws. All construction and maintenance of licensee facilities within public
6 Right -of -way and easements incident to licensee provision of service,
7 regardless of who performs installation and construction, shall be and
s remain the responsibility of the licensee.
9
to (c) A licensee shall place facilities underground according to applicable City
11 requirements.
12
13 (d) At the City's request, a licensee shall furnish the City accurate and
14 complete information relating to the construction, removal, maintenance,
15 operation and repair of facilities performed by the licensee in the public
16 Right -of -way. If any information fiunished is erroneous as to the location
17 of facilities, and reliance on this information results in construction delays
18 or additional expenses, the licensee who furnished the erroneous
19 information shall be liable to the City for the cost of delays and the
20 additional expenses.
21
22 (e) The construction, expansion, reconstruction, excavation, use, maintenance
23 and operation of a licensee's facilities and property are subject to applicable
24 City requirements.
25
26 (1) A licensee shall perform excavations and other construction in the
27 public Right -of -way in accordance with all applicable City
28 requirements, including the obligation to use trenchless technology
29 whenever possible. The Director of Public Works shall waive the
30 requirement of trenchless technology if the Director determines that
31 field conditions warrant the waiver. A licensee shall minimize
32 interference with the use of public and private property and shall
33 follow the construction directions given by the City.
34
35 (2) When a licensee completes construction work, a provider shall
36 promptly restore the public Right -of -way to equal or better prior
37 condition, at the direction of the City. A licensee may excavate only
38 for the construction, installation, expansion, repair, relocation,
39 removal and maintenance of provider facilities.
40
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(3) The City encourages each licensee authorized to construct facilities
in the Right -of -way to construct those facilities so that they are
capable of collocation. The City also encourages any licensee whose
facilities are capable of collocation to allow other persons to
collocate, subject to reasonable and non - discriminatory terms and
conditions negotiated between the parties.
(4) A licensee shall furnish the Director of Public Works and the
Building Department with construction plans and maps showing the
routing of new construction at least 45 days before beginning
construction that involves an alteration to the surface or subsurface
of the public Right -of -way. A licensee may not begin construction
until the plans and drawings have been approved in writing by the
Director of Public Works and the Building Department, and a permit
is issued.
(5) If the City Manager declares an emergency and requests the removal
or abatement of facilities, by written notice, a licensee shall remove
or abate the licensee's facilities by the deadline provided by the City
Manager. A licensee and the City shall cooperate to the extent
possible to assure continuity of service. If a licensee, after notice,
fails or refuses to act, the City may remove or abate the facility, at
the sole cost and expense of the licensee, without paying
compensation to the licensee and without the City incurring liability
for damages. The costs incurred by the City shall be a lien on the
property of the licensee.
(6) Except in an emergency, a licensee may not excavate the pavement
of a public Right -of -way without first complying with City
requirements. When work is performed on an emergency basis,
licensee must apply for a permit by the following business day. In
all instances, licensee shall restore all damaged property to the City's
specifications and indemnify the City for any and all damages caused
by the licensee's emergency work.
(7) Within 60 days of completion of each new segment of a licensee's
facilities, a licensee shall supply the City with a complete set of "as
built" drawings for the segment in a format prescribed by the
Directors of the Building and the Public Works Departments. A
licensee must obtain City approval before relocating licensee's
facilities in the public Right -of -way. The City may not unreasonably
Page 18 of 35
I
withhold approval. A licensee shall furnish a revised map including
2
additional facilities on June 30 of each year to the Director of Public
3
Works showing how new facilities connect to existing facilities.
4
s
(f)
In the exercise of governmental functions, the City has first priority over all
6
other uses of the public Right -of -way. The City has the right to authorize
7
the constructions of sewer, gas, water and other pipe lines or cables and
s
conduits, and to do underground and overhead work, attachment,
9
restructuring or changes in aerial facilities in, across, along, over or under a
10
public Right -of -way occupied by a licensee, and to change the curb,
11
sidewalks or the grade of a public Right -of -way.
12
13
(g)
In case of conflict or interference between the facilities of different
14
licensees, the licensee whose facilities were first permitted shall have
15
priority over competing licensee use of the public Right -of -way. The
16
resolution of any conflict or interference shall be made in a manner which is
17
consistent with the non - discrimination provisions of the Federal
18
Telecommunications Act of 1996.
19
20
(h)
If, during the term of a municipal license, the City authorizes abutting
21
landowners to occupy space under the surface of any public Right -of- -way,
22
the grant to an abutting landowner shall be subject to the rights of the
23
licensee. If the City closes or abandons a public Right -of -way that contains
24
a portion of licensee facilities, the City shall convey the land in the closed
25
or abandoned public Right-of-way subject to the rights granted in the
26
municipal license.
27
28
(i)
Upon written notice by the City, a licensee shall protect, temporarily or
29
permanently, remove, relocate, change or alter the position of licensee's
30
facilities that are in the public Right- of-way within 180 days. Licensee
31
shall bear the costs of any the removal or relocation that meets the
32
requirements in Florida Statutes section 337.403. The City shall give notice
33
whenever the City has determined that removal, relocation, change or
34
alteration is reasonably necessary for the construction, operation, repair,
35
maintenance or installation of a City or other governmental entity's public
36
improvement in the public Right -of -way, or is otherwise in the public
37
interest. The term "in the public interest" also includes, but is not limited to,
38
requiring a licensee to coordinate the relocation of facilities from an
39
aboveground to an underground location when other work is being
40
performed in the public Right -of -way. This article shall not be construed to
Page 19 of 35
I prevent the licensee from recovery of the cost of relocation or removal from
2 private third parties who initiate the request for relocation or removal.
3
4 (j) The City shall regulate the frequency at which construction may occur in
5 the public Right -of -way. Where feasible, the City shall direct licensees to
6 schedule and coordinate construction in the Right -of -way. The City may
7 waive the requirement for a licensee to restore a Right -of -way and to pay an
s equivalent sum into a trust fiord that shall be maintained by the City for the
9 restoration of Right-of-way.
10
11 Sec. 13 -81. No Warranty of Unrestricted Right to Use Public Rights -of -Way.
12
13 It is understood that there may be from time to time within the City various public
14 Right-of-way which the City does not have the unqualified right to authorize
15 licensee to use; therefore, in granting this license, the City does not warrant or
16 represent as to any particular public Right -of -way, or portion of a Right -of -way,
17 that it has the right to authorize the licensee to install or maintain portions of its
18 system, and in each case the burden and responsibility for making the
19 determination in advance of the installation shall be upon the licensee.
20
21 Sec. 13 -82. Other Agreements, Permits and Easement Requirements.
22
23 The City shall not be required to assume any responsibility for securing any Right -
24 of -way, easements or other rights which may be required by the licensee for the
25 installation of its telecommunications system, nor shall the City be responsible for
26 securing any permits or agreements with other persons or utilities.
27
28 Sec. 13 -83. No Property Rights Conveyed.
29
30 Nothing in this article or in the license shall grant to the license holder any right of
31 property in City -owned property or public Right-of-way, nor shall the City be
32 compelled to maintain any of its property or public Right -of -way any longer than,
33 or in any other fashion than, in the City's judgement its own business or needs may
34 require.
35
36 Sec. 13 -84. Location and Relocation of Facilities.
37
38 (a) Unless specifically approved by the City Manager, licensee's system shall
39 be installed underground. All aboveground facilities shall be constructed in
40 the a manner as to minimize the visual impact of the facility. Licensee shall
Page 20 of 35
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provide landscaping sufficient to minimize visual impact, and as approved
by the Environmental Protection Review Board.
(b) Licensees shall not place any facilities, fixtures or equipment where they
will interfere with any existing gas, electric, CATV, telecommunication,
telephone, sewer, drainage or water lines, fixtures or equipment. Licensee
shall not place facilities, fixtures or equipment so as to interfere with any
other persons or companies lawfully using the public Right -of -way to
service residents of the City. The licensee shall locate its lines and
equipment in the a manner that does not interfere unnecessarily with travel
on public Right -of -way, with the installation or operation of gas, electric,
CATV, telephone, water, drainage or sewer line equipment, or with the
rights or reasonable convenience of owners of property which abuts any
public Right -of -way.
(c) Licensees shall relocate any aboveground portion of the systems
underground in any easement or Right -of -way area when existing power or
telephone facilities are relocated. Relocation shall be at licensee's expense,
and the relocation shall be accomplished concurrently with relocation of
power or telephone facilities.
(d) Licensees shall have the authority and the duty to trim trees on or hanging
over public Right-of-way in order to prevent the branches of the trees from
coming in contact with the wires and cables of the licensee. At the option
of the City, the trimming may be done by it or under its supervision and
direction at the expense of the licensee, if prior notification has been given
to the licensee and licensee has failed to respond.
(e) Licensee shall promptly and at licensee's own expense, protect, support,
temporarily disconnect, remove, modify or relocate any part of the system
when required by the City by reason of traffic conditions, public safety,
road construction, change of street grade, installation of sewers, drains,
water pipes, power lines, signal devices, tracks or any other type of City
improvement project, or to accommodate the abandonment of any street.
Licensee shall bear the costs of any the removal or relocation that meets the
requirements of Florida Statute section 337.403. The work shall be
completed no later than 180 days after receiving notice from the City, or the
longer period as may be agreed to by licensee and the City. In the event the
licensee fails to remove or modify its system, the City may, upon notice to
licensee, make the necessary removals and charge the licensee for the cost.
Page 21 of 35
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(f) Each licensee shall, on the request of any person holding a building moving
permit issued by the City, temporarily remove, raise or lower its wires to
permit the moving of buildings. The expense of the temporary removal or
raising or lowering of wires shall be paid by the person requesting the
service, and the licensee shall have the authority to require the pavement in
advance. Licensee shall be given not less than 7 days advance notice to
arrange for the temporary wire changes.
(g) All service lines, drops or laterals that connect the end user customer to
licensee distribution system shall be buried as follows:
(1) On easements and public Right-of-way at the depth as established
by the Public Works Director.
(2) On private property at a sufficient depth so that no portion of the line
is exposed.
(3) The Public Works Director may impose a specific depth requirement
for the lines on private property.
Sec. 13 -85. Work in the Rights -of -Way and Easements.
(a) A licensee must obtain any required permits before causing any damage or
disturbance to Right-of-way as a result of its construction or operations and
must restore to former condition the property in a manner approved by the
City. If the restoration is not satisfactorily performed within a reasonable
time, the City, after 10 -days notice to the licensee, may cause the repairs to
be made at the expense of the licensee. All additional or recurring repairs
required as a result of licensee work may also be made by the City or its
agents at the expense of the licensee if licensee fails to perform the repairs.
(b) All personnel utilized by the licensee in the construction of licensee's
system shall possess identification providing the individual's name,
employer's name, and licensee's name and telephone number.
(c) The licensee shall join and maintain a continuous membership in Sunshine
State One -Call and use its services prior to construction.
(d) Only certified contractors may be utilized for construction.
See. 13-86. Safety.
Page 22 of 35
2 (a) Licensee's work performance, equipment and job sites shall be in
3 compliance with all applicable City, state and federal requirements and
4 shall conform to the provisions of the Public Works regulations. Licensee's
5 work, while in progress, shall be properly protected at all times with
6 suitable barricades, flags, lights, flares or other devices as are required by
7 the Manual on uniform Traffic Control Devices (FDOT) and any
s requirements of the Public Works Department to protect all members of the
9 public having occasion to use the portion of the public Right-of-way
10 involved or adjacent property.
11
12 (b) The licensee shall at all times employ due care and shall install, maintain
13 and use commonly accepted methods and devices for preventing failures
14 and accidents which are likely to cause damage, injuries or nuisances to the
15 public. Licensee structures and all lines, equipment and connection in,
16 over, under and upon the public Right-of-way wherever situated shall at all
17 times be kept and maintained in a safe, suitable, substantial condition, and
18 in good order and repair.
19
20 Sec. 13 -87. City's Right to Inspect.
21
22 The City shall have the right to inspect the installation, construction and
23 maintenance of the system by the licensee as it shall find necessary to insure
24 compliance with the terms of the license and other pertinent provisions of law.
25
26 Sec. 13 -88. Unauthorized Work.
27
28 Any conduits, cables or pole lines installed or replaced without first having
29 obtained the permits herein before provided for shall be removed within 10 days
30 following written notice by the City. Failure to comply following written notice
31 may result in the removal of the conduits, cables or poles by order of the Public
32 Works Department and the cost of removal shall be borne and paid by the licensee.
33 All work will cease until all permits are pulled and fees paid.
34
35 Sec. 13 -89. Protection of City Property.
36
37 (a) In the event licensee work requires the obstruction of City -owned metered
39 parking spaces, the licensee shall pay a fee to the City equal to the revenue
39 produced by the metered parking spaces.
40
Page 23 of 35
I (b) The licensee shall not in any way displace, damage or destroy any sewer,
2 water main, pipe or any other facilities belonging to the City, or to any third
3 party, without the consent of the City, and the licensee shall be liable to the
4 City or to the third party owner, as the case may be, for the cost of any
5 repairs made necessary by any the displacement, damage or destruction and
6 shall pay the costs upon demand.
7
s Sec. 13 -90. Electrical Standards,
9
10 All facilities shall be constructed and maintained in accordance with the National
11 Electrical Code, the National Electrical safety Code and the "Safety Rules for the
12 Installation and Maintenance of Electrical Supply and Communication Lines"
13 established by the Department of Commerce, Bureau of Standards of the United
14 States, in force at the time of the effective date of this article and as amended.
15
16 Sec. 13 -91. As -Built Plans.
17
is The licensee shall produce and provide a complete set of "as built" plans including,
19 but not limited to, horizontal and typical vertical profiles, within 60 days after
20 construction of any portion of the system to the Public Works Department and the
21 Building Department.
22
23 See. 13-92. Emergency.
24
25 In an emergency that affects the public safety as determined by the City, when the
26 licensee or its representative is immediately unavailable or unable to provide the
27 necessary immediate repairs to any portion of the Right -of -way that is damaged
28 due to any faults or sunken areas that may develop in any area over, around or
29 adjacent to same, the City shall have the right to make the repairs at the expense of
30 the licensee.
31
32 Sec. 13 -93. Manholes or Vaults.
33
34 Other than in emergency situations which affect the public safety, the City agrees
35 not to access manholes or vaults without the presence of a telecommunications
36 representative of licensee unless the licensee declines to have a representative
37 present.
Page 24 of 35
1
2 Sec. 13 -94. Service to City.
3
4 If controlling law changes to require the licensee, or to authorize City to require
5 the licensee, to provide telecommunications services or facilities to schools,
6 hospitals, government or other public facilities, the City and the licensee will
7 negotiate in good faith for an arrangement for licensees to provide a reasonable
8 level of the services in City, taking into account: (1) industry standards; (2) the
9 extent licensee provides the service in other jurisdictions; and (3) economic and
10 technical feasibility of providing service. If the parties are not able to reach an
11 agreement, the matter shall be submitted to arbitration by an arbitrator agreed upon
12 by the parties or, if the parties cannot agree, by the American Arbitration
13 Association.
14
15 Sec. 13 -95. Insurance Requirements.
16
17 (a) The licensee shall provide, pay for and maintain, throughout the term of its
18 license, and with companies satisfactory to the City, the types of insurance
19 described in this section. All insurance shall be from responsible
20 companies duly authorized to do business in the State of Florida and having
21 a financial rating in Best's insurance Guide of AX or better. The insurance
22 coverage obtained by the licensee shall be approved by the Risk Manager.
23 All liability policies, except workers' compensation policies, shall provide
24 that the City is an additional insured as to liability arising out
25 of, resulting from, or cause by the licensee's operations under the license
26 and shall provide the severability of interest provision. The required
27 coverage must be evidenced by properly executed Certificates of Insurance.
28
29 Thirty (30) days advance written notice must be
30 given to the City of any cancellation or intent not to renew or reduction in
31 the policy coverage, which notice shall be sent by registered or certified
32 mail to the City Manager. Companies issuing the insurance policies shall
33 have no recourse against the City for payment of any premiums or
34 assessments.
35
36 (b) The limits of coverage of insurance required shall be not less than the
37 following:
38
39 (1) Worker's Compensation within statutory limits and employer's
40 liability insurance with limits of not less than $500,000.00. This
41 coverage must be evidenced by a Certificate of Insurance that
Page 25 of 35
I requires at least 30 days advance written notice of cancellation, non-
e renewal or material change to the City Manager.
3
4 (2) Commercial general liability insurance including
5 premises /operations; independent contractors; contractual liability;
6 products /completed operations; XCU coverage; and personal injury
7 coverage for limits of no less than $1,000,000.00 per occurrence
s combined single limit and $2,000,000.00 in the aggregate. The
9 coverage must be evidenced by a Certificate of Insurance that names
10 the City as an additional insured and provides the City Manager with
11 at least 30 days advance written notice of cancellation, non - renewal
12 or material change.
13
14 (3) Commercial automobile liability coverage for all owned, non- owned
15 and hired vehicles for limits of no less than $1,000,000.00 per
16 occurrence combined single limit. This coverage must be evidenced
17 by a Certificate of Insurance that names the City as an additional
18 insured, and provides the City Manager with at least 30 days advance
19 written notice of cancellation, non - renewal or material change.
20
21 (4) Commercial excess or umbrella liability coverage may be used in
22 combination with primary coverage to achieve the required limits of
23 liability. This coverage must be evidenced by a Certificate of
24 Insurance that names the City as an additional insured and provides
25 the City Manager with at least 30 days written notice of cancellation,
26 non- renewal or material change.
27
28 (c) The City may, at its option, allow a licensee to be self - insured for one or
29 more lines of insurance coverage. In the instances, the company shall
30 demonstrate to the Risk Manager of the City that it has adequate financial
31 resources to defend and cover claims in the amounts and categories as
32 required by the Risk Manager of the City.
33
34 (d) Upon the effective date of a license agreement, the licensee shall submit to
35 the City proof that it has obtained the insurance required under this article,
36 including a Certificate of Insurance signed by the insurance agent.
37
38 (e) The City shall have the authority to increase or decrease the policy limits
39 provide above upon 60 days written notice to the licensee. Within 60 days
40 from receipt of a notice to increase its policy limits, the licensee shall
41 submit to the City proof of the increased coverage. The City shall not
Page 26 of 35
1 increase the policy limits required of the licensee unless it increases the
2 requirements for every other licensee operating under a license agreement
3 with the City. The City may decrease the required policy limits for the
4 licensee whether or not policy limits have been decreased for other
5 licensees.
6
7 (f) The licensee shall file and maintain proof of insurance with the Risk
8 Manager of the City during the term of a license. An insurance certificate
9 obtained in compliance with this article is subject to City approval, and in
10 addition to all other requirements under this article, the insurance certificate
11 must contain the following provisions:
12
13 (1) Provide that notice of claims shall be provided to the City Manager
14 by certified mail, and
15
16 (2) Provide that the terms of the municipal license which impose
17 obligations on the licensee concerning liability, duty and standard of
is care, including the indemnity section, are included in the policy and
19 that the risks are insured within the policy terms and conditions.
20
21 The City may require the certificate to be changed to reflect changing
22 liability limits. A licensee shall immediately advise the City of actual or
23 potential litigation that may develop that would affect insurance coverage
24 related to a municipal license.
25
26 (g) An insurer has no right of recovery against the City. The required insurance
27 policies shall protect the licensee and the City. The licensee's insurance
28 shall be primary coverage for losses covered by the policies.
29
30 (h) The policy clause "Other Insurance" shall not apply to the City where the
31 City is an insured under the policy.
32
33 (i) The licensee shall pay premiums and assessments. A company which
34 issues an insurance policy has no recourse against the City for payment of a
35 premium or assessment. Insurance policies obtained by a licensee must
36 provide that the issuing company waive all right of recovery by way of
37 subrogation against the City in connection with damage covered by the
38 City.
39
40 (j) The licensee shall provide proof to the City of compliance with this article
41 no later than 60 days from the date of the City Commission ordinance
Page 27 of 35
I approving the grant of the license. Failure to provide the City with proof of
2 insurance within the prescribed time period will render the license null and
3 void without further action by the City.
4
s Sec. 13-96. Indemnity.
6
7 (a) The licensee shall, at its sole cost and expense, indemnify, hold harmless
s and defend the City and its officers, directors, agents, servants, employees,
9 successors, and assigns from and against any and all claims suits, actions,
10 damages and causes of action for personal injury, death or property damage,
11 any other losses, damages, charges of death or property damage, any other
12 losses, damages, charges or expenses, including attorneys' fees, witness
13 fees, court costs and any orders, judgments or decrees which may be
14 entered which rise out of, in connection with or attributable to, licensee
15 construction, maintenance, occupation, placement, repair, relocation,
16 removal or operation by the licensee of any portion of the
17 telecommunications system or business excepting only those claims
18 resulting from the gross negligence of the City. The licensee shall
19 undertake at its own expense, the defense of any action which may be
20 brought against the City for damages, injunctive relief, fines and penalties,
21 or for any other cause of action arising or alleged to have arisen out of, in
22 connection with or attributable to, the foregoing and, in the event any final
23 judgment or order should be rendered against the City, the licensee shall
24 promptly pay the final judgment, and comply with the order, together with
25 all related costs; the licensee being allowed, however, an appeal or appeals
26 to the appropriate court or courts from the judgment rendered in any the suit
27 or action upon the filing of the supersedes bond as shall be required to
28 prevent levy or judgment against the City during the appeal or appeals.
29
30 (b) Nothing in this article shall prohibit the City from participating in the
31 defense of any litigation by its own counsel and obtaining indemnification
32 of the reasonable costs upon a court order awarding the costs.
33
34 (c) The City Manager shall give prompt written notice to a licensee of any
35 claim for which the City seeks indemnification. The licensee shall have the
36 right to investigate, defend and compromise these claims subject to prior
37 City approval. Failure of the City to provide written notice shall not waive
38 the requirement of sub - section (a) above.
Page 28 of 35
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Sec. 13 -97. Construction Bond.
(a) Prior to the commencement of any construction or other significant work in
the public Right -of -way, licensee shall furnish a construction bond in favor
of the City in an amount equal to 110% of the estimated value of the work.
No work shall commence until a construction bond is furnished to the City.
The construction bond shall not be released until the Right -of -way have
been restored and inspected pursuant to the specifications provided in this
article.
(b) The construction bond shall serve as security for:
(1) The faithful performance by the licensee or permittee of all terms,
conditions and obligations, including restoration of the Right -of-
way, of the license agreement and this article.
(2) Any expenditure, damage or loss incurred by the City occasioned by
the licensee's or permittee's violation of this article, or its failure to
comply with all rules, regulations, orders, permits and other
directives of the City issued pursuant to this article.
(3) Payment of all compensation due to the City, including permit fees.
(4) The payment of premiums for the liability insurance required
pursuant to this article.
(5) The payment of any other amounts which become due to the City
pursuant to this article or law.
(6) The submission to the City of accurate record drawings showing at a
minimum correct horizontal and vertical locations of new facilities
placed in the Right- of-way in a format approved by the Public
Works Department. Record drawings shall be certified by a
professional engineer or land surveyor registered by the State of
Florida, except for the engineers or surveyors who may be exempt
from registration by Florida Statutes.
(c) The construction bond shall contain the following endorsement: "It is
hereby understood and agreed that this bond may not be cancelled or
renewed by the surety nor the intention to cancel or not to renew be stated
Page 29 of 35
I by the surety until 90 calendar days after completion of construction of the
2 facilities and, notwithstanding the foregoing, shall in no case be canceled or
3 renewed by the surety until at least 90 calendar days written notice to the
4 City of surety's intention to cancel or not renew this bond.
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6 The construction bond shall be maintained until the construction work is
7 completed and for a period of one year, unless waived by the Public Works
s Director, to guarantee the work. Licensee shall notify the City in writing
9 when it believes the construction has been completed.
10
11 (d) The City may waive the provisions of this article, as follows:
12
13 (1) Licensee supplies other acceptable financial guarantees or
14 demonstrates financial responsibility satisfactory to the Finance
15 Director and the City Attorney.
16
17 (2) Licensee provides a written guarantee that none of the provisions of
1s this article, nor the City's waiver of any provision of this article, shall
19 be construed to excuse the faithful performance by or limit the
20 liability of the licensee under this article or any telecommunication
21 license or permit issued in accordance with this article, or for
22 damages, either to the full amount of the bond or otherwise.
23
24 Sec. 13 -98. Annexation; De- Annexation.
25
26 Within 30 days following the date of passage of any action affecting any
27 annexation or de- annexation, the City Manager shall notify licensees of this action
28 by furnishing to the providers maps of the affected areas showing the new
29 boundaries of the City.
30
31 Sec. 13 -99. Compliance With Federal, State and Local Laws.
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33 Licensee shall comply with the following requirements:
34
35 (a) All applicable laws, rules, regulations, orders, writs, decrees and judgments
36 (including, but not limited to, those of the PSC and the FCC, and any other
37 federal or state agency or authority of competent jurisdiction) affecting this
38 license and the telecommunications system.
39
40 (b) Local laws and all rules, regulations, orders or other directives of the City
41 pursuant to and in accordance with this license.
Page 30 of 35
I Sec. 13 -100. Failure to Enforce License.
2
3 The licensee shall not be excused from complying with any of the terms and
4 conditions of this article by any failure of the City, upon any one or more
5 occasions, to require licensee's performance or compliance.
6
7 Sec. 13 -101. Authority of City Manager.
s
9 (a) The City Manager shall have the responsibility for overseeing the day -to-
10 day administration of this article and authorizations granted under this
11 article. The City Manager may, through the City Clerk, administer oaths,
12 certify official acts and issue subpoenas, compelling the attendance of
13 witnesses and the production of papers, account books) contracts,
14 documents and other records, data or information, when necessary,
15 convenient or appropriate in the discharge of the duties of the office. The
16 City Manager shall be empowered to take all administrative actions on
17 behalf of the City, including adopting forms for application and reporting
18 and their administrative procedures as are necessary.
19
20 (b) The City Manager shall exercise jurisdiction and have the power and
21 authority to supervise each licensee, in accordance with the standards set by
22 the provisions of this article.
23
24 (c) The City Manager shall have the authority to initiate legal actions in the
25 name of the City through the City Attorney, seeking declaratory judgment,
26 injunctive, equitable and legal relief to enforce the provisions of this article.
27
28 Sec. 13 -102. Enforcement; Settlement, Authority, Notice and Cure Provisions.
29
30 (a) Any of the following shall constitute an Event of Default under a license
31 granted under this article: (1) breach of any provision of a license requiring
32 licensee to make any payments to the City; (2) substantial breach by
33 licensee of a material provision of a license; (3) failure by licensee to
34 comply with any of the provisions, terms or conditions of this article or with
35 any rules, regulations, orders or other directives of the City; or (4) any act
36 or omission of the licensee which is not in compliance with any of the
37 provisions of a license granted under this article.
38
39 (b) The City shall notify licensee in writing of any Event of Default. The
40 notice shall specify the alleged breach with reasonable particularity and
41 shall provide licensee with 30 days to cure the default. Licensee shall either
Page 31 of 35
1 (1) cure the breach within the 30 -day period (or the longer period of time as
2 the City may specify or agree to); or (2) in a written response submitted to
3 the City within 10 days after notice of default, present facts and arguments
4 in refutation or excuse of the alleged default. The submission of the
5 response shall toll the running of the cure period. If, after licensee makes a
6 response to the City, the City determines that a breach under the license or
7 this article has occurred, licensee shall cure the breach within the balance of
s the time period to cure that remained when the submission was made.
9
10 (c) If licensee fails to cure the breach within the applicable cure period, or fails
11 to submit a response to the City as provided above, an Event of Default
12 shall be deemed to have occurred. Notwithstanding the foregoing, no Event
13 of Default shall exist if a breach is curable but the work to be performed,
14 acts to be done, or conditions to be removed cannot, by their nature,
15 reasonably be performed, done or removed within the cure period, provided
16 that licensee shall have commenced curing the same and shall diligently and
17 continuously pursue the same promptly to completion.
18
19 Sec. 13 -103. Additional Remedies; Liens.
20
21 In addition to, or instead of any other remedy, the City may seek legal or equitable
22 relief from any court of competent jurisdiction. Any costs incurred by the City in
23 correcting an Event of Default shall constitute a lien on the property of licensee
24 which may enforced in the manner of enforcing judgments against real and
25 personal property.
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Sec. 13 -104. Appeal.
(a) All decisions of the City Manager may be appealed to the City Commission
within 30 days by filing a written notice of appeal with the City Clerk and
providing copies to the City Manager and the City Attorney. The notice of
appeal shall state the decision which is being appealed, the grounds for
appeal, a brief summary of the relief which is sought, and shall be
accompanied by a nonrefindable fee to be established by administrative
order of the City Manager. The City Commission may affirm, modify or
reverse the decision of the City Manager. The City Manager shall notify
any party who has filed a written request for the notification of the date
when the matter will be presented to the City Commission. Nothing
contained in this section shall preclude the City Commission from seeking
additional information prior to rendering a final decision. The decision of
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the City Commission shall be by resolution and a copy of the decision shall
be forwarded to the City Manager and the appealing party.
(b) Within the time prescribed by the appropriate Florida Rules of Appellate
Procedure, -a party aggrieved by a decision of the City Commission may
seek review of an adverse decision in the Circuit Court in and for Miami -
Dade County, Florida. The party making the appeal shall be required to pay
to the City Clerk a fee to be established by administrative order of the City
Manager, to defray the costs of preparing the record on appeal. The fees
referred to in this section shall be effective upon approval by the
commission.
Sec. 13 -105. Civil Violations.
It shall be unlawful to violate any provision of this article of the City Code of
Ordinances. Each day a violation of this article occurs constitutes a separate and
distinct offense.
Description of Violation Penalty
Operating a Telecommunications System
Without a City License $ 5,000.00
Failure to comply With Record and Reporting
Requirements 500.00
Failure to Obtain Approval to Transfer a License 500.00
Failure to Comply with Construction and Safety
Requirements 500.00
Failure to Bury Distribution System 100.00
Failure to Maintain Insurance 500.00
Failure to Maintain Faithful Performance Bond or
Letter of Credit 500.00
Unauthorized Use of Public Right-of-way 500.00
Unauthorized Placement of facility 500.00
Page 33 of 35
1 Sec. 13 -106. Reservation of Rights.
2
3 (a) Up to 180 days after the revocation or termination of a license, licensee
4 shall have the right to sell the local telecommunications system or telephone
5 exchange system located within the City. After 180 days, the City shall
6 have the right, at its option, to purchase the local telecommunications
7 system, or the part of the property as the City may desire, a the fair market
s value.
9
10 (b) The date of valuation shall be the date of termination of the license. For the
11 purpose of determining the valuation, the parties shall select a mutually
12 agreeable independent appraiser to compute the purchase price in
13 accordance with industry practice and standards. If the parties cannot agree
14 on an appraiser in 10 days, the parties shall seek an appraiser from the
15 American Arbitration Association. The appraiser shall be instructed to make
16 the appraisal as quickly as possible, but in no more than 45 days and shall
17 submit to both parties a written appraisal. The parties must agree to share
18 equally the costs and expenses of the appraiser.
19
20 (c) The City shall notify licensee within 30 days after receipt of the appraisal,
21 whether it will elect to purchase the system as provided in this article. If
22 City elects to make the purchase, it will purchase the property at a closing
23 to occur within a reasonable time after its election.
24
25 (d) The licensee shall agree, at the request of the City: (1) to operate the system
26 on behalf of the City pursuant to the provisions of the license until the City
27 either elects not to purchase any portion of the system or closes on the a
28 purchase; or (2) to cease all construction and operational activities in a
29 prompt and workmanlike manner.
30
31 Section 2. All fees, charges and financial obligations previously accrued
32 pursuant to any ordinances and resolutions repealed pursuant to this ordinance shall
33 continue to be due and owing until paid.
34
35 Section 3. This ordinance shall be construed in accordance with the laws of the
36 State of Florida and is subject to applicable federal, state and local, state laws. Venue for
37 any disputes that may arise regarding any provision of this ordinance is in Miami -Dade
38 County, Florida.
39
40 Section 4. This ordinance shall be codified in the Code of Ordinances of the
41 City of South Miami.
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Section 5. If any section, clause, sentence, or phrase of this ordinance is for any
reason held invalid or unconstitutional by a court of competent jurisdiction, the holding
shall not affect the validity of the remaining portions of this ordinance.
Section 6. All ordinances or parts of ordinances in conflict with the provisions
of this ordinance are hereby repealed.
Section 7. This ordinance shall take effect immediately at the time of its
passage.
PASSED AND ADOPTED THIS 2nd of March , 1999.
ATT .
z7�� Jvol
CITY CLERK
1st Reading: 2/16/99
2nd Reading: 3/2/99
;REEADAPPROVED AS TO FORM:
�®
IT ATTORNEY
N.IEGalloplCsmord- res%Right -of -way ordinance.doc -
Page 35 of 35
..8, 6 I OR
i'
COMMISSION VOTE: 4 -O
Mayor Robaina: abstained
Vice Mayay Ol i veros-: Yea
Commissioner Feliu: Yea
Commissioner Bethel: Yea
Commissioner Russell: Yea