311

BY COMMISSIONER _________________

ORDINANCE NO. ___________

AN ACT TO BE ENTITLED

AN ORDINANCE OF PASCO COUNTY, FLORIDA, AMENDING SECTION 311, RIGHT-OF-WAY USE PERMITS, OF THE PASCO COUNTY LAND DEVELOPMENT CODE, ORDINANCE 89-21, AS AMENDED; PROVIDING FOR AUTHORITY AND POWER; PROVIDING FOR RECITALS; PROVIDING FOR CREATION OF SECTION 311.11 RELATING TO SPECIFIC POLICIES AND REQUIREMENTS FOR BENCHES WITHIN PUBLIC RIGHTS-OF-WAY AND PROHIBITING TRANSIT SHELTERS WITHIN PUBLIC RIGHTS-OF-WAY; PROVIDING FOR VIOLATIONS, FINES AND PENALTIES, REMEDIES AND PROSECUTION; PROVIDING FOR SEVERABILITY; PROVIDING FOR INCLUSION IN CODE; PROVIDING FOR MODIFICATION THAT MAY ARISE FROM CONSIDERATION OF THE ORDINANCE AT PUBLIC HEARING; AND PROVIDING FOR AN EFFECTIVE DATE.

WHEREAS, Florida Statute Section 337.408, gives county government the right to control benches or transit shelters within the right-of-way limits of any county or state road, except a limited access highway, within the unincorporated limits of the county provided that written authorization from the county is given prior to any bench or transit shelter being installed within said right-of-way limits; and

WHEREAS, Pasco County has enacted a right-of-way use permit ordinance, Ordinance 89- 21, as amended, through which it gives written authorization for certain installations within county rights-of-way; and

WHEREAS, Pasco County’s right-of-way use permit ordinance authorizes permits for county rights-of-way only; and

WHEREAS, Pasco County has not authorized and, is not authorizing through this amendment, transit shelters to be placed within any public rights-of-way within the unincorporated limits of the county; and

WHEREAS, Pasco County desires to amend its right-of-way use permit ordinance to authorize and establish specific policies and requirements for right-of-way use permits for benches within public rights-of-way, except limited access highways, within unincorporated Pasco County; and

WHEREAS, Pasco County has pursuant to its right-of-way use permit ordinance issued right-of-way use permits for benches within certain county rights-of-way; and

WHEREAS, Pasco County’s right-of-way use permit ordinance specifically provides that a permit issued thereunder “is a license for permissive use only and that the placing of facilities upon public property pursuant to this permit shall not operate to create or to vest any property right in said holder:” and

WHEREAS, Pasco County’s right-of-way use permit ordinance also specifically reserves the right for Pasco County to decide to further exploit the county rights-of-way and require the immediate removal of the facilities including benches authorized thereunder; and

WHEREAS, Pasco County desires to further exploit county rights-of-way by setting forth specific policies and requirements for benches within public rights-of-way and to further amend its rights-of-way use permit ordinance to reflect same.

NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF COUNTY COMMISSIONERS OF PASCO COUNTY, FLORIDA:

Section 1.

Authority and Power

Pursuant to the Constitution of the State of Florida and through Florida Statutes Chapter 125.66 and 337.408 the Board of County Commissioners is vested with the authority to adopt the following amendments to the Pasco County Land Development Code, Section 311, Ordinance 89-21 as amended.

Section 2.

Recitals

The foregoing recitals are true and correct and are incorporated herein.

Section 3.

Section 311.11 is hereby created as follows.

311.11

Benches within Public Rights-of-Way: Specific Policies and Requirements.

Definitions.

(1)

Bus stop means a designated stop on an official bus route as designated and approved by the Department for buses to stop for the purpose of loading and unloading passengers.

(2)

Department means the Pasco County Public Transportation Department (PCPT).

(3)

Manager means the Pasco County Public Transportation Manager.

(4)

Permittee means an individual, firm, partnership, or corporation, or combination thereof who 1) has a valid contract with the County to provide benches at authorized bus stops; and 2) has a permit for the placement of a bench in the right-of-way at an approved bus stop.

(5)

Right(s)-of-Way means any right, title, or interest in or to real property, or the use thereof acquired by the County or the State of Florida or the public and utilized for passage or travel.

Applicability.

The following specific policies and requirements pertain to benches within the rights-of-way in unincorporated areas of Pasco County and are in addition to all other requirements of Section 311, Right-Of-Way Use Permits, of the Land Development Code. Benches owned by Pasco County are exempt from the policies and requirements of Section 311.

Permittable Benches; Transit Shelters Not Permitted.

(1)

No bench shall be placed, permitted to be placed, or maintained within rights-of-way in unincorporated Pasco County unless the bench is at an approved bus stop, the owner of the bench has a valid contract with the Board of County commissioners for the placement of benches within the rights-of-way, and the owner has a valid right-of-way use permit for the bench from the County. No transit shelters shall be placed or permitted to be placed within rights-of-way in unincorporated Pasco County.

(2)

Any non-permitted bench or any transit shelter within the rights-of-way may be immediately removed by the County without notice to the owner and is deemed abandoned property and may be disposed of by the County in any manner the County finds appropriate. The owner of the bench or transit shelter shall reimburse the County for all reasonable expenses associated with the removal and disposal.

Specific Permit Procedures.

(1)

Pasco County Public Transportation Department duties.

Maintain a list of approved bus stops.

Collect applications and fees and issue permits for benches pursuant to the provisions of this Section 311.11 and Article 311 of the Land Development Code and maintain appropriate files regarding same.

Assign each permit an exclusive identification number to be displayed on the corresponding bench.

Notify a Permittee when an approved bus stop is deleted and that the permit for the corresponding bench is considered cancelled. The Department shall also track the removal of said bench pursuant to Section G.

Perform any other duties as assigned by the County Administrator.

(2)

Applications and fees.

Each bench within rights-of-way in unincorporated Pasco County shall require a separate application, available from the Department, a separate permit and shall meet the requirements of Section 311.11 and all other requirements of Article 311 of the Land Development Code, as amended.

The applicant must have a valid contract with the Board of County Commissioners for the placement of benches within the rights-of-way.

No bench shall be placed at any bus stop prior to obtaining a permit.

When a bench is placed by an applicant, person, or entity at a bus stop prior to obtaining a permit, the applicant, person, or entity shall be ~~required by the Department to pay a double permit fee~~ prohibited from obtaining a permit for that bus stop and the bench shall be removed immediately. e.

Permit fee amounts shall be set by resolution, as amended from time to time, of the Board of County Commissioners and shall be paid by the applicant upon submission of the permit application(s).

Permit Requirements.

(1)

Location requirements.

Benches shall only be permitted to be placed and maintained within the right-of-way at approved bus stops.

No bench shall be permitted to be placed or placed so as to obstruct the clear sight triangle or the clear zone. In order to be permitted, the location of the bench must be in accordance with the Florida Department of Transportation Manual of Uniform Standards. If due to the requirements of the Florida Department of Transportation Manual of Uniform Minimum Standards or other requirements of this ordinance or the Land Development Code the bench cannot be located within five feet of the bus stop sign, the bench shall not be permitted at that bus stop.

All benches shall be positioned at all times parallel to the public right-of-way.

Only one (1) bench shall be permitted at each approved bus stop.

No bench shall be permitted to be placed or placed so as to protrude into or hang over a sidewalk.

Benches may be permitted to be placed at approved bus stops within the right-of-way limits of state roads, except limited access highways, pursuant to the provisions and requirements of this Section 311.11 and Article 311 of the Land Development Code.

Failure to place or maintain the bench at the permitted location and/or to comply with these location requirements shall constitute cause for cancellation of the permit and removal of the bench as provided herein.

(2)

Construction and design requirements. Benches shall conform to the following approved standards and specifications:

shall not exceed 72 inches in length, 16 inches in depth, 41 inches in height from the ground to the top of the back panel, and 16 inches in height from the ground to the seat; and

shall be constructed of sturdy materials; and

shall be placed on a cement pad if required by the County; and

the advertisement area on a bench shall be limited to the lower 18 inches of the back board area and advertisements shall not appear elsewhere on a bench; and

each bench displaying advertisement shall display advertisement for no more than one entity ; and

the upper 6 (six) inches of the back board of each bench shall be reserved for displaying the street address of the closest parcel to the bench in clearly painted block numbers a minimum of 5 (five) inches in height; and

no bench, including the advertisement located thereon, shall display fluorescents colors, reflective materials or paints, or any other features prohibited by Section 601.4 of the Land Development Code.

Failure to comply with these construction and design requirements shall constitute cause for cancellation of the permit and removal of the bench as provided herein.

(3)

Maintenance requirements. The Permittee shall maintain each bench in a good state of repair and appearance. The Permittee shall keep the area surrounding each bench free of debris, high grass, weeds, and other rubbish for a radius of seven (7) feet from the center of the bench. Failure to comply with these maintenance requirements shall constitute cause for cancellation of the permit and removal of the bench as provided herein.

(4)

Identification requirements. Each bench shall display the name and business telephone number of the Permittee and identification number of said bench on the rear of the back board. Failure to comply with these identification requirements shall constitute cause for cancellation of the permit and removal of the bench as provided herein.

(5)

Insurance requirements. The Permittee shall procure and maintain for the duration of the permit insurance as provided herein. The cost of such insurance shall be borne by the Permittee. Failure to comply with these insurance requirements shall constitute cause for cancellation of the permit and removal of the bench as provided herein.

Permittee shall not place any bench within rights-of-way or perform any work within public rights-of-way until it has obtained all insurance required herein and such insurance has been approved by the County as provided herein.

Permittee shall furnish certificate(s) of insurance on the form required by the County to the Department. The certificate(s) shall clearly indicate the Permittee has obtained insurance of the type, amount, and classification required for strict compliance with this agreement and that no reduction in coverage or in limits, suspension, or cancellation of the insurance shall be effective without thirty (30) days prior written notice as provided below. The certificate(s) shall be signed by a person authorized by that insurer to bind coverage on its behalf. The County reserves the right to require complete, certified copies of all required policies, at any time. Each insurance policy required by this agreement shall be endorsed to state that coverage shall not be suspended, voided, canceled, reduced in coverage or in limits except after thirty (30) days prior written notice by certified mail, return receipt requested, has been given to the County to the attention of the Department. In the event the insurance coverage expires prior to the termination or end of this agreement, a renewal certificate shall be issued thirty (30) days prior to said expiration date. Compliance with the foregoing requirements shall not relieve Permittee of its liability and obligations. Neither approval by the County nor a failure to disapprove insurance certificates or policies furnished by Permittee shall release the Permittee of full responsibility for all liability or its obligations.

All insurance policies shall be issued by responsible companies authorized to do business under the laws of the State of Florida, have an "A" policyholders' rating, have a financial rating of at least Class VIII in accordance with the most current Best's Key Rating Guide and shall be satisfactory to the County. All policies of insurance required herein shall be primary insurance as respects the County, its officials, agents and employees. Any insurance or self-insurance maintained by the County, its officials, agents or employees shall be excess of the Permittee’s insurance and shall not contribute with it. All policies of insurance required herein, except workers' compensation, shall specifically provide that the County shall be an "additional insured" under the policy and shall contain a Severability of Interests provision. All insurance policies required herein shall apply to all operations, activities, or use by Permittee or by anyone employed by or contracting with Permittee. The insurance coverages and limits provided herein are designated to meet the minimum requirements of the County. Any deductibles or self-insured retentions must be declared to and approved by the County and are the responsibility of the Permittee. The minimum kinds and limits of coverage to be carried by Permittee shall be as follows:

Workers' Compensation and Employer's Liability:

If Permittee falls under the State of Florida Workers' Compensation Law, Permittee shall provide coverage for all employees. The coverage shall be for the statutory limits in compliance with the applicable State and Federal laws. The policy must include employer's liability with a limit of $100,000 each accident. The insurer shall agree to waive all rights of subrogation against the County, its officials, agents and employees for losses relating to or in connection with the permit and/or arising from the premises.

Comprehensive General Liability:

Shall include premises and/or operations, broad form property damage, independent contractors, and contractual liability, and shall be written on an "occurrence basis."

Bodily injury and personal injury,

including death

- $1,000,000 each person

- $2,000,000 aggregate

Property damage

- $1,000,000 each occurrence

- $2,000,000 aggregate

Additional Conditions.

The County specifically reserves the right to add additional conditions to a right-of-way use permit. Further, it is a condition of every permit issued and every Permittee expressly agrees to and stipulates that the permit is a license for a permissive use only and may be cancelled at any time for any reason or no reason and that the placing of any facilities, including but not limited to benches, within the right-of-way pursuant to the permit shall not operate to create or vest any property right in said permit holder.

Cancellation.

(1)

Permits may be canceled at any time for any reason or no reason by the Manager or the County Administrator, or his designee, including but not limited to, the Permittee no longer having a valid contract with the Board of County Commissioners for placement of bench(es) within rights-of-way or deletion of the bus stop. Failure to comply with any of the terms, conditions or requirements of this Section 311.11, Article 311 of the Land Development Code or the permit shall constitute cause for cancellation of the permit.

(2)

A notice of cancellation shall be mailed by the Manager or the County Administrator, or his designee, to the Permittee at the address on file with the Department which shall be deemed sufficient notice of cancellation.

(3)

The Permittee shall remove the bench for which the permit is canceled within thirty (30) days of the date on said notice.

(4)

In the event the Permittee objects to the cancellation, the Permittee shall have the right to request an appeal of the cancellation within thirty (30) days of the date on said notice. The request for appeal shall be filed with the Department. The appeal shall be to the Board of County Commissioners pursuant to provision Section 317 of the Land Development Code, except that the decision of the Board need not be rendered in writing.

(5)

In the event that the cancellation of the permit is upheld, the bench for which the permit is canceled shall be removed within ten (10) days of the decision of the Board.

(6)

Failure to remove a bench after the cancellation of a permit within the time periods set forth herein shall result in said bench being deemed abandoned and said bench may be removed by the County and disposed of in any manner the County finds appropriate. The Permittee shall reimburse the County for all reasonable expenses associated with the removal and disposal of said bench.

Section 4.

Violations, Fines and Penalties, Remedies and Prosecution.

Fines, penalties, remedies and prosecution for any violation of this ordinance shall be pursuant to section 3 of this ordinance, the Pasco County Code of Ordinances, including Section 1-11, as amended, and the Pasco County Uniform Citation Schedule, as amended. Each violation of this ordinance shall be a separate offense.

Section 5.

Severability

If any section, sentence, clause, or phrase of this ordinance is held invalid or unconstitutional by any court of competent jurisdiction, then said holding shall in no way affect the validity of the remaining portions of this ordinance.

Section 6.

Inclusion into Pasco County Land Development Code

It is the intent of the Board of County Commissioners that the provisions of this ordinance shall become and be made part of the Pasco County Land Development Code and that the sections of this ordinance may be renumbered or re-lettered.

Section 7.

Modification

It is the intent of the Board of County Commissioners that the provisions of this ordinance may be modified as a result of considerations that may arise during public hearings. Such modifications shall be incorporated into the final version of the ordinance adopted by the Board and filed by the Clerk to the Board pursuant to Section 8.

Section 8.

Effective Date

A certified copy of this ordinance shall be filed with the Department of State by the Clerk to the Board within ten (10) days after adoption of this ordinance, and this ordinance shall take effect upon filing with the Department of State.

ADOPTED this _____ day of ______________________________, 2002.

(S E A L)

ATTEST:

BOARD OF COUNTY COMMISSIONERS

OF PASCO COUNTY, FLORIDA

_______________________________

_______________________________________

JED PITTMAN, CLERK

ANN HILDEBRAND, CHAIRMAN

APPROVED AS TO LEGAL FORM AND SUFFICIENCY

OFFICE OF THE COUNTY ATTORNEY

BY: ________________________________________________

ATTORNEY

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