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HomeMy WebLinkAboutOrdinance_22-08_12/11/2008ORDINANCE NO.22-08 AN ORDINANCE OF THE VILLAGE COUNCIL OF THE VILLAGE OF TEQUESTA, FLORIDA AMENDING ITS CODE OF ORDINANCES BY ADOPTING A NEW CHAPTER 63. TO BE ENTITLED RIGHT-OF-WAY REGULATIONS.; PROVIDING FOR THE MANAGEMENT AND REGULATION OF THE PUBLIC RIGHT-OF-WAY; PROVIDING FOR PURPOSE AND DEFINITIONS; PROVIDING FOR REGISTRATION FOR USE OF THE RIGHT-OF-WAY; PROVIDING FOR NATURE, EFFECTIVENESS, AND TRANSFER OF REGISTRATION; PROVIDING FOR EXISTING COMMUNICATIONS FACILITIES AND OTHER UTILITIES LOCATED IN THE PUBLIC RIGHT-OF-WAY; PROVIDING FOR SUSPENSION OF PERMITS; PROVIDING FOR APPEALS; PROVIDING FOR CONSTRUCTION IN THE RIGHT-OF-WAY; PROVIDING FOR INSURANCE AND INDEMNIFICATION; PROVIDING FOR PENALTIES FOR VIOLATION; RESERVING CHAPTERS 64-65. FOR FUTURE LEGISLATION; PROVIDING A CONFLICTS CLAUSE, A SEVERABILITY CLAUSE AND AUTHORITY TO CODIFY; PROVIDING AN EFFECTIVE DATE; AND FOR OTHER PURPOSES. WHEREAS, Section 253(c) of the Telecommunications Act leaves to state and local government the authority to manage the Public Right-of-Way on a competitively neutral and nondiscriminatory basis; and WHEREAS, Section 337.401, Florida Statutes, provides that local governments are authorized to prescribe and enforce reasonable rules and regulations with reference to the placing and maintaining of utilities along, across, or on any road and may grant to a resident or corporation organized or licensed in Florida the use of the Right-of--Way in accordance with said rules and regulations; and WHEREAS, in accordance with the Congressional intent of Section 253 of the TelecommunicationsAct and Section 337.401, Florida Statutes, the Village Council desires to place certain reasonable rules and regulations on the use of the Public Right-of-Way by electric transmission, telephone, telegraph or other utilities as defined at Section 337.401, F.S.; and WHEREAS, the Village of Tequesta is a municipality and has all powers of local self-government; and WHEREAS, pursuant to the authority set forth in Section 253 of the -1- Telecommunications Act and Section 337.401, Florida Statutes, the Village of Tequesta desires to impose reasonable rules and regulations for the use of the Public Right-of-Way by Communication Service Providers as well as all other utilities in anon-discriminatory manner. NOW, THEREFORE, BE IT ORDAINED BY THE VILLAGE COUNCIL OF THE VILLAGE OF TEQUESTA, FLORIDA, THAT: Section 1: The code of ordinances of the Village of Tequesta is hereby amended by the adoption of an entirely new Chapter 63. to be entitled Right-of-Way Regulations., and reserving Chapters 64-65. for future legislation; which chapter shall hereafter read as follows: Chapter 63 RIGHT-OF-WAY REGULATIONS Article I. In General. Secs. 63-1 - 63-25. Reserved. Article II. Right-of-Way Regulations. Sec.63-26. Purpose. Sec.63-27. Definitions. Sec.63-28. Registration for Placing or Maintaining Communications Facilities or Utilities in the Right-of Way. Sec. 63-29. Nature of Registration. Sec. 63-30. Registration; Effectiveness of Registration. Sec. 63-31. Transfer of Registration. Sec. 63-32. Existing Communications Facilities and Utilities in the Right-of Way. Sec. 63-33. Suspension of Permits. Sec.63-34. Appeals. -2- Sec. 63-35. Construction in the Right-of-Way. Sec. 63-36. Insurance and Indemnification. Sec. 63-37. Penalties for Violation. Secs. 63-38 - 63-50. Reserved. ARTICLE I. IN GENERAL Sec. 63-1 - 63-25. Reserved. ARTICLE II. RIGHT-OF-WAY REGULATIONS Sec. 63-26. Purpose. The purpose of this Ordinance is: (a) to establish a competitively neutral policy for the use of the Public Right-of- Way for the provision of Communications Services by Communications Services Providers and other utilities; and (b) to regulate the placement of Communications Facilities and Utilities in the Public Right-of--Way pursuant to its governmental powers as set forth at Chapter 166, Florida Statutes; and (c) to prescribe reasonable rules for such uses pursuant to Sections 337.401 and 364.0361, Florida Statutes, so as to minimize disruption of services in the Public Right-of--Way, regulate the use of the Public Right-of-Way by Communications Services Providers and other utilities, and to regulate the construction, installation, maintenance, repair, removal and replacement of facilities in the Public Right-of-Way. Sec.63-27. Definitions. (a) "Village" shall mean Village of Tequesta, Florida. (b) "FCC" shall mean the Federal Communications Commission. (c) "Person" includes individuals, children, firms, associations, joint ventures, partnerships, estates, trusts, business trusts, syndicates, fiduciaries, corporations, and all other groups or combinations. (d) "Public Right-of-Way" or "Right of Way" shall mean a public right-of-way, public utility easement, highway, street or alley owned by the Village, -3- dedicated to the Village or to the public, or for which the Village holds a property interest and exercises rights of management or control. This term shall include the surface, the air space over the surface and the area below the surface of all public roads, streets, highways, alleys, boulevards, bridges, tunnels, public utility easements, and all public grounds. (e) "Registrant" shall mean a company that has Registered with the Village in accordance with the provisions of this Article. (f) "Registration" and "Register" shall mean the process described in Section 63- 28 whereby a Communications Services Provider provides certain information to the Village. (g) "Communications Services" shall mean the transmission of data or other information between or among points specified by or through any electronic or other medium as defined in Section 202.11(2), Florida Statutes, as may be amended. (h) "Communications Facility" or "Facility" is a facility that may be used to provide Communications Services as defined in Section 337.401(6)(a)2, Florida Statutes, as may be amended. (i) "Communications Services Provider" or "Provider" shall mean any Person or entity that provides Communications Services. Q) "Utility" or `Utilities" shall refer to any electric transmission, telephone, telegraph, or other Communications Services lines, pole lines, poles; railways, ditches, sewers, water, heat or gas mains, pipelines, fences, gasoline tanks and pumps, or any other structures, pipes, lines or facilities that Providers place in the Public Right-of--Way as defined in Section 337.401(1), Florida Statutes, as may be amended. Sec. 63-28. Registration for Placing or Maintaining Communications Facilities or Utilities in the Right-of-Way. (a) A Communications Services Provider or Utility Provider that desires to erect, construct, install, maintain, place, repair, extend, expand, remove, locate or relocate a permanent or temporary Communications Facility or Utility in, on, -4- under, over or across the Public Right-of-Way in the Village shall first Register with the Village in accordance with this Article. (b) Subject to the terms and conditions contained in this Article, a Registrant may erect, construct, install, place, repair, maintain, expand, remove, locate or relocate a permanent or temporary Communications Facility or Utility in, on, over, under, or across the Public Right-of-Way. Sec. 63-29. Nature of Registration. A Registration shall not convey title, equitable or legal, in the Public Right-of-Way. Registration under this Article governs the occupation of Public Rights-of-Way only. Registration does not excuse a Communications Service or Utility Provider from obtaining appropriate access or pole attachment agreements before locating its facilities on the Village's or another person's facilities. Registration does not excuse any Provider from complying with all applicable Village ordinances, including this Article. Sec. 63-30. Registration; Effectiveness of Registration. (a) Registration. Any Communications Services Provider desiring to use the Public Right-of-Way shall file a Registration form with the Village which shall include the following information: (1) name of the applicant; and (2} name, address and telephone number of the applicant's primary contact person in connection with the Registration; and (3) evidence of the insurance coverage required under this Article and acknowledgment of the indemnity and other provisions of this Article; which acknowledgment shall not be considered an agreement to the provisions; and (4) the number of the applicant's certificate or certificates of authorization, if any, to provide Communications Services or any other type of services issued by the Florida Public Services Commission, the Federal Communications Commission the Department of State, or other applicable governing boards or commissions. -5- (b) Review by Village. The Village will review the information submitted by the applicant. If the applicant submits all information in accordance with subsection 63-30(a). above, the Registration shall be effective and the Village shall notify the applicant of the effectiveness of the Registration in writing. If the Village determines that the information has not been submitted in accordance with the above-referenced subsection, the Village shall notify the applicant in writing of the non-effectiveness of Registration. The Village shall so reply to an applicant within thirty (30) days after receipt of the Registration information from the applicant. (c) Cancellation of Registration. A Registrant may cancel a Registration upon written notice to the Village that it will no longer place, maintain or own any Communications Facility or Utility in the Public Right-of-Way of the Village and will no longer need to pull permits to perform work in Public Right-of- Way. A Registrant cannot cancel a Registration if the Registrant continues to place, maintain or own any Communications Facility or Utility in the Public Right-of-Way. (d) No Priority in Registration. Registration does not establish any priority for the use of the Public Right-of-Way; however an effective Registration is required prior to the issuance of a permit to work in the Public Right-of--Way. The fact that a Communications Services or Utility Provider is Registered shall not establish any right or priority for the use of the Public Right-of--Way. (e) Renewal of Registration. A Registrant shall renew its Registration with the Village by October 1St of each year in accordance with the Registration requirements in this Article. Within thirty (30) days of any change in the information required to be submitted pursuant to subsection 63-30(a). above, a Registrant shall provide updated information to the Village. If no information in the then-existing Registration has changed, the renewal may state that no information has changed. Registrations are expressly subject to any future amendment to or replacement of this Article and further subject to any additional Village ordinances, as well as any state or federal laws that -6- may be enacted during the term of the Registration. If a Registrant fails to renew its Registration, the sole consequence shall be that the Village may restrict the Provider from obtaining permits under subsection (f) below until the Communications Services or Utility Provider has complied with the Registration requirements of this Article. (f) Permits. A permit is hereby required of a Communications Services or Utility Provider that desires to erect, construct, install, maintain, place, repair, extend, expand, remove, locate or relocate a permanent or temporary Communications Facility or Utility in any Public Right-of-Way. An effective Registration shall be a condition of obtaining a permit. An effective Registration does not mean that applicable permitting requirements shall not apply or that such requirements have been or will be deemed to have been satisfied. Permit fees, if any, shall be paid upon the submission of an application for same; the amount of such permit fee, if any, shall be set by resolution of the Village Council. Sec. 63-31. Transfer of Registration. If the Registrant transfers or assigns its Registration incident to a sale or other transfer of the Registrant's assets located within the Village, the transferee or assignee shall be obligated to comply with the terms of this Article. Written notice of any such transfer or assignment shall be provided to the Village as of the effective date of such transfer. In order for the transfer of Registration to be effective, such written notice must include the identity of the transferee or assignee, and notice of any changes to the information provided under subsection 63-30(a), including any changed evidence of insurance coverage. Sec. 63-32. Existing Communications Facilities and Utilities in the Right-of-Way. Communications Facilities or Utilities which have been constructed or placed in the Public Right-of-Way prior to the Effective Date of this Article may remain in the Right-of-Way provided the Provider complies with the Registration provisions of this Ordinance. Providers with existing Communications Facilities or Utilities have one hundred and twenty (120) days from the Effective Date of this Ordinance to comply with the terms of this Ordinance, or be found in violation thereof. -7- Sec. 63-33. Suspension of Permits. Subject to Section 63-34. below, the Village may suspend a permit for work in the Public Right-of-Way for one or more of the following reasons: (a) violation of permit conditions, including conditions set forth in this Article or other applicable Village codes or regulations governing use of the Public Right-of-Way; (b) misrepresentation or fraud by Registrant in a Registration or permit application to the Village; (c) violation of provisions in this Article requiring payment of permit fees, if applicable, to the Village; or (d) failure to relocate or remove Communications Facilities or Utilities as may be lawfully required by the Village. Sec. 63-34. Appeals. Final, written decisions of the Village Manager suspending a permit, denying an application for a Registration or denying an application for renewal of a Registration are subject to appeal. An appeal must be filed with the Village Manager within thirty (30) days of the date of the final, written decision to be appealed. Any appeal not timely filed as set forth herein shall be waived. The Village Council shall consider the appeal at the next regularly scheduled meeting and shall consider whether the applicant meets the requirements for a Registration or permit based upon the provisions of this Article and the applicable State and Federal laws. Sec. 63-35. Construction in the Right-of-Way. (a) Permits to Construct. The Registrant may construct the Communications Facilities or Utilities in the Public Right-of-Way specifically identified in permits obtained in accordance with applicable provisions of this Article or other applicable Village codes and regulations. The permission to use and construct in the Public Right-of-Way is only for those areas specifically identified in the permit. (b) Compliance with Village Codes and Regulations. Registrant agrees to comply with all applicable Village codes and regulations in constructing any Communications Facilities or Utilities in the Public Right-of-Way, including, -8- but not limited to, engineering regulations, permit requirements, contractor licensing requirements, fire codes and zoning codes; and shall not disturb the Village's existing stormwater system as defined further at Division 3. of Article IV. of Chapter 74. Utilities of the Village Code of Ordinances. (c) Registrant Must Obtain Applicable Permits. Except in the case of an emergency, Registrant shall not commence any construction in the Public Right-of-Way until all applicable permits have been issued by the Village or other appropriate authority. The term emergency shall mean an out-of- service condition or other condition that may affect the public's health, safety and welfare. Registrant shall provide reasonable advance notice to the Village of its intent to commence construction in the Right-of-Way in the event of an emergency. Registrant acknowledges that as a condition of granting such permits, the Village may impose conditions on the permits as necessary and reasonable for the construction in the Public Right-of--Way. (d) Construction Standards. Registrant shall construct, maintain, install, remove and/or repair the Communications Facility or Utility in the Public Right-of- Way incompliance with all applicable construction standards as established by all local, state or federal law and in conformance with the Village's codes and regulations. Registrant shall use and exercise due caution, care, skill and expertise in performing work in the Public Right-of-Way and shall take all reasonable steps to safeguard work site areas. (e) Installation and Construction Schedule; -nspections. In the interest of the public's health, safety and welfare, Registrant shall cooperate with the Village and the Village's management actions in coordinating the use of the Public Right-of--Way. Upon request of the Village, a Registrant shall coordinate work under a permit with any other construction, installation or repairs that may be occurring or scheduled to occur in the subject Public Right-of--Way and alter its construction schedule as necessary so as to minimize disruptions and disturbance in the Public Right-of-Way. (fj Maintenance. A Registrant shall maintain its Communications Facilities or -9- Utilities in the Public Right-of-Way in a safe condition. (g) Notice to Village. Prior to any excavation in the Public Right-of--Way for construction, installation, repair or maintenance, the Registrant must call prior to construction activity to locate any underground equipment in accordance with Chapter 556, Florida Statutes, as it may be amended. A Registrant must be a member of Sunshine State One Call of Florida, Inc. (1- 800-432-4770) or any successor alert and warning system to protect and locate its underground equipment. (h) Removal of Registrant's Communications Facilities or Utilities in the Right-of-Way. To the extent authorized by Section 337.403, Florida Statutes, Village may require Registrant to remove or relocate, and Registrant shall, at Village's direction, remove or relocate any Communications Facilities or Utilities in the Public Right-of--Way when the Village Manager determines that such removal or relocation is necessary to protect or preserve the public health, safety and welfare, or to protect the proper operation of Village's traffic signals or traffic control devices or other Village facilities. Village shall provide ninety (90) days written notice to Registrant before the lines must be relocated or removed. If Registrant fails to commence and complete this removal work by the dates requested by the Village in its written notice, or within thirty (30) days following the expiration or termination of this Registration, then the Village shall have the right to perform this removal work and charge Registrant for the costs incurred by the Village in performing this work. Upon payment by Registrant of the costs to the Village, the Village shall promptly return to Registrant equipment removed by Village pursuant to this provision. (i) Restoration of Right-of-Way. Upon the completion of each installation, construction, repair, maintenance, or removal in the Right-of--Way, a Registrant shall restore the Public Right-of-Way to a safe condition and to the Village's standard specifications for Right-of-Way, at Registrant's expense. Registrant shall, at its own expense, repair or replace any other -10- property disturbed or damaged on account of its activities in the Public Right- of-Way. (j) Interference with Other Uses in the Public Right-of-Way. A Registrant shall use reasonable efforts not to disturb or otherwise disrupt the operation or maintenance of any other Communications Facilities, Utilities, or uses in the Public Right-of-Way, including, but not limited to, sewers, storm drains, gas or water mains, or other underground cables or conduits. (k) No Warranties or Representations by Village. The Village makes no warranties or representations regarding the fitness or suitability of Village's property for the installation of Registrant's Communications Facilities or Utilities and any performance of work or costs incurred by Registrant or provision of services shall be at Registrant's sole risk. (1) Maps. Within thirty (30) days of a request by the Village, the Registrant shall provide the Village with copies of maps on disk, in a format specified by the Village Manager, provided such format is maintained by the Registrant. Any such maintained geographic data, media and information will be provided at no cost to Village. In no event shall any proprietary confidential information be required to be disclosed pursuant to this section, except that the location of Communications Facilities or Utilities previously placed in the Public Right- of-Way shall not be deemed proprietary confidential information. (m) Relocation of Facilities and Reservation of the Village's Rights: (1) The Village reserves the right to lay, and permit to be laid, sewer, gas, water, electric, storm drainage, telecommunications, and other pipelines or cables or conduit, and to do and to permit to be done any underground installation or improvement that may be deemed necessary or proper by the Village in, across, along, over or under any Public Right-of-Way occupied by the Registrant, and to change any curb or sidewalk or the grade of any street. The Village, its contractors and subcontractors shall be required to call Sunshine State One Call of Florida, Inc. (1-800-432-4770), or successor alert -11- and warning system, prior to excavation, in accordance with Chapter 556, Florida Statutes, as it may be amended, in order to avoid damages to Registrant's Communications Facilities or Utilities. (2) The Village expressly reserves the right to change, or cause to be changed through exercise of its police powers, the grading, installation, relocation, or width of the Village streets, sidewalks, bikeways, alleys, public thoroughfares, highways and public ways and places within the present limits of the Village and within said limits as same may from time to time be altered, and the Registrant shall relocate, at its own expense where allowed by Section 337.403, Florida Statutes, as it may be amended, its poles wires, cables, anchors, manholes, conduits, appurtenances, or other Communications Facilities, or Utilities in order to accommodate the installation, relocation, widening or changing of the grade of any public streets, sidewalks, bikeways, alleys, public thoroughfares, highways and public ways and places, including if necessary relocating such poles, wires, cables, anchors, manholes, conduits or other facilities or appurtenances to a sufficient distance from the edge of the pavement to permit a reasonable work area for machinery and individuals engaged in installing, relocating, widening, or changing the grade of any such streets, sidewalks, bikeways, alleys, public thoroughfares, highways and public ways and places. Upon notice in writing from the Village that changes in the Public Right-of--Way are required pursuant to the Village's police power in such a manner as will necessitate the relocation of its facilities in the Public Right-of- Way, the Registrant shall relocate its Communications Facilities or Utilities at no expense to the Village, where allowed by Section 337.403, Florida Statutes, as it may be amended, so as to permit the construction of such improvements when ordered. Should the Registrant fail to comply with such notice, the Communications -12- Facilities or Utilities may be relocated by the Village and the cost thereof recovered from the Registrant, where allowed by Section 337.403, Florida Statutes, as it may be amended. Sec. 63-36. Insurance and Indemnification. (a) Indemnification. Registrant shall agree to protect, defend, reimburse, indemnify and hold Village, its agents, employees and elected officers and each of them free and harmless at all times from and against any and all suits, actions, legal or administrative proceedings, claims, demands, damages, liabilities, interest, attorney's fees, costs and expenses of whatsoever kind or nature whether arising in any manner directly or indirectly caused, occasioned or contributed to in whole or in part, by reason of any act, omission or fault, of anyone acting under Registrant's direction or control, or on Registrant's behalf in any matter related to Registrant's use of the Right-of-Way or any property Registrant is entitled or authorized to use as a result of the Registration or other authorization. Registrant's aforesaid indemnity and hold harmless obligations, or portions or applications thereof, shall apply to the fullest extent permitted by law but in no event shall they apply to liability caused by the negligence or willful misconduct of the Village, its respective agents, servants, employees or officers, nor shall the liability limits set forth in Section 768.28, Florida Statutes, be waived. (b) Insurance. A Registrant shall maintain in full force and effect general liability insurance acceptable to the Village, which specifically covers all exposures incident to the intent and responsibilities under this Article in the amounts set forth below: (1) Workers' compensation insurance within Florida statutory limits and employers' liability insurance with minimum limits of one hundred thousand dollars ($100,000) each accident. (2) Comprehensive general liability insurance with minimum limits of three million dollar ($3,000,000) as the combined single limit for each occurrence of bodily injury, personal injury and property damage. The -13- policy shall provide blanket liability insurance and shall include coverage for products and completed operations liability, independent contractor's liability; coverage for property damage from perils of explosion, collapse or damage to underground utilities, commonly known as XCU coverage. (3) Automobile liability insurance covering all owned, hired, and non- owned vehicles in use by the Provider, its employees and agents, with personal protection insurance and property protection insurance to comply with the provisions of the applicable State law, including residual liability insurance with minimum limits of two million dollars ($2,000,000) as the combined single limit for each occurrence for bodily injury and property damage. (4) Named Insureds. All certificates of insurance shall name the Village of Tequesta as an additional insured. (5) Cancellation of Policies of Insurance. At least sixty (60) days prior written notice shall be given to the Village by the insurer of any intention not to renew such policy or to cancel, replace or materially alter same, such notice to be given by registered mail to the Village. Sec. 63-37. Penalties for Violation. Any violation of any of the provisions of this Ordinance may be enforced as provided for in Chapter 162, Florida Statutes. Each day or fraction thereof the violation continues shall be considered as a separate offense. In addition, the Village can pursue any and/or all other lawful actions, including filing a complaint with Florida Public Service Commission or Federal Communications Commission advising of violations of Village Ordinances, filing an injunction in Circuit Court to enforce the terms of the Article, Registration or permit or to enjoin the use of the Public Right-of- Way, pursuing action before the Code Enforcement Special Magistrate to impose daily fines, denying permits or development orders for other projects or use of the Right-of-Way by the Provider, and/or by any other means allowed by law. These remedies shall be cumulative. -14- Sec. 63-38 - 63-50. Reserved. Chapters 64-65 RESERVED Section 2: All ordinances or parts of ordinances in conflict be and the same are hereby repealed. Section 3: 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 of this Ordinance. Section 4: Specific authority is hereby granted to codify and incorporate this Ordinance as an entirety new Chapter 63. to be added to the existing Code of Ordinances of the Village of Tequesta. Section 5: This Ordinance shall take effect immediately upon adoption. -15- Upon First Reading this 13 day of November 2008, the foregoing Ordinance was offered by Council Member Humpage who moved its adoption. The motion was seconded by Council Member Paterno and upon being put to a vote, the vote was as follows: Mayor Pat Watkins Vice-Mayor Calvin Turnquest Council Member Vince Arena Council Member Tom Paterno Council Member Jim Humpage For Adoption Against Adoption X X X X X Upon Second Reading this 11 day of December 2008, the foregoing Ordinance was offered by Vice-Mayor Turnquest who moved its adoption. The motion was seconded by Council Member Humpage and upon being put to a vote, the vote was as follows: For Adoption Against Adoption Mayor Pat Watkins X Vice-Mayor Calvin Turnquest X Council Member Vince Arena X Council Member Tom Paterno X Council Member Jim Humpage X The Mayor thereupon declared the Ordinance duly passed and adopted this 11 day of December, 2008. MAYOR OF TEQUESTA ATTEST: Pat Watkins ~ ~ ~G l.~ ~ ~ 1 Cf~~.-C~ ~C~, ~ ~~~~'~GO~PO9-~ QG''' Lori McWilliams, CMC R`?~- Village Clerk ~ ~ RPp 'D U'~INC~ q ED: ''~9~~ 4 19~~..~P.~'~ •,c~` '••• .t ~ ,. ,~"'"OF, ~L~~°°°`°a