BY COMMISSIONER____________________ ORDINANCE NO. ________
PASCO COUNTY, FLORIDA
AN ORDINANCE OF THE BOARD OF COUNTY COMMISSIONERS OF PASCO COUNTY, FLORIDA; CREATING CHAPTER 27, ENTITLED “PASCO COUNTY COMMUNICATIONS RIGHTS OF WAY ORDINANCE”; REGULATING THE USE OF PUBLIC RIGHTS-OF-WAY FOR COMMUNICATIONS FACILITIES; PROVIDING DEFINITIONS; PROVIDING FOR REGISTRATION AND PERMIT PROCEDURES; PROVIDING CONDITIONS FOR PLACEMENT AND MAINTENANCE OF COMMUNICATIONS FACILITIES IN RIGHTS-OF-WAY; PROVIDING FOR INSURANCE AND INDEMNIFICATION; PROVIDING PENALTIES FOR VIOLATION; PROVIDING FOR CONFLICTS; PROVIDING FOR A SAVINGS CLAUSE, A SEVERABILITY CLAUSE, INCLUSION IN THE CODE, AND AN EFFECTIVE DATE.
WHEREAS, the Board of County Commissioners of Pasco County has determined that it is in the public interest to permit the placement of one or more communications systems or facilities in the public rights-of-way; and
WHEREAS, effective January 1, 2001, the State of Florida amended Section 337.401, Florida Statutes, to reflect that, because Federal and State law require the nondiscriminatory treatment of providers of communications services and because of the desire to promote competition among providers of communications services, it is the intent of the Legislature that local governments treat communications companies in a nondiscriminatory and competitively neutral manner when imposing rules or regulations governing the placement or maintenance of communications facilities in the public roads or rights-of-way. Rules or regulations imposed by local governments relating to communications companies placing or maintaining communications facilities in its roads or rights-of-way must be generally applicable to all communications companies and, notwithstanding any other law, may not require a communications company to apply for or enter into an individual license, franchise or other agreement with the local government as a condition of placing or maintaining communications facilities in its roads or rights-of-way; and
WHEREAS, it is the intent of Pasco County (“County”) to exercise its authority over communications services providers' placement and maintenance of facilities in the public rights-of-way; and
WHEREAS, it is the intent of the County to treat each communications services provider in a nondiscriminatory and competitively neutral manner in exercising such authority; and
WHEREAS, the public rights-of-way subject to the jurisdiction and control of the County: (1) are critical to the travel of persons and the transport of goods and other tangibles in the business and social life of the community by all citizens; (2) are a unique and physically limited resource, and proper management by the County is necessary to maximize efficiency, to minimize the costs to the taxpayers of the foregoing uses and to minimize the inconvenience to and negative effects upon the public from the placement and maintenance of such communications facilities in the public rights-of-way; and (3) are intended for public uses and must be managed and controlled consistently with that intent; and
WHEREAS, it is the intent of the County that this Ordinance shall not apply to providers of cable television service; and
WHEREAS, it is the intent of the County to exercise its authority to adopt reasonable rules and regulations to the fullest extent allowed by Federal and State law; and
WHEREAS, pursuant to law, appropriate notice has been given by publication in a paper of general circulation in the County, notifying the public of this proposed ordinance and of a public hearing in the Chambers of the Board of County Commissioners of Pasco County; and
WHEREAS, pursuant to Section 337.401, Florida Statutes, notice of this proposed Ordinance has been provided to the Secretary of State at least fifteen (15) days prior to consideration on first reading; and
WHEREAS, a public hearing before the Board of County Commissioners was held pursuant to the published notice described above, at which hearing the parties in interest and all other citizens so desiring had an opportunity to be and were, in fact, heard;
NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF COUNTY COMMISSIONERS OF PASCO COUNTY, FLORIDA, THAT:
Section 1. The foregoing WHEREAS clauses are hereby adopted and incorporated herein as if fully set forth in this Section.
Section 2. Chapter 27 of the Code of Pasco County, Florida, is hereby created to read as follows:
Section 27-1. Short Title. This Article shall be known and may be cited as the “Pasco County Communications Rights-of-Way Ordinance.”
It is the intent of the County and the purpose of this Article to promote the public health, safety and general welfare by: providing for the placement and maintenance of Communications Facilities in the Public Rights-of-Way within the County; adopting and administering reasonable rules and regulations consistent with State and Federal law, including Section 337.401, Florida Statutes, as it may be amended, the County’s home-rule authority, and in accordance with the provisions of the Federal Telecommunications Act of 1996 and other Federal and State law; establishing reasonable rules and regulations necessary to manage the placement and maintenance of Communications Facilities in the Public Rights-of-Way by all Communications Services Providers after the effective date of this Ordinance; and minimizing disruption to the Public Rights-of-Way. In regulating its Public Rights-of-Way, the County shall be governed by and shall comply with all applicable Federal and State laws.
Section 27-3. Definitions.
That for the purposes of this Article, the following terms, phrases, words and derivations shall have the meanings given. Where consistent with the context, words used in the present tense include the future tense, words in the plural number include the singular number, and words in the singular number include the plural number. The words "shall" and "will" are mandatory, and "may" is permissive. Words not otherwise defined in this section or in any permit that may be granted pursuant to this Article shall be given the meaning set forth in the Communications Act of 1934, 47 U.S.C. § 151 et seq., as amended (collectively the “Communications Act”), and if not defined in the Communications Act, as defined by Florida Statutes; and, if not defined by Florida Statutes, shall be construed to mean the common and ordinary meaning.
1. "County" shall mean Pasco County, Florida.
2. "Communications Services" shall mean the transmission, conveyance or routing of voice, data, audio, video, or any other information or signals to a point, or between or among points, by or through any electronic, radio, satellite, cable, optical, microwave, or other medium or method now in existence or hereafter devised, regardless of the protocol used for such transmission or conveyance. Cable service, as defined in Section 202.11(2), Florida Statutes, as it may be amended, is not included in the definition of "Communications Services" and cable service providers or providers of service via an open video system may be subject to other ordinances of the County and shall require separate authorization from the County.
3. "Communications Services Provider" shall mean any Person making available or providing Communications Services through the placement or maintenance of a Communications Facility in Public Rights-of-Way.
4. "Communications Facility" or "Facility" or "System" shall mean any permanent or temporary plant, equipment and property, including but not limited to cables, wires, conduits, ducts, fiber optics, poles, antennae, converters, splice boxes, cabinets, hand holes, manholes, vaults, drains, surface location markers, appurtenances, and other equipment or pathway placed or maintained or to be placed or maintained in the Public Rights-of-Way of the County and used or capable of being used to transmit, convey, route, receive, distribute, provide or offer Communications Services. Pursuant to Section 337.401(6)(c), Florida Statutes, the term “Communications Facility” for purposes of this ordinance, shall not include communications facilities owned, operated, or used by electric utilities or regional transmission organizations exclusively for internal communications purposes.
5. “FCC” shall mean the Federal Communications Commission.
6. "In Public Rights-of-Way" or "in the Public Rights-of-Way" shall mean in, on, over, under or across the Public Rights-of-Way.
7. “Ordinance” shall mean this Ordinance.
8. “Pass Through Provider” shall mean a person who places or maintains a communications facility in the roads or rights-of-way of the County and who does not remit taxes imposed by the County pursuant to Chapter 202, Florida Statutes.
9. "Person” shall include any individual, firm, association, joint venture, partnership, estate, trust, business trust, syndicate, fiduciary, corporation, organization or legal entity of any kind, successor, assignee, transferee, personal representative, and all other groups or combinations, and but shall not include the County to the extent permitted by applicable law.
10. “Place or maintain” or “placement or maintenance” or “placing or maintaining” shall mean to erect, construct, install, maintain, place, repair, extend, expand, remove, occupy, locate or relocate. A Communications Services Provider that owns or exercises physical control over Communications Facilities in Public Rights-of-Way, such as the physical control to maintain and repair, is “placing or maintaining” the Facilities. A party providing service only through resale or only through use of a third party’s unbundled network elements is not “placing or maintaining” the Communications Facilities through which such service is provided. The transmission and receipt of radio frequency signals through the airspace of the Public Rights-of-Way is not placing or maintaining Facilities in the Public Rights-of-Way.
11. “Public Rights-of-Way” shall mean a public right-of-way, public utility easement, highway, street, bridge, tunnel, pier, waterway, dock, wharf, court, lane, path, or alley or any other property for which the County is the authority that has jurisdiction and control and may lawfully grant access to such property pursuant to applicable law, and includes the surface, the air space over the surface and the area below the surface to the extent the County holds a property interest therein. "Public Rights-of-Way" shall not include private property. "Public Rights-of-Way" shall not include any real or personal County property except as described above and shall not include County buildings, fixtures, poles, conduits, facilities or other structures or improvements, regardless of whether they are situated in the Public Rights-of-Way.
12. “Registrant” or “Facility Owner” shall mean a Communications Services Provider or other person that has registered with the County in accordance with the provisions of this Ordinance.
13. “Registration” and “Register” shall mean the process described
in this Ordinance whereby a Communications Services Provider provides certain
information to the County.
Section 27-4. Registration For Placing Or Maintaining Communications Facilities In Public Rights-Of-Way.
1. A Communications Services Provider that desires to place or maintain a Communications Facility in Public Rights-of-Way in the County shall first Register with the County in accordance with this Ordinance. Subject to the terms and conditions prescribed in this Ordinance, a Registrant may place or maintain a Communications Facility in Public Rights-of-Way. A Communications Services Provider with an existing Communications Facility in the Public Rights-of-Way of the County as of the Effective Date of this Ordinance has 120 days from the Effective Date of this Ordinance to comply with the terms of this Ordinance, including, but not limited to, Registration, or be in violation thereof.
2. A Registration shall not convey any title, equitable or legal, in the Public Rights-of-Way. Registration under this Ordinance governs only the placement or maintenance of Communications Facilities in Public Rights-of-Way. Registration does not excuse a Communications Services Provider from obtaining appropriate access or pole attachment agreements before locating its Facilities on the County’s or another Person’s Facilities. Registration does not excuse a Communications Services Provider from complying with all applicable law, including County ordinances, codes or regulations, including this Ordinance.
3. Each Communications Services Provider that desires to place or maintain a Communications Facility in Public Rights-of-Way in the County shall file an original Registration along with two (2) complete copies with the County that shall include the following information:
(a) Name of the applicant;
(b) Name, address and telephone number of the applicant’s primary contact person in connection with the Registration.
(c) Evidence of the insurance coverage required under this Ordinance and acknowledgment that Registrant has received and reviewed a copy of this Ordinance, and
(d) A copy of Federal or State Certification authorizing the applicant to provide Communications Services, if any;
(e) If the applicant is a corporation and does not submit a State Certification pursuant to (d), proof of authority to do business in the State of Florida, which may be satisfied by the number of the corporate certification or other means; and
(f) A Security Fund in accordance with this Ordinance.
4. The County shall review the information submitted by the applicant. If the applicant submits information in accordance with subsection 3 above, the Registration shall be effective and the County shall notify the applicant of the effectiveness of Registration in writing. If the County determines that the information has not been submitted in accordance with subsection 3 above, the County shall notify the applicant in writing of the non-effectiveness of Registration, and reasons for the non-effectiveness. The County shall so notify an applicant within thirty (30) days after receipt of registration information from the applicant.
5. A Registrant may cancel a Registration upon written notice to the County that the Registrant will no longer place or maintain any Communications Facilities in Public Rights-of-Way and will no longer need to obtain permits to perform work in the Public Rights-of-Way. A Registrant cannot cancel a Registration if the Registrant continues to place or maintain any Communications Facilities in Public Rights-of-Way.
6. Registration shall be nonexclusive. Registration shall not establish any right or priority to place or maintain a Communications Facility in any particular area in Public Rights-of-Way within the County. Registrations are expressly subject to any future amendment to or replacement of this Ordinance and further subject to any additional County ordinances, as well as any State or Federal laws that may be enacted.
7. A Registrant shall renew its Registration with the County by April 1 of even numbered years in accordance with the Registration requirements in this Ordinance, except that a Registrant that initially registers during the even numbered year when renewal would be due or the odd numbered year immediately preceding such even numbered year shall not be required to renew until the next even numbered year. Within thirty (30) days of any change in the information required to be submitted pursuant to subsection 3, a Registrant shall provide updated information to the County. If no information in the then-existing Registration has changed, the renewal may state that no information has changed. Failure to renew a Registration may result in the County restricting the issuance of additional permits until the Communications Services Provider has complied with the Registration requirements of this Ordinance.
8. In accordance with applicable County ordinances, codes or regulations and this Ordinance, a permit shall be required of a Communications Services Provider that desires to place or maintain a Communications Facility in Public Rights-of-Way. An effective Registration shall be a condition of obtaining a permit. Notwithstanding an effective Registration, permitting requirements shall continue to apply. A permit may be obtained by or on behalf of a Registrant having an effective Registration if all permitting requirements are met.
9. Compensation.
(a) A Registrant that places or maintains Communications Facilities in the Public Rights-of-Way shall be required to pay compensation to the County as required by applicable law and ordinances or resolutions of the County.
(b) A Registrant that places or maintains Communications Facilities in the Public Rights-of-Way, but does not pay the communications services tax pursuant to Florida law, including a Pass Through Provider, that has a written agreement with the County that allows the placement and maintenance of communications facilities in the rights-of-way shall pay to the County the fee as specified in any such agreement, until its termination or expiration.
(c) Registrants that do not pay the communications services tax, including pass through providers, that do not have a current written agreement specifying the fee to be paid to the County for the placement and maintenance of communications facilities in the rights-of-way, shall pay to the County, on an annual basis $500 per linear mile of facilities placed in the Public Rights-of-Way. Such Registrant shall make the first payment to the County prior to obtaining any permits based on the length of facilities to be permitted in the County’s Public Rights-of-Way. The Registrant shall thereafter pay the County the fee for placing facilities in the Public Rights-of-Way annually in the same month that the Registrant first obtained its permit. The County may increase the amount charged to Registrants that place communications facilities in the Public Rights-of-Way but do not pay Florida’s communications services tax, including pass through providers, if Florida law allows the County to charge a higher fee for use of the Public Rights-of-Way. Unless otherwise specified in a written agreement, the amounts charged by the County to a pass through provider pursuant to this subsection shall be based on the linear miles or linear feet of rights-of-way where the communications facility is placed, and shall not be based on the summation of lengths or individual cables, conduits, strands, or fibers. The County shall charge a fee for each communications facility to only one pass through provider.
(d) The County may suspend or withhold permits, and pursue any other remedy available under applicable law including this Ordinance, if a Registrant has not made the appropriate payments as required by this Section.
10. A Registrant must provide the County with information enabling the County to contact appropriate Registrant’s personnel in emergency situations, or when Registrant’s construction or equipment has caused damage to other property.
(a) The Registrant shall provide the County with the name, address, and telephone number of a contact person to provide the County and its residents with information regarding the Registrant’s Communications Facilities in the Public Rights-of-Way, and who shall accept and coordinate any damage claims. Such information shall be updated as necessary by the Registrant to provide the County with current and accurate information.
(b) A Registrant shall provide the County with a current telephone number available and monitored twenty-four (24) hours per day, every day, by Registrant, to be utilized by the County in case of an emergency.
Section 27-5. Placement Or Maintenance Of Communications Facilities In Public Rights-Of-Way.
1. Registrant agrees at all times to comply with and abide by all applicable provisions of Federal and State law and County ordinances, codes and regulations in placing or maintaining a Communications Facility in Public Rights-of-Way.
2. A Registrant shall not commence to place or to maintain a Communications Facility in Public Rights-of-Way until the County or other appropriate authority has issued all applicable permits, except in the case of an emergency. The term "emergency" shall mean a condition that affects the public’s health, safety or welfare, which includes an unplanned out-of-service condition of a pre-existing service. Registrant shall provide prompt notice to the County of the placement or maintenance of a Communications Facility in Public Rights-of-Way in the event of an emergency. Registrant acknowledges that as a condition of granting such permits, the County may impose reasonable rules or regulations governing the placement or maintenance of a Communications Facility in Public Rights-of-Way. Permits shall apply only to the areas of Public Rights-of-Way specifically identified in the permit. The County may issue a blanket permit to cover certain activities, such as routine maintenance and repair activities, that may otherwise require individual permits or may impose lesser requirements.
3. As part of any permit application to place a new or to replace an existing Communications Facility in Public Rights-of-Way, the Registrant shall provide information concerning the Communications Facility that sets forth at least the following:
(a) An engineering plan signed and sealed by a Florida Registered Professional Engineer, or prepared by a person who is exempt from such registration requirements as provided in Section 471.003, Florida Statutes, identifying the location of the proposed Facility, including a description of the Facilities to be installed, its length in feet, where it is to be located, and the approximate size of Facilities and equipment that will be located in Public Rights-of-Way;
(b) A description of the manner in which the Facility will be installed (i.e. anticipated construction methods and/or techniques);
(c) A traffic maintenance plan for any disruption of the Public Rights-of-Way;
(d) Information on the ability of the Public Rights-of-Way to accommodate the proposed Facility, if available (such information shall be provided without certification as to correctness, to the extent obtained from other persons with Facilities in the Public Rights-of-Way);
(e) If appropriate given the Facility proposed, an estimate of the cost of restoration to the Public Rights-of-Way;
(f) The timetable for construction of the project or each phase thereof, and the areas of the County which will be affected; and
(g) Such additional information requested by the County that the County finds reasonably necessary to review the permit application.
4. The County shall have the power to prohibit or to limit the placement of new or additional Communications Facilities within the Public Rights-of Way if there is insufficient space to accommodate the request to place and maintain Facilities in that area of the Public Rights-of-Way, or to safely accommodate additional installations at any location, or for the protection of existing Facilities in the Public Rights-of-Way or to accommodate County plans for public improvements or projects that the County determines are in the public interest and to the extent permitted by applicable law.
5. All Communications Facilities shall be placed and maintained so as not to interfere unreasonably with the use of the Public Rights-of-Way by the public and so as not to cause unreasonable interference with the rights and convenience of property owners who adjoin any of the Public Rights-of-Way. All Facilities shall be placed underground to the extent similarly situated utilities (electric, communications) are so required. Additionally, a Registrant shall endeavor to place all Facilities underground unless prevented from doing so by existing technology or by the physical characteristics of the installation location. Any above ground installation shall only be done with prior written approval of the County, which shall not be unreasonably withheld. The County may require the use of trenchless technology (i.e., directional bore method) for the installation of Facilities in the Public Rights-of-Way as well as joint trenching or the co-location of Facilities in existing conduit. The Registrant shall be solely liable for the displacement, damage or destruction of any property, irrigation system or landscaping as a result of the placement or maintenance of its Facility within the Public Rights-of-Way. The appropriate County official may issue such rules and regulations concerning the placement or maintenance of a Communications Facility in Public Rights-of-Way as may be consistent with this Ordinance and other applicable Federal and State laws or regulations.
6. All safety practices required by applicable law or accepted industry practices and standards shall be used during the placement or maintenance of Communications Facilities.
7. A Registrant shall, at its own expense, restore the Public Rights-of-Way to at least its original condition before such work in Public Rights-of-Way was initiated, subject to the County’s satisfaction upon inspection. Registrant shall warrant its restoration for a period of twelve (12) months after completion of such restoration. If the Registrant fails to make such restoration within thirty (30) calendar days after completion of construction, or such other time as may be required by the County, the County may after written notice to the Registrant, perform such restoration using County employees, agents or contractors, and charge all costs of the restoration against the Registrant in accordance with Section 337.402, Florida Statutes, as it may be amended, and require reimbursement within thirty (30) days after the submission of the bill by the County to the Registrant.
8. Removal or relocation at the direction of the County of a Registrant's Communications Facility in Public Rights-of-Way shall be governed by the provisions of Sections 337.403 and 337.404, Florida Statutes, as they may be amended.
9. A permit from the County constitutes authorization to undertake only certain activities in Public Rights-of-Way in accordance with this Ordinance, and does not create a property right or grant authority to impinge upon the rights of others who may have an interest in the Public Rights-of-Way.
10. A Registrant shall maintain its Communications Facility in Public Rights-of-Way in a manner consistent with accepted industry practice and applicable law.
11. In connection with excavation in the Public Rights-of-Way, a Registrant shall, where applicable, comply with the Underground Facility Damage Prevention and Safety Act set forth in Chapter 556, Florida Statutes, as it may be amended.
12. Registrant shall place or maintain a Communications Facility in Public Rights-of-Way in compliance with all applicable standards as established by all local, State or Federal law and in conformance with the County ordinances, codes and regulations. Registrant shall use and exercise due caution, care and skill in performing work in the Public Rights-of-Way and shall take all reasonable steps to safeguard work site areas.
13. In the interest of the public’s health, safety and welfare, upon request of the County, a Registrant shall coordinate placement or maintenance activities under a permit with any other work, construction, installation or repairs that may be occurring or scheduled to occur within a reasonable timeframe in the subject Public Rights-of-Way. The County may require a Registrant to alter reasonably its placement or maintenance schedule for permitted work as necessary so as to minimize disruptions and disturbance in the Public Rights-of-Way. The County may provide a more definite time frame based on specific County construction or maintenance schedules.
14. A Registrant shall not place or maintain its Communications Facilities so as to interfere, displace, damage or destroy any Facilities, including but not limited to, sewers, gas or water mains, storm drains, pipes, cables or conduits of the County or any other Person's Facilities lawfully occupying the Public Rights-of-Way.
15. The County makes no warranties or representations regarding the fitness, suitability or availability of Public Rights-of-Way for the Registrant’s Communications Facilities and any performance of work or costs incurred by Registrant or provision of services shall be at Registrant’s sole risk. Nothing in this Ordinance shall affect the County’s authority to add, vacate or abandon Public Rights-of-Way and the County makes no warranties or representations regarding the availability of any added, vacated or abandoned Public Rights-of-Way for Communications Facilities.
16. The County shall have the right to make such inspections of Facilities placed or maintained in Public Rights-of-Way as it finds necessary to ensure compliance with this Ordinance. In the event the County determines that a violation exists with respect to Registrant’s placement or maintenance of Facilities in the Public Rights-of-Way that is not considered to be an emergency or danger to the public health, safety or welfare, the County will provide Registrant no less than three (3) days written notice setting forth the violation and requesting correction.
17. A permit application to place a new or replace an existing Communications Facility in Public Rights-of-Way shall include plans showing the location of the proposed installation of Facilities in the Public Rights-of-Way. If the plans so provided require revision based upon actual installation, the Registrant shall promptly provide revised plans, or “as-builts”, upon completion of any installation or construction. The plans shall be in a digitized format showing the two-dimensional location of the Facilities based on the County’s Geographical Database, or other format acceptable to the County. Upon the County’s request, a Registrant shall submit such “as-builts” in the format acceptable to the County showing the location of its facilities in the Public Rights-of-Way. The Registrant shall provide such plans at no cost to the County. The County shall maintain the confidentiality of such plans and any other information provided in accordance with Section 202.195, Florida Statutes, as it may be amended. The County shall maintain the confidentiality of plans, maps and other information provided in an electronic format to the extent consistent with applicable law. In response to a public records request, the County shall only provide paper copies of Communications Facility construction maps and shall not provide electronic copies of any Communications Facility construction maps. To the extent allowed under applicable law, the County’s Geographical Database shall be considered proprietary and confidential and the County shall not provide access to the Geographical Database to any person other than County’s employees, contractors or agents engaged in appropriate County rights-of-way management activities.
18. The County reserves the right to place and maintain, and permit to be placed or maintained, sewer, gas, water, electric, storm drainage, communications, and other Facilities, cables or conduit, and to do, and to permit to be done, any underground and overhead installation or improvement that may be deemed necessary or proper by the County in Public Rights-of-Way occupied by the Registrant. Registrant shall allow County Facilities to be co-located within County’s Public Rights-of-Way through the use of a joint trench during Registrant’s construction project. Such joint trench projects shall be negotiated in good faith by separate agreement between Registrant and County and may be subjected to other County rights-of-way requirements. The County further reserves without limitation the right to alter, change, or cause to be changed, the grading, installation, relocation or width of the Public Rights-of-Way within the limits of the County and within said limits as same may from time to time be altered.
19. A Registrant shall, on the request of any person holding a permit issued by the County, temporarily raise or lower its Communications Facilities to permit the work authorized by the permit. The expense of such temporary raising or lowering of Facilities shall be paid by the person requesting the same, and the Registrant shall have the authority to require such payment in advance. The Registrant shall be given not less than thirty (30) days advance written notice to arrange for such temporary relocation. Subject to applicable law, if the County requests a temporary raising or lowering of a Facility for a public purpose, the County shall not be charged for the temporary raising or lowering of the Facility.
Section 27-6. Suspension Of Permits.
1. Subject to Section 27-8 below and to providing reasonable notice and an opportunity to cure, the County may suspend a permit issued or may deny an application for a subsequent permit to a Registrant for work in the Public Rights-of-Way for one or more of the following:
(a) Failure to satisfy permit conditions, or conditions set forth in this Ordinance or other applicable County ordinances, codes or regulations governing placement or maintenance of Communications Facilities in Public Rights-of-Way, including without limitation, failure to take reasonable safety precautions to alert the public of work at the work site, or to restore any Public Rights-of-Way;
(b) Misrepresentation or fraud by Registrant in a Registration or permit application;
(c) Failure to properly renew, or ineffectiveness of, a Registration.
(d) Failure to relocate or to remove Facilities as may be lawfully required by the County.
2. After the suspension or denial of a permit pursuant to this Section, the County shall provide written notice of the reason to the Registrant.
Section 27-7. Appeals.
1. Final, written decisions of the County Administrator or designee suspending or denying a permit, denying an application for a Registration or denying an application for renewal of a Registration are subject to appeal. An appeal must be filed with the County Administrator within thirty (30) 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 Board of County Commissioners of Pasco County shall hear or shall appoint a hearing officer to consider the appeal. The hearing shall occur within thirty (30) days of the receipt of the appeal, unless waived by the Registrant, and a written decision shall be rendered within thirty (30) days of the hearing. Upon correction of any grounds that gave rise to a suspension or denial, the suspension or denial shall be lifted.
2. Nothing in this Ordinance shall affect or limit the remedies the County has available under applicable law.
Section 27-8. Conditional Use Of Public Rights-Of-Way.
1. In the event Registrant desires to use its existing Facilities or to construct new Facilities for the purpose of providing other utility or non-utility services to existing or potential consumers or resellers, by providing any other services other than the provision of Communications Service, or for providing any other use to existing or potential consumers, a Registrant shall seek such additional and separate authorization from the County for such activities as may be required by applicable law.
2. To the extent that any Person or Registrant leases or otherwise uses the Facilities of a Person that is duly registered or otherwise authorized to place or to maintain Facilities in the Public Rights-of-Way of the County, such Person or Registrant shall make no claim, nor assert any right, which will impede the lawful exercise of the County’s rights, including requiring the removal of such Facilities from the Public Rights-of-Way of the County, regardless of the effect on Registrant's ability to place or maintain its own Communications Facilities in Public Rights-of-Way of the County.
Section 27-9. Termination Of Registration.
1. The involuntary termination of a previously effective Registration may only be accomplished by an action of the Board of County Commissioners. The County may declare the Registration terminated and revoke and cancel all privileges granted under that Registration if:
(a) A Federal or Florida authority suspends, denies, or revokes a Registrant's certification or license to provide Communications Service,
(b) The Registrant's placement and maintenance of the Public Rights-of-Way presents an extraordinary danger to the general public or other users of the Public Rights-of-Way, or
(c) The Registrant abandons all of its Communications Facilities in Public Rights-of-Way.
2. Prior to such termination for any of the reasons set forth in this Section, the County Administrator or his designee shall notify the Registrant in writing setting forth the matters pertinent to such reasons and describing the proposed action of the County with respect thereto. The Registrant shall have sixty (60) days after receipt of such notice within which to cure the violation, or within which to present a plan, satisfactory to the Board of County Commissioners, to accomplish the same.
3. In the event of a vote by the Board of County Commissioners to terminate the Registration, the Registrant shall, within thirty (30) days following such termination, provide an acceptable plan for transferring ownership of the Communications Facilities to another person in accordance with this Ordinance or shall remove or abandon the Facilities and take such steps as are necessary to render every portion of the Facilities remaining in the Public Rights-of-Way safe. If the Registrant has either abandoned its Facilities or chooses to abandon its Facilities, the County may either
(a) require the Registrant or the Registrant's bonding company to remove some or all of the Facilities from the Public Rights-of-Way and restore the Public Rights-of-Way to its condition immediately prior to the removal;
(b) require that some or all of the Facilities be removed and the Public Rights-of-Way restored to its original condition at the Registrant's expense, using County employees, agents or contractors, and charge any and all costs to the Registrant and require reimbursement, or
(c) utilize or allow other Persons to utilize the Registrant’s abandoned Facilities.
4. The obligations of the Registrant hereunder shall survive the termination of a Registration. In the event of a declaration of termination of Registration, this provision does not permit the County to cause the removal of any Facilities that are used to provide another service for which the Registrant holds a valid certification or license with the governing Federal or State agency, where required, and is properly registered with the County, for such certificated service, where required.
Section 27-10. Transfer Or Control, Sale Or Assignment Of Assets.
1. If a Registrant transfers, sells or assigns its Registration or its Facilities in the Public rights-of-Way, incident to a transfer, sale or assignment of the Registrant’s assets, the transferee, buyer or assignee shall be obligated to comply with the terms of this Ordinance. Written notice of any such transfer, sale or assignment shall be provided to the County within twenty (20) days of the effective date of the transfer, sale or assignment. If the transferee, buyer or assignee is a current Registrant, then the transferee, buyer or assignee is not required to re-Register. If the transferee, buyer or assignee is not a current Registrant, then the transferee, buyer or assignee shall Register as provided herein within sixty (60) days of the transfer, sale or assignment. If permit applications are pending in the Registrant’s name, the transferee, buyer or assignee shall notify the County that the transferee, buyer or assignee is the new applicant.
2. Any mortgage, pledge, lease or other encumbrance on the Communications Facilities shall be subject and subordinate to the rights of the County under this Ordinance and applicable law.
Section 27-11. Insurance.
1. Registrant shall provide, pay for and maintain satisfactory to the County the types of insurance described herein. All insurance shall be from responsible companies duly authorized to do business in the State of Florida and having a rating in Best's Insurance Guide of A or better or having a rating acceptable to the County. All liability policies shall provide that the County is an additional insured in the endorsement. The required coverages must be evidenced by properly executed Certificates of Insurance forms. The Certificates must be signed by the authorized representative of the insurance company and shall be filed and maintained with the County annually. Thirty (30) days advance written notice by registered or certified mail must be given to the County of any cancellation, intent not to renew or reduction in the policy coverages. The insurance requirements may be satisfied by evidence of self-insurance or other types of insurance acceptable to the County. In addition to the Certificate of Insurance, the Registrant shall provide a copy of the insurance policy, if requested by the County.
2. The limits of coverage of insurance required shall be not less than the following:
(a) Worker's Compensation and Employer's Liability
Employer's Liability - $500,000 limit each accident
$ 500,000 limit per each employee
(b) Comprehensive General Liability
Bodily injury and property damage - $ 3,000,000 combined single limit each occurrence. Said coverage shall not exclude contractual liability, Products/Completed Operations, Independent or Contractors.
(c) Automobile Liability
Bodily injury and property damage - $3,000,000 combined single
limit each accident
3. Umbrella or Excess Liability. Registrant may satisfy the minimum limits required above for either Commercial General Liability, Business Auto Liability and Employer’s Liability coverage under Umbrella or Excess Liability. The Umbrella or Excess Liability shall have an Aggregate limit not less than the highest “Each Occurrence” limit for Commercial General Liability, Business Auto Liability or Employer’s Liability. The County shall be specifically endorsed as an “Additional Insured” on the Umbrella or Excess Liability, unless the Certificate of Insurance states the Umbrella or Excess Liability provides coverage on a “Follow-Form” basis.
4. Self-Insurance. Registrant may satisfy the insurance requirements and conditions of this Section under a self-insurance plan and/or retention. Registrant agrees to notify the County, and/or indicate on the certificate(s) of insurance, when self-insurance is relied upon or when a self-insured retention meets or exceeds $100,000. The County reserves the right, but not the obligation, to request and review a copy of the Registrant’s most recent annual report or audited financial statement, which the Registrant agrees to furnish for the purpose of determining the Registrant’s financial capacity to self-insure.
5. Right to Review. The County reserves the right to review, modify, reject or accept any required policies of insurance or self-insurance, including limits, coverages, or endorsements, herein from time to time throughout the life of this Section. The County reserves the right, but not the obligation, to review and reject any insurer or self-insurer providing coverage because of its poor financial condition or failure to operate legally.
6. This Section shall not be construed to affect in any way the County’s rights, privileges and immunities as set forth in Section 768.28, Florida Statutes. Insurance under this Section shall run continuously with the presence of the Registrant’s Facilities in the Public Rights-of-Way and any termination or lapse of such insurance shall be a violation of this Section and subject to the remedies as set forth herein. Notwithstanding the foregoing, the County may, in its sole discretion, require increased or decreased levels of insurance for any other object placed in the Public Rights-of-Way by way of individual agreements.
A Registrant shall, at its sole cost and expense, indemnify, hold harmless and defend the County, 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 County arising out of the placement or maintenance of its Communications Facilities in Public Rights-of-Way, regardless of whether the act or omission complained of is authorized, allowed or prohibited by this Ordinance, provided, however, that a Registrant’s obligation hereunder shall not extend to any damages caused solely by the gross negligence, or wanton or willful acts of the County. This provision includes, but is not limited to, the County’s reasonable attorneys' fees incurred in defending against any such claim, suit or proceedings. The County agrees to notify the Registrant, in writing, within a reasonable time of County receiving notice, of any issue it determines may require indemnification. Nothing in this Section shall prohibit the County from participating in the defense of any litigation by its own counsel and at its own cost if in the County’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: (1) as denying to either party any remedy or defense available to such party under the laws of the State of Florida; (2) as consent by the County to be sued; or (3) as a waiver of sovereign immunity beyond the waiver provided in Section 768.28, Florida Statutes, as it may be amended.
Section 27-13. Construction Bond.
1. Prior to performing any permitted work in the Public Rights-of-Way, the Registrant shall establish in the County’s favor a construction bond to secure the restoration of the Public Rights-of-Way and to ensure the Registrant’s faithful performance of the construction or other work in the Public Rights-of-Way. Notwithstanding the foregoing, a construction bond hereunder shall only be required to the extent that the cost of the restoration exceeds the amount recoverable against the Security Fund as provided herein.
2. In the event a Registrant subject to such a construction bond fails to complete the work in accordance with the provisions of the permit and this Ordinance, there shall be recoverable, jointly and severally from the principal and surety of the bond, any damages or loss suffered by the County as a result, including the full amount of any compensation, indemnification or cost of removal or abandonment of any property of the Registrant, or the cost of completing the work, plus a reasonable allowance for attorney’s fees, up to the full amount of the bond.
3. No less than twelve (12) months after completion of the construction and satisfaction of all obligations in accordance with the bond, the Registrant may request the County to remove the requirement to continue the construction bond and the County shall release the bond within thirty (30) days of the date of final approval of said request. Notwithstanding, the County may require a new bond for any subsequent work performed in the Public Rights-of-Way.
4. The construction bond shall be issued by a surety having a minimum rating of A-1 in Best’s Key Rating Guide, Property/Casualty Edition; shall be subject to the approval of the County Attorney; and shall provide that:
“Unless released by the County, this bond may not be canceled, or allowed to lapse, until sixty (60) days after receipt by the County, by certified mail, return receipt requested, of a written notice from the issuer of the bond of intent to cancel or not to renew.”
5. The rights reserved by the County with respect to any construction bond established pursuant to this Section are in addition to all other rights and remedies the County may have under this Section, or at law or equity, and no action, proceeding or exercise of a right with respect to the construction bond will affect any other right the County may have.
Section 27-14. Security Fund.
At the time of Registration and as a condition of receiving its first permit to place or to maintain a Communications Facility in Public Rights-of-Way after the effective date of this Ordinance, the Registrant shall be required to file with the County, a security fund the form of an annual bond or cash deposit in the sum of One Hundred Thousand Dollars ($100,000.00). If the Registrant files a bond, it shall have as a surety a company qualified to do business in the State of Florida, and acceptable to the County. The Security Fund shall be conditioned on the full and faithful performance by the Registrant of all requirements, duties and obligations imposed upon Registrant by the provisions of this Ordinance. The bond or other guarantee shall be furnished annually or as frequently as necessary to provide a continuing guarantee of the Registrant's full and faithful performance at all times. In the event a Registrant fails to perform its duties and obligations imposed upon the Registrant by the provisions of this Ordinance, subject to Section 27-16 of this Ordinance, there shall be recoverable, jointly and severally from the principal and surety of the bond, any damages or loss suffered by the County as a result, including the full amount of any compensation, indemnification or cost of removal or abandonment of any property of the Registrant, plus a reasonable allowance for attorneys' fees, up to the full amount of the Security Fund.
1. In addition to any other remedies available at law, including but not limited to Section 125.69, Florida Statutes, as it may be amended, and Chapter 162, Florida Statutes, as it may be amended, or equity or provided in this Ordinance, the County may apply any one or combination of the following remedies in the event a Registrant violates this Ordinance, or applicable local law or order related to the Public Rights-of-Way:
(a) Failure to comply with the provisions of the Ordinance or other law applicable to occupants of the Public Rights-of-Way may result in imposition of penalties to be paid by the Registrant to the County in an amount of Two Hundred Fifty Dollars ($250.00) per violation with each day or part thereof that the violation continues constituting a separate violation.
(b) In addition to or instead of any other remedy, the County may seek legal or equitable relief from any court of competent jurisdiction.
(c) Whenever a violation(s) of this Ordinance occurs or exists, or has occurred or existed, any person, individual, entity or otherwise, who has legal, beneficial or equitable interest in the facilities or instrumentality causing or contributing to the violation(s), and any person, individual, entity or otherwise who has legal, beneficial or equitable interest in the real property upon which such violation(s) occurs or exists or has occurred or existed, shall be liable for such violation(s).
(d) Violations, Fines and Penalties, Remedies and Prosecution. Fines, penalties, remedies and prosecution for any violation of this ordinance shall be pursuant to this Section of this Ordinance, the Pasco County Code of Ordinances, including Section 1-11 as amended, and the Pasco County Uniform Fine Schedule, as amended. The amount of fines in this Ordinance shall control in the event of a conflict with the Uniform Fine Schedule. Each violation of this ordinance shall be a separate offense.
2. In determining which remedy or remedies are appropriate, the County shall take into consideration the nature of the violation, the person or persons bearing the impact of the violation, the nature of the remedy required to prevent further violations, and such other matters as the County determines are appropriate to the public interest.
3. Failure of the County to enforce any requirements of this Ordinance shall not constitute a waiver of the County’s right to enforce the Ordinance with respect to that violation or subsequent violations of the same type or to seek appropriate enforcement remedies.
4. In any proceeding before the County where there exists an issue with respect to a Registrant's performance of its obligations pursuant to this Ordinance, the Registrant shall be given the opportunity to provide such information as it may have concerning its compliance with the terms and conditions of this Ordinance. The County may find a Registrant that does not demonstrate compliance with the terms and conditions of this Ordinance in default and apply any one or combination of the remedies otherwise authorized by this Ordinance.
5. The County Administrator, or the County Administrator’s designee, shall be responsible for administration and enforcement of this Ordinance, and is authorized to give any notice required by law.
Section 27-16. Reports and Records.
1. A Registrant shall provide the following documents to the County as received or filed:
(a) Any pleadings, petitions, notices, and documents, which may directly impact the obligations under this Ordinance and which are reasonably necessary for the County to protect its interests under this Ordinance.
(b) Any request for protection under bankruptcy laws, or any judgment related to a declaration of bankruptcy.
2. Nothing in this subsection shall affect the remedies Registrant has available under applicable law.
3. The County shall keep any documentation, books and records of the Registrant confidential to the extent required by Florida Statutes.
Section 27-17. Force Majeure.
1. The County reserves the right to amend this Ordinance as it shall find necessary in the lawful exercise of its police powers.
2. This Ordinance shall be applicable to all Communications Facilities placed in the Public Rights-of-Way on or after the effective date of this Ordinance and shall apply to all existing Communications Facilities placed in the Public Rights-of-Way prior to the effective date of this Ordinance, to the full extent permitted by State and Federal law.
Section 3. Conflicts. That all ordinances or parts of ordinances in conflict herewith are repealed to the extent of such conflict.
Section 4. Savings. All fees and other dollar amounts owed to the County under any contract, Agreement, or other provisions of the County Code as of the effective date of this Ordinance, whether known or unknown, shall not be affected by the adoption of this Ordinance and the County expressly reserves its rights with respect to such amounts.
Section 5. Severability. It is declared to be the intent of the Board of County Commissioners of Pasco County Florida, that if any section, subsection, sentence, clause, or provision of this Ordinance shall be declared invalid, the remainder of the this Ordinance shall be construed as not having contained said section, subsection, sentence, clause, or provisions and shall not be affected by such holding.
Section 6. Inclusion in Code. It is the intent of the Board of County Commissioners that the provisions of this Ordinance shall become and be made a part of the Pasco Code of Ordinances, and that the sections of this Ordinance may be renumbered or re-lettered and the word “ordinance” may be changed to “section,” “article,” “regulation,” or such other appropriate word or phrase in order to accomplish such intentions.
Section 7. 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
___________________________ __________________________________
APPROVED AS TO LEGAL FORM AND SUFFICIENCY
OFFICE OF THE COUNTY ATTORNEY
BY: ______________________________________________
COUNTY ATTORNEY