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HomeMy WebLinkAbout08-004 ORDINANCE NO. 08-004 EDWIN M. FRY, Jr., CLERK OF THE CIRCUIT COURT SAINT LUCIE COUNTY FILE # 318379903/21/2008 at 12:35 PM OR BOOK 2952 PAGE 966 - 991 Doc Type: ORDN RECORDING: $222.50 AN ORDINANCE OF ST. LUCIE COUNTY, FLORIDA, CREATING SECTION 7.10.27 OF THE COUNTY LAND DEVELOPMENT CODE TO PROVIDE THE TERMS AND CONDITIONS FOR THE ERECTING, CONSTRUCTING, AND MAINTAINING OF A COMMUNICATIONS FACIUTY IN THE COUNTY'S PUBUC RIGHTS-OF-WAY FOR THE PROVISION OF COMMUNICATIONS SERVICE; PROVIDING A CODIFICATION CLAUSE; PROVIDING A CONFLICTS CLAUSE; PROVIDING A SEVERABIUTY AND APPUCABIUTY CLAUSE; PROVIDING FOR FlUNG WITH THE DEPARTMENT OF STATE; PROVIDING FOR ADOPTION; PROVIDING AN EFFECTIVE DATE; AND FOR OTHER PURPOSES. WHEREAS, the Board of County Commissioners of St. Lucie County, Florida, has made the following determination: 1. On August 1, 1990, the Board of County Commissioners of St. Lucie County, Florida, adopted the St. Lucie County Land Development Code. 2. This Board is authorized by Section 125.01(1)(t) to adopt ordinances and resolutions necessary for the exercise of its powers and to prescribe fines and penalties for the violations of ordinances in accordance with law; 3. The Board of County Commissioners has adopted certain amendments to the St. Lucie County Land Development Code, through the following Ordinances: 91-03 - 91-21 - 93-01 - 93-05 - 93-07 - 94-18 - 95-01 - 97 -01 - 97 -03 - 99-02 - 99-04 - 99-15 - 99-17 - 00-10 - 00-12 - 01-03 - March 14, 1991 November 7,1991 February 16, 1993 May 25, 1993 May 25, 1993 August 16, 1994 January 10, 1995 March 4, 1997 September 2, 1997 April 6, 1999 August 17, 1999 July 20,1999 September 7,1999 June 13, 2000 June 13, 2000 December 18, 2001 91-09 - 92-17 - 93-03 - 93-06 - 94-07 - 94-21 - 96-10 - 97 -09 - 99-01 - 99-03 - 99-05 - 99-16 - 99-18 - 00-11 - 00-13 - 02-05 - -1- May 14, 1991 June 2, 1992 February 16, 1993 May 25, 1993 June 22, 1994 August 16, 1994 August 6, 1996 October 7,1997 February 2, 1999 August 17, 1999 July 20, 1999 July 02, 1999 November 2, 1999 June 13, 2000 June 13, 2000 June 24,2002 02-09 - 02-29 - 04-02- 04-33- 05-03- 05-07 - 05-23- 06-13- 06-40 - 07-17 - March 5, 2002 October 15, 2002 January 20, 2004 December 7, 2005 August 2, 2005 January 18, 2005 September 20, 2005 June 6,2006 August 1, 2006 June 5,2007 02-20 - 03-05 - 04-07 - 05-01- 05-04- 05-16- 06-05- 06-30 - 06-47 - 07-32 - October 15, 2002 October 7, 2003 April 20,2004 March 15, 2005 August 2, 2005 August 16, 2005 April 18, 2006 September 12, 2006 December 5, 2006 November 6, 2007 4. On September 20, 2007, the Local Planning Agencyl Planning and Zoning Commission held a public hearing on the proposed ordinance after publishing notice in the Port St. Lucie News and the Tribune at least 10 days prior to the hearing and recommended that the proposed ordinance be approved. 5.. On January 22, 2008, this Board held its first public hearing on the proposed ordinance, after publishing a notice of such hearing in the Port St. Lucie News and the Tribune on . 6. On March 11, 2008, 2008, this Board held its second public hearing on the proposed ordinance, after publishing a notice of such hearing in the Port St. Lucie News and the Tribune on February 20, 2008. 7. The proposed amendments to the St. Lucie County Land Development Code are consistent with the general purpose, goals, objectives and standards of the St. Lucie County Comprehensive Plan and are in the best interest of the health safety and public welfare of the citizens of St. Lucie County, Florida. WHEREAS, Section 337.401, Florida Statutes provides that because of the unique circumstances applicable to providers of Communications services and the fact that federal and state law require the nondiscriminatory treatment of providers of Communications services, and because of the desire 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 placement or maintenance of Communications facilities in its roads or rights-of-way must be generally applicable to all providers of Communications services, and, notwithstanding any other law, may not require a provider of Communications services, except as otherwise provided for providers of cable service, 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; and -2- WHEREAS, the Board of County Commissioners of St. Lucie County ("Board" or "Board of County Commissioners") has determined it is in the public interest of the County to permit the placement of one (1) or more Communications systems or facilities in the public rights-of-way of the County; and WHEREAS, it is the intent of the Board of County Commissioners to encourage competition by providing access to the public rights-of-way to the County on a nondiscriminatory basis; and WHEREAS, Sections 337.401 and 364.0361, Florida Statutes, require that a local government treat Communications companies in a nondiscriminatory manner when exercising the authority to manage the public rights-of-way; and WHEREAS, it is the intention of the Board of County Commissioners to recognize the interests of Communications 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 County; and WHEREAS, it is the intent of the Board of County Commissioners to exercise the County's authority over the Communications service providers' occupancy of the public rights-of-way; and WHEREAS, those 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 Communications Act of 1996, amendments to applicable statutes of the State of Florida and developments in Communications technology and services have resulted in an increase in the number of persons certified by the Florida Public Service Commission to provide Communications Services; and WHEREAS, various Communications service providers have requested or may request the right to occupy the public rights-of-way of the County for the purpose of installing, maintaining and operating Communications systems or facilities; and WHEREAS, it is the County's intent to treat each Communications Service Provider on a competitively neutral and nondiscriminatory basis in granting access for use of the County's public rights-of-way; and WHEREAS, the public rights-of-way subject to the jurisdiction and control of the County (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 County 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; (3) are intended for public uses and must be managed and controlled consistently with that intent; and -3- WHEREAS, it is the intent of the County 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 ORDAINED BY THE BOARD OF COUNTY COMMISSIONERS OF ST. LUCIE COUNTY, FLORIDA, AS FOLLOWS: PART A. The specific amendments to the St. Lucie County Land Development Code to read as follows, include: CHAPTER VII 7.10.00 SUPPLEMENTAL STANDARDS SECTION 7.10.27 COMMUNICATIONS Section 1. Intent and Purpose. St. Lucie County (the "County") hereby declares as a legislative finding that the public rights-of-way within the County are a unique and physically limited resource that are critical to the travel and transport of persons and property in the County; that the public rights-of-way must be managed and controlled in a manner that enhances the health, safety and general welfare of the County and its citizens; and that the use and occupancy of the public rights-of-way by providers of Communications services must be subject to regulation which can ensure minimal inconvenience to the public, coordinate users, maximize available space, reduce maintenance and costs to the public, and facilitate entry of an optimal number of providers of cable, Communications, and other services in the public interest. It is the intent of the County to promote the public health, safety and general welfare by: providing for the placement or maintenance of Communications facilities in the public rights-of-way within the County limits; adopting and administering reasonable rules, regulations and general conditions not inconsistent with state and federal law, including Section 337.401, Florida Statutes (2007), as it may be amended from time to time, and in accordance with the provisions of the Federal Communications Act of 1996 and other federal and state law; establish reasonable rules, regulations and general conditions necessary to manage the placement and maintenance of Communications facilities in the public rights-of-way by all Communications service providers; minimize disruption to the public rights-of-way; and require the restoration of the public rights-of- way to original condition. This ordinance shall apply to any entity who seeks to construct, place, install, maintain or operate a Communications system or facilities, as such terms are defined herein, in the public rights-of-way, unless otherwise exempt by operation of applicable state law. Section 2. Definitions. For the purpose of this ordinance, the following words, terms and phrases shall have the meanings ascribed to them in this section, except where the context clearly indicates a different -4- meaning. Words not otherwise defined in this section or in any permit that might be granted under this article shall be given the meaning set forth in the Communications Act of 1934, 47 U.S.C. Section 151 et seq., as amended (collectively, the "Communications Act"), and, if not defined therein, as defined by state statute; and, if not defined therein, be construed to mean the common and ordinary meaning. A. Abandonment means the permanent cessation of all uses of a Communications facility; provided that this term shall not include cessation of all use of a facility within a physical structure where the physical structure continues to be used. By way of example, and not limitation, cessation of all use of a cable within a conduit, where the conduit continues to be used, shall not be Abandonment of a facility in the public rights-of-way. B. Affiliate means each person, directly or indirectly, controlling, controlled by, or under common control with a Communications services provider that is registered with the County; provided that affiliate shall in no event mean any limited partner, member, or shareholder holding an interest of less than Fifteen percent (15'Yo) in such Communications services provider. C. As-builts mean, consistent with Ch 556 FI. Stat., the final and complete drawings in hard copy and the final and complete electronic overview map (in autocad, microstation, mapinfo or ESRI format) presented in the available computer input medium such as cd-rom, dvd or zip. Upon request of the County, as-builts, in both the drawings and the electronic overview map, must show the present state of a Communications services provider's facilities in the public rights-of-way, including, but not limited to, the horizontal and vertical location of facilities located at least every one hundred (100) feet and at any alignment change. Horizontal locations on all points of facilities shall be from street centerline, or section or quarter section lines or corners. Vertical locations on all points of facilities shall consist of elevations in either County datum or United States Geological Survey datum. D. Co-locate or co-location means the shared use of facilities, such as poles, ducts or conduit, including but not limited to the placement of conduit owned by more than one user of the public rights-of-way in the same trench or boring and the placement of equipment owned by more than one user in the same conduit. Co-location does not include interconnection of facilities or the sale or purchase of capacity. E. Communications Company or Telecommunications Company has the meaning set forth in Section 364.02(12), Florida Statutes, and includes any company providing communications services as defined in Section 202.11(2) and Section 337.401(6). F. Communications facility, facility or facilities means any facility that may be used to provide Communications Services, including but not limited to, equipment or property, including, but not limited to, cables, conduits, converters, splice boxes, cabinets" manholes, vaults, equipment, drains, surface location markers, appurtenances, located, to be located, used, or intended to be used, in the Public Rights-of-Way of the County to transmit, convey, route, receive, distribute, provide or offer Communications Services. -5- G. Communications Pass-Through Provider means any person who places or maintains a Communications Facility in the roads or right of way of the County and who does not remit taxes imposed pursuant to Chapter 202 Florida Statutes. H. Communications services 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 protocol used for such transmission or conveyance I. Communications services provider shall refer to any Person making available or providing Communications Services, as defined herein, through the placement or use of a Communications Facility in the Public Rights of Way. J. Communications system or systems means any permanent or temporary plant, equipment and property placed or maintained in the public rights-of-way that is occupied or used, or is capable of being occupied or used, by a Communications services provider for the purpose of producing, conveying, routing, transmitting, receiving, amplifying, distributing, providing or offering Communications services including, but not limited to cables, wires, lines, conduits, fiber optics, antennae, radios and any associated poles, converters, splice boxes, cabinets, hand holes, manholes, vaults, drains, surface location markers, and other plant, equipment and pathway. K. County means St. Lucie County, Florida, a political subdivision of the State of Florida, in its present form or in any later reorganized, consolidated, or enlarged form. L. Excavation or other similar formulation of that term means the cutting, trenching or other disturbance to the public rights-of-way intended to change the grade or level of land or that causes any cavity, gap, depression, penetration or hole in the surface of the public rights-of-way. M. FCC means the Federal Communications Commission. N. Government means the United States of America, the State of Florida or St. Lucie County, Florida, and any of their respective agencies, departments or bureaus. O. In the public rights-of-way means in, along, on, over, under, across or through the public rights-of-way, excluding only those public utility easements over which the County lacks jurisdiction under Florida law P. 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 amended by the Communications Act of 1996, 47 U.S.C.A § 151 et seq. (1996), and all orders, rules, tariffs, -6- guidelines and regulations issued by the Federal Communications Commission or the governing State authority pursuant thereto. Q. Person means any individual, firm, joint venture, partnership, estate, trust, business trust, syndicate, fiduciary, association, corporation, company, organization or legal entity of any kind, including any affiliate, successor, assignee, transferee or personal representative thereof, and all other groups or combinations, and shall include the County to the extent that the County acts as a Communications services provider. R. Placement, or maintenance or other similar formulation of that term means the named actions interpreted broadly to encompass, among other things, erection, construction, reconstruction, installation, inspection, maintenance, placement, replacement / extension, expansion, repair, removal, operation, occupation, location, relocation, grading, undergrounding, trenching or excavation. Any Communications services provider that owns, leases or otherwise controls the use of a Communications system or facility in the public rights-of-way, including the physical control to maintain and repair, is "placing or maintaining" a Communications system or facility. A person providing service only through buying wholesale and then reselling is not "placing or maintaining" the Communications facilities through which services is provided. The transmission and receipt of radio frequency signals through the airspace of the public rights-of-way does not constitute "placing or maintaining" facilities in the public rights-of-way. S. PSC means the Florida Public Service Commission. T. Public rights-of-way means a road, street, highway, bridge, tunnel or alley that is owned by the County, publicly held by the County or dedicated to the County for public use and over which the County has jurisdiction and control and may lawfully grant access pursuant to applicable law, and includes the space above, at or below the surface of such right-of-way. "Public rights-of- way" shall include public utility easements and County services easements that are under the jurisdiction and control of the County wherein the County now or hereafter acquires the right to locate or permit the location of Communications facilities; provided that the terms and conditions of any such easement expressly prohibit the use of particular easement for purposes other than which it was conveyed, dedicated or condemned. "Public rights-of-way" shall not include (1) city, state or federal rights-of-way, (2) property owned by any person other than the county, (3) service entrances or driveways leading from the road or street onto adjoining property or (4) except as described above, any real or personal property of the County, such as, but not limited to, County parks, buildings, fixtures, poles, conduits, sewer lines, facilities or other structures or improvement, regardless of whether they are situated in the public rights-of-way. U. Registrant or facility owner shall mean a Communications company or other person which seeks to use the public rights-of-way that has registered with the County in accordance with the provisions of this ordinance. V. Registration and register shall mean the process described in Section 3, whereby a Communications service provider provides certain information to the County. -7- Section 3. Registration. A. Each Communications service provider that desires to place, erect, construct, install, locate, maintain, repair, extend, expand, remove, or relocate any Communications facilities in, under, over or across any public rights-of-way in the County shall be considered to be using the public rights-of-way and shall be required to register with the County in accordance with the terms of this ordinance. B. Any Communications service provider desiring to use the public rights-of-way shall file a registration with the County Administrator or his designee, which shall include 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 provides retail services to any Communications services customers within the jurisdictional limits of the County at the time of registration or whether the applicant simply intends to lease its facilities to other Communication service providers who will be providing direct service to retail customers within the jurisdictional limits of the County. This information will allow the County to follow up with the registrant at the time the registrant begins to make physical use of the public rights-of-way, and to determine whether a linear mile charge is applicable in accordance with Section 4 of this ordinance. 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 federal and/or state certification authorizing the applicant to provide Communications services; and 5. A security fund in accordance with this ordinance. 6. Acknowledgment that Registrant has received and reviewed a copy of this Ordinance. C. The County will review the information submitted by the applicant. Such review will be by the County Administrator or designee. If the applicant submits information in accordance with Section 3 above, the registration shall be effective and the County shall notify the applicant of the effectiveness of registration in writing. If the County determines that the information has not been submitted in accordance with Section 3 above, the County shall notify the applicant of the non-effectiveness of registration, and reasons for the non-effectiveness, in writing. The County shall so reply to an applicant within thirty (30) 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 registrant disputes the determination of non-effectiveness for the particular -8- application submitted, the only avenue of redress shall be an appeal under Section 7(P). Failure to comply with the appeals section for the particular application found to be non-effective shall be sufficient grounds for the County to reject that particular application in the future. A registrant may cancel a registration upon written notice to the County Administrator or his designee stating 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 rights-of-way. Within thirty (30) days of any change in the information required to be submitted pursuant to Section 3, registrant shall provide updated information to the County. D. A registration shall not convey title, equitable or legal, in the public rights-of-way. Registrants may only occupy public rights-of-way for Communications facilities. Registration does not excuse a Communications service provider from obtaining appropriate access or pole attachment consents before locating its facilities on another person's facilities. Registration does not excuse a Communications service provider from complying with all applicable County ordinances, including this ordinance. E. Registration with the County shall be non-exclusive. Registration does not establish any priority for the use of the public rights-of-way by a registrant or any other registrants. Registrations are expressly subject to any future amendment to or replacement of this ordinance and further subject to any additional County ordinances, as well as any state or federal laws that may be enacted during the term of the registration. Section 4. Fees and Payments. A. In consideration for the rights, privileges and permission granted hereunder, a Registrant hereunder shall pay an annual Communications Service Tax. Said tax shall be in addition to any permit fees imposed by the County pursuant to an election made by the County pursuant to Chapter 202 Florida Statutes. B. A Registrant who places or maintains a Communications Facility in the roads or rights of way of the County but who does not remit taxes imposed and is as a Pass Through Provider, shall pay to the County annually Five Hundred Dollars ($500.00) per linear mile or portion thereof in addition to any permit fees the County is authorized to collect. The linear mile charge authorized by this Section shall be based on the linear miles of roads or Rights of Way where a Communications Facility is placed, not based on a summation of the lengths of individual cables, conduits, strands or fiber. C. Notwithstanding anything to the contrary, the County hereby reserves the right to require the maximum compensation allowed by law. D. Pursuant to Chapter 337.401(3)(f), nothing herein shall prohibit or impair any voluntary agreement between a Registrant and the County which provides for or allows for the provision of in- kind compensation by the Registrant to the County in addition to the fees and payments set forth in Sections A and B above. -9- Section 5. Reports and Records. A. A registrant shall provide the following documents to the County as received or filed: (1) Any pleadings, petitions, notices and documents regarding any legal proceeding involving any provisions of this ordinance or any permit or Agreement granted pursuant to this Ordinance. (2) Any request for protection under bankruptcy laws, or any judgment related to a declaration of bankruptcy. B. In addition, the County may, at its option and upon reasonable notice to the registrant, inspect the facilities in the public rights-of-way and to require applicable reports and records including but not limited to FCC compliance and performance tests to ensure the safety of its residents. C. Unless prohibited by applicable law, such other books, records, accounts and materials reasonably required by the County to determine compliance with this ordinance. D. The County shall keep any documentation, books and records of the registrant confidential to the extent permitted under Florida Statutes. Section 6. Underground Installation; Relocation. A. A registrant shall install its facilities underground, unless such undergrounding is not technically feasible. This provision shall apply only prospectively for all new facilities and only to the extent that this obligation is not expressly prohibited by federal law, state law or applicable PSC rules and regulations. B. Every registrant that places or constructs Communications facilities underground shall maintain appropriate participation in the regional notification center for subsurface installations. C. Any Communications facilities heretofore or hereafter placed upon, under, over, or along any public rights-of-way that is found by the County 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 by such registrant at its own expense, within thirty (30) days of such notice, consistent with Section 337.403, Florida Statutes. The County Administrator or his designee may extend the time within which a registrant shall remove or relocate a Communications facility for good cause shown. -10- 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 County. Except to the extent damage is caused by the County's negligence or the County's failure to comply with applicable law, subject to applicable law, the registrant shall be liable to the County for the costs of any repairs made necessary by any such displacement, damage or destruction, of facilities belonging to the County, and the registrant shall pay such costs upon demand. In the case of an emergency, the County 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 County may cause the repairs to be made at the facility owner's expense, utilizing County employees, agents or contractors, charge any and all costs, and require reimbursement within thirty (30) days after the submission of the bill by the County to the registrant. After thirty (30) days, the County 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 thirty (30) calendar days after receiving notice, the County may cause the repairs to be made at the facility owner's expense, utilizing County employees, agents or contractors, charge any and all costs, and require reimbursement within thirty (30) days after the submission of the bill by the County to the registrant. Again, after thirty (30) days, the County may obtain reimbursement from the security fund. E. Subject to Section 337.403, Florida Statutes, whenever an order of the County requires such removal or change in the location of any Communications 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 County may proceed to cause the Communications facility to be removed. The expense thereby incurred, except as provided in Section 337.403(1)(a)-(c), Florida Statutes, shall be paid out of any money available therefore, and such expense shall be charged against the owner of the Communications facility and levied, collected and paid to the County. F. Subject to Section 337.404, Florida Statutes, whenever it shall be necessary for the County to remove or relocate any Communications facility, the owner of the Communications 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, to file an appeal with the Board of County Commissioners to contest the reasonableness of the order. Upon receipt of a written appeal, the Board of County Commissioners shall place the matter on its 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 County, imposed pursuant to Florida Statutes and applicable provisions of this ordinance and the County code, if any, shall constitute a lien on any property of the owner and may be enforced as provided therein. -11- H. The County retains the right and privilege to cut or remove any facilities located within the public rights-of-way as the County Administrator or his designee in reasonable discretion may determine to be necessary, appropriate or useful in response to any public health or safety emergency. If circumstances permit, the County shall attempt to notify the owner of the facility, if known, prior to cutting or removing a facility and shall notify the owner of the facility, if known, after cutting or removing a facility. I. Upon abandonment of a facility within the public rights-of-way of the County, the owner of the facility shall notify the County within ninety (90) days. Following receipt of such notice, the County may direct the facility owner to remove all or any portion of the facility if the County determines that such removal will be in the best interest of the public health, safety and welfare. In the event that the County does not direct the removal of the abandoned facility by the owner of the facility and the facility owner chooses not to remove its facilities, then such owner, by its notice of abandonment to the County, shall be deemed to consent to the alteration or removal of all or any portion of the facility by another utility or person. J. A registrant shall, on the request of any person holding a permit issued by the County, 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 the 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 7. 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 Communications service provider shall construct any facility over, under or within any public rights-of-way which disrupts the public rights-of-way without first filing an application with and obtaining a permit from the County therefore, pursuant to applicable permitting requirements of the County and other applicable County 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 an unplanned out of service condition of a pre-existing service. Registrant shall still be required to provide prior notice to the County in the event of an emergency. For the purposes of the notice requirements herein, the County shall provide the registrant with a County contract. When work is performed on an emergency basis, the registrant must still apply for a permit by the following business day in accordance with the County's permitting guidelines. In all instances, the registrant shall restore all damaged property and indemnify the County from any and all damages caused by the registrant's emergency work. Unless otherwise required by this ordinance, the County may waive the permit requirement in cases where there will be no disruption of the public rights-of-way. -12- C. As part of any permit application with respect to new or existing facilities in the public rights-of-way, where applicable, the registrant shall provide a proposal for construction of the Communications facility that sets forth at least the following: (1) An engineering plan 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. The plan shall include a current survey of all existing improvements. (2) Maps showing the routing of new construction that involves an alteration to the surface or subsurface of the public rights-of-way. A registrant may not begin construction until the plans and drawings have been approved in writing by the County Engineer or his designee 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. (5) A maintenance of traffic plan for any disruption of the public rights-of-way which meets or exceeds any requirements set forth by the State of Florida Department of Transportation. (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 of 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 County that will be affected. (9) Any such additional information as the County Engineer finds reasonably necessary to review an application for a permit to perform work in the public rights-of-way. D. If there is insufficient space to accommodate all of the requests to occupy or use the rights-of-way, to the extent not otherwise prohibited by state or federal law, the County shall have the power to prohibit or limit the placement of new or additional facilities within the public rights-of-way for the protection of existing facilities in the public rights-of-way, or for County plans for public improvements, which have been determined by the County to be in the public interest. -13- (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 registrant's use of the public rights-of-way. The resolution of any conflict or interference shall be made in a manner that is consistent with the non-discrimination provisions of the Federal Communications Act of 1996. (2) There may be from time to time within the County various easements and streets, which the County does not have the unqualified right to authorize registrant to use; therefore, the County 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 County shall not be required to assume any responsibility for the securing of any rights-of-way, easements or other rights that may be required by the registrant for the installations of its facilities, nor shall the County be responsible for securing any permits or agreements with other persons or uti lities. (3) Nothing in this ordinance shall affect the County's authority to add, vacate, or abandon public rights-of-way, and the County 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 County, 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 disturbances 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 so as not to cause unreasonable 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, to the extent not covered by the construction bond. In the event the registrant fai Is to make the appropriate repairs to restore such property to as good a condition as existed prior to the commencement of the work, the affected property owner may file a complaint with the County Administrator or his/her designee. In this instance, the registrant shall be given prior written notice of the necessary repairs by the County Administrator or his designee. If such repairs are not performed in a reasonable and satisfactory manner within thirty (30) calendar days after receiving notice, the County may cause the repairs to be made at the facility owner's expense, utilizing County employees, agents or contractors, charge any and all costs, and require reimbursement within thirty (30) days after the submission of the bill by the County to the registrant. After thirty (30) days, the County may obtain reimbursement from the security fund. The prior written notice described in this -14- subsection shall be considered a final written decision for purposes of the appellate rights outlined in subsection (P) of this Section. F. The use of trench less 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. G. The County Administrator or his designee may issue such additional rules and regulations concerning the placement and maintenance of a Communications facility in the public rights-of-way as 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 Communications 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 County to protect all members of the public having occasion to use the portion of the streets involved or adjacent property. I. If, at any time during the term of the rights granted herein, the County shall lawfully elect to alter, or change the grade of, any public rights-of-way, upon reasonable notice by the County, the registrant shall make any necessary removals, relaying and relocations of its Communications facilities at its own expense, in accordance with applicable law. The County 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 County in the public rights-of-way occupied by the registrant. J. A facility owner 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. 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 County may, after prior written notice to registrant, cause the repairs to be made at the facility/s owner expense, utilizing County employees, agents or contractors, charge any and all costs, and require reimbursement within thirty (30) days after the submission of the bill by the County to the registrant. (2) A permit from the County 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. -15- K. All ongoing installation, construction and maintenance of a Communications facility located in the public rights-of-way shall be subject to the County's periodic inspection for compliance with this ordinance, or any applicable provisions of this ordinance and County Codes. L. A facility owner shall not place its facilities so as to interfere unreasonably with any other person lawfully using the public rights-of-way of the County. M. The registrant shall, upon request of the County Engineer or his designee, and at no cost to the County, produce and provide to the County Engineer or his designee a complete set of as-built plans including but not limited to, horizontal and typical vertical profiles, within sixty (60) days after construction of any portion of the system. A registrant shall cooperate with the County by providing timely and complete information under this subsection. Upon completion of any installation or construction of new facilities in public rights-of-way, the registrant shall provide, at no cost to the County, such 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 County may find reasonably necessary. If available, such plans shall be provided in digitized format showing the two-dimensional location of the facilities based upon the County's geographical database datums, or other format acceptable to the County Administrator. All information required by this Section shall be maintained in accordance with the public records laws of the State of Florida. N. Suspension or denial of Permits. Subject to subsection (P) below, the County Administrator 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 this ordinance or County Codes or regulations governing use of public rights-of-way; or (2) Misrepresentation or fraud by registrant In a registration or permit application to the County; or (3) Failure to relocate or remove facilities as may be lawfully required by the County; or (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 -16- (c) Repair, replace and restore any public or private property including without limitation 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 County may perform the work utilizing County employees, agents or contractors, charge any and all costs, and registrant shall be required to reimburse the County within thirty (30) calendar days after the submission of the bill by the County to registrant. In the event the County incurred costs as described herein, the registrant shall be required to reimburse the County for any and all such costs before the suspension or denial can be lifted. The County Administrator or his designee shall have the discretion to waive this requirement. O. Immediately after the suspension or denial of permit pursuant to this Section, the County shall provide written notice of the violation, which notice shall contain a description of the violation. A final written decision of the County Administrator suspending a permit or denying an application for a registration 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. All final written decisions may be appealed by filing a written notice of appeal with the County Clerk and providing copies to the County Administrator and County Attorney. An appeal must be filed with the County within thirty (30) days of the date of the final, written decision to be appealed. Any appeal not timely filed as set forth herein shall be waived. The notice of appeal shall state the decision that is being appealed, the grounds for appeal, a brief summary of the relief sought, and shall be accompanied by a non-refundable fee to be established by administrative order of the County Administrator. The Board of County Commissioners may affirm, modify or reverse the decision of the County Administrator. The County Administrator or his designee shall notify any party who has filed a written request for such notification of the date when the matter will be presented to the Board of County Commissioners. Nothing contained herein shall preclude the Board of County Commissioners from seeking additional information prior to rendering a final decision. The decision of the Board of County Commissioners shall be by resolution and a copy of the decision shall be forwarded to the County Administrator and the appealing party. Within the time prescribed by the appropriate Florida Rules of Appellate Procedure, a party aggrieved by a decision of the Board of County Commissioners may appeal an adverse decision to the Circuit Court in and for St. Lucie County, Florida, or applicable federal or district court. The party making the appeal shall be required to pay to the County Clerk a fee as established by the Clerk. Q. In the event registrant desires to use its existing facilities or to construct new facilities for the purpose of providing other utility or non-utility services to existing or potential consumers or resellers by providing services other than the provision of Communications service, or for providing any other use to existing or potential consumers, a registrant shall seek such additional and separate authorization from County for such activities as may be required by applicable law. -17- 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 County, the person or registrant shall make no claim, nor assert any right which will impede the lawful exercise of the County's rights, including requiring the removal of such facilities from the public rights-of-way of the County, regardless of the effect on the person's ability to provide service, or on the registrant's ability to maintain its own Communications facilities in the public rights-of-way of the County. Section 8. Involuntary Termination of Registration A. The involuntary termination of a registration may only be accomplished by an action of the Board of County Commissioners. The County may declare the registration terminated and revoke and cancel all privileges granted under that registration if: (1) A federal or state authority suspends, denies, or revokes a registrant's certification to provide Communications service, (2) 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, or (3) Fails to provide proof of required insurance. (4) The registrant abandons all of its facilities. B. Prior to such termination of the County resulting from a violation of any of the provisions of this subsection, the registrant shall be notified by the County Administrator or his designee with a written notice setting forth all matters pertinent to such violation and describing the action of the County with respect thereto. The registrant shall have sixty (60) days after receipt of such notice within which to cure the violation, or within which to present a plan, satisfactory to the Board of County Commissioners to accomplish the same. In the event of an emergency, the County may take appropriate action in accordance with Section 6 of this ordinance. In the event of a vote by the Board of County Commissioners 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 safe every portion of the facilities remaining with the public rights-of-way of the County. If the registrant has either abandoned its facilities or chooses to abandon its facilities, the County may either: (1) Require the registrant's bonding company to remove some or all of the facilities from the public rights-of-way and restore the public rights-of-way to its proper condition, or -18- (2) The County may require that some or all of the facilities be removed and the public rights-of-way restored to its proper condition at the registration's expense, utilizing County employees, agents or contractors, and charge any and all costs, and require reimbursement. C. 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 County to cause the removal of any facilities that are used to provide another service for which the registrant holds a valid certification with the governing federal and state Communications agencies and is properly registered with the County for such certificated service, under this ordinance. Section 9. 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 County, to the extent not inconsistent with applicable laws. Section 10. 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 County within twenty (20) days following 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 3 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 Communications facilities may be made to any person with notice to the County. Any mortgage, pledge, lease or other encumbrance of the Communications facilities shall be subject and subordinate to the rights of the County by virtue of this ordinance or other applicable law. Section 11. Insurance; Surety; Indemnification. A. A facility owner shall at all times maintain the following liability insurance coverage insuring the registrant and naming the County, its officers, boards, Commission, Commission members, agents and employees as additional insureds; 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 Communications facilities, and the conduct of registrant's business in the County, in the minimum amounts of: (1) $1,000,000 for property damage in anyone accident; (2) $1,000,000 for personal bodily injury to anyone person; and -19- (3) $2,000,000 for personal bodily injury in anyone accident. The policy shall also provide that the County will be given a thirty (30) day written notice of cancellation or non-renewal. 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-I in Best's Key Rating Guide, Property/Casualty Edition, except as provided in subsection (D) below. The County 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 11 through excess or umbrella policies of insurance and where such policies are in a form acceptable to the County's Risk Manager. C. A registrant shall keep on file with the County certificates of insurance which certificates shall indicate that the County, its officers, boards, Commission, Commission members, agents and employees are listed as additional insureds. In the event of a potential claim such that the County claims insurance coverage, the facility owner shall immediately respond to all reasonable requests by the County 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 County. A registrant shall not cancel any required insurance policy without submission of proof that the registrant has obtained alternative insurance satisfaction to the County that 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 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 County 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 that insures through a "captive insurer," as defined in Section 628.901, Florida Statutes. E. Registrant shall, at its sole cost and expense, release, indemnify, hold harmless, and defend the County, 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 County in connection with each such claim, suit, cause of action or proceeding including, but not limited to, attorneys' fees, arising out of the construction, maintenance or operation of its Communications 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 sole negligence of the County. This indemnity shall survive and continue in full force and effect as to the registrant's responsibility to indemnify. County agrees to notify the registrant, in writing, within a reasonable time of the County receiving notice, of any issue it -20- determines may require indemnification. Nothing in this Section shall prohibit the County from participating in the defense of any litigation by its own counsel and at its own cost if in the County'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. F. The County Risk Manager may accept self insurance provided by a Registrant in satisfaction of the requirements of this Section provided such Registrant is a public corporation and complies with such other reasonable standards as may be required by the Risk Manager. Section 12. Construction Bond. A. Except in the case of an emergency, as described in Section 7(B) of this ordinance, prior to performing substantial work in the public rights-of-way ,as determined by the County Engineer, a registrant may be required to establish in the County'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 this ordinance or the County code. The amount of the construction bond shall be as set forth in the engineering permit, and may be modified in the County Administrator or his designee's reasonable discretion, based upon 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 County. The County Administrator, in his or her discretion, or designee, 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 County 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 County shall eliminate the bond. Notwithstanding, the County may require a new bond for any subsequent work performed in the public rights-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 County Attorney, and shall provide that: -21- This bond may not be canceled, or allowed to lapse, until sixty (60) days after receipt by the County, 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 County with respect to any construction bond established pursuant to this Section are in addition to all other rights and remedies the County may have under this ordinance, or at law or equity. F. The rights reserved to the County under this Section are in addition to all other rights of the County, 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 County may have. Section 13. Security Fund. A. At the time of registration, the registrant shall file with the County Administrator or his designee, for his or her 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 County Administrator or a designee, which shall serve, and be referred to, as the "security fund." 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, fees or liens. 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 County draw upon the cash security, bond, or irrevocable letter of credit, the County 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 the 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, there shall be recoverable, jointly and severally from the principal and surety of the bond, any damages or loss suffered by the County 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 bond. The cash security, bond or letter of credit may be waived by the County Administrator where the County Administrator determines that the security fund is not necessary to secure the required performance under this ordinance. . The County may from time to time increase the amount of the security fund to reflect the increased risks to the County and to the public. B. Additionally, the County, upon thirty (30) days advance written notice clearly stating the amount and the reason for, and its intention to exercise withdrawal rights under this subsection, may withdraw an amount from the security fund, provided that the registrant has not reimbursed the County for such amount within the thirty (30) days notice period. Withdrawals may be made if the registrant: -22- (1) Fails to make any payment required to be made under any part of this ordinance. Nothing in this Section, however, shall create a limitation or prevent the County from immediately making a withdrawal for non-payment, from the security fund on the thirty-first (31st) calendar day after the submission of a bill to the Registrant. (2) Fails to pay any liens relating to the facilities that are due and unpaid. (3) Fails to reimburse the County for any damages, claims, costs or expenses that the County has been compelled to payor incur by reason of any action or non-performance by the registrant arising out of the construction, maintenance or operation of its Communications system or facilities; or (4) Fails to comply with any provision of this ordinance, which failure the County determines can be remedied by an expenditure of an amount from the security fund. C. Within thirty (30) days after receipt of written notice from the County that any amount has been withdrawn from the security fund, the registrant shall restore the security fund to the amount specified in this ordinance. D. The rights reserved to the County with respect to the security fund are in addition to all other rights of the County, whether reserved by this ordinance or authorized by other law, and no action, proceeding or exercise of a right with respect to such security fund will affect any other right the County may have. Section 14. Enforcement Remedies A. In addition to any other remedies available at law or equity, or provided in this ordinance, the County may apply anyone or a 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: (1) Registrant's failure to comply with the provisions of this ordinance, or law applicable to users and/or occupants of the public rights-of-way, may result in imposition of penalties to be paid by the registrant to the County 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 County 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 County may seek legal or equitable relief from any court of competent jurisdiction. -23- B. Before imposing a fine pursuant to this Section, the County Administrator or a designee 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 County Administrator or a designee shall make good faith reasonable efforts to assist in resolving the violation, or (2) File an appeal in accordance with Section 7(P). If the violation is not cured within that thirty (30) day period, and no appeal is filed, the County 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 County shall take into consideration the nature of the violation, the person or persons bearing the impact of the violation, the nature of the remedy required in order to prevent further violations and such other matters as the County determines are appropriate to the public interest. D. Failure of the County to enforce any requirements of this ordinance shall not constitute a waiver of the County'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 County 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 County Commission may find a registrant that does not demonstrate compliance with the terms and conditions of this ordinance in default and apply anyone or combination of the remedies otherwise authorized by this ordinance. F. The County Administrator 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 15. 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 -24- not within a facility owners control shall include, without limitations, 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 16. Reservation of Rights A. The County reserves the right to amend this ordinance as it shall find necessary in the lawful exercise of its police powers. B. This ordinance shall be applicable to all Communications 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 Communications facilities in the public rights-of-way prior to the effective date of this ordinance, to the full extent permitted by state and federal law. Providers with existing lines and cables have one hundred twenty days (120) from the effective date of this ordinance to comply with the terms of this ordinance, or be in violation thereof. C. The County reserves to itself the right to intervene in any suit, action or proceeding involving any provision of this ordinance. Registrant agrees to advise County of any such suits. Section 17. Repealing of Conflicting Ordinances All ordinances or part of ordinances, and all resolutions or part of resolutions in conflict herewith are hereby repealed to the extent of such conflict. Section 18. Applicabi lity This Ordinance is not applicable to providers or facilities in the Rights of Way related to the provision or operation cable service, cable systems, open video systems or to towers and pole mounted antennas related to the provision of wireless service. Section 19. Savings All fees, charges and financial obligations previously accrued pursuant to any ordinances and resolutions repealed pursuant to Section 18 above, shall continue to be due and owing until paid. PART B. CONFLICTING PROVISIONS. Special acts of the Florida legislature applicable only to unincorporated areas of St. Lucie County, County ordinances and County resolutions, or parts thereof, in conflict with this ordinance are hereby superseded by this ordinance to the extent of such conflict. -25- PART C. SEVERABILI1Y. If any portion of this ordinance is for any reason held or declared to be unconstitutional, inoperative or void, such holding shall not affect the remaining portions of this ordinance. If this ordinance or any provision thereof shall be held to be inapplicable to any person, property, or circumstance, such holding shall not affect its applicability to any other person, property, or ci rcumstance. PART D. APPLICABILI1Y OF ORDINANCE. This ordinance shall be applicable in the unincorporated area of St. Lucie County. PART E. FILING WITH THE DEPARTMENT OF STATE. The Clerk is hereby directed forthwith to send a certified copy of this ordinance to the Bureau of Administrative Code and Laws, Department of State, The Capitol, Tallahassee, Florida 32304. PART F. EFFECTIVE DA TE. This ordinance shall take effect upon filing with the Department of State. PART G. ADOPTION. After motion and second, the vote on this ordinance was as follows: Chairman Chris Craft Vice Chairman Joseph E. Smith Commissioner Doug Coward Commissioner Paula A. Lewis Commissioner Charles Grande ~~ AYE AYE AYE AYE AYE PASSED AND DULY ENACTED this 11th day of March, 2008. ATTEST: ! APPROVED AS TO LEGAL ,FORM >A~D ~ " CORRECTNESS: >';, A~+- C~ ATTORNEY' fo" ,"" ,:">'" -26-