O-616-00 ORDINANCE NO. 616-00
AN ORDINANCE OF MIAMI SHORES VILLAGE, FLORIDA,
AMENDING CHAPTER 22 OF THE CODE OF ORDINANCES BY
ADDING A SECTION TO BE NUMBERED ARTICLE III,
SECTION 22.60, REGARDING TELECOMMUNICATIONS
FRANCHISING FOR USE OF THE PUBLIC RIGHT-OF-WAY;
ESTABLISHING REQUIREMENTS AND CONDITIONS UPON
THE USE OF PUBLIC RIGHTS-OF-WAY BY SUCH ENTITIES;
ESTABLISHING PROCEDURES FOR PROTECTING THE
PUBLIC INTEREST IN SUCH FRANCHISES; PROVIDING FOR
COMPLIANCE; PROVIDING FOR RESERVATION OF
AUTHORITY; PROVIDING FOR NO WAIVER; PROVIDING FOR
NO CONTRACT; PROVIDING FOR SERVICE TO THE
VILLAGE; PROVIDING FOR EXISTING FRANCHISES AND
LICENSES; PROVIDING FOR CONFLICT; PROVIDING FOR
SEVERABILITY; PROVIDING FOR INCLUSION; PROVIDING
FOR EFFECTIVE DATE.
WHEREAS, Miami Shores Village exercises control over certain publicly dedicated
rights of way located within the limits of Miami Shores Village; and
WHEREAS, Miami Shores Village received requests from companies to construct,
maintain and operate their facilities over, under and along Miami Shores Village rights-of-way
for the purpose of providing telecommunications services to Miami Shores Village inhabitants;
and
WHEREAS, the rights-of-way of Miami Shores Village are valuable public properties
acquired and maintained by Miami Shores Village at great expense to its taxpayers and the
rights to use the rights-of-way are valuable rights without which the companies will be required
to invest substantial capital and property acquisition costs; and
WHEREAS, Miami Shores Village desires to ensure that the rights-of-way are used and
restored by the companies in a safe and secure condition to protect the health, safety and
welfare of Miami Shores Village inhabitants; and
WHEREAS, the competitive provision of telecommunications services including local
exchange telecommunications services, is in the public interest and should provide Miami
Shores Village inhabitants with freedom of choice; and
WHEREAS, Miami Shores Village encourages the introduction of new
telecommunications services, technical innovation, and investment in telecommunications
infrastructure; and
WHEREAS, Miami Shores Village intends to exercise the full scope of its municipal
powers, including both its police power and contracting authority, to promote the public interest
and to protect the health, safety and welfare of the inhabitants of the Village; and
WHEREAS, the Miami Shores Village Council finds it appropriate for various operators
to obtain separate franchises as a condition for granting permission to occupy or use the Miami
Shores Village rights-of-way for the provision of telecommunications services;
NOW, THEREFORE, BE IT ORDAINED BY THE VILLAGE COUNCIL OF MIAMI
SHORES VILLAGE, FLORIDA:
Section 1. The foregoing "WHEREAS" clauses are true and correct and hereby ratified and
confirmed by the Miami Shores Village Council.
Section 2. The Code of Ordinances of Miami Shores Village, Florida, is hereby amended
by adding Article III of Chapter 22, which said Article reads as follows:
1. Definitions
1.1. Generally. For the purposes of this Chapter, the following terms,
phrases, words, and abbreviations shall have the meanings given herein, unless otherwise
expressly stated. When not inconsistent with the context, words used in the present tense
include the future tense; words in the plural number include the singular number; and words in
the singular number include the plural number; and the masculine gender includes the feminine
gender. "And" and "or" may be read conjunctively or disjunctively. The words "shall" and
"will" are mandatory, and "may" is permissive. Unless otherwise expressly stated, words not
defined in this Ordinance shall be given the meaning set forth in Title 47 of the United States
Code, and, if not defined therein, the meaning set forth in the Florida Statutes, and, if not
defined therein, their common and ordinary meaning. References to governmental entities
(whether persons or entities) refer to those entities or their successors in authority. If specific
provisions of law referred to herein are renumbered, then the reference shall be read to refer to
the renumbered provision. References to laws, ordinances or regulations shall be interpreted
broadly to cover government actions, however nominated, and include laws, ordinances and
regulations now in force or hereinafter enacted or amended.
1.2. Construction. Utilization or Repair means the named actions
interpreted broadly, encompassing, among other things, installation, extension, maintenance,
replacement of components, relocation, undergrounding, grading, site preparation, adjusting,
testing, make-ready, and excavation.
1.3. FCC means the Federal Communications Commission or its designee.
1.4. Franchise means a non-exclusive right granted by the Franchise
Authority to use Public Rights-of-Way (as defined below) in the Village to provide
Telecommunications Services (as defined below). Any such authorization, in whatever form
granted, shall not mean or include: (i) any other permit or authorization required for the
privilege of transacting and carrying on a business within the Village required by the ordinances
and laws of the Village; (ii) any permit, agreement or authorization required in connection with
operations on public streets or property including, without limitation, permits and agreements
for placing devices on or in poles, conduits or other structures, whether owned by the Village or
a private entity, or for excavating or performing other work in or along public rights-of-way.
1.5. Franchisee means a Person (as defined below) holding a Franchise
Agreement issued pursuant to this Chapter.
1.6. Franchise Agreement means a contract entered into in accordance with
the provisions of this Chapter between the Franchise Authority and a Franchisee (as defined
below) that sets forth, subject to this Chapter, the terms and conditions under which a
Franchisee will operate.
1.7. Miami Shores Village or The Village or Franchise Authority means
Miami Shores Village, a Florida Municipal Corporation, or, as appropriate, any duly authorized
board, authority, agency, council, department of, or any other entity of or acting on behalf of,
Miami Shores Village, Florida, or any duly authorized officer, official, employee, or agent
thereof, any designee of any of the foregoing, or any successor thereto.
1.8. Person means any individual, corporation, partnership, association,joint
stock company,trust, or any other entity, but not the Village.
1.9. Public Rights-of-Way means the surface, the area above, and the area
below the surface of any public street, highway, lane, path, alley, sidewalk, boulevard, drive,
bridge, tunnel, parkway, waterway, public easement, or similar property in which the Village
now or hereafter holds any property interest, which, consistent with the purposes for which it
was dedicated, may be used for the purpose of constructing, operating and repairing a
Telecommunications Facility. Public Rights-of-Way do not include buildings, parks, or other
property owned or leased by the Village. No reference herein, or in any Franchise Agreement
to a Public Right-of-Way shall be deemed to be a representation or guarantee by the Village that
its interest or other rights to control the use of such property is sufficient to permit its use for
such purposes, and a Franchisee shall be deemed to gain only those rights to use the Public
Rights-of-Way as the Village may have the undisputed right and power to grant.
1.10. Telecommunications Facility means a facility for the provision of
Telecommunications Services (as defined below), any portion of which occupies Public Rights-
of-Way. Such term does not include (1) a franchised cable television system to the extent the
cable system is used to solely provide cable television service as defined in Ordinance No. 575-
95 of Miami Shores Village; (2) a facility of an electric utility used solely for providing
electricity; and(3) and open video system that complies with Part 76 of the Rules of the Federal
Communications Commission,47 CFR Part 76, as amended from time to time.
1.11. Telecommunications Services means all telecommunications-related
services including, but not limited to, local telephone service, local exchange telephone service,
basic and non-basic telecommunications services, inter-exchange services, toll telephone
services, alternative access vendor services, private telecommunications services and all other
telecommunications-related services, including, but not limited to, those authorized by the
Florida Public Service Commission.
1.12. Transfer of a Franchise means
1.12.1. the assignment, sale, or transfer of more than 30% of the stock,
partnership share(s) or assets of a Franchisee or any parent corporation, parent entity or holding
company that owns or by ownership of other entities controls the Franchisee; or
1.12.2. the assignment, sale, or direct or indirect transfer of any interest
in a Franchisee that results in the change of control of a Franchisee.
2. Franchise Required
2.1. Any Person that owns, operates or uses a Telecommunications
Facility must obtain a Franchise prior to constructing or using a Telecommunications Facility
in the Public Rights of Way.
2.2. Any operator of an open video system must obtain a
Telecommunications Franchise prior to offering Telecommunications Services.
2.3. Any cable television service provider must obtain a
Telecommunications Franchise prior to offering Telecommunications Services.
2.4. A Telecommunications Franchisee must obtain a cable television
franchise pursuant to Village Ordinance No. 575-95 prior to offering cable television services.
2.5. No Franchise hereunder grants and no Franchise shall convey,
title, equitable or legal, in the Public Rights-of-Way. The right granted by any Franchise
hereunder is only the personal right to occupy rights-of-way, to the extent, for the purposes and
for the period stated in a Franchise Agreement.
3. Franchise Fee
3.1. A Franchisee shall pay to the Franchise Authority compensation
for the use of the Public Rights-of-Way granted pursuant to a Franchise (the "Franchise Fee").
3.2. The Franchise Fee shall be specified in a Franchise Agreement.
3.3. The Franchise Fee may not exceed one (1%) percent of the gross
receipts on recurring local service revenues for services provided within the corporate limits of
the Village. Included within such one (1%)percent maximum fee or consideration are all taxes,
licenses, fees, and other impositions except ad valorem taxes and amounts for assessments for
special benefits, such as sidewalks, street pavings and similar improvements, and occupational
license taxes levied or imposed by the Franchise Authority.
3.4. For Franchisees that do not provide recurring local service, the
Franchise Fee shall be specified in a Franchise Agreement and shall be payable annually based
on actual linear feet of any cable, fiber optic, or other pathway that makes use of the Public
Rights of Way. In no event shall the Franchise Fee imposed pursuant to this subsection be less
than $500.00 per linear mile of any cable, fiber optic, or other pathway that makes use of the
Public Rights-of-Way.
3.5. Any fee or other consideration provided in a Franchise Agreement
in excess of$500.00 per linear mile, shall be applied in a nondiscriminatory manner and shall
not exceed the sum of:
3.5.1. costs directly related to the inconvenience or impairment solely
caused by the disturbance of the Village Rights-of-Way;
3.5.2. the reasonable costs of the regulatory activity of the Franchise
Authority; and
3.5.3. the proportionate share of cost of land for such street, alley or
other Public Rights-of-Way attributable to utilization of the Public Rights-of-Way.
3.5.4. The fee or other consideration imposed pursuant to subsection 3.4
above shall not apply in any manner to any telecommunications services provider who provides
telecommunications services as defined in Florida Statute 203.012(3), for any such services
provided by such service provider.
3.6. In the event applicable law is amended to permit the Franchise
Authority to assess Franchise Fees greater than the amount specified herein, a Franchisee shall
be required to pay the Franchise Authority that greater amount.
3.7. Each Franchisee shall file with the Franchise Authority with the
payment of Franchise Fees, a financial statement setting forth the computation of the revenue
base on which the Franchise Fee is calculated and a detailed explanation of the method of
computation. The statement shall be certified by a certified public accountant or a Franchisee's
chief financial or other duly authorized financial officer.
3.8. Unless otherwise provided in state law, this chapter, or a
Franchise Agreement, Franchise Fees shall be paid to the Franchise Authority quarterly in a
single payment made not later than forty-five (45) calendar days after the end of each calendar
quarter.
3.9. No acceptance by the Franchise Authority of any Franchise Fees
payment shall be construed as an accord that the amount paid is in fact the correct amount, nor
shall such acceptance of such payment be construed as a release of any claim the Franchise
Authority may have for additional sums payable or any other claims.
3.10. The Franchise Fee payment is not a payment in lieu of any tax, fee or
other assessment except as specifically provided in this title, or as required by applicable law.
By way of example, and not limitation, permit fees, occupational license taxes, and assessments
to recover costs associated with the operation and maintenance of the Public Rights of Way that
may be established from time to time by the Village Council are not waived and remain
applicable.
3.11. The Franchise Authority may, upon fifteen (15) calendar days advance
written notice, inspect, examine and audit any and all books and records reasonably necessary
to the determination of whether Franchise Fees have been accurately computed and paid. The
cost of such audit will be born by a Franchisee if the audit determines that the Franchisee has
underpaid the Franchise Fees by five percent(5%) or more.
3.12. Throughout the term of a Franchise Agreement, a Franchisee shall
maintain in the Village, or make available in the Village within fifteen (15) business days
following written demand, complete and accurate books of accounts and records of the business
reasonably necessary to the determination of whether Franchise Fees have been accurately
computed and paid. A Franchisee shall maintain all such documents for three (3) years, for a
period of time as required by the FCC, or for a period of time as required by the Florida Public
Service Commission,whichever is longer.
4. General Conditions Upon Use of Rights-of-Way.
4.1. Any act that a Franchisee is required to perform under this
Section shall be performed at its cost. If a Franchisee fails to perform work that it is required to
perform within the time provided for performance, the Franchise Authority may perform the
work, and bill the Franchisee. The Franchisee shall pay the amounts billed within 30 calendar
days, subject to its rights, if any, under Section 337.403 and 337.404, Florida Statutes, as
amended.
4.2. Any Construction, Utilization, or Repair of any
Telecommunications Facility in any Public Right of Way or Right of Way for which the Village
has maintenance responsibility, made by a Franchisee shall be done under permits issued for
work by the proper officials of the Village, and shall be done in such manner as to cause the
least inconvenience to the inhabitants of the Village. However, in an emergency, a Franchisee
need not obtain a permit prior to performing work to cure the emergency. In an emergency,
where in the judgment of the Franchisee conditions permit, the Franchisee shall reasonably
attempt to notify the Franchise Authority. A Franchisee shall, at its own cost and expense, and
in a manner approved by the Franchise Authority, replace and restore any pavements,
sidewalks, curbing or other paved areas in as good a condition as before the work involving
such disturbance was done, and shall also make and keep full and complete maps and records
showing the exact locations of its Telecommunications Facilities located within the Public
Rights of Way. These maps shall be available for inspection and copying by the Franchise
Authority at any time during business hours.
4.3. In accordance with 337.403, Florida Statutes, as may be amended
from time to time, a Franchisee shall, at its expense, remove or relocate its
Telecommunications Facilities due to the Franchise Authority's finding that the Franchisee's
property is unreasonably interfering in any way with the convenient, safe, or continuous use, or
the maintenance, improvement, extension, or expansion of the public Rights of Way.
4.4. A Franchisee shall have the authority to trim the trees or other
natural growth upon and overhanging the Public Rights of Way so as to prevent the branches of
such trees from coming in contact with the wires, cables and other equipment of the Franchisee,
except that, at the option of the Franchise Authority, such trimming may be done by it or under
its supervision and direction at the expense of the Franchisee.
4.5. The Franchise Authority strongly encourages a Franchisee to use,
and a Franchisee should use, with the owner's permission, existing underground conduits or
overhead utility facilities whenever feasible. Upon the Franchise Authority's request, a
Franchisee shall submit a sworn written statement which identifies all third parties that utilize
its Telecommunications Facilities.
4.6. All Telecommunications Facilities shall be installed and located
to cause minimum interference with the rights and convenience of property owners. The
Franchise Authority may issue, and the Franchisee shall observe, such rules and regulations
concerning the installation and maintenance of a Telecommunications Facility installed in, on,
or over the Public Rights of Ways, as may be consistent with this Ordinance and a Franchise
Agreement.
4.7. All safety practices required by law shall be used during
Construction, Utilization and Repair of a Telecommunications Facility. A Franchisee shall not
place Telecommunications Facilities where they will interfere with any existing utility or other
facility, including, but not limited to gas, electric, telephone, water, and sewer facilities, or
obstruct or hinder in any manner the various utilities serving the residents of the Village of their
use of any Public Rights-of-Way.
4.8. A Franchisee shall, at all times Construct, Utilize and Repair its
Telecommunications Facilities in such a manner that the Telecommunications Facility will not
interfere with any installations of the Village and in accordance with the requirements of the
Village's building code and electrical safety code and any other applicable building and
electrical safety codes, including, but not limited to, the National Electrical Safety Code, the
Florida Department of Transportation Utilities Accommodation Guide, the State of Florida
Manual of Uniform Minimum Standards for Design Construction and Maintenance for Streets
and Highways and such other design or regulatory manuals which regulate the installation of
structures within Public Rights of Way.
4.9. A Franchisee shall Construct, Utilize, and Repair its Telecommunications
Facilities in a safe, thorough and reliable manner using materials of good and durable quality.
If, at any time, the Franchise Authority or any other agency or authority of competent
jurisdiction determines that any part of the Telecommunications Facilities are harmful to the
health or safety of any Person, then a Franchisee shall, at its own cost and expense, promptly
correct all such conditions.
4.10. On Public Rights of Way where electrical and telephone utility wiring is
located underground, at the time of initial construction of a Telecommunications Facility, a
Franchisee's Telecommunications Facility shall also be located underground at the Franchisee's
expense. Between a Street and a subscriber's residence, a Franchisee's Telecommunications
Facility must be located underground if both electrical and telephone utility wiring are located
underground. The Franchise Authority shall encourage, to the extent feasible, that the public
utility and the Franchisee cooperate in opening up trenches and making such trenches available
to all parties with the understanding that the costs of opening and refilling of such trenches
would be shared equally by all users of such trenches.
4.11. In the event the use of any part of a Telecommunications Facility is
discontinued for any reason for a continuous period of six (6) months, or in the event a
Telecommunications Facility has been installed in any Public Rights of Way without complying
with the requirements of this Ordinance or a Franchise Agreement, or a Franchise has been
terminated, canceled or expired, the Franchisee, within thirty (30) days after written notice by
the Franchise Authority, shall commence and thereafter diligently complete, the removal from
the Public Rights of Way all of its Telecommunications Facilities as the Franchise Authority
may require. However, a Franchisee is not prohibited from discontinuing use of portions of its
Telecommunications Facility for limited periods of time in accordance with its business plans
so long as the Franchisee continues to maintain such portions in accordance with applicable
law.
4.12 The Franchise Authority may, by written instrument, extend the time of
the removal of Franchisee's Telecommunications Facilities for a period not to exceed one
hundred eighty (180) days, and thereafter such Telecommunications Facilities may be deemed
abandoned.
4.13 In the event of the removal or abandonment of Telecommunications
Facilities, the Franchisee shall restore the area to as good a condition as prior to the removal or
abandonment.
4.14 In an emergency, or where a Telecommunications Facility creates or is
contributing to an imminent danger to health, safety, or property, the Franchise Authority may
protect, support, temporarily disconnect, remove, or relocate any or all parts of a
Telecommunications Facility without prior notice, and charge the Franchisee for costs incurred.
In case of such emergency, where in the judgment of the Franchise Authority conditions permit,
the Franchise Authority shall reasonably attempt to notify the Franchisee. The determination as
to what constitutes an emergency is a matter solely within the discretion of the Franchise
Authority, in the exercise of its police powers.
5. Facility Subject to Inspection, Franchisee must Provide Information.
5.1. Every Telecommunications Facility shall be subject to the right of
periodic inspection by the Franchise Authority to determine compliance with the provisions of
this Chapter, a Franchise Agreement, or other applicable provisions of the Village Code. Each
Franchisee must respond to requests for information regarding its Telecommunications
Facilities as the Franchise Authority may from time to time issue, including requests for
information regarding its plans for Construction, Utilization and Repair. The Franchise
Authority shall request such information in an effort to facilitate the coordination of
construction in the Public Rights of Way.
5.2. Each Franchisee shall maintain accurate maps and improvement
plans which show the location, size and general description of all Telecommunications
Facilities installed in the Public Rights-of-Way and any power supply sources (including
voltages and connections).. Each Franchisee shall provide a map to the Franchise Authority
accurately showing the location of its Telecommunications Facilities, in such detail and scale as
may be directed by the Village engineer. New maps shall be promptly submitted to the
Franchise Authority when a Franchisee expands or relocates its Telecommunications Facility.
6. Underground Services Alert. Each Franchisee that places Telecommunications
Facilities underground shall comply with Chapter 556, Florida Statutes, the Underground
Facility Damage Prevention and Safety Act, as may be amended from time to time.
7. Insurance; Surety; Indemnification.
7.1. A Franchisee shall maintain, and by its acceptance of a Franchise
specifically agrees that it will maintain, throughout the entire term of the Franchise including
any renewals thereof, the following general liability insurance coverage insuring the Franchisee
and naming the Village as an additional insured: worker's compensation and employer liability
insurance to meet all requirements of Florida law and general comprehensive liability insurance
with respect to the Construction, Utilization and Repair of its Telecommunications Facility, and
the conduct of Franchisee's business in the Village, in the minimum amounts of
7.1.1. General Liability
1. $250,000 for property damage in any one accident;
2. $500,000 for personal bodily injury to any one person;
3. $1,000,000 for bodily injury in anyone accident;
7.1.2 Comprehensive Liability
1. $250,000 for property damage in any one accident;
2. $500,000 for personal bodily injury to any one person;
3. $1,000,000 for bodily injury in any one accident;
7.2 All insurance policies shall be with sureties qualified to do business in
the State of Florida; shall be with sureties with a minimum rating of A-1 in Best's Key Rating
Guide, Property/Casualty Edition; and in a form approved by the Village Manager. In the
alternative, a Franchise Authority may satisfy the applicable insurance requirements through
self-insurance. The Village may require coverage and amounts in excess of the above
minimums where necessary to reflect changing liability exposure and limits or where required
by law.
7.3 A Franchisee shall file with the Village valid and current certificates of
insurance which certificates shall indicate evidence of payment of the required premiums and
shall indicate that the Village, its officers, boards, council, council members, attorneys, agents,
employees, consultants and independent contractors are listed as additional insured. In the
event of a potential claim such that the Village claims insurance coverage, a Franchisee shall
immediately respond to all reasonable requests by the Village for information with respect to
the scope of the insurance coverage.
7.4 All insurance policies shall name the Village, its officers,boards, council,
council members, attorneys, agents, employees, consultants and independent contractors as
additional insureds and shall further provide that any cancellation or reduction in coverage shall
not be effective unless thirty (30) days prior written notice thereof has been given to the
Village. A Franchisee shall not cancel any required insurance policy without submission of
proof that a Franchisee has obtained alternative insurance satisfactory to the Village which
complies with this Ordinance.
7.5 A Franchisee shall, at its sole cost and expense, indemnify, hold
harmless, and defend the Village, its officers, boards, councils, council members, attorneys,
agents, employees, consultants and independent contractors, against any and all claims, suits,
causes of action, proceedings, judgements for damages or equitable relief, and costs and
expenses arising out of the construction, maintenance or operation of its Telecommunications
Facility , the conduct of Franchisee's business in the Village, or in any way arising out of the
Franchisee's enjoyment or exercise of a Franchise granted hereunder, regardless of whether the
act or omission complained of is authorized, allowed or prohibited by this Ordinance or a
Franchise Agreement. This provision includes, but is not limited to, the Village's reasonable
attorneys' fees incurred in defending against any such claim, suit or proceeding in any and all
forums. A Franchisee shall not be obligated to indemnify the Village, its officials, boards,
councils, council members, agents, and employees for damages awarded against them to the
extent such award is based on their sole negligence. Nothing in this section shall prohibit the
Village from participating in the defense of any litigation by its own counsel and obtaining
indemnification of the reasonable costs associated therewith if in the Village's reasonable belief
there exists or may exist a conflict,potential conflict or appearance of a conflict.
7.6 Neither the Village nor its officers, boards, councils, council members,
attorneys, employees, agents, attorneys, consultants or independent contractors shall have any
liability to a Person or Franchisee as a result or in connection with the protection, breaking
through, movement, removal, alteration, or relocation of any part of a Telecommunications
Facility in connection with any emergency, public work, public improvement, alteration of any
municipal structure, any change in the grade or line of any Public Right of Way, or the
elimination, discontinuation, and closing of any Public Right of Way.
8. Security Fund/Corporate Guarantee.
8.1 A Franchise Agreement may provide that,prior to a Franchise becoming
effective, the Franchisee shall post with the Village a cash security deposit, a corporate
guarantee or a bond, in a form acceptable to the Village to be used as a security fund to ensure
the Franchisee's faithful performance of and compliance with all provisions of this Ordinance,
the Franchise Agreement, and other applicable law, and compliance with all orders, permits and
directions of the Village, and the payment by the Franchisee of any claims, liens, fees, or taxes
due the Village which arise by reason of the Franchise or the Construction, Utilization, or
Repair of the Telecommunications Facility. The amount of the security fund or corporate
guarantee shall be the amount that the Village determines, under circumstances existing at the
time, to be necessary to protect the public, to provide adequate incentive to the Franchisee to
comply with this Ordinance and the Franchise Agreement, and to enable the Village to
effectively enforce compliance therewith. A Franchise Agreement shall provide for the
procedures to be followed with respect to the security fund or corporate guarantee.
8.2 The rights reserved to the Village with respect to a security fund are in
addition to, and not in lieu of, all other rights of the Village,whether reserved by this Ordinance
or authorized by other law or a Franchise Agreement, and no action, proceeding or exercise of a
right with respect to such security fund will affect any other right the Village may have.
9. Construction Bond.
9.1 A Franchise Agreement may provide that,prior to any Telecommunications
Facility Construction, Utilization, Repair or other work in the Public Right of Way, a
Franchisee or its agent shall establish in the Village's favor a construction bond in an amount
specified in a Franchise Agreement as necessary to ensure the Franchisee's faithful performance
of the Construction or other work.
9.2 Such bond(s) shall provide that in the event a Franchisee fails to complete
the Telecommunications Facility Construction, Repair or other work in the Public Rights of
Way in a safe, timely and competent manner in accord with the provisions of a Franchise
Agreement, the Village shall recover jointly and severally from the principal and surety of the
bond any damages or loss suffered by the Village as a result, including the full amount of any
compensation, indemnification or cost of removal or abandonment of any property of a
Franchisee, or the cost of Constructing or Repairing the Telecommunications Facility in the
Public Rights of Way, plus a reasonable allowance for attorneys' fees, up to the full amount of
the bond. The Village may also recover against the bond any amount recoverable against the
security fund pursuant to Section 8.2 hereof where such amount exceeds that available under
the security fund.
9.3 The Franchise Agreement shall specify that upon the Franchisee's
completion of the Telecommunications Facility Construction, Repair, or other work in the
Public Rights of Way, the Franchisee's payment of all construction obligations of the
Telecommunications Facility to the satisfaction of the Village, and the Franchisee's satisfaction
of all of its obligations under the bond, the Village may release the bond or reduce its amount.
However, the Village may subsequently require a new bond or an increase in the amount of the
existing bond for any subsequent Construction, Repair or other work in the Public Rights of
Way.
9.4 The construction bond shall be issued by a surety having a minimum rating
of A-1 in Best's Key Rating Guide, Property/Casualty Edition; shall be subject to the approval
of the Village Attorney; and shall contain the following statement:
"This bond may not be canceled, or allowed to lapse, until
thirty (30) days after receipt by Village, by certified mail, return receipt
requested, of a written notice from the issuer of the bond of intent to cancel or
not to renew."
9.5 The rights reserved by the Village with respect to any construction bond
established pursuant to this section are in addition to all other rights and remedies of the
Village, whether reserved by this Ordinance or authorized by other law or a Franchise
Agreement, and no action, proceeding or exercise of a right with respect to a construction bond
will affect any other right the Village may have.
10. Enforcement and Remedies.
10.1 The Village Manager or his designee is responsible for enforcing and
administering this chapter, and the Village Manager or his designee is authorized to give any
notice authorized by law or under any Franchise Agreement. The Village Manager or his
designee is authorized to take all actions necessary or appropriate to the administration of this
Ordinance.
10.2 Any person who violates any provision of this Ordinance may be fined for
each day the violation continues in accordance with Chapter 162 of the Florida Statutes, as
amended, and Chapter 2,Article IV, of the Village's Code of Ordinances.
11. Application for an Initial Franchise, Renewal of a Franchise, and Transfer of a
Franchise.
11.1 An application in a form reasonably required by the Village Manager or his
designee must be filed for an initial Franchise, renewal of a Franchise, or Transfer of a
Franchise. The Franchise Authority reserves the right to request that an applicant furnish copies
of any application to designated Village representatives.
11.2 Every application shall be accompanied by a nonrefundable fee in an amount
established from time to time by resolution of the Village Council.
11.3 An applicant that is awarded a Franchise or permitted to renew or obtain a
Franchise by transfer, shall pay to the Franchise Authority a sum of money sufficient to
reimburse it for all expenses incurred by it in connection with the grant, renewal or Transfer of
a Franchise. Such payment shall be made within thirty (30) calendar days after the Franchise
Authority furnishes the Franchisee with a written statement of such expenses by delivery of
same to the Village clerk.
12. Minimum Contents of Every Franchise Agreement. Every Franchise Agreement
for a Telecommunications Facility shall contain the following provisions:
12.1 Neither the granting of any Franchise, nor any provision thereof, shall
constitute a waiver or bar to the exercise of any governmental right or power, police power, or
regulatory power of the Village as may exist at the time a Franchise is issued or is thereafter
obtained.
12.2 A Franchise Agreement shall only authorize occupancy of the Public
Rights-of-Way for the purposes described in the Franchise.
12.3 A Franchise shall be a privilege that is held in the public trust and is
personal to the original Franchisee. No Transfer of a Franchise may occur, directly or
indirectly, without the prior consent of the Franchise Authority. In considering the Transfer of
a Franchise, the Franchise Authority may examine whether the current Franchisee is in
compliance with applicable law, the application submitted by the proposed Franchisee, and
whether the Florida Public Service Commission, or any successor entity thereto, has approved
the transfer.
12.4 A Franchise Agreement shall contain appropriate provisions for
enforcement, compensation, and protection of the public, consistent with provisions of this
Chapter.
12.5 The Franchise Agreement shall be for a specified term, set forth in
the Franchise Agreement. No franchise issued under this chapter shall be for a term of longer
than five(5)years.
12.6 The Franchise Agreement shall provide that in the event a Person or
Franchisee continues to operate all or any part of its Telecommunications Facilities after the
expiration of the term of its Franchise, then the Person or Franchisee shall continue to comply
with all applicable provisions of its Franchise Agreement, including, without limitation, all
compensation and other payment provisions throughout the period of such continued operation,
provided that any such continued operation shall in no way be construed as a renewal or other
extension of its Franchise Agreement.
13. Revocation,Reduction of Term, or Forfeiture of Franchise
13.1 Where, after written notice and providing a Franchisee an opportunity
to be heard, the Franchise Authority finds that a Telecommunications Facility is being operated
in material violation of this chapter or in material violation of the terms of a Franchise
Agreement or other applicable law, the Franchise Authority may reduce the term of a Franchise
Agreement or revoke a Franchise Agreement. The Village Manager is authorized to establish
and conduct a proceeding that comports with the requirements of this Section, and to issue a
decision, but any such decision may be appealed to the Village Council. Any appeal must be
filed within twenty (20) calendar days of the decision of the Village Council or the right to
appeal shall be deemed waived. Notwithstanding the foregoing, the franchise term may not be
reduced and the Franchise may not be revoked unless the Franchisee:
13.1.1 was given notice of the violation;
13.1.2 was given thirty (30) calendar days from transmittal of such
notice to cure the violation; and
13.1.3. failed to cure the violation within said time, or, if cure is
impossible within such time, failed to propose within 30 days, a schedule for
such cure acceptable to Franchise Authority.
13.2 Notwithstanding anything contained herein, the Franchise Authority may
declare a franchise forfeited where the Franchisee:
13.2.1. fails to begin to exercise its rights under a Franchise within a
period specified in a Franchise Agreement;
13.2.2. without the prior consent of the Franchise Authority, transfers
the Franchise; or
13.2.3. fails to pay any fees required under this Chapter or applicable
law.
13.3 Notwithstanding anything contained herein, any Franchise may, at the option of the
Franchise Authority following a public hearing before the Village Council, be revoked one
hundred twenty (120) calendar days after an assignment for the benefit of creditors or the
appointment of a receiver or trustee to take over the business of a Franchisee, whether in a
receivership, reorganization, bankruptcy assignment for the benefit of creditors, or other action
or proceeding,unless within that one hundred twenty (120) calendar day period:
13.3.1. such assignment, receivership or trusteeship has been vacated;
or
13.3.2. Such assignee, receiver or trustee has fully complied with the
terms and conditions of this chapter and a Franchise Agreement and has executed an agreement,
with approval by a court having jurisdiction, assuming and agreeing to be bound by the terms
and conditions of this chapter and a Franchise Agreement.
13.4 Notwithstanding the foregoing, in the event of foreclosure or other judicial sale of
any of the Telecommunications Facilities or equipment or other property of a Franchisee, the
Franchise Authority may revoke a Franchise following a public hearing before the Village
Council, by serving notice upon a Franchisee and, if applicable, a the successful bidder at a sale,
in which event the Franchise and all rights and privileges of the Franchisee will be revoked and
will terminate thirty (30) calendar days after such notice.
U. Effect of Termination or Forfeiture. If the Franchise Authority revokes a
Franchise, or if for any other reason a Franchise is abandoned, terminated or forfeited, the
following procedures and rights are effective.
14.1 The Franchise Authority may require a former Franchisee to remove its
Telecommunications Facilities at its expense. If the former Franchisee fails to do so within a
reasonable period of time, the Franchise Authority may have the removal done at the former
Franchisee's and/or surety's expense; or
14.2 The Franchise Authority, by resolution of the Village Council, may acquire
ownership, or effect a transfer, of the Telecommunications Facility at an equitable price.
14.3 If a Telecommunications Facility is abandoned by a Franchisee, the Franchise
Authority may sell, assign or transfer all or part of the assets of the Telecommunications
Facility.
Section 3. Miscellaneous.
A. Remedies Cumulative. All remedies under this chapter and any Franchise Agreement
are cumulative unless otherwise expressly stated. The exercise of one remedy shall not
foreclose use of another, nor shall the exercise of a remedy or the payment of liquidated
damages or penalties relieve a Franchisee of its obligations to comply with its Franchise
Agreement. Remedies may be used singly or in combination; in addition, the Village may
exercise any rights it has at law or equity.
B. Compliance with Laws. Each Franchisee shall comply with all Village laws and
regulations heretofore and hereafter adopted or established during the entire term of its
Franchise.
C. Reservation of Authority. The Village may do all things which are necessary and
convenient in the exercise of its jurisdiction.
D. No Waiver. The failure of the Village to insist on timely performance or compliance by
any person or Franchisee shall not constitute a waiver of the Village's right to later insist on
timely performance or compliance by that person or Franchisee.
E. Ordinance not a Contract. The Village expressly reserves the right to amend this chapter
from time to time in the exercise of its lawful powers. This and any ordinance adopting
provisions of this chapter shall not be construed to be a contract.
F. Persons Holding Franchises or Licenses.
a. Any Person holding an outstanding franchise or license from the Franchise
Authority for the provision of telecommunications services may continue to operate under the
existing franchise or license with respect to those activities expressly authorized by the
franchise or license to the conclusion of its present term (but not any renewal or extensions
thereof), unless otherwise provided in the Franchise Agreement or license. If a conflict exists
between an outstanding franchise or license from the Franchise Authority for the provision of
telecommunications services and this Ordinance, the outstanding franchise or license shall
control with regard to the conflict.
b. Any person holding an outstanding franchise or license from the Franchise Authority
that expires upon the Village's adoption of a telecommunications ordinance shall apply to the
Franchise Authority for a Telecommunications Franchise as provided in this Ordinance.
c. A current franchise or license holder may elect at any time to apply for a
superseding franchise under this chapter.
H. Conflicting Ordinances. Subject to Section 3(F)(a) above, all prior ordinances or
resolutions or parts thereof in conflict herewith are hereby repealed to the extent of such
conflict.
I Severability. If any section, sentence, clause, or phrase of this Chapter is held to be
invalid or unconstitutional by any court of competent jurisdiction, then said holding shall in no
way affect the validity of the remaining portions of this Ordinance.
J Inclusion in Code. It is the intention of the Village Council of Miami Shores Village,
Florida, that the provisions of this Ordinance shall become and be made a part of Miami Shores
Village Code of Ordinances; and that the sections of this Ordinance may be renumbered or
relettered and the word "Ordinance" may be changed to "Section," "Article," or such other
appropriate word or phrase in order to accomplish such intentions.
K Effective Date. This Ordinance shall become effective immediately upon adoption.
PASSED AND ADOPTED BY THE VILLAGE COUNCIL OF MIAMI SHORES
VILLAGE,FLORIDA, ON THE FIRST READING,THIS 2nd DAY OF May ,2000.
PASSED AND ADOPTED BY THE VILLAGE COUNCIL OF MIAMI SHORES
VILLAGE, FLORIDA ON THE SECOND AND FINAL READING, THIS 16' DAY OF
May,2000.
ATTEST: Mark S.Ulmer,Mayor
eday CM
Barbara A. Fugazzi"CAff
Village Clerk
APPROVED AS TO FORM:
Richard Sarafan
Village Attorney