CITY OF PALM BEACH GARDENS CITY COUNCIL Agenda Cover ... · The following words, terms, and...

CITY OF PALM BEACH GARDENS CITY COUNCIL

Agenda Cover Memorandum

Meeting Date: June 4, 2015 Ordinance 4, 2015

Subject/Agenda Item: Second and Final Reading of a City-initiated amendment repealing Chapter 62. Streets, Sidewalks, and Certain Other Public Places, in its entirety and readopting same, as revised , in order to amend and clarify the regulations that govern the use of the City's streets, swales, rights-of-way, and public places. [X] Recommendation to APPROVE [ ] Recommendation to DENY

Reviewed by: Originating Dept.:

Community Services

David R es, Public Services and Emergency Management Director

Finance Administrator 1------------1

Advertised: NA

~~~~======-+Date: 05/20/15

Submitted by:

J. E. D g ney, Ill Deputy City Manager

Approved by:

City Manager

Paper: Palm Beach Post

[ ] Not Required

Affected parties

[ ] Notified

[X] Not required

Costs: $N/A (Total)

$N/A Current FY

Funding Source:

] Operating

] Other

Contract/Agreement:

Effective Date:

N/A

Expiration Date:

N/A

Budget Acct.#: N/A

Council Action:

] Approved

] Approved w/ Conditions

] Denied

] Continued to:

Attachments:

• Ordinance 4, 2015 - Exhibit "A":

Chapter62. Streets, Sidewalks, and Certain Other Public

Places

Meeting Date: June 4, 2015 Ordinance 4, 2015

of 2

BACKGROUND: A need exists to amend and clarify the regulations that govern the use of the City's streets, sidewalks, and certain other public places. City staff has determined that preventive measures must be taken to protect the continuous functionality of the City's swales, public rights-of-way, and other public property. City staff has further determined that it would be cost prohibitive for the City to assume full responsibility for the continual maintenance of swale and rights-of-way improvements. City staff has recommended that adjacent property owners be required to share the maintenance responsibilities for said swales and rights-of-way. Therefore, Chapter 62. Streets, Sidewalks and Certain Other Public Places of the Code of Ordinances of the City of Palm Beach Gardens, Florida is hereby repealed and readopted as revised .

CITY COUNCIL: On May 7, 2015, the City Council approved Ordinance 4, 2015 on first reading by a vote of 5 to 0.

STAFF RECOMMENDATION: Staff recommends approval of Ordinance 4, 2015 as presented on second and final reading .

1 ORDINANCE 4, 2015 2 3 4 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PALM 5 BEACH GARDENS, FLORIDA REPEALING CHAPTER 62. STREETS, 6 SIDEWALKS AND CERTAIN OTHER PUBLIC PLACES. IN ITS 7 ENTIRETY AND READOPTING SAME, AS REVISED, IN ORDER TO 8 AMEND AND CLARIFY THE REGULATIONS THAT GOVERN THE 9 USE OF THE CITY'S STREETS, SWALES, RIGHTS-OF-WAY, AND

10 PUBLIC PLACES.; PROVIDING A CONFLICTS CLAUSE, A 11 SEVERABILITY CLAUSE, AND AUTHORITY TO CODIFY; 12 PROVIDING AN EFFECTIVE DATE; AND FOR OTHER PURPOSES. 13 14 15 WHEREAS, the City Council of the City of Palm Beach Gardens has determined 16 that a need exists to amend and clarify the regulations that govern the use of the City's 17 streets, sidewalks, and certain other public places; and 18 19 WHEREAS, City staff has determined that preventive measures must be taken to 20 protect the continuous functionality of the City's swales, public rights-of-way, and other 21 public property; and 22 23 WHEREAS, City staff has further determined that it would be cost prohibitive for 24 the City to assume full responsibility for the continual maintenance of swale and right-of 25 way improvements; and 26 27 WHEREAS, City staff has recommended that adjacent property owners be 28 required to share the maintenance responsibilities for said swales and rights-of-way; and 29 30 WHEREAS, the City Council has determined that adoption of this Ordinance, 31 providing for maintenance responsibilities and regulations relative to the City's swales 32 and rights-of-way, is in the best interest of the health, safety, and welfare of the residents 33 and citizens of the City of Palm Beach Gardens and the public at large. 34 35 36 NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY 37 OF PALM BEACH GARDENS, FLORIDA that: 38 39 SECTION 1. Chapter 62. Streets, Sidewalks and Certain Other Public Places of 40 the Code of Ordinances of the City of Palm Beach Gardens, Florida is hereby repealed 41 and readopted, as revised; providing that Chapter 62. Streets, Sidewalks and Certain 42 Other Public Places. shall hereafter read as follows: 43 44 See Exhibit "A", which is attached hereto and made a part hereof. 45 46

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Ordinance 4, 2015

1 2 SECTION 2. All ordinances or parts of ordinances in conflict be and the same are 3 hereby repealed. 4 5 SECTION 3. Should any section or provision of this Ordinance or any portion 6 thereof, any paragraph, sentence, or word be declared by a court of competent jurisdiction 7 to be invalid, such decision shall not affect the validity of the remainder of this Ordinance. 8 9 SECTION 4. Specific authority is hereby given to codify this Ordinance.

10 11 SECTION 5. This Ordinance shall become effective immediately upon adoption. 12 13 14 (The remainder of this page intentionally left blank) 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46

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-PASSED this 7~ day of Mmt.CI/

PASSED AND ADOPTED this second and final reading.

CITY OF PALM BEACH GARDENS

BY: ---------------------------Eric Jablin, Mayor

David Levy, Vice Mayor

Joseph R. Russo, Councilmember

Robert G. Premuroso, Councilmember

Marcie Tinsley, Councilmember

ATTEST:

BY: --------------------------Patricia Snider, CMC, City Clerk

APPROVED AS TO FORM AND LEGAL SUFFICIENCY

BY: --------------------------R. Max Lohman, City Attorney

Ordinance 4, 2015

, 2015, upon first reading.

day of _____________ , 2015, upon

FOR AGAINST ABSENT

\\pbgsnas\Attorney\attomey_share\ORDINANCES\2015\0rdinance 4 2015 - New Chapter 62-Swales.docx

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1 Chapter 62 2 3 STREETS, SIDEWALKS, AND CERTAIN OTHER PUBLIC PLACES 4 5 Article I. Swale and Right-of-Way Maintenance 6 7 Sec. 62-1 . Definitions. 8 Sec. 62-2. Damage to public property prohibited. 9 Sec. 62-3. General maintenance requirements.

10 Sec. 62-4. Permits. 11 Sec. 62-5. Placement of structures; landscaping. 12 Sec. 62-6. Relocation of facilities and reservation of the city's rights. 13 Sec. 62-7. Right-of-way blockage prohibited. 14 Sec. 62-8. Failure to pave or restore. 15 Sec. 62-9. Boating and bathing. 16 Sees. 62-10.-62-30. Reserved. 17 18 Article II. Streets 19 20 Division 1. Generally 21 22 Sec. 62-31. Depositing dangerous materials. 23 Sec. 62-32. Crossing gates and signals. 24 Sees. 62-33.-62-50. Reserved. 25 26 Division 2. Administration 27 28 Sec. 62-51 . Supervision of work. 29 Sec. 62-52. Surety. 30 Sec. 62-53. Maintenance assumed by city. 31 Sees. 62-54.-62-75. Reserved . 32 33 Article Ill. Excavations 34 35 Division 1. Permit 36 37 Sec. 62-76. Required; fees. 38 Sees. 62-77.-62-97. Reserved. 39 40 Division 2. Requirements. 41 42 Sec. 62-98. Replacing subgrade and pavement. 43 Sec. 62-99. Compliance with street specifications. 44 Sec 62-100. Inspections; orders to remedy violations. 45 Sees. 62-101.-62-144. Reserved. 46 47 48

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Exhibit A to Ordinance 4, 2015

Article IV. Specifications

Sec. 62-145. Street specifications. Sec. 62-146. Turnouts. Sec. 62-147. Landscaping and maintenance in public rights-of-way. Sees. 62-148.--62-188. Reserved.

Article V. Placement of Communications Facilities in Public Rights-of-Way

Sec. 62-189. Sec. 62-190. Sec. 62-191. Sec. 62-192.

Sec. 62-193. Sec. 62-194. Sec. 62-195. Sec. 62-196. Sec. 62-197. Sec. 62-198. Sec. 62-199. Sec. 62-200. Sec. 62-201 . Sec. 62-202. Sec. 62-203. Sec. 62-204. Sec. 62-205. Sec. 62-206.

Title. Intent and purpose. Definitions. Registration for placing or maintaining communications facilities in public rights-of -way. Notice of transfer, sale, or assignment of assets in public rights-of-way. Placement or maintenance of a communications facility in public rights-of-way. Suspension of permits. Appeals. Involuntary termination of registration. Existing communications facilities in public rights-of-way. Insurance. Indemnification. Construction surety. Security fund. Abandonment of communications facility. Force majeure. Reservation of rights and remedies. Enforcement authority.

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ARTICLE I. SWALE AND RIGHT-OF-WAY MAINTENANCE

Sec. 62-1. Definitions.

The following words, terms, and phrases, when used in these general regulations, shall have the meanings ascribed to them in this chapter, except where the context clearly indicates a different meaning:

City means the City of Palm Beach Gardens, Florida.

City Council means the governing body of the City of Palm Beach Gardens, Florida.

Code means the "Code of Ordinances of the City of Palm Beach Gardens", as amended, and includes land development regulations.

Contiguous means lands that abut each other or lands deemed abutting if separated by streets, ways, easements, private road tracts, power lines, or rights-of-way under ownership of the applicant, a governmental agency or subdivision, or a public or private utility.

Easement means authorization by a property owner for another individual, firm, corporation, or similar entity to use property for a specified purpose. An easement includes any identified and described strip of land created for public or private utilities, drainage, surface water management, access, or other specified use having limitations, the title to which shall remain in the name of the property owner, subject to the right of use designated in the plat, deed, conveyance, or other means recognized by the city attorney.

Grass means ground cover of the Gramineae family commonly grown year-round in south Florida for lawn cover.

Land means any real estate or real property lying within the corporate boundaries of the city, including such areas defined as "water," "marsh," or "swamp."

Landscaping means plant materials or combination thereof, including, but not limited to, grass, ground covers, shrubs, vines, hedges, trees, palm trees, and other living material.

Owner means any person, corporation, partnership, or other legal entity or combination of two or more of such having legal title to or a sufficient proprietary interest in land as evidenced by deed of record . The term "owner" may also include any agent acting on behalf of the owner pursuant to valid authority provided by the owner.

Registrant shall mean a company that has registered in accordance with Section 66-37 of the Code of Ordinances.

Right-of-way means a strip of land, dedicated or deeded to the perpetual use of the public, occupied or intended to be occupied by a street, crosswalk, railroad , canal, road , electric transmission line, oil or gas pipeline, water supply main, sanitary sewer, storm drain, or for any other special use.

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Sidewalk means that portion of a street between the curb line or the lateral line of a roadway and the adjacent property lines intended for use by pedestrians.

Street means any public or private access ways, easements, or rights-of-way such as an expressway, arterial collector, minor collector, street, road , lane, highway, avenue, boulevard, alley, parkway, viaduct, circle, court, terrace, place, or cul-de-sac, and also includes all of the land lying between the right-of-way lines as delineated on a plat showing such streets, whether improved or unimproved. The term street shall not include those access ways such as easements and rights-of-way intended solely for limited utility purposes, such as for electric power lines, gas lines, telephone lines, water supply lines, surface water management, storm sewers, sanitary sewers, and easements of ingress and egress.

Structure means anything constructed, assembled, or erected, the use of which requires location on the ground and attached to something having location on or in the ground; this shall include, among other things, buildings, swimming pools, mobile homes, fences, walls, tanks, signs, tents, lunch wagons, trailers, dining cars, camp cars or similar structures on wheels, or other supports used for living, business, or storage purposes. The term includes any structure equipped with a roof, permanent or temporary, such as porches, awnings, canopies, screened enclosures, arbors, balconies, and similar elements, but does not include unroofed surfaces such as paving, sidewalks, or those used for sports.

Swale means the area within any street right-of-way which lies between the edge of the street pavement and the nearest edge of the sidewalk, or if there is no such sidewalk, then which lies between the edge of the street pavement and the edge of the right-of-way. The primary purpose of swales is to convey and provide treatment for storm water runoff.

Turnout means every entrance or exit used by vehicular traffic to or from properties adjoining a street. The areas may also be referred to as a driveway apron.

Sec. 62-2. Damage to public property prohibited.

No person shall willfully damage, deface, disfigure, tamper with, remove, or alter in any manner any public property, including, but not limited to, buildings, bridges, driveways, sidewalks, tables, benches, fireplaces, railings, paving material, utility lines, or signs (including monuments, placards, notices, stakes, posts, and boundary markers), or any parts or appurtenances thereto.

38 Sec. 62-3. General maintenance requirements. 39 40 It is the responsibility of the contiguous property owner to maintain all grass, 41 landscaping, and sidewalks that exist in the public rights-of-way and swales contiguous to the 42 subject property in accordance with the following: 43 44 (1) All grass and landscaping located.in the public rights-of-way shall be maintained in 45 accordance with Section 79-5 of the Code of Ordinances. 46 47 48

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(2) All sidewalks located in public rights-of-way shall be kept free of grass, weeds, and trash and shall be cleaned of sand, dirt, discoloration, mold, and debris. Structural deficiencies shall be the responsibility of the city. However, in the event of damage to a sidewalk caused by the negligent or intentional act of the contiguous property owner and/or utility provider, the party responsible for the damage shall make all necessary repairs to same.

(3) Landscaping material root systems that show evidence of causing damage to public property shall be removed.

(4) Turnouts, including, without limitation, that portion which is on the public right-ofway, shall be properly maintained in accordance with Section 79-5 of the Code of Ordinances.

Sec. 62-4. Permits.

(a) No person shall undertake to improve, alter, or modify any right-of-way without first obtaining a right-of-way permit from the city.

(b) Any work performed within a right-of-way shall meet the requirements to promote positive drainage or the intended use of such area, as determined with the issuance of the right-of-way permit.

(c) The application for a right-of-way permit, together with the required fees and other charges, shall be filed with the Building department on a form prescribed and furnished for that purpose. The application shall describe the nature of the proposed construction or improvements, the right-of-way location, and such other information as may be required by the city Engineer or designee.

(d) Notice to the city. Prior to any excavation in any public right-of-way for any purpose whatsoever, the applicant and/or the contiguous property owner shall call to locate any underground facilities in accordance with Chapter 556, Florida Statutes. In addition, all city registrants must be members of Sunshine State One Call of Florida, Inc. (Sunshine 811) or any successor alert and warning system in order to protect and locate their underground facilities. ' Sec. 62-5. Placement of structures; landscaping.

(a) Obstructions prohibited. No person shall block, fence, or in any way attempt to appropriate to their own use any right-of-way, public street, or sidewalk within the city; provided, however, that the temporary, interim, or partial closure of any parkway, arterial, and collector as defined in Section 78-498 of the Code of Ordinances may be approved by resolution of the city Council and the temporary, interim, or partial closure of any local, industrial, cul-de-sac, and marginal access as defined in Section 78-498 of the Code of Ordinances may be approved pursuant to a Special Event Permit pursuant to Section 78-187, a right-of-way permit pursuant to Section 62-4, or administratively if the city finds that such closure serves a public purpose.

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(b) Certain placements prohibited. Any landscaping, aboveground sprinkler systems, signs, concrete blocks, cement curbstones, or any other structures or objects that are determined by the city Engineer or designee to create road or traffic hazards, injury to pedestrians, or alteration of the intended storm water flow in the swale area or other public right-of-way shall be removed, unless specifically authorized by the city through the issuance of a right-of-way permit.

(c) Approved structures. The following structures are approved for placement in the Public swales and rights-of-way and do not require a right-of-way permit:

Sec. 62-6.

(1) United States Postal Service (USPS) approved mailboxes and mailbox posts, installed in accordance with the USPS Postmaster rules and specifications.

(2) Traffic Control Devices and/or signs approved by the city.

(3) City-approved modular news racks and slabs, installed in accordance with Article V, Division 14 of the city's Land Development Regulations.

(4) Turnouts and culverts, where necessary, approved by the city in accordance with Section 62-146 of the Code of Ordinances.

Relocation of facilities and reservation of the city's rights.

(a) The city reserves the right to excavate and lay, or permit to be laid, sewer, gas, water, electric, storm drainage, telecommunications, and other pipelines or cables or conduit, and to install and to permit to be installed any underground installation or improvement that may be deemed necessary or proper by the city in, across, along, over, or under any public right-of-way. The city, as well as its contractors and subcontractors, shall, in accordance with Chapter 556, Florida Statutes, call Sunshine State One Call of Florida, Inc. (Sunshine 811), or its successor alert and warning system, prior to any such excavation.

(b) The city reserves the right to change, or cause to be changed, the grading, installation, relocation, or width of city streets and sidewalks. Upon receipt of notice from the city that such changes in the public right-of-way will necessitate the relocation of any poles, wires, cables, anchors, manholes, conduits, hardscape, landscape, and/or other facilities or appurtenances, the registrant, and/or the contiguous property owner, whether individually or through a property owner's association, shall relocate, at its own expense in accordance with Section 337.403, Florida Statutes, said facilities in order to accommodate the installation, relocation, widening, or changing of the grade of any city streets or sidewalks. Said relocation may include, but not be limited to, the relocating of such poles, wires, cables, anchors, manholes, conduits, hardscape, landscape, and/or other facilities or appurtenances a sufficient distance from the edge of the pavement to permit a reasonable work area for machinery and personnel engaged in installing, relocating, widening, or changing the grade of any such street or sidewalk. Should the registrant, and/or the contiguous property owner, whether individually or through a property owner's association, fail to comply with such notice, said facilities may be relocated by the city, and the expense thereof, until paid in full, shall be recorded as a lien upon the contiguous property.

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Sec. 62-7. Right-of-way blockage prohibited.

The blocking, filling, altering, or obstructing of any swale, drainage course, stream, canal, canal maintenance platform, retention or detention areas, or any type of storm water management area in a manner which alters the intended and designed use of the facility, whether the facility is located on a public right-of-way, a dedicated easement, or private property, is strictly prohibited unless specifically authorized by the city via applicable permit.

Sec. 62-8. Failure to pave or restore.

Upon completion of the installation of a turnout or any construction, alteration, or maintenance work in a public right-of-way, the contiguous property owner shall restore the public right-of-way to a safe condition in accordance with the original design and with the city's standard specifications for said right-of-way. The contiguous property owner shall, at its own expense, repair or replace any other property altered, disturbed, or damaged as a result of said activities in the public right-of-way.

Sec. 62-9. Boating and bathing.

(a) The operation of motorized watercraft is prohibited in any city-owned canal or lake. Motorized watercraft performing maintenance activities or repairs are exempt. Use of nonmotorized watercraft may be permissible in accordance with Section 46-12 of the Code of Ordinances.

(b) It shall be unlawful for any person to bathe or swim in any city canal or lake.

Sees. 62-10-62-30. Reserved.

ARTICLE II. STREETS

DIVISION 1. GENERALLY

Sec. 62-31. Depositing dangerous materials.

No person shall knowingly or willfully break, place, or leave any glass or other dangerous substance or material upon any of the streets, alleys, or other public rights-of- way of the city with the exception of recycling material as specified in Section 54-58 of the Code of Ordinances.

Sec. 62-32. Crossing gates and signals.

Crossing gates and signals shall s9tisfy Federal Railroad Administration requirements.

Sees. 62-33-62-50. Reserved.

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1 DIVISION 2. ADMINISTRATION. 2 3 Sec. 62-51 . Supervision of work. 4 5 In the construction of any street improvement or related structure, the work shall be 6 supervised by a qualified engineer or representative who shall also be present during the 7 construction to establish alignment and grade elevations necessary to construct the work in 8 accordance with the approved plans and specifications. 9

10 Sec. 62-52. Surety. 11 12 (a) If requested by the city engineer or designee, prior to the approval of any street 13 improvement or related structure, the owner or developer shall furnish a surety, in accordance 14 with Section 78-461 of the Code of Ordinances, guaranteeing that within 12 months the work 15 shall be entirely completed in full accordance with the approved plan of improvement and the 16 provisions of this chapter, copies of both of which shall be attached to and constitute a part of 17 the surety agreement. The surety shall be obtained from a responsible surety company 18 agreeable by the city's finance department. 19 20 (b) No surety shall be required of a homeowner or business owner who desires to 21 make sidewalk, driveway, curb, or similar improvement in the street adjacent to their property. 22 However, the improvement shall, in every other respect, conform to the minimum requirements 23 for the construction. 24 25 Sec. 62-53. Maintenance assumed by city. 26 27 After the completion of any city-owned roadway construction in accordance with the 28 approved plans and minimum requirements as set forth in Sections 78-488 through 78-501 of 29 the Code of Ordinances within a public right-of-way, and after the issuance of a Certificate of 30 Completion , the maintenance of the roadway portion only shall be the responsibility of the city. 31 The city shall not take ownership or maintenance responsibility of any roadway improvements 32 that do not comply with Sections 78-488 through 78-501 of the Code of Ordinances unless 33 approved through the city's Neighborhood Improvement Assessment Prqgram. 34 35 Sees. 62-54-62-75. Reserved. 36 37 ARTICLE Ill. EXCAVATIONS 38 39 DIVISION 1. PERMIT. 40 41 Sec. 62-76. Required; fees. 42 43 (a) Before any person shall make an excavation in, upon, or across any paved public 44 or private road , public or private street, swale, canal, or other public way, other than a sidewalk, 45 within the city, that person shall apply to the city for a permit, and pay therefore the sum on file 46 for permit and inspection fees. 47 48

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1 (b) No person shall undertake to improve, alter, or modify any public right-of-way 2 without first obtaining a public right-of-way area permit from the city. 3 4 (c) Any work performed within a public right-of-way shall meet the requirements to 5 promote positive drainage or the intended use of such area, as determined with the issuance 6 of the public right of way area permit. 7 8 (d) Acceptance of a public right-of-way permit by the applicant shall constitute 9 acceptance of all obligations pertaining thereto, and the applicant shall be held responsible for

1 0 fulfilling all of the requirements thereof. 11 12 (e) The application for permit, together with the required fees and other charges, 13 shall be filed with the Building department on a form prescribed and furnished for that purpose. 14 The application shall describe the nature of the proposed construction or improvements, the 15 public right-of-way location, and such other information as may be required by the Building 16 department. 17 18 (f) Notice to the city. Prior to any excavation in any public right-of-way for any 19 purpose whatsoever, the applicant and/or the contiguous land owner, whether individually or 20 through a property owner's association, must call to locate any underground facilities in 21 accordance with Chapter 556, Florida Statutes. In addition, all city registrants must be 22 members of Sunshine State One Call of Florida, Inc. (1-800-432-4770) or any successor alert 23 and warning system in order to protect and locate their underground facilities.= 24 25 Sees. 62-77-62-97. Reserved. 26 27 DIVISION 2. REQUIREMENTS 28 29 Sec. 62-98. Replacing subgrade and pavement. 30 31 (a) When any person makes an excavation in, upon, or across any paved road, 32 street, or other public way, other than a sidewalk, within the city, such person shall repair the 33 same by stabilizing the subgrades immediately under the street base and bring the newly 34 repaired/constructed section of the road to today's standards per Section 78-499 of the Code 35 of Ordinances or as approved by the city engineer or designee. 36 37 (b) Flexible pavement shall be constructed in accordance with the Section 78-498 of 38 the Code of Ordinances. 39 40 Sec. 62-99. Compliance with street specifications. 41 42 Any excavation made in, upon, or across any road, street, or other public right-of-way 43 built in accordance with the provisions of Sections 78-488 through 78-530 of the Code of 44 Ordinances shall be repaired in accordance with the requirements of those sections. 45 Depending on the condition of the existing stabilization and pavement, the city engineer or 46 designee may require the base or flexible pavement sections to exceed those requirements 47 listed in Section 78-499 of the Code of Ordinances for open cuts within a publicly-owned right-48 of-way.

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1 Sec. 62-100. Inspections; orders to remedy violations. 2 3 The building division and/or the engineering department may enter upon any premises 4 or area, upon reasonable notice, in order to inspect the correction of any condition found to be 5 in violation of the provisions of this article. 6 7 Sees. 62-101-62-144. Reserved. 8 9 ARTICLE IV. SPECIFICATIONS

10 11 Sec. 62-145. Street specifications. 12 13 All streets within the City of Palm Beach Gardens shall be designed and constructed in 14 conformance with Sections 78-488 through 78-530 of the Code of Ordinances. In the absence 15 of the specific specifications in these minimum requirements, all streets shall be designed and 16 constructed with sound engineering practices to the design, quality of materials, and the details 17 of construction procedure. The Florida Department of Transportation shall be a reliable 18 reference for design and construction procedure, and specifications, if applicable. All design, 19 construction, and repair of roadways within the city shall be approved by the city engineer or 20 designee. 21 22 Sec. 62-146. Turnouts. 23 24 (a) All turnouts shall be constructed in accordance with Section 79-5 (3) of the Code 25 of Ordinances. The minimum width shall be nine feet for turnouts to residences and the 26 required paved alley width for turnouts to alleys. The thickness of the concrete paving for 27 residential turnouts shall be four inches with ten-gauge six-by-six-inch wire mesh or six inches 28 without mesh, and alley turnouts shall be six inches with ten-gauge six-by-six-inch wire mesh. 29 30 (b) The subgrade at residential turnouts shall not require stabilization other than 31 wetting and hand-tamping. The subgrade at alley turnouts shall be stabilized to the 32 requirements for secondary streets. 33 34 (c) Turnouts shall be constructed to preserve and conform to the cross section of the 35 drainage swales. 36 37 (d) Culverts may be permitted, where necessary, at turnouts in streets constructed 38 to these minimum requirements. In certain cases, the public services director or city engineer 39 or their designees may allow the installation of culverts where applicable. The applicant must 40 prove that the typical drainage cross section cannot be achieved. 41 42 (e) Where practicable, turnouts shall be located at a distance from street 43 intersections that shall not require traffic to cross the circular return at the corner of the street 44 intersection. 45 46 (f) Turnouts shall join the street pavement with returns having six-foot radii or with 47 wedges having four-foot minimum dimensions. 48

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1 Sec. 62-147. Landscaping and maintenance in public rights-of-way. 2 3 (a) Landscaping in county and state roads. Any primary or secondary street that is 4 part of the state highway system or county road system shall comply with the city's roadway 5 beautification plan, Section 78-324 of Article V of the supplementary district regulations, at the 6 time of construction and/or as approved by city council through a development order or other 7 agreement. The city's roadway beautification plan shall be in addition to the FOOT manual of 8 uniform minimum standards for design, construction, and maintenance for streets and 9 highways (Green Book current edition) and Palm Beach County's streetscape standard.

10 11 (b) Landscaping in city roads. Any public right-of-way to be dedicated or conveyed 12 to the City of Palm Beach Gardens or dedicated as a public access easement after May 1, 13 2002, shall conform to the Palm Beach County's streetscape standard and the city's roadway 14 beautification plan, Section 78-324, of Article V of the supplementary district regulations, or a 15 design approved by the city council through a development order or separate agreement. 16 17 (c) Traffic control for landscape installation and maintenance. Traffic control for 18 landscape installation and maintenance for public roads or public access easements shall 19 adhere to current FOOT standard specifications for road and bridge construction and roadway, 20 traffic design standards, index 600, and the manual on uniform traffic control devices. Section 21 78-329, entitled maintenance, of Article V of the supplementary district regulations shall be the 22 maintenance standard for all landscaped areas within roadways. 23 24 Sees. 62-148-62-188. Reserved. 25 26 ARTICLE V. PLACEMENT OF COMMUNICATIONS FACILITIES IN 27 PUBLIC RIGHTS-OF-WAY 28 29 Sec. 62-189. Title. 30 31 This article shall be known and may be cited as the City of Palm Beach Gardens 32 Communications Rights-of-Way Ordinance. 33 34 Sec. 62-190. Intent and purpose. 35 36 It is the intent of the city to promote the public health, safety and general welfare by: 37 providing for the placement or maintenance of communications facilities in the public rights-of-38 way within the city; adopting and administering reasonable rules and regulations not 39 inconsistent with state and federal law, including Section 337.401 , Florida Statutes, as it may 40 be amended, the city's home-rule authority, and in accordance with the provisions of the 41 Federal Telecommunications Act of 1996 and other ·federal and state law; establishing 42 reasonable rules and regulations necessary to manage the placement or maintenance of 43 communications facilities in the public rights-of-way by all communications services providers; 44 and minimizing disruption to the public rights-of-way. In regulating its public rights-of-way, the 45 city shall be governed by and shall comply with all applicable federal and state laws. 46 47 48

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1 Sec. 62-191. Definitions. 2 3 For purposes of this article, the following terms, phrases, words, and their derivations 4 shall have the meanings given. Words not otherwise defined shall be construed to mean the 5 common and ordinary meaning. 6 7 Abandonment means the permanent cessation of all uses of a communications facility; 8 provided that this term shall not include cessation of all use of a facility within a physical 9 structure where the physical structure continues to be used. By way of example, and not

10 limitation, cessation of all use of a cable within a conduit, where the conduit continues to be 11 used, shall not be "abandonment" of a facility in public rights-of-way. 12 13 City means the City of Palm Beach Gardens, Florida. 14 15 Communications services means the transmission, conveyance or routing of voice, 16 data, audio, video, or any other information or signals to a point, or between or among points, 17 by or through any electronic, radio, satellite, cable, optical, microwave, or other medium or 18 method now in existence or hereafter devised, regardless of the protocol used for such 19 transmission or conveyance. Notwithstanding the foregoing , for purposes of this article "cable 20 service", as defined in Section 202.11 (2), Florida Statutes, as it may be amended, is not 21 included in the definition of "communications services," and cable service providers may be 22 subject to other ordinances of the city. 23 24 Communications services provider means any person, including a municipality or 25 county, providing communications services through the placement or maintenance of a 26 communications facility in public rights-of-way. This definition shall also include any person, 27 including a municipality or county, that places or maintains a communications facility in public 28 rights-of-way but does not provide communications services. 29 30 Communications facility or facility or system means any permanent or temporary plant, 31 equipment, and property, including, but not limited to, cables, wires, conduits, ducts, fiber 32 optics, poles, antennae, converters, splice boxes, cabinets, hand holes, manholes, vaults, 33 drains, surface location markers, appurtenances, and other equipment or pathway placed or 34 maintained or to be placed or maintained in the public rights-of-way of the city and used or 35 capable of being used to transmit, convey, route, receive, distribute, provide or offer 36 communications services. 37 38 FCC means the Federal Communications Commission. 39 40 In public rights-of-way or in the public rights-of-way means in, on, over, under, or across 41 the public rights-of-way. 42 43 Person shall include any individual, firm, association, joint venture, partnership, estate, 44 trust, business trust, syndicate, fiduciary, corporation, organization or legal entity of any kind, 45 successor, assignee, transferee, personal representative, and all other groups or 46 combinations, and shall include the city to the extent the city acts as a communications services 47 provider. 48

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------------------------------- - ------------- -~·--


1 Place or maintain or placement or maintenance or placing or maintaining means to erect, 2 construct, install, maintain, place, repair, extend, expand, remove, occupy, locate, or relocate. 3 A communications services provider that owns or exercises physical control over 4 communications facilities in public rights-of-way, such as the physical control to maintain and 5 repair, is "placing or maintaining" the facilities. A person providing service only through resale 6 or only through use of a third party's unbundled network elements is not "placing or maintaining" 7 the communications facilities through which such service is provided. The transmission and 8 receipt of radio frequency signals through the airspace of the public rights-of-way does not 9 constitute "placing or maintaining" facilities in the public rights-of-way.

10 11 Public rights-of-way means a public right-of-way, public utility easement, highway, 12 street, bridge, tunnel, or alley for which the city is the authority that has jurisdiction and control 13 and may lawfully grant access pursuant to applicable law, and includes the surface, the air 14 space over the surface, and the area below the surface. "Public rights-of-way" shall not include 15 private property. "Public rights-of-way" shall not include any real or personal city property, 16 except as described above, and shall not include city buildings, fixtures, poles, conduits, 17 facilities, or other structures or improvements, regardless of whether they are situated in the 18 public rights-of-way. 19 20 Registrant means a communications services provider that has registered with the city 21 in accordance with the provisions of this article. 22 23 Registration or register means the process described in this article whereby a 24 communications services provider provides certain information to the city. 25 26 Sec. 62-192. Registration for placing or maintaining communications facilities in 27 public rights-of-way. 28 29 (a) A communications services provider that desires to place or maintain a 30 communications facility in public rights-of-way in the city shall first register with the city's 31 building department in accordance with this article. Subject to the terms and conditions 32 prescribed in this article, a registrant may place or maintain a communications facility in public 33 rights-of-way. 34 35 (b) A registration shall not convey any title, equitable or legal, to the registrant in the 36 public rights-of-way. Registration under this article governs only the placement or maintenance 37 of communications facilities in public rights-of-way. Other ordinances, codes, or regulations 38 may apply to the placement or maintenance in the public rights-of-way of facilities that are not 39 communications facilities. -Registration does not excuse a communications services provider 40 from obtaining appropriate access or pole attachment agreements before locating its facilities 41 on the city's or another entity's facilities. Registration does not excuse a communications 42 services provider from complying with all applicable city ordinances, codes, or regulations, 43 including this article. 44 45 (c) Each communications services provider that desires to place or maintain a 46 communications facility in public rights-of-way in the city shall file a single registration with the 47 city, which shall include the following information: 48

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1 (1) Name of the applicant; 2 3 (2) Name, address, and telephone number of the applicant's primary contact 4 person in connection with the registration, and the person to contact in case 5 of an emergency; 6 7 (3) For registrations submitted prior to October 1, 2001 , the applicant shall state 8 whether it provides local service or toll service or both; 9

10 (4) Evidence of the insurance coverage required under this article and 11 acknowledgment that the registrant has received and reviewed a copy of 12 this ordinance, which acknowledgment shall not be deemed an agreement; 13 14 (5) The number of the applicant's certificate of authorization or license to 15 provide communications services issued by the Florida Public Service 16 Commission, the Federal Communications Commission, or other federal or 17 state authority, if any; and 18 19 (6) For an applicant that does not provide a Florida Public Service Commission 20 certificate of authorization number, if the applicant is a corporation, proof of 21 authority to do business in the State of Florida, such as the number of the 22 certificate from or filing with the Florida Department of State. 23 24 (d) The city shall review the information submitted by the applicant. Such review 25 shall be by the city engineer and the public services director or their designees. If the applicant 26 submits information in accordance with subsection (c) above, the registration shall be effective, 27 and the city shall notify the applicant of the effectiveness of the registration in writing. If the 28 city determines that the information has not been submitted in accordance with subsection (c) 29 above, the city shall notify the applicant, in writing, of the non-effectiveness of the registration, 30 and reasons for the non-effectiveness. The city shall so reply to an applicant within 30 days 31 after receipt of registration information from the applicant. Non-effectiveness of registration 32 shall not preclude an applicant from filing subsequent applications for registration under the 33 provisions of this section. An applicant has 30 days after receipt of a notice of non-34 effectiveness of registration to appeal the decision as provided in Section 62-196 of the Code 35 of Ordinances. 36 37 (e) A registrant may cancel a registration upon written notice to the city stating that 38 it will no longer place or maintain any communications facilities in public rights-of-way within 39 the city and will no longer need to obtain permits to perform work in public rights-of-way. A 40 registrant cannot cancel a registration if the registrant continues to place or maintain any 41 communications facilities in public rights-of-way. 42 43 (f) Registration does not in and of itself establish a right to place or maintain, or the 44 priority for the placement or maintenance of a communications facility in public rights-of-way 45 within the city but shall establish for the registrant a right to apply for a permit. Registrations 46 are expressly subject to any future amendment to or replacement of this article and further 47 subject to any additional city ordinances, as well as any state or federal laws that may be 48 enacted.

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1 (g) A registrant shall renew its registration with the city's building department by April 2 1 of even numbered years in accordance with the registration requirements in this article, 3 except that a registrant that initially registers during the even numbered year when renewal 4 would be due or the odd numbered year immediately preceding such even numbered year shall 5 not be required to renew until the next even numbered year. Within 30 days of any change in 6 the information required to be submitted pursuant to subsection (c), except, as of October 1, 7 2001 , subsection (c)(3), a registrant shall provide updated information to the city. If no 8 information in the then-existing registration has changed, the renewal may state that no 9 information has changed. Failure to renew a registration may result in the city restricting the

10 issuance of additional permits until the communications services provider has complied with 11 the registration requirements of this article. 12 13 (h) An effective registration shall be a condition of obtaining a permit. 14 Notwithstanding an effective registration, permitting requirements shall apply. A permit may 15 be obtained by or on behalf of a registrant having an effective registration if all permitting 16 requirements are met. 17 18 Sec. 62-193. Notice of transfer, sale, or assignment of assets in public rights-of-way. 19 20 If a registrant transfers , sells, or assigns its assets located in public rights-of-way incident 21 to a transfer, sale, or assignment of the registrant's assets, the transferee, buyer, or assignee 22 shall be obligated to comply with the terms of this article. Written notice of any such transfer, 23 sale, or assignment shall be provided by such registrant to the city's building department within 24 20 days after the effective date of the transfer, sale, or assignment. If the transferee, buyer, or 25 assignee is a current registrant, then the transferee, buyer, or assignee is not required to re-26 register. If the transferee, buyer, or assignee is not a current registrant, then the transferee, 27 buyer, or assignee shall register as provided in Section 62-192 within 60 days of the transfer, 28 sale, or assignment. If permit applications are pending in the registrant's name, the transferee, 29 buyer, or assignee shall notify the building official that the transferee, buyer, or assignee is the 30 new applicant after the requirements of this section are satisfied. 31 32 Sec. 62-194. Placement or maintenance of a communications facility in public rights-33 of-way. 34 35 (a) A registrant shall at all times comply with and abide by all applicable provisions 36 of the state and federal law and city ordinances, codes, and regulations in placing or 37 maintaining a communications facility in public rights-of-way. 38 39 (b) A registrant shall not commence to place or maintain a communications facility in 40 public rights-of-way until all applicable permits, if any, have been issued by the city or other 41 appropriate authority, except in the case of an emergency. The term "emergency" shall mean 42 a condition that affects the public's health, safety, or welfare, which includes an unplanned out-43 of-service condition of a pre-existing service. The registrant shall provide prompt notice to the 44 city of the placement or maintenance of a communications facility in public rights-of-way in the 45 event of an emergency and shall be required to obtain an after-the-fact permit if a permit would 46 have originally been required to perform the work undertaken in public rights-of-way in 47 connection with the emergency. The registrant acknowledges that, as a condition of granting 48 such permits, the city may impose reasonable rules or regulations governing the placement,

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1 relocation, or maintenance of a communications facility in public rights-of-way. Permits shall 2 apply only to the areas of public rights-of-way specifically identified in the permit. The city may 3 issue a blanket permit to cover certain activities, such as routine maintenance and repair 4 activities that may otherwise require individual permits. 5 6 (c) As part of any permit application to place a new or replace an existing 7 communications facility in public rights-of-way, the registrant shall provide the following: 8 9 (1) The location of the proposed facilities, including a description of the facilities to be

1 0 installed, where the facilities are to be located, and the approximate size of the 11 facilities that will be located in public rights-of-way; 12 13 (2) A description of the manner in which the facility will be installed (i.e. anticipated 14 construction methods or techniques); 15 16 (3) A maintenance of traffic plan for any disruption of the public rights-of-way, in 17 accordance with the standards promulgated by the Florida Department of 18 Transportation; 19 20 (4) Information on the ability of the public rights-of-way to accommodate the proposed 21 facility, if available (such information shall be provided without certification as to 22 correctness, to the extent obtained from other persons); 23 24 (5) If appropriate, given the facility proposed, a certified estimate of the cost of 25 restoration to the public rights-of-way, subject to approval by the city engineer or 26 designee; 27 28 (6) The timetable for construction of the project, or each phase thereof, and the areas 29 of the city which will be affected; and 30 31 (7) Such additional information as the city finds reasonably necessary with respect to 32 the placement or maintenance of the communications facility that is the subject of 33 the permit application to review such permit application. 34 35 (d) To the extent not otherwise prohibited by state or federal law, the city shall have 36 the power to prohibit or limit the placement of new or additional communications facilities within 37 a particular area of public rights-of-way. 38 39 (e) All communications facilities shall be placed or maintained so as not to 40 unreasonably interfere with the use of the public rights-of-way by the public and with the rights 41 and convenience of property owners who adjoin any of the public rights-of-way. The use of 42 trench less technology (i.e. , directional bore method) for the installation offacilities in the public 43 rights-of-way, as well as joint trenching or the co-location of facilities in existing conduit, is 44 strongly encouraged and should be employed wherever feasible. The building official, public 45 service director and city engineer or their designees may promulgate reasonable rules and 46 regulations concerning the placement or maintenance of a communications facility in public 47 rights-of-way consistent with this article and other applicable law. 48

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1 (f) All safety practices required by applicable law or accepted industry practices and 2 standards shall be used during the placement or maintenance of communications facilities. 3 4 (g) After the completion of any placement or maintenance of a communications 5 facility in public rights-of-way or each phase thereof, a registrant shall, at its own expense, 6 restore the public rights-of-way to their original condition before such work. If the registrant 7 fails to make such restoration within 30 days, or such longer period of time as may be 8 reasonably required under the circumstances, following the completion of such placement or 9 maintenance, the city may perform restoration and charge the costs of the restoration against

10 the registrant in accordance with Section 337.402, Florida Statutes, as it may be amended. 11 For 12 months following the original completion of the work, the registrant shall guarantee its 12 restoration work and shall correct, at its own expense, any restoration work that does not satisfy 13 the requirements of this article. 14 15 (h) Removal or relocation at the direction of the city of a registrant's communications 16 facility in public rights-of-way shall be governed by the provisions of Sections 337.403 and 17 337.404, Florida Statutes, as they may be amended. 18 19 (i) A permit from the city constitutes authorization to undertake only certain activities 20 in public rights-of-way in accordance with this article, and does not create a property right or 21 grant authority to impinge upon the rights of others who may have an interest in the public 22 rights-of-way. 23 24 G) A registrant shall maintain its communications facility in public rights-of-way in a 25 manner consistent with accepted industry practice and applicable law. 26 27 (k) In connection with excavation in the public rights-of-way, a registrant shall, where 28 applicable, comply with the Underground Facility Damage Prevention and Safety Act set forth 29 in Chapter 556, Florida Statutes, as it may be amended. 30 31 (I) The registrant shall use and exercise due caution, care, and skill in performing 32 work in the public rights-of-way and shall take all reasonable steps to safeguard work-site 33 areas. 34 35 (m) Upon the request of the city, and as notified by the city of the other work, 36 construction, installation, or repairs referenced below, a registrant may be required to 37 coordinate placement or maintenance activities under a permit with any other work, 38 construction, installation, or repairs that may be occurring or scheduled to occur within a 39 reasonable time frame in the subject public rights-of-way, and the registrant may be required 40 to reasonably alter its placement or maintenance schedule as necessary so as to minimize 41 disruptions and disturbance in the public rights-of-way. 42 43 (n) A registrant shall not place or maintain its communications facilities so as to 44 interfere with, displace, damage, or destroy any facilities, including, but not limited to, sewers, 45 gas or water mains, storm drains, pipes, cables, or conduits of the city or any other entity's 46 facilities lawfully occupying the public rights-of-way of the city. 47 48

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1 (o) The city makes no warranties or representations regarding the fitness, suitability, 2 or availability of the city's public rights-of-way for the registrant's communications facilities, and 3 any performance of work, costs incurred, or services provided by the registrant shall be at the 4 registrant's sole risk. Nothing in this article shall affect the city's authority to add, vacate, or 5 abandon public rights-of-way, and the city makes no warranties or representations regarding 6 the availability of any added, vacated, or abandoned public rights-of-way for communications 7 facilities. 8 9 (p) The city shall have the right to make such inspections of communications facilities

10 placed or maintained in public rights-of-way as it finds necessary to ensure compliance with 11 this article. 12 13 (q) A permit application to place a new or replace an existing communications facility 14 in public rights-of-way shall include plans showing the location of the proposed installation of 15 facilities in the public rights-of-way. If the plans so provided require revision based upon actual 16 installation, the registrant shall promptly provide revised plans. The plans shall be in a hard 17 copy format or an electronic format specified by the city, provided such electronic format is 18 maintained by the registrant. Such plans in a format maintained by the registrant shall be 19 provided at no cost to the city. 20 21 (r) The city reserves the right to place and maintain, and permit to be placed or 22 maintained, sewer, gas, water, electric, storm drainage, communications, and other types of 23 facilities, cables, or conduit, and to do, and to permit to be done, any underground and 24 overhead installation or improvement that may be deemed necessary or proper by the city in 25 public rights-of-way occupied by the registrant. The city further reserves without limitation the 26 right to alter, change, or cause to be changed the grading, installation, relocation, or width of 27 the public rights-of-way within the limits of the city and within said limits as same may from time 28 to time be altered. Should the registrant be required to relocate its facilities in conjunction with 29 such installation and alteration, the registrant shall be required to pay all costs associated with 30 such relocation. 31 32 (s) A registrant shall, on the request of any person holding a permit issued by the 33 city, temporarily raise or lower its communications facilities to permit the work authorized by 34 the permit. The expense of such temporary raising or lowering of facilities shall be paid by the 35 person requesting the same, and the registrant shall have the authority to require such payment 36 in advance. The registrant shall be given not less than 30 days' advance written notice to 37 arrange for such temporary relocation. 38 39 (t) A wireless facility that is a portion of a communication facility, such as an antenna 40 ("wireless facility(ies)"), which is attached to a legally maintained vertical structure in the public 41 rights-of-way, such as a light pole or utility pole ("vertical structure(s)"), shall be subject to the 42 following criteria: 43 44 (1) Such wireless facilities may not extend more than 20 feet above the highest point 45 of the vertical structure; 46 47 48

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1 (2) Such wireless facilities that are attached to a vertical structure located in public 2 rights-of-way that is 15 feet or less in width and is located adjacent to real property 3 used as a single-family residence shall be flush mounted to the vertical structure; 4 5 (3) Such wireless facilities shall not have any type of lighted signal, lights, or 6 illuminations unless required by an applicable federal, state, or local rule, 7 regulation, or law; 8 9 (4) Such wireless facilities shall comply with any applicable Federal Communications

10 Commission Emissions Standards; 11 12 (5) The design, construction, and installation of such wireless facilities shall comply 13 with any applicable local building codes; 14 15 (6) No commercial advertising shall be allowed on such wireless facilities; and 16 17 (7) Any accessory equipment and related housing in the public rights-of-way that are 18 used in conjunction with such a wireless facility shall comply with any applicable 19 local rules, regulations, ordinances, or laws governing the placement and design 20 of such equipment. 21 22 (u) Vertical structures, such as towers, having a sole purpose to serve as a mounting 23 device for antennae, are expressly prohibited from being placed in the public rights-of-way. 24 25 Sec. 62-195. Suspension of permits. 26 27 (a) The city may suspend a permit for work in the public rights-of-way for one or more 28 of the following reasons, subject to Section 62-196 of this article: 29 30 (1) Violation of permit conditions, including conditions set forth in the permit, this 31 article, or other applicable city ordinances, codes, or regulations governing 32 placement or maintenance of communications facilities in public rights-of-way; 33 34 (2) Misrepresentation or fraud by registrant in a registration or permit application to 35 the city; 36 37 (3) Failure to properly renew or ineffectiveness of the registration; or 38 39 (4) Failure to relocate or remove facilities as may be lawfully required by the city. 40 41 (b) The building official shall provide notice and an opportunity to cure any violation 42 of (1) through (4) above, each of which shall be reasonable under the circumstances. 43 44 Sec. 62-196. Appeals. 45 46 Final, written decisions of the building official or designee suspending or denying a 47 permit, denying an application for a registration, or denying an application for renewal of a 48 registration are subject to appeal. An appeal must be filed with the building official within 30

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days of the date of the final, written decision to be appealed. Any appeal not timely filed as set forth above shall be waived. The planning, zoning, and appeals board shall hear the appeal as set forth in article II, Section 13 of the city's land development regulations. The hearing shall occur within 45 days of the receipt of the appeal, unless waived by the registrant, and a written decision shall be rendered within 20 days of the hearing. Upon correction of the grounds that gave rise to a suspension or denial, the suspension or denial shall be lifted.

Sec. 62-197. Involuntary termination of registration.

(a) The city may terminate a registration if:

(1) A federal or state authority suspends, denies, or revokes a registrant's certification or license to provide communications services;

(2) The registrant's placement or maintenance of a communications facility in the public rights-of-way presents an extraordinary danger to the general . public or other users of the public rights-of-way, and the registrant fails to remedy the danger promptly after receipt of written notice; or

(3) The registrant ceases to use all of its communications facilities in public rightsof-way and has not complied with Section 62-203 of this article.

(b) Prior to termination, the registrant shall be notified by the city engineer or designee with a written notice setting forth all matters pertinent to the proposed termination action, including which of (1) through (3) above is applicable as the reason therefor, and describing the proposed action of the city with respect thereto. The registrant shall have 60 days after receipt of such notice within which to address or eliminate the reason or within which to present a plan satisfactory to the city engineer or designee to accomplish same. If the plan is rejected , the city engineer or designee shall provide written notice of such rejection to the registrant and shall make a recommendation to the city council regarding a decision as to termination of registration. A decision by a city to terminate a registration may only be accomplished by an action of the city council. A registrant shall be notified by written notice of any decision by the city council to terminate its registration. Such written notice shall be sent within seven days after the decision.

(c) In the event of termination, the former registrant shall:

(1) Notify the city of the assumption or anticipated assumption by another registrant of ownership of the registrant's communications facilities in public rights-of-way; or

(2) Provide the city with an acceptable plan for disposition of its communications facilities in public rights-of-way. If a registrant fails to comply with this subsection (c), which determination of non-compliance is subject to appeal as provided in Section 62-196, the city may exercise any remedies or rights it has at law or in equity, including, but not limited to, taking possession of the facilities where another person has not assumed the ownership or physical control of the facilities or requiring the registrant within 90 days of the termination, or such longer period

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1 as may be agreed to by the registrant, to remove some or all of the facilities from 2 the public rights-of-way and restore the public rights-of-way to their original 3 condition before the removal. 4 5 (d) In any event, a terminated registrant shall take such steps as are necessary to 6 render safe every portion of the communications facilities remaining in the public rights-of-way 7 of the city. 8 9 (e) In the event of termination of a registration, this section does not authorize the

1 0 city to cause the removal of communications facilities used to provide another service for which 11 the registrant or another entity that owns or exercises physical control over the facilities holds 12 a valid certification or license with the governing federal or state agency, if required for provision 13 of such service, and is registered with the city, if required . 14 15 Sec. 62-198. Existing communications facilities in public rights-of-way. 16 17 A communications services provider with an existing communications facility in the 18 public rights-of-way of the city has 60 days from the effective date of this article to comply with 19 the terms of this article, including, but not limited to, registration, or be in violation thereof. 20 21 Sec. 62-199. Insurance. 22 23 (a) A registrant shall provide, pay for, and maintain satisfactory to the city the types 24 of insurance described herein. All insurance shall be from responsible companies duly 25 authorized to do business in the State of Florida and having a rating reasonably acceptable to 26 the city. All liability policies shall provide that the city is an additional insured as to the activities 27 under this article. The required coverages must be evidenced by properly executed certificates 28 of insurance forms. The certificates must be signed by the authorized representative of the 29 insurance company and shall be filed and maintained with the city annually. Thirty days' 30 advance written notice by registered, certified mail, or facsimile must be given to the city of any 31 cancellation, intent not to renew, or reduction in the policy coverages. The insurance 32 requirements may be satisfied by evidence of self-insurance or other types of insurance 33 acceptable to the city. 34 35 (b) The limits of coverage of insurance required shall be not less than the following : 36 37 (1) Workers' Compensation and Employer's Liability Insurance Workers' 38 Compensation-Florida Statutory Requirements Employer's Liability-39 $1,000,000.00 limit each accident. 40 41 (2) Comprehensive General Liability Bodily injury and property damage--42 $1 ,000,000.00 combined single limit each occurrence. 43 44 (3) Automobile Liability Bodily injury and property damage--$1 ,000,000.00 combined 45 single limit each accident. 46 47 48

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Sec. 62-200. Indemnification.

(a) A registrant shall, at its sole cost and expense, indemnify, hold harmless, and defend the city, its officials, boards, members, agents, and employees against any and all claims, suits, causes of action, proceedings, judgments for damages or equitable relief, and costs and expenses incurred by the city arising out of the placement or maintenance of its communications system or facilities in public rights-of-way, regardless of whether the act or omission complained of is authorized , allowed, or prohibited by this article; provided, however, that a registrant's obligation hereunder shall not extend to any claims caused by the negligence, gross negligence, or wanton or willful acts of the city. This provision includes, but is not limited to, the city's reasonable attorneys' fees incurred in defending against any such claim, suit, or proceedings. The city agrees to notify the registrant, in writing, within a reasonable time of the city receiving notice of any issue it determines may require indemnification. Nothing in this section shall prohibit the city from participating in the defense of any litigation by its own counsel and at its own cost if in the city's reasonable belief there exists or may exist a conflict, potential conflict, or appearance of a conflict. Nothing contained in this section shall be construed or interpreted: (a) as denying to either party any remedy or defense available to such party under the laws of the State of Florida; or (b) as a waiver of sovereign immunity beyond the waiver provided in Section 768.28, Florida Statutes, as it may be amended.

(b) The indemnification requirements shall survive and be in effect after the termination or cancellation of a registration.

Sec. 62-201. Construction surety.

(a) Prior to issuing a permit where the work under the permit will require restoration of public rights-of-way, the city may require a construction surety to secure the restoration of the public rights-of-way. Notwithstanding the foregoing , a construction surety hereunder may only be required to the extent that the cost of the restoration exceeds the amount recoverable against the security fund as provided in Section 62-202.

(1) Twelve months after the completion of the restoration in public rights-of-way in accordance with the surety, the registrant may eliminate the surety. However, the city may subsequently require a new surety for any subsequent work in the public rights-of-way.

(2) The construction surety shall be issued by a surety having a rating reasonably acceptable to the city; shall be subject to the approval of the finance director and city attorney; and shall provide that: "For 12 months after issuance of this surety, this surety may not be canceled , or allowed to lapse, until 60 days after receipt by the city, by certified mail, return receipt requested , of a written notice from the issuer of the surety of intent to cancel or not to renew."

(b) The rights reserved by the city with respect to any construction surety established pursuant to this section are in addition to all other rights and remedies the city may have under this article, or at law or equity.

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1 (c) The rights reserved to the city under this section are in addition to all other rights 2 of the city, whether reserved in this article or authorized by other law, and no action, 3 proceeding, or exercise of a right with respect to the construction surety will affect any other 4 right the city may have. 5 6 Sec. 62-202. Security fund. 7 8 (a) At or prior to the time a registrant receives its first permit to place or maintain a 9 communications facility in public rights-of-way after the effective date of this article, the

10 registrant may be required to file with the city, for city approval, an annual surety, cash deposit, 11 or irrevocable letter of credit in the sum equal to $50,000.00, having a surety a company 12 qualified to do business in the State of Florida, and acceptable to the finance director and city 13 attorney, which shall be referred to as the "security fund." 14 15 (b) The security fund shall be maintained from such time through the earlier of: 16 17 (1) The transfer, sale, assignment, or removal of all communications facilities in 18 public rights-of-way; or 19 20 (2) Twelve months after the termination or cancellation of any registration. 21 22 (c) The security fund shall be conditioned on the full and faithful performance by the 23 registrant of all requirements, duties, and obligations imposed upon the registrant by the 24 provisions of this article. The security fund shall be furnished annually or as frequently as 25 necessary to provide a continuing guarantee of the registrant's full and faithful performance at 26 all times. In the event a registrant fails to perform its duties and obligations imposed upon the 27 registrant by the provisions of this article, subject to Section 62-206 of this article, there shall 28 be recoverable, jointly and severally from the principal and surety of the security fund, any 29 damages or loss suffered by the city as a result, including the full amount of any compensation, 30 indemnification or cost of removal, relocation or abandonment of any facilities of the registrant 31 in public rights-of-way, plus a reasonable allowance for attorneys' fees, up to the full amount of 32 the security fund. 33 34 Sec. 62-203. Abandonment of a communications facility. 35 36 (a) Upon abandonment of a communications facility owned by a registrant in public 37 rights-of-way, the registrant shall notify the city within 90 days. 38 39 (b) The city may direct the registrant by written notice to remove all or any portion of 40 such abandoned facility at the registrant's sole expense if the city determines that the 41 abandoned facility's presence interferes with the public health, safety, or welfare, which shall 42 include, but shall not be limited to, a determination that such facility: (a) compromises safety at 43 any time for any public rights-of-way user or during construction or maintenance in public rights-44 of-way; (b) prevents another person from locating facilities in the area of public rights-of-way 45 where the abandoned facility is located when other alternative locations are not reasonably 46 available; or (c) creates a maintenance condition that is disruptive to the use of the public rights-47 of-way. In the event of (b), the city may require the third person to coordinate with the registrant 48 that owns the existing facility for joint removal and placement, where agreed to by the registrant.

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1 (c) In the event the city does not direct the removal of the abandoned facility, the 2 registrant, by its notice of abandonment to the city, shall be deemed to consent to the alteration 3 or removal of all or any portion of the facility by the city or another person at such third party's 4 cost. 5 6 (d) If the registrant fails to remove all or any portion of an abandoned facility as 7 directed by the city within a reasonable time period as may be required by the city under the 8 circumstances, the city may perform such removal and charge the cost of the removal against 9 the registrant.

10 11 Sec. 62-204. Force majeure. 12 13 In the event a registrant's performance of or compliance with any of the provisions of 14 this article is prevented by a cause or event not within the registrant's control, such inability to 15 perform or comply shall be deemed excused, and no penalties or sanctions shall be imposed 16 as a result; provided, however, that such registrant uses all practicable means to expeditiously 17 cure or correct any such inability to perform or comply. For purposes of this article, causes or 18 events not within a registrant's control shall include, without limitation, acts of God, floods, 19 earthquakes, landslides, hurricanes, fires and other natural disasters, acts of public enemies, 20 riots or civil disturbances, sabotage, strikes, and restraints imposed by order of a governmental 21 agency or court. Causes or events within the registrant's control, and thus not falling within 22 this section, shall include, without limitation, the registrant's financial inability to perform or 23 comply, economic hardship, and misfeasance, malfeasance, or nonfeasance by any of 24 registrant's directors, officers, employees, contractors, or agents. 25 26 Sec. 62-205. Reservation of rights and remedies. 27 28 (a) The city reserves the right to amend this article as it shall find necessary in the 29 lawful exercise of its police powers. 30 31 (b) This article shall be applicable to all communications facilities placed in the public 32 rights-of-way on or after the effective date of this article and shall apply to all existing 33 communications facilities in the public rights-of-way prior to the effective date of this article, to 34 the full extent permitted by state and federal law. 35 36 (c) The adoption of this article is not intended to affect any rights or defenses of the 37 city or a communications services provider under any existing franchise, license, or other 38 agreements with a communications services provider. 39 40 (d) Nothing in this article shall affect the remedies the city or the registrant has 41 available under applicable law. 42 43 (e) Any person who uses the communications facilities of a registrant, other than the 44 registrant that owns the facilities, shall not be entitled to any rights to place or maintain such 45 facilities in excess of the rights of the registrant that places or maintains the facilities. 46 47 48

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1 Sec. 62-206. Enforcement authority. 2 3 It shall be unlawful for any person to violate the provisions of this chapter or fail to comply 4 with any of its requirements. Any person who violates this chapter or who fails to comply with 5 any of its requirements shall be subject to the provisions of this article, as well as the provisions 6 of Chapter 2, Article IV of the City Code of Ordinances. 7 8 9 (The remainder of this page intentionally left blank)

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