6920-02
ORDINANCE NO. 6920-02
AN ORDINANCE OF THE CITY OF CLEARWATER,
FLORIDA RELATING TO REGISTRATION OF PROVIDERS
OF COMMUNICATIONS SERVICES; AMENDING
SECTIONS 32.032 AND 32.042 OF CHAPTER 32, CODE
OF ORDINANCES; MAKING TECHNICAL CORRECTIONS
BY CHANGING TERM TELECOMMUNICATIONS TO
PROVIDERS OF COMMICA TIONS SERVICES;
PROVIDING AN EFFECTIVE DATE.
WHEREAS, the 2001 Florida Legislature amended Section 337.401,
Florida Statutes, (2000) enacting confusing legislation, CS/CS/SB 1878,
Bel/South Telecommunications, Inc. v Town of Palm Beach 252 F. 3d 1169 (11th
Cir. 2001), which became Chapter 2001-140, Laws of Florida, relating to the
management by municipalities of their rights-of-way encumbered by
telecommunications companies as providers of communications services; and
WHEREAS, the City of Clearwater adopted on October 4, 2001 revisions
to sections 32.032 and 32.042 of the Clearwater Code of Ordinances. The
changes were drafted pursuant to the confusing Chapter 2001-140; and
WHEREAS, pertinent portions of Chapter 2001-140 have been recently
codified as Section 337.401, Florida Statutes (2001) clarifying much of the
confusion and thus necessitating technical amendments to Sections 32.032 and
32.042 of the Clearwater Code.
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, 2001, a
telecommunications company as provider of communications services
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, to the extent they are providers of
communications services, are required to register with the City pursuant to
Section 32.042.
Section 2. Section 32.042 of Chapter 32, Code of Ordinances is
amended to read:
Ordinance No. 6920-02
Sec. 32.042. Registration of providers of communications services.
(1) Communications services for the purposes of this section, is
defined by F.S. ~ 202.11 (13), as amended from time to time or until
iudicially or leqislatively determined to the contrary.
(g.:1-) Registration is required for construction, installation, maintenance,
repair, or location in rights-of-way
(a) A provider of communications services 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 provider of communications services
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 provider of
communications services telecommunications company may
be subject to other ordinances regulating the occupation or
use of the rights-of-way. A provider of communications
services 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
communications services 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 provider of
communications services from complying with all applicable
City ordinances, including this section.
(~~) The registration procedures are as follows:
(a) Registration. A provider of communications services
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 include
including the following information:
1. Name of the applicant;
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2. Name, address and telephone number of applicant's
primary contact person in connection with the
reg istration;
3. Evidence of insurance coverage required under this
section; and
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 30 days after receipt of registration
information from the applicant.
(c) Cancellation of Registration. A registrant may cancel a
registration upon 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 2
years. Registrants shall notify the City within 30 days of any
change in registration information. Registrations are
expressly subject to any future amendment to or
replacement of this Section and further subject to any
additional City ordinances, as well as any State or Federal
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Ordinance No. 6920-02
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 provider of communications
services telecommunication 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 provider of
communications services telecommunications company that
desires to erect, construct, install, maintain, place, repair,
extend, expand, remove, or locate permanent or temporary
facilities in the rights-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 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 providers of communications services
telecommunications company prior to the effective date of
this section may remain in the rights-of-way, provided the
provider of communications service complies with the
registration provisions of this section. Providers with existing
facilities in the rights-of-way have 30 days from the effective
date of this section to comply with the terms of this
ordinance, or be in violation thereof.
11 Jt 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 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.
(9. 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 additional insured
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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 provider
of communications services 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.
ill 51 The following indemnification applies:
(a) In matters related to any actions or activities of the providers of
communication services telecommunications service provider
arising under this section, providers of communications services
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 providers of communications services
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 providers of
communication services telecommunications service
provider, its officers, agents, employees, servants,
contractors, subcontractors, consultants or volunteers
or to which the providers of communications services
telecommunications service provider's negligence shall
in any way contribute; and
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Ordinance No. 6920-02
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 providers of communications services
telecommunications service provider's failure to comply
with the provisions of any federal, state or local statute,
ordinance or regulation applicable to the providers of
communication services 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 F.S. 9768-28.
(c) The providers of communications services 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 providers of communications services
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 providers of communications services
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
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Ordinance No. 6920-02
this ordinance are severable, and if any phrase, clause, sentence,
paragraph or section of this ordinance shall be declared unconstitutional,
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
December 13, 2001
PASSED ON SECOND AND FINAL
READINGAND ADOPTED
January 10, 2002
Brian J. Aungst
Mayor-Commis
Approved as to form:
Attest:
~c~~
ne C. Hayman
Assistant City Attorney
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Ordinance No. 6920-02