64-94 ORDINANCE NO. 64-94
AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF
DELRAY BEACH, FLORIDA, AMENDING TITLE V, "PUBLIC
WORKS", BY ENACTING A NEW CHAPTER 57,
"TELECOMMUNICATION RIGHT-OF-WAY PERMITS", TO PROVIDE
FOR THE ENACTMENT OF A NEW CHAPTER TO REQUIRE A
PERMIT FOR AND TO ASSESS FEES FOR TELEPHONE,
TELEMETRY, VIDEO, INTERCOM, DATA AND
TELECOMMUNICATIONS LINES, CABLES AND CONDUITS WITHIN
THE RIGHTS-OF-WAY WHICH PROVIDE TOLL AND PRIVATE
TELEPHONE AND TELECOMMUNICATIONS SERVICES AND
EXCLUDING FROM THESE FEES ALL UTILITIES AND ALL OTHER
FRANCHISE SERVICE PROVIDERS USING THE RIGHT-OF-WAY
AND TO SET FORTH THE TERMS AND CONDITIONS FOR SUCH
PERMITS; PROVIDING A SAVING CLAUSE, A GENERAL
REPEALER CLAUSE, AND AN EFFECTIVE DATE.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE
CITY OF DELRAY BEACH, FLORIDA, AS FOLLOWS:
Section 1. That Title V, "Public Works", of the Code of
Ordinances of the City of Delray Beach, Florida, be, and the same is
hereby amended by enacting a new Chapter 57, "Telecommunication
Services" to read as follows:
CHAPTER 57: PERMITS FOR USE OF RIGHT-OF-WAY FOR PRIVATE
TELECOMMUNICATION SERVIQES.
SECTION 57.01 PERMIT REOUIRED FOR USE OF RIGHT-OF-WAY.
(A) No person or firm, whether public, private, nonprofit
or not-for-profit, shall construct, operate or continue to operate a
private communication system which occupies the streets, public ways
and public places within the City without having been issued a
telecommunication permit by the Chief Building Official, or a
franchise for telephone, telecommunication service, video distribution
system, or cable communication system by the City. All work within
the City's rights-of-way shall require a permit from the Environmental
Services Department for any construction activity.
o
(B) Except as hereinafter provided, it shall be a term and
condition of any telecommunication permit issued in accordance
herewith that as a part of the consideration supporting the issuance
of such telecommunication permit and the City's permission thereby to
occupy and use the streets of the City, that the permittee shall pay
each year to the City compensation and license fees as follows:
(1) Ail applicants shall pay a permit request fee of
$300.00·
(2) For providers of long distance access or long
distance service, other than the franchised local
exchange carrier, a minimum fee of $500.00 per
year per cable or $500.00 per year per cable per
linear mile or any portion thereof per mile
whichever is greater or the maximum allowed by
law.
(3) For private communications systems owned by a
non-franchised entity, a minimum of $500.00 per
year or 8500.00 per linear mile, whichever is
greater, or any part thereof, per year for systems
extending over one (1) mile. In no case shall the
annual fee be less than $500.00.
(4) Lines, cables or fiber optics of a private
communication system placed in a conduit or
duct-bank owned by another permittee or franchisee
shall require a separate telecommunication
application and permit, subject to the same
requirements as other installations, except the
fee for the additional telecommunications permit
shall be one-half the maximum allowed by law or
one-half of the otherwise applicable per linear
mile fee for the portion of the pathway so
utilized
(5) Lines, cables or fiber optics of a private
communication system which are placed in a conduit
or duct-bank owned by an entity not exempt by law
or statute from the provisions of this chapter
shall require a telecommunication permit, unless
the franchise, or other authorization by which the
exempt entity has the right to place the conduit
or duct-bank within the City property, prohibits
the application of the permit and fee requirements
contained in this chapter to the lessee of space
within the conduit or duct-bank.
- 2 - Ord. No. 64-94
(C) The annual compensation and license fee provided for in
Section (B) shall be payable annually on or before October 1 of each
calendar year for the portion of the private communications systems
within the City right-of-way on January 1 of that year and a prorated
license fee, based upon the calendar quarter in which the application
is filed, shall be paid at the time of the application for a
telecommunication permit for all new portions of the system.
Quarterly revenue fees are due January 1, April 1, July 1, October 1.
(D) Fees not paid within ten days after the due date shall
bear interest at the rate of one percent (1%) per month from the date
due until paid.
(E) The acceptance of any payment required hereunder by the
City shall not be construed as an acknowledgement that the amount paid
is the correct amount due, nor shall such acceptance of payment be
construed as a release of any claim which the City may have for
additional sums due and payable.
(1) All fee payments shall be subject to audit by the
City and assessment or refund if the payment is
found to be in error.
(2) In the event that such audit results in an
assessment by and an additional payment to the
City, such additional payment shall, at the City's
option, be subject to interest at the rate of one
percent (1%) per month retroactive to the date
such payment originally should have been paid,
which shall be due and payable immediately.
(F) Nothing in this chapter shall be construed to limit the
liability of the Permittee for all applicable federal, state and local
taxes.
(G) Any holder of a telecommunication permit must be a
member of "Call Sunshine" Utility Notification Center (1-800-432-4770)
or any subsequent alert and warning system to protect and locate their
underground and pole mount structures.
- 3 - Ord. No. 64-94
SECTION 57.02 DEFINITIONS.
(A) For purposes of this chapter and any permit in
accordance herewith, the following terms, phrases, words and their
derivations, shall have the meaning given herein unless otherwise
specifically provided in this chapter, unless the context clearly
indicates otherwise or unless such meaning would be inconsistent with
the manifest intent of the City Commission.
(1) "Building Official" means the Chief Building
Official of the City of Delray Beach.
(2) "Cable Communications System" means a
non-broadcast facility consisting of a set of
transmission paths with associated signal
generation, reception and control equipment, under
common ownership and control, which distributes or
is designed to distribute to owners, users or
subscribers, the signals of one or more television
broadcast stations and other subscriber services
with an existing franchise issued by the City of
Delray Beach.
(3) "FCC" means the Federal Communications Commission
or its legally appointed successor.
(4) "Local Access Transport Area (LATA)" means that
geographic area and communications system in which
the City of Delray Beach is located and in which
Southern Bell or any subsequent telephone company
is authorized by the Public Service Commission of
Florida to provide local exchange access
telecommunications services.
(5) "Local Telephone Service" means:
(a) The access to a local telephone system, and
the privilege of telephonic-quality
communication with substantially all persons
having telephone or radio telephone stations
constituting a part of such local telephone
system; or
(b) Any facility or service provided in
connection with a service described in
paragraph (a).
- 4 - Ord. No. 64-94
The term "local telephone service" does not
include any service which is a toll telephone
service; private communication service; cellular
mobile telephone or telecommunication service;
specialized mobile telephone or telecommunication
service; specialized mobile radio, or pagers and
paging, service, including but not limited to
"beepers" and any other form of mobile and
portable one-way or two-way communication; or
telephone typewriter or computer exchange service.
(6) "Telecommunication Permit" means the privilege
granted by the City by which the City authorizes a
person to erect, construct, reconstruct, operate,
dismantle, test, use, maintain, repair, rebuild
and replace a private communications system that
occupies the streets, public ways or public places
within the City. Any Telecommunication Permit
issued in accordance herewith shall be a
nonexclusive permit.
(7) "Permittee" means the person, organization, firm,
non-profit, not-for-profit, corporation or its
legal successor in interest who is issued a
Telecommunication Permit or Permits in accordance
with the provisions of this chapter for the
erection, construction, reconstruction, operation,
dismantling, testing, use, maintenance, repairing,
rebuilding or replacing of a private
communications system in the City.
(8) "Private Communications System" means any system
of communications lines, cables, equipment or
facilities, which are used to provide a telephone,
video, data, telemetry, intercom or
telecommunications service, that in any manner
occupies easements, the streets, public ways or
public places within the corporate limits of the
City, as now or in the future may exist. Private
communications system does not include any part of
a state or municipally franchised Local Exchange
Telephone Company or part of a cable television
system or telephone system franchised by the City
or any part of a federal, state, county or local
government owned communications system.
- 5 - Ord. No. 64-94
(9) "Street" means any area established for vehicular
or public access use of the entire width between
the property lines of every way publicly
maintained when any part thereof is open for
public purposes. "Street" includes, but is not
limited to, highway, avenue, road, alley,
right-of-way, lane, boulevard, concourse, bridge,
tunnel, parks, parkways and waterways.
(10) "Easements" mean any strip of land created by a
subdivider for public or private utilities,
sanitation, or other specified uses having
limitations, the title to which shall remain in
the name of the property owner, subject to the
right-of-way use designated in the reservation of
the servitude. No private facility may be
constructed within the easement without written
permit from the City.
(11) "Toll Telephone Service" means:
(a) A telephonic-quality communication for which
there is a toll charge which varies in amount
with the distance and elapsed transmission
time of each individual communication; or
(b) A service which entitles the subscriber or
i. user, upon the payment of a periodic charge
which is determined as a flat amount or upon
the basis of total elapsed transmission time,
i{ to the privilege of an unlimited number of
telephonic communications to or from all or a
substantial portion of the persons having
telephone or radio telephone stations in a
specified area which is outside the local
telephone system area in which the station
provided with this service is located.
SECTION 57.03 LENGTH OF PERMIT.
.(A) Any Telecommunication Permit issued by the City in
accordance herewith shall be a nonexclusive permit for the use of the
easements, streets, public ways or public places within the City as
specified in the Telecommunication Permit for the erection,
construction, reconstruction, operation, maintenance, dismantling,
testing and use of a Private Communications System.
- 6 - Ord. No. 64-94
(B) Any Telecommunication Permit issued by the City shall
continue in full force and effect so long as the Permittee is in
compliance with this chapter, all applicable federal, state and local
ordinances and regulations and the space occupied is not needed for a
public purpose.
(C) In the event any Telecommunication Permit shall be
revoked, the applicable Private Communications System shall, at the
option of the City, be removed from the streets, public ways and
public places at the sole expense of the Permittee.
(D) All permits for construction activities shall expire
one (1) year after date of issuance.
SECTION 57.04 PERMIT LOCATIONS.
(A) Any Telecommunication Permit issued for a Private
Communications System in accordance herewith shall apply only to the
location or locations stated on the Telecommunication Permit or
Permits. Each Permit shall clearly state the location of each end and
leg of the Private Communications System and specifies the length
certified by a registered survey company.
(B) Nothing in this chapter shall be construed as a
representation, promise or guarantee by the City that any other permit
or .other authorization required under any City ordinance for the
construction or installation of a Private Communications System shall
be issued. The requirements for any and all other permits as may be
required by any City ordinance, including the Right-of-Way Utilization
Permit, shall still apply and all other applicable permit fees shall
still be due.
SECTION 57.05 USE OF STREETS AND POLE ATTACHMENTS.
(A) Before commencing construction of its Private
Communications System in, above, over, under, across, through or in
any way connected with the streets, public ways or public places of
the City, the Permittee shall first obtain the written approval of,
and all other necessary permits from, all appropriate City agencies,
including, but not limited to, the Planning and Zoning Department and
the Department of Environmental Services. Applications for such
approval shall be made in the form prescribed by the Building
Department.
- 7 - Ord. No. 64-94
(B) Upon obtaining such written approval, the Permittee
shall give the Building Department and the appropriate agency written
notice within a reasonable time of proposed construction, but in no
event shall such notice be given less than ten (10) days before such
commencement, except for emergency repairs of existing lines or
cables.
(C) Any person who submits a request for a permit in
accordance herewith shall include therein proposed agreements for the
use of existing utility Doles and conduits, if applicable, with the
owner(s) of such facilities to be used or affected by the construction
of the proposed Private Communications System, which agreements shall
become effective on the date of execution of the permit issued in
accordance herewith in the event that such person is issued a permit.
In the event that permission to use existing poles or conduits cannot
be obtained, the Permittee shall submit documentation to support the
unavailability of existing poles and a detailed plan for construction
to ensure protection for existing facilities.
(D) It shall be unlawful for the Permittee or any other
person to open or otherwise disturb the surface of any street,
sidewalk, driveway, public way or other public place for any purpose
whatsoever without obtaining approval to do so pursuant to the manner
prescribed in subsections (A) and (B) hereof.
(E) The Permittee shall restore any street or sidewalk it
has disturbed in accordance with the provisions of the City's standard
specifications for streets and sidewalks, and shall, at its own cost
and expense, restore and replace any other property disturbed, damaged
or in anyway injured by or on account of its activities to as good as
the condition such property was in immediately prior to the
disturbance, damage or injury or pay the fair market value of such
property to its owner or shall make such other repairs or restorations
as outlined in the approved permit.
(F) The Permittee shall, at its own cost and expense,
protect, support, temporarily disconnect, relocate in the same street
or other public place, or remove from such street or other public
place, any of its property when required to do so by the City because
of street.or other public excavation, construction, repair, regrading,
or grading; traffic conditions; installation of sewers, drains, water
pipes; City, County or State owned power or signal lines, tracts;
vacation or relocation of streets or any other type of structure or
improvement of a public agency, or any type of improvement necessary
for the public health, safety or welfare, or upon termination or
expiration of the permit.
- 8 - Or~. No. 64-~4
(G) Nothing in this chapter or any permit issued in
accordance herewith, shall be construed as authorizing the Permittee
to erect and maintain new poles in areas serviced by existing poles,
if the poles are available for permittee's cable. The Permittee shall
obtain written approval from the Building Department and Department of
Environmental Services before erecting any new poles or underground
conduits where none exist.
(H) The Permittee shall maintain all wires, conduits,
cables, and other real and personal property and facilities in good
condition, order and repair. The Permittee shall provide indemnity
insurance and performance bonds or demonstrate financial
responsibility as shall comply with all rules and regulations issued
by the Department of Environmental Services governing the construction
and installation of Private Communications Systems.
(I) The Permittee shall keep accurate, complete and current
maps and records of its system and facilities which occupy the
streets, public ways and public places within the City and shall
furnish as soon as they are available two (2) complete copies of such
maps and records, including as-built drawings, to the Department of
Environmental Services.
(J) The Permittee shall comply with all rules and
regulations issued by the City of Delray Beach governing the
construction and installation of Private Communications Systems.
SECTION 97.06 VIOLATION PENALTY.
Any person who shall carry on or conduct any business' or
occupation or profession for which a license tax is required by this
chapter without first obtaining a license tax shall be considered to
be in violation of this chapter, and, upon conviction, be punished as
provided in Chapter 130 of this Code.
SECTION 57.07 TRANSFER ASSIGNMENTS.
The Permittee shall not transfer or assign its interest in
any permit issued in accordance herewith, other than a general
assignment of the Permittee's entire assets or a pledge of the assets
as collateral on a loan, without the prior written authorization of
the City Manager. For purposes of this section, a merger or
consolidation of the Permittee with another company shall not be
deemed a transfer or assignment. The assignment of the right to a
nonaffiliated company to place a line, cable or fiber optic within a
permitted conduit or duct-bank of a Permittee is subject to the
requirement of an additional Telecommunication Permit and the
applicable fees.
- 9 - Ord. No. 64-94
SECTION 57.08 EXISTING PRIVATE COMMUNICATIONS SYSTEMS.
(A) Lines or cables of Private Communications Systems which
had been constructed or placed within the City's streets, public ways
i! or public places prior to the date of enactment of this ordinance were
permitted to be there only by virtue of a revocable license. Such
lines and cables may remain within the City's streets, public ways or
public places provided the private communications systems comply with
the provisions of this chapter as they relate to the existing lines
and cables.
(B) Except as hereinafter provided, the provisions of this
chapter shall become effective as to pre-existing private
communications systems on November 1, 1994. The private
communications systems companies which have facilities within the City
streets on the date of enactment of this ordinance shall have until
January 31, 1995, to obtain permits for their existing system, to pay
the applicable fee for 1994, and to fully comply with the provisions
of this chapter.
(C) The applicable fee for lines, cables, and fiber optics
which were existing within the City streets, public ways and public
places on October 1, 1994, shall be prorated over a two year
transitional period. The fee for the first calendar year applicable
to the existing lines and cables shall be fifty percent (50%) of what
otherwise would be due in accordance with the terms of this chapter.
The fee for the second year shall be seventy-five percent (75%) of the
actual amount and one hundred percent (100%) beginning in year 3.
~ That should any section or provision of this
ordinance or any portion thereof, any paragraph, sentence or word be
declared by a court of competent jurisdiction to be invalid, such
decision shall not affect the validity of the remainder hereof as a
whole or part thereof other than the part declared to be invalid.
~ That all ordinances or parts of ordinances in
conflict herewith be, and the same are hereby repealed.
~_~ That this ordinance shall become effective
immediately upon its passage on second and final reading.
- 10 - Ord. No. 64-94 '
PASSED AND ADOPTED in regular session on second and final
reading on this the 18th day of October , 1994.
ATTEST:
~ity ~le~k -
First Reading September 27f.1994
Second Reading October 18, 1994
- 11 - Ord. No. 64-94'
MEMORANDUM
TO: MAYOR AND CITY COMMISSIONERS
FROM: ~CITY MANAGER
SUBJECT: AGENDA ITEM # /~ ~ - MEETING OF 0CTQBER 18. 1994
SECOND READING AND PUBLIC HEARING FOR ORDINANCE NO. 64-94/
TELECOMMUNICATION RIGHT-OF-WAY PERMITS
DATE: OCTOBER 11, 1994
Ordinance No. 64-94 is one of two proposed telecommunication
ordinances proposed for consideration on second and final reading.
It enacts a new Chapter 57, "Telecommunication Right-of-Way
Permits", which provides the authority to require companies which
install communication systems within City rights-of-way to obtain a
permit and pay an annual fee. It excludes municipally franchised
telephone or cable companies.
This ordinance will allow the City to regulate and generate revenue
from the use of the City's rights-of-way. This will be especially
significant in the event franchise fees are no longer permitted due
to proposed changes in federal and state law.
At first reading on September 27, 1994, the Commission passed the
ordinance by unanimous vote.
Recommend approval of Ordinance No. 64-94 on second and final
reading.
ref:agmemo3
£1TV I)F nELRIIV BEII[H
CITY ATTORNEY'S OFFICE ~oo ~w.,
FACSIMILE 407/278-4755
DELRAY BEACH
(407) 243-7090
Ail.America City
Date: October 4, 1994
1993
To: Alison MacGregor Harty, City Clerk
From: David N. Tolces, Assistant City Attorne~~
Subject: Telecommunication Ordinances
I made some minor modifications to the proposed ordinances
enacting Chapters 57 and 58. These should be used for
second reading. The caption was not changed. I attached a
copy of the memo from the City Manager which outlines the
revisions.
Please call if you have any questions.
DNT: smk
Attachment
cc: David Harden, City Manager
tele- 2. dnt
Printed on Recycled Paper
£1T¥ DF DELRI:I¥ BEI:ICH
DELRAY I~EACH
o , , . * 100N.W. 1stAVI:NUE · DELRAY ~EACH, FLORIDA33~4 · 407/243-7000
lll.~fi~Ci~ M E M 0 R A N D U M
TO: David Tolces
1993
Asst. city Attorney I ' '~ ~.~
~,
FROM: David T. Harden ~
City Manager
DATE: September 27, 1994
SUBJECT: Proposed Telecommunication Ordinances
I have had Environmental Services review the draft ordinances and
the following is a list of comments:
~ction 57. A
~ection 58 01 A
Add the following sentence: "All work within the City right
of way shall require a permit from Environmental Services
Department for any construction activity."
58.01 G
Revise "Call Candy" to "Call Sunshine" and the phone number
is 1-800-432-4770.
~ction 58.02 A
(1) Revise Engineering Department to Environmental Services
Department. (This change needs to be carried throughout.)
eCtion 57.03 (Length of Permit)
ction 58.03
Add a paragraph (D) to read "All permits for construction
activities shall expire one year after date of issuance."
x~Section 57.05
ec Paragraph (C), third line, revise the word "sue" to "use."
tion 58.05 (C)
Second paragraph, fourth line, revise the word "insuring" to
"to ensure."
ecCtion 57.05 (D)
tion 58.05 (D)
Fourth line, revise the word "after" to "except by."
THE EFFORT ALWAYS MATTERS
Pr/nted on Recycled Paper
Proposed Telecommunication Ordinances
Sept. 27, 1994
Page two
x~3/~ction 58.05 (E)
Second line, revise "standard specifications for streets and
sidewalks" to "Minimum Construction Standards and
Specifications."
ction 57.05 (F)
ction 58.05 (F)
Seventh line, add the words "County or State" after the word
"City."
~Section 58.05 (H)
Revise "Engineering" to "Environmental Services." Add the
sentence "Indemnification amounts shall be determined by the
Se City's Risk Management."
ction 58.05 (I)
Revise "Engineering" to "Environmental Services."
Section 58.05 (J)
Revise "Engineering" to "Environmental Services." Add the
following sentence "The permittee shall furthermore comply
with all Florida Department of Transportation requirements
for maintenance of traffic through a work zone and meet all
Federal, State and local safety requirements."
DTH:RH:mm
cc: Ralph E. Hayden, P.E., City Engineer
File: Memos to city Attorney
DTHTL927.MRM
MEMORANDUM
TO: MAYOR AND CITY COMMISSIONERS
FROM: CITY MANAGER~I
SUBJECT: AGENDA ITEM # /~ ~ - MEETING OF SEPTEMBER 27. 1994
FIRST READING FOR ORDINANCE NO. 64-94/TELECOMMUNICATION
RIGHT-OF-WAY PERMITS
DATE: SEPTEMBER 22, 1994
Ordinance No. 64-94 is one of two proposed telecommunication
ordinances proposed for consideration on first reading. It enacts
a new Chapter 57, "Telecommunication Right-of-Way Permits", which
provides the authority to require companies which install
communication systems within City rights-of-way to obtain a permit
and to pay an annual fee. It excludes municipally franchised
telephone or cable companies.
This ordinance will allow the City to regulate and generate revenue
from the use of the City's rights-of-way. This will be especially
significant in the event franchise fees are no longer permitted due
to proposed changes in federal and state law.
Recommend approval of Ordinance No. 64-94 on first reading. If
passed, public hearing on October 18, 1994.
ref:agmemo3
[ITY OF DELAAY BE#gH
CITY ATTORNEY'S OFFICE
FACSIMILE 407/278-4755 ~&~' ~ ~~
p~Lr)~e~a~ (407) 243-7090
lll.l~a C~y MEMORANDUM
~,lj,~llll' Date: September 16, f994
1993
To: David T. Harden, City Manager
From: David N. Tolces, Assistant City Attorne~
Subject: Proposed Telecommunication Ordinances
Attached are the two proposed ordinances regulating the
City's rights of way and establishing a permit process for
use of the right-of-way and installation of cell sites. One
ordinance creates Chapter 57, "Permits for Use of Right-of-
Way for Private Telecommunication Services." This ordinance
will require companies who install communication systems
within the right-of-way to obtain a permit and to pay an
annual fee. Chapter 57 will not apply to municipally
franchised telephone or cable companies.
Proposed Chapter 58, "Wireless Communication Systems",
provides for regulations and permitting of wireless communi-
cation system cell sites throughout the City. It is
anticipated that networks of pico and micro cell sites will
be placed within municipalities in order to facilitate the
growth and use of personal wireless communication networks.
This ordinance regulates the placement of the cell sites,
establishes a permitting process, establishes fees for the
permits, and a fee collection process.
Both ordinances provide.an alternative source of revenue
which may be necessary in the event franchise fees are no
longer permitted due to proposed changes in federal and
state law. I would like to present these ordinances for
first reading as soon as possible.
Please call if you have any questions.
DNT: smk
Attachments
cc: Susan A. Ruby, City Attorney
Joseph Safford, Finance Director
Lula Butler Director of Community Improvement
Jerry Sanzone, Chief Building Official
tele- 1. dnt
Printed on Recycled Paper