6637-00
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ORDINANCE NO. 6637-00
AN ORDINANCE OF THE CITY OF CLEARWATER,
FLORIDA RELATING TO CONSTRUCTION IN CITY
RIGHTS-OF-WAY; CREATING A NEW ARTICLE IV OF
CHAPTER 28, CODE OF ORDINANCES CONSISTING OF
SECTIONS 28.91 THROUGH 28.99; PROVIDING A
STATEMENT OF PURPOSE AND INTENT; PROVIDING
DEFINITIONS; PROVIDING PROCEDURES TO OBTAIN A
PERMIT TO WORK IN RIGHTS-OF-WAY; PROVIDING
CONSTRUCTION SPECIFICATIONS FOR SUCH WORK;
PROVIDING FOR REPEAL OF CONFLICTING
PROVISIONS; PROVIDING AN EFFECTIVE DATE.
WHEREAS, Section 253(c) of the Telecommunications Act leaves to State
and local government the authority to manage Rights-of-way;
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;
WHEREAS, in accordance with the Congressional intent of Section 253 of
the Telecommunications Act, Section 337.401, Florida Statues, and the
Communications Services Tax Simplification Law, Laws of Florida No. 2000-260,
and in furtherance of its home rule powers, the City desires to place certain
reasonable rules and regulations on the use of the Rights-of-way by Utilities;
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;
WHEREAS, home rule power under the Florida Constitution and Chapter
166, Florida Statutes, empower the City to control use of its Rights-of-way;
WHEREAS, the federal and state governments, through legislation or their
designated agencies, has preempted the ability of the City to regulate and control its
own Rights-of-way.
WHEREAS, the City's Rights-of-way are heavily burdened at present, and the
Rights-of-way will only continue to become more crowded;
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Ordinance #6637-00
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NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF
THE CITY OF CLEARWATER, FLORIDA, that:
Section 1. A new Article IV of Chapter 28, Code of Ordinances consisting
of Sections 28.91 through 28.99, is created to read:
ARTICLE IV UTILITY CONSTRUCTION IN RIGHTS-OF-WAY
Sec. 28.91. Intent.
The purpose and intent of this Article is to establish a competitively
neutral policy for use of the Rights-of-way for the provision of electric service, cable
service, telecommunications service, and other Utility service by private companies
and providers of Utilities other than the City. This Article is intended to preserve the
public's traditional use of the Rights-of-way while allowing access to the Rights-of-
way to Utilities; to regulate the placement of structures and facilities in the Rights-of-
way pursuant to Chapter 166, Florida Statutes, and the Constitution of the State of
Florida; to regulate the construction, installation, maintenance, repair, removal and
replacement of facilities in the Rights-of-way; and to ensure that there is adequate
space in the Rights-of-way to safely, efficiently, and economically accommodate
public utilities supplied by the City of Clearwater.
Sec. 28.92. Definitions.
Annual General Permit shall mean an annual permit issued to a Utility
governing routine maintenance and repair activities and providing expedited
customer service.
Cable service shall be defined as in 47 U.S.C. 9522.
City shall mean the City of Clearwater, Florida.
City Staff shall mean the Public Works Administrator.
Conduit shall mean a device through which a wire, pipe or cable may be
channeled.
Construct or Construction shall mean any repair, alteration, pavement cut,
grading, excavation, filling, relocation, replacement, placement of new facilities, or
other type of improvement in the Rights-of-way.
Economically Impossible shall mean the cost of performing the activity
required by this Ordinance would place an unreasonable economic hardship on the
Utility .
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Emergency shall mean a situation when a repair is needed to be completed
immediately because of a danger to individuals or interruption in service.
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Facilities shall mean any device used for transmission of telecommunications,
electricity, television broadcasts, or any other facility used by a Utility in the process
of delivering service to their customers.
Franchise shall mean any agreement between a Utility and the City for use
and occupation of the Rights-of-way.
Greenery shall mean protected trees as defined in Article 8 of the Clearwater
Community Development Code and other types of plant life.
New Facilities shall mean any facilities to be placed in the Rights-of-way by a
Utility where no facilities owned by that Utility existed prior to this construction. This
term expressly excludes replacement of existing facilities and emplacement of
parallel facilities in order to provide service to new customers.
Person includes individuals, firms, associations, joint ventures, partnerships,
estates, trusts, business trusts, syndicates, fiduciaries, corporations, and all other
groups or combinations.
Public land shall mean any property owned by the City that is not considered
a Rights-of-way under Florida Statutes.
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Rights-of-way shall mean a Right-of-way, easement, highway, street or alley
owned by the City or in which the City holds a property interest and exercises rights
of management or control, and includes the surface, the air space over the surface
and the area below the surface of all public roads, streets, highways, alleys,
boulevards, bridges, and tunnels. This term does not include parks, open space and
other public lands not designated for utility use. This term includes any privately
owned area within the City which has not yet become a public street but is a
proposed public street on any subdivision map approved by the City. Any portion of
driveways located in or on a Right-of-way shall be considered a part of that Right-of-
way.
Technically impossible shall mean that the facility will not function as required
if placed underground.
Telecommunications Service Provider shall mean any provider who transmits,
conveys, or routes voice, data, audio, video, or any other information or signals,
including cable services, 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. The term does not include:
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Internet access service, electronic mail service, electronic bulletin board
service, or similar on-line computer services provided by and through a cable service
provider holding a franchise with the City.
Any Utility that provides any of the above-mentioned services for use only by
its employees or contractors who construct facilities for that Utility in the Rights-of-
way.
Trench shall mean an opening in or along the Rights-of-way that is dug for the
purpose of placing wires, cables, or pipes in the Rights-of-way.
Utility shall mean any telecommunications service provider, electric utility, or
other utility provider not owned by the City, and any contractor hired by any of the
aforementioned.
Utility Service shall mean any service provided by a utility to the persons
within the corporate limits of the City, including, but not limited to, electric service,
cable service, local and long distance telephone service, fiber optic service, and
Internet service provided through means other than telephone lines.
Sec. 28.93. Permit Required.
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Prior to any construction, except that construction which qualifies for an
Annual General Permit or is an emergency, the Utility shall proceed with due
diligence to obtain all necessary permits and authorizations which are required in the
conduct of its business, including, but not limited to, any utility joint use attachment
agreements, conduit use agreements, microwave carrier licenses, and any other
permits, licenses and authorizations to be granted by duly constituted regulatory
agencies having jurisdiction over the operation of the particular type of Utility service
that the Utility provides. A Utility shall not begin any construction prior to the
procurement of the necessary permits.
No person shall begin any construction within any Rights-of-way without first
obtaining a Rights-of-way Construction Permit or an Annual General Permit from the
City. This requirement shall also apply to all contractors and/or Utilities performing
work within the City's Rights-of-way. Such permits are in addition to any other
approvals that may be required.
Construction in the Rights-of-way without a permit is expressly allowed in the
event of an emergency.
(1) Annual General Permit
A Utility shall apply for an Annual General Permit no later than November 1 of
each year, and the effective dates of that permit shall be from January 1 until
December 31 of the subsequent year. A Utility Annual General Permit shall be
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required of Utilities existing within the Rights-of-way prior to January 1 of the
effective year of the permit for the following activities:
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(a)
Telecommunications service providers - new customer service:
1. installation of service drops from serving location;
2. installation of a new buried distribution cable that does
not cross or begin in the pavement;
3. extension of a buried distribution cable that does not
cross or begin in the pavement;
4. extension of two-way four inch conduit system that does
not cross or begin in the pavement;
5. adding a new terminal to existing cable;
6. pulling in new underground feeder cables in on existing
permitted conduit or manhole and conduit system;
7. digging of a splice hole to splice a new cable or adding a
terminal;
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8.
digging of a splice hole for cable acceptance testing for
quality;
9. digging of a splice hole to change the count of a cable leg
for new service; and
10. extension of existing aerial distribution cable from
existing poles providing other aerial utility service still
exists and providing it does not cross the pavement.
(b) Telecommunications service providers - maintenance of existing
Facilities:
1. replacement of existing service drops;
2. replacement! repair of existing terminals;
3. replacement! repair of existing aerial cable providing
other aerial utility service still exists and providing it does
not cross the pavement;
4.
replacement! repair of existing underground feeder cable
in an existing permitted manhole and conduit system;
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pumping water out of a manhole to maintain
underground cables in conduit system;
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6. digging of splice holes to locate and repair air leaks in
cables;
7. digging of a splice hole to change the count of a cable;
8. digging of a splice hole to add a side leg off feeder cable;
9. digging of a hole to repair broken conduits;
10. digging of a splice hole for cable acceptance testing for
quality;
11. digging of a splice hole to repair wet or damaged cable;
12. digging of a hole to verify the location of buried facilities;
13. removal of facilities no longer needed for services;
14. adjust aerial facilities to meet National Electric Safety
Code; and
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15. any facility relocations required for City improvements.
(c) Cable service providers and Electric Utilities:
1. routine maintenance of equipment, including, but not
limited to, poles, overhead/underground transformers,
streetlights and brackets, wire and cable (aerial or
underground), pedestals, switches, arresters, risers,
fuses and all associated hardware;
2. installation of equipment in order to provide new
customer service, providing it does not cross the
pavement;
3. extend and/or replace existing facilities parallel to the
Rights-of-way, provided it does not cross pavement;
4. replace, repair, or upgrade existing facilities, provided it
does not cross pavement;
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5.
retire services and mains;
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6. install monitoring devices as necessary;
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perform field inspections for conditions and locations of
electric facilities;
8. perform miscellaneous minor maintenance related work;
9. install electric facilities in existing casing/pipe or conduit
system;
10. removal of facilities no longer needed for service;
11. adjust aerial facilities to meet National Electric Safety
Code; and
12. any facility relocations required for City improvements.
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(d) A Utility operating under an Annual General Permit should
provide the City staff with weekly locations and schedule of
construction in the Rights-of-way. If a Utility is operating under
an Annual General Permit and the Construction is not on a
provided weekly map and schedule, the Utility must notify the
City staff at least 24 hours before commencement of such
construction. The City staff shall also be notified within 24 hours
of completion of construction in the Rights-of-way pursuant to
this subsection.
(e) A Utility must submit the following to obtain an Annual General
Permit:
1. name and address of the Utility;
2. a generalized maintenance of traffic control plan and
erosion control plan;
3. either proof of a valid franchise or valid registration with
the City, pursuant to Chapter 32, Code of Ordinances, or
a letter from the City Manager stating that the Utility is
expressly permitted by the City to operate within the
Rights-of-way without a franchise or registration; and
4. any other information as the City Staff shall find
reasonably necessary to the determination of whether a
permit should be issued hereunder.
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(f)
A Utility engaging in construction in the Rights-of-way under an
Annual General Permit is subject to the construction
specifications in Section 28.95.
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(2) Rights-of-way construction permit
(a) Unless operating under an Annual General Permit or in the case
of an emergency, a Utility shall obtain a Rights-of-way
Construction permit prior to any construction in the Rights-of-
way. The permit application shall contain at the minimum the
following information:
1. the addresses of the properties located at the termination
points of the proposed work area;
2. Name and address of the party doing the work;
3. Name and address of the party requesting the work, if the
work is not to be performed by the Utility;
4. Location of the work area, including right-of-way and
pavement width;
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5.
a site map for the construction detailing the existing
conditions, including but not limited to existing utilities,
and the proposed work;
6. a maintenance of traffic plan;
7. an erosion control plan;
8. a tree survey showing all protected trees impacted by the
proposed work;
9. a proposed timetable which contains a detailed
description of each phase of construction;
10. unless operating under an Annual General Permit, proof
of a valid franchise or valid registration with the City, or a
letter from the City Manager stating that the Utility is
expressly permitted by the City to operate within the
Rights-of-way without a franchise or registration; and
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11. any other information as the City Staff shall find
reasonably necessary to assure adherence to
construction specifications contained in Section 28.95.
(b) Any plans submitted shall not unreasonably or unnecessarily
conflict with, create access difficulty, or otherwise adversely
affect the City's use and Construction of any of its utilities.
(c) The City shall, within five working days of receipt of a completed
application, issue a decision regarding a permit request. If the
permit is not issued, the City shall provide the Utility with
reasons why the permit was not issued. The Utility shall have
three days to cure the defects in their application for a permit for
construction in the Rights-of-way, and if the defects are cured,
the City shall approve the scheduled construction. If the Utility
does not cure the defects in its application for permit, the City
shall deny the issuance of the permit. The Utility may reapply
for a permit at any time after a final denial.
(d) If a Utility wishes to challenge the denial of a permit, the Utility
may submit a request for appeal to the City Manager no later
than thirty days after final denial of the permit. The City
Manager shall render a decision on the appeal within ten days
after submission of the appeal.
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(e) If the Utility wishes to challenge the denial of a permit by the
City Manager, the Utility may submit a notice of appeal to the
City Commission no later than thirty days after the denial of the
permit. The City Commission shall hear the appeal at the next
scheduled regular meeting of the Commission. The City
Commission shall render a decision on the appeal in writing
within ten days after hearing the appeal. The decision of the
City Commission shall be final.
(f) A Utility shall contact the City Public Works Field Inspections
Division at least 48 hours before construction will begin.
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(g) Commencement of construction shall take place as soon as
possible after issuance of a permit by the City, but not later than
five days after Florida One-call line location, as required by
Chapter 556, Florida Statutes. If construction of an approved
plan is not commenced within three months of the issuance of
the necessary permit or a shorter time to be determined by the
City Staff for good cause, unless the Utility provides good cause
in writing for the delay, it is presumed that the Utility failed to
proceed expeditiously, and the City Staff shall revoke the
subject permit.
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(h) Within 24 hours after completion of construction in the Rights-of-
way, the Utility shall notify the City Staff of completion via
facsimile or via telephone. After notification is received, the
permit issued automatically expires, provided that the site has
been restored.
(3) Permit Fees
(a) Each application for an Annual General Permit or a Rights-of-
way Construction Permit shall be accompanied by a fee as set
out in Appendix A to this Code, established by resolution by the
City Commission, to cover the cost of processing the
application.
(b) Telecommunications service providers are exempt from this fee.
If Laws of Fla. 2000-260 is repealed, Telecommunications
service providers shall be subject to this fee as if Laws of Fla.
2000-260 had never been passed.
(c)
A Utility possessing a franchise with the City on the effective
date of this Section, is exempt from this fee. Any Utility
negotiating with the City for a franchise after the effective date
of this Section shall have the ability to be exempt from the
permit fee if the franchise fee represents the maximum fee
allowed by law for use of the Right-of-way or if the franchise
states that the franchise fee represents full or total
compensation for the use and occupation of the Right-of-way.
Sec. 28.94. Emergencies.
If an Emergency arises, a Utility may repair any Facilities affected
without obtaining the usual necessary permits. If a Utility begins any Construction in
the Rights-of-way due to an Emergency, the Utility or its designee shall notify the
City staff within 24 hours. A Utility engaging in emergency construction in the
Rights-of-way is subject to the construction specifications in Section 28.95.
Sec. 28.95. Construction Specifications.
(1) All construction of any facilities in the Rights-of-way by any Utility shall be
performed in an orderly and professional manner.
(2) The City reserves the right to limit the work of the Utility to assure a minimum
of inconvenience to the traveling public and the citizens living and/or working in the
area.
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(3) Unless state or federal law or a state or federal agency with jurisdiction over
the Utility require otherwise, the City may request that a Utility locate its facilities
within a specific portion of the Rights-of-way, so long as the request is reasonable
and not technically or economically impossible.
(4) If any Utility seeks to place any new facilities in the Rights-of-Way, those
facilities shall be placed underground, unless federal or state law or a federal or
state agency preempt the City's right to require the Utility to place facilities
underground or unless it is technically or economically impossible to do so.
(5) Conduits shall be stacked or bundled so as to occupy as little space as
possible in the Rights-of-way.
(6) Except as otherwise provided by state or federal law or a state or federal
agency with jurisdiction over the Utility, poles that meet the definition of new facilities
shall not be placed in the Rights-of-Way by a Utility.
(7) If any underground facilities are to be constructed under pavement in the
Right-of-way, the Utility constructing said facilities shall use a boring technique. If
boring is economically or technically impossible, the Utility may seek approval from
the City Staff to cut any pavement or excavate in order to construct facilities.
Pavement shall not be cut unless no other reasonable construction alternative is
available and no alternative exists as to the desired route that will avoid the cutting
of the pavement.
(8) If there is an active plan to resurface any Right-of-way within twelve months,
a Utility may cut the pavement of a Right-of-way despite the provisions of
subparagraph (7).
(9) Prior to the commencement of any construction, the Utility shall obtain all
required permits from the city engineering, building, or other appropriate
departments prior to any construction being performed in the City's Rights-of-way.
Permits will be issued to a Utility or its qualified contractors only on approved plans,
which shall be submitted on or before the request for construction permit. All work
shall be done in accordance with the City's specifications.
(10) The City reserves the right to require relocation and construction of such
portions of the Utility's Facilities as public safety may dictate.
(11) A City Public Works Inspector shall be present at various times during
construction of facilities in order to assure compliance with any permits or approvals
issued. The Utility and/or its contractor is responsible for safety and is required to
meet all Federal, State, and local construction standards.
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(12) At all times, at least one individual performing construction on facilities
shall speak English.
(13) If any terminals, cross-connect boxes, pedestals, junction boxes or other
like facilities are to be placed in the Rights-of-way, they shall be placed as close
to the property lines of adjacent private property as possible. Unless otherwise
required by state or federal law or state or federal agency, and unless technically
or economically impossible, all new construction of terminals, cross-connect
boxes, pedestals, junction boxes or other like facilities shall be placed at or below
grade. The smallest and least obtrusive terminals, cross-connect boxes,
pedestals, junction boxes or other like facilities shall be exclusively used.
(14) Storm sewer inlets shall be protected from siltation at all times.
(15) Following construction all disturbed areas must be stabilized with sod,
grass, mulch or other means approved by City staff.
(16) Soil stockpiles to remain for more than 24 hours must be protected by
measures which prevent wind or water erosion.
(17) When work is adjacent to surface water bodies or wetlands silt fences
. must be provided.
(18) If a Utility seeks to permanently or temporarily remove any greenery from
the Rights-of-way, the Utility seeking to remove the greenery shall consult with
the City's Public Services Department.
(19) Any permanent removal of greenery from Rights-of-way or public land is
specifically prohibited unless it is necessary. Permanent removal of greenery is
presumed unnecessary and specific facts regarding the necessity of removal
shall be provided to the Public Services Department. For purposes of this
subparagraph, necessity shall mean that the wires or cables cannot pass clearly
without any branches or roots touching them and that the branches or roots
threatening to touch the wires or cables are major structural branches or roots
that may cause a safety hazard or the death of the tree if removed.
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(20) If any Utility seeks to temporarily remove greenery from Rights-of-way or
public lands to install underground facilities or otherwise construct facilities, the
Utility shall submit a plan to the Public Services Department that proposes to
restore the disturbed area to its previous state, or as close as possible to its
previous state. If the plan is acceptable, the Utility may remove the greenery
and restore the area according to its plans. If the plan is unacceptable, the
Public Services Department shall state the defects in the plan within thirty days of
the proposed construction. If the Utility resubmits a plan for restoration
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correcting the defects, the Public Services Department shall approve the plan,
unless the City has inappropriately applied its requirements.
(21) If any Utility finds it necessary to trim or remove trees or greenery in the
Rights-of-way or on public land in order to avoid contact between wires or cables
and branches, the Utility shall notify the Urban Forestry Division at least 48 hours
prior to the proposed trimming. At the option of the City, the greenery may be
trimmed either by the City at the expense and under the supervision of the Utility
or by the Utility under the supervision of the City. When authorized, trimming of
greenery shall be limited to the area required for clear cable passage and shall
not include major structural branches which materially alter the appearance and
natural growth habits of the tree. Any greenery may not be trimmed in a manner
that would be in violation of Article 3 of the Clearwater Community Development
Code. The Utility shall be responsible for any and all damages to any greenery
as a result of trimming or to the land surrounding any tree or greenery.
(22) The requirements for barricading, root pruning, and proper pruning of
protected trees, as contained in Article 3 of the Clearwater Community
Development Code, apply to all construction covered by this section.
Sec. 28.96. Collocation and Cooperation
(1) Whenever possible, all Utilities shall occupy one trench, unless technically
or economically impossible. If a Utility cannot occupy the same trench, that
Utility shall create a new trench into which all Utilities thereafter installed shall
collocate unless technically or economically impossible or until there is no space
remaining for any additional Utilities.
(2) Unless technically impossible, a telecommunications service provider shall
install its facilities within an existing conduit, if space is available in an existing
conduit and agreeable terms can be reached between the owner of the conduit
and the telecommunications service provider seeking to enter into the conduit.
The owner of a conduit may reserve inner ducts and conduits for future use, and
if the only available space is a conduit reserved for future use or inner ducts
reserved for future use, it is deemed that there is no space in the existing
conduit. If there is no space in an existing conduit, a telecommunications service
provider may construct a new conduit or direct bury its facilities within an existing
trench, as provided in subsection (1).
3) A Utility shall install its facilities simultaneously with other Utilities
whenever possible. The Utility shall notify in writing all other Utilities currently
located in a portion of the Rights-of-way that a Utility has submitted an
application for a Right-of-way Construction Permit.
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Sec. 28.97. Damage or Injury caused by Utility
In the event that a Utility, during construction of facilities under any of the permits
issued pursuant to this Section or during an Emergency, negligently or
intentionally causes damage to pavement, sidewalks, driveways, facilities owned
by the City, facilities owned by other Utilities, or other property, public or private,
the Utility shall notify the City and the owner of the damaged property, if not the
City, within 24 hours of such damage. The Utility which caused the damage or
its authorized agent shall, at its own expense and in a manner approved by the
City, replace and restore such places to the same condition which existed before
said work was commenced within a reasonable time period acceptable to the
City staff. If the owner of the damaged property requests that said owner repair
the damage caused by the Utility, and repairs the damage in a reasonable time
period acceptable to City staff, the Utility shall reimburse the owner for the
reasonable cost and labor of repairs resulting from the damage. The Utility shall
further maintain all such restoration in the condition approved by the City for a
period of one year following such restoration. If, during Construction of a Utility's
Facilities by the Utility, a claim arises against the Utility and/or the City as a result
of the Utility's negligent or intentional acts, the Utility will hold harmless and
defend the City against all claims, pursuant to Chapter 337, F.S. The City may
require a Utility to present proof of insurance prior to the commencement of
Construction in the Rights-of-way.
Sec. 28.98. Relocation required if requested.
(1) If the City finds it necessary to perform construction in or on the Rights-of-
way, and any Utility's facilities are located in such a manner as to prevent access
to, construction of, maintenance of, or expansion of, the Rights-of-way, the City
may require any Utility to remove and/or relocate its facilities at the Utility's own
expense.
(2) The City shall notify all affected Utilities in writing at least sixty days prior
to Construction. The City shall require the Utilities to respond within ten days of
receipt of the notice, stating the amount of time, in days, the Utilities estimate it
will require to remove or relocate their facilities. Depending on the scope of the
project, the City may grant additional time to the Utilities to respond to the notice.
(3) If any facilities are removed or relocated pursuant to this paragraph, the
Utility shall comply with this Section, except that the Utility will not need to apply
for a permit.
(4) In-place, out of service utilities remain the responsibility of the Utility and
are subject to the requirements of this sub-section.
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Sec. 28.99. Applicability to other Code sections.
The provisions of this ordinance supercede conflicting or overlapping provisions
contained in the Clearwater Code of Ordinances and such conflicting or
overlapping provisions are hereby repealed.
Section 2. This ordinance shall take effect immediately upon adoption.
PASSED ON FIRST READING
November 16, 2000
PASSED ON SECOND AND FINAL
READING AND ADOPTED
December 12, 2000
Approved as to form:
Attest:
( ,feel", e (' ~
i . Jane Hayman
'" Assistant City Attorney
r~~. )L_j)~__
C~nthla E.:f~udeau
CIty Clerk .
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