Ordinance No. 65-11-37v ORDINANCE NO. 65 -11- 37
AN ORDINANCE OF THE CITY OF ATLANTIC BEACH, FLORIDA,
AMENDING CHAPTER 19 OF THE CODE OF ORDINANCES, STREETS,
SIDEWALKS AND OTHER PUBLIC PLACES, BY ADDING A NEW
SECTION PROVIDING FOR THE PLACEMENT AND MAINTENANCE
OF UTILITY FACILITIES IN THE PUBLIC RIGHTS -OF -WAYS WITHIN
THE CITY, AND PROVIDING AN EFFECTIVE DATE.
BE IT ENACTED BY THE CITY COMMISSION ON BEHALF OF THE PEOPLE
OF THE CITY OF ATLANTIC BEACH, FLORIDA:
SECTION 1. Chapter 19 of the Code of Ordinances of the City of Atlantic Beach, Florida,
is hereby amended by adding a new section to be numbered Section 19 -8, which section shall read
as follows:
"Sec. 19 -8. Utility rights -of -way.
(1) Short title. This article shall be known and may be cited as the city utility rights -
of -way ordinance.
(2) Intent and purpose. It is the intent and purpose of the city to promote the public
health, safety, and general welfare by: providing for the placement or maintenance of utility
facilities, including communications facilities, in the public rights -of -way within the city;
adopting and administering reasonable rules, regulations, and policies not inconsistent with
federal and state laws including F.S. § 337.401,(2000), as amended, the city's home -rule
authority, and in accordance with the provisions of the Federal Telecommunications Act of 1996
and other federal and state laws; establishing reasonable rules, regulations, and policies necessary
to manage the placement or maintenance of utility facilities in the public rights -of -way by all
utility service companies and providers; and minimizing disruption to the public rights -of -way.
(3) Definitions. For purposes of this article, 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 the word "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 utility facility; provided
however, 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.
The City shall mean Atlantic Beach, Florida.
Communications services shall mean the transmission, conveyance, or routing of voice, data,
audio, video, or any other information and signals to a point, between points, 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 communication,
transmission, or conveyance. Notwithstanding the foregoing, for purposes of this section "cable
service," as defined in F.S. § 202.11(2), (2000), as amended, is not included in the definition of
"communications services," and cable service providers shall be subject to ordinances of the
city.
Utility services company and provider shall mean any person, including a City or state, providing
utility services through the placement or maintenance of any facilities in public rights -of -way.
"Utility services company and provider" shall also include any person, including a City or state,
that places or maintains facilities in public rights -of -way, but does not provide public utility
services. "Utility Services Company and provider" shall also include any contractors and
subcontractors of any person, including a city or state.
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, 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.
Facility shall mean any non -city owned permanent or temporary plant, equipment and property,
including but not limited to gas, electric, communications, water, sewer and other types of
facilities, cables or conduit, ducts, fiber optics, poles, antennae, converters, splice boxes,
cabinets, hand holes, manholes, vaults, surface location markers, appurtenances, and other
equipment, construction, or pathway placed or maintained or to be placed or maintained in
rights -of -way of the City.
FCC shall mean the Federal Communications Commission.
In public rights -of -way or in the public rights -of -way shall mean in, on, through, 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.
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
utility services company or provider that owns or exercises physical control over
communications facilities in public rights -of -way, shall be considered as "placing or
maintaining" the facilities. A person providing communication service only through resale or
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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.
Public rights - of - way shall mean a dedicated public right -of -way, highway, roadway, street,
bridge, tunnel, or alley for which the city has authority, jurisdiction, control, and may lawfully
grant access pursuant to applicable law and includes the surface, the air space above 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 property of the city, except as described
herein and shall not include the city's parks or other non- rights -of -way open spaces, buildings,
fixtures, poles, conduits, facilities, structures, appurtenances, or improvements regardless of
whether they are situated within or without the public rights -of -way. Public rights -of -way shall
not include existing and future private easements, private rights -of -way, leases, contracts, or
agreements between the city and any other party or entity.
Registrant shall mean a utility services company and provider registered with the city in
accordance with the provisions of this section.
Registration or register shall mean the process described in this section whereby a utility services
company and provider performs certain duties and provides certain information to the city.
(4) Registration.
(a) A utility services company or provider that desires to place or maintain a
facility in public rights -of -way in the city shall first register with the city in accordance
with this article. Subject to the terms and conditions prescribed in this section, a registrant
may place and maintain facilities in public rights -of -way. A company or provider already
covered by an existing franchise agreement with the city shall also be required to register
hereunder.
(b) The act of registration shall not convey any title, equitable or legal, to the
registrant in the city's public rights -of -way. Registration under this article embodies only
the placement or maintenance of facilities in public rights -of -way. Registration does not
excuse a utility services company or provider from obtaining appropriate and required
access or pole attachment agreements before locating facilities on the city's facilities or
another person's facilities. Registration does not excuse a utility services company or
provider from complying with all applicable city ordinances, codes, or regulations
including this section or payment of all applicable franchise fees or taxes.
(c) Each utility services company or provider that desires to place or maintain a
facility in public rights -of -way in the city shall file a registration with the city which shall
include the following information:
(1) Name of the applicant;
(2) Name, address, email address, and telephone number of the
applicant's primary contact person in connection with the registration, and the
name, address, email address, and telephone number of the person to contact in
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case of an emergency;
(3) Evidence of the insurance coverage required under this section and
acknowledgment that applicant has received and reviewed a copy of this section;
however, the acknowledgment of the receipt of this section shall not be deemed an
agreement;
(4) The applicant's certificate of authorization or license number to
provide utility services issued by the state public service commission, the Federal
Communications Commission, or other federal or state authority, if any, having
jurisdiction; and
(5) For an applicant that does not provide a state public service
commission certificate of authorization number, if the applicant is a corporation,
proof of authority to conduct business in the state. A certificate number from, or
filing with, the Florida Department of State will be acceptable.
(d) The city shall review the information submitted by the applicant. Such review
shall be conducted by the city manager or the city manager's designee. If the applicant
submits information in accordance with this article, the registration shall be effective and
the city shall notify the applicant in writing of the effectiveness of the registration. If the
city determines that the information has not been submitted in accordance with this
article, the city shall notify the applicant in writing of the non - effectiveness of the
registration, and reasons for the non - effectiveness. The city shall notify an applicant
within thirty (30) calendar days after receipt of the registration information from the
applicant. Non - effectiveness of registration shall not preclude an applicant from filing
subsequent applications for registration.
(e) A registrant may cancel a registration upon written notice to the city stating
that registrant will no longer place or maintain any facilities in public rights -of -way
within the city and registrant will no longer require permits to perform work in public
rights -of -way. A registrant shall not cancel a registration if the registrant continues to
place or maintain any facilities in public rights -of -way.
(f) Registration does not establish a right or provide authority to place and
maintain or establish priority for the future placement or maintenance of facilities in
public rights -of -way within the city, but shall establish for the registrant, a right to apply
for a permit from the city. Registrations are expressly subject to any future amendment to
or replacement of this article and further subject to any new or existing city laws, as well
as any new or existing federal or state laws, rules, and regulations which may be enacted
or which have been enacted.
(g) A registrant shall renew its registration with the city by the first day of April
of even numbered years in accordance with the registration requirements in this section,
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) calendar days of any change in the information required herein; a registrant
shall provide updated information to the city. If the information in the then - existing
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registration has not changed, the renewal may provide that no information has changed.
Failure to renew a Registration may result in the city restricting the issuance of additional
permits until the utility services company or provider has complied with the registration
requirements of this article.
(h) In accordance with applicable city ordinances, codes, regulations, or policies
a permit shall be required of a utility services company or provider that desires to place or
maintain a facility in public rights -of -way. An acceptable and approved registration shall
be a condition precedent to requesting and obtaining a permit. Notwithstanding an
acceptable and approved registration, permitting requirements shall apply; however, at the
discretion of the City Manager or his/her designee, a blanket permit may be approved for
routine maintenance as specified in such blanket permit or may be waived for minor types
of routine maintenance. If such optional blanket permit or waiver results in practices by a
registrant that violate the intent of this ordinance to provide restoration in a timely,
appropriate manner, the blanket permit or waiver may be rescinded. A permit may be
obtained by a Registrant having an acceptable and approved registration if all permitting
requirements are met.
(5) Notice of transfer, sale or assignment of assets. If a registrant transfers, sells, or
assigns the assets located in public rights -of -way or incident to a transfer, sale, or assignment of
the registrant's assets the transferee, the buyer, or the assignee shall be fully obligated to comply
with the terms of this section and any franchise agreement that may be in place. Written notice of
any such transfer, sale, or assignment shall be provided by such registrant to the city within
twenty (20) calendar 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 may
not be 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 herein within thirty (30) calendar days
of the transfer, sale, or assignment. If permit applications are pending in the registrant's name the
transferee, buyer, or assignee shall notify the city that the transferee, buyer, or assignee is the new
applicant.
(6) Placement or maintenance of facilities.
(a) A registrant shall, at all times, comply with and abide by all applicable
provisions of federal and state laws, regulations, rules and the city ordinances, codes,
regulations, and policies in placing and maintaining facilities in public rights -of -way.
(b) A registrant shall not commence to place or maintain facilities in public
rights -of -way until all applicable permits, if any, have been issued by the city and other
appropriate authorities. Registrant acknowledges and accepts that, as a condition of
granting any permits, the city may impose reasonable rules, regulations, and policies
governing the location, placement, and maintenance of facilities in public rights -of -way.
A permit will not be required for restoration of interrupted service to an existing
customer. Registrant will inform the Public Works Department as soon as possible, not
to interfere with restoration. If roadway or sidewalk cuts are required, Public Works must
be informed not later than the beginning of the next business day, or at the end of
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restoration following a major storm event.
(c) If a registrant chooses to use a sub - contractor as permitting agent, any
application submitted by the agent must include contact information for the registrant
supervisor in charge.
(d) As part of the permit application to place a new or replace or maintain an
existing facility in public rights -of -way, the registrant shall provide not less than the
following:
(1) A description of the location of the proposed facilities including a
narrative description and a scaled pictorial drawing of the facilities to be installed,
where the facilities are to be located, and the size of facilities to be located in
public rights -of -way; and
(2) A description of the construction methods or techniques which will be
used to install the facilities; and
(3) A maintenance plan for disruption of traffic; and
(4) A statement concerning the ability of the public rights -of -way to
accommodate the proposed facility; and
(5) An estimate of the cost of and schedule for the restoration to the
public rights -of -way; and
(6) A timetable for project construction and each phase thereof, and the
areas within the city which will be affected; and
(7) If installation will be conducted using Horizontal Directional Drilling
or trenchless technology other than pipe lining, procedures to ensure existing
underground utilities are not damaged by construction (such as JEA Water and
Sewer Standards Section 750 Section 1.9.2) must be approved by the Public
Works Director. Standard procedures previously approved by the Public Works
Director may be referenced rather than included with the application.
(8) Such additional information as the city finds necessary with respect to
the placement or maintenance of the facility that is the subject of the permit
application.
(e) To the extent not otherwise prohibited by federal or state laws, the city shall
have the power to prohibit or limit the placement of new or additional facilities within
particular areas of all public rights -of -way.
(f) All facilities shall be placed and maintained so as not to interfere with the use
of the public rights -of -way by the public and with the rights and convenience of property
owners who adjoin the public rights -of -way. The use of trenchless technology, joint
trenching, and co- locating of facilities in existing conduit in the public rights -of -way is
strongly encouraged and shall be employed when feasible. In all cases where a road has
been resurfaced within the past five (5) years, installation of new facilities or repair of
existing facilities shall be done without cutting the paved road surface, unless otherwise
specifically approved by the Public Works Director. Protection of existing trees shall be
a requirement for all new facilities and repair of existing facilities. The city manager or
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the city manager's designee may promulgate rules, regulations, and policies concerning
the placement and maintenance of facilities in public rights -of -way consistent with this
article and other applicable federal and state laws.
(g) All safety practices required by applicable municipal, state, and federal laws
or accepted industry practices and standards, shall be used during the placement or
maintenance of facilities in public rights -of -way.
(h) After the completion of any placement or maintenance of a utility facility in
public rights -of -way or each phase thereof, the registrant shall at the registrant's expense,
restore the public rights -of -way to the original condition, or superior to the original
condition, which existed before such placement or maintenance. If the registrant fails to
complete the restoration within thirty (30) calendar days, following the completion of
such placement or maintenance, the city may perform the restoration and charge the total
costs of the restoration to the registrant in accordance with F.S. § 337.402,(2000), as
amended. For twelve (12) calendar months following the original completion date of the
work, the Registrant shall guarantee the restoration work and shall correct, at the
Registrant's expense, any restoration work which does not satisfy the requirements of the
city, with the exception of guaranteeing landscaping. A registrant shall provide for
restoration using city standard materials and will not replace specialty items such as
pavers or other hardscaping that may have been installed by an adjacent property owner.
If specialty items will be impacted by work, registrant shall insure care is taken to
minimize impact. For installations or maintenance which impact public use of the right
of way in any fashion, repairs shall be expedited. Full access shall be restored within two
working days, unless specifically allowed additional time by the Public Works Director,
or his/her designee.
(i) Where placement of new facilities includes installation of significant
equipment cabinets or junction boxes, the Public Works Director, at his option, may
require installation of a landscape buffer. Plants for this buffer, if required, shall be
consistent with adjacent landscaping and shall use plants meeting the Florida Friendly
standard and will be approved by the Public Works Director.
(j) Removal or relocation, at the direction of the city of a registrant's existing
facility in public rights -of -way, shall be governed by the provisions of F.S. § 337.403 and
§ 337.404 (2000), as amended. A failure to remove or relocate facilities as directed
which results in a construction delay in an ongoing city project, will result in the utility
owner paying any delay costs assessed to the city by the contractor, provided the
notification requirements of F.S. § 337.403 (2) have been met. Registrants shall respond
to Utility Coordination requests from the city or consultant under contract to the city fully
and in a timely manner, generally within two weeks of request.
(k) An approved permit from the city shall constitute authorization to undertake
only certain activities in public rights -of -way in accordance with this article, and the
permit does not create a property right or grant authority to impinge upon the rights of
others who have an interest in the public rights -of -way.
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(1) A registrant shall maintain its facility in public rights -of -way in a manner
consistent with accepted industry practice and applicable law.
(m) 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 F.S. Ch. 556, (2000), as amended.
(n) A registrant shall use and exercise due caution, care, and skill in performing
work in the public rights -of -way and shall take all reasonable and necessary steps to
safeguard the entire work area and the general public. Locate flags or other temporary
markers, other than paint, used to mark existing facilities in the right of way, whether
placed by the utility doing the work or by a central contractor, shall be removed by the
utility requesting the locates when work requiring the marking is completed or when
marking is no longer valid, as defined in F.S. Ch. 556.107 (3) (i.e., after 30 days).
(o) Upon request of the city, and as notified by the city of the other work,
construction, installation, or repairs, a registrant may be required to coordinate all
placement and all maintenance activities with any other work, construction, installation,
or repairs which may be occurring, or scheduled to occur, in public rights -of -way. A
registrant may be required to alter an installation and maintenance schedule to minimize
disruptions and disturbance in the public rights -of -way.
(p) A registrant shall not place or maintain facilities which interfere with,
displace, damage, or destroy other facilities including, but not limited to, sewer mains,
gas mains, water mains, electric facilities, stormwater drains, pipes, cables, conduits, and
all other facilities occupying the public rights -of -way.
(q) The city makes no expressed or implied warranties or representations
regarding the fitness, suitability, or availability of the city public rights -of -way for the
registrant's facilities and any performance of work, costs incurred, or services provided by
registrant shall be at registrant's exclusive risk. Nothing in this article shall affect the city
authority to add, increase, vacate, or abandon public rights -of -way, and the city makes no
expressed or implied warranties or representations regarding the availability of any added,
increased, vacated, or abandoned public rights -of -way for facilities.
(r) The city shall have the right and authority to make any inspections, at any
time, of facilities placed or maintained in public rights -of -way as the city determines
necessary to ensure compliance with this article. Additionally, the city shall have the
right and authority to require utilities to repair or replace damaged surface mounted
facilities such as junction boxes or pull terminals. Such requirement will be
communicated to the appropriate utility by the Public Works Director.
(s) A permit application to place a new or maintain an existing facility in public
rights -of -way shall include plan and profile drawings which show the actual location of
ORDINANCE NO. 65 -11 -37 8
the facilities in the public rights -of -way. If the drawings require revision based upon
actual installation, the registrant shall promptly provide the revised as-built drawings to
the city. The drawings shall be in a hard copy format and an electronic format specified
by the city. All such drawings, data and information shall be provided at no cost to the
city.
(t) The city reserves, without limitation, the exclusive right to place, maintain,
and permit to be placed or maintained, all sewer, gas, water, electric, stormwater
drainage, communications, all other types of facilities, cables, or conduits and to do, and
to permit to be done, any underground and overhead installations or improvements which
may be deemed necessary or proper by the city in public rights -of -way that may be
occupied by a registrant. The city further reserves, without limitation, the exclusive right
to alter, change, or cause to be altered or changed the grading, installation, relocation, or
width of the public rights -of -way within the limits of the city and within said limits as the
limits may, from time to time, be altered.
(u) A registrant shall, upon request of any person holding a permit issued by the
city, temporarily adjust any facilities to allow for work authorized by other permits. The
expense of such temporary adjustments of facilities shall be paid by the person requesting
the adjustment and the registrant shall have the right to request such payment of expense
in advance. If the city requests temporary or permanent adjustments of a registrant's
existing or proposed facilities to allow for work to be done by the city, its contractors, or
its agents, however, all expenses and costs related to the adjustments of the registrant's
temporary or permanent facilities, shall be the responsibility of and shall be paid by the
registrant. The registrant shall be given not less than thirty (30) calendar days advance
written notice to such temporary or permanent adjustments.
(7) Suspension of permits. The city shall have the exclusive authority to suspend or
revoke a permit for any work in the public rights -of -way for due cause and for one or more of the
following reasons:
(a) Violation of permit conditions including any conditions set forth in the
permit, this section, or other applicable city ordinances, codes, policies, rules or
regulations governing placement or maintenance of facilities in public rights -of -way; and
(b) Misrepresentation or fraud by registrant in a registration or permit application
to the city; or
(c) Failure to properly renew a registration or ineffectiveness of a registration; or
(d) Failure to relocate or remove facilities as required by the city. The city
manager or the city manager's designee may provide a notice and the opportunity for a
registrant to cure any violation or failure described herein.
(8) Involuntary termination of registration.
ORDINANCE NO. 65 -11 -37 9
(a) The city may terminate a registration for due cause, reason, and for one or
more of the following:
(1) Federal or state authority suspends, denies, or revokes a registrant's
certification or license to provide communication or utility services; or
(2) The registrant's placement or maintenance of facilities in the public
rights -of -way presents a 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 notice; or
(3) The registrant ceases to use all of the facilities in public rights -of -way
or has not complied with the requirements of this section.
(b) Prior to termination, the registrant shall be notified by the city manager or the
city manager's designee, by a written notice which sets forth all pertinent matters to the
proposed termination action and describing the intended action of the city. The registrant
shall have thirty (30) calendar days after the date of such notice to eliminate the reasons
for the termination. In the event the registrant has not eliminated the reasons for the
notice of termination at the end of the thirty (30) calendar day period, the termination
shall be final.
(c) In the event of termination, a former registrant shall: (1) notify the city of any
anticipated assumption by another Registrant of ownership of the terminated registrant's
facilities in public rights -of -way; and (2) provide the city with an acceptable plan for
disposition of its facilities in public rights -of -way. If a terminated registrant fails to
comply with this section, 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 when another
person has not assumed ownership or physical control of the facilities or requiring the
registrant, within ninety (90) calendar days of the termination or such period as may be
agreed to by the registrant, to remove part or all of the facilities from the public rights -of-
way and restore the public rights -of -way to the original condition. All expenses incurred
by the city or its agents to remove part or all of the facilities and to restore the public
rights -of -way to the original condition shall be paid by the registrant.
(d) A terminated registrant shall take all steps necessary to render safe every
portion of the 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 remove or cause the removal of 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 also registered with and holds a valid
permit issued by the city.
(9) Existing facilities in public rights -of -way. A utility services company or provider
with an existing facility in the public rights -of -way of the city shall have ninety (90) calendar
ORDINANCE NO. 65 -11 -37 10
days from the effective date of this section to comply with the terms of this section including, but
not limited to registration, or shall be in violation of this section.
(10) Insurance.
(a) A registrant shall provide, pay for, and maintain satisfactory to the city, not
less than the types and coverage limits of insurance described herein. All insurance shall
be from and issued by responsible companies duly authorized to conduct business in the
state and having a rating acceptable to the city. All liability policies shall provide that the
city is an additional insured as to the activities under this section. 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 annually with the city. Thirty (30) calendar days advance written
notice by certified mail or facsimile, as determined by the city, must be given to the city
of any cancellation, intent of cancellation, intent not to renew, or reduction in the types of
policies or coverage limits. The insurance requirements may be satisfied by evidence of
self - insurance or other types of insurance acceptable to the city as approved by the City
Manager.
(b) The types of coverage and limits of coverage of insurance required shall not
be less than the following:
(1) Worker's Compensation and Employer's Liability Insurance.
Worker's Compensation - Florida Statutory Requirements.
Employer's Liability.
$1,000,000 limit each accident
$1,000,000 limit each employee
(2) Comprehensive General Liability.
Bodily Injury and Property Damage.
$2,000,000 combined single limit each occurrence.
(3) Automobile Liability.
Bodily Injury and Property Damage.
$2,000,000 combined single limit each accident.
(Ord. No. 2001 -7813, 6 -4 -01)
(11) Indemnification.
(a) A registrant shall, at the registrant's cost and expense indemnify, hold
harmless, and defend the city its officials, boards, members, agents, contractors, and
employees against any and all claims, suits, causes of action, proceedings, judgments for
damages or equitable relief, costs, and expenses incurred by the city arising out of the
placement or maintenance of utility systems or facilities in public rights -of -way, whether
placed by the registrant or a contractor or subcontractor to the registrant, regardless of
whether the act or omission is authorized, allowed, or prohibited by this section provided,
however, that a registrant's obligation hereunder shall not extend to any claims caused by
the negligence, wanton acts, or willful acts of the city. This provision includes, but is not
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limited to, the city's reasonable attorneys' fees incurred in defending against any such
claim, suit, or proceedings. The city agrees to notify a registrant in writing, within a
reasonable period of time, of any issue the city 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 expense. Nothing contained in this section
shall be construed or interpreted: (1) as denying to any person or entity a remedy or
defense available to such person or entity under the laws of the state; or (2) as a waiver of
sovereign immunity beyond the waiver provided in F.S. § 768.28, (2000), as amended.
(b) The indemnification requirements shall survive and shall be in effect after a
termination or cancellation of a registration.
(12) Restoration bond.
(a) Prior to issuing a permit, when the work authorized by a permit will require
restoration of public rights -of -way, the city shall require a bond to secure the restoration
of the public rights -of -way. Notwithstanding the foregoing, a restoration bond hereunder
shall only be required to the extent that the cost of the restoration exceeds the amount
recoverable against the security account as provided herein. The requirement for a
Restoration Bond may be waived by the City Manager if the applicant for the permit
provides sufficient evidence of its ability to pay, which may include audited financial
statements._ The restoration bond shall be issued by a surety having a Triple A Rating or
equivalent acceptable to the city; shall be subject to the approval of the city manager or
the city manager's designee; and shall provide that: "For twelve (12) calendar months
after issuance of the bond, the bond shall not be canceled, or allowed to lapse until sixty
(60) calendar days after receipt of written notice by the city, by certified mail, return
receipt requested, from the issuer of the bond of the issuer's intent to cancel or to not
renew the bond."
(b) The rights reserved by the city with respect to any restoration bond
established pursuant to this section are in addition to all other rights and remedies the city
may have under this section, under other ordinances, at law, or at equity.
(c) The rights reserved by the city under this section are in addition to all other
rights of the city, whether reserved in this section, or authorized by law and no action,
proceeding, or exercise of a right with respect to the restoration bond shall affect any
other rights of the city.
(d) This section will not apply to routine maintenance and repair of services for
existing customers associated with a utility service company's typical, day -to -day
operations.
(13) Security account. At or prior to the time a registrant receives the initial
permit to place or maintain facilities in public rights -of -way after the effective date of this
section, the registrant shall, at the sole discretion of the city, be required to file with the
ORDINANCE NO. 65 -11 -37 12
city, for the city approval, an annual bond, cash deposit, or irrevocable letter of credit in
the sum of $50,000 having as a surety a company qualified to do business in the state, and
shall be referred to as the "security account." The requirement for a Security account may
be waived by the City Manager if the registrant provides sufficient evidence of its ability
to pay, which may include audited financial statements. The security account shall be
maintained from such time through the: (a) transfer, sale, assignment, or removal of all
facilities in the public rights -of -way; or (b) twelve (12) calendar months after the
termination or cancellation of any registration. The security account shall be conditioned
upon the full and faithful performance by the registrant of all requirements, duties, and
obligations imposed upon registrant by the provisions of this section and other
ordinances, as amended. The security account 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 the duties and
obligations imposed upon the registrant by the provisions of this section, there shall be
recoverable, jointly and severally from the principal and surety of the security account,
any damages or loss suffered by the city as a result, including the full amount of any
compensation, indemnification, cost of removal, relocation, or abandonment of any
facilities of the registrant in public rights -of -way, including a reasonable allowance for
attorneys' fees, up to the full amount of the security account. The city shall not pay
registrants interest on any monies held by the city in a registrant's security account. This
section will not apply to routine maintenance and repair of services for existing customers
associated with a utility service company's typical, day -to -day operations.
(14) Enforcement remedies.
(a) A registrant's failure to comply with provisions of this section shall constitute
a violation of this Ordinance and shall subject the registrant to the code enforcement
provisions and procedures as provided in F.S. Ch. 162, (2000) and F.S. § 166.0415,
(2000), as amended. In addition, violation of this section may be punishable as provided
in F.S. § 162.22, as amended and as provided in the city ordinances.
(b) Failure of the city to enforce any requirements of this section shall not
constitute a waiver of the city right to enforce the violation or subsequent violations of the
same type or to seek appropriate enforcement remedies.
(15) Abandonment.
(a) Upon anticipated abandonment or the abandonment of facilities owned by a
registrant in public rights -of -way, the registrant shall notify the city within thirty (30)
calendar days of the anticipated abandonment or the abandonment.
(b) The city may, at its sole discretion, direct the registrant by written notice to
remove all or any portion of such abandoned facility at the registrant's expense if the city
determines that the presence of the abandoned facility interferes with the public health,
safety, or welfare which shall include, but shall not be limited to, a determination that
ORDINANCE NO. 65 -11 -37 13
such facility: (1) compromises safety at any time for any public rights -of -way user or
during construction or maintenance in public rights -of -way; (2) interferes with or
prevents the city or another person from locating facilities in the area of public rights -of-
way, including the potential to impact future construction or maintenance; or (3) creates a
maintenance condition which is disruptive to the intended use of the public rights -of -way.
(c) In the event the city does not direct the removal of the abandoned facility, the
registrant by 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 by another person.
(d) If the registrant fails to remove all or any portion of an abandoned facility as
directed by the city within a time period as required by the city, the city, or its agents, may
perform such removal and charge the entire cost of the removal to the registrant.
(16) Force majeure. In the event a registrant's performance of or compliance with any
of the provisions of this section 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 has used all
available means to expeditiously cure or correct any such inability to perform or comply. For
purposes of this article, causes or events not within a registrant's control shall include, without
limitation, acts of God, floods, earthquakes, landslides, hurricanes, fires, natural disasters, acts of
public enemies, riots, civil disturbances, sabotage, strikes, and restraints imposed by order of a
governmental agency or court. Causes or events within registrant's control and therefore, not
within this section shall include, without limitation, registrant's financial inability to perform or
comply, economic hardship, misfeasance, malfeasance, and nonfeasance by any of registrant's
directors, officers, employees, contractors, or agents.
(17) Reservation of rights and remedies.
(a) The city reserves the right to amend this section, from time to time, as it shall
find necessary.
(b) This section shall be applicable to all utility facilities placed in public rights -
of -way on or after the effective date of this section and shall apply to all existing facilities
in the public rights -of -way prior to the effective date of this section, to the full extent
permitted by federal and state laws.
(c) The adoption of this section is not intended to affect or amend any rights or
defenses of the city or a utility services company or provider under any existing
franchises, licenses, or other agreements with a utility services company or provider.
(d) Nothing in the section shall affect the remedies the city or the registrant have
available under applicable federal and state laws."
SECTION 2. This Ordinance shall take effect immediately upon its final passage and
ORDINANCE NO. 65 -11 -37 14
adoption.
PASSED by the City Commission on first reading this 24th day of January, 2011.
PASSED by the City Commission on second and final reading this 28th day of March,
2011.
ATTEST:
/ik14, 4 14 7d
Donna L. Bartle, City Clerk Mike Borno, Mayor
Approve as • form and correctness:
• . sen, Esquire
Ci •'•rney
ORDINANCE NO. 65 -11 -37 1