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Ord 50-01ORDINANCE NO. 50-01 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, RELATING TO COMMUNICATIONS FACILITIES IN PUBLIC RIGHTS-OF-WAY BY REPEALING CHAPTERS 57 AND 58 AND CREATING A NEW CHAPTER ENTITLED "RIGHT-OF- WAY APPLICATION PROCESS FOR COMMUNICATIONS FACILITIES"; AMENDING CHAPTER 50, "UTILITIES GENERALLY; PUBLIC SERVICE TAX" BY DELETING ALL REFERENCES TO TELECOMMUNICATIONS FACILITIES; AMENDING CHAPTER 93, "CABLE TELEVISION" BY REMOVING THE REQUIREMENT TO PAY FRANCHISE FEES TO THE CITY; PROVIDING FOR RESERVATION OF RIGHTS AND REMEDIES; PROVIDING FOR SEVERABILITY; PROVIDING AN EFFECTIVE DATE. WHEREAS, effective January 1, 2001, Section 337.401, Florida Statutes (2000), is amended to state that because federal and state law require the nondiscriminatory treatment of providers of telecommunications services and because of the desire to promote competition among providers of telecommunications services, it is the intent of the Legislature that municipalities and counties treat telecommunications companies in a nondiscriminatory and competitively neutral manner when imposing rules or regulations governing the placement or maintenance of telecommunications facilities in the public roads or rights-of-way. Rules or regulations imposed by a municipality or county relating to telecommunications companies placing or maintaining telecommunications facilities in its roads or rights- of-way must be generally applicable to all telecommunications companies and, notwithstanding any other law, may not require a telecommunications company to apply for or enter into an individual license, franchise, or other agreement with the municipality or county as a condition of placing or maintaining telecommunications facilities in its roads or rights-of-way; and WHEREAS, effective October 1, 2001, Section 337.401, Florida Statutes (2000), is further amended to state that because of the unique circumstances applicable to providers of communications services and the fact that federal and state law require the nondiscriminatory treatment of providers of telecommunications services, and because of the desire to promote competition among providers of communications services, it is the intent of the Legislature that municipalities and counties treat providers of communications services in a nondiscriminatory and competitively neutral manner when imposing rules or regulations governing the placement or maintenance of communications facilities in the public roads or rights-of-way. Rules or regulations imposed by a municipality or county relating to providers of communications services placing or maintaining communications facilities in its roads or rights-of-way must be generally applicable to all providers of communications services and, notwithstanding any other law, may not require a provider of communications services, except as otherwise provided for providers of cable service, to apply for or enter into an individual license, franchise, or other agreement with the municipality or county as a condition of placing or maintaining communications facilities in its roads or rights-of-way; and WHEREAS, it is the intent of the City of Delray Beach to exercise the City's authority over communications services providers' placement and maintenance of facilities in the public rights-of-way; and WHEREAS, it is the City of Delray Beach's intent to treat each communications services provider in a nondiscriminatory and competitively neutral manner in exercising such authority; and WHEREAS, the public fights-of-way subject to the jurisdiction and control of the City of Delray Beach: (1) are critical to the travel of persons and the transport of goods and other tangibles in the~ business and social life of the community by all citizens; (2) are a unique and physically limited resource~ and proper management by the City is necessary to maximize efficiency, minimize the costs to the taxpayers of the foregoing uses, and to minimize the inconvenience to and negative effects upon the public from such facilities' placement and maintenance in the public rights-of-way; and (3) are intended! for public uses and must be managed and controlled consistently with that intent; and WHEREAS, it is the intent of the City of Delray Beach to exercise its authority to adopt reasonable rules and regulations to the fullest extent allowed by Federal and State law; and WHEREAS, it is the intent of the City of Delray Beach that this Ordinance shall apply to cable service providers only with reference to the calculation and payment of the Communications Services Tax and is not intended to impact the City's regulatory powers pursuant to Chapter 93 of the Code of Ordinances (including the providing of additional services to the City as set forth therein). NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA AS FOLLOWS: Section 1. That Chapter 57 "Right-of-Way Permits for Telecommunication Services" and Chapter 58 "Right-of-Way Permits for Wireless Communications Systems" are hereby repealed in their entirety and replaced by the following: "CHAPTER 57: RIGHT-OF-WAY APPLICATION PROCESS FOR COMMUNICATIONS FACILITIES" Section 57.01 - Intent and Purpose It is the intent of the City of Delray Beach to promote the public health, safety and general welfare by: providing for the placement or maintenance of Communications Facilities in the Public Rights-of- Way within the City; adopting and administering reasonable rules and regulations not inconsistent with State and Federal law, including Section 337.401, Florida Statutes (2000), as it may be amended, the City's home-rule authority, and in accordance with the provisions of the Federal Telecommunications Act 2 Ord. No. 50-01 of 1996 and other Federal and State law; establishing reasonable rules and regulations necessary to manage the placement or maintenance of Communications Facilities in the Public Rights-of-Way by all Communications Services Providers; and minimizing disruption to the Public Rights-of-Way. In! regulating its Public Rights-of-Way, the City shall be governed by and shall comply with all applicable ~ Federal and State laws. Section 57.02 - Definitions For purposes of this Ordinance, the following terms, phrases, words and their derivations shall have the meanings given. Where not inconsistent with the context, words used in the present tense include the future tense, words in the plural number include the singular number, and words in the singular number include the plural number. The words "shall" and "will" are mandatory, and "may" is permissive. Words not otherwise defined shall be construed to mean the common and ordinary meaning. Abandonment: shall mean the permanent cessation of all uses of a Communications Facility; provided that this term shall not include cessation of all use of a Facility within a physical structure where the physical structure continues to be used. By way of example, and not limitation, cessation of all use of, a cable within a conduit, where the conduit continues to be used, shall not be "Abandonment" of a Facility in Public Rights-of-Way. CiW.: shall mean the City of Delray Beach, Florida. Communications Services: shall mean the transmission, conveyance or routing of voice, data, audio, video, or any other information or signals to a point, or between or among points, by or through any electronic, radio, satellite, cable, optical, microwave, or other medium or method now in existence or hereafter devised, regardless of the protocol used for such transmission or conveyance. Notwithstanding the foregoing, for purposes of this Ordinance "cable service", as defined in Section 202.11(2), Florida Statutes (2000), as it may be amended, is not included in the definition of "Communications Services," and cable service providers may be subject to other ordinances of the City. Communications Services Provider: shall mean any Person including a municipality or county providing Communications Services through the placement or maintenance of a Communications Facility in Public Rights-of-Way. "Communications Services Provider" shall also include any Person including a municipality or county that places or maintains a Communications Facility in Public Rights-of-Way but does not provide Communications Services. Communications FaciliW or Facili ,ty or System: shall mcan any permanent or temporary plant, equipment and property, including but not limited to cables, wires, conduits, ducts, fiber optics, poles, antennae, converters, splice boxes, cabinets, hand holes, manholes, vaults, drains, surface location markers, appurtenances, and other equipment or pathway placed or maintained or to be placed or maintained in the Public Rights-of-Way of the City and used or capable of being used to transmit, convey, route, receive, distribute, provide or offer Communications Services. 3 Ord. No. 50-01 FCC: shall mean the Federal Communications Commission. In Public Rights-of-Way or in the Public Rights-of-Way: shall mean in, on, over, under or across the Public Rights-of-Way. Ordinance: shall mean this Ordinance. Person: shall include any individual, children, firm, association, joint venture, partnership, estate, trust, business trust, syndicate, fiduciary, corporation, organization or legal entity of any kind, successor, assignee, transferee, personal representative, and all other groups or combinations, and shall include the City to the extent the City acts as a Communications Services Provider. "Place or maintain" or "placement or maintenance" or "placinu or maintaining": shall mean to erect, construct, install, maintain, place, repair, extend, expand, remove, occupy, locate or relocate. A Communications Services Provider that owns or exercises physical control over Communications Facilities in Public Rights-of-Way, such as the physical control to maintain and repair, is "placing or maintaining" the Facilities. A Person providing service only through resale or only through use of a third party's unbundled network elements is not "placing or maintaining" the Communications Facilities through which such service is provided. The transmission and receipt of radio frequency signals through the airspace of the Public Rights-of-Way does not constitute "placing or maintaining" Facilities in the Public Rights-of-Way. Public Rights-of-Way: shall mean a public right-of-way, public utility easement, highway, street, bridge, tunnel or alley for which the City is the authority that has jurisdiction and control and may' lawfully grant access to pursuant to applicable law, and includes the surface, the air space over the surface and the area below the surface. "Public Rights-of-Way" shall not include private property. "Public Rights-of-Way" shall not include any real or personal City property except as described above and shall not include City buildings, fixtures, poles, conduits, facilities or other structures or improvements, regardless of whether they are situated in the Public Rights-of-Way. Registrant: shall mean a Communications Services Provider that has Registered with the City in accordance with the provisions of this Ordinance. Rel~istration or Register: shall mean the process described in this Ordinance whereby a Communications Services Provider provides certain information to the City. Section 57.03 - Reeistration for Placing or Maintaining Communications Facilities in Public Ri~hts-of-Way 4 ord. No. 50-01 (A). A Communications Services Provider that desires to place or maintain a Communications Facility in Public Rights-of-Way in the City shall first Register with the City in accordance with this Ordinance. Subject to the terms and conditions prescribed in this Ordinance, a Registrant may place or maintain a Communications Facility in Public Rights-of-Way. (B). A Registration shall not convey any title, equitable or legal, to the Registrant in the Public Rights-of-Way. Registration under this Ordinance governs only the placement or maintenance of Communications Facilities in Public Rights-of-Way. Other ordinances, codes or regulations may apply to the placement or maintenance in the Public Rights-of-Way of facilities that are not Communications Facilities. Registration does not excuse a Communications Services Provider from obtaining appropriate access or pole attachment agreements before locating its Facilities on the City's or another Person's facilities. Registration does not excuse a Communications Services Provider from complying with all applicable City ordinances, codes or regulations, including this Ordinance. (C). Each Communications Services Provider that desires to place or maintain a Communications Facility in Public Rights-of-Way in the City shall file a single Registration with the City which shall include the following information: (1) name of the applicant; (2) name, address and telephone number of the applicant's primary contact person in connection with the Registration, and the person to contact in case of an emergency; (3) evidence oft he insurance coverage required under this Ordinance and acknowledgment that Registrant has received and reviewed a copy of this Ordinance, which acknowledgment shall not be deemed an agreement; and (4) the number of the applicant's certificate of authorization or license to provide Communications Services issued by the Florida Public Service Commission, the Federal Communications Commission, or other Federal or State authority, if any; (65) for an applicant that does not provide a Florida Public Service Commission certificate of authorization number, if the applicant is a corporation, proof of authority to do business in the State of Florida, including the number of the certificate of incorporation. 5 Ord. No. 50-01 (D). The City shall review the information submitted by the applicant. Such review shall be by the City Engineer or his or her designee. If the applicant submits information in accordance with Section 57.03(C) above, the Registration shall be effective and the City shall notify the applicant of the effectiveness of Registration in writing. If the City determines that the information has not been submitted in accordance with Section 57.03(C) above, the City shall notify the applicant of the non- effectiveness of Registration, and reasons for the non-effectiveness, in writing. The City shall so reply to an applicant within thirty (30) days after receipt of registration information from the applicant. Non- effectiveness of Registration shall not preclude an applicant from filing subsequent applications for Registration under the provisions of this Section. An applicant has fifteen (15) business days after receipt of a notice of non-effectiveness of Registration to appeal the decision as provided in Section 57.07 (E). A Registrant may cancel a Registration upon written notice to the City stating that it will no longer place or maintain any Communications Facilities in Public Rights-of-Way within the City and will no longer need to obtain permits to perform work in Public Rights-of-Way. A Registrant cannot cancel a Registration if the Registrant continues to place or maintain any Communications Facilities in Public Rights-of-Way. (F). Registration does not in and of itself establish a right to place or maintain or priority for the placement or maintenance of a Communications Facility in Public Rights-of-Way within the City but shall establish for the Registrant a right to apply for a permit, if permitting is required by the City. Registrations are expressly subject to any future amendment to or replacement of this Ordinance and further subject to any additional City ordinances, as well as any State or Federal laws that may be enacted. (G). A Registrant shall renew its Registration with the City by April 1 of even numbered years in accordance with the Registration requirements in this Ordinance, except that a Registrant that initially registers during the even numbered year when renewal would be due or the odd numbered year immediately preceding such even numbered year shall not be required to renew until the next even numbered year. Within thirty (30) days of any change in the information required to be submitted pursuant to Section 57.03(C), except, as of October 1, 2001, Section 57.03(C), a Registrant shall provide updated information to the City. If no information in the then-existing Registration has changed, the renewal may state that no information has changed. Failure to renew a Registration may result in the City restricting the issuance of additional permits until the Communications Services Provider has complied with the Registration requirements of this Ordinance. (H). In accordance with applicable City ordinances, codes or regulations, a permit may be required of a Communications Services Provider that desires to place or maintain a Communications Facility in Public Rights-of-Way. An effective Registration shall be a condition of obtaining a permit. Notwithstanding an effective Registration, permitting requirements shall apply. A permit may be obtained by or on behalf of a Registrant having an effective Registration if all permitting requirements are met. If a contractor performs work in City fights-of-way on behalf of a Registrant, the City shall be 6 Ord. No. 50-01 provided with a letter specifying that said contractor is performing work on Registrant's behalf, it being understood that any such work is subject to applicable terms of this Chapter. Section 57.04 - Notice of Transfer~ Sale or Assignment of Assets in Public Rights-of-Way If a Registrant transfers, sells or assigns its assets located in Public Rights-of-Way incident to a transfer, sale or assignment of the Registrant's assets, the transferee, buyer or assignee shall be obligated to comply with the terms of this Ordinance. Written notice of any such transfer, sale or assignment shall be provided by such Registrant to the City within twenty (20) days aRer the effective date of the transfer, sale or assignment. If the transferee, buyer or assignee is a current Registrant, then the transferee, buyer or assignee is not required to re-Register. If the transferee, buyer or assignee is not a current Registrant, then the transferee, buyer or assignee shall Register as provided in Section 4 within sixty (60) days of the transfer, sale or assignment. Section 57.05 - Placement or Maintenance of a Communications Facility in Public Rights -of-Way (A). A Registrant shall at all times comply with and abide by all applicable provisions of the State and Federal law and City ordinances, codes and regulations in placing or maintaining a Communications Facility in Public Rights-of-Way. (B). A Registrant shall not commence to place or maintain a Communications Facility in Public Rights-of-Way until all applicable permits, if any, have been issued by the City or other appropriate authority, except in the case of an emergency. The term "emergency" shall mean a condition that affects the public's health, safety or welfare, which includes an unplanned out-of-service condition of a pre- existing service. Registrant shall provide prompt notice to the City of the placement or maintenance of a Communications Facility in Public Rights-of-Way in the event of an emergency. Registrant acknowledges that as a condition of granting such permits, the City may impose reasonable rules or regulations governing the placement or maintenance of a Communications Facility in Public Rights-of-Way. Permits shall apply only to the areas of Public Rights-of-Way specifically identified in the permit. The City may issue a blanket permit to cover certain activities, such as routine maintenance and repair activities, that may otherwise require individual permits. As part of any permit application to place a new or replace an existing Communications Facility in Public Rights-of-Way, the Registrant shall provide the following: (1) The location of the proposed Facilities, including a description of the Facilities to be installed, where the Facilities are to be located, and the approximate size of Facilities that will be located in Public Rights-of-Way; (2) A description of the manner in which the Facility will be installed (i.e. anticipated construction methods or techniques); 7 Ord. No. 50-01 (3) A maintenance of traffic plan for any disruption of the Public Rights-of-Way; (4) Information on the ability of the Public Rights-of-Way to accommodate the proposed Facility, if available (such information shall be provided without certification as to correctness, to the extent obtained from other Persons); (5) If appropriate given the Facility proposed, an estimate of the cost of restoration to the Public Rights-of-Way; (6) The timetable for construction of the project or each phase thereof, and the areas of the City which will be affected; and (7) Such additional information as the City finds reasonably necessary with respect to the placement or maintenance of the Communications Facility that is the subject of the permit application to review such permit application. (C). To the extent not otherwise prohibited by State or Federal law, the City shall have the power to prohibit or limit the placement of new or additional Communications Facilities within a particular area of Public Rights-of Way. (D). All Communications Facilities shall be placed or maintained so as not to unreasonably interfere with the use of the Public Rights-of-Way by the public and with the rights and convenience of property owners who adjoin any of the Public Rights-of-Way or with other users who have facilities located in the public right-of-way. The use of trenchless technology (i.e., directional bore method) for the installation of Facilities in the Public Rights-of-Way as well as joint trenching or the co-location of facilities in existing conduit is strongly encouraged, and should be employed wherever feasible. The City Manager or his/her designee may promulgate reasonable rules and regulations concerning the placement or maintenance of a Communications Facility in Public Rights-of-Way consistent with this Ordinance and other applicable law. All safety practices required by applicable law or accepted industry practices and standards shall be used during the placement or maintenance of Communications Facilities. After the completion of any placement or maintenance of a Communications Facility in Public Rights-of-Way or each phase thereof, a Registrant shall, at its own expense, restore the Public Rights-of-Way to its original condition before such work. If the Registrant fails to make such restoration within thirty (30) days, or such longer period of time as may be reasonably required under the circumstances, following the completion of such placement or maintenance, the City may perform restoration and charge the costs of the restoration against the Registrant in accordance with Section 337.402, Florida Statutes (2000), as it may be amended. For twelve (12) months following the original completion of the work, the Registrant shall guarantee its restoration work and shall correct any restoration work that does not satisfy the requirements of this Ordinance at its own expense. 8 Ord. No. 50-01 (E). Removal or relocation at the direction of the City of a Registrant's Communications Facility in Public Rights-of-Way shall be governed by the provisions of Sections 337.403 and 337.404, Florida Statutes (2000), as they may be amended. (F). A permit from the City constitutes authorization to undertake only certain activities in Public Rights-of-Way in accordance with this Ordinance, and does not create a property right or grant authority to impinge upon the rights of others who may have an interest in the Public Rights-of-Way. (G). A Registrant shall maintain its Communications Facility in Public Rights-of-Way in a manner consistent with accepted industry practice and applicable law. (H). In connection with excavation in the Public Rights-of-Way, a Registrant shall, where applicable, comply with the Underground Facility Damage Prevention and Safety Act set forth in Chapter 556, Florida Statutes (2000), as it may be amended. (I). Registrant shall use and exercise due caution, care and skill in performing work in the Public Rights-of-Way and shall take all reasonable steps to safeguard work site areas. (J). Upon request of the City, and as notified by the City of the other work, construction, installation or repairs referenced below, a Registrant may be required to coordinate placement or maintenance activities under a permit with any other work, construction, installation or repairs that may be occurring or scheduled to occur within a reasonable timeframe in the subject Public Rights-of-Way, and Registrant may be required to reasonably alter its placement or maintenance schedule as necessary so as to minimize disruptions and disturbance in the Public Rights-of-Way. (K). A Registrant shall not place or maintain its Communications Facilities so as to interfere with, displace, damage or destroy any facilities, including but not limited to, sewers, gas or water mains, storm drains, pipes, cables or conduits of the City or any other Person's facilities lawfully occupying the Public Rights-of-Way of the City. (L). The City makes no warranties or representations regarding the fitness, suitability, or availability of the City's Public Rights-of-Way for the Registrant's Communications Facilities and any performance of work, costs incurred or services provided by Registrant shall be at Registrant's sole risk. Nothing in this Ordinance shall affect the City's authority to add, vacate or abandon Public Rights-of- Way, and the City makes no warranties or representations regarding the availability of any added, vacated or abandoned Public Rights-of-Way for Communications Facilities. (M). The City shall have the right to make such inspections of Communications Facilities placed or maintained in Public Rights-of-Way as it finds necessary to ensure compliance with this Ordinance. 9 Ord. No. 50-01 (N). A permit application to place a new or replace an existing Communications Facility in Public Rights-of-Way shall include plans showing the location of the proposed installation of Facilities in the Public Rights-of-Way. If the plans so provided require revision based upon actual installation, the Registrant shall promptly provide revised plans. The plans shall be in a hard copy format or an electronic format specified by the City, provided such electronic format is maintained by the Registrant. Such plans in a format maintained by the Registrant shall be provided at no cost to the City. (O). The City reserves the right to place and maintain, and permit to be placed or maintained sewer, gas, water, electric, storm drainage, communications, and other types of facilities, cables or conduit and to do, and to permit to be done, any underground and overhead installation or improvement that may bt deemed necessary or proper by the City in Public Rights-of-Way occupied by the Registrant. The Cit, further reserves without limitation the right to alter, change, or cause to be changed, the gradin~ installation, relocation, or width of the Public Rights-of-Way within the limits of the City and within sai~ limits as same may from time to time be altered. (P). A Registrant shall, on the request of any Person holding a permit issued by the City temporarily raise or lower its Communications Facilities to permit the work authorized by the permit. Th~ expense of such temporary raising or lowering of Facilities shall be paid by the Person requesting the same and the Registrant shall have the authority to require such payment in advance. The Registrant shall b~ given not less than thirty (30) days advance written notice to arrange for such temporary relocation. (Q). A wireless facility that is a portion of a Communication Facility, such as an antenna ("Wireless Facility(ies)"), which is attached to a legally maintained vertical structure in the Public Rights- of-Way, such as a light pole or utility pole ("Vertical Structure(s)"), shall be governed by Land Development Regulation Section 4.3.3(S). Section 57.06 - Suspension of Permits The City may suspend a permit for work in the Public Rights-of-Way, subject to Section 57.07 of this Ordinance, for one or more of the following reasons: (1). (2). (3). (4). violation of permit conditions, including conditions set forth in the permit, this Ordinance or other applicable City ordinances, codes or regulations governing placement or maintenance of Communications Facilities in Public Rights-of-Way; misrepresentation or fraud by Registrant in a Registration or permit application to the City; or failure to properly renew or ineffectiveness of Registration. failure to relocate or remove Facilities as may be lawfully required by the City. The City Manager or his/her designee shall provide notice and an opportunity to cure any violation of (1) through (4) above, each of which shall be reasonable under the circumstances. 10 Ord. No. 50-01 Section 57.07 - AoDeals If an application for use of the rights-of-way or a renewal of the application or a permit is denied by the City, and if the applicant wants to appeal the denial, the applicant must file an appeal with the City Manager within fifteen (15) business days of the date of the denial. Any appeal not timely filed as set forth above shall be waived. The City Commission shall hear the appeal within fifteen (15) business days of the filing of the appeal or at the first regular scheduled Commission meeting thereafter. Section 57.08 - Involuntary Termination of Registration (A). The City may terminate a Registration if: (1) a Federal or State authority suspends, denies, or revokes a Registrant's certification or license to provide Communications Services; (2) the Registrant's placement or maintenance of a Communications Facility in the Public Rights-of-Way presents an extraordinary danger to the general public or other users of the Public Rights-of-Way and the Registrant fails to remedy the danger promptly after receipt of written notice; or (3) the Registrant ceases to use all of its Communications Facilities in Public Rights-of- Way and has not complied with Section 57.15 of this Ordinance. (B). Prior to termination, the Registrant shall be notified by the City Manager with a written notice setting forth all matters pertinent to the proposed termination action, including which of (1) through (3) above is applicable as the reason therefore, and describing the proposed action of the City with respect thereto. The Registrant shall have sixty (60) days after receipt of such notice within which to address or eliminate the reason or within which to present a plan, satisfactory to the City Manager, to accomplish the same. If the plan is rejected, the City Manager shall provide written notice of such rejection to the Registrant and shall make a recommendation to the City Commission regarding a decision as to termination of Registration. A decision by the City to terminate a Registration may only be accomplished by an action of the City Commission. A Registrant shall be notified by written notice of any decision by the City Commission to terminate its Registration. Such written notice shall be sent within ten (10) days after the decision. (C). In the event of termination, the former Registrant shall: (i) notify the City of the assumption or anticipated assumption by another Registrant of ownership of the Registrant's Communications Facilities in Public Rights-of-Way; or (ii) provide the City with an acceptable plan for disposition of its Communications Facilities in Public Rights-of-Way. If a Registrant fails to comply with this Subsection 57.08(C), which determination of non-compliance is subject to appeal as provided in 11 Ord. No. 50-01 Section 57.07, the City may exercise any remedies or rights it has at law or in equity, including but not limited to taking possession of the Facilities where another Person has not assumed the ownership or physical control of the Facilities or requiring the Registrant within 90 days of the termination, or such longer period as may be agreed to by the Registrant, to remove some or all of the Facilities from the Public Rights-of-Way and restore the Public Rights-of-Way to its original condition before the removal. (D). In any event, a terminated Registrant shall take such steps as are necessary to render safe every portion of the Communications Facilities remaining in the Public Rights-of-Way of the City. (E). In the event of termination of a Registration, this Section does not authorize the City to cause the removal of Communications Facilities used to provide another service for which the Registrant or another Person who owns or exercises physical control over the Facilities holds a valid certification or license with the governing Federal or State agency, if required for provision of such service, and is Registered with the City, if required. Section 57.09 - Existino Communications Facilities in Public Rights-of-Way A Communications Services Provider with an existing Communications Facility in the Public Rights-of-Way of the City has sixty (60) days from the Effective Date of this Ordinance to comply with the terms of this Ordinance, including, but not limited to, Registration, or be in violation thereof. Section 57.10 - Insurance A Registrant shall provide, pay for and maintain insurance, satisfactory to the City. All insurance shall be from responsible companies duly authorized to do business in the State of Florida and having a rating reasonably acceptable to the City. All liability policies shall provide that the City is an additional insured as to the activities under this Ordinance. The required coverages must be evidenced by properly executed Certificates of Insurance forms. The Certificates must be signed by the authorized representative of the insurance company and shall be filed and maintained with the City annually. Thirty (30) days advance written notice by registered, certified or regular mail or facsimile as determined by the City must be given to the City of any cancellation, intent not to renew or reduction in the policy coverages. The insurance requirements may be satisfied by evidence of self-insurance or other types of insurance acceptable to the City. Section 57.11 - Indenmification (A). A Registrant shall, at its sole cost and expense, indemnify, hold harmless, and defend the City, its officials, boards, members, agents, and employees, against any and all claims, suits, causes of action, proceedings, judgments for damages or equitable relief, and costs and expenses incurred by the City arising out of the placement or maintenance of its Communications System or Facilities in Public Rights-of-Way, regardless of whether the act or omission complained of is authorized, allowed or 12 Ord. No. 50-01 prohibited by this Ordinance, provided, however, that a Registrant's obligation hereunder shall not extend to any claims caused by the negligence, gross negligence or wanton or willful acts of the City. This provision includes, but is not limited to, the City's reasonable attorneys' fees incurred in defending against any such claim, suit or proceedings. The City agrees to notify the Registrant, in writing, within a reasonable time of the City receiving notice, of any issue it determines may require indemnification. Nothing in this Section shall prohibit the City from participating in the defense of any litigation by its own counsel and at its own cost if in the City's reasonable belief there exists or may exist a conflict, potential conflict or appearance of a conflict. Nothing contained in this Section shall be construed or interpreted: (a) as denying to either party any remedy or defense available to such party under the laws of the State of Florida; or (b) as a waiver of sovereign immunity beyond the waiver provided in Section 768.28, Florida Statutes (2000), as it may be amended. (B). The indemnification requirements shall survive and be in effect after the termination or cancellation of a Registration. Section 57.12 - Construction Bond (A). Prior to issuing a permit where the work under the permit will require restoration of Public Rights-of-Way, the City may require a construction bond to secure the restoration of the Public Rights-of- Way. Notwithstanding the foregoing, a construction bond hereunder may only be required to the extent that the cost of the restoration exceeds the amount recoverable against the Security Fund as provided in Section 57.13. Twelve (12) months after the completion of the restoration in Public Rights-of-Way, in accordance with the bond, the Registrant may eliminate the bond. However, the City may subsequently require a new bond for any subsequent work in the Public Rights-of-Way. The construction bond shall be issued by a surety having a rating reasonably acceptable to the City; shall be subject to the approval of the Risk Manager; and shall provide that: "For twelve (12) months after issuance of this bond, this bond may not be canceled, or allowed to lapse, until sixty (60) days after receipt by the City, by certified mail, return receipt requested, of a written notice from the issuer of the bond of intent to cancel or not to renew. (B). The rights reserved by the City with respect to any construction bond established pursuant to this Section are in addition to all other rights and remedies the City may have under this Ordinance, or at law or equity. (C). The rights reserved to the City under this Section are in addition to all other rights of the City, whether reserved in this Ordinance, or authorized by other law, and no action, proceeding or exercise of a right with respect to the construction bond will affect any other right the City may have. Section 57.13 - Security Fund At or prior to the time a Registrant receives its first permit to place or maintain a Communications Facility in Public Rights-of-Way after the effective date of this Ordinance, the Registrant may be required 13 Ord. No. 50-01 to file with the City, for City approval, an annual bond, cash deposit or irrevocable letter of credit in the sum of $25,000 having as a surety a company qualified to do business in the State of Florida, and acceptable to the Risk Manager, which shall be referred to as the "Security Fund." The Security Fund shall be maintained from such time through the earlier off 1. transfer, sale, assignment or removal of all Communications Facilities in Public Rights-of-Way; or 2. twelve (12) months after the termination or cancellation of any Registration. The Security Fund shall be conditioned on the full and faithful performance by the Registrant of all requirements, duties and obligations imposed upon Registrant by the provisions of this Ordinance. The Security Fund shall be furnished annually or as frequently as necessary to provide a continuing guarantee of the Registrant's full and faithful performance at all times. In the event a Registrant fails to perform its duties and obligations imposed upon the Registrant by the provisions of this Ordinance, subject to Section 57.14 of this Ordinance, there shall be recoverable, jointly and severally from the principal and surety of the Security Fund, any damages or loss suffered by the City as a result, including the full amount of any compensation, indemnification or cost of removal, relocation or abandonment of any Facilities of the Registrant in Public Rights-of-Way, plus a reasonable allowance for attorneys' fees, up to the full amount of the Security Fund. Notwithstanding the foregoing, the City may in its discretion not require a Security Fund or may accept a corporate guarantee of the Registrant or its parent company. Section 57.14 - Enforcement Remedies A Registrant's failure to comply with provisions of this Ordinance shall constitute a violation of this Ordinance and shall subject the Registrant to the code enforcement provisions and procedures as provided in Chapter 37 of the Code of Ordinances or to any other legal or equitable remedy available to the City including, but not limited to, injunctive relief. In addition, violation of this Ordinance may be punishable as provided in Section 162.22, Florida Statutes, as it may be amended. Failure of the City to enforce any requirements of this Ordinance shall not constitute a waiver of the City's right to enforce that violation or subsequent violations of the same type or to seek appropriate enforcement remedies. Section 57.15 - Abandonment of a Communications Facility (A). Upon Abandonment of a Communications Facility owned by a Registrant in Public Rights- of-Way, the Registrant shall notify the City within ninety (90) days. (B). The City may direct the Registrant by written notice to remove all or any portion of such Abandoned Facility at the Registrant's sole expense if the City determines that the Abandoned Facility's presence interferes with the public health, safety or welfare, which shall include, but shall not be limited to, a determination that such Facility: (i) compromises safety at any time for any Public Rights-of-Way user or during construction or maintenance in Public Rights-of-Way; (ii) prevents another Person from locating facilities in the area of Public Rights-of-Way where the Abandoned Facility is located when other alternative locations are not reasonably available; or (iii) creates a maintenance condition that is 14 Ord. No. 50-01 disruptive to the Public Rights-of-Way's use. In the event of(ii), the City may require the third Person to coordinate with the Registrant that owns the existing Facility for joint removal and placement, where agreed to by the Registrant. (C). In the event that the City does not direct the removal of the Abandoned Facility, the Registrant, by its notice of Abandonment to the City shall be deemed to consent to the alteration or removal of all or any portion of the Facility by the City or another Person at such third party's cost. (D). If the Registrant fails to remove all or any portion of an Abandoned Facility as directed by the City within a reasonable time period as may be required by the City under the circumstances, the City may perform such removal and charge the cost of the removal against the Registrant. Section 57.16 - Force Ma,ieure In the event a Registrant's performance of or compliance with any of the provisions of this Ordinance is prevented by a cause or event not within the Registrant's control, such inability to perform or comply shall be deemed excused and no penalties or sanctions shall be imposed as a result, provided, however, that such Registrant uses all practicable means to expeditiously cure or correct any such inability to perform or comply. For purposes of this Ordinance, causes or events not within a Registrant's control shall include, without limitation, acts of God, floods, earthquakes, landslides, hurricanes, fires and other natural disasters, acts of public enemies, riots or civil disturbances, sabotage, strikes and restraints imposed by order of a governmental agency or court. Causes or events within Registrant's control, and thus not falling within this Section, shall include, without limitation, Registrant's financial inability to perform or comply, economic hardship, and misfeasance, malfeasance or nonfeasance by any of Registrant's directors, officers, employees, contractors or agents. Section 57.17 - Reservation of Rights and Remedies (A). The City reserves the right to amend this Ordinance as it shall find necessary in the lawful exercise of its police powers. (B). This Ordinance shall be applicable to all Communications Facilities placed in the Public Rights-of-Way on or after the effective date of this Ordinance and shall apply to all existing Communications Facilities in the Public Rights-of-Way prior to the effective date of this Ordinance, to the full extent permitted by State and Federal law. (C). The adoption of this Ordinance is not intended to affect any rights or defenses of the City or a Communications Service Provider under any existing franchise, license or other agreements with a Communications Services Provider. 15 Ord. No. 50-01 (D). Nothing in this Ordinance shall affect the remedies the City or the Registrant has available under applicable law. (E). Any Person who uses the Communications Facilities of a Registrant, other than the Registrant that owns the Facilities, shall not be entitled to any fights to place or maintain such Facilities in excess of the rights of the Registrant that places or maintains the Facilities. Section 57.18 - Severabili~, The provisions of this Ordinance are declared to be severable and if any section, sentence, clause or phrase of this Ordinance shall, for any reason, be held to be invalid or unconstitutional, such decision shall not affect the validity of the remaining sections, sentences, clauses and phrases of this Ordinance but shall remain in effect, it being the legislative intent that this Ordinance shall stand notwithstanding the invalidity of any part. Section 2. That Chapter 50, ""Utilities Generally; Public Service Tax", Section 50.15, "Levy of Tax", Subsection 50.15(B), "Telecommunications Services", of the Code of Ordinances of the City of Delray Beach, Florida, is hereby deleted in its entirety. Section 3. That Chapter 50, "Utilities Generally; Public Service Tax", Section 50.16, "When Sale in City Deemed Made", of the Code of Ordinances of the City of Delray Beach, Florida, be, and the same is hereby amended to read as follows: Section 50.16 WHEN SALE IN CITY DEEMED MADE. For the purpose of this subchapter, a sale shall be determined to be made in the City in every instance where electricity or bottled gas (natural or manufactured) is delivered to a purchaser residing within the City, regardless of whether the residence or business or headquarters of the seller is located within the City or elsewhere, ur:.~. ...... · ,^ ,~ ........ ~n,~ ...... ~ ..... ~ .... :,~.~ ,,.~.. r~:,.. :~ ~.~ Section 4. That Chapter 50, "Utilities Generally; Public Service Tax", Section 50.17, "Seller to Collect", Subsection 50.17(A), of the Code of Ordinances of the City of Delray Beach, Florida, be, and the same is hereby amended to read as follows: Section 50.17 SELLER TO COLLECT (A) It shall be the duty of every seller of electricity, or bottled gas (natural or manufactured), er te!ec, orr'.~',m:'catlc, n r, er','!c.e, to collect from the purchaser, for the use of the City, the tax hereby levied, at the time of collecting the selling price charged for each transaction, and to report and pay over, on or before the fit~eenth day of each calendar month, to the Finance Department of the City, all such taxes levied and collected during the preceding calendar month. It shall be unlawful for any seller to 16 Ord. No. 50-01 collect the price of any sale of electricity; or bottled gas (natural or manufactured), er te!zzzwzn-~:.eat'~zn ~ without at the same time collecting the tax hereby levied in respect to such sale or sales. Section5. That Chapter 50, "Utilities Generally; Public Service Tax", Section 50.19, "Monthly Returns Required; Computation", Subsection 50.19(B), of the Code of Ordinances of the City of Delray Beach, Florida, be, and the same is hereby amended to read as follows: Section 50.19 MONTHLY RETURNS REQUIRED; COMPUTATION. (B) In all cases where the seller of electricity; or bottled gas (natural or manufactured), o~ telece, mm",~nieatic, ns :er:ice collects the price thereof at monthly periods, the tax hereby levied may be computed on the aggregate amount of sales during such period, provided that the amount of tax to be collected shall be the nearest whole cent to the amount computed. Section 6. That Chapter 93, "Cable Television", Section 93.36, "Maps, Plats and Reports", of the Code of Ordinances of the City of Delray Beach, Florida, be, and the same is hereby amended to read as follows: Section 93.36 MAPS, PLATS AND REPORTS. (A) Upon request, the grantee shall file with the City Engineer accurate maps of its system, showing construction and distribution networks, and the grantee shall maintain these maps in a current condition. Section 7. That Chapter 93, "Cable Television", Section 93.37, "Payments to City", of the Code of Ordinances of the City of Delray Beach, Florida, be, and the same is hereby deleted in its entirety. Section 8. That all ordinances or parts of ordinances in conflict herewith be, and the same are hereby repealed. Section 9. That this Ordinance shall become effective on October 1, 2001. ~~AND ADOPTED in regular session on second and final reading on this the /~'/~day of ,2001. / 17 Ord. No. 50-01 ATTEST City Clerk First Reading~ · Second Reading~::~. MAYOR 18 Ord. No. 50-01 MEMORANDUM TO: FROM: SUBJECT: MAYOR AND CITY COMMISSIONERS CITY MANAGER ~ AGENDA ITEM #/10 fi(- REGULAR MEETING OF SEPTEMBER 19, 2001 ORDINANCE NO. 50-01 (REPEALING CHAPTER 57, "RIGHT-OF-WAY PERMITS FOR TELECOMMUNICATIONS SERVICES" and CHAPTER 58, "RIGHT-OF-WAY PERMITS FOR WIRELESS COMMUNICATIONS"; ADOPTING A NEW CHAPTER 57, "RIGHT-OF-WAY APPLICATION DATE: PROCESS FOR COMMUNICATIONS FACILITIES"; AMENDING CHAPTER 50, "UTILITIES GENERALLY: PUBLIC SERVICE TAX" and CHAi~ER 93, "CABLE TELEVISION") SEPTEMBER 14, 2001 This ordinance ~s before Commission for second reading and pubhc hearing to repeal Chapter 57, "Right-of-Way Permits for Telecommumcations Services", and Chapter 58, Right-of-Way Permits for Wireless Commumcauons Systems, of the Code of Ordinances. The proposed ordinance is in response to the adoption of the "Simplified Communicauons Services Tax" implemented by the State. In addition, thts ordinance adopts a new Chapter 57, "Right-of-Way Apphcation Process for Communication Facilities", amends Chapter 50, Utslities Generally: Pubhc Service Tax, and amends Chapter 93, Cable Television, to remove any references of payments to the C~ty by telecommunications or cable companies. At first reading on September 4, 2001, Commission unanimously approved this ordinance. Recommend approval of Ordinance No. 45-01 on second and final reading. Ref S \Caty Clerk\Clerk\Agmemo Ord50 01CommFa~es 9 19 01 doc [IT¥ OF OELRI:I¥ BEI:I[H CITY ATTORNEY'S OFFICE 200 NW 1st AVENUE · DELRAY BEACH, FLORIDA 33444 TELEPHONE 561/243-7090 · FACSIMILE 561/278-4755 Writer's Direct Line. 561/243-7091 1993 DATE: September 13, 2001 TO: FROM: City Commission David Harden, City Manager Brian Shutt, Assistant City Attorney SUBJECT: Communications Rights-of-Way Ordinance The Commission approved, on first reading, Ordinance No. 50-01 on September 4, 2001. In order to provide for better organization and clarity to Ordinance 50-01, Section 57.03(C)(5), allowing a contractor or agent to act on behalf of an Applicant if they have a letter from the Applicant, has been moved to Section 57.03(H). Please call if you have any questions. Attachment cc: Barbara Garito, City Clerk ORDINANCE NO. 50-01 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, RELATING TO COMMUNICATIONS FACILITIES IN PUBLIC RIGHTS-OF-WAY BY REPEALING CHAPTERS 57 AND 58 AND CREATING A NEW CHAPTER ENTITLED "RIGHT-OF-WAY APPLICATION PROCESS FOR COMMUNICATIONS FACILITIES"; AMENDING CHAPTER 50, "UTILITIES GENERALLY; PUBLIC SERVICE TAX" BY DELETING ALL REFERENCES TO TELECOMMUNICATIONS FACILITIES; AMENDING CHAPTER 93, "CABLE TELEVISION" BY REMOVING THE REQUIREMENT TO PAY FRANCHISE FEES TO THE CITY; PROVIDING FOR RESERVATION OF RIGHTS AND REMEDIES; PROVIDING FOR SEVERABILITY; PROVIDING AN EFFECTIVE DATE. WHEREAS, effective January 1, 2001, Section 337.401, Florida Statutes (2000), is amended to state that because federal and state law require the nondiscriminatory treatment of providers of telecommunications services and because of the desire to promote competition among providers of telecommunications services, it is the intent of the Legislature that municipalities and counties treat telecommunications companies in a nondiscriminatory and competitively neutral manner when imposing rules or regulations governing the placement or maintenance of telecommunications facilities in the public roads or rights-of-way. Rules or regulations imposed by a municipality or county relating to telecommunications companies placing or maintaining telecommunications facilities in its roads or rights-of-way must be generally applicable to all telecommunications companies and, notwithstanding any other law, may not require a telecommunications company to apply for or enter into an individual license, franchise, or other agreement with the municipality or county as a condition of placing or maintaining telecommunications facilities in its roads or rights-of-way; and WHEREAS, effective October 1, 2001, Section 337.401, Florida Statutes (2000), is further amended to state that because of the unique circumstances applicable to providers of communications services and the fact that federal and state law require the nondiscriminatory treatment of providers of telecommunications services, and because of the desire to promote competition among providers of communications services, it is the intent of the Legislature that municipalities and counties treat providers of communications services in a nondiscriminatory and competitively neutral manner when imposing rules or regulations governing the placement or maintenance of communications facilities in the public roads or rights-of-way. Rules or regulations imposed by a municipality or county relating to providers of communications services placing or maintaining communications facilities in its roads or rights-of-way must be generally applicable to all providers of communications services and, notwithstanding any other law, may not require a provider of communications services, except as otherwise provided for providers of cable service, to apply for or enter into an individual license, franchise, or other agreement with the municipality or county as a condition of placing or maintaining communications facilities in its roads or rights-of-way; and WHEREAS, it is the intent of the City of Delray Beach to exercise the City's authority over communications services providers' placement and maintenance of facilities in the public rights-of-way; and WHEREAS, it is the City of Delray Beach's intent to treat each communications services provider in a nondiscriminatory and competitively neutral manner in exercising such authority; and WHEREAS, the public rights-of-way subject to the jurisdiction and control of the City of Delray Beach: (1) are critical to the travel of persons and the transport of goods and other tangibles in the business and social life of the community by all citizens; (2) are a unique and physically limited resource and proper management by the City is necessary to maximize efficiency, minimize the costs to the taxpayers of the foregoing uses, and to minimize the inconvenience to and negative effects upon the public from such facilities' placement and maintenance in the public rights-of-way; and (3) are intended for public uses and must be managed and controlled consistently with that intent; and WHEREAS, it is the intent of the City of Delray Beach to exercise its authority to adopt reasonable rules and regulations to the fullest extent allowed by Federal and State law; and WHEREAS, it is the intent of the City of Delray Beach that this Ordinance shall apply to cable service providers only with reference to the calculation and payment of the Communications Services Tax and is not intended to impact the City's regulatory powers pursuant to Chapter 93 of the Code of Ordinances (including the providing of additional services to the City as set forth therein). NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA AS FOLLOWS: Section 1. That Chapter 57 "Right-of-Way Permits for Telecommunication Services" and Chapter 58 "Right-of-Way Permits for Wireless Communications Systems" are hereby repealed in their entirety and replaced by the following: "CHAPTER 57: RIGHT-OF-WAY APPLICATION PROCESS FOR COMMUNICATIONS FACILITIES" Section 57.01 - Intent and Purpose 2 Ord. No. 50-01 It is the intent of the City of Delray Beach to promote the public health, safety and general welfare by: providing for the placement or maintenance of Communications Facilities in the Public Rights-of-Way within the City; adopting and administering reasonable rules and regulations not inconsistent with State and Federal law, including Section 337.401, Florida Statutes (2000), as it may be amended, the City's home-rule authority, and in accordance with the provisions of the Federal Telecormnunications Act of 1996 and other Federal and State law; establishing reasonable rules and regulations necessary to manage the placement or maintenance of Communications Facilities in the Public Rights-of-Way by all Communications Services Providers; and minimizing disruption to the Public Rights-of-Way. In regulating its Public Rights-of-Way, the City shall be governed by and shall comply with all applicable Federal and State laws. Section 57.02 - Definitions For purposes of this Ordinance, the following terms, phrases, words and their derivations shall have the meanings given. Where not inconsistent with the context, words used in the present tense include the future tense, words in the plural number include the singular number, and words in the singular number include the plural number. The words "shall" and "will" are mandatory, and "may" is permissive. Words not otherwise defined shall be construed to mean the common and ordinary meaning. Abandonment: shall mean the permanent cessation of all uses of a Communications Facility; provided that this term shall not include cessation of all use of a Facility within a physical structure where the physical structure continues to be used. By way of example, and not limitation, cessation of all use of a cable within a conduit, where the conduit continues to be used, shall not be "Abandonment" of a Facility in Public Rights-of-Way. City: shall mean the City of Delray Beach, Florida. Communications Services: shall mean the transmission, conveyance or routing of voice, data, audio, video, or any other information or signals to a point, or between or among points, by or through any electronic, radio, satellite, cable, optical, microwave, or other medium or method now in existence or hereafter devised, regardless of the protocol used for such transmission or conveyance. Notwithstanding the foregoing, for purposes of this Ordinance "cable service", as defined in Section 202.11(2), Florida Statutes (2000), as it may be amended, is not included in the definition of "Communications Services," and cable service providers may be subject to other ordinances of the City. Communications Services Provider: shall mean any Person including a municipality or county providing Communications Services through the placement or maintenance of a Communications Facility in Public Rights-of-Way. "Communications Services Provider" shall also include any Person 3 Ord. No. 50-01 including a municipality or county that places or maintains a Communications Facility in Public Rights- of-Way but does not provide Communications Services. Communications Facility or Facility or System: shall mean any permanent or temporary plant, equipment and property, including but not limited to cables, wires, conduits, ducts, fiber optics, poles, antennae, converters, splice boxes, cabinets, hand holes, manholes, vaults, drains, surface location markers, appurtenances, and other equipment or pathway placed or maintained or to be placed or maintained in the Public Rights-of-Way of the City and used or capable of being used to transmit, convey, route, receive, distribute, provide or offer Communications Services. FCC: shall mean the Federal Communications Commission. In Public Rights-of-Way or in the Public Rights-of-Way: shall mean in, on, over, under or across the Public Rights-of-Way. Ordinance: shall mean this Ordinance. Person: shall include any individual, children, firm, association, joint venture, parmership, estate, trust, business trust, syndicate, fiduciary, corporation, organization or legal entity of any kind, successor, assignee, transferee, personal representative, and all other groups or combinations, and shall include the City to the extent the City acts as a Communications Services Provider. "Place or maintain" or "placement or maintenance" or "placing or maintaining": shall mean to erect, construct, install, maintain, place, repair, extend, expand, remove, occupy, locate or relocate. A Communications Services Provider that owns or exercises physical control over Communications Facilities in Public Rights-of-Way, such as the physical control to maintain and repair, is "placing or maintaining" the Facilities. A Person providing service only through resale or only through use of a third party's unbundled network elements is not "placing or maintaining" the Communications Facilities through which such service is provided. The transmission and receipt of radio frequency signals through the airspace of the Public Rights-of-Way does not constitute "placing or maintaining" Facilities in the Public Rights-of-Way. Public Rights-of-Way: shall mean a public right-of-way, public utility easement, highway, street, bridge, tunnel or alley for which the City is the authority that has jurisdiction and control and may lawfully grant access to pursuant to applicable law, and includes the surface, the air space over the surface and the area below the surface. "Public Rights-of-Way" shall not include private property. "public Rights-of-Way" shall not include any real or personal City property except as described above and shall not include City buildings, fixtures, poles, conduits, facilities or other structures or improvements, regardless of whether they are situated in the Public Rights-of-Way. 4 Ord. No. 50-01 Registrant: shall mean a Communications Services Provider that has Registered with the City in accordance with the provisions of this Ordinance. Registration or Register: shall mean the process described in this Ordinance whereby a Communications Services Provider provides certain information to the City. Section 57.03 - Registration for Placing or Maintaining Communications Facilities in Public Rights-of-Way (A). A Communications Services Provider that desires to place or maintain a Communications Facility in Public Rights-of-Way in the City shall first Register with the City in accordance with this Ordinance. Subject to the terms and conditions prescribed in this Ordinance, a Registrant may place or maintain a Communications Facility in Public Rights-of-Way. (B). A Registration shall not convey any title, equitable or legal, to the Registrant in the Public Rights-of-Way. Registration under this Ordinance governs only the placement or maintenance of Communications Facilities in Public Rights-of-Way. Other ordinances, codes or regulations may apply to the placement or maintenance in the Public Rights-of-Way of facilities that are not Communications Facilities. Registration does not excuse a Communications Services Provider from obtaining appropriate access or pole attachment agreements before locating its Facilities on the City's or another Person's facilities. Registration does not excuse a Communications Services Provider from complying with all applicable City ordinances, codes or regulations, including this Ordinance. (C). Each Communications Services Provider that desires to place or maintain a Communications Facility in Public Rights-of-Way in the City shall file a single Registration with the City which shall include the following information: (1) name of the applicant; (2) name, address and telephone number of the applicant's primary contact person in connection with the Registration, and the person to contact in case of an emergency; (3) evidence of the insurance coverage required under this Ordinance and acknowledgment that Registrant has received and reviewed a copy of this Ordinance, which acknowledgment shall not be deemed an agreement; and (4) the number of the applicant's certificate of authorization or license to provide Communications Services issued by the Florida Public Service Commission, the Federal Communications Commission, or other Federal or State authority, if any; 5 Ord. No. 50-01 (65) for an applicant that does not provide a Florida Public Service Commission certificate of authorization number, if the applicant is a corporation, proof of authority to do business in the State of Florida, including the number of the certificate of incorporation. (D). The City shall review the information submitted by the applicant. Such review shall be by the City Engineer or his or her designee. If the applicant submits information in accordance with Section 57.03(C) above, the Registration shall be effective and the City shall notify the applicant of the effectiveness of Registration in writing. If the City determines that the information has not been submitted in accordance with Section 57.03(C) above, the City shall notify the applicant of the non- effectiveness of Registration, and reasons for the non-effectiveness, in writing. The City shall so reply to an applicant within thirty (30) days after receipt of registration information from the applicant. Non- effectiveness of Registration shall not preclude an applicant from filing subsequent applications for Registration under the provisions of this Section. An applicant has fifteen (15) business days after receipt of a notice of non-effectiveness of Registration to appeal the decision as provided in Section 57.07 (E). A Registrant may cancel a Registration upon written notice to the City stating that it will no longer place or maintain any Communications Facilities in Public Rights-of-Way within the City and will no longer need to obtain permits to perform work in Public Rights-of-Way. A Registrant cannot cancel a Registration if the Registrant continues to place or maintain any Communications Facilities in Public Rights-of-Way. (F). Registration does not in and of itself establish a right to place or maintain or priority for the placement or maintenance of a Communications Facility in Public Rights-of-Way within the City but shall establish for the Registrant a right to apply for a permit, if permitting is required by the City. Registrations are expressly subject to any future amendment to or replacement of this Ordinance and further subject to any additional City ordinances, as well as any State or Federal laws that may be enacted. (G). A Registrant shall renew its Registration with the City by April 1 of even numbered years in accordance with the Registration requirements in this Ordinance, except that a Registrant that initially registers during the even numbered year when renewal would be due or the odd numbered year immediately preceding such even numbered year shall not be required to renew until the next even numbered year. Within thirty (30) days of any change in the information required to be submitted pursuant to Section 57.03(C), except, as of October 1, 2001, Section 57.03(C), a Registrant shall provide updated information to the City. If no information in the then-existing Registration has 6 Ord. No. 50-01 changed, the renewal may state that no information has changed. Failure to renew a Registration may result in the City restricting the issuance of additional permits until the Communications Services Provider has complied with the Registration requirements of this Ordinance. (H). In accordance with applicable City ordinances, codes or regulations, a permit may be required of a Communications Services Provider that desires to place or maintain a Communications Facility in Public Rights-of-Way. An effective Registration shall be a condition of obtaining a permit. Notwithstanding an effective Registration, permitting requirements shall apply. A permit may be obtained by or on behalf of a Registrant having an effective Registration if all permitting requirements are met. If a contractor performs work in City rights-of-way on behalf of a Registrant, the City shall be provided with a letter specifying that said contractor is performing work on Registrant's behalf, it being understood that any such work is subject to applicable terms of this Chapter. Section 57.04 - Notice of Transfer~ Sale or Assignment of Assets in Public Rights-of-Way If a Registrant transfers, sells or assigns its assets located in Public Rights-of-Way incident to a transfer, sale or assignment of the Registrant's assets, the transferee, buyer or assignee shall be obligated to comply with the terms of this Ordinance. Written notice of any such transfer, sale or assignment shall be provided by such Registrant to the City within twenty (20) days after the effective date of the transfer, sale or assignment. If the transferee, buyer or assignee is a current Registrant, then the transferee, buyer or assignee is not required to re-Register. If the transferee, buyer or assignee is not a current Registrant, then the transferee, buyer or assignee shall Register as provided in Section 4 within sixty (60) days of the transfer, sale or assignment. Section 57.05 - Placement or Maintenance of a Communications Facility in Public Rights -of-Way (A). A Registrant shall at all times comply with and abide by all applicable provisions of the State and Federal law and City ordinances, codes and regulations in placing or maintaining a Communications Facility in Public Rights-of-Way. (B). A Registrant shall not commence to place or maintain a Communications Facility in Public Rights-of-Way until all applicable permits, if any, have been issued by the City or other appropriate authority, except in the case of an emergency. The term "emergency" shall mean a condition that affects the public's health, safety or welfare, which includes an unplanned out-of-service condition of a pre-existing service. Registrant shall provide prompt notice to the City of the placement or maintenance of a Communications Facility in Public Rights-of-Way in the event of an emergency. Registrant acknowledges that as a condition of granting such permits, the City may impose reasonable rules or regulations governing the placement or maintenance of a Communications Facility in Public Rights-of-Way. Permits shall apply only to the areas of Public Rights-of-Way specifically identified in the permit. The City may issue a blanket permit to cover certain activities, such as routine maintenance 7 Ord. No. 50-01 and repair activities, that may otherwise require individual permits. As part of any permit application to place a new or replace an existing Communications Facility in Public Rights-of-Way, the Registrant shall provide the following: (1) The location of the proposed Facilities, including a description of the Facilities to be installed, where the Facilities are to be located, and the approximate size of Facilities that will be located in Public Rights-of-Way; (2) A description of the manner in which the Facility will be installed (i.e. anticipated construction methods or techniques); (3) A maintenance of traffic plan for any disruption of the Public Rights-of-Way; (4) Information on the ability of the Public Rights-of-Way to accommodate the proposed Facility, if available (such information shall be provided without certification as to correctness, to the extent obtained from other Persons); (5) If appropriate given the Facility proposed, an estimate of the cost of restoration to the Public Rights-of-Way; (6) The timetable for construction of the project or each phase thereof, and the areas of the City which will be affected; and (7) Such additional information as the City finds reasonably necessary with respect to the placement or maintenance of the Communications Facility that is the subject of the permit application to review such permit application. (C). To the extent not otherwise prohibited by State or Federal law, the City shall have the power to prohibit or limit the placement of new or additional Communications Facilities within a particular area of Public Rights-of Way. (D). All Communications Facilities shall be placed or maintained so as not to unreasonably interfere with the use of the Public Rights-of-Way by the public and with the rights and convenience of property owners who adjoin any of the Public Rights-of-Way or with other users who have facilities located in the public right-of-way. The use of trenchless technology (i.e., directional bore method) for the installation of Facilities in the Public Rights-of-Way as well as joint trenching or the co-location of facilities in existing conduit is strongly encouraged, and should be employed wherever feasible. The City Manager or his/her designee may promulgate reasonable rules and regulations concerning the placement or maintenance of a Communications Facility in Public Rights-of-Way consistent with this Ordinance and other applicable law. All safety practices required by applicable law or accepted industry practices and 8 Ord. No. 50-01 standards shall be used during the placement or maintenance of Communications Facilities. After the completion of any placement or maintenance of a Communications Facility in Public Rights-of-Way or each phase thereof, a Registrant shall, at its own expense, restore the Public Rights-of-Way to its original condition before such work. If the Registrant fails to make such restoration within thirty (30) days, or such longer period of time as may be reasonably required under the circumstances, following the completion of such placement or maintenance, the City may perform restoration and charge the costs of the restoration against the Registrant in accordance with Section 337.402, Florida Statutes (2000), as it may be amended. For twelve (12) months following the original completion of the work, the Registrant shall guarantee its restoration work and shall correct any restoration work that does not satisfy the requirements of this Ordinance at its own expense. (E). Removal or relocation at the direction of the City of a Registrant's Communications Facility in Public Rights-of-Way shall be governed by the provisions of Sections 337.403 and 337.404, Florida Statutes (2000), as they may be amended. (F). A permit from the City constitutes authorization to undertake only certain activities in Public Rights-of-Way in accordance with this Ordinance, and does not create a property right or grant authority to impinge upon the rights of others who may have an interest in the Public Rights-of-Way. (G). A Registrant shall maintain its Communications Facility in Public Rights-of-Way in a manner consistent with accepted industry practice and applicable/aw. (H). In connection with excavation in the Public Rights-of-Way, a Registrant shall, where applicable, comply with the Underground Facility Damage Prevention and Safety Act set forth in Chapter 556, Florida Statutes (2000), as it may be amended. (I). Registrant shall use and exercise due caution, care and skill in performing work in the Public Rights-of-Way and shall take all reasonable steps to safeguard work site areas. (J). Upon request of the City, and as notified by the City of the other work, construction, installation or repairs referenced below, a Registrant may be required to coordinate placement or maintenance activities under a permit with any other work, construction, installation or repairs that may be occurring or scheduled to occur within a reasonable timeframe in the subject Public Rights-of-Way, and Registrant may be required to reasonably alter its placement or maintenance schedule as necessary so as to minimize disruptions and disturbance in the Public Rights-of-Way. (K). A Registrant shall not place or maintain its Communications Facilities so as to interfere with, displace, damage or destroy any facilities, including but not limited to, sewers, gas or water mains, storm drains, pipes, cables or conduits of the City or any other Person's facilities lawfully occupying the Public Rights-of-Way of the City. 9 Ord. No. 50-01 (L). The City makes no warranties or representations regarding the fitness, suitability, or availability of the City's Public Rights-of-Way for the Registrant's Communications Facilities and any performance of work, costs incurred or services provided by Registrant shall be at Registrant's sole risk. Nothing in this Ordinance shall affect the City's authority to add, vacate or abandon Public Rights-of-Way, and the City makes no warranties or representations regarding the availability of any added, vacated or abandoned Public Rights-of-Way for Communications Facilities. (M). The City shall have the right to make such inspections of Communications Facilities placed or maintained in Public Rights-of-Way as it finds necessary to ensure compliance with this Ordinance. (N). A permit application to place a new or replace an existing Communications Facility in Public Rights-of-Way shall include plans showing the location of the proposed installation of Facilities in the Public Rights-of-Way. If the plans so provided require revision based upon actual installation, the Registrant shall promptly provide revised plans. The plans shall be in a hard copy format or an electronic format specified by the City, provided such electronic format is maintained by the Registrant. Such plans in a format maintained by the Registrant shall be provided at no cost to the City. (O). The City reserves the right to place and maintain, and permit to be placed or maintained, sewer, gas, water, electric, storm drainage, communications, and other types of facilities, cables or conduit, and to do, and to permit to be done, any underground and overhead installation or improvement that may be deemed necessary or proper by the City in Public Rights-of-Way occupied by the Registrant. The City further reserves without limitation the right to alter, change, or cause to be changed, the grading, installation, relocation, or width of the Public Rights-of-Way within the limits of the City and within said limits as same may from time to time be altered. (P). A Registrant shall, on the request of any Person holding a permit issued by the City, temporarily raise or lower its Communications Facilities to permit the work authorized by the permit. The expense of such temporary raising or lowering of Facilities shall be paid by the Person requesting the same, and the Registrant shall have the authority to require such payment in advance. The Registrant shall be given not less than thirty (30) days advance written notice to arrange for such temporary relocation. (Q). A wireless facility that is a portion of a Communication Facility, such as an antenna ("Wireless Facility(ies)"), which is attached to a legally maintained vertical structure in the Public Rights-of-Way, such as a light pole or utility pole ("Vertical Structure(s)"), shall be governed by Land Development Regulation Section 4.3.3(S). Section 57.06 - Suspension of Permits 10 Ord. No. 50-01 The City may suspend a permit for work in the Public Rights-of-Way, subject to Section 57.07 of this Ordinance, for one or more of the following reasons: (1). (2). (3). (4). violation of permit conditions, including conditions set forth in the permit, this Ordinance or other applicable City ordinances, codes or regulations governing placement or maintenance of Communications Facilities in Public Rights-of-Way; misrepresentation or fraud by Registrant in a Registration or permit application to the City; or failure to properly renew or ineffectiveness of Registration. failure to relocate or remove Facilities as may be lawfully required by the City. The City Manager or his/her designee shall provide notice and an opportunity to cure any violation of (1) through (4) above, each of which shall be reasonable under the circumstances. Section 57.07 - Appeals If an application for use of the rights-of-way or a renewal of the application or a permit is denied by the City, and if the applicant wants to appeal the denial, the applicant must file an appeal with the City Manager within fifteen (15) business days of the date of the denial. Any appeal not timely filed as set forth above shall be waived. The City Commission shall hear the appeal within fifteen (15) business days of the filing of the appeal or at the first regular scheduled Commission meeting thereafter. Section 57.08 - Involuntary Termination of Registration (A). The City may terminate a Registration if: (1) a Federal or State authority suspends, denies, or revokes a Registrant's certification or license to provide Communications Services; (2) the Registrant's placement or maintenance of a Communications Facility in the Public Rights-of-Way presents an extraordinary danger to the general public or other users of the Public Rights-of-Way and the Registrant fails to remedy the danger promptly after receipt of written notice; or (3) the Registrant ceases to use all of its Communications Facilities in Public Rights-of- Way and has not complied with Section 57.15 of this Ordinance. (B). notice setting Prior to termination, the Registrant shall be notified by the City Manager with a written forth all matters pertinent to the proposed termination action, including which of (1) 11 Ord. No. 50-01 through (3) above is applicable as the reason therefore, and describing the proposed action of the City with respect thereto. The Registrant shall have sixty (60) days after receipt of such notice within which to address or eliminate the reason or within which to present a plan, satisfactory to the City Manager, to accomplish the same. If the plan is rejected, the City Manager shall provide written notice of such rejection to the Registrant and shall make a recommendation to the City Commission regarding a decision as to termination of Registration. A decision by the City to terminate a Registration may only be accomplished by an action of the City Commission. A Registrant shall be notified by written notice of any decision by the City Commission to terminate its Registration. Such written notice shall be sent within ten (10) days after the decision. (C). In the event of termination, the former Registrant shall: (i) notify the City of the assumption or anticipated assumption by another Registrant of ownership of the Registrant's Communications Facilities in Public Rights-of-Way; or (ii) provide the City with an acceptable plan for disposition of its Communications Facilities in Public Rights-of-Way. If a Registrant fails to comply with this Subsection 57.08(C), which determination of non-compliance is subject to appeal as provided in Section 57.07, the City may exercise any remedies or rights it has at law or in equity, including but not limited to taking possession of the Facilities where another Person has not assumed the ownership or physical control of the Facilities or requiring the Registrant within 90 days of the termination, or such longer period as may be agreed to by the Registrant, to remove some or all of the Facilities from the Public Rights-of-Way and restore the Public Rights-of-Way to its original condition before the removal. (D). In any event, a terminated Registrant shall take such steps as are necessary to render safe every portion of the Communications Facilities remaining in the Public Rights-of-Way of the City. (E). In the event of termination of a Registration, this Section does not authorize the City to cause the removal of Communications Facilities used to provide another service for which the Registrant or another Person who owns or exercises physical control over the Facilities holds a valid certification or license with the governing Federal or State agency, if required for provision of such service, and is Registered with the City, if required. Section 57.09 - Existing Communications Facilities in Public Rights-of-Way A Communications Services Provider with an existing Communications Facility in the Public Rights-of-Way of the City has sixty (60) days from the Effective Date of this Ordinance to comply with the terms of this Ordinance, including, but not limited to, Registration, or be in violation thereof. Section 57.10 - Insurance 12 Ord. No. 50-01 A Registrant shall provide, pay for and maintain insurance, satisfactory to the City. All insurance shall be from responsible companies duly authorized to do business in the State of Florida and having a rating reasonably acceptable to the City. All liability policies shall provide that the City is an additional insured as to the activities under this Ordinance. The required coverages must be evidenced by properly executed Certificates of Insurance forms. The Certificates must be signed by the authorized representative of the insurance company and shall be filed and maintained with the City annually. Thirty (30) days advance written notice by registered, certified or regular mail or facsimile as determined by the City must be given to the City of any cancellation, intent not to renew or reduction in the policy coverages. The insurance requirements may be satisfied by evidence of self-insurance or other types of insurance acceptable to the City. Section 57.11 - Indemnification (A). A Registrant shall, at its sole cost and expense, indemnify, hold harmless, and defend the City, its officials, boards, members, agents, and employees, against any and all claims, suits, causes of action, proceedings, judgments for damages or equitable relief, and costs and expenses incurred by the City arising out of the placement or maintenance of its Communications System or Facilities in Public Rights-of-Way, regardless of whether the act or omission complained of is authorized, allowed or prohibited by this Ordinance, provided, however, that a Registrant's obligation hereunder shall not extend to any claims caused by the negligence, gross negligence or wanton or willful acts of the City. This provision includes, but is not limited to, the City's reasonable attorneys' fees incurred in defending against any such claim, suit or proceedings. The City agrees to notify the Registrant, in writing, within a reasonable time of the City receiving notice, of any issue it determines may require indemnification. Nothing in this Section shall prohibit the City from participating in the defense of any litigation by its own counsel and at its own cost if in the City's reasonable belief there exists or may exist a conflict, potential conflict or appearance of a conflict. Nothing contained in this Section shall be construed or interpreted: (a) as denying to either party any remedy or defense available to such party under the laws of the State of Florida; or (b) as a waiver of sovereign immunity beyond the waiver provided in Section 768.28, Florida Statutes (2000), as it may be amended. (B). The indemnification requirements shall survive and be in effect after the termination or cancellation of a Registration. Section 57.12 - Construction Bond (A). Prior to issuing a permit where the work under the permit will require restoration of Public Rights-of-Way, the City may require a construction bond to secure the restoration of the Public Rights-of-Way. Notwithstanding the foregoing, a construction bond hereunder may only be required to the extent that the cost of the restoration exceeds the amount recoverable against the Security Fund as provided in Section 57.13. Twelve (12) months after the completion of the restoration in Public Rights- 13 Ord. No. 50-01 of-Way, in accordance with the bond, the Registrant may eliminate the bond. However, the City may subsequently require a new bond for any subsequent work in the Public Rights-of-Way. The construction bond shall be issued by a surety having a rating reasonably acceptable to the City; shall be subject to the approval of the Risk Manager; and shall provide that: "For twelve (12) months after issuance of this bond, this bond may not be canceled, or allowed to lapse, until sixty (60) days after receipt by the City, by certified mail, return receipt requested, of a written notice from the issuer of the bond of intent to cancel or not to renew. (B). The rights reserved by the City with respect to any construction bond established pursuant to this Section are in addition to all other rights and remedies the City may have under this Ordinance, or at law or equity. (C). The rights reserved to the City under this Section are in addition to all other rights of the City, whether reserved in this Ordinance, or authorized by other law, and no action, proceeding or exercise of a right with respect to the construction bond will affect any other right the City may have. Section 57.13 - Security Fund At or prior to the time a Registrant receives its first permit to place or maintain a Communications Facility in Public Rights-of-Way after the effective date of this Ordinance, the Registrant may be required to file with the City, for City approval, an annual bond, cash deposit or irrevocable letter of credit in the sum of $25,000 having as a surety a company qualified to do business in the State of Florida, and acceptable to the Risk Manager, which shall be referred to as the "Security Fund." The Security Fund shall be maintained from such time through the earlier of: 1. transfer, sale, assignment or removal of all Communications Facilities in Public Rights-of-Way; or 2. twelve (12) months after the termination or cancellation of any Registration. The Security Fund shall be conditioned on the full and faithful performance by the Registrant of all requirements, duties and obligations imposed upon Registrant by the provisions of this Ordinance. The Security Fund shall be furnished annually or as frequently as necessary to provide a continuing guarantee of the Registrant's full and faithful performance at all times. In the event a Registrant fails to perform its duties and obligations imposed upon the Registrant by the provisions of this Ordinance, subject to Section 57.14 of this Ordinance, there shall be recoverable, jointly and severally from the principal and surety of the Security Fund, any damages or loss suffered by the City as a result, including the full amount of any compensation, indemnification or cost of removal, relocation or abandonment of any Facilities of the Registrant in Public Rights-of-Way, plus a reasonable allowance for attorneys' fees, up to the full amount of the Security Fund. Notwithstanding the foregoing, the City may in its discretion not require a Security Fund or may accept a corporate guarantee of the Registrant or its parent company. Section 57.14 - Enforcement Remedies 14 Ord. No. 50-01 A Registrant's failure to comply with provisions of this Ordinance shall constitute a violation of this Ordinance and shall subject the Registrant to the code enforcement provisions and procedures as provided in Chapter 37 of the Code of Ordinances or to any other legal or equitable remedy available to the City including, but not limited to, injunctive relief. In addition, violation of this Ordinance may be punishable as provided in Section 162.22, Florida Statutes, as it may be amended. Failure of the City to enforce any requirements of this Ordinance shall not constitute a waiver of the City's right to enforce that violation or subsequent violations of the same type or to seek appropriate enforcement remedies. Section 57.15 - Abandonment of a Communications Facility (A). Upon Abandonment of a Communications Facility owned by a Registrant in Public Rights-of-Way, the Registrant shall notify the City within ninety (90) days. (B). The City may direct the Registrant by written notice to remove all or any portion of such Abandoned Facility at the Registrant's sole expense if the City determines that the Abandoned Facility's presence interferes with the public health, safety or welfare, which shall include, but shall not be limited to, a determination that such Facility: (i) compromises safety at any time for any Public Rights- of-Way user or during construction or maintenance in Public Rights-of-Way; (ii) prevents another Person from locating facilities in the area of Public Rights-of-Way where the Abandoned Facility is located when other alternative locations are not reasonably available; or (iii) creates a maintenance condition that is disruptive to the Public Rights-of-Way's use. In the event of (ii), the City may require the third Person to coordinate with the Registrant that owns the existing Facility for joint removal and placement, where agreed to by the Registrant. (C). In the event that the City does not direct the removal of the Abandoned Facility, the Registrant, by its notice of Abandonment to the City shall be deemed to consent to the alteration or removal of all or any portion of the Facility by the City or another Person at such third party's cost. (D). If the Registrant fails to remove all or any portion of an Abandoned Facility as directed by the City within a reasonable time period as may be required by the City under the circumstances, the City may perform such removal and charge the cost of the removal against the Registrant. Section 57.16 - Force Majeure In the event a Registrant's performance of or compliance with any of the provisions of this Ordinance is prevented by a cause or event not within the Registrant's control, such inability to perform or comply shall be deemed excused and no penalties or sanctions shall be imposed as a result, provided, however, that such Registrant uses all practicable means to expeditiously cure or correct any such inability to perform or comply. For purposes of this Ordinance, causes or events not within a 15 Ord. No. 50-01 Registrant's control shall include, without limitation, acts of God, floods, earthquakes, landslides, hurricanes, fires and other natural disasters, acts of public enemies, riots or civil disturbances, sabotage, strikes and restraints imposed by order of a governmental agency or court. Causes or events within Registrant's control, and thus not falling within this Section, shall include, without limitation, Registrant's financial inability to perform or comply, economic hardship, and misfeasance, malfeasance or nonfeasance by any of Registrant's directors, officers, employees, contractors or agents. Section 57.17 - Reservation of Rights and Remedies (A). The City reserves the right to amend this Ordinance as it shall find necessary in the lawful exercise of its police powers. (B). This Ordinance shall be applicable to all Communications Facilities placed in the Public Rights-of-Way on or after the effective date of this Ordinance and shall apply to all existing Communications Facilities in the Public Rights-of-Way prior to the effective date of this Ordinance, to the full extent permitted by State and Federal law. (C). The adoption of this Ordinance is not intended to affect any rights or defenses of the City or a Communications Service Provider under any existing franchise, license or other agreements with a Communications Services Provider. (D). Nothing in this Ordinance shall affect the remedies the City or the Registrant has available under applicable law. (E). Any Person who uses the Communications Facilities of a Registrant, other than the Registrant that owns the Facilities, shall not be entitled to any rights to place or maintain such Facilities in excess of the rights of the Registrant that places or maintains the Facilities. Section 57.18 - Severability The provisions of this Ordinance are declared to be severable and if any section, sentence, clause or phrase of this Ordinance shall, for any reason, be held to be invalid or unconstitutional, such decision shall not affect the validity of the remaining sections, sentences, clauses and phrases of this Ordinance but shall remain in effect, it being the legislative intent that this Ordinance shall stand notwithstanding the invalidity of any part. Section 2. That Chapter 50, ""Utilities Generally; Public Service Tax", Section 50.15, "Levy of Tax", Subsection 50.15(B), "Telecommunications Services", of the Code of Ordinances of the City of Delray Beach, Florida, is hereby deleted in its entirety. 16 Ord. No. 50-01 Section 3. That Chapter 50, "Utilities Generally; Public Service Tax", Section 50.16, "When Sale in City Deemed Made", of the Code of Ordinances of the City of Delray Beach, Florida, be, and the same is hereby amended to read as follows: Section 50.16 WHEN SALE IN CITY DEEMED MADE. For the purpose of this subchapter, a sale shall be determined to be made in the City in every instance where electricity or bottled gas (natural or manufactured) is delivered to a purchaser residing within the City, regardless of whether the residence or business or headquarters of the seller is located within the City or elsewhere, xxT~,h ...... , ,,, ,~ ........ ~,,,,,; ...... ;~% o oo~ .... ~,h~, ,~,,~ r,;,,, ~o 4~fi,,,~a Section 4. That Chapter 50, "Utilities Generally; Public Service Tax", Section 50.17, "Seller to Collect", Subsection 50.17(A), of the Code of Ordinances of the City of Delray Beach, Florida, be, and the same is hereby amended to read as follows: Section 50.17 SELLER TO COLLECT (A) It shall be the duty of every seller of electricity, or bottled gas (natural or manufactured), er *_e!ece_.'v_mun'_"z_2?_'~n se~.'?z_e to collect from the purchaser, for the use of the City, the tax hereby levied, at the time of collecting the selling price charged for each transaction, and to report and pay over, on or before the fifteenth day of each calendar month, to the Finance Department of the City, all such taxes levied and collected during the preceding calendar month. It shall be unlawful for any seller to collect the price of any sale of electricity, or bottled gas (natural or manufactured), er ~ without at the same time collecting the tax hereby levied in respect to such sale or sales. Section5. That Chapter 50, "Utilities Generally; Public Service Tax", Section 50.19, "Monthly Returns Required; Computation", Subsection 50.19(B), of the Code of Ordinances of the City of Delray Beach, Florida, be, and the same is hereby amended to read as follows: Section 50.19 MONTHLY RETURNS REQUIRED; COMPUTATION. (B) In all cases where the seller of electricityv or bottled gas (natural or manufactured), o~ *.e!e-'_e.'v._m'_'nS:"_*:_ens .... ~'~ collects the price thereof at monthly periods, the tax hereby levied may be computed on the aggregate amount of sales during such period, provided that the amount of tax to be collected shall be the nearest whole cent to the amount computed. Section 6. That Chapter 93, "Cable Television", Section 93.36, "Maps, Plats and Reports", of the Code of Ordinances of the City of Delray Beach, Florida, be, and the same is hereby amended to read as follows: Section 93.36 MAPS, PLATS AND REPORTS. 17 Ord. No. 50-01 (A) Upon request, the grantee shall file with the City Engineer accurate maps of its system, showing construction and distribution networks, and the grantee shall maintain these maps in a current condition. Section 7. That Chapter 93, "Cable Television", Section 93.37, "Payments to City", of the Code of Ordinances of the City of Delray Beach, Florida, be, and the same is hereby deleted in its entirety. Section 8. That all ordinances or parts of ordinances in conflict herewith be, and the same are hereby repealed. Section 9. That this Ordinance shall become effective on October 1, 2001. PASSED AND ADOPTED in regular session on second and final reading on this the ,2001. day of ATTEST MAYOR City Clerk First Reading Second Reading. 18 Ord. No. 50-01 NI-AmerlcaCity 1993 04 Dec 2001 Mr. Mike Branigan Manager- R&EA 701 Northpoint Parkway Suite 410 West Palm Beach, FL 33407 RE: City of Delray Beach Registration City Ordinance #50-01 Section 57.03 of the Ordinance Dear Mr. Branigan: After reviewing the information received with your letter dated 20 November 2001 it has been determined that you have complied with the requirements of Section 57.03 of the City of Delray Beach Code of Ordinances. Thank you, Randal L. Krejcarek, P.E. City Engineer Cc David T. Harden, City Manager i~ESSRVOO21DEPARTMENTStE, agAdminV_etters~RL_K~ E. RMITStbelIsouth 57-03. doc · I HE ~FFORT ,,~,LWAY$ IV]ATTaRS Regulatory & External Affairs Mike Brnnigun Manager - R&EA 701 Northpolnt Parkway Suite 410 West Palm Beach, FL 33407 Tel. ($61) 640-0626 Fux. (561) 640=2929 VIA FEDERAL EXPRESS November 20, 2001 NOV 2 1 o01 CITY MANAGER Mr. David Harden City Manager City of Delray Beach 100 N.W. 1 Avenue Delray Beach, FL 33444 Re: City of Delray Beach Registration Dear Mr. Harden: This letter will serve as the registration by BellSouth Telecommunications, Inc. ("BellSouth") under City Ordinance No. 50-01. In accordance with Section 57.03 of the Ordinance, enclosed are: (1) A Certificate of Self-Insurance for BellSouth; and (2) BellSouth's PSC Certificate No. 8 (the full Appendix A to the Certificate is not attached). The following is the name, address, and telephone number of the registrant's primary contact person in connection with the registration and contact in the event of an emergency: Mike Branigan, Manager- BellSouth Regulatory and External Affairs; 701 Northpoint Parkway, Suite 410, West Palm Beach, Florida 33407 (telephone: (561) 640-0626; cellular telephone: (561) 716-4908). BellSouth acknowledges receipt of the Ordinance, but such acknowledgement shall not be deemed an agreement to the Ordinance's terms. Sincerely, Mike Branigan cc: Sharon Liebman Enclosures 404 249 2888 404-249-2888 BELLSOUTH 6?9 P02 OCT 09 '01 BELLSOUTH TELl:COMMUNICATIONS Afln: BellSouth Corporation Risk Management 1 t $$ Peachtree Street, NE Room 15A0t Atlanta, Georgia 30309-3610 (4O4) 249-2948 CERTIFICATE OF SELF INSURANCE This is to certifify that BellSouth Telecommunications, Inc. has qualified as required by law, as a Self-insurer within each state in which it does business and provides occurrence based coverages under its program of self-insurance as follows: TYPE OF INSURANCE DESCRIPTION TYPE OF LIMITS/LIMITS OF LIABILITY GENERAL LIABILITY Self-insured Bodily Injury [~-2_~.00,000 ~-_-- ..... Comprehensive Coverage al~d Prope~y PER OCCURRENCE Explo$1otl and Colrapse damage combined Underground Hazard Contractual Coverage Independent Contractors P'e~lonal Injury P;oducts/Completed Operatlor~, Hazard Railroi~l Protective Heir Lmquo~ LJabdlty AUTO LIABILITY Self-Insured Bo~iily lnjury [$_2,5.00,000 Comprehensive Coverage Certificate issued and Property Owned & Nan-Owned VehcIes by each state damage combined WORKERS COMPENSATION Qualified Self-Insurer Statutory Limits EMPLOYER'S LIABILITY Self-I nsurod [$~,500,000-- PROPERTY Self-Insured All Risk I$2' 00~)~'1~ PROFESSIONAL LIABILITY Self-Insured .N~_ot.__Applica biB_-, i ' DESCRIPTION OF pP~o~e for reglstraii~-~n~'~r C~ty Ordi~a~n~'l~o 50-01 OPERATIONSILOCATIONSNEHICLES: CANCELLATION: Should any of the above described self-insured coverages be canceled or materially altered before one year after the issuance of this Cerbficate, the Company will endeavor to mail thirty (30) days wriffen notice to the certificate holder named below Failure to mail sucln notice shall impose no obligation or Iiabil;ty of any kind upon the Company, its agents or representatives. The limits evidenced on the above certificate will not increase or reduce those insurance limits set forth within the stated requirements of the contract to which th~s certificate applies. The giving of this Certificate will not operate to increase the limits of the Company's liability to the Holder. Certificate Holder: Attn: [__. ' .............. _'~ Holder Name ICily [~ Delray Be'~ch _' '-~ Holder AddressI100N' ..W 1A~nue .......... ...... "l Dats issued: [ ~. ~/.-0'~ BY: ~ BellSouth RlIk Management CERTIFICATE INVAL)D WITHOUT BELLSOUTH RISK MANAGEMENT SIGNATURE Issuer's Initials 15:23 .J Docket ~lorida end public ~tilicics C(ommission TELEPHONE CERTIFICATE OF F'UBLIC CONVENIENCE AND NECESSITY Upon eon~e~atJan of t~e record tn the aba~e numbered h t4~rit~ry deocz~bed ~j~ Ap~L~ "A" o~' Mid O~d4z. Ilo. I. ?. li58, eo,P3~ of' MLd A~emLt~ CA" beL~ he:~to qt~&~h~d. (SLli) ORDINANCE NO. 50-01 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, RELATING TO COMMUNICATIONS FACILITIES IN PUBLIC RIGHTS-OF-WAY BY REPEALING CHAPTERS 57 AND 58 AND CREATING A NEW CHAPTER ENTITLED "RIGHT-OF- WAY APPLICATION PROCESS FOR COMMUNICATIONS FACILITIES"; AMENDING CHAPTER 50, "UTILITIES GENERALLY; PUBLIC SERVICE TAX" BY DELETING ALL REFERENCES TO TELECOMMUNICATIONS FACILITIES; AMENDING CHAPTER 93, "CABLE TELEVISION" BY REMOVING THE REQUIREMENT TO PAY FRANCHISE FEES TO THE CITY; PROVIDING FOR RESERVATION OF RIGHTS AND REMEDIES; PROVIDING FOR SEVERABILITY; PROVIDING AN EFFECTIVE DATE. WHEREAS, effective January 1, 2001, Section 337.401, Florida Statutes (2000), is amended to state that because federal and state law require the nondiscriminatory treatment of providers of telecommunications services and because of the desire to promote competition among providers of telecommunications services, it is the intent of the Legislature that municipalities and counties treat telecommunications companies in a nondiscriminatory and competitively neutral manner when imposing rules or regulations governing the placement or maintenance of telecommunications facilities in the public roads or rights-of-way. Rules or regulations imposed by a municipality or county relating to telecommunications companies placing or maintaining telecommunications facilities in its roads or rights- of-way must be generally applicable to all telecommunications companies and, notwithstanding any other law, may not require a telecommunications company to apply for or enter into an individual license, fi'anchise, or other agreement with the municipality or county as a condition of placing or maintaining ielecommunications facilities in its roads or rights-of-way; and WHEREAS, effective October 1, 2001, Section 337.401, Florida Statutes (2000), is further amended to state that because of the unique circumstances applicable to providers of communications services and the fact that federal and state law require the nondiscriminatory treatment of providers of telecommunications services, and because of the desire to promote competition among providers of communications services, it is the intent of the Legislature that municipalities and counties treat providers of communications services in a nondiscriminatory and competitively neutral manner when imposing rules or regulations governing the placement or maintenance of communications facilities in the public roads or rights-of-way. Rules or regulations imposed by a municipality or county relating to providers of communications services placing or maintaining communications facilities in its roads or rights-of-way must be generally applicable to all providers of communications services and, notwithstanding any other law, may not require a provider of communications services, except as otherwise provided for providers of cable service, to apply for or enter into an individual license, franchise, or other agreement with the municipality or county as a condition of placing or maintaining communications facilities in its roads or rights-of-way; and WHEREAS, it is the intent of the City of Delray Beach to exercise the City's authority over communications services providers' placement and maintenance of facilities in the public fights-of-way; and WHEREAS, it is the City of Delray Beach's intent to treat each communications services provider in a nondiscriminatory and competitively neutral manner in exercising such authority; and WHEREAS, the public rights-of-way subject to the jurisdiction and control of the City of Delray Beach: (1) are critical to the travel of persons and the transport of goods and other tangibles in the business and social life of the community by all citizens; (2) are a unique and physically limited resource and proper management by the City is necessary to maximize efficiency, minimize the costs to the taxpayers of the foregoing uses, and to minimize the inconvenience to and negative effects upon the public from such facilities' placement and maintenance in the public rights-of-way; and (3) are intended for public uses and must be managed and controlled consistently with that intent; and WHEREAS, it is the intent of the City of Delray Beach to exercise its authority to adopt reasonable rules and regulations to the fullest extent allowed by Federal and State law; and WHEREAS, it is the intent of the City of Delray Beach that this Ordinance shall apply to cable service providers only with reference to the calculation and payment of the Communications Services Tax and is not intended to impact the City's regulatory powers pursuant to Chapter 93 of the Code of Ordinances (including the providing of additional services to the City as set forth therein). NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA AS FOLLOWS: Section 1. That Chapter 57 "Right-of-Way Permits for Telecommunication Services" and Chapter 58 "Right-of-Way Permits for Wireless Communications Systems" are hereby repealed in their entirety and replaced by the following: "CHAPTER 57: RIGHT-OF-WAY APPLICATION PROCESS FOR COMMUNICATIONS FACILITIES" Section 57.01 - Intent and Purpose It is the intent of the City of Delray Beach to promote the public health, safety and general welfare by: providing for the placement or maintenance of Communications Facilities in the Public Rights-of- Way within the City; adopting and administering reasonable rules and regulations not inconsistent with State and Federal law, including Section 337.401, Florida Statutes (2000), as it may be amended, the City's home-rule authority, and in accordance with the provisions of the Federal Telecommunications Act 2 Ord. No. 50-01 of 1996 and other Federal and State law; establishing reasonable rules and regulations necessary to manage the placement or maintenance of Communications Facilities in the Public Rights-of-Way by all Communications Services Providers; and minimizing disruption to the Public Rights-of-Way. In regulating its Public Rights-of-Way, the City shall be governed by and shall comply with all applicable Federal and State laws. Section 57.02 - Definitions For purposes of this Ordinance, the following terms, phrases, words and their derivations shall have the meanings given. Where not inconsistent with the context, words used in the present tense include the future tense, words in the plural number include the singular number, and words in the singular number include the plural number. The words "shall" and "will" are mandatory, and "may" is permissive. Words not otherwise defined shall be construed to mean the common and ordinary meaning. Abandonment: shall mean the permanent cessation of all uses of a Communications Facility; provided that this term shall not include cessation of all use of a Facility within a physical structure where the physical structure continues to be used. By way of example, and not limitation, cessation of all use of a cable within a conduit, where the conduit continues to be used, shall not be "Abandonment" of a Facility in Public Rights-of-Way. Cit3/: shall mean the City of Delray Beach, Florida. Communications Services: shall mean the transmission, conveyance or muting of voice, data, audio, video, or any other information or signals to a point, or between or among points, by or through any electronic, radio, satellite, cable, optical, microwave, or other medium or method now in existence or hereafter devised, regardless of the protocol used for such transmission or conveyance. Notwithstanding the foregoing, for purposes of this Ordinance "cable service", as defined in Section 202.11(2), Florida Statutes (2000), as it may be amended, is not included in the definition of "Communications Services," and cable service providers may be subject to other ordinances of the City. Communications Services Provider: shall mean any Person including a municipality or county providing Communications Services through the placement or maintenance of a Communications Facility in Public Rights-of-Way. "Communications Services Provider" shall also include any Person including a municipality or county that places or maintains a Communications Facility in Public Rights-of-Way but does not provide Communications Services. Communications Facility or Faeili .ty or System: shall mean any permanent or temporary plant, equipment and property, including but not limited to cables, wires, conduits, ducts, fiber optics, poles, antennae, converters, splice boxes, cabinets, hand holes, manholes, vaults, drains, surface location markers, appurtenances, and other equipment or pathway placed or maintained or to be placed or maintained in the Public Rights-of-Way of the City and used or capable of being used to transmit, convey, route, receive, distribute, provide or offer Communications Services. 3 Ord. No. 50-01 FCC: shall mean the Federal Communications Commission. In Public Rights-of-Way or in the Public Rights-of-Way: shall mean in, on, over, under or across the Public Rights-of-Way. Ordinance: shall mean this Ordinance. Person: shall include any individual, children, firm, association, joint venture, partnership, estate, trust, business trust, syndicate, fiduciary, corporation, organization or legal entity of any kind, successor, assignee, transferee, personal representative, and all other groups or combinations, and shall include the City to the extent the City acts as a Communications Services Provider. "Place or maintain" or "placement or maintenance" or "placine or maintaining": shall mean to erect, construct, install, maintain, place, repair, extend, expand, remove, occupy, locate or relocate. A Communications Services Provider that owns or exercises physical control over Communications Facilities in Public Rights-of-Way, such as the physical control to maintain and repair, is "placing or maintaining" the Facilities. A Person providing service only through resale or only through use of a third party's unbundled network elements is not "placing or maintaining" the Communications Facilities through which such service is provided. The transmission and receipt of radio frequency signals through the airspace of the Public Rights-of-Way does not constitute "placing or maintaining" Facilities in the Public Rights-of-Way. Public Rights-of-Way: shall mean a public right-of-way, public utility easement, highway, street, bridge, tunnel or alley for which the City is the authority that has jurisdiction and control and may lawfully grant access to pursuant to applicable law, and includes the surface, the air space over the surface and the area below the surface. "Public Rights-of-Way" shall not include private property. "Public Rights-of-Way" shall not include any real or personal City property except as described above and shall not include City buildings, fixtures, poles, conduits, facilities or other structures or improvements, regardless of whether they are situated in the Public Rights-of-Way. Registrant: shall mean a Communications Services Provider that has Registered with the City in accordance with the provisions of this Ordinance. Registration or Register: shall mean the process described in this Ordinance whereby a Communications Services Provider provides certain information to the City. Section 57.03 - Registration for Placing or Maintaining Communications Facilities in Public Rights-of-Wag 4 Ord. No. 50-01 (A). A Communications Services Provider that desires to place or maintain a Communications Facility in Public Rights-of-Way in the City shall first Register with the City in accordance with this Ordinance. Subject to the terms and conditions prescribed in this Ordinance, a Registrant may place or maintain a Communications Facility in Public Rights-of-Way. (B). A Registration shall not convey any title, equitable or legal, to the Registrant in the Public Rights-of-Way. Registration under this Ordinance governs only the placement or maintenance of Communications Facilities in Public Rights-of-Way. Other ordinances, codes or regulations may apply to the placement or maintenance in the Public Rights-of-Way of facilities that are not Communications Facilities. Registration does not excuse a Communications Services Provider from obtaining appropriate access or pole attachment agreements before locating its Facilities on the City's or another Person's facilities. Registration does not excuse a Communications Services Provider from complying with all applicable City ordinances, codes or regulations, including this Ordinance. (C). Each Communications Services Provider that desires to place or maintain a Communications Facility in Public Rights-of-Way in the City shall file a single Registration with the City which shall include the following information: (1) name of the applicant; (2) name, address and telephone number of the applicant's primary contact person in connection with the Registration, and the person to contact in case of an emergency; (3) evidence of the insurance coverage required under this Ordinance and acknowledgment that Registrant has received and reviewed a copy of this Ordinance, which acknowledgment shall not be deemed an agreement; and (4) the number of the applicant's certificate of authorization or license to provide Communications Services issued by the Florida Public Service Commission, the Federal Communications Commission, or other Federal or State authority, if any; (65) for an applicant that does not provide a Florida Public Service Commission certificate of authorization number, if the applicant is a corporation, proof of authority to do business in the State of Florida, including the number of the certificate of incorporation. 5 Ord. No. 50-01 (D). The City shall review the information submitted by the applicant. Such review shall be by the City Engineer or his or her designee. If the applicant submits information in accordance with Section 57.03(C) above, the Registration shall be effective and the City shall notify the applicant of the effectiveness of Registration in writing. If the City determines that the information has not been submitted in accordance with Section 57.03(C) above, the City shall notify the applicant of the non- effectiveness of Registration, and reasons for the non-effectiveness, in writing. The City shall so reply to an applicant within thirty (30) days after receipt of registration information fi.om the applicant. Non- effectiveness of Registration shall not preclude an applicant from filing subsequent applications for Registration under the provisions of this Section. An applicant has fifteen (15) business days after receipt of a notice of non-effectiveness of Registration to appeal the decision as provided in Section 57.07 (E). A Registrant may cancel a Registration upon written notice to the City stating that it will no longer place or maintain any Communications Facilities in Public Rights-of-Way within the City and will no longer need to obtain permits to perform work in Public Rights-of-Way. A Registrant cannot cancel a Registration if the Registrant continues to place or maintain any Communications Facilities in Public Rights-of-Way. (F). Registration does not in and ofitself establish a fight to place or maintain or priority for the placement or maintenance of a Communications Facility in Public Rights-of-Way within the City but shall establish for the Registrant a right to apply for a permit, if permitting is required by the City. Registrations are expressly subject to any future amendment to or replacement of this Ordinance and further subject to any additional City ordinances, as well as any State or Federal laws that may be enacted. (G). A Registrant shall renew its Registration with the City by April 1 of even numbered years in accordance with the Registration requirements in this Ordinance, except that a Registrant that initially registers during the even numbered year when renewal would be due or the odd numbered year immediately preceding such even numbered year shall not be required to renew until the next even numbered year. Within thirty (30) days of any change in the information required to be submitted pursuant to Section 57.03(C), except, as of October 1, 2001, Section 57.03(C), a Registrant shall provide updated information to the City. If no information in the then-existing Registration has changed, the renewal may state that no information has changed. Failure to renew a Registration may result in the City restricting the issuance of additional permits until the Communications Services Provider has complied with the Registration requirements of this Ordinance. (H). In accordance with applicable City ordinances, codes or regulations, a permit may be required of a Communications Services Provider that desires to place or maintain a Communications Facility in Public Rights-of-Way. An effective Registration shall be a condition of obtaining a permit. Notwithstanding an effective Registration, permitting requirements shall apply. A permit may be obtained by or on behalf of a Registrant having an effective Registration if all permitting requirements are met. If a contractor performs work in City fights-of-way on behalf of a Registrant, the City shall be 6 Ord. No. 50-01 December 20, 2001 VIA NEXT DAY DELIVERY City of Delray Beach Attn: David Harden, City Manager 100 N.W. 1st Avenue Delray Beach, FL 33444 Re: Telecommunications Registration Dear Mr. Harden: RECEIVED DEC 2 ] ?1~0! CITY MANAGER In accordance with Section 57.03 (C), Ordinance No. 50-01, enclosed please find the above-referenced information completed on behalf of American Communication Services of Jacksonville, Inc. d/b/a e.spire. If you should have any questions or require any additional information, please feel free to contact me at (301) 361-4220. Thank you for your attention to the enclosed. Sincerely, Regulatory Manager ,/ Enclosure e.$pire Comat,,~icatloas, lac. 131 National Bus~ness Parkway, State 100 Annapohs Junction, MD 20701 phone 301 361 4200 fax 301 361 4277 esplr8 net CITY OF DELRAY BEACH TELECOMMUNICATIONS REGISTRATION (1) (2) Name of the applicant: American Communication Services of Jacksonville, Inc. d/b/a e.spire Name, address and telephone number of the applicant's primary contact person in connection with the Registration, and the person to contact in case of an emergency Primary Contact: James C. Falvey, Esq. Sr. Vice President - Regulatory Affairs 131 National Business Parkway, Suite 100 Annapolis Junction, MD 20701 Phone: (301) 361-4200 e-mail: ,iim.falvey @ espire.net Emergency Contact: David Schwartz Operations Manager Building 6, Suite 2D 1919 N.W., 19th Street Fort Lauderdale, Florida 33311 Phone No.: (954) 334-0310 e-mail: david.schwartz@acsint.net (3) (4) Evidence of the insurance coverage required under this Ordinance and acknowledgment that Registrant has received and reviewed a copy of this Ordinance, which acknowledgment shall not be deemed an agreement. A copy of the original Certificate of Insurance in favor of the City of Deiray Beach is attached at Tab A. American Communication Services of Jacksonville, Inc. has received and reviewed a copy of the City of Delray Beach Telecommunication Ordinance. The number of the applicant's certificate of authorization or license to provide Communications Services issued by the Florida Public Service Commission, the Federal Communications Commission, or other Federal or State authority, if any. ORDER NO. PSC-96-1201-FOF-TX (COPY ATTACHED AT TAB B) Page 1 of 2 (5) For an applicant that does not provide a Florida Public Service Commission certificate of authorization number, if the applicant is a corporation, proof of authority to do business in the State of Florida, including the number of the certificate of incorporation. N/A Page 2 of 2 ~I)UCEN ~ C~RTIFtCA'TE I~ ISSUED AS A MAI'rER OF INFORMA'IION ONLY AND CONFER~ Marsh //SA Inc. 1255 23rd Street NW 4th Floor WashTngton. DC 20087 1~. Lot? A. Moore 202-263-7600 AmerTcan Co~gnfcat?on Serwces of Jack$onvf 17e. Inc. DEA e.spfre C/O e.spfre Con~unfcatfons. [nc. 7125 Col~ri~fa Gateway Dr. ~F200 Col~r~ia. f~) 21046 NO ~ UPON THE ~:a¥;~iCATE HOLDER OTHER THAN THOSE PROVIOED IN ~ POLICY. ~ C:ERTIFICATE DOF.~ NOT AMEND, EX'fl;ND OR AL'tq~ THE COVERAGE AFFORDED BY THE Poucr=s DESCRIBED I-IERE~I. COMPANIES AFFORDING COVERAGE COMPANY A FEDEf~4L INSURANCE CO B G~LF INSURANCE CO COMPANY C C~[AL INSURANCE CO COMPANY O FACTORY tgJTUAL INSURANCE CO THIS IS TO CERlqFY THAT POLICIES OF INSURANCE DESCRIBE~ HEREIN HAVE BEEN ISSUED TO THE INSURED NAMED HEREIN FOR THE POLJCY PERIOD INDICATED. NOTINFrHBTANDING ANY REQUIREMENT, TERM OR CONDIlqON OF ANY CONTRACT OR OTHER DOCUMENT WFll~ RESPECT TO WHICH THE CERlqFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TE~MS, CONDF~ONS AND EXCLUSIONS OF SUCH POUCIE$. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. POUCY EIq:~CTIVE POUCY EXPIRATION ~ OF INSURANCE POUCY NUMBER DATE (NIM/DO/YY) DATE (MMIOD/YY} 3577-74-00 3/31/01 3/32/02 GENERAL LiABIU'T~f COMMERCIAL GENERAL LLABILJTY CLAIMS MADE ~'~OCCUR OWNER'S & CONTRACTOR'S PROT AUTOMOBILE LIABILITY At~f AUTO ALL OWNED AUTOS --[ SCHEDULED AUTOS --' HIRED AUTOS NON-OWNED AUTOS GARAGE LIABIUTY ANY AUTO CUO698229(1ST LAYER) 313I/0I E~CE~ LIABIUTY UMBRELLA FORM LIMITS PROOUCTS- COMP/OP AG~ PERSONAL m AOV ~N~U~Y EACH OCCURRENCE 1.000. 000 FIRE OAMAG~ (~ ~ fir,} 1. 000. 000 COMBINED S~N~ (P~ ~nl BODILY I~U~ ~O~R~ D~AGE AUTO ONLY - EA ACC[DENT [ OTHER THAN AUTO ONLY: lC" ...... ' "' · ' EACH ACCIDENT AGGREGATE 3/31/02 E^CH OCCU.RENCE i 5.000.000 AGGREGATE 25.000.000 X ~C'STATO- OT~' -, ~'- -- - j TORY LIMITSI J ER .>.;L: - . EL EACH ACCIOENT $ ~0.'000 EL mSEASE - ,OUCY UM~ * 500. 000 EL 0,SEAS~-~A E~"~OYEE * 500.000 OTHER THAN UMBRELLA FORM 401-54-11-12' LP222 3/31/01 5131/00 3/31/02 513110I $380.331.654 LIHIT DE~CIMPllON OF OPERATION& I LOCATION.~ I VEHICLES I SPECIAL I~ CITY OF DELRAY BEACH IS ADDED AS ADDITIONAL INSURED FOR GENERAL LIABILITY COVERAGE AS REGARDS RIGHT-OF-WAY AGREEMENT DATED JUNE 28, 2000. CITY OF OELRAY BEACH ATTN: OAVID HARDEN. CITY MGR. 100 N WIST AVENUE DELRAY BEACH. FL 35444 CANCELLATION .'- .- - .- . ~PIRAnON OATE m~EOF, mE tNSUR~ AFFORDING COV~AGE WILL mO~VOR rD M~,t 30 * o~ys ~ .o~c~ rD m~ c~F,cA~.o~ U~B,UW OF ANY ~.0 UPO. m~ ,NSURER ~F~O.O,.G COVER~. ,TS ~ENTS OR R~RES~TA ~VES. BY: (* I0 DAYS FOR NON-PA YMENT) In Re: .App!ica=ion for cerCiEica=e =o provi&e al~ernaCive local exchange ~ele=ommunlcabione service ~MC Telecom Inc. DOCI~'*T~O. DOCKET NO. g~0~7~-TX DOCKET NO. 960701-TX DOCKET NO. 960750-TX DOCKET NO. S~075S-TX OPJD~H NO. PSC-96-1201-~OF-TX The Eollowing C~mmlmmioaers par=£cip&tea in ~hc~llmpoai~£on oE $~'SAN F. CLA~X, C~airman J. TE~Y DEASON ~OE ~AHCIA ~ULIA L. JOHNSON DIANE K. KIESLXNG PROVIDE ALTTJ~NATIVE LOCAL TET,~COMMUNI~ATIONS S~RVIC~ RECEIVED SEP 2 3 1996 Norman H. Hortan, Jr. NO. PSC-gG-L901-FOF-TX DOCEET~ .NO~..~G0698-TX, ~G047G-TX~ ~gO?01-TX, ~6075O-T'A~ ~0?5~-TX P.A~E 2 T~e entities lim~ ~el~w h~v~ applied far cer~iEica~eo to p=ovi~e al==~l=iv~ local ex~-ge ~elaco~ica=iona oe~c~, p~mu~= =o Sec=ion 3~4.337, Flori~ 8~a=utea. ~on renew of t~i~al, E~la!, ~d ~age=la! cap~ility to pr~i~ muc~ ex=ep= for wi=kin ~ke =er=i=:mies :f ea~a-re~la~e~ a~l! local 8~a~u~em. American Cc~m~u~ioahion Se. vices oE ~acksonville, Inc. Da~acc~m International C~any, Lcd. Time Warner Connect Li~e4 P~ere~p ~C Telec~, I~. ~E.~T ! F~CATE 4'722 4711 4726 4732 4733 If th4s Order beeches final and effective, it .hall serve as eac~ en~i=y'm certificate. It ehou14, t~erefore0 ~e retained by In a&&i=ion, Section 3S4.337(3), Florida Sta~utee, requires ~T~Cs wl~c~ pr=vide basic local ~eleccmmuni=a~ions service to the public interest. Accordingly, we find C~C Section 364.337(i), telec~icationa me,item to pr~ide at least the ~e level of ~JK/~ 3 ZC is, therm£o~e, ~ereB¥ ~ran~, to the entities listed ~erein, cer~i~ica~es to provide alternative l~cal exchange ~eleo~mmum~ca~ion~ service, O~DEH~D t~t t~is Order shall se~-~e aa the~e enti2ies' ~er~ifica=~a and ~he¥ sh~A!d re~ain ~i~ Order as proof of ~helr O~DEH~D that each alterna=ive local exchange co~pan~ which ~rovidea ~anic local =elecommunlcation~ services shall pr~vi&e at least the name level ~ 911 services aa thaC pr=vi~e& ~y the Review, thie Or&er shall ~eccme final an~ effective and thane ~o~ke~s e4al! be close&. By ORDE~ of ~--~e Florida Public Service C~miaaion, this BLANCA S. BAYS, Director By:Is/ Kay Flown This ia a facsimile copy o~ the or,er may be callin~ 1-904-41~-6770. (SEAL) DOCEETIS NO~. ~OE~8-T](~ ~04'7E-T'A, g~0'7ol-TX, gEO?~O-TX, ~6.0'75~-TX NOTIC'~ 0~' l~l~l~ PI~OL"~TN'~A OR OLTOI(~TaL ll~l~V~E~ 120.$9(4), . Florida Statutes, to notify parCiea of a~y Bearing cr ju~c!a! review will be ~r~ cr reeul~ The action proceed herein is prc!iminary in nature and will not become effective or final, except as provided By Rule 2S-22.029, ~lori~a A~minieCrative Co~. ~y permon w~oee order ~7 file a petition for a ~o~a! pro~ee~in~, am pr~i&e~ ~y In the a.baence of much a petition, this order shall Rule 2~-22.029(6}, Florlaa Administrative Code. epe~i~ied pro=e~ period. If t~ie order Becomes final an~ effective o~ CBs dace described above, any pariy e~stantlally affected may re~Aem~ Judicial review by the Florida Supreme C~urt in the caae of ~ of ~peal in ti~ case of a ~ter or waetewaZer utility By filin~ a notice of appeal wi~ the Director, Division of Records ~a fee wi~ the appr~rla~e court. Thi~ ~il!~ ~m~ ~e co~!etea within th!rOy (30) Says of =~e e~ec=ive dabs of b~e or,er, p~au~= bo Rule 9.110, Florlaa ~lea or.pelisSe Pr~ea~e. ~e notice o~ appeal ~e~ Be in ~he fo~ specifies in Rule 9.900(a), Florida Rules ~f Appe!la=m Pr~cea'ar~.