HomeMy WebLinkAbout2017-03 Code Amendment - Communications Services•
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ORDINANCE NO. 2017-03
AN ORDINANCE OF THE VILLAGE COUNCIL OF THE VILLAGE OF
NORTH PALM BEACH, FLORIDA, ADOPTING COMPREHENSIVE
REVISIONS TO CHAPTER 29, "TELECOMMUNICATIONS," AND
RENAMING THE CHAPTER "COMMUNICATIONS SERVICES;"
ADOPTING REVISED DEFINITIONS IN CONFORMANCE WITH STATE
AND FEDERAL LAW; DELETING PROVISIONS SUPERSEDED BY
STATE STATUTE; PROVIDING FOR WIRELESS COMMUNICATIONS
FACILITIES AND DESIGN STANDARDS; PROVIDING FOR AN
UPDATED AND REVISED PERMITTING PROCESS; REQUIRING
DESIGN FEATURES FOR CERTAIN ABOVE GROUND FACILITIES;
PROVIDING PARAMETERS FOR THE PLACEMENT OF WIRELESS
COMMUNICATIONS FACILITIES IN RESIDENTIAL RIGHTS -OF -WAY;
PROVIDING A WAIVER PROCESS; REVISING THE INSURANCE AND
BOND REQUIREMENTS; INCREASING THE MAXIMUM FINE
AMOUNT; PROVIDING FOR RESERVATION OF RIGHTS; PROVIDING
FOR REGULATION OF PASS -THROUGH PROVIDERS; PROVIDING
FOR CONFLICTS; PROVIDING FOR SEVERABILITY; AND PROVIDING
FOR AN EFFECTIVE DATE.
WHEREAS, through the adoption of Ordinance No. 2015-21, the Village Council
enacted a six-month moratorium on the acceptance of new applications and on the issuance of
permits and approvals for pending applications for the installation of new wireless
communications facilities within any rights -of -way in the Village and on any property within or
adjoining a residential district; and
WHEREAS, the Village Council directed Village Administration to review the Village's
existing communications facilities registration, permitting and installation ordinances to
determine what revisions were necessary to protect the residents of the Village from any adverse
impacts associated with the installation of wireless communications facilities in residential
rights -of -way and to ensure that that the Village Code provides for a thorough and efficient
application process for applicants; and
WHEREAS, Village Administration has reviewed the Village Code and applicable state
and federal laws and regulations regarding wireless communications facilities and has consulted
with representatives of communications services providers; and
WHEREAS, based on such review and consultation, Village Administration has updated
the Village Code regulations for the placement of communications facilities, including wireless
communications facilities, within Village rights -of -way; and
WHEREAS, the revised regulations recognize issues particular to rights -of -way in
residential zoning districts, new wireless technology that did not exist when the Village's
original codes were adopted, and the unique character of "pass through" providers; and
WHEREAS, the Village Council desires to adopt these updated regulations; and
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WHEREAS, the Village Council determines that the adoption of this Ordinance will
protect the public health, safety and welfare of Village residents.
NOW, THEREFORE, BE IT ORDAINED BY THE VILLAGE COUNCIL OF THE VILLAGE
OF NORTH PALM BEACH, FLORIDA as follows:
Section 1. The foregoing recitals are ratified as true and correct and are incorporated herein.
Section 2. The Village Council hereby amends Chapter 29, "Telecommunications," of the
Village Code of Ordinances to read as follows (additional language is underlined and deleted
language is stricken through):
Chapter 29 — Communications Services
Sec. 29-1. Title.
This chapter shall be known and may be cited as the Village of North
Palm Beach Telecommunications Communications Services Ordinance.
Sec. 29-2. Intent and purpose.
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 and wireless communications facilities in use -of the
public rights -of -way within the village, to adopting and administering reasonable
rules and regulations consistent with State and Federal Law, including F.S. § §
337.401, 362.01, and 337.29(3), as they may be amended, and the village's home -
rule authority in accordance with the provisions of the Communications Act of
1934, including without limitation the Telecommunications Act of 1996 and rules
and orders of the FCC. as each is amended from time to time,, to provide for the
paymen+ f „t;o nd otho co,-,sider.,tio by Y� a K te1eco-mmunications
V t 1 t
service provider to the village for the cost of regulating and maintaining the
pu>,l' htB of . nd f r the-pr ,ilege of ,in g the public rights of way within
the village for constructing and maintaining telecommunications facilities, and to
establishing the reasonable rules and regulations ing the use of the public
rights of way by all telecommuri„ ti_n_ ___ . __ _r-e. ide-fter the ve effectidate
of this chapter necessary to manage the placement and maintenance of
communications facilities and wireless communications facilities in the public,
rights of wav by all communications services providers and pass -through
providers. In regulating its public rights -of -way, the village shall be governed by
and shall comply with all applicable federal, state and local laws and regulations.
It is further the intent of the village that this chapter shall not regulate the
installation of utility poles, including aerial facilities located between utility poles
with associated pole attachments, provided such aerial facilities are not wireless
communications facilities providing wireless communications services.
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Sec. 29-3. Definitions.
For the purpose of this chapter, the following terms, phrases, words and
derivations shall have the meanings given herein. 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 hereunder pursuant to this chapter shall be given the meaning set
forth in the Communications Act of 1934, 47 U.S.C. § 151 et seq., as amended the
Telecommunications Act of 1996 and rules and orders of the FCC. as each may
be amended (collectively the "Communications Act"), and, if not defined therein,
as defined by Florida Statute; and, if not defined therein, be construed to mean the
common and ordinary meaning.
Abandonment shall mean the permanent cessation of all uses of a
communications facility or wireless communications facility: provided that this
term shall not include the cessation of all use of a facility within a physical
structure where the physical structure continues to be used. By way of example,
and not limitation. cessation of all use of a cable within a conduit. where the
conduit continues to be used, shall not be the "abandonment" of a facility in a
Public right-of-way.
Communications services shall mean the transmission, conveyance or
routing of voice, data, audio, video. or any other information or signals, including
video services, 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 of hereafter devised, regardless of the protocol used for such
transmission or conveyance. The term includes such transmission, conveyance,,
or routing in which computer processing applications are used to act on the form,
code, or protocol of the content for purposes of transmission. conveyance, or
routing without regard to whether such service is referred to as voice-over
internet protocol services or is classified by the Federal Communications
Commission as enhanced or value-added. The term does not include: information
services: the installation or maintenance of wiring or equipment on a customer's
premises: the sale or rental of tangible personal property, the sale of advertising,
including but not limited to, directory advertising: or internet access service,
electronic mail service, electronic bulletin board service, or similar online
computer services.
Communications services provider shall mean any person who. upon
registering with the village. places or maintains a communications facility in the
village's right-of-way.
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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, Doles, antennas, converters, splice boxes,
cabinets, hand holes, manholes, vaults, drains, surface location markers,
appurtenances, and other equipment or pathways placed or maintained or to be
placed or maintained in the public rights-of-wav of the village and used or
capable of being used to transmit, convey, route, receive, distribute, provide or
offer communications services. Communications facilities may be wired,
wireless or both. Communications facilities may be placed or maintained within
village rights -of -way by communications services providers or by pass -through
providers in accordance with the provisions of this chapter. This definition shall
not include utility poles, including aerial facilities located between utility poles
and associated pole attachments, provided such aerial facilities are not wireless
communications facilities providing wireless communications services.
Distributed antenna system or DAS is a network of spatially separated
antenna nodes connected to a common source via a transport medium that
provides wireless service within a geographic area or structure.
FCC shall mean the Federal Communications Commission.
Gross rcccipt; shall mean all cash --edits orroperty cf
fartistran s a dited-ifteem +c statements arising f'^"rvzr , yr-cat ributaNe-4e--recurring
right to amend the definition contained heron as pied by e-law The
defniti h r in shall nit
2001, as set fort apter--00- -0ws-e€-Rer- c a, 2O0O
Information service means the offering or a capability for generating,
acquiring, storing, transforming, processing, retrieving, using or making available
information via communications services, including, but not limited to, electronic
publishing, web -hosting services, and end -user 900 number service. The term
does not include video service.
Law means any local, state or federal legislative, judicial or administrative
order, certificate, decision, statute, constitution, ordinance, resolution, regulation,
rule, tariff, guideline or other requirements, as amended, now in effect or
subsequently enacted or issued including, but not limited to, the Communications
Act of 1934, 47 U.S.C. § 151 et seq. as amended by the Telecommunications Act
of 1996, Pub L. 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.
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Person means 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.
Pass -through provider shall mean any person who, upon registering with
the village, places or maintains a communications facility in the village's rights -
of -way and that does not remit communications service taxes as imposed by the
village pursuant to F.S. Ch. 202.
Place or maintain shall mean to erect, construct. install, maintain. place,
repair, extend. expand, remove, occupy, locate or relocate. A communications
services provider or pass -through 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 partv's
unbundled network elements is not "placing or maintaining" the communications
facilities through which such service is 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.
PSC means the Florida Public Service Commission.
Public rights -of -way means 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,
court, lane, path, alley, way, drive, circle, public easement, public place, or any
other 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.
"Public rights -of -way" shall not include any real or personal village property
except as described above and shall not include village buildings, fixtures, and
other structures or improvements, regardless of whether they are situated in the
public rights -of -way.
Recurring local service revenues means revenues from the monthly
recurring charges for local 3ervi^ ' d' g but not l' ited
(1) Recurring basic area revenues derived from the. provision of flat
rated basic area services;
(2)
(3)
Recurring optional extended ea revenue derived—frorn—t
provision of optional extended area services;
Laeal 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 such services;
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El) P e -fro -s-ale of cal -sue c���
(5)
Except as prow
Other local service revenues from the provision of secondary
features that ^ o „tegrated with the, t or munications network,
a r gistrznt-o, er--a4e1zarnmunications facility or system in the public rights of
way-shall-eenstituteRecurring L
• Toll charges for the transmission of voice, data, yid o��er-in
telephone -service -as -defined in F.S. 203 0 2(7) or other c� required bythe
".,., ..���-�,�� VLllVl .��LL�s r�u
Federal Communications Commiasion ectly passed through tee d-usef
▪ Interstate service;
�: Mary' sery i�cs such as directoryL-are' rt@ tising, direr ,
detailedbilling-serv� es, sides V t o plans, ba
non recurring charges for installation, move, changes or termination services;
• Cellular mobile telephone or tel-eeommunications services; or specialized
mobile telephone or telecommuniaatiens-serif ; r ^b l d' r
pagers or paging service, or related ancillary services;
1
• Teletypewriter mr t h nge se_ • cl n a in F.S. § 203.012(6); or
Lear -nessage rated (me e,-r-tim,, basis,) and mines of use
charges in excess of the minimum 1 ^t rate
g r similar services.
Public telephone charges collected on site;
This definition shall not-be-applieab}e-as-of-Octob1, 2001 u„h other-datees
cU is amended
effective October 1, 2001, as set forth in Chapter 00 260, Laws of Florida, 2000.
Registrant or facility owner shall mean a teleeomi unications company
communications services provider or pass-throuah provider or other person which
seeks to use or occupy the public rights -of -way that has registered with the village
in accordance with the provisions of this chapter.
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Registration and register shall mean the process described in section 29-4
whereby a telecommunications scr;ice communications services or pass -through
provider provides certain information to the village.
in F.-S. § 361.02(12),
amended,-Theter c3mrnunications company" does not include an open
video system or a cable service provider.
Tciccommunications faciliti�cllitieseanc any facility,
equipment or property, including, but not limited to, cables, c d,,itG, converters,
splice boxes, cabinets, handhole:,, manholes, vaults, equipment, drains, sur€aee
location marker,, appurtenances,, + d + b , + d er „te„de€ to be
used,the- c rib?o ::way of the village to tra ,
distribute, provide or offer telecommuni��sJ Octet 1 2nn,
the term "communications" shall be substituted for "teleco=unications",
provided that F.S. § 337.101, is amended effective October 1, 2001, as set forth in
rat, + nn 260 r aws l,f Florid 2nnn
Telecommunications service shall include, without limitation, the
transmifi >
t V .,ls t nt r b r
t,een.,M mo n nts, by and through
eleetrenieTr-adio, at cable 3ptical irewave, th d thod
u
now in existenc_ h t, de a dl f the rrr otece e,a f 'ch
�
trap m: -si €. "Telecommunications service," as contemplated
herein, does not include the „rovioion of rvicc via an
cable service which shall r- � + th t• +l+n l "s of
'��OITGCCGT'ee111 �lll -V 1r1W�1 1 1J
October 1, 2001, the term "communications" :,hall be substituted for
" omi unications", provided that F.S. § 33 ,401, is amended effective
Tciccommunications service provide: Nall refer to any person making
avai1 bl id; tol e: omc zim W t d fi•a h o through
the use of a telecommunications facility in the public rights of way. As of
October 1, 2001, the term "communications" shall be substituted for
orrmunicatiors," provided that F.S. § 337.401, is amended effective
Utility vole means a structure owned and/or operated by a public utility, or
public utility district, electric membership corporation, or rural electric,
cooperative that is designed to, or used for the purpose of, carrying lines, cables,
or wires for telecommunications. cable services or electricity. A utility pole is not
transformed into a communications facility by the collocation or attachment of a
communications facility.
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Video service means the transmission of video, audio, or other
programming service to a purchaser. and the purchaser interaction, if any,
required for the selection or use of a programming service, regardless of whether
the programming is transmitted over facilities owned or operated by the video
service provider or over facilities owned or operated by another dealer of
communications services. The term includes point-to-point and point-to-
multipoint distribution services through which programming is transmitted or
broadcast by microwave or other equipment directly to the purchaser's premises,
but does not include direct -to -home satellite service. The term includes basic,
extended, premium, pay -per -view, digital video. two-way cable, and music services.
Wireless communications facility means equipment or facilities located
within a village right-of-way, used to provide wireless communications service
and may include, but is not limited to, antennas, towers, equipment enclosures.
cabling, antenna brackets, and other such equipment. Wireless communications
facilities within a right-of-way may be comprised of distributed antenna systems.
Placing a wireless communications facility on an existing tower or building does
not cause the existing tower or building to become a wireless communications
facility. Wireless communications facilities may be placed or maintained within
village rights -of -way by communications services providers or by pass -through
providers in accordance with the provisions of this article.
Village means the Village of North Palm Beach, an incorporated
municipality of the State of Florida, in its present form or in any later reorganized,
consolidated, or enlarged form.
Sec. 29-4. Registration.
(a) Each telecommunications communications services provider or
pass -through provider that desires to place, erect, construct, install, locate, or
maintain, repair, extend, expand, remove, or relocate any ommunie-ations
facilities a communications facility or wireless communications facility in, under,
over or across any public right-of-way in the village shall b3 considered to be
using or occupying the rights of way and shall be required to register with the
village in accordance with the terms of this chapter.
(b) Any teleeommunications service communications services
provider or pass -through provider desiring to use the place or maintain a
communications facility or wireless communications facility in public rights -of -way
shall file a registration with the village which shall include the following information:
(1) Identity of the applicant registrant and name, address and
telephone number of applicant's registrant's primary contact person
in connection with the registration;
(2) A statement of whether the applicant is or expects to be a lac -al
submitted prior to October 1, 2001;
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(3 2) Evidence of the insurance coverage required under this chapter and
acknowledgment that registrant has received and reviewed a copy
of this chapter;
(4 2) A copy of Federal and/or state certification authorizing the applicant
registrant to provide telee3 Zmunications communications services.
If the registrant 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 by other means.
(5)
A security fund in accordance with this chapter.
(c) The village will review the information submitted by the applicant.
Such review will be by the village manager or his or her designee. If the applicant
submits information in accordance with subsection (b) of this section, 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 (b) of this
section, the village shall notify the applicant of the non -effectiveness of
registration, and reasons for the non -effectiveness, in writing. The village shall so
reply to an applicant within thirty (30) days after receipt of registration
information from the applicant. A registrant may cancel a registration upon
written notice to the village noticing that it will no longer maintain any
communications facilities or wireless communications facilities in the public
rights -of -way and will no longer need to pull permits to perform work in public
right-of-way. Within thirty (30) days of any change in the information required to
be submitted pursuant to subsection (b) of this section, registrant shall provide
updated information to the village.
(d) A registration shall not convey title, equitable or legal, in the
public right-of-way. Registrants may only occupy public rights -of -way for
telecommunications facilities. Registration does not excuse a fieleeommunications
communications services provider or pass -through 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 or pass -through provider from complying with
all applicable village laws, regulations and ordinances, including this chapter.
(e) Each applicationregistrationf- shall be accompanied
by re fu .,gable apse e -th ount o d
($800.09). The fee amount shall be-equal-t-e-the-villagels-cests-and-expenses
incurred in connection with approving the registration or transfer. If the
application fee is insufficient to cover all costs
the applicant shall
r: imburse
council. This application fee may be credited against-fz.w due under section 29 5.
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(f e) Registration with the village shall be nonexclusive. Registration
does not establish any priority for the use of the public right-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
village ordinances, as well as any state or federal laws that may be enacted during
the term of the registration.
Scc. 29 5. F es and paymentk
(a) In consideration for the right:,, privileges and r r grad
hereunder, a registrant hereunec . shall pay to the village armually a cure equal to
on@--(4) jer of-groSS--reeeipts of the-registaant en r-eeu n n-g oocal service
within such one (1) percent maximum fee-er-censideran-are-alltax-esrlicense-s3
fees, in kind contributions accepted pursuant --to F.S. § 337.401(5), and other
impositions except ad valorgr + a „ts f ssments f r vial
benefits, such as sidewalks, street pavings, and a mi -ar improvements, and
b l a e,l by the „llage , ro str.,nt. In the _______ __- � � � „or� a 1L�1Jb14.L ., event that
applicable law currently permits or is amended to permit the village to collect a
fee higher than one (1) perce rper is the —village -to ealeulate the ee-an
specified herein the registrant shall pay, following written notice
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effectivea * h law. Ir the e:ont applicable law is amended to require the
village+ ollect a f e lower tl a,, the , ert st t„te y lim t-th€ village shall take
all necessary stepsto _onfo m the _e-gu -___ents hereof t� ppllcable kw ;. All of
_1^-ro u,�--
the aforestated payments shall be made to the village quarterly, with such
dar quarter,
Paymentse ,e after the-d„e date stated herein shall be subject to interest in
accordance with the interest rate identified in F.S. § 55.03, or its successors.
(b) A-registra t, that makes physical use of the public rights of way,
of iding telecomzmurications services as defined. in F.S.
203.012(3 d'+' tho „bl rrhts- f . hall
pay -to -the -village annually no less than five hundred dollars ($500.00) per ling
mile of any cable, fiber optic, or other pathway that makes physical use of the
public rights of way. The village may addition or other
r �
in excess of five hundred dollars ($500 nm per linear mile shall be applied in a
nondiscriminatory manner and shall not eed +he of:
(1) Costs directly related to the inconvenience or impairment solely
caused by the disturbance of the public rights of way;
The rea p-ee + f th l + fy-activity-oofthe-village nd
The proportionate share of cost of land for such street, alley or
other public way attributable to utilization of the puh is rights of
way by a telecommunications service provider.
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TL th sideration ; posed pursuant to -this cubscation shall not apply
in any manner to any telecommunications company which provides
teleoommanieations services -as -defined in F.S. § 203.012(3), for any services
provided by such telecommunications company.
(c) Notwithstanding anything herein to the contrary, the village shall at
all times hereby require the maximum compensation allowed under applicable law.
Ed) Except to the extent prohibited by applicable kw.•:
(1) The fee payments to be made purs-uant to this Section shall not be
deemed to be in the nature of a tax;
a a t + ,a li taxes of a
Such fee payments shall be in a�e-��«�� �� w
general applicability;
A registrant shall r: t h r, "lain. f r wH ' deduction ._
other credit of all or any par` f th + f ^i,a f e r nts_
a
+ y.� f i l^ + e tt f o ch^ n of
general applicability which registrant is required to pay to the
village, except as required by law; and
Thy_ cified herein isthe n
consideration f=- u. of the public
rights of way, including all public easements, for the purpose of
installing and maintaining a telecommunications facility.
(3) The nt^ o iced under this section shall not apply as of
October 1, 2001; er such other date -as pro deli, provided that
1 Fl a St + + vended-etc-tine-9e eber� B01, as set forth in
(2)
11)
(1)
Chapter 00 260, Laws of Florida, 2000.
(a) The village may, at its option, upon sixty (60) days notice to the
registrant, but in no event more often than once per year, examine the records and
calculation of fee payments, -The -examination of such books, accounts, records or
ether 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 ff^ f th 0• V+ t l" ated ,.ith; +heu cot<
pursuant
registrant shall pay all reasonable costs, fees and expenses of the audit. This
�+ n i ^ h other date ^
paragraph shall not apply for periods after-l��".� V �s
provided by law, provided that F.S. § 337.101, is am- e ^+�< e Octeber 1, 2001,
as set forth in Chapter 00 260, r o-f Florida 000.
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(b) Upon reasonable request, a registrant :hall' provide the following
cdocuments-to the cg as r cei . ed-or filed:
(1) Any pleadings, petitions, notices, and documents, regarding any
1 . ns oth; c.,pte . hio
s 1 r d' b 1rb �"�' rr f h
11 + tent •ts nter t Winder_
rcccsorrcm�6@�f6rtli@-vrrragc-co�rozcc-czcs-irrccre�ci—ullcz� i
this chapter.
(2) Any request for protection under bankrupteyla °s, or any judgment
related to a declaration of bankruptcy.
(3)
Nag in this, section shall affect the remedies the registrant has
available under applicable law.
(c) In addition, the village may, at its option, and upon reasonable
It 11 �,11 LJ V n 7
L7 l 1 1
the safety of its residents.
(d) The •.ego shall keep a document, hooks and records of
th + + fid +ia t„ tl,e extent reg,,iru d nder Florida., Stt„tems
Sec.29-75. Underground installation; relocation damage to village
facilities: emergencies: abandonment.
(a) Underzround installation
(1) To the extent required by applicable village rules and regulations
and not inconsistent with applicable PSC rules and regulations and
state and federal law, a registrant shall endeavor, when practicable,
to install its communications facilities underground. This
provision shall not apply to wireless communications facilities.
fQ To extent not inconsistent with PSC regulations and state and,
federal law, the village may require the use of trenchless
technology (i.e., directional bore method) for the installation of
underground facilities in the public rights -of -way as well as joint
trenching and/or the co -location of facilities in existing conduit. In,
making such 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 village may issue such additional rules and
regulations concerning the placement and maintenance of a
communications facility in the public rights -of -way. as may be
consistent with applicable law and not inconsistent with this chapter.,
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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 F.S. Ch.
556, as it may be amended.
(b) t placonstructs communication;,
facilities underground shall maintainate- partieipation in the-regienal
notification center for ;-absurf ee i„stallations
(c) Any telecommunications facilities heretofore or hereafter placed
the villagete
be unreasonably interfering in ar y ith the een . enient .,af o- eentinu. us
use or the maintenance, improvement, extension or expansion of such public
rights of way than, upon written notice te
7the„ registrant „r itG agentThe rremoved
or rel 4 d ith Lt i (30) days of sue3' notice by a registrant t ion ow
expense in accordance with F.S. s-3-3-^-4og. The village i e>te d the
time within whichwhic-h-a-regist-unt Nall remove or relocate a telecommunications
facility, for good cause shown.
(4 b) Damage to village facilities. The registrant shall not in any way
displace, damage, or destroy any village 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 village. The registrant shall be liable to the village
for the costs of any repairs made necessary by any such displacement, damage or
destruction, of facilities belonging to the village, and the registrant shall pay such
costs upon demand. In the case of an emergency, the village may commence
repairs without any prior notice to the registrant. The term emergency shall mean
a condition that may affect the public's health, safety or welfare. In the event of an
emergency the village may cause the repairs to be made at the facility -owner's
expense, utilizing village employees, agents or contractors, charge any and all
costs, and require reimbursement within thirty (30) days after the submission of
the bill by the village to the registrant. In all other non -emergency circumstances,
the registrant shall be given prior written notice. If such repairs are not performed
in a reasonable and satisfactory manner within the thirty (30) calendar days after
receiving notice, the village may, cause the repairs to be made at the facility -
owner's expense, utilizing village employees, agents or contractors, charge any
and all costs, and require reimbursement within thirty (30) days after the
submission of the bill by the village to the registrant.
(o) Subject to F.S. § 337.'103, whenever an order of the village
fectuites--stieh--refnevaler-ehange-in-the-leeation-of-any-teleeommunications
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 tle-natice, the village-may-pfeeeed-to eause-ommunications
fa lit�- oved. Thr th b d o tprovided - ns_ Q §
y e , ,.off r J
337.403(1)(a) (c), ohall bo paid out of any money available therefor, and such
expense chall be charged against the owner of the telecommunications facility and
levied, collected and paid to the village.
Page 13 of 32
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Ef) Sn jeet-to F.S. § 337.101, whenever it shall be necessary for the
village to remove or relocate any telecommunications facility, the owncr of the
communications facility, or the owner'schief agent, :,hall be given written
notice of such removal or relocationdel l ' lrl"' the me„t of the
sects -thereof, and shall be given reasonable time, which shall not be less than
twenty (20) nor more than thirty (30` day i whi^hto file an app.. 1 with the
village council to contest the reasonableness of the order. Upon receipt of a
written appeal, the village council shall plat tl, matter 0 the ^ u;^Lc;llns wgenda
f .l +' ith f r+ fie (i15) rk, rl., Shp„ ld_tho the
ovl:1er'.`'i representative net the dote ,v r,atie of'the east to the owne shall
be final, in accordance with F.S. § 337.101.
(g) To the extentpermitted-b�' � —a-ft of-e a }he village shall
constitute a lien rtt of thend be -enforced b fhi n
+L. +' 4 ll ^ f t c n +he offce of 4he-clerk of the . •it ce rt of tb,e
"�KL L L V l.Ll l V l Lllt
,
county wherein the owner's property is located.
(1h c) Emergencies. The village retains the right and privilege to cut or
move any facilities located within the public rights -of -way of the village, as the
village manager in his/her reasonable discretion may determine to be necessary,
appropriate or useful in response to any imminent public health or safety
emergency. If circumstances permit, the village 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, within twentv-four (24) hours after cutting or
removing a facility.
(( d) Abandonment. Upon abandonment of a facility within the public
rights -of -way of the village, the owner of the facility shall notify the village
within ninety (90) days. Following receipt of such notice, the village may direct
the facility owner to remove all or any portion of the facility if the village
determines that such removal will be in the best interest of the public health,
safety and welfare. In the event that the village does not direct the removal of the
abandoned facility by the owner of the facility and the facility owner chooses not
to remove its facilities, then such owner, by its notice of abandonment to the
village, shall be deemed to consent to the alteration or removal of all or any
portion of the facility by another utility or person.
Sec. 29-86. Use —of —rights -of -way Placement or maintenance of a
communications facility or a wireless communications facility
in public rights -of -way.
(a) A facility owner A registrant agrees at all times to comply with and
abide by all applicable provisions of the federal laws, state statutes and local laws
and ordinances including, but not limited to, applicable zoning regulations not
inconsistent with state and federal laws.
Page 14 of 32
(b) Except in the case of an emergency, which shall incl de it t
1„r;+ +; t ef-se iee Bend ion a€f - ' ervis�- � cli shall
req e- seq-uent-no cation-te-the-village, a registrant shall not place or
maintain a communications facility or wireless communications facility in public
rights -of -way until all applicable permits have been issued by the village. 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 or wireless 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 or wireless 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 permit to cover certain activities, such as
routine maintenance and repair activities, that may otherwise require individual
permits or may impose lesser requirements. The village may also issue a proiect
permit for two (2) or more communications facilities or wireless communications
facilities that form one or multiple clusters to serve a specified service area and
installed in a defined proiect phase. no telecomrnunie
, er, across, or within any
application with and obtaining a p; -rm:-t-frem-the village therefor, parazian-te
applicable permitting requirements of the village, and other appliceble—y 1 ge
Cod n+ , exce+ tt, a d in this chapter. In case of the
repair or maintenance of an xist g acility, the-vil ag ese lesser
ein. Lnl
Code, no permit shall be required far installation and maintenance of service
connections to customers' premiseswherre th ill be „ di t
r'f t�heNµbli�
rights -of -way,
(c) As part of any permit applications with --respect to new or existing
facilities, to place a new or replace an existing communications facility or
wireless communications facility, where applicable, in the public rights -of -way,
the registrant shall provide a proposal for construction of the communications
communications facility or wireless communications facility that sets forth at least
the following:
(1)
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 F.S. § 471.003,
identifying the location of the proposed facility, including a
description of the facilities to be installed, where it is to be located,
and the approximate size of facilities and equipment that will be
located in, on, over, or above the public rights -of -way.
Page 15 of 32
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(2) A description of the manner in which the system facility 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 that identifies all above ground facilities currently
existing in the rights -of -way to which the permit applies, and
extending two hundred (200) feet beyond said areas within village
rights -of -way; 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, if appropriate given
the system proposed, an estimate of the cost of restoration to the
public rights -of -way. Such plan shall include the timetable for
construction for each phase of the project, and the areas of the
village which will be affected.
An inventory of all existing communications facilities or wireless
communications facilities that the registrant or the registrant's
predecessors in interest has previously placed in the rights-of-wav
to which the permit application applies. and extending five
hundred (500) feet beyond said areas within the rights -of -way, as
well as any other areas within the village which the village finds
reasonably necessary to review the permit application.
(3 4) The village 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.
(d) To the extent not otherwise prohibited by state or federal law, the
village shall have the power to prohibit or limit the placement of new or
additional communications facilities or wireless communications facilities within
the public rights -of -way, if there is insufficient space to accommodate all of the
requests to place or maintain such facilities in that area of the public rights -of -
way,. occupy, or „se the rights of way, for the protection of existing facilities in
the public rights -of -way, Of for village plans for public improvements which have
been determined by the village to be in the public interest and have been included
within the village's adopted five-year capital improvement plan, to prevent
interference with the operations of public safety communications services, or to
accommodate traffic safety issues raised by the village, the county, FDOT or any
agency with regulatory authority over any right-of-way in the village.
(e) All communications facilities and wireless communications
facilities shall be installed, located placed and maintained so as not to
unreasonably interfere with the use of the public rights -of -way by the public and
so as not to cause unreasonable interference with the rights and convenience of
property owners who adjoin any of the public rights -of -way by preventing or
Page 16 of 32
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unnecessarily impeding access to private property. The registrant shall be liable
for costs and expenses for the displacement, damage or destruction of any
irrigation system or landscaping within the public rights -of -way, to the extent not
covered by the construction bond. In the event the registrant fails to make the
appropriate repairs, to restore such property to as good a condition as existed prior
to commencement of work, the affected property owner may file a complaint with
the village manager or a designee. In this instance, the registrant shall be given
prior written notice of the necessary repairs by the village manager or the
designee. If such repairs are not performed in a reasonable and satisfactory
manner within the thirty (30) calendar days after receiving notice, the village may
cause the repairs to be made at the facility -owner's expense, utilizing village
employees, agents or contractors, charge any and all costs, and require
reimbursement within thirty (30) days after the submission of the bill by the
village to the registrant. After thirty (30) days, the village may obtain
reimbursement from the security fund. The "prior written notice" described in this
paragraph shall be considered a final written decision for purposes of the appellate
rights outlined in subsection (p) of this section 29-8 below.
(f) The use of trench1e teehnelegy ('• ,a tiora bete method) for
should be employed wherever possible.
(g f) The village may issue such additional rules and regulations
ooneefning-the-plaeement-and-rnaintenanee-ef-a-teleeommunizations facility in the
public rights of way, as may be consistent with applie-ah e law and not
inconsistent with this chapter Above ground communications facilities. including
wireless communications facilities, shall be designed in such a manner so as to.
minimize their visual impact. The use of foliage and vegetation around ground
equipment may be required by the village based on conditions of the specific area
where the ground equipment is to be located.
(g) In addition to all other applicable requirements of this chapter,
wireless communications facilities shall be subject to the following additional
standards:
The size and height of wireless communications facilitv.poles shall
be no greater than the size and height of any other communications
facility poles located in the same or similar tvp_ e rights -of -way
within the village. Additionally. such facilities shall, under no
circumstances, exceed the following maximum height restrictions:
a. On arterial roadways, the top of the uppermost antenna
array, collocated or attached equipment or new wireless
support structure shall not exceed seventv-five (75) feet in
height as measured from grade.
Page 17 of 32
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b. On collector roadways, the top of the uppermost antenna
array, collocated or attached equipment or new wireless
support structure shall not exceed fifty-five (551 feet in
height as measured from grade.
c. On residential two-lane neighborhood roadways, the top of
the uppermost antenna array, collocated or attached,
equipment or new wireless support structure shall not
exceed forty (401 feet in height as measured from grade.
Equipment associated with a wireless communications facility that
may be attached to an existing structure or a new wireless support
structure or located in the public right-of-way at grade, not
including associated antennas, electric meter, telecom demarcation,
box, battery back-up Dower systems. grounding equipment, or
power transfer switch, shall not exceed seventeen (171 cubic feet.
Each antenna that be associated with the installation of a wireless,
communications facilities shall not exceed more than three (31
cubic feet in volume. Each antenna that is exposed and not
concealed within a concealment enclosure, shall fit within an,
imaginary enclosure that does not exceed three (31 cubic feet.
A wireless communications facility shall not have any type of
lighted signal, lights, or illumination unless required by an applicable
federal, state or local rule, regulation or the Federal Aviation,
Administration: provided, however. the village may require the
installation of an LED street light on a new wireless support
structure or an existing structure functioning as a light Dole.
Wireless communications facilities shall be located in arterial,
rights -of -way whenever Possible. Placement of wireless.
communications facilities in rights -of -way other than arterial
rights -of -way shall be justified by an engineering analysis from the
applicant to the satisfaction of the village engineer prior to the
issuance of any permit. Whenever wireless communications facilities
must be placed in a right-of-way with residential uses on one or both
sides, neither Doles, equipment, antennas or other structures shall be
placed directly in front of a residential structure. If a right-of-wav
has residential structures on only one side, the wireless communications
facilities shall be located on the opposite side of the right-of-wav
whenever possible. All wireless communications facilities shall be,
located such that views from residential structures are not significantly
impaired. Newly installed poles for wireless communications
facilities should be located in areas with existing foliage or other
aesthetic features in order to obscure the view of the pole.
Page 18 of 32
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(h) All safety practices required by applicable law or accepted industry
practices and standards shall be used during construction, maintenance, and repair
of the telecommunications communications facilities and wireless
communications facilities.
(i) 7 +h_ _ . __ t th t _ t _- ti- - d, g the to e f the_ri ghts ranted
ll / gi uia��u
herein the village s k��cl11 lawfully elect to alter, or change the grade of, any public
��'
rights of way, upon reasonable-netioe tom^ the srnn_sall m
, tthuke aniiy.
necessary re ' _l g n relocations -of its *alee3mmunications facilities
Removal or relocation at
the direction of the village of a registrant's communications facility or wireless
communications facility in public rights -of -way shall be governed by the
provisions of F.S. ,S.$ 337.403 and 337.404, as they mav be amended.
(j) A facility owner registrant 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 owncr registrant shall, at its own expense,
r + Y N s J + a^ v.ditio a. pN existed r to co ent of
work restore the public right-of-way to at least its original condition before such
work was performed in the right-of-way, subject to the village's satisfaction upon
inspection. A registrant shall guarantee its restoration for a period of twelve (12)
months after the completion of such restoration. If the registrant fails to make
such restoration is not performed in a reasonable and satisfactory manner within
thirty (30) ten (10) calendar days after the completion of construction, or such
other time as mav be required by the village, the village may, after prior written
notice to registrant, cause the repairs to be made at the facility's owner expense,
utilizing village employees, agents or contractors, and charge any and all costs of
restoration against the registrant in accordance with F.S. 337.402, as it mav be
amended, and require reimbursement within thirty (30) days after the submission
of the bill by the village to the registrant. Alternatively, at the sole discretion of
the village, the village may seek to recover the expenses, costs and loss from
restoring the rights -of- wav against the registrant's construction bond pursuant to
section 29-14. A permit from the village 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.
(k) All ongoing installation, construction and maintenance of a
telccommunic *____ 1a_'?it , l_ ted r tho „ bli ghts shall be subject to
the village's perio ,
of -the village Code.
(1) A facility owner shai not place its facilities so as to interfere
Page 19 of 32
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(k) Registrant shall place or maintain a communications facility or
wireless communications facility in public rights-of-wav 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. In
the event of a conflict between the provisions of this chapter and article II of
chapter 24 of this code, the more restrictive provision shall control, provided,.
however, that the registrant shall not be required to pay permit fees as elected by
the village in accordance with to F.S. iS 337.401.
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
subiect public rights -of -way. The village may require a registrant to alter
reasonably its placement or maintenance schedule for permitted work occurring
within thirty (30) days of the registrant's proposed construction so as to minimize
disruptions and disturbance in the public rights -of -way.
(m) A registrant shall not place or maintain its communications facilities or
wireless communications facilities so as to interfere, displace, damage or destroy any
other utilities or 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-wav of the village. All communications facilities
and wireless communications facilities shall be placed and maintained so as not to.
create interference with the operations of public safetv telecommunications services.
(n) The village makes no warranties or representations regarding the
fitness, suitability or availability of public rights-of-wav for the registrant's
communications facilities or wireless 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 article shall affect the village's authority
to add. vacate or abandon public rights -of -way and village makes no warranties or
representations regarding the availability of any added, vacated or abandoned
public rights-of-wav for communications facilities. In the event of the vacation or
abandonment of a public right-of-way, the village shall, in the exercise of good
faith, endeavor to permit the relocation of an existing communications facility or
grant an easement in favor of the registrant to allow continued use of the facility
in its existing location.
The village shall have the right to make such inspections of
facilities placed or maintained in public rights-of-wav as it finds necessary to
ensure compliance with this article. 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-wav 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.
Page 20 of 32
•
(p) 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 utilities and 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
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 ioint 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.
Subiect to applicable law, 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 or wireless 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 reauesting
the same, and the registrant shall have the authority to require such payment in
advance. The registrant shall be given not less than thirty (30) days advance
written notice to arrange for such temporary relocation. 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.
(11 Nothing in this section shall be construed to prohibit or have the
effect of prohibiting the nondiscriminatory and competitively neutral use of
village rights -of -way by communications service providers and pass -through
providers, in violation of state or federal law. The waiver provisions listed in this
subsection apply only where a registrant's application for the placement of a
communications facility or wireless communications facility in a village right-of-way
does not meet the criteria for approval as required by this section. A request for a
waiver shall include all information described in this subsection and any other
reasonable information the village may require and shall be reviewed by the
planning commission. The planning commission may deny the request for a waiver
if it does not comply with the requirements of this section. The following provisions
shall govern the issuance of a waiver from the requirements of this section:
(1) The planning commission shall consider the following factors in
determining whether to grant a waiver for the requirements of this section:
A detailed explanation, with supporting engineering or other
data, as to why a waiver from the requirements of this section
is required in order to allow the registrant/applicant to have
nondiscriminatory and competitively neutral use of village
rights -of -way:
Page 21 of 32
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ii Availability of co -location opportunities;
(iii) Size and height of the proposed facilities:
(iv) Location and separation distances of the proposed facilities.,
Location of the nearest residential units or residentially
zoned properties.,
(vi) Adiacent and nearby topography, tree coverage and foliage;
(vii) Design of the proposed facilities with particular reference,
to elimination of visual impacts of such facilities;
(viii) Any other factors the village determines to be relevant.
(2) In granting any waiver, the village may impose conditions to the
extent the village concludes such conditions are necessary to
minimize any adverse effects of the proposed facility on adjoining
properties or to protect the health, safety and welfare of the village
and the residents.
(m s) A facility owner registrant shall cooperate with the village by
providing timely and complete information requested under this subparagraph.
Upon completion of any installation or construction of new or replacement
facilities in public right-of-way, at no cost to the village, the facility owner
registrant 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 village may find reasonably necessary. Such plans
shall be provided in digitized format showing the two-dimensional location of the
facilities based on the village's geographical database datums, or other format
acceptable to the village manager. All information required by this section shall
be maintained in accordance with F.S. § 202.195.
Sec. 29-7. Suspension or denial of Hermits.
(a) Suspension or denial of permits. Subject to Subsection (p) 29-8
below, the village manager or a designee may suspend or deny an application for
a permit for work in the public rights -of -way for one (1) or more of the following
reasons:
(1) Violation of Failure to satisfy permit conditions, including
conditions set forth in this chapter or other applicable provisions of
the village Code or regulations governing use of the placement or
maintenance of communications facilities or wireless communications
facilities in public rights -of -way, including, without limitation,
failure to take reasonable safety precautions to alert the public of
work at the site or to restore any public rights -of -way; or
Page 22 of 32
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(2) Misrepresentation or fraud by registrant in a registration or a
permit application to the village; or
(3)
Failure to relocate or remove facilities as may be lawfully required
by the village; or
(4) Failure to properly renew or ineffectiveness of registration. Failure
of registrant, its employees, agents or subcontractors, in connection
with the subject per==
a. Piaee barricades or signs around the work area;
b. Take reasonable safety precautions to alert the public of
work at the work site; or
Repair, replace and restore any sidewalk, street, alley,
pavement, water, sewer or other utility line or
property or structure of any nature.
In the event of such failure, the village may perform -the -work
utilizing village employees, ag tG o„traetorG, c arge nd
all -oasts, and-regaire roimbune ent within thirty (3-0) days after
the submission of the bill by the villag
(b) Immediately after the suspension or denial of permit pursuant to
this section, the village shall provide written notice of the violation, which notice
shall contain a description of the violation. A final written decision of the village
manager suspending a permit or denying an application for a registration is
subject to appeal. Upon correction of any violation that gave rise to a suspension
or denial of permit, the suspension or denial shall be lifted.
Sec. 29-8. Anneals.
(a) Final, written determinations of the village manager or designee
suspending or denying a permit, denying an application for registration or denying
an application for renewal of registration are subject to an appeal. An appeal
must be filed with the village within thirty (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 village council shall hear the appeal no later than forty-five
(45) days from the end of the thirty (30) day appeal period, unless waived by the
registrant.
(b) Nothing in this chapter shall affect or limit the remedies the village
has available under applicable law.
Page 23 of 32
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Sec. 29-9. Conditional use of nublic rights -of -way.
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
services, or for providing any other use to existing or potential consumers, a
registrant shall seek such additional and separate authorization from village for
such activities as may be 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 village.
(r b) 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 village, the 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 the
person's ability to provide service or on the registrant's ability to place or
maintain its own telecommunicntiaxe communications facilities or wireless
communications facilities in the public rights -of -way of the village. Any person or
registrant leasing or otherwise using the facilities of a registrant or other entity
authorized to place and maintain facilities in the public rights -of -way, may
provide the village with notice of its use of such facilities, describing the location
of the facilities used and providing the village with an address to which notices
from the village should be sent. In the event the village exercises its lawful
authority to require the removal or relocation of any such facilities, under this
provision, such person or registrant leasing or otherwise using the facilities of a
registrant or other entity authorized to place and maintain facilities in the public
rights -of -way, shall receive notice from the village of such removal or relocation
of such facilities. The failure of the village to provide notice, under this
paragraph, shall not render the village's actions under this paragraph invalid.
Sec. 29-910. Involuntary termination of registration.
(a) The involuntary termination of a 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 federal or state authority suspends, denies, or revokes a
registrant's certification to provide telecommunications service;
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
Page 24 of 32
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• The registrant abandons all of its facilities: or
A pass -through provider fails to comply with the requirements of
section 29-20.
(b) Prior to such termination by the village resulting from a violation
of any of the provisions of this section, the registrant shall be notified by the
village manager with a written notice setting forth all matters pertinent to such
violation, and describing the 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. In the event of an emergency, the village may
take appropriate action in accordance with section 29-7(d) (b) of this chapter. In
the event of a vote by the village council to terminate, the registrant shall, within a
reasonable time following such termination remove or abandon the facilities and
take such steps as are necessary to render every portion of the facilities remaining
within the public right-of-way of the village safe. If the registrant has either
abandoned its facilities or chooses to abandon its facilities, the village 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 immediately prior to removal: or
The village may require that some or all of the facilities be
removed and the public right-of-way restored to its proper
condition immediately prior to removal at the registrant's expense,
utilizing village employees, agents or contractors, and charge any
and all costs, and require reimbursement.
(c) The obligations of the registrant and the bonding company
hereunder shall survive, for a period of twenty-four (24) months from, the
termination of the registration. In the event of a termination of registration, this
provision does not permit the village 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 teleeommunioations agencies and is properly
registered with the village, for such certificated service, under this chapter.
Sec. 294011. Compliance with other laws; police power.
A facility owner shall at all times be subject to and shall comply with all
applicable federal, state and local laws. A facility owner shall at all times be
subject to all lawful exercises of the police power of the village, to the extent not
inconsistent with applicable laws.
Sec. 29-4412. Transfer of control; sale or assignment.
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(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 village within twenty (20) days of the
effective date of the transfer, sale or assignment. In order for the transfer of
registration to be effective, the transferee or assignee must comply with the
registration requirements under section 29-4 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 placement or maintenance of its
communications communications facilities or wireless communications
facilities may be made to any person without notice to the village. Any mortgage,
pledge, lease or other encumbrance of the telecommunications facilities shall be
subject and subordinate to the rights of the village by virtue of this chapter or
other applicable law.
Sec. 294213. Insurance; surety; indemnification.
(a) A facility owner registrant shall at all times maintain the following
liability insurance coverage insuring the registrant and naming the village, its
officers, boards, council, council members, agents and employees as an additional
insured: worker's compensation and employer liability insurance to meet all
requirements of Florida law,anel commercial general liability insurance and
business automobile liability insurance with respect to the construction, operation
placement and maintenance of the teleeommunications communications facilities
and wireless communications facilities. and the conduct of registrant's business in
the village, in the minimum amounts of:
(1) Two One million dollars ($21,000,000.00) combined single limit
commercial general liability. Said coverage shall not exclude
contractual liability, products/completed operations or independent
contractors.
(2) One million dollars ($1,000,000.00) combined single limit
business automobile liability.
(b) All insurance policies shall be with sureties qualified and admitted
to do business in the state; shall be with sureties with a minimum rating of A-V in
Best's Key Rating Guide, Property/Casualty Edition or higher except as provided
in subsection (d) of this section. The village 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) of this section through excess
or umbrella policies of insurance and where such policies are in a form acceptable
to the village's risk manager.
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(c) A registrant shall keep on file with the village certificates of
insurance which certificates shall indicate that the village, its officers, boards,
council, council members, agents and employees are listed as additional insureds.
In the event of a potential claim such that the village claims insurance coverage,
the facility owner shall immediately respond to all reasonable requests by the
village 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 thereof has been given to the village. A registrant shall not cancel any
required insurance policy without submission of proof that the registrant has
obtained alternative insurance satisfactory to the village 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
such self-insurance, to comply with the requirement for the naming of additional
insureds under this section. A registrant that elects to self -insure shall provide to
the village evidence sufficient to demonstrate its financial ability to self -insure the
insurance coverage and limit requirements required under this section, such as
evidence that the registrant is a "private self -insurer" under the Workers
Compensation Act. For purposes of this section, "self -insure" shall also include a
registrant 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 village, 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 village, arising out of the placement or 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 negligence, gross
negligence or willful or wanton acts of the village. Village agrees to notify the
registrant, in writing, within a reasonable time of the village receiving notice, of
any issue it determines may require indemnification. Nothing in this section shall
prohibit the village from participating in the defense of any litigation by its own
counsel and at its own cost if in the village's reasonable belief there exists or may
exist a conflict, potential conflict or appearance of a conflict. Nothing contained
in this provision shall be construed or interpreted:
(1) As denying to either party any remedy or defense available to such
party under the laws of the State of Florida or as a consent by the
village to be sued: and
(2) As a waiver of sovereign immunity beyond the waiver provided in
F.S. § 768.28, as amended.
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Sec. 29-4.-314. Construction bond.
(a) Except in the case of an emergency, which :,hall include without
limitation t _f ___ . ___ _ _nditior aff cti„g 911 service•, prior to performing
any work in the public rights -of -way, a registrant may shall be required to
establish in the village's favor a construction bond in an amount specified in an
engineering permit or other authorization as necessary to ensure the registrant's
faithful performance of the construction in the public rights -of -way, in accordance
with applicable sections of the village Code. The amount of the construction bond
shall be as set forth in the engineering permit, and may be modified in the village
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
restoration within the public rights -of -way of the village. In no event shall the
amount of the construction bond be less than twentv-five percent (25%) of the
cost of the work being permitted.
(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 village as a
result, including the full amount of any compensation, indemnification or cost of
removal or abandonment of any property of the registrant, or the cost of
completing the work, plus a reasonable allowance for attorneys' fees, up to the full
amount of the bond.
(c) Twelve (12) months after completion of the construction and
satisfaction of all obligations in accordance with the bond, the village shall
eliminate the bond. Notwithstanding, the village may require a new bond for any
subsequent work performed in the public right-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 village attorney; and shall provide that:
"This bond may not be canceled, or allowed to lapse, until sixty (60) days after
receipt by the village, 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 village with respect to any construction
bond established pursuant to this section are in addition to all other rights and
remedies the village may have under this chapter, or at law or equity.
(f) The rights reserved to the village under this section are in addition
to all other rights of the village, 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 village may have.
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Sec. 29-4415. Security fund.
At the time of the registrant's application, the registrant shall file with the
village, for village approval, a cash security, a bond, or irrevocable letter of credit,
in the sum of twenty-five thousand dollars ($25,000.00), in a form acceptable to
the village attorney. The reputation and economic stability of the company
presenting a bond or irrevocable letter of credit must be approved by the village
attorney. 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 taxeJ, fines, fees or liens as may be owed to the village. 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 village draw upon the cash security,
bond, or irrevocable letter of credit, the village shall promptly notify the
registrant, and the registrant shall promptly restore the cash security, annual bond,
or irrevocable letter of credit, to 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, subject to section 29-44 16 below, there shall be
recoverable, jointly and severally from the principal and surety of the bond, any
damages or loss suffered by the village as a result, including the full amount of
any compensation, indemnification or cost of removal or abandonment of any
property of the registrant, plus a reasonable allowance for attorneys' fees, 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 village may accept a corporate guarantee of
the registrant or its parent company provided that the village attorney approves
the reputation and economic stability of the company. The village may from time
to time increase the amount of the security fund to reflect the increased risks to
the village and to the public.
Sec. 29-4516. Enforcement remedies.
(a) In addition to any other remedies available at law or equity or
provided in this chapter, the village may apply any one (1) 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 village in an amount of not less than one hundred two hundred
and fifty dollars ($100.00 250.00) per day or part thereof that the
violation continues.
(2) In addition to or instead of any other remedy, the village may seek
legal or equitable relief from any court of competent jurisdiction.
Page 29 of 32
(b) Before imposing a fine pursuant to this section, the village shall
give written notice of the violation and its intention to assess such penalties,
which notice shall contain a description of the alleged violation. Following receipt
of such notice, the registrant shall have thirty (30) days to cure the violation and
the village shall make good faith reasonable efforts to assist in resolving the
violation. If the violation is not cured within that thirty (30) day period, the village
may collect all fines owed, beginning with the first day of the violation, through
any means allowed by law, including drawing against the security fund.
(c) In determining which remedy or remedies are appropriate, the
village 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 village
determines are appropriate to the public interest.
(d) Failure of the village to enforce any requirements of this chapter
shall not constitute a waiver of the village'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 village council wherein 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 the chapter.
The village council 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 village manager or his/her designee shall be responsible for
administration and enforcement of this chapter, and is authorized to give any
notice required by law.
(g) Nothing in this chapter shall affect the remedies the registrant has
available under applicable law.
Sec. 29-4-617. Force majeure.
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, such inability to perform or comply shall be deemed excused and
no penalties or sanctions shall be imposed as a result thereof, provided, however,
that such owner uses all practicable means to expeditiously cure or correct any
such inability to perform or comply. For purposes of this 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.
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Sec. 29-18. Reservation of rights.
(a) The village reserves the right to amend this article as it shall find
necessary in the lawful exercise of its police powers.
(b) This provisions of this chapter shall be applicable to all,
communications facilities and wireless communications facilities placed in the
public rights -of -way on or after the effective date of the ordinance from which the
provisions derive and shall apply to all existing communications facilities and
wireless communications facilities placed in the public rights -of -way prior to the
effective date of the ordinance, to the full extent permitted by state and federal
law, except that any provision of this article regarding size. composition, or
location of physical facilities shall not apply to physical facilities lawfully placed
within any village right-of-way prior to the effective date of the ordinance from
which such provision is derived.
Sec. 29-19. No liability or warranty.
Nothing contained in this article shall be construed to make or hold the
village responsible or liable for any damage to persons or any property
whatsoever, from any cause whatsoever, arising from the use, operation or
condition of the registrant's communications facilities or wireless communications
facilities: or by reason of any inspection or reinspection authorized herein or
failure to inspect or reinspect. Nor shall the issuance of any permit or the approval
or disapproval of any placement or maintenance of the registrant's,
communications facilities or wireless communications facilities as authorized,
herein constitute any representation. guarantee or warranty of any kind by, nor
create any liability upon, the village or any official, agent or employee thereof.
Sec. 29-20. Pass -through provider fees and charges.
(a) Pass -through providers shall pay to the village on an annual basis
an amount equal to five hundred dollars ($500.00) per linear mile or portion
thereof of communications facilities or wireless communications facilities placed
and/or maintained in the village's rights -of -way. For purposes of this section, the
village's rights -of -way do not include rights -of -way that extend in or through the
village but are state, county or another authority's rights -of -way.
(b) The amounts charged pursuant to this section shall be based on the,
linear miles of rights -of -way where communications facilities or wireless
communications facilities are placed, not based on a summation of the lengths of
individual cables. conduits. strands or fibers.
(c) Any annual amount charged shall be reduced for a prorated portion
of any twelve (12) month period during which the pass -through provider remits
taxes imposed by the village pursuant to F.S. Ch. 202.
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(d) Annual payments shall be due and payable on October 1 of each
year. Fees not paid within ten (101 days after the due date shall bear interest at the
rate of one (1) percent per month from the date due until paid. The acceptance of
any payment required hereunder by the village shall not be construed as an
acknowledgement that the amount paid is the correct amount duenor shall such
acceptance of payment be construed as a release of anv claim which the village
may have for additional sums due and payable. All fee payments shall be subject
to audit by the village, and assessment or refund if anv payment is found to be in
error. If such audit results in an assessment by and an additional payment to the
village, such additional payment shall be subject to interest at the rate of one (Il
percent per month until the date payment is made.
(e) If the payments required by this section are not made within ninety
(90) days after the due date, the village manager or designee may withhold the
issuance of any permits to the registrant until the amount past due is paid in full.
Section 3. All ordinances or parts of ordinances and resolutions or parts of resolutions in
conflict herewith are hereby repealed to the extent of such conflict.
Section 4. If any section, paragraph, sentence, clause, phrase or word of this Ordinance is for
any reason held by a court of competent jurisdiction to be unconstitutional, inoperative or void,
such holding shall not affect the remainder of this Ordinance.
Section 5. This Ordinance shall take effect immediately upon adoption.
PLACED ON FIRST READING THIS 12TH DAY OF JANUARY, 2017.
PLACEI G SECOND, FINAL READING AND PASSED T 61ri RAY • ANU ' Y, 2017.
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VILLAGE CLERK
APPROVED AS TO FORM AND
LEGAL SUFFICIENCY:
VILLAGE ATTORNEY
MAC
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