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ORDINANCE NO.. 2001-1 AN ORDINANCE OF THE VILLAGE OF KEY BISCAYNE, FLORIDA, AMENDING THE VILLAGE CODE BY AMENDING CHAPTER 17 "NOISE," AMENDING SECTION 17-2 "DEFINITIONS" BY REVISING THE DAYS LISTED AS HOLIDAYS AND BY DEFINING THE TERMS "PLAINLY AUDIBLE, AND "LEAF BLOWER;" AMENDING SECTION 17-3 "PROHIBITED ACTS," BY AMENDING PARAGRAPH (F) "CONSTRUCTION," TO PROHIBIT NOISE FROM CONSTRUCTION ACTIVITIES ON SATURDAYS, AND CREATING PARAGRAPH (P) "POWER TOOLS AND LANDSCAPE EQUIPMENT," REGULATING NOISE FROM POWER TOOLS AND LANDSCAPE EQUIPMENT, AND CREATING PARAGRAPH (Q) "LEAF BLOWERS," PROHIBITING CERTAIN LEAF BLOWERS; AMENDING SECTION 17-7 "PENALTIES" BY AMENDING PARAGRAPH (B) "ADDITIONAL NOTICE REQUIREMENTS FOR VIOLATIONS OF SECTION 17-3(F)" TO PROVIDE FOR NOTICE TO GENERAL CONTRACTOR, AND CREATING PARAGRAPH (C) "REPEAT VIOLATIONS"; PROVIDING FOR`SEVERABILITY; PROVIDING FOR INCLUSION IN THE CODE; PROVIDING FOR PENALTY; PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the Village Council desires to amend the provisions of the Village Noise Ordinance, as provided herein, so as to enhance the protection of the public health, safety and welfare. NOW THEREFORE, IT IS HEREBY ORDAINED BY THE VILLAGE COUNCIL OF THE VILLAGE OF KEY BISCAYNE, FLORIDA, AS FOLLOWS:1 Section 1. That the Village Code is hereby amended by amending Chapter 17 "Noise," by amending Section 17-2 "Definitions," and amending Section 17-3 "Prohibited Acts" at paragraph (f) 1/ Underlined provisions indicate additions to existing text; deletions from existing text are indicated by st ;ia threa6lr. "Construction," and creating paragraph (p) "Power Tools and Landscape Equipment," and creating paragraph (Q) "Leaf Blowers," and amending Section 17-7 "Penalties" by amending paragraph (b) "Additional Notice Requirement For Violations of Section 17-3(f)," and creating paragraph (c) "Repeat Violations," each to read as follows: Sec. 17-2. Definitions. The following words, terms and phrases when used in this Chapter shall have the meaning ascribed to them in this section, except where the context clearly indicates a different meaning: Holidays. In addition to Sundays, New Year's Day, Memorial Day, Independence Day, Labor Day, Veteran's Day, Columbus Day, Washington's Birthday (the third Monday in February), Martin Luther King, Jr. Birthday (the Third Monday in January) Thanksgiving Day Christmas Day. Leaf Blower. Any device used, designed or operated to produce a current of air by fuel, electricity or other means to push, propel or blow lawn, tree or plant cuttings, refuse or debris. Plainly Audible. A noise which is unreasonably loud, raucous or jarring. Sec. 17-3. Prohibited Acts. The following acts are declared to be a Noise Disturbance and constitute a violation of this Chapter: (0 Construction. The creation of a loud or excessive noise in connection with the conducting of Construction: (1) Before 7:00 a.m. on Monday, Tuesday, Wednesday, Thursday and Friday; ,.Qy, (3)(2) After 6:30 p.m. on Monday, Tuesday, Wednesday, Thursday and Friday; , (5)ai At any time on Saturday, Sunday and Holidays, except for Emergency work. The prohibition of loud or excessive Construction noise on Saturdays as set forth in Subparagraph (3) of this paragraph (f) shall not be applicable to Construction activities which are conducted between the hours of 8:00 a.m. and 4:30 p.m. if authorized by a building permit (the "Permit") or Development of Regional Impact Order (the "Order"), if such Permit or Order was issued before January 23. 2001. Notwithstanding the foregoing, the creation of loud or excessive noise in connection with the use and operation of heavy equipment for earth moving and compacting, concrete demolition or pile driving is prohibited at any time on Saturdays. If Emergency work is to be performed, the owner of the property upon which such Emergency work is performed or the property owner's authorized representative shall notify the Village Police Department prior to the commencement of such Emergency work. (p) Power Tools and Landscaping Equipment. The operation of noise - producing lawn mowers, lawn edgers, weed trimmers, chippers, leaf blowers chain saws, power tools and other noise -producing tools which are used to maintain a residence or at a residence out-of-doors before 8:00 a.m. or after 6:00 p.m., on Monday. Tuesday, Wednesday, Thursday and Friday, or before 10:00 a.m. or after 6:00 p.m. on Saturday, Sunday and Holidays. (q) Leaf Blowers. After April 1. 2001, it shall be unlawful for anyperson within the Village to use or operate any portable Leaf Blower machine to blow leaves, dirt, and other lawn, plant or tree debris off or upon sidewalks driveways, lawns, or other surfaces unless said machine has a stamp from the manufacturer or testing laboratory certifying a rating of no more than 65 decibels. The purpose of this paragraph is to protect the public health, safety and welfare by reducing the amount of noise produced within the Village, and by mitigating the amount of airborne debris, dust and pollen. Sec. 17-7. Penalties. a) Generally. A Village police officer who finds a violation of this chapter, shall issue a verbal warning to the violator requiring immediate correction of the violation. If the violation is not corrected immediately by the violator after issuance of the verbal warning, the police officer shall issue a citation to the violator requiring immediate correction of the violation, and shall impose a fine in the amount of $150.00 for which the violator shall be 3 liable. If the violation is not corrected immediately by the violator after issuance of the citation, the police officer shall issue a second citation and shall impose an additional fine in the amount of $350.00. In the event that the violation continues after issuance of the second citation to the violator, the violation shall constitute a public nuisance and may subject the violator to arrest pursuant to State law. (b) Additional Notice Requirements for Violations of Section 17-3(f). For citations issued under section 17-3(f), Construction, if the violator is not the property owner or the property owner's authorized representative, a copy of each citation shall be provided to the property owner or the property owner's authorized representative. If the violation is caused by a subcontractor involved in Construction, a copy of the citation shall also be provided to the general contractor of the work. Further, the General Contractor and sub- contractor shall be cited and be responsible for a violation of Section 17-3 (f). (c) Repeat Violations. Repeat violations of Section 17-1 or Section 17-3 of this Chapter shall be subject to enhanced fines as authorized for repeat violations by Section 162.09(2)(a), Ha. Stat. Section 2. Severability. The provisions of this Ordinance are declared to be severable and if any section, sentence, clause or phrase of this Ordinance shall for any reason be held to be invalid or unconstitutional, such decision shall not affect the validity of the remaining sections, sentences, clauses, and phrases of this Ordinance but they shall remain in effect, it being the legislative intent that this Ordinance shall stand notwithstanding the invalidity of any part. Section 3. Inclusion in the Code. It is the intention of the Village Council, and it is hereby ordained that the provisions of this Ordinance shall become and made a part of the Code of the Village of Key Biscayne; that the sections of this Ordinance may be renumbered or relettered to accomplish such intentions; and that the word "Ordinance" shall be changed to "Section" or other appropriate word. Section 4. Penalty. Penalties shall be as provided by Section 17-7 of the Village Code. Section 5. Effective Date. This Ordinance shall be effective immediately upon adoption on second reading. 4 PASS I-1) AND ADOP FED on first reading this 9th day of January , 2001. PASSED AND ADOPTED on second reading this 23rd day of January , 2001. ate CONCHTIA H. ALVAREZ, CMC, VILLAGE C APPROVED AS TO FORM AND L/EGAL SUFFICIENCY: A t 111 RICHARD JAY WEISS, VILLAGE ATTORNEY MAYOR JOE I. RASCO MIAMI DAILY BUSINESS REVIEW Published Daily except Saturday, Sunday and Legal Holidays Miami, Miami -Dade County, Florida. STATE OF FLORIDA COUNTY OF MIAMI-DADE: Before -the undersigned authority -personally appeared Octelma V. Ferbeyre, who on oath says that she is the Supervisor, Legal Notices of the Miami Daily Business Reviewf/kla Miami Review, a daily (except Saturday, Sunday and Legal Holidays) newspaper, published at Miami in Miami - Dade County, Florida; that the attached copy of advertise- ment, being a Legal Advertisement of Notice in the matter of VILLAGE OF KEY BISCAYNE ORDINANCE AMENDING THE VILLAGE CODE BY AMENDING CHAPTER 17 "NOISE", ETC. JAN. 23, 2001 in the XXXXX was published ublish dd in sa2 newspaper in the issues of001 Jan 11, Court, Affiant further says that the said Miami Daily Business Review is a newspaper published at Miami in said Miami - Dade County, Florida, and that the said newspaper has heretofore been continuously published in said Miami -Dade County, Florida, each day (except Saturday, Sunday and Legal Holidays) and has been entered as second class mail matter al the post office in Miami in said Miami -Dade County, Florida, for a period of one year nextpreceding the first publication of the attached copy of advertisement; and affiant further says that she has neither paid nor promised any person, firm or corporation any discount, rebate, com- mission or refund for the - • se of securing this advertise- ment for pu • lica n I % sai • newspaper. (SEAL) Octelma V. Ferbeyre personally kno e me this 2001 i LERENA STATE OF FLORIDA d NO. CC 912958 . 23,2004. L GE.OF KEY BISCAAYNE PUBLIC NOTICE , Notice is herebygiven that -the following ordhnanca will be considered on Second Reading by the Village Councilof the Village of Key Biscayne at a meeting to be held on Tuesday, January 23, 200T"af8 DQp m, in the r- Council Chamber, located at 85 West McIntyre Street, Second Floor, Key ,8iscayoe, Florida;: AN ORDINANCE OF THE VILLAGE OF KEY BISCAYNE, FLORIDA, AMENDING THE VILLAGE CODE BY AMENDVG CHAPTER 17 "NOISE," AMENDING SECTION 17-2 "DEEIN1- TIONS" BY REVIS/NG THE DAYS LISTED AS HOLIDAYS AND , '. BY DEFINING THE TERMS "PLAINLY AUDIBLE,' AND'LEAF BLOWER;" AMENDING SECTION 17-3 "PROHIBITED ACTS, BY AMENDING PARAGRAPH (F)' "CONSTRUCTION] YO ' PROHIBIT NOISE FROM CONSTRUCTION ACTIVITIES ON'r SATURDAYS, AND CREATING PARAGRAPH (P) "POWER-""` TOOLS AND LANDSCAPE EQUIPMENT, REGULATING - NOISE FROM POWER TOOLS AND LANDSCAPE.: EQUIP,- MENT AND CREATING PARAGRAPH (0) LEAF BLOWERS? PROHIBITING CERTAIN LEAF BLOWERS; AMENDING SEC- TION 17-7 "PENALTIES" BY AMENDING PARAGRAPH (B) "ADDITIONAL NOTICE REQUIREMENTS FOR VIOLATIONS OF SECTION 1J 3(F)" TO PROVIDE FOR NOTICE TO GENER AL CONTRACTOR,` AND CREATING PARAGRAPH -(C) RE- PEAT VIOLATIONS; PROVIDING FOR SEVERABILITY; PRO- VIDING FOR INCLUSION IN THE CODE; PROVIDING FOR'' PENALTY; PROVIDING FOR AN EFFECTIVE DATE. The proposed Ordinance may be inspected by the publicatfhe Officeof the Village Clerk. Interested parties may appear at the Public Hearing and be heard with respect to the proposed Ordinance. Any person wishing to address the Village Council on_any item at this Public Rearing is asked to 'register with ihe-Village Clerk prior io that item being heard:. In accordance -with the Americans With Disabilitiea Act of 1990,alt per sonswhoare disabled and who need special accommodations topartici-. pate in thisproceeding because of thatdisabilitysnouldoontactthe Office -I of the Village Clerk, 91 West McIntyre Street, Suite p03, Key Biscayne, Florida 33149, Telephone number (305)-365-5506, not later than two busi- ness ( days prior to such proceeding. -Should any person desire to appeal any decision of the Village Council with respect to any matter to be considered at this meeting that person'1 shallrinsurethata-verbatim record of the proceedings is made Including alt'; testirirony and evidence upon which any appeal may be based (F.S. -Commentsof any interested party relative to this matter may be submit-' Ted in -writing and -or presented in person at the -public hearing: Conchita H. Alvarez, CMG Village`Cferk oi.4-42lt237ooM ORDINANCE NO. 2001-2 AN ORDINANCE OF THE VILLAGE OF KEY BISCAYNE, FLORIDA, ASSESSING A FEE ON TELECOMMUNICATIONS COMPANIES THAT OCCUPY VILLAGE RIGHTS -OF -WAY FOR TELECOMMUNICATIONS FACILITIES; PROVIDING FOR WHEN PAYMENTS ARE DUE; PROVIDING FOR INTEREST; PROVIDING FOR REVIEW OF RECORDS; PROVIDING FOR SEVERABILITY; AND PROVIDING FOR EFFECTIVE DATE. WHEREAS, Section 337.401, Florida Statutes (2000), references fees or other consideration that municipalities may require from telecommunications companies to occupy municipal rights -of - way for telecommunications facilities; and WHEREAS, it is the intent of the Village of Key Biscayne (the "Village") to establish fees for occupation of the Village's rights -of -way for telecommunications facilities of telecommunications companies not otherwise paying a fee to the Village or having entered into an agreement with the Village for occupation of the Village's rights -of -way; and WHEREAS, it is the Village's intention that any existing telecommunications company paying fees for the occupation or having entered into an agreement for the payment of fees for the occupation of the Village's rights -of -way for telecommunications facilities as of the effective date of this Ordinance shall continue to pay fees to the Village as the existing telecommunications company has been paying them, or pursuant to the existing agreement between the company and the Village, and that any new telecommunications company occupying the Village's rights -of -way for telecommunications facilities pay the fees for occupation set forth in this Ordinance. IT IS HEREBY ORDAINED BY THE VILLAGE COUNCIL OF I'RE VILLAGE OF KEY BISCAYNE, FLORIDA, AS FOLLOWS: Section 1. The term "telecommunications company", as used in this Ordinance, shall have the meaning set forth in Section 364.02(12), Florida Statutes (2000). Section 2. The purpose of this Ordinance is to establish fees for occupation of the Village's rights -of -way for telecommunications facilities of telecommunications companies not otherwise paying a fee to the Village or not otherwise having an agreement with the Village for occupation of the Village's rights -of -way. Any telecommunications company paying fees or having an existing agreement with the Village for the occupation of the Village's rights -of -way for telecommunications facilities as of the effective date of this Ordinance shall continue to pay fees to the Village as the company has been paying them or pursuant to the existing agreement. Section 3. The fees imposed pursuant to this Ordinance shall apply to all telecommunications companies occupying the Village's rights -of -way for telecommunications facilities and which are not otherwise paying a fee to the Village or not under an existing agreement for occupation of the Village's rights -of -way. Section 4. The fees imposed pursuant to this Ordinance are a fee and not a tax as specified in Section 337.401, Florida Statutes (2000); consequently, (1) the payments to be made pursuant to this Ordinance shall not be deemed to be in the nature of a tax; (2) such payments shall be in addition to any and all taxes of a general applicability; and (3) the fee specified herein is consideration for occupation of the Village's rights -of -way, including all public easements, for the purpose of erecting, constructing and maintaining telecommunications systems. Section 5. The fees to be paid by telecommunications companies to the Village for occupation of the Village's rights -of -way shall be determined as follows: 2 (a) any telecommunications company providing local telephone service, as defined in Section 203.012(3), Florida Statutes (2000), in the Village and that is occupying municipal streets or rights -of -way within the corporate limits of the Village with poles, wires or other fixtures, shall pay to the Village a fee in the amount of one percent (1%) of the gross receipts on recurring local service revenues for services provided within the corporate limits of the Village by such telecommunications company. Included within the fee are all taxes, licenses, fees, in -kind contributions accepted pursuant to Section 337.401, Florida Statutes (2000), and other impositions except ad valorem taxes and amounts for assessments for special benefits, such as sidewalks, street pavings, and similar improvements, and occupational license taxes levied or imposed by the Village upon the telecommunications company. (b) in the event that a telecommunications company that provides telecommunications services defined as toll services in Section 201012(7). Florida Statutes (2000) occupies the Village's rights -of -way, the telecommunications company shall pay to the Village, annually, at a rate of Five Hundred Dollars ($500) per linear mile. which amount is prorated for any portion thereof, for any cable. fiber optic. or other pathway that makes physical use of the Village's rights -of -way. Such annual fee shall be prorated to reflect the expiration date of this Ordinance and shall be payable annually, in advance. If a telecommunications company that is required to pay a fee pursuant to this subsection increases the amount of its facilities occupying the Village's rights -of -way after such advance payment has been made, but prior to the expiration date of this Ordinance, the fees due for the additional facilities shall be prorated and paid in full at the time the facilities are installed in the Village's rights -of -way. 3 the fee or other consideration imposed pursuant to subsection (b) shall not apply in any manner to any telecommunications company that provides local telephone service as defined in Section 203.012(3), Florida Statutes (2000), for any services provided by such telecommunications company. Section 6. The fees provided for in Section 5(a) of this Ordinance shall be paid by the telecommunications company to the Village in quarterly installments. The installment payments shall be based upon such gross receipts on recurring local service revenues for the immediately preceding installment period or portion thereof after the effective date of this Ordinance, and shall be made within 30 calendar days following the end of the period. Past due payments or underpayments shall bear interest accrued fiom the last clay of the quarter for which the payment was due at the rate of eighteen percent (18%) per annum from the first day after the payment period until paid to the Village, and the company shall reimburse the Village for any actual and reasonable out- of-pocket costs associated with collecting any sums required to remit to the Village. Payments shall include a statement as to how the fee amount was determined and the statement shall be certified by the telecommunications company's chief financial officer or other duly authorized representative of the company. Section 7. If the Village wishes to verify the payments due to the Village under this section, the telecommunications company shall permit the Village or a designated representative of the Village, upon reasonable advance written notice, and during normal business hours at the location of the telecommunications company where such records are maintained in the Village, at another location satisfactory to the Village, or elsewhere pursuant to (a) or (b) below, to review or 4 audit the telecommunications company's billing and payment records kept in the ordinary course of business upon which the payments were based. If a telecommunications company's records are not maintained in the Village, the telecommunications company shall either: (a) pay all reasonable expenses, including travel, following the provisions of subsections 112.061 (6), (7) and (8), Florida Statutes (2000), to the Village for the Village to have a review or audit performed; or (b) provide the Village with access to copies of the telecommunications company's records in the Village or within 50 miles of the Village or by an electronic method satisfactory to the Village. However, without the specific written consent of a telecommunications company's. audit representative, no company records may be duplicated or taken from the telecommunications company's premises, and the Village shall maintain the confidentiality of the information disclosed in these records to the extent permitted by applicable law and shall use the information solely for the purposes of verifying payments by the telecommunications company. No acceptance of payment shall be construed as a release or as an accord and satisfaction of any claim the Village may have for sums due and payable under this Ordinance unless the Village agrees in writing. In the event that the Village, pursuant to final audit findings, determines that there exists a difference between the amount due to the Village and the amount paid to the Village, indicating an underpayment to the Village, in excess of five percent (5%) of the amount due, such telecommunications company shall pay all reasonable costs, fees and expenses of the audit. 5 Section 8. This Ordinance is adopted consistent with the provisions of Section 337.401, Florida Statutes (2000), and other applicable provisions of law. This section shall not be construed as a waiver or limitation of the power of the Village to prescribe and enforce reasonable rules and regulations pursuant to applicable provisions of law. Section 9. If required by applicable Village Ordinances, Codes or Regulations, a telecommunications company shall be registered with the Village and obtain all permits that may be required by the Village regarding occupation of the Village's rights -of -way for telecommunications facilities. Section 10. Severability. The provisions of this Ordinance are declared to be severable and if any section, sentence, clause or phrase of this Ordinance shall for any reason be held to be invalid or unconstitutional, such decision shall not affect the validity of the remaining sections, sentences, clauses, and phrases of this Ordinance but they shall remain in effect, it being the legislative intent that this Ordinance shall stand notwithstanding the invalidity of any part. Section 11. Effective Date. That this Ordinance shall be effective immediately upon adoption on second reading. This Ordinance shall expire upon the effective date of the tax rate established pursuant to the Communications Services Tax Simplification Law,: Chapter 2000-260, Laws of Florida, Section 202.20(1)(b), Florida Statutes (2000). The expiration of this Ordinance shall not affect any fees that are due and unpaid prior to its expiration. PASSED AND ADOPTED on first reading this 9th day of January , 2001. PASSED AND ADOP lED on second reading this 23rd day of January , 2001j CONCH -LTA H. ALVAREZ, CMC, VILLAGE C ST: APPROVED AS TO FORM AND LEGAL SUFFI RICHARD JAY WEISS, VILLAGE ATTORNEY 1030411ordinancesltelecommuuicarions fee MANOR JOE I. RASCO MIAMI DAILY BUSINESS REVIEW Published Daily except Saturday, Sunday and Legal Holidays Miami, Miami -Dade County, Florida. STATE OF FLORIDA COUNTY OF MIAMI-DADE: Before the undersigned auttibrity personally-appeare''d Octelma V. Ferbeyre, who on oath says that she is the Supervisor, Legal Notices of the Miami Daily Business Review f/k/a Miami Review, a daily (except Saturday, Sunday and Legal Holidays) newspaper, published at Miami in Miami - Dade County, Florida; that the attached copy of advertise- ment, being a Legal Advertisement of Notice in the matter of VILLAGE OF KEY BISCAYNE ORDINANCE ASSESSING A FEE ON TELECOMMUNICATIONS COMPANIES, JANUARY 23, 2001 in the X•Y,,Y,,XX was published in said newspaper in the issues of Jan 11, 2001 Court, Affiant further says that the said Miami Daily Business Review is a newspaper published at Miami in said Miami - Dade County, Florida, and that the said newspaper has heretofore been continuously published in said Miami -Dade County, Florida, each day (except Saturday, Sunday and Legal Holidays) and has been entered as second class mail matter at the post office in Miami in said Miami -Dade County, Florida, for a period of one year next preceding the first publication of the attached copy of advertisement; and affiant further says that she has - ither paid nor promised any person, firm or corpora any • iscount, rebate, com- mission or retu • • for the . +° pose of ecuring this advertise- ment for publ' atioy/„-� said ne < •aper. 11 (SEAL) Octelma V. Ferbeyre personally known to to and subscribed nuary ETC. PILLAGE OF ICEY'BiS'CIIYNr PUBLIC NOTICE a' Notice is h ereby given That the following ordinance wit be considered on SeconO-Rea mgtg l'ia ifageCouncirbfltreVinage ot`Key-Biscayne -at a meeting to beheldonTuesday, January23; 2001 at 6:00 p.m., in the ". Council Chamber, locatedat 85 West McIntyre Street, Second Floor, Key Eiscayne, Florida: - i AN ORDINANCE OF THE VILLAGE OF KEY BISCAYNE: FLORIDA, ASSESSING A FEE ON. TELECOM-MUNICATFONS COMPANIES THAT OCCUPY VILLAGE RIGHTS -OF -WAY FOR TELECOMMUNICATIONS FACILITIES; PROVIDING FOR WHEN PAYMENTS ARE DUE; PROVIDING FOR INTEREST;` PROVIDING FOR. REVIEW OF RECORDS; PROVIDING=FOR SEVERABILITY, AND PROVIDING FOR EFFECTIVE DATE. - The proposed Ordinance maybe inspected bythe pubbcat theOffice of a"the Village Clerk Interestedparties may appear at the Public Hearing andt be heard with respect to. the proposed Ordinance. Any person wishnig to'? address the ViItage Council on any item at this Public Hearing is asked to- u register_ with the Village Clerk prior to that item being heard. In accordance with the Americans:VJith Disabilities Act of 1990, all per sons who are disabled and who need specia accommodations topartici-;. I pate in this proceeding because of that disability should contact the Office of the Village Clerk, 91 West McIntyre Street, Suite 203, Key Biscayne:- Florida 33149, telephone number (305)365-S506, not laterthantwo mess days prior to such proceedings Should any person desire to appeal any decision of the Village Council I with respect to any matter tobe considered at this meeting, that person - shall insure that a verbatim record ot the proceedings is made mcludingall =' ,,testimony: and evidence upon which any appeal'. may be based (F.S: 286 0105). ' Comments ofany interested party relative to this matter may besubmit ted in writing and or presented in person at the public hearing. '- Conchita H. Alvarez CMG Village Clerk QI-4-43/123701M_; OrK,r:` ARV SEAL e . JA T'I' LLERENA NOTARY Mir. STATE OF FLORIDA COI iMiSSI-4'"`N NO. CC 912958 MY COM.::d- 'l $'. E23,2004 ORDINANCE NO. 2001-3 AN ORDINANCE OF THE VILLAGE OF KEY BISCAYNE, FLORIDA; AMENDING THE VILLAGE CODE BY CREATING CHAPTER 8 "ENVIRONMENT" CONSISTING OF ARTICLE III "WATER SHORTAGE REGULATIONS," SECTION 8-101 TO 8-108; PROVIDING FOR LOCAL IMPLEMENTATION OF THE WATER SHORTAGE PLAN OF THE SOUTH FLORIDA WATER MANAGEMENT DISTRICT; PROVIDING DEFINITIONS; PROVIDING FOR ENFORCEMENT AND PENALTIES; PROVIDING FOR CODIFICATION; REPEALING ANY INCONSISTENT PROVISIONS; PROVIDING FOR SEVERABILITY; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, a water shortage or water shortage emergency may be declared from time to time by the South Florida Water Management District affecting the Village of Key Biscayne (the "Village"); and WHEREAS, during such water shortage condition the amount of surface and groundwater supplies may become insufficient to meet current or anticipated demands; and WHEREAS, upon the existence of such conditions it becomes imperative to the public health and convenience that certain uses of water be restricted or curtailed and that available water resources be allocated; and WHEREAS, the South Florida Water Management District has primary responsibility under Chapter 373, Florida statutes, for regulating water use and allocating available water supplies during periods of water shortage; and WHEREAS, the South Florida Water Management District has adopted a "Water Shortage Plan", codified as Chapter 40E-21, Florida Administrative Code, for the purpose of allocating and conserving the water resource during periods of water shortage and maintaining a uniform approach towards water use restrictions; and WHEREAS, the South Florida Water Management District has requested the assistance of the Village in the enforcement of the provisions of the "Water Shortage Plan"; and WHEREAS, it is the desire of the Village Council of the Village to provide the South Florida Water Management District with all possible assistance in the enforcement of the provisions of the "Water Shortage Plan" during a water shortage or water shortage emergency; and WHEREAS, Section 373.609, Florida Statutes, provides that it shall be the duty of county/municipalgovernmental and law enforcement officials to assist the South Florida Water Management District in the enforcement of Chapter 373, Florida Statutes, and any rules adopted thereunder, upon request by the South Florida Water Management District; and WHEREAS, the Village Council of the Village hereby finds and declares that adoption of this ordinance is necessary, appropriate, and in the public interest of citizens of this community; now therefore: BE IT ORDAINED BY THE VILLAGE COUNCIL OF THE VILLAGE OF KEY BISCAYNE, FLORIDA: Section 1. That the Village Code of Ordinances is hereby amended by creating Sections 8- 101 to 8-108 of Article III "Water Shortage Regulations" of Chapter 8 "Environment" to read as follows: CHAPTER 8. ENVIRONMENT. ARTICLE HI. WATER SHORTAGE REGULATIONS. Section 8-101. Intent and Purpose. It is the intent and purpose of this Article to protect the water resources of the Village from the harmful effects of over utilization during periods of water shortage and allocate available water supplies by assisting the South Florida Water Management District in the implementation of its Water Shortage Plan. 2 Section 8-102. Definitions. For the purpose of this Article the following terms, phrases, words and their derivatives shall have the meaning given herein. When not inconsistent with the context, words used in the present tense include the future, words in the plural include the singular, and words in the singular include the plural. The word "shall" is always mandatory and not merely directory. (a) "District" is the South Florida Water Management District. (b) "Person" is any person, firm, partnership, association, corporation, company, or organization of any kind. © "Village" is the Village of Key Biscayne, Florida. (d) "Water Resource" means any and all water on or beneath the surface of the ground, including natural or artificial water courses, lakes, ponds, or diffused surface water, and water percolating, standing, or flowing beneath the surface of the ground. (e) "Water Shortage Condition" is when sufficient water is not available to meet present or anticipated needs of persons using the water resource, or when conditions are such as to require temporary reduction in total water usage within a particular area to protect the water resource from serious harm. A water shortage usually occurs due to drought. (f) "Water Shortage Emergency" means that situation when the powers which can be exercised under part II of chapter 40E-21, Florida Administrative Code, are not sufficient to protect the public health, safety, or welfare, or the health of animals, fish or aquatic life, or a public water supply, or commercial, industrial, agricultural, recreational or other reasonable uses. Section 8-103. Application of Article. The provisions of this Article shall apply within the Village to all persons using the water resource within the geographical areas subject to the Water Shortage or Water Shortage Emergency, as determined by the District; whether from public or privately owned water utility systems, private wells, or private connections. with surface water bodies. This Article shall not apply to persons using treated effluent or saltwater. 3 Section 8-104. Amendments To Water Shortage Plan. Chapter 40E-21, Florida Administrative Code; as it may be amended from time to time, is incorporated herein by reference as a part of this Article of the Village Code. Section 8-105. Declaration of Water Shortage; Water Shortage Emergency. The declaration of a Water Shortage Condition or Water Shortage Emergency within all or any part of the Village by the Governing Board or the Executive Director of the District shall invoke the provisions of this Article. Upon such declaration all water use restrictions or other measures adopted by the District applicable to the Village, or any portion thereof, shall be subject to enforcement action pursuant to this Article. Any violation of the provisions of Chapter 40E- 21, Florida Administrative Code, or any violation of an order issued pursuant thereto, shall be a violation of this Article, if committed within the jurisdiction of the Village. Section 8-106. Enforcement. Every police officer or sheriff having jurisdiction in the area governed by this Article, including Village police officers, shall, in connection with all other duties imposed by law, diligently enforce the provisions of this Article. In addition, the Village Manager may also delegate enforcement responsibility for this Article to the Code Enforcement Officers of the Village in accordance with State and local law. The Village, in addition to the sanctions contained herein, may take any other appropriate legal action, including but not limited to seeking emergency injunctive action, to enforce the provisions of this Article. Enforcement pursuant to Village Code Section 2-31, et. seq. (code enforcement procedure) is authorized. Section 8-107. Penalties. Violation of any provision of this Article shall be subject to the following penalties: First Violation: $25.00 Second and subsequent violations: A fine not to exceed $500. Each day in violation of this Article shall constitute a separate offense. Law enforcement officials should generally provide violators with no more than one written warning, unless additional warnings are found to be warranted by the officer. 4 Section 8-108. Water Users To Accept Provisions Of Article. No water service shall be furnished to any person by a public or private utility unless such person agrees to accept all the provisions of this Article. The acceptance of water service shall be in itself the acceptance of the provisions thereof. Section 2. Severability. The provisions of this Ordinance are declared to be severable and if any section, sentence, clause or phrase of this Ordinance shall for any reason be held to be invalid or unconstitutional, such decision shall not affect the validity of the remaining sections, sentences, clauses, and phrases of this Ordinance but they shall remain in effect, it being the legislative intent that this Ordinance shall stand notwithstanding the invalidity of any part. Section 3. Inclusion in the Code. It is the intention of the Village Council, and it is hereby ordained that the provisions of this Ordinance shall become and made a part of the Code of the Village of Key Biscayne; that the sections of this Ordinance may be renumbered or relettered to accomplish such intentions; and that the word "Ordinance" shall be changed to "Section" or other appropriate word. Section 4. Effective Date. This Ordinance shall be effective immediately upon adoption on second reading. PASSED AND ADOPTED on first reading this 13th day of February 2001. PASSED AND ADOPTED on second reading this 6th day of March , 2001. CONCHITA H. ALVAREZ, CMC, VILLAGE C APPROVED AS TO FORM AND LEGAL SUFFIC RICHARD JAY WEISS, VILLAGE ATTORNEY 10300 no inances\watettshortage MAYOR JOELRASCO 5 MIAMI DAILY BUSINESS REVIEW Published Daily except Saturday, Sunday and Legal Holidays Miami, Miami -Dade County, Florida. STATE OF FLORIDA COUNTY OF MIAMI-DAOE: Before the undersigned authority personally appeared Rookie Williams, Williams, who on oath says that she is the Vice President of Legal Advertising of the Miami Daily Business Review tlkla Miami Review, a daily (except Saturday, Sunday and Legal Holidays) newspaper, published at Miami in Miami - Dade County, Florida; that the attached copy of advertise- ment, being a Legal Advertisement of Notice in -the matter of VILLAGE OF KEY BISCAYNE ORDINANCE AMENDING THE VILLAGE CODE BY CREATING CHAPTER 8 "ENVIRONMENT" in the XXXXX Court, was published in said newspaper in the issues of Feb 22, 2001 Affiant further says that the said Miami Daily Business Review is a newspaper published at Miami in said Miami - Dade County, Florida, and that the said newspaper has heretofore been continuously published in said Miami -Dade County, Florida, each day (except Saturday, Sunday and Legal Holidays) and has been entered as second class mail matter at the post office in Miami in said Miami -Dade County, Florida, for a period of one year next preceding the first • 'tion of the attached copy of advertisement; and alt nt tort' er says that she has neither paid nor promised a pens• , firm or corporation any discount, rebate, tom - r refund the purpose of securing this advertise- publicati in the said new(�Ilrpaa�/ppp�Ier///�/.I (SEAL) Rookie Williams d before me this 2001 A.D MARIA I. MESA itlyeuMMIssI0N 400885640 EXPIRES: March 4,2004 sonaea Tari, Notary pubic unaerxn1ea 2/22'; ;",r-- .,^ l ' EYI BISCAYNE ' : OFFICEOFTHE VILLAGE CLERK - PUBLIC NOTICE Notice is hereby given that the 1plowing ordinance Ma be considered on Second Reading by the Village Council of the Village of Key. Biscayne... at a meetingto be held. on Tuesday, March 6, 2001 at 7:00 p.m., in Council Chamber, located at 85 West McIntyre Street, Second Floor, Key AN ORDINANCE OF THE VILLAGE OF KEY BISCAYNE, f FLORIDA, AMENDING THE VILLAGE CODE BY CREATING CHARTER 8 "ENVIRONMENT CONSISTING OF ARTICLE LII' "WATERSHORTAGE REGULATIONS," SECTION 8-101 TO 8- 108; PROVIDING FOR LOCAL IMPLEMENTATION OF TI-JE WATER SHORTAGE PLAN OF THE SOUTH FLORIDA WATER -: MANAGEMENT DISTRICT; PROVIDING DEFINITIONS; PRO- VIDING FOR ENFORCEMENT. AND PENALTIES; PROVIDING FOR :CODIFICATION; REPEALING ANY INCONSISTENT PROVISIONS; PROVIDING FOR. SLVERABILITY; AND PRO- VIDING AN EFFECTIVE DATE. The proposed Ordinance may be inspected by the public at the Office of the Village Clerk. Interested parties may appear atthe Public Hearing and .`' be heard with respect tothe proposed Ordinance. Any person wishing to address the Village Council on any item at this Public Hearing is askedlo` register with the Village Clerk prior to that item being heard. In accordancewiththe Americans With Disabilities Act of 1990, all per 'sons who are -disabled and who need special accommodations to partici- ,pate in this proceeding because of that disability should contactthe Office of the Village Clerk, 91 West McIntyre Street, Suite 203, key Biscayne, Florida 33149, telephone number (305) 365-5506, not laterthan two busi- ness days prior to such -proceeding. Should any person desire to appeal any decision of the Village Council F with respect to any matter to be considered at this meeting, that person Is shall insurethat a verbatimrecord of the proceedings is made including all testimony and evidence upon which any -emir -eat may be based (F.S. 286.0105).::. Comments of any interested party.relativeto this matter may be submit ted in writing and or presented in person at the public hearing. Conchita H. Alvarez, CMC -Village Clerk 01-4-441136935M ORDINANCE NO. 2001-4 AN ORDINANCE OF THE VILLAGE OF KEY BISCAYNE, FLORIDA, AMENDING CHAPTER 21, "PUBLIC RIGHTS - OF -WAY", OF THE VILLAGE CODE OF ORDINANCES, BY CREATING ARTICLE III, "COMMUNICATIONS RIGHTS - OF -WAY"; ESTABLISHING REGULATIONS FOR THE USE OF PUBLIC RIGHTS -OF -WAY FOR COMMUNICATIONS FACILITIES; PROVIDING DEFINITIONS; PROVIDING FOR REGISTRATION AND PERMIT PROCEDURES; PROVIDING CONDITIONS FOR PLACEMENT AND MAINTENANCE OF COMMUNICATIONS FACILITIES IN RIGHTS -OF -WAY; PROVIDING FOR INSURANCE AND INDEMNIFICATION; PROVIDING PENALTIES FOR VIOLATIONS; PROVIDING FOR CONFLICTS; PROVIDING FOR SEVERABILITY; PROVIDING FOR INCLUSION IN THE VILLAGE CODE; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the Village has determined that it is in the public interest to permit the placement of one or more communications systems or facilities in the public rights -of -way; and WHEREAS, effective January 1, 2001, the State of Florida amended Section 337.401, Florida Statutes (2000), to reflect that, because 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 communications companies in a nondiscriminatory and competitively neutral manner when imposing rules or regulations governing the placement or maintenance of communications facilities in the public roads or rights -of -way. Rules or regulations imposed by a municipality or county relating to communications companies placing or maintaining communications facilities in its roads or rights -of -way must be generally applicable to all communications companies and, notwithstanding any other law, may not require a communications company to apply for or enter into an individual license, franchise or other agreement with the municipality or county as a condition of placing or maintaining communications facilities in its roads or rights -of -way; and WHEREAS, it is the intent of the Village to exercise its authority over communications services providers' placement and maintenance of facilities in the public rights -of -way; and WHEREAS, it is the intent of the Village to treat each communications services provider in a nondiscriminatory and competitively neutral manner in exercising such authority; and WHEREAS, the public rights -of -way subject to the jurisdiction and control of the Village: (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 Village is necessary to maximize efficiency, to minimize the costs to the taxpayers of the foregoing uses and to minimize the inconvenience to and negative effects upon the public from the placement and maintenance of such communications facilities in the public rights -of - way; and (3) are intended for public uses and must be managed and controlled consistently with that intent; and WHEREAS, it is the intent of the Village that this Ordinance shall not apply to providers of cable television service; and WHEREAS, it is the intent of the Village to exercise its authority to adopt reasonable rules and regulations to the fullest extent allowed by Federal and State law. NOW THEREFORE, IT IS HEREBY ORDAINED BY THE VILLAGE COUNCIL OF THE VILLAGE OF KEY BISCAYNE, FLORIDA, AS FOLLOWS: ,Section 1. Recitals adopted. That the recitals made above are hereby confirmed and adopted. 2 Section 2. That Chapter 21, entitled "Public Rights -of -Way", of the Code of Ordinances of the Village of Key Biscayne, is amended to create Article III, to read as follows: Article III. Communications Rights -of -Way Section 21-20: Intent and Purpose. That it is the intent of the Village to promote the public health, safety and general welfare by: providing for the placement and maintenance of Communications Facilities in the Public Rights - of -Way within the Village; adopting and administering reasonable rules and regulations not inconsistent with State and Federal law, including Section 337.401, Florida Statutes (2000), as it may be amended, the Village's home -rule authority, and in accordance with the provisions of the Federal Telecommunications Act of 1996 and other Federal and State law; establishing reasonable rules and regulations necessary to manage the placement and maintenance of Communications Facilities in the Public Rights -of -Way by all Communications Services Providers after the effective date of this Ordinance; and minimizing disruption to the Public Rights -of -Way. In regulating its Public Rights - of -Way, the Village shall be governed by and shall comply with all applicable Federal and State laws. Section 21-21: Definitions. That for the purposes of this Ordinance, the following terms, phrases, words and derivations shall have the meanings given. Where not inconsistent with the context, words used in the present tense include the future tense, words in the plural number include the singular number, and words in the singular number include the plural number. The words "shall" and "will" are mandatory, and "may" is peimissive. Words not otherwise defined in this section or in any permit that may be 3 granted pursuant to this Ordinance shall be given the meaning set forth in the Communications Act of 1934, 47 U.S.C. § 151 et seq., as amended (collectively the "Communications Act"), and if not defined in the Communications Act, as defined by Florida Statutes; and, if not defined by Florida Statutes, shall be construed to mean the common and ordinary meaning. 1. "Village" shall mean Key Biscayne, Florida, an incorporated municipality of the State of Florida, in its present form or in any later reorganized, consolidated, or enlarged form. 2. "Communications Services" shall mean 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 or through any 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. Cable service, as defined in Section 202.11(2), Florida Statutes (2000), as it may be amended, is not included in the definition of "Communications Services and cable service providers or providers of service via an open video system may be subject to other ordinances of the Village. and shall require separate authorization from the Village. 3 "Communications Services Provider" shall mean any Person making available or providing Communications Services through the placement or maintenance of a Communications Facility in Public Rights -of -Way. 4. "Communications Facility" or "Facility" or "System" shall mean any permanent or temporary plant, equipment and property, including but not limited to cables, wires, conduits, ducts, fiber optics, poles, antennae, converters, splice boxes, cabinets, hand holes, manholes, vaults, drains, surface location markers, appurtenances, and other equipment or pathway placed or maintained or 4 to be placed or maintained in the Public Rights -of -Way of the Village and used or capable of being used to transmit, convey, route, receive, distribute, provide or offer Communications Services. 5. "FCC" shall mean the Federal Communications Council. 6. "ln Public Rights -of -Way" or "in the Public Rights -of -Way" shall mean in, on, over, under or across the Public Rights -of -Way. 7. "Ordinance" shall mean this Ordinance. 8. "Person" shall include any individual, children, firm, association, joint venture, partnership, estate, trust, business trust, syndicate, fiduciary, corporation, organization or legal entity of any kind, successor, assignee, transferee, personal representative, and all other groups or combinations, and but shall not include the Village to the extent permitted by applicable law. 9. "Place or maintain" or "placement or maintenance" or "placing or maintaining" shall mean to erect, construct, install, maintain, place, repair, extend, expand, remove, occupy, locate or relocate. A Communications Services Provider that owns or exercises physical control over Communications Facilities in Public Rights -of -Way, such as the physical control to maintain and repair, is "placing or maintaining" the Facilities. A party providing service only through resale or only through use of a third party's unbundled network elements is not "placing or maintaining" the Communications Facilities through which such serviceis provided. The transmission and receipt of radio frequency signals through the airspace of the Public Rights -of -Way is not placing or maintaining Facilities in the Public Rights -of -Way. 10. "Public Rights -of -Way" shall mean a public right-of-way, public utility easement, highway, street, bridge, tunnel, pier, waterway, dock, wharf, court, lane, path, or alley or any other 5 property for which the Village is the authority that has jurisdiction and control and may lawfully grant access to such property pursuant to applicable law, and includes the surface, the air space over the surface and the area below the surface to the extent the Village holds a property interest therein. "Public Rights -of -Way" shall not include private property. "Public Rights -of -Way" shall not include any real or personal Village property except as described above and shall not include Village buildings, fixtures, poles, conduits, Facilities or other structures or improvements, regardless of whether they are situated in the Public Rights -of -Way. 11. "Registrant" or "Facility Owner" shall mean a Communications Services Provider or other person that has registered with the Village in accordance with the provisions of this Ordinance. 12. "Registration" and "Register" shall mean the process described in this Ordinance whereby a Communications Services Provider provides certain information to the Village. Section 21-22: Registration for Placing or Maintaining Communications Facilities in Public Rights -of -Way. 1. A Communications Services Provider that desires to place or maintain a Communications Facility in Public Rights -of -Way in the Village shall first Register with the Village in accordance with this Ordinance. Subject to the terms and conditions prescribed in this Ordinance, a Registrant may place or maintain a Communications Facility in Public Rights -of -Way. A Communications Services Provider with an existing Communications Facility in the Public Rights - of -Way of the Village as of the Effective Date of this Ordinance has sixty (60) days from the Effective Date of this Ordinance to comply with the terms of this Ordinance, including, but not limited, to, Registration, or be in violation thereof. 2. A Registration shall not convey any title, equitable or legal, in the Public Rights -of - Way. Registration under this Ordinance governs only the placement or maintenance of Communications Facilities in Public Rights -of -Way. Registration does not excuse a Communications Services Provider from obtaining appropriate access or pole attachment agreements before locating its Facilities on the Village's or another Person's Facilities. Registration does not excuse a Communications Services Provider from complying with all applicable law, including Village ordinances, codes or regulations, including this Ordinance. 3. Each Communications Services Provider that desires to place or maintain a Communications Facility in Public Rights -of -Way in the Village shall file a single Registration with the Village that shall include the following information (a) Name of the applicant; (b) Name, address and telephone number of the applicant's primary contact person in connection with the Registration and of the person to contact in case of an emergency; (c) For Registrations submitted prior to October 1, 2001, the applicant shall state whether it provides or expects to provide local service or toll service or both; (d) Evidence of the insurance coverage required under this Ordinance ,and acknowledgment that Registrant has received and reviewed a copy of this Ordinance, and (e) A copy of Federal or State Certification authorizing the applicant to provide Communications Services, if any; (f) If the applicant is a corporation, proof of authority to do business in the State of Florida, which may be satisfied by the number of the corporate certification or other means; and (g) A Security Fund in accordance with this Ordinance. 4. The Village Manager or designee shall review the information submitted by the applicant. If the applicant submits information in accordance with subsection 3 above, the Registration shall be effective and the Village shall notify the applicant of the effectiveness of Registration in writing. If the Village determines that the information has not been submitted in accordance with subsection 3 above, the Village shall notify the applicant in writing of the non - effectiveness of Registration, and reasons for the non -effectiveness. The Village shall so notify an applicant within thirty (30) days after receipt of registration information from the applicant. 5. A Registrant may cancel a Registration upon written notice to the Village that the Registrant will no longer place or maintain any Communications Facilities in Public Rights -of -Way and will no longer need to obtain permits to perform work in the Public Rights -of -Way. A Registrant cannot cancel a Registration if the Registrant continues to place or maintain any Communications Facilities in Public Rights -of -Way. 6. Registration shall be nonexclusive. Registration shall not -establish any right or priority to place or maintain a Communications Facility in any particular area in Public Rights -of - Way within the Village. Registrations are expressly subject to any future amendment to or replacement of this Ordinance and further subject to any additional Village ordinances, as well as any State or Federal laws that may be enacted. 8 7. A Registrant shall renew its Registration with the Village by April 1 of even numbered years in accordance with the Registration requirements in this Ordinance, except that a Registrant that initially registers during the even numbered year when renewal would be due or the odd numbered year immediately preceding such even numbered year shall not be required to renew until the next even numbered year. Within thirty (30) days of any change in the information required to be submitted pursuant to subsection 3, except, as of October 1, 2001, subsection 3(c), a Registrant shall provide updated information to the Village. If no information in the then -existing Registration has changed, the renewal may state that no information has changed. Failure to renew a Registration may result in the Village restricting the issuance of additional permits until the Communications Services Provider has complied with the Registration requirements of this Ordinance. 8. In accordance with applicable Village ordinances, codes or regulations and this Ordinance, a permit shall be required of a Communications Services Provider that desires to place or maintain a Communications Facility in Public Rights -of -Way. An effective Registration shall be a condition of obtaining a permit. Notwithstanding an effective Registration, permitting requirements shall continue to apply. A permit may be obtained by or on behalf of a Registrant having an effective Registration if all permitting requirements are met. 9. A Registrant that places or maintains Communications Facilities in the Public Rights - of -Way shall be required to pay compensation to the Village as required by applicable law and ordinances of the Village. A Registrant that places or maintains Communications Facilities in the Public Rights -of -Way, other than a Registrant that provides local services as defined in Section 203.012(3), Florida Statutes within the Village, shall pay to the Village the fees required to be paid 9 by providers of toll service within the Village. Section 21-23: Placement or Maintenance of a Communications Facility in Public Rights - of -Way. 1. Registrant agrees at all times to comply with and abide by all applicable provisions of the State statutes and Village ordinances, codes and regulations in placing or maintaining a Communications Facility in Public Rights -of -Way. 2. A Registrant shall not commence to place or maintain a Communications Facility in Public Rights -of -Way until all applicable permits have been issued by the Village or 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 welfare, which includes an unplanned out -of - service condition of a pre-existing service. Registrant shall provide prompt notice to the Village of the placement or maintenance of a Communications Facility in Public Rights -of -Way in the event of an emergency. Registrant acknowledges that as a condition of granting such permits, the Village may impose reasonable rules or regulations governing the placement or maintenance of a Communications Facility in Public Rights -of -Way. Permits shall apply only to the areas of Public Rights -of -Way specifically identified in the permit The Village may issue a blanket pedint to cover certain activities, such as routine maintenance and repair activities, that may otherwise require individual permits or may impose lesser requirements. 3. As part of any permit application to .place a new or replace an existing Communications Facility in Public Rights -of -Way, the Registrant shall provide a proposal for construction of the Communications Facility that sets forth at least the following: 10 (a) An engineering plan signed and sealed by a Florida Registered Professional Engineer, or prepared by a person who is exempt from such registration requirements as provided in Section 471.003, Florida Statutes, identifying the location of the proposed Facility, including a description of the Facilities to be installed, where it is to be located, and the approximate size of Facilities and equipment that will be located in Public Rights -of - Way; (b) A description of the manner in which the Facility will be installed (i.e. anticipated construction methods and/or techniques); (c) A traffic maintenance plan for any disruption of the Public Rights -of -Way; (d) 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 persons with Facilities in the Public Rights - of -Way); (e) If appropriate given the Facility proposed, an estimate of the cost of restoration to the Public Rights -of -Way; (f), The timetable for construction of the project or each phase thereof, and the areas of the Village which will be affected; and (g) Such additional information requested by the Village that the Village finds reasonably necessary to review the permit application. 4. The Village shall have the power to prohibit or limit the placement of new or additional Communications Facilities within the Public Rights -of Way if there is insufficient space 11 to accommodate all of the requests to place and maintain Facilities in that area of the Public Rights - of -Way, for the protection of existing Facilities in the Public Rights -of -Way or to accommodate Village plans for public improvements or projects that the Village determines are in the public interest and to the extent not prohibited by applicable law. 5. AlI Communications Facilities shall be placed and maintained so as not to interfere unreasonably 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 endeavor to install all Communications Facilities underground. To the extent not inconsistent with Public Service Commission regulations, the Village may require the use of trenchless technology (i.e., directional bore method) for the installation of Facilities in the Public Rights -of -Way as well as joint trenching or the co -location of Facilities in existing conduit. In makingsuch requests, the Village shall take into consideration several factors including inconvenience to the public and other users of Rights -of -Way and the economic and technical feasibility of such requests. The Registrant shall be liable for the displacement, damage or destruction of any property, irrigation system or landscaping as a result of the placement or maintenance of its Facility within the Public Rights -of -Way. The appropriate Village official may issue such rules and regulations concerning the placement ormaintenance of a Communications Facility in Public Rights -of -Way as may be consistent with this Ordinance and other applicable law. 6. All safety practices required by applicable Iaw or accepted industry practices and standards shall be used during the placement or maintenance of Communications Facilities. 12 7. A Registrant shall, at its own expense, restore the Public Rights -of -Way to at least its original condition before such work in. Public Rights -of -Way, subject to the Village's satisfaction upon inspection. Registrant shall warrant its restoration for a period of twelve (12) months after completion of such restoration. If the Registrant fails to make such restoration within thirty (30) calendar days after completion of construction, or such other time as may be reasonably required by the Village, the Village may after written notice to the Registrant, perform such restoration using Village employees, agents or contractors, and charge all costs of the restoration against the Registrant in accordance with Section 337.402, Florida Statutes (2000), as it may be amended, and require reimbursement within thirty (30) days after the submission of the bill by the Village to the Registrant. 8. Removal or relocation at the direction of the Village of a Registrant's Communications Facility in Public Rights -of -Way shall be governed by the provisions of Sections 337.403 and 337.404, Florida Statutes (2000), as they may be amended. 9. A permit from the Village 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. 10. A Registrant shall maintain its Communications Facility in Public Rights -of -Way in a manner consistent with accepted industry practice and applicable law. 11. In connection with excavation in the Public Rights -of -Way, a Registrant shall, where applicable, comply with the Underground Facility Damage Prevention and Safety Act set forth in 13 Chapter 556, Florida Statutes (2000), as it may be amended. 12. Registrant shall place or maintain a Communications Facility in Public Rights -of -Way in compliance with all applicable standards as established by all local, State or Federal law and in conformance with the Village ordinances, codes and regulations. Registrant 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. 13. In the interest of the public's health, safety and welfare, upon request of the Village, a Registrant shall coordinate placement or maintenance activities under a permit with any other work, construction, installation or repairs that may be occurring or scheduled to occur within a reasonable timeframe in the subject Public Rights -of -Way. The Village may require a Registrant to alter reasonably its placement or maintenance schedule for permitted work as necessary so as to minimize disruptions and disturbance in the Public Rights -of -Way. The Village may provide a more definite time frame based on specific Village construction or maintenance schedules. 14. A Registrant shall not place or maintain its Communications Facilities so as to interfere, displace, damage or destroy any Facilities, including but not limited to, sewers, gas or water mains, storm drains, pipes, cables or conduits of the Village or any other Person's Facilities Lawfully occupying the Public Rights -of -Way of the Village. 15. Village makes no warranties or representations regarding the fitness, suitability or availability of Public Rights -of -Way for the Registrant's Communications Facilities and any performance of work or costs incurred by Registrant or provision of services shall be at Registrant's sole risk. Nothing in this Ordinance shall affect the Village's authority to add, vacate or abandon 14 Public Rights -of -Way and Village makes no warranties or representations regarding the availability of any added, vacated or abandoned Public Rights -of -Way for Communications Facilities. 16. The Village shall have the right to make such inspections of Facilities placed or maintained in Public Rights -of -Way as it finds necessary to ensure compliance with this Ordinance. In the event the Village determines that a violation exists with respect to Registrant's placement or maintenance of Facilities in the Public Rights -of -Way that is not considered to be an emergency or danger to the public health, safety or welfare, the Village will provide Registrant no less than three (3) days written notice setting forth the violation and requesting correction. 17. A permit application to place a new or replace an existing Communications Facility in Public Rights -of -Way shall include plans showing the location of the proposed installation of Facilities in the Public Rights -of -Way. If the plans so provided require revision based upon actual installation, the Registrant shall promptly provide revised plans or "as-builts" upon completion of any installation or construction. The plans shall be in a digitized format showing the two- dimensional location of the Facilities based on the Village's Geographical Database, or other format acceptable to the Village. The Registrant shall provide such plans at no cost to the Village. The Village shall maintain the confidentiality of such plans and any other information provided in accordance with Section 202.195, F.S. (2000), as it may be amended. 18. The Village reserves the right to place and maintain, and permit to be placed or maintained, sewer, gas, water, electric, storm drainage, communications, and other Facilities, cables or conduit, 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 Village in Public Rights -of -Way 15 occupied by the Registrant. Registrant may allow Village Facilities to be co -located within Village's Public Rights -of -Way through the use of a joint trench during Registrant's construction project. Such joint trench projects shall be negotiated in good faith by separate agreement between Registrant and Village and may be subjected to other Village rights -of -way requirements. The Village further reserves without limitation the right to alter, change, or cause to be changed, the grading, installation, relocation or width of the Public Rights -of -Way within the limits of the Village and within said limits as same may from time to time be altered. 19. A Registrant shall, on the request of any person holding a permit issued by the Village, temporarily support, protect, raise or lower its Communications Facilities to permit the work authorized by the permit. The expense of such temporary support, protection, raising or lowering of Facilities shall be paid by the person requesting the same, and the Registrant shall have the authority to iequire such payment in advance. The Registrant shall be given not less than thirty (30) days advance written notice to arrange for such temporary relocation. Subject to applicable law, if the Village requests the temporary support, protection, raising or lowering of a Facility for a public purpose, the Village shall not be charged for the temporary support, protection, raising or lowering of the Facility. Section 21-24: Suspension of Permits. 1. Subject to Section 21-25 below and to providing reasonable notice and an opportunity to cure, the Village Manager or designee may suspend a permit issued or deny an application for a subsequent permit to a Registrant for work in the Public Rights -of -Way for one or more of the following: 16 (a) Failure to satisfy permit conditions, or conditions set forth in this Ordinance or other applicable Village ordinances, codes or regulations governing placement or maintenance of Communications Facilities in Public Rights -of -Way, including without limitation, failure to take reasonable safety precautions to alert the public of work at the work site, or to restore any Public Rights -of -Way; (b) Misrepresentation or fraud by Registrant in a Registration or permit application to the Village; (c) Failure to properly renew or ineffectiveness of Registration. (d) Failure to relocate or to remove Facilities as may be lawfully required by the Village. 2. After the suspension or denial of a permit pursuant to this Section, the Village shall provide written notice of the reason to the Registrant. Section 21-25: Appeals. 1. Final, written decisions of the Village Manager or designee suspending or denying a permit, denying an application for a Registration or denying an application for renewal of a Registration are subject to appeal. An appeal must be filed with the Village within thirty (30) days of the date of the final, written decision to be appealed. Any appeal not timely filed asset forth above shall be waived. The Village shall hear or appoint a hearing officer to consider the appeal. The hearing shall occur within thirty (30) days of the receipt of the appeal, unless waived by the Registrant, and a written decision shall be rendered within twenty (20) days of the hearing. Upon correction of any grounds that gave rise to a suspension or denial, the suspension or denial shall be 17 lifted. 2. Nothing in this Ordinance shall affect or limit the remedies the Village has available under applicable law. Section 21-26: Conditional Use of Public Rights -of -Way. 1. In the event Registrant desires to use its existing Facilities or to construct new Facilities for the purpose of providing other utility or non -utility services to existing or potential consumers or resellers, by providing any other services other than the provision of Communications Service, or for providing any other use to existing or potential consumers, aRegistrant. shall seek such additional and separate authorization from Village for such activities as may be required by applicable law. 2. To the extent that any Person or Registrant leases or otherwise uses the Facilities of a Person that is duly registered or otherwise authorized to place or maintain Facilities in the Public Rights -of -Way of the Village, such Person or Registrant shall make no claim, nor assert any right, which will impede the lawful exercise of the Village's rights, including requiring the removal of such Facilities from the Public Rights -of -Way of the Village, regardless of the effect on Registrant's ability toplace or maintain its own Communications Facilities in Public Rights -of -Way of the Village. Section 21-27: Termination of Registration. 1. The involuntary termination of a previously effective Registration may only be accomplished by an action of the Village Council. The Village may declare the Registration terminated and revoke and cancel all privileges granted under that Registration if: (a) a federal or 18 Florida authority suspends, denies, or revokes a Registrant's certification or license to provide Communications Service, (b) the Registrant's placement and maintenance in the Public Rights -of - Way presents an extraordinary danger to the general public or other users of the Public Rights -of - Way; or (c) the Registrant abandons all of its Communications Facilities in the Public Rights -of - Way. 2. Prior to such termination for any of the reasons set forth in this Section, the Village Manager or his designee shall notify the Registrant in writing setting forth the matters pertinent to such reasons and describing the proposed action of the Village 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 Village Council, to accomplish the same. 3. In the event of a vote by the Village Council to terminate the Registration, the Registrant shall, within a reasonable time following such termination, provide an acceptable plan for transferring ownership of the Communications Facilities to another person in accordance with this Ordinance or shall remove or abandon the Facilities and take such steps as are necessary to render every portion of the Facilities remaining in the Public Rights -of -Way of the Village safe. If the Registrant has either abandoned its Facilities or chooses to abandon its Facilities, the Village may either (a) require the Registrant or 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 condition immediately prior to the removal; (b) the Village may require that some or all of the Facilities be removed and the Public Rights -of -Way restored to its such condition at the Registrant's expense, using Village employees, agents or contractors, and charge any and all costs to the Registrant and 19 ��. m r e q u i r e r e i m b u r s e m e n t , o r ( c ) u t i l i z e o r a l l o w o t h e r P e r s o n s t o u t i l i z e t h e R e g i s t r a n t '