Fort Walton Beach Ordinance — 1459--Communication Facilities in ROW — reading text

Services Provider with an existing Communications Facility in the Public Rights-of-Way of the City has sixty (60) 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. Page -19- Section 11 - Insurance 1. A Registrant shall provide, pay for and maintain satisfactory to the City 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 reasonably acceptable to the City. All liability policies shall provide that the City is an additional insured as to the activities under this Ordinance. 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 City annually. Thirty (30) days advance written notice by registered, certified or regular mail or facsimile as determined by the City must be given to the City 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 City. 2. The limits of coverage of insurance required shall be not less than the following: (a) Worker's Compensation and Employer's Liability Insurance Worker's Compensation-Florida Statutory Requirements Employer's Liability - $ 500,000 imit each accident (b) Comprehensive General Liability $ 1,000,000 for property damage per occurrence; $ 2,000,000 for property damage aggregate; $ 5,000,000 for personal bodily injury or death to any one person; $ 10,000,000 bodily injury or death aggregate per single accident or occurrence; and $ 2,000,000 aggregate products and completed operations coverage. (c) Automobile Liability Page -20- $ 1,000,000 for bodily injury and consequent death per occurrence; $ 1,000,000 for bodily injury and consequent death to any one person; and $ 500,000 for property damage per occurrence. Section 12 - Indemnification 1. A Registrant shall, at its sole cost and expense, indemnify, hold harmless, and defend the City, 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 City arising out of the placement or maintenance of its Communications System or 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 claims caused by the negligence, gross negligence or wanton or willful acts of the City. This provision includes, but is not limited to, the City’s reasonable attorneys' fees incurred in defending against any such claim, suit or proceedings. The City agrees to notify the Registrant, in writing, within a reasonable time of the City receiving notice, of any issue it determines may require indemnification. Nothing in this Section shall prohibit the City from participating in the defense of any litigation by its own counsel and at its own cost if in the City’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: (a) as denying to either party any remedy or defense available to such party under the laws of the State of Florida; or (b) as a waiver of sovereign immunity beyond the waiver provided in Section 768.28, Florida Statutes (2000), as it may be amended. 2. The indemnification requirements shall survive and be in effect after the termination or cancellation of a Registration. Page -21- Section 13 - Construction Bond 1. Prior to issuing a permit where the work under the permit will require restoration of Public Rights-of-Way, the City may require a construction bond to secure the restoration of the Public Rights-of-Way. Notwithstanding the foregoing, a construction bond hereunder may only be required to the extent that the cost of the restoration exceeds the amount recoverable against the Security Fund as provided in Section 14. (a) Twelve (12) months after the completion of the restoration in Public Rights-of-Way in accordance with the bond, the Registrant may eliminate the bond. However, the City may subsequently require a new bond for any subsequent work in the Public Rights-of-Way. (b) The construction bond shall be issued by a surety having a rating reasonably acceptable to the City; shall be subject to the approval of the City Manager or his or her designee; and shall provide that: "For twelve (12) months after issuance of this bond, this bond may not be canceled, or allowed to lapse, until sixty (60) days after receipt by the City, by certified mail, return receipt requested, of a written notice from the issuer of the bond of intent to cancel or not to renew." 2. The rights reserved by the City with respect to any construction bond established pursuant to this Section are in addition to all other rights and remedies the City may have under this Ordinance, or at law or equity. 3. The rights reserved to the City under this Section are in addition to all other rights of the City, whether reserved in this Ordinance, or authorized by other law, and no action, proceeding or exercise of a right with respect to the construction bond will affect any other right the City may have. Section 14 - Security Fund At or prior to the time a Registrant receives its first permit to place or maintain a Page -22- Communications Facility in Public Rights-of-Way after the effective date of this Ordinance, the Registrant may be required to file with the City, for City approval, an annual bond, cash deposit or irrevocable letter of credit in the sum of $25,000 or other appropriate amount as determined by the City having as a surety a company qualified to do business in the State of Florida, and acceptable to the City Manager or his or her designee, which shall be referred to as the "Security Fund." The Security Fund shall be maintained from such time through the earlier of: (a) transfer, sale, assignment or removal of all Communications Facilities in Public Rights-of-Way; or (b) twelve (12) months after the termination or cancellation of any Registration. 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 Security Fund 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 15 of this Ordinance, there shall be recoverable, jointly and severally from the principal and surety of the Security Fund, any damages or loss suffered by the City as a result, including the full amount of any compensation, indemnification or cost of removal, relocation or abandonment of any Facilities of the Registrant in Public Rights-of-Way, plus a reasonable allowance for attorneys' fees, up to the full amount of the Security Fund. Notwithstanding the foregoing, the City may in its discretion not require a Security Fund or may accept a corporate guarantee of the Registrant or its parent company. Page -23- Section 15 - Enforcement Remedies 1. A Registrant's failure to comply with provisions of this Ordinance shall constitute a violation of this Ordinance and shall subject the Registrant to the code enforcement provisions and procedures as provided in Chapter 20, Article II, Sections 20-86 through 20-90 of the Fort Walton Beach City Code. In addition, at the City’s discretion, violation of this Ordinance may be punishable as provided in Section 1-8, Fort Walton Beach City Code. 2. Failure of the City to enforce any requirements of this Ordinance shall not constitute a waiver of the City’s right to enforce that violation or subsequent violations of the same type or to seek appropriate enforcement remedies. Section 16 - Abandonment of a Communications Facility 1. Upon Abandonment of a Communications Facility owned by a Registrant in Public Rights-of-Way, the Registrant shall notify the City within ninety (90) days. 2. The City may direct the Registrant by written notice to remove all or any portion of such Abandoned Facility at the Registrant's sole expense if the City determines that the Abandoned Facility’s presence interferes with the public health, safety or welfare, which shall include, but shall not be limited to, a determination that such Facility: (a) compromises safety at any time for any Public Rights-of-Way user or during construction or maintenance in Public Rights-of-Way; (b) prevents another Person from locating facilities in the area of Public Rights-of-Way where the Abandoned Facility is located when other alternative locations are not reasonably available; or (c) creates a maintenance condition that is disruptive to the Public Rights-of-Way’s use. In the event of (b), the City may require the third Person to coordinate with the Registrant that owns the existing Facility for joint removal and placement, where agreed to by the Registrant. 3. In the event that the City does not direct the removal of the Abandoned Facility, the Page -24- Registrant, by its notice of Abandonment to the City, shall be deemed to consent to the alteration or removal of all or any portion of the Facility by the City or another Person at such third party’s cost. 4. If the Registrant fails to remove all or any portion of an Abandoned Facility as directed by the City within a reasonable time period as may be required by the City under the circumstances, the City may perform such removal and charge the cost of the removal against the Registrant. Section 17 - Force Majeure In the event a Registrant's performance of or compliance with any of the provisions of this Ordinance is prevented by a cause or event not within the Registrant's control, such inability to perform or comply shall be deemed excused and no penalties or sanctions shall be imposed as a result, provided, however, that such Registrant uses all practicable means to expeditiously cure or correct any such inability to perform or comply. For purposes of this Ordinance, causes or events not within a Registrant's control shall include, without limitation, acts of God, floods, earthquakes, landslides, hurricanes, fires and other natural disasters, acts of public enemies, riots or civil disturbances, sabotage, strikes and restraints imposed by order of a governmental agency or court. Causes or events within Registrant's control, and thus not falling within this Section, shall include, without limitation, Registrant's financial inability to perform or comply, economic hardship, and misfeasance, malfeasance or nonfeasance by any of Registrant's directors, officers, employees, contractors or agents. Section 18 - Reservation of Rights and Remedies 1. The City 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 Page -25- Public Rights-of-Way on or after the effective date of this Ordinance and shall apply to all existing Communications Facilities in the Public Rights-of-Way prior to the effective date of this Ordinance, to the full extent permitted by State and Federal law. 3. The adoption of this Ordinance is not intended to affect any rights or defenses of the City or a Communications Service Provider under any existing franchise, license or other agreements with a