Loading...
HomeMy WebLinkAboutVI(A1a,b,c) Second Reading of Ordinances: 2001-13, 2001-14, 2001-15 • Agenda 6-19-2001 Item VI A 1 a,b,c - • LEIBOWITZ & ASSOCIATES, P.A. SUITE 1450 JOSEPH A. BELISLE SUNTRUST INTERNATIONAL CENTER TELEPHONE (305)530-1322 JORGE L. CRUZ—BUSTILLO ONE SOUTHEAST THIRD AVENUE TELECOPIER (305)530-9417 ILA L. FELD MIAMI, FLORIDA 331 31-1 7 15 E-MAIL Firm@broadlaw.com MATTHEW L. LEIBOWITZ SCOTT A. ROBIN THOMAS H. WILLIAMS, JR. May 25, 2001 VIA US MAIL & FACSIMILE(407) 656-6885 Jim Gleason, Acting City Manager City of Ocoee 150 N. Lakeshore Drive Ocoee, Fl 34761 Re: New Communications Services Tax Simplification Law Dear Jim: On July 1, 2000, Florida's Communications Services Tax Simplification Law (Law) was enacted.The Law established a new tax structure designed to treat communications service providers in a nondiscriminatory manner with respect to the compensation they have traditionally provided to local governments. The new Law combined several different types of taxes and fees into a two-tiered tax composed of a state and local component. The local component is known as the "Local Communications Services Tax." The initial adoption of the Law, in 2000, did not include the new tax rates. The initial Law, however, did direct the Legislature to set and adopt, in the 2001 Legislative Session, the new tax rates to be applied under the new communications tax structure. The new Law created two Local Communications Services Tax rates: (1)a Conversion rate, and(2) a Maximum rate. The Conversion rate or"initial"rate varies for each local jurisdiction and was based upon the size of the communications tax base for each particular local jurisdiction and the revenues received by that local jurisdiction in 1999. The Conversion rate is known as the initial rate because it takes effect on October 1, 2001, without any formal action by the local government. The new Law also established a Maximum rate. The Maximum rate is a weighted average. The State assumed that each municipal and chartered county had imposed upon communications providers all available taxes and fees at their highest possible levels under the previous tax structure. The potential maximum revenue from this assumption was then totaled. The State then divided this potential maximum sum,by the sum total of the new taxable base for each municipal and chartered county. The outcome was 5.1%. G:\Cable\2000\0coee\Letters\JGleason-NewTaxLaw-052501.doc � 2rlv�CD / A Jim Gleason,Acting City Manager May 25,2001 Page 2 In the last days of the 2001 Legislative Session, a second Maximum rate was included in the new Law. This second Maximum rate applies only for the period beginning on October 1,2001,and ending on September 30, 2002. The original Maximum rate does not therefore become effective until October 1, 2002. The new Law therefore allows a municipality, for the period beginning on October 1, 2001 and ending on September 30, 2002, to adjust its Conversion rate upward to the a Maximum rate,which equals the sum of the Maximum rate established under s.202.19(2)(a),Florida Statutes (2001) [the original Maximum rate], plus the difference between the Conversion rates set forth in ss. 202.20(1)(a) and (1)(b), Florida Statutes (2001). On October 1, 2001,the City of Ocoee will have a 5.00% Conversion rate. On October 1, 2002, the City of Ocoee will have its Conversion rate reduced to 4.60%. As described above, for the period beginning on October 1,2001 and ending on September 30,2002,the Maximum rate shall be established to be the sum of the Maximum rate under s. 202.19(2)(a), Florida Statutes (2001) which is 5.10%, plus the difference between the Conversion rates set forth in ss. 202.20(1)(a) and (1)(b),Florida Statutes(2001): 5.00%and 4.60%respectively or a 0.40%difference. Accordingly, the Maximum rate for the first twelve months of the new Law for the City of Ocoee is established to be 5.50%. Permit Fees The new Law also allows the City to increase its Conversion rate by an additional 0.12%in lieu of requiring and collecting permit fees. The City is required to notify the Department of Revenue of its decision of whether to continue to collect permit fees on or before July 16, 2001. If the City does nothing,the Department will automatically begin to collect 5.00%in the first year and 4.60%in the second. The Department will treat the City's silence as a choice not to collect permit fees. And,it only follows that,if the City does nothing to notify the Department of its decision,the City will be prohibited from collecting permit fees. The above rates,which will be collected automatically,will not include the additional 0.12% rate in lieu of collecting permit fees. The new Law requires an affirmative act by the City before the Department will begin to collect the additional 0.12%. The new Law allows that the City's affirmative act to be by resolution or ordinance. Such resolution or ordinance, however, must be postmarked and sent via certified mail on or before July 16, 2001. While the new Law permits the City's expression to be done by resolution or ordinance, I recommend an ordinance. Resolution was added to the new Law, because it can be done in one reading. Given the amount of time between the end of the 2001 Legislative Session and July 16, 2001, it was not clear if a local jurisdiction would have enough time to adjust its Conversion rate with two readings. What was not discussed before this amendment was added was that many City Charters require all new levies to be done by ordinance. For this reason,I recommend that the that this adjustment be done by ordinance. G:\Cable\2000\Ocoee\LettersUGl eason-NewTaxLaw-052501.doc LEIBOWITZ &ASSOCIATES, P.A. SUITE 1450,ONE SOUTHEAST THIRD AVENUE, MIAMI, FLORIDA 33131-1715 • TELEPHONE (305)530-1322 i f Jim Gleason,Acting City Manager May 25,2001 Page 3 - The new Law is intended to be revenue neutral. By adopting these Ordinances which adjust the City's Conversion rate to the maximum amounts allowable under the new Law, the City is simply acting consistent with the specific legislative intent that the new tax structure provide revenue neutrality for local governments. In short, adjusting the Conversion rate is not a tax increase,but a vote to maintain revenue neutrality. A separate ordinance for each issue has been drafted. This was done for the following reasons: (1) the introductory WHEREAS clauses are different, (2) this allows the Commission Members the freedom to address each issue separately,and(3)a single subject ordinance will allow the career service employees of the Department of Revenue to catalogue the ordinances without any confusion. If you have questions, please do not hesitate to call. Sincerely, Jorge Cruz-Bustillo cc: Ila L. Feld, Esq. G:\Cable\200010coee\LettersUGl eason-NewTaxLaw-052501.doc LEIBOWITZ &ASSOCIATES, P.A. SUITE 1450,ONE SOUTHEAST THIRD AVENUE, MIAMI, FLORIDA 33131-1715 • TELEPHONE (305)530-1322 I, Agenda 6-19-2001 Item VIA 1 a ORDINANCE NO. 2 0 01-13 A ORDINANCE OF THE CITY OF OCOEE, FOR THE PURPOSE OF ADJUSTING THE CITY'S LOCAL COMMUNICATIONS SERVICES TAX RATE IN ACCORDANCE WITH FLORIDA'S COMMUNICATIONS SERVICES TAX SIMPLIFICATION ACT, PROVIDING A CODIFICATION CLAUSE; PROVIDING A CONFLICT CLAUSE; PROVIDING A SEVERABILITY CLAUSE; PROVIDING FOR AN EFFECTIVE DATE AND FOR OTHER PURPOSES. WHEREAS, on July 1, 2000,Florida's Communications Services Tax Simplification Act (ACT) became law. The ACT established a new tax structure designed to treat communications service providers in a nondiscriminatory manner with respect to the compensation these providers have traditionally provided to local governments; and WHEREAS,the new tax rates were not established in the initial adoption of the Act; and WHEREAS, the ACT directed the Legislature to set and adopt, in the 2001 Legislative Session, the new rates to be applied under the new tax structure; and WHEREAS,the Legislative restructuring,in the 2001 Legislative Session,resulted in a new Local Communications Services Tax,which is designed to apply equally to telephone service,cable service and wireless service providers and where such new rates shall become effective on October 1, 2001, without any action by the City of Ocoee; and WHEREAS, the ACT created two Local Communications Services Tax rates, namely, a Conversion rate and a Maximum rate. The Conversion rate or "initial" rate varies for each local jurisdiction and was based upon the size of the communications tax base for each particular local jurisdiction and the revenues received by that local jurisdiction in 1999. The Conversion rate is G:\Cable\2000\Ocoee\Ordinance-Adjustment-to-MaximumRate-05I S01.doc . s known as the initial rate because it takes effect on October 1,2001,without any formal action by the local government. The new Law also established a Maximum rate. The Maximum rate is a weighted average. The State assumed that each municipal and chartered county had imposed upon communications providers all available taxes and fees at their highest possible levels under the previous tax structure. The potential maximum revenue from this assumption was then totaled. The State then divided this potential maximum sum, by the sum total of the new taxable base for each municipal and chartered county. The outcome was 5.1% as set forth in s. 202.19(2)(a), Florida Statutes (2001); and WHEREAS,pursuant to the ACT, a municipality that has an initial Conversion rate below the Maximum rate is authorized to adjust its Conversion rate upward to the Maximum rate as set forth in s. 202.19(2)(a),Florida Statutes (2001); and WHEREAS,pursuant to the ACT,for the period beginning on October 1,2001 and ending on September 30, 2002, the established Maximum rate shall be deemed to be the sum of the Maximum rate established under s.202.19(2)(a),Florida Statutes(2001),plus the difference between the Conversion rates set forth in ss. 202.20(1)(a) and (1)(b), Florida Statutes (2001); and WHEREAS,pursuant to the ACT,a municipality is authorized to adjust its Conversion rate as described above; and WHEREAS, it is the intent of the City to exercise its authority to adjust its new Local Communications Services Conversion rate as described above. NOW,THEREFORE,BE IT RESOLVED BY THE COMMISSION OF THE CITY OF OCOEE,FLORIDA AS FOLLOWS: Section 1. G.Table\2000\0coee\Ordinance-Adjustment-to-MaximumRate-051801.doc 1. The City of Ocoee hereby acknowledges that on October 1, 2001, a new Local Communications Services Tax Conversion rate will go into effect without any formal action by the City of Ocoee. 2. For the period beginning October 1, 2001, and ending September 30, 2002, the City of Ocoee, hereby invokes its authority, in accordance with ACT,to impose a Local Communications Services Tax rate of 5.5%. This new Local Communications Services Tax rate is the sum of the rate set forth in s. 202.19(2)(a), plus the difference between the Conversion rates set forth in ss. 202.20(1)(a) and (1)(b), Florida Statutes (2001). The ACT is designed to be revenue neutral. Consistent with this specific legislative intent of the ACT that the new tax structure provide revenue neutrality for local governments,the City of Ocoee hereby makes this adjustment. 3. Section 202.20, Florida Statutes (2001) requires that the City notify the Department of Revenue,by certified mail postmarked on or before July 16, 2001, of whether the City will elect to adjust its Conversion rate to the Maximum rate. This statutory section permits the City to adjust its Local Communications Services Tax rate by ordinance or resolution. In accordance with these prerogatives the City adopts this Ordinance. Likewise,the City hereby declares that this Ordinance shall be its notice to the Department of Revenue of the City's election to require an upward adjustment of the Local Communications Services Tax for the period beginning on October 1,2001, and ending on September 30, 2002. 4. For the period beginning October 1, 2002, and continuing thereafter,the City of Ocoee, hereby invokes its authority,in accordance with ACT,to impose the Local Communications Services Tax rate of 5.1% as set forth in s. 202.19(2)(a), Florida Statutes (2001). The City hereby declares that this Ordinance shall be its notice to the Department of Revenue of the City's election to require G:\Cabl e\2000\Ocoee\Ordinance-Adjustment-to-MaximumRate-051801;doc an adjustment of the Local Communications Services Tax for the period beginning on October 1, 2002 and continuing thereafter unless and until expressly repealed or preempted. The ACT is designed to be revenue neutral. Consistent with this specific legislative intent of the ACT that the new tax structure provide revenue neutrality for local governments,the City of Ocoee hereby makes this adjustment. Section 2. Inclusion in the Code of Laws and Ordinances. Specificity authority is hereby granted to codify to codify this Ordinance. It is the intention of the City of Ocoee that the provisions of this Ordinance shall become and be made a part of the City of Ocoee's Code or 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. Section 3. Repeal of Conflicting Ordinances. All ordinances or parts of ordinances, and all resolutions or parts of resolutions in conflict herewith are hereby repealed to the extent of such conflict. Section 4. Savings. All fees,charges and financial obligations previously accrued pursuant to any ordinance and resolutions repealed pursuant to Section 2 above shall continue to be due and owing until paid. Section 5. Severability. The provisions of this Ordinance are declared to be severable and if any section, sentence, clause or phrase of this Ordinance shall, for any reason, be held to be invalid or unconstitutional, such decision shall not affect the validity of the remaining sections, sentences,clauses, and phrases of this Ordinance but shall remain in effect, it being the legislative intent that this Ordinance shall G:\Cabl e\2000\Ocoee\Ordi nance-Adjustment-to-?•faxi mumRate-051801.doc stand notwithstanding the invalidity of any part. Section 6. Effective Date. This Ordinance shall be effective immediately upon passage. FIRST READING THIS DAY OF , 2001. SECOND READING AND FINAL PASSAGE THIS DAY OF , 2001. CITY OF OCOEE, FLORIDA BY ITS CITY COMMISSION MAYOR ATTEST: CITY CLERK G:\Cabl e\2000\Ocoee\Ordinance-Adjustment-to-Maximu mRate-05 18 01.doc Agenda 6-19-2001 Item VIA 1 b ORDINANCE NO. 2 0 01-1 4 A ORDINANCE OF THE CITY OF OCOEE, FOR THE PURPOSE OF ADJUSTING THE CITY'S LOCAL COMMUNICATIONS SERVICES TAX RATE IN ACCORDANCE WITH SECTION 337.401(3)(c)1., FLORIDA STATUTES, PROVIDING A CODIFICATION CLAUSE;PROVIDING A CONFLICT CLAUSE; PROVIDING A SEVERABILITY CLAUSE; PROVIDING FOR AN EFFECTIVE DATE AND FOR OTHER PURPOSES. WHEREAS, on July 1, 2000, Florida's Communications Services Tax Simplification Act (ACT) became law. The ACT established a new tax structure designed to treat communications service providers in a nondiscriminatory manner with respect to the compensation these providers have traditionally provided to local governments; and WHEREAS,the new tax rates were not established in the initial adoption of the Act; and WHEREAS, the ACT directed the Legislature to set and adopt, in the 2001 Legislative Session,the new rates to be applied under the new tax structure; and WHEREAS,the Legislative restructuring,in the 2001 Legislative Session,resulted in a new Local Communications Services Tax,which is designed to apply equally to telephone service,cable service and wireless service providers and where such new rates shall become effective on October 1, 2001, without any action by the City of Ocoee; and WHEREAS,the Florida law permits municipalities to recover costs in the form of permit fees incurred by the municipalities in the exercise of its police power; and WHEREAS,Section 337.401(3)(c)1.,Florida Statutes(2001)allows a municipality to adjust its new Local Communications Services Tax upward by 0.12% in lieu of requiring and collecting permit fees from any provider of communications services; and G:\Cab I e\2000\Ocoee\Ordinance-Tax-i nlieuof-Permi tFees-05240I.doc WHEREAS, it is the intent of the City to exercise its authority to adjust its new Local Communications Services Tax upward by 0.12%in lieu of requiring and collecting permit fees from any provider of communications services. NOW,THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE CITY OF OCOEE,FLORIDA AS FOLLOWS: Section 1. 1. The City of Ocoee hereby invokes its authority, in accordance with Section 337.401(3)(c)1.,Florida Statutes(2001),to adjusts its Local Communications Services Tax rate by the addition of 0.12% in lieu of requiring and collecting permit fees from any provider of communications services. The ACT is designed to be revenue neutral. Consistent with this specific legislative intent of the ACT that the new tax structure provide revenue neutrality for local governments,the City of Ocoee hereby makes this adjustment. 2. This adjustment shall be applied to the same communications services subject to the Local Communications Services Tax set forth in ss. 202.20(1)(a) and (1)(b), Florida Statutes (2001) and s. 202.19(2)(a), Florida Statutes (2001). 3. Section 337.401(3)(c)1., Florida Statutes (2001) requires that the City notify the Department of Revenue,by certified mail postmarked on or before July 16,2001,of whether the City will elect to forego the collection of permit fees. This statutory section permits the City to adjust its Local Communications Services Tax rate by ordinance or resolution. In accordance with these prerogatives the City adopts this Ordinance. Likewise,the City hereby declares that this Ordinance shall be its notice to the Department of Revenue of the City's election to require an adjustment of the Local Communications Services Tax in lieu of collecting permit fees. G:\Cable\2000\Ocoee\Ordinance-Tax-inlieuof-PermitFees-05240I doc 4. The City hereby. declares that this adjustment shall remain in effect until and unless otherwise expressly repealed by the City,irrespective of whether the City,in its discretion,maintains a Local Communications Services Tax rate under ss. 202.20(1)(a) and (1)(b) or s. 202.19(2)(a), Florida Statutes (2001). Section 2. Inclusion in the Code of Laws and Ordinances. Specificity authority is hereby granted to codify to codify this Ordinance. It is the intention of the City of Ocoee that the provisions of this Ordinance shall become and be made a part of the City of Ocoee's Code or 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. Section 3. Repeal of Conflicting Ordinances. All ordinances or parts of ordinances, and all resolutions or parts of resolutions in conflict herewith are hereby repealed to the extent of such conflict. Section 4. Savings. All fees,charges and financial obligations previously accrued pursuant to any ordinance and resolutions repealed pursuant to Section 2 above shall continue to be due and owing until paid. Section 5. Severability. The provisions of this Ordinance are declared to be severable and if any section, sentence, clause or phrase of this Ordinance shall, for any reason, be held to be invalid or unconstitutional, such decision shall not affect the validity of the remaining sections, sentences, clauses,and phrases of this Ordinance but shall remain in effect, it being the legislative intent that this Ordinance shall stand notwithstanding the invalidity of any part. G:\Cable12000\Ocoee\Ordinance-Tax-inl i euof-PermitFees-052401.doc Section 6. Effective Date. This Ordinance shall be effective immediately upon passage. FIRST READING THIS DAY OF , 2001. SECOND READING AND FINAL PASSAGE THIS - DAY OF , 2001. CITY OF OCOEE, FLORIDA BY ITS CITY COMMISSION MAYOR ATTEST: CITY CLERK G:\Cabl e\2000\Ocoee\O rdi nance-Tax-i nl i euof-PermitFees-05240I.doc Agenda 6-19-2001 1 Item VIA 1 c ORDINANCE NO. 2 0 01-15 AN ORDINANCE OF THE CITY OF OCOEE, FLORIDA, - ADDING CHAPTER 162 TO CODE OF CITY OF OCOEE ENTITLED "CITY OF OCOEE' TELECOMMUNICATIONS ORDINANCE"; PROVIDING THE TERMS AND CONDITIONS FOR THE ERECTING, CONSTRUCTING, AND MAINTAINING OF A TELECOMMUNICATIONS FACILITY IN THE CITY'S PUBLIC RIGHTS OF WAY FOR THE PROVISION OF TELECOMMUNICATIONS SERVICE; PROVIDING FOR SEVERABILITY; PROVIDING FOR CODIFICATION; PROVIDING AN EFFECTIVE DATE. PROVIDING FOR CODIFICATION; PROVIDING FOR CONFLICTS; PROVIDING FOR SAVINGS; PROVIDING FOR SEVERABILITY; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, effective January 1, 2001, Section 337.401, Florida Statutes (2000), is amended because state law requires the nondiscriminatory treatment of providers of telecommunications services and because of the desire to promote competition among providers of telecommunications services, it is the intent of the legislature that municipalities and counties treat telecommunications companies in a nondiscriminatory and competitively neutral manner when imposing rules and regulations governing the placement or maintenance of telecommunications facilities in the public roads or rights-of-way. Rules or regulations imposed by a municipality or county relating to the use of the roads or rights-of-way must be generally applicable to all telecommunications companies, and, notwithstanding any other law, may not require a telecommunications company to apply for or enter into an individual license, franchise or other similar agreement with the municipality or county as a condition of placing or maintaining telecommunications facilities in its roads or rights-of-way; and 'WHEREAS, effective October 1, 2001, Section 337.401, Florida Statutes (2000), is G:\Cable\2000\Ocoee\FinalDraft-TelecamOrdinance-052501.doc 1 further amended to state that because of the unique circumstances applicable to providers of communications services and the fact that state law now requires the nondiscriminatory treatment of providers of communications services, and because of the desire of the Florida Legislature to promote competition among providers of communications services, it is the intent of the Legislature that municipalities and counties treat providers of communications services in a nondiscriminatory and competitively neutral manner when imposing rules or regulations governing the placement and maintenance of communications facilities in the public roads or rights-of-way. Rules and regulations imposed by a municipality or county relating to the use of roads or rights-of-way must be generally applicable to all providers of communications services, and, notwithstanding any other law, such rules or regulations may not require a provider of communications services, to apply for or enter into an individual license, franchise or other similar agreement with the municipality or county as a condition of placing or maintaining communications facilities in its roads or rights-of-way; WHEREAS, the City Commission of the City of Ocoee has determined it is in the public interest of the City to permit the placement of one (1) or more Telecommunications Systems or Facilities in the Public Rights-of-Way of the City; and WHEREAS, it is the intent of the City Commission to encourage competition by providing access to the Public Rights-of-Way to the City on a nondiscriminatory basis; and WHEREAS, Section 364.0361, Florida Statutes, requires that a local government treat Telecommunications Companies in a nondiscriminatory manner when exercising the authority to manage the Public Rights-of-Way; and WHEREAS, Section 337.29 (3), Florida Statutes, provides that a municipality shall have G:\Cable\2000\Ocoee\FinalDraf-TelecomOrdinance-052501.doc 2 the same governmental, corporate, and propriety powers with relation to any public road or right- of-way within the municipality which has been transferred to another governmental entity pursuant to s. 335.0415, that the municipality has with relation to other public roads and rights-of- way within the municipality; and WHEREAS, it is the intention of the City Commission to recognize the interests of Telecommunications Service Providers to install their facilities in Public Rights-of-Way as a means of promoting the use of such technology for the good of the people of the City; and WHEREAS, it is the intent of the City Commission to exercise the City's authority over the Telecommunications Service Providers' occupancy of the Public Rights-of-Way; and WHEREAS, these policies are in complete accord with both the letter and the spirit of the Communications Act of 1934, as amended; and WHEREAS, the enactment of the Telecommunications Act of 1996, amendments to applicable statutes of the State of Florida and developments in telecommunications technology and services have resulted in an increase in the number of persons certified by the Florida Public Service Commission to provide Telecommunications Services; and WHEREAS, various Telecommunications Service Providers have requested the right to occupy the Public Rights-of-Way of the City for the purpose of installing, maintaining and operating Telecommunications Systems or Facilities; and WHEREAS, it is the City's intent to treat each Telecommunications Service Provider on a competitively neutral and nondiscriminatory basis in granting access for use of the City's Public Rights-of-Way; and G:Table\2000\0coee\FinalDraR-TelecomOrdinance-052501.doc 3 WHEREAS, the Public Rights-of-Way subject to the jurisdiction and control of the City (1) are critical to the travel of persons and the transport of goods and other tangibles in the business and social life of the community by all citizens; (2) are a unique and physically limited resource and proper management by the City is necessary to maximize efficiency, minimize the costs to the taxpayers of the foregoing uses, and to minimize the inconvenience to and negative effects upon the public from such facilities' construction, placement, relocation, and maintenance in the Public Rights-of-Way; and (3) are intended for public uses and must be managed and controlled consistently with that intent; and WHEREAS, the City Commission of the City of Ocoee desires it is the intent of the City to exercise its authority to impose fees and adopt reasonable rules and regulations to the fullest extent allowed by Federal and State law. NOW, THEREFORE, BE IT ENACTED BY THE CITY COMMISSION OF THE CITY OF OCOEE,FLORIDA, AS FOLLOWS: SECTION 1. Authority. The City Commission of the City of Ocoee has the authority to adopt this Ordinance pursuant to Article VIII of the Constitution of the State of Florida and Chapter 166,Florida Statutes. A new Chapter 162 of the Code of Ordinances of the City of Ocoee, Florida is hereby adopted as follows: SECTION 2. A new Chapter 162 of the Code of Ordinances of the City of Ocoee, Florida is hereby adopted as follows: Section 162-1. Title. a\cable\2000\Ocoeewinamraft-Telecomordinance-052501.doc 4 This Chapter shall be known and be cited as the City of Ocoee's Telecommunications Chapter. This Ordinance shall4e '' b it '' the Ci Ocoee' Te' t' Ordinance Section 162-2. Intent and Purpose. It is the intent of the City of Ocoee to promote the public health, safety, and general welfare by providing for the use of the Public Rights-of-Way within the City, to adopt and administer reasonable regulations consistent with State and Federal Law, including Sections 337.401, 362.01, and 337.29(3) Florida Statutes, and the City's home-rule authority in accordance with the provisions of the Telecommunications Act of 1996, to provide for the payment of compensation and other consideration by a Telecommunications Service Provider to the City for the cost of regulating and maintaining the Public Rights-of-Way and for the privilege of using the Public Rights-of-Way within the City for constructing and maintaining Telecommunications Facilities, and to establish the reasonable regulations concerning the use of the Public Rights-of-Way by all Telecommunications Service Providers after the effective date of this Ordinance. In regulating its Public Rights-of-Way, the City shall be governed by and shall comply with all applicable Federal, State and local laws and regulations. Section 162-3. Definitions. For the purpose of this Ordinance, the following terms, phrases, words and derivations shall have the meanings given herein. 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. The words "shall" and "will" are mandatory, and "may" is permissive. Words not otherwise defined herein or in any permit that G:\Cable12000\Ocoee\FinalDraft-TelecomOrdinance-052501.doc 5 might be granted hereunder shall be given the meaning set forth in the Communications Act of 1934, 47 U.S.C. § 151 et seg., as amended (collectively the "Communications Act"), and, if not defined therein, as defined by Florida Statute; and, if not defined therein, be construed to mean the common and ordinary meaning. A. "City" means the City of Ocoee, an incorporated municipality of the State of Florida, in its present form or in any later reorganized, consolidated, or enlarged form. B. "Registrant" or "Facility Owner" shall mean a Telecommunications Company or other person which seeks to use or occupy the Public Rights-of-Way that has Registered with the City in accordance with the provisions of this Ordinance. C. "Registration" and "Register" shall mean the process described in Section 4 whereby a Telecommunications Service Provider provides certain information to the City. D. "Gross Receipts" shall mean all cash, credits or property of any kind or nature, with deductions for bad debt expense, reported as revenue items to the Registrant's audited income statements arising from, or attributable to Recurring Local Service Revenues of Registrant within the City. The City reserves the right to amend the definition contained herein as permitted by applicable Law. The definition herein shall not be applicable as of October 1, 2001; or such other date as provided by law, provided that Section 337.401, Florida Statutes is amended effective October 1, 2001, as set forth in Chapter 00-260, Laws of Florida, 2000. E. "Law" means any local, State or Federal legislative, judicial or administrative order, certificate, decision, statute, constitution, ordinance, resolution, regulation, rule, tariff, guideline or other requirements, as amended, now in effect or subsequently enacted or issued including, but not limited to, the Communications Act of 1934, 47 U.S.C. § 151 et seq. as G:\Cable\2000\Ocoee\FinalDraf-TelecomOrdinance-052501.doc 6 amended by the Telecommunications Act of 1996, Pub L. No. 104-104 § 101(a), 110 Stat. 70, and all orders, rules, tariffs, guidelines and regulations issued by the Federal Communications Commission or the governing State authority pursuant thereto. F. "Person" means any individual, corporation, partnership, association, joint venture, estate,trust, syndicate, fiduciary, organization or legal entity of any kind, and any lawful trustee, successor, assignee, transferee or personal representative thereof, and all other groups or combinations and shall include the City to the extent the City obtains or holds a certificate under Chapter 364,Florida Statutes. G. "PSC" means the Florida Public Service Commission. H. "Public Rights-of-Way" means the surface, the airspace above the surface and the area below the surface of any public street, alley, viaduct, elevated roadway, bridge, public easement, or any other public way for which the City is the authority that has jurisdiction and control and may lawfully grant access to such property pursuant to applicable law. "Public Rights-of-Way" shall not include any real or personal City property except as described above and shall not include City buildings, fixtures, or other structures or improvements, regardless of whether they are situated in the Public Rights-of-Way. I. "Recurring Local Service Revenues" means revenues from the monthly recurring charges for local service, including but not limited to (1) recurring basic area revenues derived from the provision of flat-rated basic area services; (2) recurring optional extended area revenues derived from the provision of optional extended area services; (3) local private line revenues derived from local services which provide communication between specific locations, either through dedicated circuits, private switching arrangements, predefined transmission paths, G:\Cable\2000\Ocoee\FinalDraft-TelecomOrdinance-052501.doc 7 whether virtual or physical, or any other method of providing such services; (4) revenues from the sale of local services for resale; and (5) other local service revenues from the provision of secondary features that are integrated with the telecommunications network, including, without limitation, services such as call forwarding, call waiting, and touchtone line service. Except as provided herein, revenues from all recurring local services provided by a Registrant over a Telecommunications Facility or System in the Public Rights-of-Way shall constitute Recurring Local Service Revenues subject to this Ordinance. Recurring Local Service Revenues do not include revenues from (1) toll charges for the transmission of voice, data, video, or other information; (2) access charges paid by carriers for origination and/or termination of toll telephone service as defined in Section 203.012(7), Florida Statutes, or other charges required by the Federal Communications Commission which are directly passed through to end users; (3) interstate service; (4) ancillary services such as directory advertising, directory assistance, detailed billing services, inside wire maintenance plans, bad check charges, and non-recurring charges for installation, move, changes or termination services; (5) cellular mobile telephone or telecommunications services; or specialized mobile telephone or telecommunications service; or specialized mobile radio, or pagers or paging service, or related ancillary services; (6) public telephone charges collected on site; (7) teletypewriter or computer exchange services as defined in Section 203.012(6), Florida Statutes; or (8) local message rated (message, unit or time basis) and minutes of use charges in excess of the minimum flat-rated charges for similar services. This definition shall not be applicable as of October 1, 2001, or such other date as provided by law, provided that Section 337.401, Florida Statutes is amended effective October 1, 2001, as set forth in Chapter 00-260, Laws of Florida, 2000. G:\Cable\2000\OcoeeTinalDraf-TelecomOrdinance-052501.doc 3 J. "Telecommunications Company". has the meaning set forth in Section 364.02(12), Florida Statutes, as amended. The term "Telecommunications Company" does not include an open video system, cable service provider or wireless service provider. K. "Telecommunications Service" shall include, without limitation, the transmission, conveyance or routing of voice, data, audio, video, or any other information or signals to a point, or between or among points, by and through electronic, radio, satellite, cable optical, microwave, or other medium or method now in existence or hereafter devised, regardless of the protocal used for such.transmission or conveyance. "Telecommunications Service", as contemplated herein, does not include the provision of service via an open video system, cable provider or wireless provider which shall require separate authorizations from the City. As of October 1, 2001, the term "Communications" shall be substituted for "Telecommunications", provided that Section 337.401,Florida Statutes is amended effective October 1, 2001, as set forth in Chapter 00-260, Laws of Florida, 2000. 'L. "Telecommunications Service Provider" shall refer to any person making available or providing Telecommunications Services, as defined herein, through the use of a Telecommunications Facility in the Public Rights-of-Way. As of October 1, 2001, the term "Communications" shall be substituted for. "Telecommunications", provided that Section 337.401, Florida Statutes is amended effective October 1, 2001, as set forth in Chapter 00-260, Laws of Florida, 2000. M. "Telecommunications Facilities", "Facilities" or "Systems" means any facility, equipment or property, including, but not limited to, cables, conduits, converters, splice boxes, cabinets, handholes, manholes, vaults, equipment, drains, surface location markers, G:\Cable\2000\Ocoee\FinalDraft-TelecomOrdinance-052501.doc 9 appurtenances, located, to be located, used, or intended to be used, in the Public Rights-of-Way of the City to transmit, convey, route, receive, distribute, provide or offer Telecommunications Services. As of October 1, 2001,. the term "Communications" shall be substituted for "Telecommunications", provided that Section 337.401, Florida Statutes is amended effective October 1, 2001, as set forth in Chapter 00-260, Laws of Florida, 2000. - Section 162-4. Registration. A. Any person, entity or Telecommunications Service Provider that desires to place, erect, construct, install, locate, maintain, repair, extend, expand, remove, or relocate any Telecommunications Facilities in, under, over or across any Public Right-of-Way in the City shall be considered to be using or occupying the rights-of-way and shall be required to Register with the City in accordance with the terms of this Ordinance. B. Any person, entity or Telecommunications Service Provider desiring to use the Public Right-of-Way shall file a Registration with the City which shall include, as applicable, the following information: 1. identity of the applicant and name, address and telephone number of applicant's primary contact person in connection with the Registration; 2. a statement of whether the applicant presently serves any telecommunications services customers at retail within the jurisdictional limits of the City at the time of registration or whether the applicant simply intends to lease its facilities to other telecommunication service providers who will be providing direct service to retail customers within the jurisdictional limits of the City. This information will allow the City to follow up, with the Registrant, at the time the Registrant begins to make physical use of G:\Cable\2000\Ocoee\FinalDraft-TelecomOrdinance-052501.doc 10 the Public Rights-of-Way, and allow the City to determine whether a liner mile charge is applicable in accordance with Section 162-5(B) of this Ordinance; + + +- f whether registrations submitted prior to October 1, 2001; 3. evidence of the insurance coverage required under this Ordinance and acknowledgment that Registrant has received and reviewed a copy of this Ordinance; 4. a copy of any applicable Federal and/or State Certification authorizing the applicant to provide Telecommunications Services. 5. a Security fund in accordance with this Ordinance. C. The City will review the information submitted by the applicant. Such review will be by the City Manager or his or her designee. If the applicant submits information in accordance with Section B above, the Registration shall be effective and 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 Section 162-4.B. above, the City shall notify the applicant of the non-effectiveness of Registration, and reasons for the non- effectiveness, in writing. The City shall so reply to an applicant within forty-five (45) days after receipt of registration information from the applicant. Upon notification of the non-effectiveness of the Registration, nothing herein shall preclude the applicant from filing a subsequent application addressing the basis for the non-effectiveness. If the applicant disputes the determination of non-effectiveness for the particular application submitted, the applicant may file an appeal under Section 162-8(P) of this Ordinance. Failure to comply with the appeals section for the particular application found to be non-effective shall be sufficient grounds for the City to G:\Cable\2000\OcoeeTinalDraft-TelecomOrdinance-052501.doc 1 1 reject that particular application in the future. A Registrant may cancel a Registration_upon written notice to the City noticing that it will no longer maintain Facilities in the Public Rights- of-Way and will no longer need to pull permits to perform work in Public Right-of-Way. Within 30 days of any change in the information required to be submitted pursuant to Section 162-4, Registrant shall provide updated information to the City. D. A Registration shall not convey title, equitable or legal, in the Public Right-of- Way. Registrants may only occupy Public Rights-of-Way for Telecommunications Facilities. Registration does not excuse a Telecommunications Provider from obtaining appropriate access or pole attachment before locating its Facilities on another Person's facilities. Registration does not excuse a Provider from complying with all applicable City ordinances, including this Ordinance. E. Each application for Registration or transfer shall be accompanied by a non- refundable application fee in the amount of Eight Hundred ($800.00) Dollars. The fee amount shall approximate the City's costs and expenses incurred in connection with approving the Registration or transfer. If the application fee is insufficient to cover all costs or expenses incurred by the City in connection with approval of the Registration or transfer the applicant shall reimburse the City for any such costs and expenses in excess of the application fee. Fee amounts may be amended from time to time, by Resolution of the City Commission, for the purpose of complying with this provision. F. Registration with the City shall be nonexclusive. Registration does not establish any priority for the use of the Public Right-of-Way by a Registrant or any other Registrants. Registrations are expressly subject to any future amendment to or replacement of this Ordinance G:1Cable1200010coeeTinalDraft-TelecomOrdinance-052501.doc 12 and further subject to any additional City Ordinances, as well as any state or federal laws that may be enacted during the term of the Registration. Section 162-5. Fees and Payments. A. In consideration for the rights, privileges and permission granted hereunder, a Registrant hereunder shall pay to the City annually a sum equal to one percent (1%) of Gross Receipts of the Registrant on Recurring Local Service Revenues for services provided within the corporate limits of the City. Included within such one percent (1%) maximum fee or consideration are all taxes, licenses, fees, in-kind contributions accepted pursuant to Florida Statute 337.401(5), 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 City upon a Registrant. In the event that applicable law currently permits or is amended to permit the City to collect a fee higher than one percent (1%), or permits the City to calculate the fee on revenues not specified herein, the Registrant shall pay following written notice from the City, its fee payments to the City to that higher amount on the effective date of such law. In the event applicable law is amended to require the City to collect a fee lower than the current statutory limit, the City shall take all necessary steps to conform the requirements hereof to applicable law. All of the aforestated payments shall be made to the City quarterly, with such payments made within twenty (20) days following the end of each calendar quarter. Payments received after the due date stated herein shall be subject to interest in accordance with the interest rate identified in Section 55.03, Florida Statutes, or its successors. GACable\2000\0coeeTinalDraft-TelecomOrdinance-052501.doc 13 B. A Registrant, that makes physical use of the Public Rights-of-Way and who is not providing Telecommunications Services as defined in Section 203.012(3), Florida Statutes within the jurisdictional limits of the City at the time the Registrant begins to make physical use of the Public Right-of-Way, as a condition for occupying or using the Public Rights-of-Way shall pay to the City annually no less than Five Hundred Dollars ($500) per linear mile of any cable, fiber optic, or other pathway that makes physical use of the Public Rights-of-Way. The City may adopt additional fees or other consideration, provided that any fee or other consideration imposed by the City in excess of Five Hundred Dollars ($500) per linear mile shall be applied in a nondiscriminatory manner and shall not exceed the sum of: (1) Costs directly related to the inconvenience or impairment solely caused by the disturbance of the Public Rights-of-Way; (2) The reasonable cost of the regulatory activity of the City; and (3) The proportionate share of cost of land for such street, alley or other public way attributable to utilization of the Public Rights-of-Way by a Telecommunications Service Provider. The fee or other consideration imposed pursuant to this subsection shall not apply in any manner to any Telecommunications Company which provides Telecommunications Services as defined in Section 203.012(3), Florida Statutes for any services provided by such Telecommunications Company. C. Notwithstanding anything herein to the contrary, the City shall at all times hereby require the maximum compensation allowed under applicable law. G:\Cable\2000\Ocoee\FinalDraft-TelecomOrdinance-052501.doc 14 D. Except to the extent prohibited by applicable law: (1) the fee payments to be made pursuant to this Section shall not be deemed to be in the nature of a tax; (2) such fee payments shall be in addition to any and all taxes of a general applicability; (3) a Registrant shall not have or make any claim for any deduction or other credit of all or any part of the amount of said fee payments from or against any of said City taxes or other fees or charges of general applicability which Registrant is required to pay to the City, except as required by Law; and (4) the fee specified herein is the consideration for use of the Public Rights-of-Way, including all public easements, for the purpose of installing and maintaining a Telecommunications Facility. E. The payments required under Subsection 162-5(A) shall not apply as of October 1, 2001. Additionally, after October 1, 2001, subsection 162-5(B) shall continue to apply to any person or entity that does not directly serve a communications services customer at retail within the jurisdictional limits of the City. The payments required under this Section shall not apply as of October 1, 2001; or such other date as provided by law, -- Section 162-6. Reports and Records. A. The City may, at its option, upon sixty (60) days notice to the Registrant, but in no event more often than once per year, examine the records and accounting files, and such other books and records, if such records relate to the calculation of fee payments. The examination of such books, accounts, records or other materials necessary for determination of compliance with the terms, provisions, and requirements of this Ordinance shall be during regular hours of business of the Registrant at an office of the Registrant located within the County, or at another G:\Cable\2000\Ocoee\FinalDraft-TelecomOrdinance-052501.doc 15 -location satisfactory to the City. In the event that the City, pursuant to an audit, determines that there exists a discrepancy in the amount paid and the amount owed to the City by the Registrant in excess of two percent (2%), Registrant shall pay all reasonable costs, fees and expenses of the audit. This paragraph shall not apply for periods after October 1, 2001, or such other date as provided by law, provided that Section 337.401, Florida Statutes is amended effective October 1, 2001, as set forth in Chapter 00-260, Laws of Florida, 2000. B. Upon reasonable request, a Registrant shall provide the following documents to the City as received or filed: (1) Any pleadings, petitions, notices, and documents, regarding any • legal proceeding involving any provisions of this Ordinance which are reasonably necessary for • the City to protect its interests under this Ordinance. (2) Any request for protection under bankruptcy laws, or any judgment related to a declaration of bankruptcy. (3) Nothing in this section shall affect the remedies the Registrant has available under applicable law. C. In addition, the City may, at its option, and upon reasonable notice to the Registrant, inspect the Facilities in the Public Rights-of-Way to ensure the safety of its residents. D. The City shall keep any documentation, books and records of the Registrant confidential to the extent required under Florida Statutes. Section 162-7. Underground Installation; Relocation. A. A Registrant shall install its Facilities underground, to the extent that this obligation is not expressly prohibited by applicable PSC rules and regulations. To the G:\Cable12000\Ocoee\FinalDrafr-TelecomOrdinance-052501.doc 16 extent required by applicable a rules and regulations, a Registrant shall install its Facilities underground. B. Every Registrant which places or constructs Telecommunications Facilities underground shall maintain appropriate participation in the regional notification center for subsurface installations. C. Any Telecommunications Facilities heretofore or hereafter placed upon, under, over, or along any Public Rights-of-Way that is found by the City to be unreasonably interfering in any way with the convenient, safe or continuous use or the maintenance, improvement, extension or expansion of such Public Rights-of-Way shall, upon written notice to the Registrant or its agent, be removed or relocated, within thirty (30) days of such notice, by such Registrant at its own expense in accordance Section 337.403, Florida Statutes. The City Manager may extend the time within which a Registrant shall remove or relocate a Telecommunications Facility, for good cause shown. D. The Registrant shall not in any way displace, damage, or destroy any facilities, including, but not limited to, gas, sewer, water main, pipe cable, conduit, fiber optic, or other pathway or any other facilities belonging to the City. The Registrant shall be liable to the City for the costs of any repairs made necessary by any such displacement, damage or destruction, of facilities belonging to the City, and the Registrant shall pay such costs upon demand. In the case of an emergency, the City may commence repairs without any prior notice to the Registrant. The term emergency shall mean a condition that may affect the public's health, safety or welfare. In the event of an emergency the City may cause the repairs to be made at the Facility's owner expense, utilizing City employees, agents or contractors, charge any and all costs, and require reimbursement within fourteen (14) calendar days after the submission of the GACable\2000\0coeeTinalDraft-TelecomOrdinance-052501.doc 17 bill by the City to the Registrant. After thirty (30) days, the City may obtain reimbursement from the security fund. In all other non-emergency circumstances, the Registrant shall be given prior written notice. If such repairs are not performed in a reasonable and satisfactory manner within the fourteen (14) calendar days after receiving notice, the City may, cause the repairs to be made at the Facility's owner expense, utilizing City employees, agents or contractors, charge any and all costs, and require reimbursement within thirty (30) days after the submission of the bill by the City to the Registrant. Again, after thirty (30) days, the City may obtain reimbursement from the security fund. E. Subject to Section 337.403, Florida Statutes, whenever an order of the City requires such removal or change in the location of any Telecommunications Facility from the Public Rights-of-Way, and the Facility owner fails to remove or change the same at its own expense to conform to the directive within the time stated in the notice, the City may proceed to cause the Telecommunications Facility to be removed. The expense thereby incurred except as provided in Section 337.403(1)(a)-(c), shall be paid out of any money available therefor, and such expense shall be charged against the owner of the Telecommunications Facility and levied, collected and paid to the City. F. Subject to Section 337.404, Florida Statutes, whenever it shall be necessary for the City to remove or relocate any Telecommunications Facility, the owner of the Telecommunications Facility, or the owner's chief agent, shall be given written notice of such removal or relocation and requiring the payment of the costs thereof, and shall be given reasonable time, which shall not be less than twenty (20) nor more than thirty (30) days in which to file an appeal with the City Commission to contest the reasonableness of the order. Upon G:\Cable\2000\Ocoee\FinalDraft-TelecomOrdinance-052501.doc 18 receipt of a written appeal, the City Commission shall place the matter on the Commission's agenda for consideration within forty-five (45) working days. Should the owner or the owner's representative not appear the determination of the cost to the owner shall be final, in accordance with Section 337.404, Florida Statutes. G. A final order of the City imposed pursuant to Florida Statutes, and applicable provisions of the City Code, if any, shall constitute a lien on any property of the owner and may be enforced as provided therein. H. If the City Manager declares an emergency and requests the removal or abatement of facilities, by written notice, a Registrant shall remove or abate the Registrant's facilities by the deadline provided by the City Manager. A Registrant and the City shall cooperate to the extent possible to assure continuity of service. If a Registrant, after notice, fails or refuses to act, the City may remove or abate the facility, at the sole cost and expense of the Registrant, without paying compensation to the Registrant and without the City incurring liability for damages. I. Upon abandonment of a Facility within the Public Rights-of-Way of the City, the owner of the Facility shall notify the City within ninety (90) days. The Facility owner shall remove all or any portion of the Facility, unless the City determines that such non-removal Following receipt of such notice, the City may direct the Facility owner to remove all or any portion of the Facility if the City determinesthat such, removal will be in the best interest of the public health, safety and welfare. In the event that the City does not direct the removal of the abandoned Facility by the owner of the Facility, then such owner, 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 another utility or person. G:Table12000\0coeeTinalDrafr-TelecomOrdinance-052501.doc 19 • J. A Registrant shall, on the request of any Person holding a permit issued by the City, temporarily raise or lower its Communications Facilities to permit the work authorized by the permit. The expense of such temporary raising or lowering of Facilities shall be paid by the Person requesting same, and the Registrant shall have the authority to require such payment in advance. The Registrant shall be given not less than thirty (30) days advance notice to arrange for such temporary relocation. Section 162-8. Use of Rights-of-Way. A. A Facility owner agrees at all times to comply with and abide by all applicable provisions of the State statutes and local laws including, but not limited to, applicable zoning regulations not inconsistent with State and Federal laws. B. Except in the case of an emergency, no Telecommunications Service Provider shall construct any Facility on, over, above, along, upon, under, across, or within any Public Right-of-Way which disrupts the Public Rights-of-Way without first filing an application with and obtaining a permit from the City therefor, pursuant to applicable permitting requirements of the City, and other applicable City Code requirements, except as otherwise provided in this Ordinance. The term emergency shall mean a condition that affects the public's health, safety or welfare, which includes unplanned out of service condition of a pre-existing service. Registrant shall still be required to provide prior notice to the City in the event of an emergency. For the purposes of the notice requirements herein, the City shall provide the Registrant with a City contact. The City may waive the permit requirement in non-emergency cases where there will be no disruption of the Public Rights-of-Way. When work is performed on an emergency basis, the Registrant must still apply for a permit by the following business day in accordance with Public G:\Cable\2000\OcoeelFinalDraft-TelecomOrdinance-052501.doc 20 Works Department permitting guidelines. In all instances, the Registrant shall restore all dam- aged property and indemnify the City from any and all damages caused by the Registrant's emergency work. The City may waive the permit requirement in cases where there will be no disruption of the Public Rights-of-Way. C. As part of any permit application, with respect to new or existing facilities, where applicable, in the Public Rights-of-Way, the Registrant shall furnish to the Director of Public Works and the City Manager a proposal for construction of the Telecommunications Facility that sets forth at least the following: (1) An engineering plan signed and sealed by a Florida Registered Professional Engineer or prepared by a person who is exempt from such registration requirements as provided in Section 471.003, Florida Statutes, identifying the location of the proposed Facility, including a description of the Facilities to be installed, where it is to be located, and the approximate size of Facilities and equipment that will be located in, on, over, or above the Public Rights-Of-Way. (2) Maps showing the routing of new construction that involves an alteration to the surface or subsurface of the Public Right-of-Way. A Registrant may not begin construction until the plans and drawings have been approved in writing by the Director of Public Works and a permit is issued. (3) A description of the manner in which the Facility will be installed (i.e. anticipated construction methods and/or techniques). (4) The time required to place the Facility. G:\Cable\2000\Ocoee\FinalDraft-TelecomOrdinance-052501.doc 21 (5) A maintenance of traffic plan for any disruption of the Public Rights-of- Way. (6) Information on the ability of the Public Rights-of-Way to accommodate the proposed Facility, if available (such information shall be provided without certification as to correctness, to the extent obtained from other users of the Public Rights-of-Way). (7) If appropriate, given the Facility proposed, an estimate of the cost of restoration to the Public Rights-of-Way. (8) And, such plan shall include the timetable for construction for each phase of the project, and the areas of the City which will be affected. (9) The City,may request such additional information as it finds reasonably necessary to review an application for a permit to perform work in the Public Rights-of-Way. D. The City shall have the power to prohibit or limit the placement of new or additional facilities within the Public Rights-of-Way, if there is insufficient space to accommodate all of the requests to occupy or use the rights-of-way, for the protection of existing facilities in the Public Rights-of-Way, or for City plans for public improvements or development projects which have been determined by the City to be in the public interest. 1. In case of conflict or interference between the facilities of different Registrants, the Registrant whose facilities were first permitted shall have priority over a competing Registrants use of the public rights-of-way. The resolution of any conflict or interference shall be made in a manner which is consistent with the non-discrimination provisions of the Federal Telecommunications Act of 1996. G:\Cable\2000\OcoeeTinalDraft-TelecomOrdinance-052501.doc 22 • 2. There may be from time to time within the City various easements and streets which the City does not have the unqualified right to authorize Registrant to use; therefore, the City does not warrant or represent as to any particular easement, rights- of-way, or portion of a right-of-way or easement, that it has the right to authorize the Registrant to install or maintain portions of its facilities therein, and in each case the burden and responsibility for making such determination in advance of the installation shall be upon the Registrant. The City shall not be required to assume any responsibility for the securing of any rights-of-way, easements or other rights which may be required by the Registrant for the installations of its facilities, nor shall the City be responsible for securing any permits or agreements with other persons or utilities. 3. Nothing in this Ordinance 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. 4. Upon request of the City, a Registrant may be required to coordinate the placement or maintenance of facilities under a permit with any other work, construction, installation or repairs that may be occurring or scheduled to occur within a reasonable time frame in the subject Public Rights-of-Way, and Registrant may be required to reasonably alter its placement or maintenance schedule as necessary so as to minimize disruptions and disturbance in the Public Rights-of-Way. E. All Facilities shall be installed, located and maintained so as not to unreasonably interfere with the use of the Public Rights-of-Way by the public and to cause unreasonable G:\Cable\2000\Ocoee\FinalDraft-TelecomOrdinance-052501.doc 23 • interference with the rights and convenience of property owners who adjoin any of the Public Rights-of-Way. The Registrant shall be liable for costs and expenses for the displacement, damage or destruction of any irrigation system or landscaping within the Public Rights-of-Way. The Registrant shall make such repairs upon request of the affected property owner. In the event the Registrant fails to make the appropriate repairs, to restore such property to as good a condition as existed prior to commencement of work, the affected property owner may file a complaint with the City Manager or a designee. In this instance, the Registrant shall be given prior written notice of the necessary repairs by the City Manager or his designee. If such repairs are not performed in a reasonable and satisfactory manner within the thirty (30) calendar days after receiving notice, the City may cause the repairs to be made at the Facility's owner expense, utilizing City employees, agents or contractors, charge any and all costs, and require reimbursement within thirty (30) days after the submission of the bill by the City to the Registrant. After thirty (30) days, the City may obtain reimbursement from the security fund. The "prior written notice" described in this paragraph shall be considered a final written decision for purposes of the appellate rights outlined in Subsection 162-8(P) of this Section. F. The use of trenchless technology (i.e., directional bore method) for the installation of Facilities in the Public Rights-of-Way as well as joint trenching and/or the co-location of facilities in existing conduit is strongly encouraged, and should be employed wherever possible. The City Manager or his or her designee may waive the requirement of trenchless technology if the City Manager determines that field conditions warrant the waiver. G. The City Manager may issue such additional rules and regulations concerning the placement or maintenance of a Telecommunications Facility in the Public Rights-of-Way, as G:\Cable\2000\Ocoee\FinalDraft-TelecomOrdinance-052501.doc 24 may be consistent with applicable Law and not inconsistent with this Ordinance. H. All safety practices required by applicable Law or accepted industry practices and standards shall be used during construction, maintenance, and repair of the Telecommunications Facilities. Registrant's work,while in progress, shall be properly protected at all times with suitable barricades, flags, lights, flares or other devices as are required by the Manual on Uniform Traffic Control Devices (FDOT) and/or any requirements of the Public Works Department to protect all members of the public having occasion to use the portion of the streets involved or adjacent property. I. In the event that at any time during the term of the rights granted herein the City shall lawfully elect to alter, or change the grade of, any Public Rights-of-Way, upon reasonable notice by the City, the Registrant shall make any necessary removals, relaying and relocations of its Telecommunications Facilities at its own expense, in accordance with applicable Law. The City reserves the right to place and maintain, and permit to be placed or maintained, sewer, gas, water, electric, storm drainage, communications or other types of facilities, cables or conduits, and to do, and to permit to be done, any underground and overhead installation or improvement that may be deemed necessary or proper by the City in the Public Rights-of-Way occupied by the Registrant. J. A Registrant shall obtain any and all required permits and pay any and all required fees before commencing any construction on or otherwise disturbing any Public Rights-of-Way as a result of its construction. 1. The Registrant shall, at its own expense, restore such property to as good a condition as existed prior to commencement of work. The Facility owner shall, at its own G:\Cable\2000\OcoeeTinalDraft-TelecomOrdinance-052501.doc 25 expense, restore such property to as good a condition as existed prior to commencement of work. A Registrant shall guarantee its restoration for a period of twelve (12) months after the completion of such restoration. If such restoration is not performed in a reasonable and satisfactory manner within thirty (30) calendar days after the completion of construction, the City may, after prior written notice to Registrant, cause the repairs to be made at the Facility's owner expense, utilizing City employees, agents or contractors, charge any and all costs, and require reimbursement within thirty (30) days after the submission of the bill by the City to the Registrant. 2. A permit from the City constitutes authorization to undertake only certain activities on Public Rights-of-Way in accordance with this Ordinance, and does not create a property right or grant authority to impinge upon the rights of others who may have an interest in the Public Rights-of-Way. K. All ongoing installation, construction and maintenance of a Telecommunications Facility located in the Public Rights-of-Way shall be subject to the City's periodic inspection upon no leaf than three (3) days written notice to the Facility owner for compliance with this Ordinance, or any applicable provisions of the City Code. L. The City makes no warranties or representations regarding the fitness, suitability or availability of the City's Public Rights-of-Way for the Registrant's Communications Facilities and any performance of work, costs incurred or services provided by Registrant shall be at Registrant's sole risk. M. The Registrant shall, at no cost to the City, produce andprovide a complete set of as-built plans including, but not limited to, horizontal and typical vertical profiles, G:\Cable\2000\Ocoee\FinalDraft-TelecomOrdinance-052501.doc 26 within (60) days after construction of any portion of the system to the City Manager. A Registrant shall also cooperate with the City by providing in a timely and complete manner any additional information requested under this subparagraph. Upon completion of any installation or construction of new facilities in Public Right-of-Way and at no cost to the City, the Registrant shall provide such additional information, as may be requested, showing the exact location of its facilities and structures, including but not limited to, maps, geographical information systems, plats, construction documents, drawings and any other information the City may find reasonably necessary. Such plans shall be provided in digitized format showing the two-dimensional location of the Facilities based on the City's Geographical Database datums, or other format acceptable to the City Manager. All information required by this section shall be maintained in accordance with the public record laws of the State of Florida. N. Suspension or denial of Permits. Subject to Subsection P below, the City Manager or a designee may suspend an existing permit or deny an application for a permit for work in the Public Rights-of-Way for one or more of the following reasons: (1) violation of permit conditions, including conditions set forth in this Ordinance or other applicable provisions of the City Code or regulations governing use of Public Rights-of-Way; or (2) misrepresentation or fraud by Registrant in a Registration or permit application to the City; or (3) failure to relocate or remove facilities as may be lawfully required by the City; or G:\Cable\2000\OcoeeTinalDraft-TelecomOrdinance-052501.doc 27 (4) failure of Registrant, its employees, agents or subcontractors, in connection with the subject permit, to (a) place barricades or signs around the work area, (b) take reasonable safety precautions to alert the public of work at the work site, or (c) repair, replace and restore any sidewalk, street, alley, pavement, water, sewer or other utility line or appurtenance, soil, landscaping, dirt or other improvement, property or structure of any nature. In the event of such failure, the City may perform the work utilizing City employees, agents or contractors, charge any and all costs, and require reimbursement within thirty (30) days after the submission of the bill by the City to Registrant. Upon payment to the City for the violations that gave rise to a suspension or denial of permit,the suspension or denial shall be lifted. O. Immediately after the suspension or denial of permit pursuant to this Section, the City shall provide written notice of the violation, which notice shall contain a description of the violation. A Final written decision(s) of the City Manager suspending a permit or denying an application is subject to appeal. Upon correction of any violation that gave rise to a suspension or denial of permit, the suspension or denial shall be lifted. P. An appeal must be filed with the City within thirty (30) days of the date of the final, written decision(s)to be appealed. Any appeal not timely filed shall be waived. The City Commission shall hear the appeal no later than forty five (15) days from the end of the thirty (30) day appeal period, unless waived by the Registrant. All decisions of the City Manager may be appealed to the City Commission within thirty (30) days, by filing a written notice of appeal with the City Clerk and providing copies to the City Manager and the City Attorney. Any appeal not timely filed shall be waived. The notice of appeal shall state the decision which is being appealed, the grounds for appeal, a brief summary of the relief which is sought. G:\Cable12000\Ocoee\FinalDraft-TelecomOrdinance-052501.doc 28 The City Commission may affirm, modify or reverse the decision of the City Manager. The City Manager shall notify any party who has filed a written request for such notification of the date when the matter will be presented to the City Commission. Nothing contained herein shall preclude the City Commission from seeking additional information prior to rendering a final decision. The decision of the City Commission shall be by resolution and a copy of the decision shall be forwarded to the City Manager and the appealing party. Within the time prescribed by the appropriate Florida Rules of Appeal late Procedure, a party aggrieved by a decision of the City Commission may appeal an adverse decision to the Circuit Court or applicable federal or district court. The party making the appeal shall be required to pay to the City Clerk a fee to be established by administrative order of the City Manager, to defray the costs of preparing the record on appeal. Said fee shall, be effective upon approval by the Commission. Q. In the event Registrant desires to use its existing facilities or to construct new facilities for the purpose of providing to existing or potential consumers, cable services, or any other services other than the provision of telecommunications service, or for providing any other use to existing or potential consumers, a Registrant shall seek such additional and separate authorization from City for such activities as may required by applicable law. R. To the extent that any Person or Registrant leases or otherwise uses the facilities of an entity that is duly registered or otherwise authorized to place and maintain facilities in the Public Rights-of-Way of the City, the 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 the Persons G:\Cable\2000\Ocoee\FinalDraft-TelecomOrdinance-052501.doc 29 ability to provide service or on the Registrant's ability to maintain its own telecommunications facilities in the Public Rights-of-Way of the City. Any Person or Registrant leasing or etlae vise using the facilities of a Registrant or other entity authorized to place and maintain facilities in the Public Rights of Way, may provide the City with notice of its use of such facilities, describing the location of the facilities used and providing the City with an address to which notices from or relocation of any such facilities, under thisistrant leasing or otherwise using the facilities of a Registrant er ether entity a eyed to place and maintain relocation of such facilities. The failure-of the City to provide notice, under this paragraph, shall not render the City's actions under this paragraph invalid. Section 162-9.Termination of Registration. The involuntary termination of a registration may only be accomplished by an action of the City Commission. The City may declare the registration terminated and revoke and cancel all privileges granted under that registration if(a) a federal or state authority suspends, denies, or revokes a Registrant's certification to provide telecommunications service, (b) the Registrant is adjudicated bankrupt by a United States District Court or through any legal proceeding of any kind, or that a receiver is appointed to take possession of the assets of the Registrant, (c) the Registrant abandons all of its facilities. Prior to such termination by the City resulting from a violation of any of the provisions of this subparagraph, the Registrant shall be notified by the City Manager with a written notice setting forth all matters pertinent to such violation, and describing the action of the City with respect thereto. The Registrant shall have sixty (60) days G:\Cable\2000\Ocoee\FinalDraft-TelecomOrdinance-052501.doc 30 • after receipt of such notice within which to cure the violation, or within which to present a plan, satisfactory to the City Commission, to accomplish the same. In the event of an emergency, the City may take appropriate action in accordance with Section 162-7(D) of this Ordinance. In the event of a vote by the City Commission to terminate, the Registrant shall, within a reasonable time following such termination, remove or abandon the facilities and take such steps as are necessary to render every portion of the facilities remaining within the public right-of-way of the City safe. If the Registrant has either abandoned its facilities or chooses to abandon its facilities, the City may either (1) require the Registrant's bonding company to remove some or all of the facilities from the public right-of-way and restore the public right-of-way to its proper condition or (2) the City may require that some or all of the facilities be removed and the public right-of- way restored to its proper condition at the Registrant's expense, utilizing City employees, agents or contractors, and charge any and all costs, and require reimbursement. The obligations of the Registrant and the bonding company hereunder shall survive, for a period of twenty four (24) months from, the termination of the registration. In the event of a termination of registration, this provision does not permit the City to cause the removal of any facilities that are used to provide another service for which the Registrant holds a valid certification with the applicable governing federal and/or state telecommunications agencies and is properly registered with the City, for such certificated service. Section 162-10. Compliance with Other Laws; Police Power. A Facility owner shall at all times be subject to and shall comply with all applicable Federal, State and local Laws. A Facility owner shall at all times be subject to all lawful exercises of the police power of the City,to the extent not inconsistent with applicable Laws. G:\Cabte12000\Ocoee\FinalDraft-TelecomOrdinance-052501.doc 31 • Section 162-11. Transfer of Control; Sale or Assignment. A. If the Registrant transfers or assigns its Registration incident to a sale or other transfer of the Registrant's assets, the transferee or assignee shall be obligated to comply with the terms of this Ordinance. Written notice of any transfer, sale or assignment shall be provided to the City within twenty (20) days of the effective date of the transfer, sale or assignment. In order for the transfer of Registration to be effective, the transferee or assignee must comply with the registration requirements under Section 162-4 of this Ordinance. B. Notwithstanding anything in this Ordinance, pledges in trust or mortgages or other hypothecations of the assets of the Registrant to secure the construction, operation or repair of its Telecommunications Facilities may be made to any person without notice to the City. Any mortgage, pledge, lease or other encumbrance of the Telecommunications Facilities shall be subject and subordinate to the rights of the City by virtue of this Ordinance or other applicable law. Section 162-12. Insurance; Indemnification. A. A Facility owner shall at all times maintain the following liability insurance coverage insuring the Registrant and naming the City, its officers, boards, Commission, Commission members, agents and employees as an additional insured: worker's compensation and employer liability insurance to meet all requirements of Florida law and commercial general liability insurance with respect to the construction, operation and maintenance of the Telecommunications Facilities, and the conduct of Registrant's business in the City, in the minimum amounts of: G:1Cab1e1200010coee\FinalDraft-TelecomOrdinance-052501.doc 32 (1) $250,000 for property damage in any one accident: (2) $500,000 for personal bodily injury to any one person: and - (3) $1,000,000 for personal bodily injury in any one accident. B. 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 except as provided in (D) below. The City 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. A registrant may provide a portion of the insurance coverage required by Section 12(A) through excess or umbrella policies of insurance and where such policies are in a form acceptable to the City's Risk Manager. C. A Registrant shall keep on file with the City certificates of insurance which certificates shall indicate that the City, its officers, boards, Commission, Commission members, agents and employees are listed as additional insureds. In the event of a potential claim such that the City claims insurance coverage, the Facility owner shall immediately respond to all reasonable requests by the City for information with respect to the scope of the insurance coverage. D. The certificates of insurance 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 City. A Registrant shall not cancel any required insurance policy without submission of proof that the Registrant has obtained alternative insurance satisfactory to the City which complies with this Ordinance. A Registrant that elects to self-insure all or a portion of the insurance coverage and limit requirements required by this Section is not required, to the extent G:\Cable12000\Ocoee\FinalDraft-TelecomOrdinance-052501.doc 33 of such self-insurance, to comply with the requirement for the naming of additional insureds under this Section. A Registrant that elects to self-insure shall provide to the City evidence sufficient to demonstrate its financial ability to self-insure the insurance coverage and limit requirements required under this Section, such as evidence that the Registrant is a "private self insurer" under the Workers Compensation Act. For purposes of this Section, "self-insure" shall also include a Registrant which insures through a "captive insurer" as defined in Section 628.901, Florida Statutes. E. A Registrant shall, at its sole cost and expense, release, 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, sustained by the City, arising out of the construction, maintenance or operation of its Telecommunications System or Facilities in the 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 Facility Owner's obligation hereunder shall not extend to any claims caused by the negligence of the City. 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 provision shall be construed or interpreted (1) as denying to either party any remedy or defense available to such party under the laws of the State of Florida, and (2) as a waiver of sovereign immunity beyond the waiver provided in Section 768.28, Florida Statutes. GACable\2000\0coeeTinalDrafr-TelecomOrdinance-052501.doc 34 Section 162-13. Construction Bond. A. Except in the case of an emergency, as described in Section 162-8(B) of this Ordinance, prior to performing any work in the Public Rights-of-Way, a Registrant shall establish in the City's favor a construction bond in an amount specified in an engineering permit or other authorization as necessary to ensure the Registrant's faithful performance of the construction in the Public Rights-of-Way, in accordance with applicable sections of the City Code. The amount of the construction bond shall be as set forth in the engineering permit, and may be modified in the City Manager's reasonable discretion, based on the cost of the restoration to take place in the Public Rights-Of-Way, and any previous history of the Registrant concerning restoration within the Public Rights-of-Way of the City. The City, in its discretion, may request a certified estimate of the cost of restoration by a Florida Registered Professional Civil Engineer or certified by a Person who is exempt from such requirements as provided in Section 471.003, Florida Statutes. B. In the event a Registrant subject to such a construction bond fails to complete the work in a safe, timely and competent manner in accordance with the provisions of the permit, there shall be recoverable, jointly and severally from the principal and surety of the 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, or the cost of completing the work, plus a reasonable allowance for attorneys' fees, up to the full amount of the bond. C. Twelve (12) months after completion of the construction and satisfaction of all obligations in accordance with the bond, the City shall eliminate the bond. Notwithstanding, the G:\Cable\2000\Ocoee\FinalDraft-TelecomOrdinance-052501.doc 35 City may require a new bond for any subsequent work performed in the Public Right-of-Way. D. 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 City Attorney; and shall provide that: "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". E. 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. F. 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 162-14. Security Fund. At the time of registration, the Registrant shall file with the City, for City approval, a cash security, a bond, or irrevocable letter of credit, in the sum of Fifty Thousand Dollars ($50,000.00), in a form acceptable to the City Manager or a designee. For purposes of the bond and irrevocable letter of credit, the Registrant must have as a surety a company qualified to do business in the State of Florida. The cash security, bond, or irrevocable letter of credit, shall be to secure the full and faithful performance by the Registrant of all requirements, duties and obligations imposed upon Registrant by the provisions of this Ordinance, and to pay any taxes, G:\Cable\2000\Ocoee\FinalDraft-TelecomOrdinance-052501.doc 36 fees or liens owed to the City. The bond or irrevocable letter of credit shall be furnished annually, or as frequently as necessary, and shall provide a continuing guarantee of the Registrant's full and faithful performance at all times. Should the City draw upon the cash security, bond, or irrevocable letter of credit, the City shall promptly notify the Registrant, and the Registrant shall within thirty (30) calendar days restore the cash security, annual bond, or irrevocable letter of credit, to full required amount. 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 162-15 below, there shall be recoverable,jointly and severally from the principal and surety of the bond, any damages or loss suffered by the City as a result, including the full amount of any compensation or indemnification, plus a reasonable allowance for attorneys' fees, up to the full amount of the Fund. The cash security, bond or letter of credit may be waived by the City where the City determines that the Security Fund is not necessary to secure the required performance under this Ordinance. The City may from time to time increase the amount of the security fund to reflect the increased risks to the City and to the public. Section 162-15. Enforcement Remedies. A. In addition to any other remedies available at law or equity or provided in this Ordinance, the City may apply any one or combination of the following remedies in the event a Registrant violates this Ordinance, or applicable local law or order related to use of the Public Rights-of-Way. It shall be unlawful to violate any Provision of this section of the City Code. Each day a violation of this section occurs constitutes a separate and distinct offense: (1) Failure to comply with the provisions of this Ordinance or other law applicable to users and/or occupants of the Public Rights-Of-Way, may result in imposition of G:\Cable\2000\0coee\FinalDraft-TelecomOrdinance-052501.doc 37 penalties to be paid by the Registrant to the City in an amount of not less than One Hundred Dollars ($100.00)per day or part thereof that the violation continues. (2) A Registrant's failure to obtain a permit before commencing work, except in cases of an emergency, may result in imposition of penalties to be paid to the City in an amount of not less than One Thousand Dollars ($1,000.00) per day or part thereof that the violation continues. (3) In addition to or instead of any other remedy, the City may seek legal or equitable relief from any court of competent jurisdiction. B. Before imposing a fine pursuant to this Section, the City shall give written notice of the violation and its intention to assess such penalties, which notice shall contain a description of the alleged violation. Following receipt of such notice, the Registrant shall have thirty (30) days to either: (1) cure the violation and the City shall make good faith reasonable efforts to assist in resolving the violations or (2) file an appeal in accordance with Section 162-8(P). If the violation is not cured within that thirty (30) day period, the City may collect all fines owed, beginning with the first day of the violation, either by removing such amount from the Security Fund or through any other means allowed by law. C. In determining which remedy or remedies are appropriate, the City shall take into consideration the nature of the violation, the person or persons bearing the impact of the G:\Cable\2000\Ocoee\FinalDraft-TelecomOrdinance-052501.doc 3 8 violation, the nature of the remedy required in order to prevent further violations, and such other matters as the City determines are appropriate to the public interest. D. 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. E. In any proceeding before the City Commission wherein there exists an issue with respect to a Registrant's performance of its obligations pursuant to this Ordinance, the Registrant shall be given the opportunity to provide such information as it may have concerning its compliance with the terms of the Ordinance. The City Commission may find a Registrant that does not demonstrate compliance with the terms and conditions of this Ordinance in default and apply any one or combination of the remedies otherwise authorized by this Ordinance. F. The City Manager or his/her designee shall be responsible for administration and enforcement of this Ordinance, and is authorized to give any notice required by Law. G. Nothing in this Ordinance shall affect the remedies the Registrant has available under applicable law. Section 162-16. 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 Facility owner's control, such inability to perform or comply shall be deemed excused and no penalties or sanctions shall be imposed as a result thereof, provided, however, that such owner 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 Facility owners control shall include, without limitation, G:\Cable\2000\0coee\FinalDraft-TelecomOrdinance-052501.doc 39 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 162-17. Reservation of Rights. A. The City reserves the right to amend this Chapter Ordinanco as it shall find necessary in the lawful exercise of its police powers. B. This Ordinance shall be applicable to all Telecommunications Facilities permitted to be placed in the Public Rights-of-Way, on or after the effective date of this Ordinance, and shall apply to all existing Telecommunications 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. Providers with existing lines or and cables have one hundred and twenty (120) days from the effective date of this Ordinance to comply with the terms of this Ordinance, or be in violation thereof. C. The City reserves to itself the right to intervene in any suit, action or proceeding involving any provision of this Ordinance. Registrant agrees to advise City of any such suits. SECTION 3. Severability. If any section, subsection, sentence, clause, phrase or portion of this Ordinance is for any reason held invalid or unconstitutional by any court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and such holding shall not affect the validity of the remaining portion hereto. G:\Cable\20001Ocoee\FinalDrafr-TelecomOrdinance-052501.doc 40 SECTION 4. Codification. It is the intention of the City Commission of the City that the provisions of this Ordinance shall become and be made a part of the Code of Ordinances of the City; and that sections of this Ordinance may be renumbered or relettered and the word "ordinance" may be changed to "chapter," "section," "article," or such other appropriate word or phrase in order to accomplish such intentions; and regardless of whether such inclusion in the Code is accomplished, sections of this Ordinance may be renumbered or relettered and the correction of typographical errors which do not affect the intent may be authorized by the City Manager,without need of public hearing, by filing a corrected or recodified copy of same with the City Clerk. SECTION 5. Effective Date. This Ordinance shall become effective immediately upon passage and adoption. PASSED AND ADOPTED this day of , 2001 IMINEJ i7YW ttis d5t,!_ ♦TAN. �AT� tlitAMMGNIL9Nalithil-AC:11V ID I G:\Cable\2000\Ocoee\FinalDraft-TelecomOrdinance-052501.doc 41