§ 25-309. Construction, relocation, maintenance and restoration.

The requirements of this section are generally applicable to all providers placing or maintaining facilities in a public right-of-way within the City.

(1)

Right-of-way access.

a.

All right-of-way access granted for the purpose of constructing a system shall be in accordance with this section.

b.

Before commencing construction of its system in, above, over, under, along, across, through or in any way connected with the streets, public ways or public places of the City, the provider shall first obtain any other necessary permits. Applications for such approval shall be made in the form prescribed by the POD.

c.

Upon obtaining such written approval, the provider shall give the POD and any other appropriate agency written notice within a reasonable time before proposed construction, but in no event shall such notice be given less than two days before such commencement, except for emergency repairs of existing lines or cables.

(2)

Location of facilities.

a.

Conformity to laws. The placement of new facilities and replacement of old facilities, either aboveground or underground, shall be completed in conformity with applicable laws and the City's design guidelines for location, depth, visibility, historic preservation, and neighborhood design review criteria.

b.

Limitations on facilities placement. The POD shall have the power to prohibit or limit the placement of new or additional facilities at a site within the rights-of-way if there is insufficient space at the site to accommodate existing facilities and all of the requests from providers to occupy and use the site. In deciding whether a specific site has insufficient space, the POD shall strive to the extent possible to accommodate all existing and potential users of the site, but shall be guided primarily by considerations of the public interest, the condition of the site the protection of existing facilities at the site, and future City plans for improvements to the site. Such decisions shall be made in a nondiscriminatory and competitively neutral manner.

c.

Least disruptive technology. All construction or maintenance of facilities shall be accomplished in the manner resulting in the least amount of damage and disruption of the rights-of-way. Specifically, every provider, if technically and economically feasible, shall utilize trenchless technology. In addition, all cable, wire or fiber optic cable to be installed at a particular location in the subsurface rights-of-way, consistent with standard engineering practices, to be installed in conduit and, if so required, no cable, wire or fiber optic cable may be installed at that location using direct bury techniques.

d.

Underground requirements.

1.

Existing systems. A provider shall install underground any extension of a wired or cabled system or portion thereof which was located in a right-of-way on December 6, 2001, the effective date of this article, when the extension requires the use of more than six new poles.

2.

New systems. A provider shall install underground all new wired or cabled systems or portions thereof which are installed in rights-of-way after the effective date of this article (but not including the replacement of existing poles or systems).

3.

Costs. The costs of such underground installations shall be borne by the provider to the maximum extent permitted by law.

4.

Exception. A provider's system may be installed above ground at locations where existing power facilities and other systems are installed above ground, and an extension of any system requiring the use of six or fewer new poles may be installed above ground.

e.

Relocation of existing aerial facilities. A provider shall relocate any above-ground portion of its wired or cabled system underground in any area where existing power facilities are hereafter so relocated. To the maximum extent permitted by law, such relocation shall be at the provider's expense, or at the expense of one or more benefitted property owners, or both, as the City Council may determine to be equitable following a public hearing, and such relocation shall be accomplished concurrently with the underground relocation of any such power facilities.

f.

Sharing of overhead and underground facilities. Providers shall endeavor to enter into agreements with power companies and other providers for the purpose of sharing overhead and underground facilities, it being the intent hereof that all above-ground installations of provider's facilities shall be accomplished on existing utility poles or underground where feasible.

g.

Joint use of trenches. During the construction, installation, relocation, or rebuilding of any underground system, the provider owning or using the system shall allow the City and other public utility service providers to install compatible facilities in any trench excavated by the provider, while the trench is open, unless the provider that excavated the trench demonstrates that such joint use will cause unreasonable interference with its use or occupancy of the trench.

(3)

Exceptions. The POD may grant an exception from any of the requirements of this section if a provider, upon application for an exception and upon a showing of a factual basis for an exception, demonstrates that:

a.

The exception will not create any threat to the public health, safety or welfare; and

b.

The requirement from which an exception is sought:

1.

Increases the economic burden and the potential adverse impact on the provider's construction schedule and, as a result, will actually and effectively inhibit the ability of the provider to provide services in the City; or

2.

Unreasonably discriminates against the provider in favor of another person.

(4)

Relocation or removal of facilities.

a.

Requirements. If at any time the City determines that a facility heretofore or hereafter placed in any right-of-way unreasonably interferes in any way with the convenient, safe, or continuous use, or the maintenance, improvement, extension, or expansion, of such right-of-way, then the POD shall give written notice to the provider owning or maintaining such facility, or to its agent, to remove or relocate such facility within a reasonable time set forth in the notice, and in such event the costs of removal or relocation shall be borne by the provider. If such removal or relocation is incidental to work to be done on such right-of-way, the notice shall be given at the same time the contract for the work is advertised for bids, or 30 days prior to the commencement of such work.

b.

City's rights. A removal or relocation order by the POD shall include but not be limited to a description of the facilities to be removed or relocated, the reason for the order, and a statement of the factual basis for the order. If a provider fails to complete the removal or relocation of its facilities within the time set forth in the notice, including all associated repairs of the rights-of-way, then the facilities subject to the order which have not been removed or relocated shall be deemed abandoned and subject to removal by the City, with the costs thereof to be borne by the provider. In the event that facilities are removed by the City in accordance with this subsection, neither the City nor its officers, agents or employees shall be liable to the provider or any third party for costs or damages arising from the removal of the facilities.

c.

Cost of repairs to right-of-way. If the provider removes or relocates its facilities but fails to make all associated repairs of the rights-of-way, the POD may, after demand upon the provider, cause such repairs to be made and the cost thereof shall be an obligation of the provider.

(5)

Pre-excavation requirements.

a.

Within a reasonable time before the start date of any rights-of-way excavation, trenchless construction or placement of poles, the provider shall give notice to each other provider who has facilities located in the area of such work, and each other provider shall upon receipt of notice of such work be responsible to mark the horizontal placement of all its facilities in the area.

b.

All providers receiving notice of such work shall notify and work closely with the provider who is about to excavate to establish the exact location of its facilities and the best procedure for excavation or installation.

c.

All providers shall participate and maintain membership in the one-call notification system administered by the "Sunshine State One Call of Florida" (SSOCOF) or any subsequent alert and warning program.

d.

Prior to any excavation, trenchless construction, or placement of poles, the provider shall comply with the "One Call" utility locate program requirements of F.S. ch. 556, and shall concurrently field mark (white line paint) the horizontal alignment of all proposed facilities. A complete list of all locate tickets for the areas covered under the permit shall be provided to the City upon request.

e.

All existing facilities located three feet or less from a proposed bore path or excavation shall be exposed for visual verification and bore depth determination. Ground Penetrating Radar (GPR) or similar locating device may be required to locate existing utilities under pavement surfaces. The provider may utilize non-destructive digging methods, such as vacuum excavation, to determine as precisely as possible the horizontal, vertical and spatial position, composition, size and other specifications of the conflicting underground facilities. If necessary, the provider shall re-design the construction plans to eliminate apparent conflicts.

(6)

Rights-of-way restoration.

a.

The work to be done under the construction permit, and the restoration of the rights-of-way as required herein, shall be completed within the dates specified in the construction permit. In addition to its own work, the provider shall restore the general area of the work, and the surrounding areas, including but not limited to trench backfill, road foundations, and road surfacing, in accordance with the rules and regulations for making openings in a public way, and shall inspect the area of the work and use reasonable care to maintain the same condition for the term of the construction permit. All areas and facilities disturbed in the public right-of-way shall be restored by the provider to match existing adjacent conditions in accordance with City engineering standard details and specifications; neighborhood design and historic district criteria as applicable; and current ADA regulations. The City shall have the authority to prescribe the manner, extent, materials, and required schedule for completion of the restoration.

b.

In approving an application for a construction permit, the City reserves the right to restore the rights-of-way using City forces or agents when necessary to preserve the integrity of designated historical preservation areas or to protect the public health, safety and welfare of its citizens.

c.

The provider shall perform the work according to the City's engineering standards and with the materials specified by the POD. The POD shall have the authority to prescribe the manner and extent of the restoration, and may do so in written procedures of general application or on a case-by-case basis. The POD in exercising this authority shall be guided by the following standards and considerations: the number, size, depth and duration of the excavations, disruptions or damage to the rights-of-way; the traffic volume carried by the rights-of-way; the character of the neighborhood surrounding the rights-of-way; the pre-excavation condition of the rights-of-way; the remaining life-expectancy of the rights-of-way affected by the excavation; whether the relative cost of the method of restoration to the provider is in reasonable balance with the prevention of an accelerated depreciation of the rights-of-way that would otherwise result from the excavation, disturbance or damage to the rights-of-way; and the likelihood that the particular method of restoration would be effective in slowing the depreciation of the rights-of-way that would otherwise take place. Methods of restoration may include, but are not limited to, patching, replacement of the rights-of-way base, and milling and overlay of the entire area of the rights-of-way affected by the work. Notwithstanding the foregoing, if any right-of-way has been paved or otherwise improved to meet the requirements of a special event, restoration work shall meet the specifications for the special event.

d.

By restoring the rights-of-way itself, the provider shall guarantee and maintain its work in the paved portion of a right-of-way for five years, and in the unpaved portion of a right-of-way for one year, from the date of the completion of the work and acceptance by the POD as being in compliance with City standards for such work. During this period, the provider shall, upon notification from the POD, correct all restoration work to the extent necessary using the method required by the POD. Said work shall be completed within 14 calendar days of the receipt of the notice from the POD. However, a provider shall not be required to guarantee its work against the subsequent disturbance of its work by any other person, and if its work is subsequently disturbed by another in whole or in part, the provider shall be relieved of its obligation to maintain its work in whole or in part as the facts of the case may indicate to be fair and reasonable.

e.

If the provider fails to restore the rights-of-way in the manner and to the condition required by the POD, or fails to satisfactorily and timely complete all repairs required by the POD, the POD may elect to cause such work to be performed using City forces or agents. In that event, the provider shall pay to the City, within 30 days of billing, the restoration cost of restoring the rights-of-way and any other costs incurred.

(7)

Damage to facilities of another provider; costs of emergencies.

a.

Each provider shall be responsible for the cost of repairing any facilities in the rights-of-way which the provider may damage, to the extent and in accordance with F.S. ch. 556 or § 610.114(2), whichever may be applicable.

b.

In the case of an emergency, and after reasonable notice by the POD to the provider and a reasonable opportunity for the provider to protect its facilities in a right-of-way from the effects of the emergency or to correct the cause of the emergency as the case may be (such reasonableness to be determined in light of the exigencies of the emergency), if the POD performs work in the rights-of-way and finds it necessary to maintain, support, or move a provider's facilities in order to protect it, the costs associated therewith will be billed to that provider and shall be paid within 30 days from the date of billing.

c.

In the case of an emergency caused by the facilities of a provider, the costs of any damage which may be caused by the POD to the facilities of any provider in responding to the emergency shall be borne by the provider whose facilities caused the emergency.

d.

If the POD becomes aware of an emergency regarding a provider's facilities, the POD may take whatever action the POD deems reasonably necessary under the circumstances in order to respond to the emergency, the cost of which shall be borne by the provider whose facilities occasioned the emergency. Neither the City nor its officers, agents or employees shall be liable to the provider or any third party for costs or damages arising from a response by the City or any of its officers, agents, or employees to an emergency.

(8)

Rights-of-way vacation. If the City vacates a rights-of-way which contains the facilities of a provider, such vacation shall be subject to the applicable provisions of the Code relating to the vacation of rights-of-way. If the vacation requires the relocation or removal of a provider's facilities, see subsection (4) of this section.

(9)

Excavation requirements. The provider shall perform all excavation, backfilling, restoration, and all other work in the rights-of-way in conformance with specifications as promulgated by the POD. Restoration work shall not be required to exceed pre-existing conditions. However, for those portions of the right-of-way paved or otherwise improved for any special event, restoration work shall meet the specifications for the special event.

(10)

Inspection; stop work orders. During the course of any construction in a right-of-way:

a.

The construction-site shall be made available to the inspector and to all others as authorized by law for inspection at all reasonable times during the execution and upon completion of the construction.

b.

At the time of inspection, the inspector may order the immediate cessation of any work which poses an imminent threat to the life, health, safety or well-being of the public. Such order shall remain in effect until the condition posing the threat has been corrected and the inspector has been shown to his satisfaction that the threat no longer exists.

c.

The inspector may issue an order to stop any work which may not pose an imminent threat to the life, health, safety or well-being of the public but which does not conform to the requirements of this article or to applicable standards, conditions or codes, or which is not in accordance with the specifications of the work permit. The order shall describe, among other things, the nature of the violation and shall state that a failure to correct the violation within a reasonable time to be specified in the order will be cause for revocation of the construction permit. Within ten days after issuance of the order, the provider shall present proof to the POD that the violation has been corrected. If such proof has not been presented within the required time, the POD may revoke the construction permit pursuant to this article.

(11)

Tree trimming. A provider shall have the authority to trim trees upon and overhanging streets of the City so as to prevent the branches of such trees from coming in contact with the provider's wires and cables, all trimming and removal of branches shall be done at the expense of the provider.

(12)

Reservations of use; no warranty. Because there are public streets within the City which the City does not have the unqualified right to use, or to authorize a provider to use, due to reservations in favor of the grantors or dedicators of the streets or because of other legal impediments, the City does not warrant or represent as to any particular street or portion thereof that the City has the right to authorize a provider to install or maintain portions of its system therein. In each case, the burden and responsibility for making such determination in advance of the installation and for obtaining authorization from the person having the right to grant such authorization shall be upon the provider.

(13)

General construction permit requirements. A provider holding a construction permit shall:

a.

Comply with all applicable requirements of local, State and federal laws, obtain all other necessary permits, licenses, and authorizations, and pay all fees required by other local, State, and federal agencies.

b.

Perform all work in conformance with all applicable codes, rules, and regulations.

c.

Be responsible for all work done in the rights-of-way pursuant to the construction permit, regardless of who performs the work.

d.

Perform no right-of-way obstruction or excavation except on dates and at times authorized by the construction permit, or when conditions are unreasonable for such work, except in the case of an emergency.

e.

Not obstruct a right-of-way in such a manner as to interfere with the flow of stormwater through the gutters or other waterways in or adjoining the right-of-way.

f.

Protect all manholes and storm sewer openings against the introduction of construction debris through the manhole or into the sewer system.

g.

Park no private vehicles other than necessary construction vehicles within or adjacent to a construction permit work site. For the purposes of this subsection, the term "necessary construction vehicles" includes vehicles used by inspectors and other supervisory personnel.

h.

Provide at least one person at each construction permit work site representing the provider or the provider's contractor who has supervisory status and who is capable of speaking English with sufficient fluency so as to be able to communicate with inspectors, law enforcement personnel, or fire safety personnel with respect to the status of the work, compliance with applicable life safety code requirements, and on-site life or health safety requirements of personnel working on the site or members of the public in the vicinity of the work. Failure to meet this requirement will be cause for immediate cessation of all construction activity.

i.

Mark all vehicles used at each construction permit work site with the provider's name and telephone number; or, if a contractor or subcontractor, the contractor's or subcontractor's name and telephone number.

j.

Require all personnel working at each construction permit work site to wear clothing marked with the provider's name or the contractor's name or identification badges bearing such information.

k.

Obtain coverage under an NPDES Stormwater Permit if applicable to the construction project.

l.

Implement appropriate pollution prevention techniques to minimize erosion and sedimentation and properly manage stormwater. Any discharge to the City drainage system, right-of-way network, or surface waters which is not entirely composed of stormwater, is prohibited and subject to penalties.

m.

Maintain the approved permit and the City approved project plans on-site at all times while the crews are working within the right-of-way.

n.

The provider's personnel shall stay within the rights-of-way or easement boundaries and shall not trespass onto private property or use water hoses of private properties without the owner's permission. All trash and debris shall be removed from the job site daily.

o.

Provide to the POD a detailed construction schedule, updated weekly, showing all of the project construction activity within the rights-of-way, including start and completion dates.

(14)

Safety requirements. A provider shall:

a.

At all times, employ due care and follow, install, and maintain in use commonly accepted methods, procedures, and devices for preventing failures and accidents likely to cause damage, injury, or nuisance to the public.

b.

Install and maintain its wires, cables, fixtures, conduits and other equipment in accordance with the requirements of the National Electrical Safety Code promulgated by the National Bureau of Standards and the National Electrical Code of the American Insurance Association, and in such manner that they will not interfere with any installations of the City, a public utility, a private communications system or a cable system serving the City.

c.

Keep and maintain all structures and all lines, equipment and connections in, over, under, and upon the streets of the City, wherever situated or located, in a safe, suitable, and substantial condition, and in good order and repair at all times.

(Code 1992, § 25-413; Ord. No. 507-G, § 1, 11-29-2001; Ord. No. 570-G, § 1, 12-12-2002; Ord. No. 1001-G, § 14, 11-4-2010)