As a condition of allowing the placement or maintenance of a communications system or any communications facility in the public rights-of-way, and under additional authority granted pursuant to Fla. Stat. Ch. 337, the city hereby imposes the following rules, regulations and general conditions. Unless otherwise provided in this Chapter 101, these rules, regulations and general conditions shall apply to all communications services providers, including those that are pass-through providers irrespective of whether they place and maintain only conduit, dark fiber or pass-through facilities.
(A) Rules on utilization of the public rights-of-way.
(1) Compliance with laws. A communications services provider shall at all times be in full compliance with and abide by all applicable Federal, State and local laws, codes and regulations in placing or maintaining a communications system and facilities in the public rights-of-way.
(2) Due care. A communications services provider shall use and exercise due caution, care and skill in performing work in the public rights-of-way and shall take all reasonable steps to safeguard work site areas.
(3) Permits. A communications services provider shall not commence to place or maintain a communications facility in public rights-of-way until all applicable permits have been issued by the city and other appropriate authority, except in the case of an emergency. The term "emergency" shall mean a condition that affects the public's health, safety or general welfare, which includes an unplanned out-of-service condition of a pre-existing service. The communications services provider shall provide prompt notice to the city of the placement or maintenance of a communications facility in the public rights-of-way in the event of an emergency and shall, after-the-fact, be required to submit plans and record drawings and as-built surveys, if required by the public works director or his designee, showing the placement or relocation of a communications facility undertaken in connection with the emergency.
(4) Application for development permit. Prior to the issuance of a development permit to allow the placement or maintenance of a communications system or facility in the public rights-of-way, the city has the right to first review and consider and the communications services provider shall provide all of the following:
(a) The expected dates and times when the facility will be installed and the estimated time needed for construction and placement of the proposed facility;
(b) The location of the proposed facility, the public rights-of-way affected and a description of the facility, including the type of facility (e.g. conduit, fiber, twisted pair, etc.), the number of fibers or other cable being installed, and the approximate size of the facility (e.g. length, height, width and diameter); and
(c) Plans, drawings, photographs, and schematics (including cross section layout) prepared by a qualified engineer or technician showing where the facility is proposed to be located in the public rights-of-way and showing any known communications facilities or utility facilities in such public rights-of-way.
(5) Revised plans. If the plans or drawings submitted showing the proposed location for installation of the facility in the public rights-of-way require revision for any reason prior to commencing construction, the communications services provider shall promptly submit revised plans and drawings to the public works director or his designee.
(6) Power to restrict area. To the extent not otherwise prohibited by State or Federal law, the city shall have the power to prohibit or limit the placement of new or additional communications facilities within a particular area of the public rights-of way and deny the issuance of a development permit.
(7) Limited purpose of development permit. A development permit issued by the city constitutes authorization to undertake only certain activities in public rights-of-way in accordance with this chapter, and does not create any property right or other vested interest, or grant authority to impinge upon the rights of others who may have an interest in the public rights-of-way. Development permits shall be granted only for specific routes or locations in the public rights-of-way and for such term as described in the permit. The city's issuance of a development permit shall not be construed as a warranty that the placement of any communications facility is in compliance with applicable codes, regulations or laws.
(8) Responsibility for contractors. Every communications services provider that is registered with the city shall be liable for the actions of contractor(s) hired by them to perform the placement or maintenance of facilities in the public rights-of-way and shall be responsible for making sure that such contractor meets and complies fully with the rules, regulations and general conditions set forth in this chapter.
(B) Regulations on the placement or maintenance of communications facilities.
(1) Provision and form of record drawings and as-built surveys. Within forty-five (45) days after completion of any placement or maintenance of a communications facility in the public rights-of-way, the communications services provider shall provide the city with record drawings showing the final location of such facility in the public rights-of-way. Upon request by the public works director or his designee, the communications services provider shall also provide the city with as-built surveys within forty-five (45) days after completion of any placement or maintenance of a communications facility in the public rights-of-way. The record drawings and as-built surveys shall be provided to the city at no cost.
(2) Production and filing of as-builts. Every communications services provider that is registered with the city shall produce and keep on file at its principal place of business an accurate and complete set of as-builts of all facilities placed and maintained in the public rights-of-way. The location and identification of facilities and the production of as-builts shall be at the sole expense of the communications services provider. Within thirty (30) days of any written request by the public works director or his designee, the communications services provider must provide to the city, at no cost, copies of complete sets of as-builts for the indicated public rights-of-way. The failure of the communications services provider to produce, keep on file, or provide to the city as-builts as required under this chapter is sufficient grounds for the city to deny the issuance of development permits in the future.
(3) Removal of facilities placed without permit. Any communications facilities placed in the public rights-of-way by the communications services provider without first having obtained the required development permits shall be removed within thirty (30) days of written notice by the city to remove the same and in default of compliance with such notice, such facilities may be removed by order of the public works director or his designee and the cost of removal shall be borne and paid by the communications services provider upon demand.
(4) Underground. The placement or maintenance of all communications facilities shall be underground unless otherwise approved in writing by the public works director or his designee. Communications facilities shall be placed between the property line and the curb line of all streets and avenues and shall not be within the roadway or the roadway recovery area unless specifically approved in writing by the public works director or his designee. All communications facilities shall have consistent alignment parallel with the edge of pavement, a thirty-six inch (36") depth of cover for and shall have two feet (2') of horizontal clearance from other underground utilities and their appurtenances. Where approved by the public works director or his designee, facilities to be placed in the street shall be laid according to the permanent grade of the street and at a depth below the surface of the permanent grade as each is determined by the public works director or his designee.
(5) Above-ground approval. The placement or maintenance of facilities above-ground, including new poles and aerial wires, is subject to written approval by the public works director or his designee. Attachment to any pole or other above-ground structure must be pursuant to a valid and effective pole attachment agreement or similar instrument. Location on any pole or other above-ground structure shall not be considered a vested interest of the communications services provider and such poles or structures, if owned by the communications services provider, shall be removed or modified by the communications services provider at its own expense whenever the city or other governmental authority determines that the public convenience would be enhanced thereby. The lowest placement of any communications facility on any pole or other above-ground structure in the public rights-of-way shall not be less than eighteen (18) feet from the ground. The communications services provider shall, at such time as the electric utility facilities or other communica tions facilities are placed underground or are required by the city to be placed underground, concurrently place its communications facilities underground without cost to the city.
(6) New poles or above-ground structures. The placing of any new pole or other above-ground structure to support communications facilities is subject to the approval of the public works director or his designee and shall be done under the supervision of the public works director or his designee. No such pole or other above-ground structure shall be placed in any gutter or drainage area and must be behind the curb to avoid damage to any sidewalk. In areas of the city where either electric utility wires or other communications facilities are above ground and such facilities are moved, either voluntarily or at the direction of the city, to a new pole or other above-ground structure, the communications services provider shall likewise move all its above-ground facilities on such poles or structures to such new pole or structure within thirty (30) days after receipt of written notice from either the city or the owner of the new pole or structure, without cost to the city.
(7) Placement and maintenance standards. The placement or maintenance of communications facilities in the public rights-of-way shall be performed in accordance with standards and requirements of the following, as is applicable and as each is in force at the time of the respective placement or maintenance of a communications system or facility:
(a) the Florida Department of Transportation Utilities Accommodation Guide;
(b) the State of Florida Manual of Uniform Minimum Standards for Design Construction and Maintenance for Streets and Highways;
(c) the Trench Safety Act (Fla. Stat. Ch. 553);
(d) the Underground Facility Damage Prevention and Safety Act (Fla. Stat. Ch. 556);
(e) the National Electrical Code or the ANSI National Electrical Safety Code; and
(f) the "Safety Rules for the Installation and Maintenance of Electrical Supply and Communication Lines" established by the Department of Commerce, Bureau of Standards of the United States.
(8) Sunshine State One-Call. Every communications services provider shall utilize, and if permissible, maintain membership in the utility notification one call system administered by Sunshine State One-Call of Florida, Inc.
(9) Safety and minimal interference. All placement and maintenance of communication facilities in the public rights-of-way shall be subject to the City Code and other regulations of the city pertaining thereto, and shall be performed with the least possible interference with the use and appearance of the public rights-of-way and the rights and reasonable convenience of the property owners who abut or adjoin the public rights-of-way and in compliance with the rules and regulations of the Florida Department of Transportation. The communications services provider shall at all times employ reasonable care and use commonly accepted methods and devices for preventing failures and accidents which are likely to cause damage or injury or be a nuisance to the public. Suitable barricades, flags, lights, flares, or other devices shall be used at such times and places as are reasonably required for the safety of all members of the public. All placement and maintenance shall be done in such a manner as to minimize to the greatest extent any interference with the usual travel on such public rights-of-way. The use of trenchless technology (i.e., microtunneling and horizontal directional drilling techniques) for the installation of communications facilities in the public rights-of-way as well as joint trenching or the co-location of facilities in existing conduit is strongly encouraged, and should be employed wherever and whenever feasible.
(10) Correction of harmful conditions. If, at any time, the city or other authority of competent jurisdiction reasonably determines that any communications facility is, or has caused a condition that is, harmful to the health, safety or general welfare of any person, then the communications services provider shall, at its own expense, promptly correct or eliminate all such facilities and conditions. In an emergency, as determined by the public works director or his designee, when the communications services provider is not immediately available or is unable to provide the necessary immediate repairs to any communications facility that is damaged or malfunctioning, or has caused a sunken area or other condition and, in the public works director or his designee's sole discretion, is deemed a threat to public safety, then the city, when apprised of such an emergency, shall have the right to remove, make repairs to or eliminate same with the total cost being charged to and paid for by the communications services provider upon demand.
(11) Remedy of hazardous conditions. If, at any time, a condition exists that the city or other authority of competent jurisdiction reasonably determines is an emergency that is potentially hazardous or life threatening to any person or is a threat to the health or safety of the general public, and to remedy such condition the city or other authority of competent jurisdiction reasonably determines that a communications services provider must temporarily relocate or temporarily shut off service or transmissions through a specific facility, then the city, as an appropriate exercise of its police powers, may order the communications services provider to immediately perform such temporary relocation or shut off until the condition has been remedied, and to do so at its own expense and without liability to or recourse against the city. In such an emergency, when the communications services provider is not immediately available or is unable to provide the necessary immediate relocation or shut off of the specific communications facility, then the city shall have the right to perform, or cause to be performed, such temporary relocation or shut off until the condition has been remedied with the total cost being charged to and paid for by the communications services provider upon demand.
(12) Interference with other facilities. A communications services provider shall not, in violation of any applicable laws or regulatory standards, design, place or maintain its communications facilities in a manner that will interfere with the signals or facilities of any municipal or county police, fire or rescue department, the facilities of any public utility, or the communications facilities of another communications service provider, including any cable service provider.
(13) Relocation or removal of facilities. Except in cases of emergency, a communications services provider, at its own expense, shall:
(a) Upon thirty (30) days written notice, relocate or remove, as specified in said notice, its communications facility in the event the city finds that the particular facility is unreasonably interfering in some way with the convenient, safe or continuous use, or the maintenance, improvement, extension or expansion of any public rights-of-way. The city shall provide the communications services provider with a notice and order as provided for in Fla. Stat. § 337.404, or any subsequently enacted law of the State of Florida, in the event it charges the communications services provider for the cost and expense of relocating or removing such facility pursuant to this paragraph.
(b) Within a reasonable period of time from the date of written notice from the city, but not more than one hundred twenty (120) days thereafter, relocate or remove, as specified in said notice, its communications facility in the event the public works director or his designee determines it necessary for the construction, completion, repair, relocation or maintenance of a city project, because the particular communications facility is interfering with or adversely affecting the proper operation of street light poles, traffic signals, or any communications system belonging to the city or an agency thereof or because the particular communications facility is interfering with the signals or facilities of the Palm Bay Police Department, Palm Bay Fire Department, or the City of Palm Bay Utilities Department. In the event the city issues any such written notice to the communications services provider pursuant to this paragraph, and the communications services provider fails to cause the aforementioned relocation or removal as required herein, the city shall be entitled to relocate or remove such facilities without further notice to the communications services provider and the total cost and expense shall be charged to the communications services provider.
(14) Temporary raising or lowering of facilities. A communications services provider, upon request of any person holding a validly issued building or moving permit from the city to temporarily encroach on or perform moving operations in or across the public rights-of-way, shall temporarily raise or lower its communications facilities to accommodate such temporary encroachment or move. The expense of such temporary raising or lowering of facilities shall be paid by the person requesting the same, and the communications services provider shall have the authority to require such payment in advance. The communications services provider shall be given not less than twenty (20) days advance written notice from such person to arrange for the temporary relocation, which notice must detail the time and location of the permitted activity, and not less than twenty-four (24) hours advance notice from the permit holder advising of the actual operation. The city is not subject to, nor shall it be liable for, any such expense or notice requirement for the moving of houses or structures performed by the city or its contractors.
(15) Coordination. In an effort to minimize the adverse impact on the public rights-of- way and other municipal improvements, a communications services provider may be required by the public works director or his designee to coordinate the placement or maintenance of its facilities with any work, construction, installation in or repairs of the subject public rights-of-way or other facilities therein that is occurring or is scheduled to occur within a reasonable time from application for a development permit as determined by the public works director or his designee. Every communications services provider shall make space in its trench and/or conduit within the public rights-of-way available to other providers consistent with the federal requirements of 47 U.S.C. 224. Every communications services provider shall utilize existing conduits, pathways and other facilities whenever possible, and shall not place or maintain any new, different, or additional poles, conduits, pathways or other facilities, whether in the public rights-of-way or on privately-owned property, until written approval is obtained from the city or other appropriate governmental authority, and, where applicable, from the private property owner.
(16) Co-location and joint use. A communications services provider, in an effort to minimize the adverse impact on the useful life of the public rights-of-way, shall, whenever possible, enter into joint use agreements with the city and other parties who have registered with, or who are expressly authorized by, the city to use its public rights-of-way; provided that the terms of such agreements are satisfactory to the communications services provider. Nothing herein contained shall mandate that the communications services provider enter into joint use agreements with parties other than the city or an agency of the city. However, prior to placement of any new or additional underground conduit in the public rights-of-way, a communications services provider is required to certify in writing to the public works director or his designee that it has made appropriate inquiry to all existing utilities and other entities possessing a right to occupy the public rights-of-way as to the availability of existing or planned conduit that the particular communications services provider could reasonably utilize to meet its needs, and that no such conduit is available or planned at a reasonable cost by any other entity on the time schedule reasonably needed. The communications services provider shall not be permitted to perform any placement or maintenance of facilities in those segments of the public rights-of-way where there exists vacant or available conduit, dark fiber or surplus fiber owned by the city, an agency of the city or another governmental body which is or, through a reasonable amount of effort and expense, can be made compatible with the communications services provider's system or network. Under such circumstances the communications services provider shall have the opportunity to enter into a use agreement or lease arrangement with the city or an agency of the city at or below reasonable and prevailing market rates for such conduit or fiber or, where owned by another governmental body, shall, in good faith, first exhaust all means of obtaining use of such conduit or fiber before applying for a development permit from the city.
(17) Maintenance-of-Traffic. In the event that placement or maintenance of communications facilities conducted by the communications services provider requires streets or traffic lanes to be closed or obstructed, the communications services provider must, pursuant to the requirements of existing or subsequently enacted city ordinances, obtain all necessary permits from city, and shall obtain approval of its maintenance-of-traffic plan from the public works director or his designee.
(18) Restoration of the public rights-of-way. After completion of any placement or maintenance of a communications facility in the public rights-of-way or each phase thereof, the Communications services provider shall, at its own expense and in a manner reasonably acceptable to the city, restore without delay the public rights-of-way so disturbed to its original condition immediately prior to the placement or maintenance work. If the communications services provider fails to make such restoration within thirty (30) days following the completion of such placement or maintenance, the city may perform such restoration and charge the costs of the restoration to the communications services provider in accordance with Fla. Stat. § 337.402, as it may be amended. The communications services provider shall, to the satisfaction of the public works director or his designee, maintain and correct any restorations made pursuant hereto for a period of twelve (12) months following the date of its completion. Failure to comply with this subsection shall be deemed sufficient grounds for denial of any future development permits for the placement or maintenance of communications facilities.
(C) General conditions on the utilization of the public rights-of-way and the placement or maintenance of communications facilities.
(1) City not liable. Except for acts of willful misconduct or gross negligence and to the extent permitted by applicable law, neither the city nor its officials, boards, Councils, consultants, agents, employees or independent contractors shall have any liability to the communications services provider for any claims for any damages, costs, expenses or losses resulting from the city's breakage, removal, alteration or relocation of any facilities of any communications services provider which arose out of or in connection with any emergency or disaster situation or was, in the sole discretion of the public works director or his designee, deemed necessary to facilitate any public works project, public improvement, alteration of a city structure, change in the grade or line of any public rights-of-way, or the elimination, abandonment or closure of any public rights-of-way or was found by City Council to be in the best interest of the health, safety or general welfare of the public; nor shall any charge be made by the communications services provider against the city for any damages, costs, expenses or losses related thereto.
(2) No exemption from permits. Nothing in this chapter shall exempt any communications services provider from obtaining development permits for work done within the public rights-of-way.
(3) Subject to police powers. The rights of the communications services provider shall be subject to all lawful exercise of police power by the city, and to such other reasonable regulation of the public rights-of-way as the city shall hereafter by resolution or ordinance provide in the interest of the health, safety and general welfare of the public. Any inconsistency or ambiguity between the provisions of this Chapter 101 and any lawful exercise of the city's police power shall be resolved in favor of the latter.
(4) City inspection. The city shall have the right to make such inspections of a communications system or facilities placed or maintained in the public rights-of-way as it finds necessary to ensure compliance with this chapter. This chapter shall not be construed to create or hold the city responsible or liable for any damage to persons or property by reason of any inspection by the city of the placement or maintenance of a communications system or facility as authorized herein or failure by the city to so inspect.
(5) Access to manholes. The city, in the proper exercise of its municipal powers and duties with respect to the public rights-of-way, shall have access at any time to all hand holes and manholes in the city belonging to a communications services provider. Before accessing any manhole, the city will make a reasonable good faith effort to provide the communications services provider prior notice to afford an opportunity to have trained personnel present, unless determined by the city to be an emergency situation.
(6) Compatibility, capacity and interference issues. To properly manage and control the use of the public rights-of-way, and to protect the health, safety and general welfare of the public, the city, in its legislative and regulatory role, shall be the final authority on permitting a communications system or facility to be placed in the public rights-of-way and shall exercise such authority in a non-discriminatory manner. It shall be in the sole discretion of the City Attorney whether an easement is compatible with or allows for its use by a communications system or facility. It shall be in the sole discretion of the public works director or his designee, based on the nature, design, size, configuration or proposed location of any communications system or facility, whether there is sufficient capacity in a particular section of the public rights-of-way or whether such system or facility will interfere with the facilities or equipment of any municipality, county, public utility, cable operator, or other communications service provider.
(7) No warranty of fitness or suitability. The city makes no express or implied warranties or representations regarding the fitness, suitability, or availability of the public rights-of-way for any communications system or facility or its right to authorize the placement or maintenance of any communications system or facility in the public rights-of-way. Any performance of work, costs incurred or services rendered by a communications services provider shall be at such provider's sole risk. Nothing in this chapter shall affect the city's authority to acquire or add public rights-of-way, or to vacate or abandon public rights-of-way as provided for in the City Code or applicable law. The city makes no express or implied warranties or representations regarding the availability of any acquired, added, vacated or abandoned public rights-of-way for a communications system or facility.
(8) Annexations. Upon the annexation of any territory to the City of Palm Bay, the provisions of this chapter and the rules, regulations and general conditions contained herein shall extend to the territories so annexed; and all facilities placed, maintained, owned or operated by any communications services provider extending into or already located in the public rights-of-way of the territory so annexed, shall thereafter be subject to all terms hereof, as the same may be amended from time to time.
(Ord. 2017-66, passed 10-3-17)