§ 58-73. Registration for placing or maintaining communications facilities in the public rights-of-way.

(a)

All persons, including, but not limited to a communications services provider, pass-through provider, or wireless infrastructure provider, seeking to place or maintain a communications facility, backhaul facility, utility pole for collocation of a small wireless facility, or wireless support structure in public rights-of-way in the city pursuant to this article shall first register with the city in accordance with this article before being eligible to receive a permit. Subject to the terms and conditions prescribed in this article and approval of a permit, a registrant may place or maintain a communications facility in public rights-of-way. A communications services provider, pass-through provider, or wireless infrastructure provider with an existing communications facility in the public rights-of-way of the city as of the effective date of this article has 90 days from the effective date of this article to comply with the terms of this article, including, but not limited to obtaining an effective registration, or be in violation thereof.

(b)

Requirements for an effective registration. A person that desires to place or maintain a communications facility, backhaul facilities and an infrastructure provider that seeks to apply to install a utility pole for collocation of a small wireless facility in the public rights-of-way in the city shall file an original registration, along with two complete copies with the city manager that shall include the following information:

(1)

Name of the registrant;

(2)

Name, address and telephone number of the registrant's primary contact person in connection with the registration and name, address, telephone number and email addresses of the registrant's primary contact person in the event of an emergency or issue involving its facilities, which shall be monitored 24 hours per day, seven days per week.

(3)

The type of communications services that the registrant provides or intends to provide within the city (if more than one, state all that apply), or, if none, indicate that the registrant is a communications facility provider, wireless infrastructure provider, or pass-through provider, as the case may be, and whether the registrant currently remits or intents to remit communications service tax, as authorized in F.S. ch. 202:

(4)

Evidence of the insurance coverage required under this article;

(5)

Acknowledgment that registrant has received and reviewed a copy of this article;

(6)

A copy of the registrant's certificate of authorization, public convenience and necessity, or other similar certification or licenses issued by the Florida Public Service Commission, the Florida Department of State, the FCC, or other federal authority. A copy of federal or state certification authorizing the registrant to provide communications services, if any;

(7)

If the registrant is a corporation, proof of authority to do business in the State of Florida, including the number of the corporate certification; and

(8)

A permanent performance bond to guarantee compliance in accordance with this article.

(c)

Insurance.

(1)

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 in Best's Insurance Guide of A or better, or having a rating acceptable to the city. All liability policies shall provide that the city 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 city annually. Thirty days advance written notice by registered or certified mail must be given to the city of any cancellation, intent not to renew, or reduction in the policy coverages. In addition to the certificate of insurance, the registrant shall provide a copy of the insurance policy, if requested by 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 employer's liability: Florida statutory requirements.

b.

Comprehensive general liability. Bodily injury and property damage: $3,000,000.00 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: $3,000,000.00 combined single limit each accident.

d.

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 city 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.

e.

Self-insurance. Registrant may satisfy the insurance requirements and conditions of this division under a self-insurance plan and/or retention if acceptable to the city in its sole discretion based on the city's evaluation of the registrant's ability to comply with the Code. Registrant agrees to notify the city, and/or indicate on the certificate(s) of insurance when self-insurance is relied upon or when a self-insured retention meets or exceeds $100,000.00. 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 statement, which the registrant agrees to furnish for the purpose of determining the registrant's financial capacity self-insure.

(3)

Right to review. City, by and through its risk manager, 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 article. City 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.

(4)

This article shall not be construed to affect in any way the city's rights, privileges and immunities as set forth in F.S. § 768.28. Insurance under this article 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 article and subject to the remedies as set forth herein. Notwithstanding the foregoing, the city may, in its sole discretion, require increased or decreased levels of insurance.

(d)

Permanent performance bond to guarantee compliance. For an effective registration, a registrant shall file with the city, for city approval, a performance bond fund in the amount of $50,000.00, in the form of a cash deposit or irrevocable letter of credit. Any cash deposit shall be held in an account maintained by the city and shall be used solely as provided in this article. The letter of credit shall be issued by a financial institution within Volusia County and shall be in a form and issued by a financial institution acceptable to the city attorney. The permanent performance bond is not required in a registrant's capacity, if applicable, as a dealer of communications services. The permanent performance bond is required and shall be conditioned on the full and faithful performance by the registrant of all requirements, duties and obligations imposed by the provisions of this article, including, but not limited to, requirements to restore the public rights-of-way and guarantee such restoration, remove abandoned facilities, pay appropriate compensation to the city for collocation on city poles, indemnify the city and pay for damages to city or other facilities as a result of registrant's placement or maintenance of communications facilities. Should the city draw upon the permanent performance bond, the city shall promptly notify the registrant, and the registrant shall promptly restore the cash deposit and/or letter of credit, as may be necessary, to the full amount. In the event a registrant fails to perform its duties and obligations imposed upon the registrant by the provisions of this article, subject to appropriate notice, there shall be recoverable from the performance bond any damages or loss suffered by the city 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. The cash deposit or letter of credit shall be furnished as frequently as necessary to provide a continuing guarantee of the registrant's full and faithful performance at all times. A registrant may request that the city return the cash deposit or letter of credit or approve the cancellation of the performance bond upon the expiration of a registrant's obligations pursuant to the Code and in no event while a registrant maintains obligations with respect to facilities in the public rights-of-way. In the event the city returns the cash deposit, it shall be without interest.

(e)

Review of registration. The city shall review the information submitted by the registration applicant. If the applicant submits information in accordance with this subsection the city shall notify the applicant of the effectiveness of registration in writing. If the city determines that the information has not been submitted in accordance with this subsection, the city shall notify the applicant in writing of the non-effectiveness of registration, and reasons for the non-effectiveness. The city shall so notify an applicant within 30 days after receipt of registration information from the applicant. A notice of non-effectiveness of a registration shall not preclude an applicant from reapplying or filing subsequent applications for registration under the provisions of this article.

(f)

Regulations applicable to registrations.

(1)

A registration shall not convey any title, equitable or legal, in the public rights-of-way. Registration under this article governs only the placement or maintenance of communications facilities in public rights-of-way. To the extent not inconsistent with applicable law, registration does not excuse a communications services provider from obtaining appropriate access or pole attachment agreements before locating its facilities on the city's or another person's facilities. Within 30 days of any change in the information required to be submitted by a registrant, a registrant shall provide updated information to the city.

(2)

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 city. Registrations are expressly subject to any future amendment to or replacement of this article, and further subject to any additional city ordinances, as well as any applicable state or federal laws.

(3)

Unregistered use of public rights of way. To the extent that a communications services provider, wireless infrastructure provider or pass-through provider with facilities in the public rights-of-way, is not registered as required herein, said person shall register with the city pursuant to this article within 90 days from the effective date of this article. No new permits shall be issued to unregistered persons with communications facilities within the public rights-of-way and such persons may be subject to the enforcement remedies.

(4)

Registration renewal. A registrant shall renew its registration with the city by September 30, of even-numbered years in accordance with the registration requirements in this article, as may be amended, 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. 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 city restricting the issuance of additional permits until the communications services provider has complied with the registration requirements of this article.

(5)

Indemnification. 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 article, provided however, that a registrant's obligations hereunder shall not extend to any damages caused by the gross negligence, or wanton or willful acts of the city and to the extent not inconsistent with applicable law. In no event shall the city be liable for any damage or destruction to a communications facility placed in the city public rights-of-way including on a city utility pole. This provision includes, but is not limited to, the city's reasonable attorneys' fees incurred in defending against any such claim, suit or proceedings. City agrees to notify the registrant, in writing, within a reasonable time of city receiving notice, of any issue it determines may require indemnification. Nothing in this article 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 article 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;

b.

As consent by the city to be sued; or

c.

As a waiver of sovereign immunity beyond the waiver provided in F.S. § 768.28, as it may be amended.

(6)

A registrant may cancel a registration upon written notice to the city 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 shall not cancel a registration if the registrant continues to place or maintain any communications facilities in public rights-of-way.

(7)

Liens. No liens shall apply to public rights-of-way or city property as a result of the placement or maintenance of a registrant's facilities in the public rights-of-way or on a city utility pole. Any liens on a registrant's facilities shall be subordinate to the rights of the city pursuant to this article. In the event any liens are filed on the city property or public rights-of-way, the registrant shall discharge such lien at its expense within ten days of receiving notice, or the city may discharge such lien, and charge such costs plus reasonable attorney's fees to registrant.

(8)

A registrant shall pay any personal property or other taxes or assessments that may be imposed on the registrant's facilities placed or maintained in the public rights-of-way or on the city's property including a utility pole as a result of a registrant's collocation on a city utility pole. A registrant shall reimburse the city for taxes paid by the city as a result of a registrant's facilities being placed or maintained in the public rights-of-way or on a city-owned utility pole.

(9)

Reports and records.

a.

Upon reasonable request, a registrant shall provide the following documents to the city as received or filed:

1.

Any pleadings, petitions, notices, and documents, which may directly impact the obligations under this article and which are reasonably necessary for the city to protect its interests under this article.

2.

Any request for protection under bankruptcy laws, or any judgment related to a declaration of bankruptcy.

b.

The city shall keep any documentation, books and records of the registrant confidential to the extent required under Florida Statutes.

(10)

Termination of registration. The city may terminate a registration if:

a.

A federal or state authority suspends, denies, or revokes a registrant's certification or license required to provide communications services:

b.

The registrant's placement or maintenance of a communications facility in the public rights-of-way presents an extraordinary danger to the general public or other users of the public rights-of-way and the registrant fails to remedy the danger promptly after receipt of written notice;

c.

The registrant abandons its facilities in the public rights-of-way; or

d.

The registrant commits substantial and material violations of any of the provisions of applicable codes including, but not limited to, this article.

(11)

Notice of intent to terminate. Prior to termination, the city shall notify the registrant with a written notice setting forth all matters pertinent to the proposed termination action, including the reason therefore. The registrant shall have 30 days after receipt of such notice within which to address or to eliminate the reasons or within which to present a plan, satisfactory to the city, to accomplish the same and to take such steps as are necessary to render every portion of the facilities remaining in the public rights-of-way of the city safe. If the plan is rejected by the city, the city shall provide written notice of such rejection within 15 days of receipt of the plan to the registrant and shall make a final determination as to termination of the registration and the terms and conditions relative thereto.

(12)

Post termination action. In the event of termination, following any appeal period, the former registrant shall: (a) in accordance with the provisions of this article and as may otherwise be provided under state law, notify the city of the assumption or anticipated assumption by another registrant of ownership of the registrant's communications facilities in the public rights-of-way; or (b) provide the city with an acceptable plan for removal or disposition of its communications facilities in the public rights-of-way and restore the public rights-of-way to its condition immediately prior to the removal. If a registrant fails to comply with this subsection, the communications facilities are deemed to be abandoned and the city may exercise any remedies or rights it has at law or in equity as well as the city's remedies pursuant to this article, including, but not limited to, utilize or allow other persons to utilize the registrant's facilities. The obligations of the registrant hereunder shall survive the termination of a registration. A registrant that has its registration terminated by the city under this article may reapply for registration one year after the termination date of the prior registration, unless otherwise permitted to reapply at the sole discretion of the city.

(13)

When removal not authorized or required. In the event of termination of a registration, this article does not authorize the city to cause the removal of communications facilities used to provide another service for which the registrant or another person who owns or exercises physical control over the communications facilities holds a valid certification or license with the governing federal or state agency, if required, for the provision of such service, and is registered with the city, if required.

(14)

Transfer or control, sale or assignment of assets. 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 article. Written notice of any such transfer, sale or assignment shall be provided to the city within 20 days of the effective closing date of the transfer, sale or assignment. If the transferee, buyer or assignee is a current registrant, and is in compliance with the provisions of this article, then the transferee, buyer or assignee is not required to re-register. If the transferee, buyer or assignee is not a current registrant, or has an effective registration that is not in compliance with this article as it may have been amended, then the transferee, buyer or assignee shall register as provided in this article within 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 appropriate city officials that the transferee, buyer or assignee is the new applicant.

(15)

Pledges in trust or mortgages of the registrant may be made to any person with notice to the city. Any mortgage, pledge, lease or other encumbrance on the communications facilities shall be subject and subordinate to the rights of the city under this article and applicable law.

(16)

City 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 article shall affect the city's authority to add, vacate or abandon public rights-of-way, and the city makes no warranties or representations regarding the availability of any added, vacated or abandoned public rights-of-way for communications facilities.

(17)

Conditional use of public rights-of-way.

a.

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 city for such activities as may be required by applicable law.

b.

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 maintain facilities in the public rights-of-way of the city, such person or registrant shall make no claim, nor assert any right which will impede the lawful exercise of the city's rights, including requiring the removal of such facilities from the public rights-of-way of the city, regardless of the effect on registrant's ability to place or maintain its own communications facilities in public rights-of-way of the city.

(Ord. No. 2018-13 , § 3, 8-7-2018)