This chapter shall be known and may be cited as the "City of Cape Coral Telecommunications Ordinance".

(Ord. 119-00, 12-18-2000)

It is the intent of the City of Cape Coral to promote the public health, safety and general welfare by providing for the use of the public rights-of-way within the city; to adopt and administer reasonable regulations consistent with state and federal law, including F.S. §§ 337.401, 362.01 and 337.29(3), and the city's home-rule authority in accordance with the provisions of the Telecommunications Act of 1996; to provide for the payment of compensation and other consideration by a telecommunications service provider to the city for the cost of regulating and maintaining the public rights-of-way and for the privilege of using the public rights-of-way within the city for constructing and maintaining telecommunications facilities; and to establish reasonable regulations concerning the use of the public rights-of-way by all telecommunications service providers after the effective date of this chapter. In regulating its public rights-of-way, the city shall be governed by and shall comply with all applicable federal, state and local laws and regulations.

(Ord. 119-00, 12-18-2000)

For the purpose of this chapter, the following terms, phrases, words and derivations shall have the meanings given. When not inconsistent with the context, words used in the present tense include the future tense, words in the plural number include the singular number, and words in the singular number include the plural number. The words "shall" and "will" are mandatory, and "may" is permissive. Words not otherwise defined herein or in any permit that might be granted 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 so defined, as defined by Florida Statutes; and, if not defined therein, shall be construed to have the common and ordinary meaning.

CITY. The City of Cape Coral, an incorporated municipality of the State of Florida, in its present form or in any later reorganized, consolidated or enlarged form.

GROSS RECEIPTS. All cash, credits or property of any kind or nature, with deductions for bad debt expense, reported as revenue items in the registrant's audited income statements arising from, or attributable to, recurring local service revenues of registrant within the city. The city reserves the right to amend the definition contained herein as permitted by applicable Law. The definition herein shall not be applicable as of October 1, 2001, or such other date as provided by law, provided that F.S. § 337.401, is amended effective October 1, 2001, as set forth in Chapter 00-260, Laws of Florida, 2000.

LAW. Any local, state or federal legislative, judicial or administrative order, certificate, decision, statute, constitution, ordinance, resolution, regulation, rule, tariff, guideline or other requirements, as amended, now in effect or subsequently enacted or issued including, but not limited to, the Communications Act of 1934, 47 U.S.C. §§ 151 et seq. as amended by the Telecommunications Act of 1996, Pub. Law No. 104-104 § 101(a), 110 Stat. 70 codified at 47 U.S.C., and all orders, rules, tariffs, guidelines and regulations issued by the Federal Communications Commission or the governing State authority pursuant thereto.

PERSON. Any individual, corporation, partnership, association, joint venture, estate, trust, syndicate, fiduciary, organization or legal entity of any kind, and any lawful trustee, successor, assignee, transferee or personal representative thereof, and all other groups or combinations, but shall not mean "the city".

PSC. The Florida Public Service Commission.

PUBLIC RIGHTS-OF-WAY. The surface, the airspace above the surface and the area below the surface of any public street, highway, road, boulevard, concourse, driveway, freeway, thoroughfare, parkway, sidewalk, bridge, tunnel, park, waterway, dock, bulkhead, wharf, pier, court, lane, path, alley, way, drive, circle, public easement, public place or any other property for which the city is the authority that has jurisdiction and control and may lawfully grant access to the property pursuant to applicable law. PUBLIC RIGHTS-OF-WAY shall not include any real or personal city property except as described above and shall not include city buildings, fixtures or other structures or improvements, regardless of whether they are situated in the public rights-of-way.

RECURRING LOCAL SERVICE REVENUES. Revenues from the monthly recurring charges for local service.

(1)

RECURRING LOCAL SERVICE REVENUES include, but are not limited to:

a.

Recurring basic area revenues derived from the provision of flat-rated basic area services;

b.

Recurring optional extended area revenues derived from the provision of optional extended area services;

c.

Local private line revenues derived from local services which provide communication between specific locations, either through dedicated circuits, private switching arrangements, predefined transmission paths, whether virtual or physical, or any other method of providing the services;

d.

Revenues from the sale of local services for resale; and

e.

Other local service revenues from the provision of secondary features that are integrated with the telecommunications network, including, without limitation, services such as call forwarding, call waiting and touch-tone line service. Except as provided herein, revenues from all recurring local services provided by a registrant over a telecommunications facility or system in the public rights-of-way shall constitute recurring local service revenues subject to this chapter.

(2)

RECURRING LOCAL SERVICE REVENUES do not include revenues from:

a.

Toll charges for the transmission of voice, data, video or other information;

b.

Access charges paid by carriers for origination and/or termination of toll telephone service, as defined in F.S. § 203.012(7), or other charges required by the Federal Communications Commission which are directly passed through to end users;

c.

Interstate service;

d.

Ancillary services such as directory advertising, directory assistance, detailed billing services, inside wire maintenance plans, bad check charges and non-recurring charges for installation, move, changes or termination services;

e.

Cellular mobile telephone or telecommunications services or specialized mobile telephone or telecommunications service or specialized mobile radio, or pagers or paging service, or related ancillary services;

f.

Public telephone charges collected on site;

g.

Teletypewriter or computer exchange services, as defined in F.S. § 203.012(6); or

h.

Local message rated (message, unit or time basis) and minutes of use charges in excess of the minimum flat-rated charges for similar services.

(3)

This definition shall not be applicable as of October 1, 2001, or such other date as provided by law, provided that F.S. § 337.401 is amended effective October 1, 2001, as set forth in Chapter 00-260, Laws of Florida, 2000.

REGISTRANT or FACILITY OWNER. A telecommunications company or other person which seeks to use or occupy the public rights-of-way that has registered with the city in accordance with the provisions of this chapter.

REGISTRATION and REGISTER. The process described in § 25-4 of this chapter whereby a telecommunications service provider provides certain information to the city.

TELECOMMUNICATIONS COMPANY. The meaning set forth in F.S. § 364.02(14), as amended. The term TELECOMMUNICATIONS COMPANY does not include an open video system or cable service providers.

TELECOMMUNICATIONS SERVICE. Include, without limitation, the transmission, conveyance or routing of voice, data, audio, video or any other information or signals to a point, or between or among points, by and through electronic, radio, satellite, cable optical, microwave or other medium or method now in existence or hereafter devised, regardless of the protocol used for the transmission or conveyance. TELECOMMUNICATIONS SERVICE, as contemplated herein, does not include the provision of service via an open video system or a cable service which shall require separate authorizations from the city.

TELECOMMUNICATIONS FACILITIES, FACILITIES or SYSTEMS. Any facility, equipment or property, including, but not limited to, cables, conduits, converters, splice boxes, cabinets, handholes, manholes, vaults, equipment, drains, surface location markers, appurtenances, located, to be located, used or intended to be used, in the public rights-of-way of the city to transmit, convey, route, receive, distribute, provide or offer telecommunications services.

TELECOMMUNICATIONS SERVICE PROVIDER. Any person making available or providing telecommunications services, as defined herein, through the placement or use of a telecommunications facility in the public rights-of-way.

(Ord. 119-00, 12-18-2000)

(a)

Each telecommunications service provider that desires to erect, construct, install, maintain, repair, expand or use any telecommunications facilities in, or under, public rights-of-way in the city shall first register with the city in accordance with the terms of this chapter.

(b)

Any telecommunications service provider desiring to use the public rights-of-way shall file a registration with the city which shall include the following information:

(1)

Identity of the applicant and name, address and telephone number of applicant's primary contact person in connection with the registration;

(2)

General description of the services to be provided (in other words, if applicant is or expects to be a local service provider and/or a toll service provider);

(3)

Evidence of the insurance coverage required under this chapter and acknowledgment that registrant has received and reviewed a copy of this chapter; and

(4)

A copy of federal and/or state certification authorizing the applicant to provide telecommunications services;

(5)

A Security Fund in accordance with this chapter.

(c)

The city will review the information submitted by the applicant. The review will be by the City Manager or a designee. If the applicant submits information in accordance with subsection (b) above, the registration shall be effective and the city shall notify the applicant of the effectiveness of registration in writing. If the city determines that the information has not been submitted in accordance with subsection (b) above, the city shall notify the applicant of the non-effectiveness of registration, and reasons for the non-effectiveness, in writing. The city shall so reply to an applicant within 30 days after receipt of registration information from the applicant. A registrant may cancel a registration upon written notice to the city noticing that it will no longer maintain facilities in the public rights-of-way and will no longer need to pull permits to perform work in public rights-of-way. Within 30 days of any change in the information required to be submitted pursuant to § 25-4(b), registrant shall provide updated information to the city.

(d)

A registration shall not convey title, equitable or legal, in the public rights-of-way. Registrants may only occupy public rights-of-way for telecommunications facilities. Registration does not excuse a telecommunications service provider from obtaining appropriate access or pole attachment before locating its facilities on another person's facilities. Registration does not excuse a provider from complying with all applicable city ordinances, including this chapter.

(e)

Each applicant for a registration or transfer shall submit a non-refundable application fee with the application in the amount of $1,000. The fee amount shall be as equal to the city's costs and expenses incurred in connection with approving the registration or transfer. If the application fee is insufficient to cover all costs or expenses incurred by the city in connection with approval of the registration or transfer, the applicant shall reimburse the city for any such costs and expenses in excess of the application fee. Fee amounts may be amended from time to time by resolution of the City Council. This application fee may be credited against fees due under § 25-5 of this chapter.

(f)

Registration with the city shall be nonexclusive. Registration does not establish any priority for the use of the public rights-of-way by a registrant or any other registrants. Registrations are expressly subject to any future amendment to, or replacement of, this chapter and further subject to any additional city ordinances, as well as any state or federal laws that may be enacted during the term of the registration.

(Ord. 119-00, 12-18-2000)

(a)

In consideration for the rights, privileges and permission granted hereunder, a registrant shall pay to the city a sum equal to 1% of gross receipts of the registrant on recurring local service revenues for services provided within the corporate limits of the city. Included within the 1% maximum fee or consideration are all taxes, licenses, fees, in-kind contributions accepted pursuant to F.S. § 337.401(5), and other impositions except ad valorem taxes and amounts for assessments for special benefits, such as sidewalks, street pavings and similar improvements, and business taxes levied or imposed by the city upon a registrant. In the event that applicable law currently permits or is amended to permit the city to collect a fee higher than 1%, or permits the city to calculate the fee on revenues not specified herein, the registrant shall pay, following written notice from the city, its fee payments to the city to that higher amount as of the effective date of the law. In the event applicable law is amended to require the city to collect a fee lower than the current statutory limit, the city shall take all necessary steps to conform the requirements hereof to applicable law. All of the aforestated payments shall be made to the city quarterly, with the payments made within 20 days following the end of each calendar quarter. Payments received after the twenty-first day shall be subject to interest at the maximum rate allowed by law, and late charges of 1½% per month.

(b)

A registrant, other than a registrant providing services, as defined in F.S. § 203.012(3), and which is currently generating recurring local service revenues, as a condition to occupy or use the public rights-of-way of the city, shall pay to the city annually no less than $500 per linear mile of any cable, fiber optic or other pathway that makes physical use of the public rights-of-way. The city may adopt additional fees or other consideration, provided that any fee or other consideration imposed by the city in excess of $500 per linear mile shall be applied in a nondiscriminatory manner and shall not exceed the sum of:

(1)

Costs directly related to the inconvenience or impairment solely caused by the disturbance of the public rights-of-way;

(2)

The reasonable cost of the regulatory activity of the city; and

(3)

The proportionate share of cost of land for the street, alley or other public way attributable to utilization of the public rights-of-way by a telecommunications service provider.

(c)

Notwithstanding anything herein to the contrary, the city shall, at all times, require the maximum compensation allowed under applicable law.

(d)

Except to the extent prohibited by applicable law:

(1)

The fee payments to be made pursuant to this section shall not be deemed to be in the nature of a tax;

(2)

The fee payments shall be in addition to any and all taxes of a general applicability;

(3)

A registrant shall not have or make any claim for any deduction or other credit of all or any part of the amount of the fee payments from or against any of the city taxes or other fees or charges of general applicability which a registrant is required to pay to the city, except as required by law; and

(4)

The fee specified herein is the minimum consideration for use of the public rights-of-way, including all public easements, for the purpose of installing and maintaining a telecommunications facility.

(e)

Registrant shall not enter into any transaction or arrangement which has the effect of circumventing payment of required fees and/or evasion of payment of fees by non-collection, non-reporting of gross receipts, collection of revenues by its parent, affiliates or subsidiaries, bartering or any other means which evade the actual collection of revenues subject to the fee by registrant.

(f)

The payments required under this section shall not apply as of October 1, 2001, or such other date as provided by law, provided that F.S. § 337.401 is amended effective October 1, 2001, as set forth in Chapter 00-260, Laws of Florida, 2000.

(Ord. 119-00, 12-18-2000; Ord. 169-06, 12-11-2006)

(a)

The city may, at its option, upon 60 days' notice to the registrant, but in no event more often than once per year, examine the records and accounting files, and such other books and records, if the records relate to the calculation of fee payments. The examination of the books, accounts, records or other materials necessary for determination of compliance with the terms, provisions and requirements of this chapter shall be during regular hours of business of the registrant at an office of the registrant located within the county, or at another location satisfactory to the city. In the event that the city, pursuant to an audit, determines that there exists a discrepancy in the amount paid and the amount owed to the city by the registrant in excess of 2%, registrant shall pay all costs, fees and expenses of the audit. Registrant shall pay interest at the rate of 12% per annum on the amount underpaid or not paid calculated from the date the amount was due through to the date it was finally paid. Both the underpayment and interest, and payment of any costs, fees and expenses hereunder, shall be paid within 30 days after receipt of demand from the city. This section shall not apply for periods after October 1, 2001, or such other date as provided by law, provided that F.S. § 337.401 is amended effective October 1, 2001, as set forth in Chapter 00-260, Laws of Florida, 2000.

(b)

Upon request, a registrant shall provide the following documents to the city as received or filed:

(1)

Any pleadings, petitions and notices which may directly impact the obligations under this chapter and which are reasonably necessary for the city to protect its interests under this chapter; and

(2)

Any request for protection under bankruptcy laws, or any judgment related to a declaration of bankruptcy.

(c)

In addition, the city may, at its option, and upon reasonable notice to the registrant, inspect the facilities in the public rights-of-way to ensure the safety of its residents.

(d)

The city shall keep any documentation, books and records of the registrant confidential to the extent required under Florida Statutes.

(Ord. 119-00, 12-18-2000)

(a)

To the extent required by the city code and not inconsistent with applicable PSC rules and regulations, a registrant shall install its facilities underground.

(b)

Every registrant which places or constructs telecommunications facilities underground shall maintain appropriate participation in the regional notification center for subsurface installations.

(c)

Any telecommunications facilities heretofore or hereafter placed under, any public rights-of-way that are found by the city to be unreasonably interfering in any way with the convenient, safe or continuous use or the maintenance, improvement, extension or expansion of the public rights-of-way or any property located under the rights-of-way in which the city has an interest, including, but not limited to, pipes shall, upon written notice to the registrant or its agent, be removed or relocated, within 30 days of the notice, by the registrant at its own expense consistent with F.S. § 337.403. The City Manager may waive or extend the time within which a registrant shall remove or relocate a telecommunications facility, for good cause shown.

(d)

The registrant shall not, in any way, displace, damage or destroy any facilities, including, but not limited to, gas, sewer, water main, pipe, cable, conduit, fiber optic or other pathway or any other facilities belonging to the city, or to any third party who placed the facilities therein by express authority of the city and in compliance with all of the requirements which accompany such express authority. The registrant shall be liable to the city for the costs of any repairs made necessary by any such displacement, damage or destruction, of facilities belonging to the city, and the registrant shall pay the costs upon demand. In the case of an emergency, the city shall commence repairs without any prior notice to the registrant. The term emergency shall mean a condition that may affect the public's health, safety or welfare. In the event of an emergency the city shall cause the repairs to be made at the facility's owner expense, utilizing city employees, agents or contractors, charge any and all costs, and require reimbursement within 30 days after the submission of the bill by the city to the registrant. Rates for labor and equipment shall be in accordance with city regulations, if applicable. In all other non-emergency circumstances, the registrant shall be given prior written notice. If the repairs are not performed in a reasonable and satisfactory manner within the 30 calendar days after receiving notice, the city may cause the repairs to be made at the facility's owner expense, utilizing city employees, agents or contractors, and require reimbursement within 30 days after the submission of the bill by the city to the registrant. Rates for labor and equipment shall be in accordance with city regulations, if applicable.

(e)

Subject to F.S. § 337.403, whenever an order of the city requires the removal or change in the location of any telecommunications facility from the public rights-of-way, and the facility owner fails to remove or change the same at its own expense to conform to the directive within the time stated in the notice, the city may proceed to cause the telecommunications facility to be removed. The expense incurred, except as provided in F.S. § 337.403(1)(a)—(c), shall be paid out of any money available, and the expense shall be charged against the owner of the telecommunications facility and levied, collected and paid to the city.

(f)

Subject to F.S. § 337.403, whenever it shall be necessary for the city to remove or relocate any telecommunications facility, the owner of the telecommunications facility or the owner's chief agent, shall be given written notice ordering the removal or relocation and requiring payment of the costs thereof, and shall be given reasonable time, which shall not be less than 20 nor more than 30 days in which to file an appeal with the City Manager to contest the reasonableness of the order. Upon receipt of a written appeal, the City Manager shall place the matter on a Council agenda for consideration within 45 working days. Should the owner or the owner's representative not appear, the determination of the cost to the owner shall be final, in accordance with F.S. § 337.404.

(g)

A final order of the city imposed pursuant to Florida Statutes, and applicable provisions of the city code, if any, shall constitute a lien on any property of the owner and may be enforced as provided therein.

(h)

The city retains the right and privilege to cut or remove any facilities located within the public rights-of-way of the city, as the city manager in the exercise of reasonable discretion may determine to be necessary, appropriate or useful in response to any public health or safety emergency. If circumstances permit, the city shall attempt to notify the owner of the facility, if known, prior to cutting or removing a facility and shall notify the owner of the facility, if known, after cutting or removing a facility.

(i)

Upon abandonment of a facility within the public rights-of-way of the city, the owner of the facility shall notify the city within 90 days. Following receipt of the notice, the city may direct the facility owner to remove all or any portion of the facility if the city determines that the removal will be in the best interest of the public health, safety and welfare. In the event that the city does not direct the removal of the abandoned facility by the owner of the facility, the owner, by its notice of abandonment to the city, shall be deemed to consent to the alteration or removal of all or any portion of the facility by the city or another utility or person.

(j)

Notwithstanding anything to the contrary, a facility owner agrees to provide the city, within 30 days of filing or receipt of such, any document that may prevent compliance with the requirements of a permit in connection with the installation, construction or maintenance of its facilities, or use of facilities in the public rights-of-way. This obligation shall only extend to the work in the public rights-of-way for which a facility owner has applied for, or obtained, a permit from the city.

(Ord. 119-00, 12-18-2000)

(a)

A facility owner agrees at all times to comply with and abide by all applicable provisions of federal law, the state statutes and local laws including, but not limited to, applicable zoning regulations not inconsistent with state and federal laws.

(b)

Except in the case of an emergency, which shall include without limitation an out of service condition affecting 911 service, and which shall require subsequent notification to the city, no telecommunications service provider shall construct any facility under or within any public rights-of-way which disrupts the public rights-of-way without first filing an application with and obtaining a permit from the city, pursuant to applicable permitting requirements of the city except as otherwise provided in this chapter. In case of the repair or maintenance of an existing facility, the city may impose lesser requirements than those set forth herein. Unless otherwise required by the city code, no permit shall be required for installation and maintenance of service connections to customers' premises where there will be no disruption of the public rights-of-way.

(c)

As part of any permit application, the facility owner shall provide a proposal for construction of the telecommunications facility that sets forth at least the following:

(1)

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 the public rights-of-way;

(2)

A description of the manner in which the system will be installed (i.e., anticipated construction methods and/or techniques), the time required to construct the system, a maintenance of traffic plan for any disruption of the public rights-of-way, information on the ability of the public rights-of-way to accommodate the proposed system, if available (such information shall be provided without certification as to correctness, to the extent obtained from other users of the public rights-of-way); and

(3)

If appropriate, given the system proposed, an estimate of the cost of restoration to the public rights-of-way. The plan shall include the timetable for construction for each phase of the project, and the areas of the city which will be affected.

(d)

The city may request such additional information as it finds reasonably necessary to review an application for a permit to perform work in the public rights-of-way. The city shall have the power to prohibit or limit the placement of new or additional facilities within the public rights-of-way if there is insufficient space to accommodate all of the requests to occupy and use the public rights-of-way, for the protection of existing facilities in the public rights-of-way, or future city plans for public improvements or development projects which have been determined by the city to be in the public interest.

(e)

All facilities shall be installed, located and maintained so as not to unreasonably interfere with the use of the public rights-of-way by the public and to cause minimum interference with the rights and convenience of property owners who adjoin any of the public rights-of-way. The registrant shall be liable for the displacement, damage or destruction of any private property within or adjoining the public rights-of-way. The use of trenchless technology (i.e., directional bore method) for the installation of facilities in the public rights-of-way as well as joint trenching and/or the co-location of facilities in existing conduit is strongly encouraged, and should be employed wherever feasible. The City Manager may promulgate such rules and regulations concerning the installation and maintenance of a telecommunications facility in the public rights-of-way, as may be consistent with applicable law and not inconsistent with this chapter.

(f)

All safety practices required by applicable law or accepted industry practices and standards shall be used during construction, maintenance and repair of the telecommunications facilities.

(g)

In the event that at any time during the term of the rights granted herein the city shall awfully elect to alter or change the grade of any public rights-of-way, upon reasonable notice by the city, the facility owner shall make any necessary removals, relaying and relocations of its telecommunications facilities at its own expense, in accordance with applicable Law.

(h)

A facility owner shall obtain any and all required permits and pay any and all required fees before commencing any construction on or otherwise disturbing any public rights-of-way as a result of its construction, except as provided herein. The facility owner shall, at its own expense, restore the property to as good a condition as existed prior to commencement of work. A registrant shall guarantee its restoration for a period of 12 months after the completion of such restoration. If the restoration is not performed in a reasonable and satisfactory manner to the city within 30 calendar days after the completion of construction, the city may, after prior written notice to registrant, cause the repairs to be made at the facility's owner expense utilizing city employees, agents or contractors; charge any and all costs against the registrant; and require reimbursement within 30 days after the submission of the bill by the city to registrant. Rates for labor and equipment shall be in accordance with City of Cape Coral regulations, if applicable. A permit from the city constitutes authorization to undertake only certain activities on public rights-of-way in accordance with this chapter, 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.

(i)

All ongoing installation, construction and maintenance of a telecommunications facility located in the public rights-of-way shall be subject to the city's periodic inspection, upon no less than three days written notice to the facility owner, for compliance with this chapter, or any applicable provisions of the city code and/or administrative regulations.

(j)

A facility owner shall not place its facilities so as to interfere unreasonably with any other person lawfully using the public rights-of-way of the city.

(k)

A facility owner shall cooperate with the city by providing timely and complete information requested under this subsection. Upon completion of any installation or construction of new facilities in public rights-of-way, at no cost to the city, the facility owner shall provide such information, as may be requested, showing the exact location of its facilities and structures, including but not limited to, as-built plans, maps, geographical information systems, plats, construction documents, drawings and any other information the city may find reasonably necessary. The plans shall be provided in digitized format showing the two-dimensional location of the facilities based on the city's geographical database datums, or other format acceptable to the City Manager. All information required by this section shall be maintained in accordance with F.S. § 202.195.

(l)

Suspension or denial of permits. Subject to subsection (m) below, the City Manager or a designee may suspend or deny a permit for work in the public rights-of-way for one or more of the following reasons:

(1)

Violation of permit conditions, including conditions set forth in this chapter or other applicable provisions of the city code or regulations governing use of public rights-of-way;

(2)

Misrepresentation or fraud by registrant in a registration or permit application to the city;

(3)

Failure to relocate or remove facilities as may be lawfully required by the city; or

(4)

Failure of registrant, its employees, agents or subcontractors, in connection with the subject permit, to:

a.

Place barricades or signs around the work area;

b.

Take reasonable safety precautions to alert the public of work at the work site; or

c.

Repair or replace and restore any sidewalk, street, alley, pavement, water, sewer or other utility line or appurtenance, soil, landscaping, dirt or other improvement, property or structure of any nature. In the event of such failure, the city may perform the work utilizing city employees, agents or contractors; charge any and all costs against the registrant; and require reimbursement within 30 days after the submission of the bill by the city to registrant. Rates for labor and equipment shall be in accordance with City of Cape Coral regulations, if applicable.

(m)

Immediately after the suspension or denial of a permit pursuant to this section, the city shall provide written notice of the violation, which notice shall contain a description of the violation. Final, written decisions of the city suspending a permit or denying an application for a registration are subject to appeal. An appeal must be filed with the city within 30 days of the date of the final, written decisions to be appealed. Any appeal not timely filed as set forth above shall be waived. The City Council shall hear the appeal no later than 45 days from the end of the 30 day appeal period, unless waived by the registrant. Upon correction of any violation that gave rise to a suspension or denial of permit, the suspension or denial shall be lifted.

(n)

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 cable services, or any other services other than the provision of telecommunications service, or for providing any other use to existing or potential consumers, a registrant shall seek such additional and separate authorization from city for such activities as may required by applicable law. In the event that a registrant is acting in its proprietary function as a retail provider of telecommunications equipment or appliances, registrant shall seek the appropriate permits and licenses from the city.

(o)

To the extent that any person or registrant leases or otherwise uses the facilities of an entity that is duly registered or otherwise authorized to place and maintain facilities in the public rights-of-way of the city, the person or registrant shall make no claim, nor assert any right, which will impede the lawful exercise of the city's rights, including requiring the removal of such facilities from the public rights-of-way of the city, regardless of the effect on the person's ability to provide service or on the registrant's ability to maintain its own telecommunications facilities in the public rights-of-way of the city.

(p)

Termination of registration. The involuntary termination of a registration may only be accomplished by an action of the City Council. The city may declare the registration terminated and revoke and cancel all privileges granted under that registration if a federal or state authority suspends, denies or revokes a registrant's certification to provide telecommunications service; if the registrant's use of the public right-of-way presents an extraordinary danger to the general public or other users of the right-of-way; or if the registrant abandons all of its facilities. Prior to the termination by the city resulting from a violation of any of the provisions of this subsection, the registrant shall be notified by the City Manager with a written notice setting forth all matters pertinent to the violation, and describing the action of the city with respect thereto. The registrant shall have 60 days after receipt of the notice within which to cure the violation, or within which to present a plan, satisfactory to the City Council, to accomplish the same. In the event of the termination, the registrant shall, within a reasonable time following the termination, remove or abandon the facilities and take such steps as are necessary to render every portion of the facilities remaining within the public right-of-way of the city safe. If the registrant has either abandoned its facilities or chooses to abandon its facilities, the city may either require the registrant's bonding company to remove some or all of the facilities from the public right-of-way and restore the public right-of-way to its proper condition or the city may require that some or all of the facilities be removed and the public right-of-way restored to its proper condition at the registrant's expense, utilizing city employees, agents or contractors, and charge any and all costs against the registrant and require reimbursement. Rates for labor and equipment shall be in accordance with City of Cape Coral regulations, if applicable. The obligations of the registrant hereunder shall survive the termination of the registration. In the event of a termination of registration, this provision does not permit the city to cause the removal of any facilities that are used to provide another service for which the registrant holds a valid certification with the governing federal and state telecommunications agencies and is properly registered with the city, for the certificated service, under this chapter.

(Ord. 119-00, 12-18-2000)

A telecommunications service provider shall at all times be subject to and shall comply with all applicable federal, state and local laws. A facility owner shall, at all times, be subject to all lawful exercises of the police power of the city, to the extent not inconsistent with applicable laws.

(Ord. 119-00, 12-18-2000)

(a)

If the registrant transfers or assigns its registration incident to a sale or other transfer of the registrant's assets, the transferee or assignee shall be obligated to comply with the terms of this chapter. Written notice of any transfer, sale or assignment shall be provided to the city within 20 days of the effective date of the transfer, sale or assignment. In order for the transfer of registration to be effective, the registrant must be in current compliance with this chapter and must provide written notice which includes the identity of the prospective transferee or assignee; that the transferee or assignee is certificated by the Florida Public Service Commission and has complied with the insurance and bonding requirements as required herein; and an acknowledgment, as required by § 25-4, that the transferee or assignee has received and reviewed the terms and conditions of this chapter.

(b)

Notwithstanding anything in this chapter, pledges in trust or mortgages or other hypothecations of the assets of the registrant to secure the construction, operation or repair of its telecommunications facilities may be made to any person without notice to the city. Any mortgage, pledge, lease or other encumbrance of the telecommunications facilities shall be subject and subordinate to the rights of the city by virtue of this chapter or other applicable law.

(Ord. 119-00, 12-18-2000)

(a)

A facility owner shall at all times maintain the following liability insurance coverage insuring the registrant and naming the city, its officers, boards, members, agents and employees as additional insureds and worker's compensation and employer liability insurance to meet all requirements of Florida law and commercial general liability insurance with respect to the construction, operation and maintenance of the telecommunications facilities, and the conduct of registrant's business in the city, in the minimum amounts of:

(1)

Five hundred thousand dollars for property damage in any one accident;

(2)

Five hundred thousand dollars for personal bodily injury to any one person; and

(3)

One million dollars for personal bodily injury in any one accident.

(b)

All insurance policies shall be with sureties qualified to do business in the State of Florida and shall be with sureties having a minimum rating of A-1 in Best's Key Rating Guide, Property-Casualty Edition, except as provided in subsection (d) below. The city may require coverage and amounts in excess of the above minimums where necessary to reflect changing liability exposure and limits or where required by law. A registrant may provide a portion of the insurance coverage required by subsection (a) above through excess or umbrella policies of insurance when such policies are in a form acceptable to the city's Risk Management Administrator.

(c)

A registrant shall keep on file with the city certificates of insurance which certificates shall indicate that the city, its officers, boards, members, agents and employees are listed as additional insureds. In the event of a potential claim such that the city claims insurance coverage, the facility owner shall immediately respond to all reasonable requests by the city for information with respect to the scope of the insurance coverage.

(d)

The certificates of insurance shall further provide that any cancellation or reduction in coverage shall not be effective unless 30 days' prior written notice has been given to the city. A registrant shall not cancel any required insurance policy without submission of proof that the registrant has obtained alternative insurance satisfactory to the city which complies with this chapter. A registrant that elects to self-insure all or a portion of the insurance coverage and limit requirements required by this section is not required, to the extent of the self-insurance, to comply with the requirement for the naming of additional insureds under this section. A registrant that elects to self-insure shall provide to the city evidence sufficient to the city to demonstrate its financial ability to self-insure the insurance coverage and limit requirements required under this section, such as evidence that the registrant is a "private self insurer" under the Workers' Compensation Act. For purposes of this section, "self-insurer" shall also include a registrant which insures through a "captive insurer", as defined in F.S. § 628.901.

(e)

A registrant shall, at its sole cost and expense, release, indemnify, hold harmless and defend the city, its officials, boards, members, agents and employees, against any and all claims, suits, causes of action, proceedings, judgments for damages or equitable relief and costs and expenses, sustained by the city, including without limitation, costs and expenses attributable to the city by any third party, arising out of the construction, maintenance or operation of its telecommunications system or facilities, in the public rights-of-way, regardless of whether the act or omission complained of is authorized, allowed or prohibited by this chapter; provided, however, that a facility owner's obligation hereunder shall not extend to any claims caused by the sole negligence of the city. The city agrees to notify the registrant, in writing, within a reasonable time of city receiving notice, of any issue it determines may require indemnification. Nothing in this section shall prohibit the city from participating in the defense of any litigation by its own counsel and at its own cost if in the city's reasonable belief there exists or may exist a conflict, potential conflict or appearance of a conflict. Nothing contained in this provision shall be construed or interpreted as a waiver of sovereign immunity beyond the waiver provided in F.S. § 768.28.

(Ord. 119-00, 12-18-2000)

(a)

Except in the case of an emergency, which shall include without limitation an out of service condition affecting 911 service, prior to performing any work in the public rights-of-way, a registrant shall establish in the city's favor a construction bond in an amount specified in an engineering permit or other authorization as necessary to ensure the registrant's faithful performance of the construction or other work in the public rights-of-way, in accordance with the city code and/or regulations. The amount of the construction bond shall be as set forth in the engineering permit, and may be modified in the city manager's reasonable discretion, based on the cost of the restoration to take place in the public rights-of-way, and any previous history of the registrant concerning construction within the public rights-of-way of the city.

(b)

In the event a registrant subject to such a construction bond fails to complete the work in a safe, timely and competent manner in accordance with the provisions of the permit, there shall be recoverable, jointly and severally from the principal and surety of the bond, any damages or loss suffered by the city as a result, including the full amount of any compensation, indemnification or cost of removal or abandonment of any property of the registrant, or the cost of completing the work, plus a reasonable allowance for attorneys' fees, up to the full amount of the bond.

(c)

No less than 12 months after the completion of the construction of the telecommunications facility and satisfaction of all obligations in accordance with the bond, the city may eliminate the bond. However, the city may subsequently require a new bond for any subsequent work in the public rights-of-way.

(d)

The construction bond shall be issued by a surety having a minimum rating of A-1 in Best's Key Rating Guide, Property-Casualty Edition; shall be subject to the approval of the City Attorney; and shall provide that:

"This bond may not be canceled, or allowed to lapse, until 60 days after receipt by the city, by certified mail, return receipt requested, of a written notice from the issuer of the bond of intent to cancel or not to renew."

(e)

The rights reserved by the city with respect to any construction bond established pursuant to this section are in addition to all other rights and remedies the city may have under this chapter, or at law or equity.

(f)

The rights reserved to the city under this section are in addition to all other rights of the city, whether reserved in this chapter, or authorized by other law, and no action, proceeding or exercise of a right with respect to the construction bond will affect any other right the city may have.

(Ord. 119-00, 12-18-2000)

(a)

In addition to any other remedies available at law or equity or provided in this chapter, the city may apply any one or combination of the following remedies in the event a registrant violates this chapter, or applicable local law or order related to use of the public rights-of-way:

(1)

Failure to comply with the provisions of this chapter or other law applicable to users and/or occupants of the public rights-of-way, may result in imposition of penalties to be paid by the registrant to the city in an amount of not less than $100 per day or part thereof that the violation continues.

(2)

In addition to or instead of any other remedy, the city may seek legal or equitable relief from any court of competent jurisdiction.

(b)

Before imposing a fine pursuant to this section, the City Manager shall give written notice of the violation and its intention to assess the penalties, which notice shall contain a description of the alleged violation. Following receipt of the notice, the registrant shall have 30 days to either cure the violation to the city's satisfaction (and the city shall make good faith reasonable efforts to assist in resolving the violation) or file an appeal with the city to contest the alleged violation. Upon receipt of the written appeal, the City Manager shall place the matter on a Council agenda for consideration within 45 working days. If no appeal is filed, and if the violation is not cured within that 30 day period, the city may collect all fines owed, beginning with the first day of the violation, through any means allowed by law.

(c)

In determining which remedy or remedies are appropriate, the city shall take into consideration the nature of the violation, the person or persons bearing the impact of the violation, the nature of the remedy required in order to prevent further violations, and such other matters as the city determines are appropriate to the public interest.

(d)

Failure of the city to enforce any requirements of this chapter shall not constitute a waiver of the city's right to enforce that violation or subsequent violations of the same type or to seek appropriate enforcement remedies.

(e)

In any proceeding before the city where there exists an issue with respect to a registrant's performance of its obligations pursuant to this chapter, the registrant shall be given the opportunity to provide such information as it may have concerning its compliance with the terms of this chapter. The city may find a registrant that does not demonstrate compliance with the terms and conditions of this chapter in default and apply any one or combination of the remedies otherwise authorized by this chapter.

(f)

The City Manager or a designee shall be responsible for administration and enforcement of this chapter, and is authorized to give any notice required by law.

(Ord. 119-00, 12-18-2000)

At the time of the registrant's application, the registrant shall file with the city, for city approval, a cash security, a bond or an irrevocable letter of credit, in the sum of $25,000, having as a surety a company qualified to do business in the State of Florida, and acceptable to the City Manager or a designee. The cash security, bond or irrevocable letter of credit shall be to secure the full and faithful performance by the registrant of all requirements, duties and obligations imposed upon registrant by the provisions of this chapter, and to pay any taxes, fees or liens. The bond or irrevocable letter of credit shall be furnished annually, or as frequently as necessary, and shall provide a continuing guarantee of the registrant's full and faithful performance at all times. Should the city draw upon the cash security, bond or irrevocable letter of credit, the city shall promptly notify the registrant, and the registrant shall promptly restore the cash security, annual bond or irrevocable letter of credit, to the full required amount. In the event a registrant fails to perform its duties and obligations imposed upon the registrant by the provisions of this chapter, there shall be recoverable, jointly and severally from the principal and surety of the bond or irrevocable letter of credit, any damages, resulting from a failure to perform under this chapter, including the full amount of any compensation, indemnification or costs of removal or abandonment of any property of the registrant, up to the full amount of the bond. In lieu of the cash security, bond or irrevocable letter of credit, required by this section, the city may in its reasonable discretion accept a corporate guarantee of the registrant or its parent company, if the registrant is a publicly traded company and maintains an insurance rating of no less than "A". The city may from time to time increase the amount of the security fund to reflect the increased risks to the city and to the public.

(Ord. 119-00, 12-18-2000)

In the event a registrant's performance of or compliance with any of the provisions of this chapter is prevented by a cause or event not within the facility owner's control, the inability to perform or comply shall be deemed excused and no penalties or sanctions shall be imposed as a result, provided, however, that the owner uses all practicable means to expeditiously cure or correct any such inability to perform or comply. For purposes of this chapter, causes or events not within a facility owners control shall include, without limitation, acts of God, floods, earthquakes, landslides, hurricanes, fires and other natural disasters, acts of public enemies, riots or civil disturbances, sabotage, strikes and restraints imposed by order of a governmental agency or court. Causes or events within registrant's control, and thus not falling within this section, shall include, without limitation, registrant's financial inability to perform or comply, economic hardship and misfeasance, malfeasance or nonfeasance by any of registrant's directors, officers, employees, contractors or agents.

(Ord. 119-00, 12-18-2000)

(a)

The city reserves the right to amend this chapter as it shall find necessary in the lawful exercise of its police powers.

(b)

This chapter shall be applicable to all telecommunications facilities permitted to be placed in the public rights-of-way, on or after the effective date of this chapter, and shall apply to all existing telecommunications facilities utilizing the public rights-of-way prior to the effective date of this chapter, to the full extent permitted by state and federal law, but shall not operate to impair rights expressly granted by prior city ordinance for the duration of the authorization. In the event of any inconsistency between the terms and provisions of this chapter and an existing franchise or other authorization, the existing franchise or other authorization shall prevail for the duration of the franchise or other authorization. Providers with existing lines and cables have 120 days from the effective date of this chapter to comply with the terms of this chapter, or be in violation thereof.

(c)

The city reserves to itself the right to intervene in any suit, action or proceeding involving any provision of this chapter or any permit or approval issued hereunder. Registrants shall advise city of any such suits.

(Ord. 119-00, 12-18-2000)