6853-01
ORDINANCE NO. 6853-01
AN ORDINANCE OF THE CITY OF CLEARWATER,
FLORIDA RELATING TO REGISTRATION OF
TELECOMMUNICATIONS COMPANIES; AMENDING
SECTION 32.032 OF CHAPTER 32, CODE OF
ORDINANCES; CREATING A NEW SECTION 32.042;
PROVIDING A REQUIREMENT FOR REGISTRATION;
PROVIDING A PROCEDURE FOR REGISTRATION;
PROVIDING FOR SUSPENSION OF PERMITS;
PROVIDING FOR APPEALS; PROVIDING FOR
INSURANCE AND INDEMNIFICATION; PROVIDING AN
EFFECTIVE DATE.
WHEREAS, The Telecommunication Act of 1996, Chapter 47 U.S.C.
S253(c) preempted much of the municipalities control over its rights-of-way but
retained in the cities' authority to manage their rights-of-way; and
WHEREAS, Section 337.401, Florida Statutes, provides that local
governments are authorized to prescribe and enforce reasonable rules and
regulations with reference to the placing and maintaining of utilities along, across,
on, over, or under, any rights-of-way and may grant to a resident or corporation
organized or licensed in the state of Florida the use of the rights-of-way in
accordance with said rules and regulations; and
WHEREAS, in accordance with the intent of the Telecommunications Act
and the Communications Services Tax Simplification Laws as amended by
Chapter 2001-140, Laws of Florida, and in furtherance of its home rule powers,
the City of Clearwater, Florida (City) desires to place certain reasonable rules
and regulations on the use of the rights-of-way by Utilities; and
WHEREAS, deregulation of telecommunications companies has led to
multiple requests for the use of the City's Rights-of-way, and prior to deregulation
there was a monopoly on telecommunications service; and
WHEREAS, home rule power under the Florida Constitution and Chapter
166, Florida Statutes, empower the City to manage use of its rights-of-way; and
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF
THE CITY OF CLEARWATER, FLORIDA, that:
Section 1. Section 32.032 of Chapter 32, Code of Ordinances is
amended to read:
The City Commission may by ordinance grant permission to any
person to construct and operate a public utility, except as of January 1,
Ordinance No. 6853-01
2001 a telecommunications company defined in 9 364.02(12), Florida
Statutes as amended from time to time or unless and until judicially or
legislatively determined to the contrary, in the streets and public grounds
of the city, but no such grant or renewal thereof shall be made in violation
of any of the limitations contained in this article. Telecommunications
companies are required to reqister with the City pursuant to Section
32.042.
Section 2. A new Section 32.042 of Chapter 32, Code of Ordinances is
created to read:
Sec. 32.042. Registration of Telecommunications Companies,
(1) Registration is required for construction, installation, maintenance,
repair, or location in rights-of-way
(a) A telecommunications company that desires to construct,
install, maintain, repair, expand, or locate any permanent or
temporary facilities in, under, over, on or across any rights-
of-way in the City shall first register with the City in
accordance with the terms of this section. When a
telecommunications company occupies or uses the rights-of-
way in any manner except to construct, install, maintain,
repair, expand, or locate a permanent or temporary facility,
the provisions of this section do not apply and the
telecommunications company may be subject to other
Ordinances regulating the occupation or use of the rights-of-
way. A telecommunications company, which does not have
a physical presence in the rights-of-way, is not required to
register under the provisions of this section.
(b) This registration pertains only to the placement of
telecommunication facilities in the rights-of-way; if a
registrant seeks to enter the rights-of-way of the City for any
other purpose, further approval of the City may be required.
Registration does not excuse a telecommunications
company from complying with all applicable City ordinances,
including this Section.
(2) The registration procedures are as follows:
(a) Registration. A telecommunications company desiring to
construct, install, maintain, repair, expand, remove or locate
facilities in, on, over, under, on and across the designated
rights-of-way shall file a registration with the City, which shall
including the following information:
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1. name of the applicant;
2. name, address and telephone number of applicant's
primary contact person in connection with the
Registration;
3. evidence of insurance coverage required under this
section;
4. The number of the registrant's current certificate of
authorization issued by the Florida Public Service
Commission or the Federal Communications
Commission.
(b) Review by the City. The City will review the information
submitted by the applicant. Such review will be by the City
Manager or his or her designee. If the applicant submits
information in accordance with Section 32.042(2)(a) above,
the registration shall be effective and the City shall notify the
applicant of the effectiveness of the registration in writing. If
the City determines that the information has not been
submitted in accordance with Section 32.042(2)(a) above,
the City shall notify the applicant of any apparent errors of
the non-effectiveness of registration, and reasons for non-
effectiveness, in writing. The City shall so reply to an
applicant within thirty (30) days after receipt of registration
information from the applicant.
(c) Cancellation of Registration. A registrant may cancel a
registration upon sixty (60) days written notice to the City
noticing that it will no longer own, use, or maintain facilities in
the rights-of-way and will no longer need to obtain permits to
perform work in the rights-of-way. A registrant may not
cancel a registration if the registrant continues to place,
maintain, or own or use any telecommunications facilities in
the rights-of-way.
(d) No Priority in Registration. Registration does not establish
any priority for the use of the rights-of-way by a registrant or
any other registrants.
(e) Renewal of Registration. All registrants shall renew their
registration with the City no later than January 1 every two
(2) years. Registrants shall notify the City within thirty (30)
days of any change in registration information. Registrations
are expressly subject to any future amendment to or
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Ordinance No. 6853-01
replacement of this Section and further subject to any
additional City ordinances, as well as any State or Federal
laws that may be enacted during the term of the registration.
If the City finds that non-renewal of registration was a good
faith error on the part of the telecommunications company,
the only penalty for non-registration shall be the non-
issuance or revocation of permits to work in the rights-of-
way; otherwise Code of Ordinances Section 1.12 shall apply.
(f) Permit. In accordance with applicable City codes and
ordinances, a permit may be required of a
telecommunications company that desires to erect,
construct, install, maintain, place, repair, extend, expand,
remove, or locate permanent or temporary facilities in the
rig hts-of -way.
(g) Transfer. If the registrant transfers or assigns its registration
incident to sale or other transfer of any of the registrant's
facilities located within the rights-of-way within the City, the
transferee or assignee shall comply with the terms of this
section as of the effective date of the transfer or assignment.
No later than twenty (20) days after the effective date of the
transfer or assignment, the transferee or assignee shall
register in accordance with Section 32.042(2) of this section.
(h) Existing facilities. Facilities constructed, maintained,
repaired, or located by telecommunications companies prior
to the effective date of this section may remain in the rights-
of-way, provided the telecommunications company complies
with the registration provisions of this section. Providers with
existing facilities in the rights-of-way have thirty (30) days
from the effective date of this section to comply with the
terms of this ordinance, or be in violation thereof.
(3) Final, written decisions of the City Manager denying an application
for registration or denying an application for renewal of a
registration are subject to appeal. An appeal must be filed with the
City Manager 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 City Commission shall hear the appeal
and may affirm or reverse the decision of the City Manager.
(4) A registrant shall maintain in full force and effect general liability
insurance acceptable to the City, which specifically covers all
exposures incident to the intent and responsibilities under this
section. The registrant shall add and maintain the City as an
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additional insured on its general liability insurance. The document
shall indicate that the City, a political subdivision of the State of
Florida, is an additional insured as its interests may appear; and
shall also provide that insurance shall not be canceled, limited, or
non-renewed until after thirty (30) days' written notice has been
received by the City; however, insurance may be canceled and
replaced with a policy that continues to meet the requirements of
this section. Registrant may satisfy the insurance requirements
and conditions of this article under a self-insurance plan.
Registrant shall agree to notify the City, or indicate on the
Certificate of Insurance, whether self-insurance is relied upon when
a self-insured retention or deductible exceeds $100,000. If a
telecommunications service provider is self-insured, in order to
assure that the insurance requirements are being met, the City
reserves the right, but not the obligation, to request and review a
copy of the registrant's most recent annual report or audited
financial statements.
(5) The following indemnification applies:
(a) In matters related to any actions or activities of the
telecommunications service provider arising under this
section, telecommunications service provider shall, at its
sole cost and expense, fully indemnify, defend and hold
harmless the City, its officers, boards, commissions, charter
officials, employees, agents, and volunteers against any and
all claims, suits, actions, proceedings, liabilities, and
judgments for damages (including, but not limited to,
expenses for reasonable legal fees and disbursements and
liabilities assumed by the City in connection therewith) or
equitable relief regardless of whether the act or omission
complained of is authorized, allowed or prohibited by this
ordinance. The telecommunications service provider's
indemnification of the City shall include, but not be limited to
all claims, suits, actions, proceedings, liabilities, and
judgments for damages arising out of the following:
(1) To persons or property, in any way arising out of or
through the acts or omissions of the
telecommunications service provider, its officers,
agents, employees, servants, contractors,
subcontractors, consultants or volunteers or to which
the telecommunications service provider's negligence
shall in any way contribute; and
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(2) Arising out of any claim of invasion of the right of
privacy, for defamation of any person, firm or
corporation, or the violation or infringement of any
copyright, trademark, trade name, service name,
patent, or of any other right of any person, firm or
corporation; and
(3) Arising out of the telecommunications service
provider's failure to comply with the provisions of any
federal, state or local statute, ordinance or regulation
applicable to the telecommunications service provider
in the conduct of its business under this section; and
(b) The City shall be responsible for its own negligence,
including that of its elected officials, charter officials, officers,
and/or employees resulting from activities arising from its
sole responsibilities under this section, but only to the extent
provided by the waiver of sovereign immunity in section 768-
28 F.S.
(c) The telecommunications service provider shall have the duty
to defend the City in any action to which the City is a part
which fails to allege specific actions by the City resulting
from its activities under this section, whether or not the same
claims damages for which the City is immune under Federal
or State law, including, but not limited to, Florida Statute
9768.28.
(d) The City shall give the telecommunications service provider
prompt notice of the making of any claim or the
commencement of any action, suit, or other proceeding
covered by the provisions of this section. Nothing in this
section shall be deemed to prevent City from cooperating
with the telecommunications service provider in participating
in the defense of any litigation by its own counsel at its sole
cost and expense.
(e) Nothing in this ordinance shall be construed to abrogate any
immunity under Federal or State law, including, but not
limited to, 47 U.S.C. 9555a or Florida Statute 9768.28.
Section 3, Consistent with Section 1.14 of Chapter 1, Code of
Ordinances, the sections, paragraphs, sentences, clauses and phrases of
this Ordinance are severable, and if any phrase, clause, sentence,
paragraph or section of this Ordinance shall be declared unconstitutional,
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Ordinance No. 6853-01
such determination shall not affect any of the remaining phrases, clauses,
sentences, paragraphs and sections of this Ordinance.
Section 4, This ordinance shall take effect immediately upon adoption.
PASSED ON FIRST READING
September 20, 2001
PASSED ON SECOND AND FINAL
READING AND ADOPTED
October 4, 2001
Approved as to form:
Attest:
~~c~
1 e Hayman
ssistant City Attorney
~lJd~fhC!ev.JL
~ C~nth' E. Goudeau ..,.. . =-V'"
D CIty Clerk .. . ...
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Ordinance No. 6853-01