HomeMy Public PortalAbout20/05ORDINANCE NO . 20/5
AN ORDINANCE OF THE TOWN COMMISSION OF THE TOWN OF GULF
STREAM, FLORIDA, AMENDING THE TOWN CODE OF ORDINANCES BY
AMENDING CH APTER 34, ARTICLE VI, ENTITLED "UNDERGROUNDING OF
UTILITIES," SECTIONS 34-103 — 34-109; AND BY REPE ALING AND
REPLACING APPENDIX A - TELECO MMUNICATIONS ORDINANCE OF THE
CODE OF ORDINANCES, KNOWN AS THE "TOWN OF GULF STREAM
TELECOMMUNICATIONS ORDINANCE," WITH A NEW APPENDIX A
ENTITLED "GULF STREA M CO MMUNICATIONS RIGHTS -OF -WAY
ORDINANCE"; PROVIDING INTENT AND PURPOSE, APPLICABILIT Y AND
AUTHORITY TO IMPLEMENT; PROVIDING DEFINITIONS; PR OVIDING FOR
REGISTRATION FOR PLACING OR MAINTAINING CO MMUNICATIONS
FACILITIES IN THE PUBLIC RIGHTS -OF -W AY; PROVIDING REQUIREMENT
OF A PERMIT; PROVIDING APPLICATION REQUIREMENTS AND REVIEW
PROCEDURES; PROVIDING FOR BONDS; PROVIDING FOR
CONSTRUCTION METHODS; PROVIDING DEVELOPMENT AND OBJECTIVE
DESIGN STANDARDS; PROVIDING FOR FEES AND TAXES; PROVIDING
ENFORCEMENT REM EDIES; PROVIDING FOR SEVERABILITY; PROVIDING
FOR CODIFICATION; PROVIDING FOR REPEAL OF ORDINANCES IN
CONFLICTS; PROVIDING AN EFFECTIVE DATE.
WHEREAS, Town of Gulf Stream (" Town" ) staff periodically reviews Town Ordinances and makes
recommendations to the Town Commission to revise its Ordinances; and
WHEREAS, the Town Commission of the Town of Gulf Stream has determined that the following
amendments promote and protect the general health, safety and welfare of the residents of the T own of
Gulf Stream by regulating the siting of communications facilities and utility poles within the public rights -of -
way; and
WHEREAS, this Ordinance accommodates the growing needs and demand for communications
services; and
WHEREAS, this Ordinance seeks to address expressly new communications facilities and
technologies, while also protecting, preserving, and maintaining the public safety and aesthetic characters
of areas where such public rights -of -way exist; and,
WHEREAS, in Fiscal Year 2010-2011, the Town voted to undertake the major project to
underground all above ground utility lines Town -wide, including electric utility transmission and distribution
lines (" undergro unding project"). This included the portion of the Town that lie s along State Road A1A,
locally known as North Ocean Boule vard; and
WHEREA S, in 2012, the Town's residents approved a referendum to create an assessment to
finance the undergrounding project; and
WHEREAS, the undergrounding project has been substantially completed, with the electric utility,
cable televisio n, and communications facilities being relocated underground and removing all utility poles;
and
WHEREAS, the Town is lo cated on a coastal barrier island as defined in F. S.
Section. 161.053(1)(b)3., has a land area of less than five (5) square miles, and has less than 10,000
residents; and
WHEREAS, F.S. §337.401 addresses inter alia, the authority of local governments to regulate the
placement and maintenance of communications facilities in the public rights -of -way; and
WHEREAS, rules and regulations imposed by a local government re lating to communications
service providers that desire to place or maintain communications facilities in its rights -of -way must be
gene rally nondiscriminatory and competitive ly neutral; and
WHEREAS, on October 19, 2001, the Town Commission adopted Ordinance No. 01-3, known as
the Town of Gulf Stream Teleco mmunications Ordinance, codified as Appendix A to the Town Code of
Ordinances; and
WHEREAS, F. S. Chapter 202, known as the " Communications Services Tax Simplification Law,"
addresses the taxes and fees applicable to communications services in Florida; and
WHEREAS, F.S. Chapter 610, adopted in 2007, addresses the provision of cable and video service
in Florida, and provides in F. S. Section 610. 102, that the Florida Department of State is the franchising
authority for a state -issued franchise for the provision of cable or video service and that a municipality or
county may not grant a new franchise for the provision of cable or video service within its jurisdictio n; and
WHEREAS, F.S. §610. 114(2) provides: "Notwithstanding any other provision of law, a municipality
.. . may require the issuance of a permit in accordance with and subject to s. 337. 401 to a certificateholder
that is placing and maintaining facilities in or on a public right-of-way in the municipality or county . In
accordance with s. 337.402, the permit may require the p ermit holder to be responsible, at the permit
holder's expense, for any damage resulting from the issuance of such permit and for restoring the public
right-of-way to its original condition before installation of such facilities. The terms of the permit shall be
consistent with construction permits issued to other providers of communications services placing or
maintaining communications facilities in a public right-of-way ."; and
WHEREAS, F .S. §337.401(3)(g) provides that a local government may not use its authority over
the placement of facilities in its rights -of -way as a basis for asserting or exercising regulatory control ov er
a prov ider of communications services regarding matters within the exclusive jurisdiction of the Florida
Public Service Commission or Federal Communications Commission, including, but not limited to, the
operations, systems, qualifications, s ervices, service quality, service territory, and prices of a provider of
communications services; and
WHEREAS, in 2017, the Florida Legislature enacted and the Governor approved the Advanced
Wireless Infrastructure Deployment Act, F.S . §337 .401(7) ( "Small Cell Statute"); and
WHEREA S, the Small Cell Statute cr eates new requirements and allowances for local
governments relating to the installation of utility poles in the public rights -of -way to collocate small wireless
facilities, and the placement and maintenance of small wireless facilities and micro wireless facilities in the
public rights -of -way; and
WHEREAS, the Small Cell Statute provides that a local government may adopt by ordinance
o bjective design standards requiring a small wireless facility to meet reasonable location context, color,
stealth, and concealment requirements, objective design standards requiring a new utility pole intended to
support the collocation of small wireless facilities that replace an existing facility to be of substantially similar
design, material, and color, and reasonable spacing requirements concerning the location of ground -
mounted equipment; and
WHEREA S, the Small Cell Statute also provides that a local government may adopt by ordinance
provisions for insurance coverage, indemnification, performance bonds, security funds, force majeure,
abandonment, municipal liability, and municipal warranties provided such provisions are reasonabl e and
nondiscriminato ry; and
WHEREAS, in 2019, the Florida Legislature enacted and the Governo r approved CS/CS/CS/SB
1000 ("SB 1000"), amending F. S. §337.401, including portions of the Small Cell Statute; and
WHEREAS, it is the Town Commission's inte nt to exercise its authority over the placement and
maintenance of communications facilities in its rights -of -way to the full extent consistent with applicable
state and federal law; and
WHEREAS, it is the Town Commission's further intent to treat each such communications services
provider in a reasonable, nondiscriminatory, and competitive ly neutral manner in exercising such authority
to the extent consistent with applicable law; and
WHEREAS, the Town's rights -of -way are essential for the travel of persons and the transpo rt of
goods throughout the Town and are a unique and physically limited resource requiring proper management
by the Town in order to ensure public safety, maximize efficiency, minimize costs to Town taxpayers for the
foregoing uses, reaso nably balance the potential inconvenience to and negative effects upon the public
from the placement and maintenance of co mmunications facilities in the rights -of -way against the
substantial benefits that accrue from such placement and mainte nance, and pro mote the public health,
safety and general welfare; and
WHEREAS, a duly noticed public hearing as required by law was held by the Town Commission of
the Town of Gulf Stream, at which public hearing all residents and interested persons were give n an
opportunity to be heard; and
WHEREAS, the Town Clerk submitted notice of the first hearing on this proposed Ordinance to the
Florida Secretary of State, co nsistent with F. S. §337.401(3)(d); and
WHEREAS, the Town Commission has reviewed the regulations set forth in this Ordinance and
has dete rmine d that such regulations are consistent with the Town's plans.
NOW, THEREFORE, BE IT ORDAINED BY THE TOWN COMMISSION OF THE TOWN OF GULF
STREAM , PALM BEACH COUNTY, FLO RIDA:
SECTION 1. The foregoing WHEREAS clauses are ratified and incorporated as the legislative
inte nt of this Ordinance.
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SECTION 2. The Town Commission hereby amends Chapter 34, Article VI, Entitled
"Undergrounding of Utilities" Sections 34-103 — 34-109; of the C ode Of Ordinances, Town Of Gulf Stream,
Florida, as follows':
Chapter 34, ARTICLE VI . — UNDERGROUNDING OF UTILITIES
Sec. 34-103. - Poles, overhead wires and associated structur es unlawful .
Except as otherwise specifically provided in this article, all facilities for providing electrical power,
telecommunications, video, cable television, internet, broadband, and similar services (collectively, as used
herein, " utility facilities") located within the jurisdiction of the town shall be placed undergr ound. Poles,
overhead wires and associated overhead structures shall not be permitted except as specifically provided
in this article.
This section shall apply to all new utility facilities located or desiring to locate within town or state rights -
of -way within the town, as well as in easements or on private properties, as well as to any relocation,
refurbishme nt, reconstruction, or restoration of utiliti es already located within the town, except for temporary
restoration of service under emergency conditions, e.g ., following a hurricane or similar natural event that
damages overhead utility facilities.
Sec. 34-104. - Existing utilities.
Utility Facilities existing within the town as of the date of the adoption of the ordinance from which this
article derives pursuant to franchise, license or agreement with the town shall be r equired to be placed
underground upon expiration of the franchise, license or agr eement with the town, or in the event of
replacement of the utility facilities or a substantial portion of the utility facilities, whichev er occurs sooner.
Above ground utility facilities existing as of the date of the adoption of the ordinance from which this articl e
derives pursuant to franchise, license or agreement with the town or applicable law may be placed
underground before or after expiration of the franchise, license or agreement with the town, subject to
negotiation and agreement with the town and the utility, or, if and to the extent applicable, pursuant to
applicable rules of the Florida Public Service Commission and a public utility's tariffs implementing those
rules.
Sec. 34-105. - Private property owner's responsibility.
All utility facilities for all new construction and for reconstruction shall be required to be placed
underground. In addition, utility facilities for properties subdivided subsequent to the adoption of this article
shall be placed underground, including all distributio n lines, service laterals, and other appurtenances
associated with connecting the property owner's property to the utility's facilities. The property owner is also
required to arrange for the service entrances for all utility services to be constructed so as to accept and be
fully compatible with underground service.
Sec. 34-106. - Permit re quired.
Except as otherwise required by la w or provided in an existing franchise, license or agreement, a
permit shall be required from the town for the placeme nt of any utility within the rights -of -way located within
the town, consistent with applicable state law and Ordinances of the Town, including but not limited to the
Town's Communicatio ns Rights -of -Way Ordinance in Appendix A. The permit shall be nonexclusive and
consistent with federal, state and local law, shall be conditioned upon the payment by the utility to the town
an amount to be determined by subsequent resolution, as may be ame nded from time to time, for use of
the rights -of -way, said fee to be determined in a nondiscriminatory manner, and consistent with applicable
state law and Ordinances of the Town including but not limited to the To wn's Co mmunications Rights -of -
Way Ordinance in Appendix A.
Sec. 34-107. - Time limitation on connection.
Within three months after written notice is given by the to wn or by the applicable utility provider that
service is available from underground utility facilities, all owners of property where service is ava ilable from
such facilities shall connect to the underground facilities.
Sec. 34-108. - Exceptions.
Unless otherwise provided, this article and any resolution adopted pursuant he reto shall not apply to
the fo llowing types of facilities:
(1) Poles and associated overhead structures used exclusively for street lighting or signalization. This
exe mption shall not apply to wiring for stre et lighting which is required to be underground.
(2) Overhead wires, ele ctric supply conductors, cable, fiber, or similar facilities o wned by the property
owner and attached to the exterior surface of the property o wner's building by means of a bracket
or other fixture and extending from one location on the building to another location on the same
building or to an adjacent building without crossing any public street.
Wireless communications facilities, including wireless communications towers, antennas, and
associated equipment in the public rights -of -way.
shall be
governed by the Communicatio ns Rights -of -Way Ordinance, contained in Appendix A. Wireless
communicatio ns facilities, including wireless communications towers, antennas, and associated
equipment on private or othe r property outside of the public rights -of -way shall be governed by
Chapter 66, Zoning, Article VIII, Divisio n 8, entitled Wireless Communications Towers and
(3)
Words stricken through are intended to be deleted; words un derlined are inten ded to be added.
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Ant ennas. Backhaul wireline facilities associated with wireless communications facilities shall be
located underground. Such installati ons shall be appr ov ed and permitted as required by the town .
(4) Town -operated cameras and security equipment.
(5) Pad mounted transf orm ers, junction box es, and service terminals on pedestals above ground
used to distribute electrical, communication and community antenna televisi on or similar or
associated service in the underground systems.
(6) Temporary poles, overhead wires and associated overhead structures located on private property
used solely during the course of construction on that private property .
Temporary poles, wires, electric conductors, telephone or other communications cable, fiber optic
cable and associated overhead facilities to provide temporary or emergency service installed
subject to the provisions of the Town Codeis article .
(7)
Sec. 34-109. - Penalties.
A ny utility violating the terms of this article shall be subject to having its permit revoked, shall remove
any overhead structures, conductor, cable, conduit, wiring or other facilities which are in violation hereof,
and shall be subject to the pe nalties set forth in the Town Code, including but not limit ed to, Town's
Co mmunications Rights -of -Way Ordinance set forth in Appendix A, and Code Enforcement Ordinance,
section 2-66 of the To wn Code1 11 and subject to the jurisdiction of the town's code enf orcement board,
and also subject to other appropriate legal or equitable remedies at law . For purposes of this section, each
pole, wire, transformer or other object placed above ground in violation of this article shall be considered a
separate violation.
Any property owner in violation of this Code shall be subject to the penalties set forth in section 1-15
and shall be subject to the jurisdiction and penalties of the code enforcement board and also subject to
other appropriate legal or equitable remedies at law.
SECTION 3. The Town Commission hereby repeals in its entirety Appendix A to the Code of
Ordinances, entitled "Town of Gulf Stream Telecommunications O rdinance" and a new Appendix A, entitled
"Gulf Stream Communications Rights -of -Way Ordinance," is hereby created to read as follows:
Sec. 1. Short title.
This Ordinance shall be known and may be cited as the "Town Communications Rights -of -Way
Ordinance."
Sec. 2. Intent and purpo se; Applicability; Authority to Implement.
(a) Intent a nd purpose.
It is the intent of the Town to promote the public health, safety and general welfare by providing for
the placement and maintenance of communications facilities in the public rights -of -way within the
Town; adopting and administering reasonable rules and regulations not inconsistent with state and
federal law, including the United States and Florida Constitutions, F. S. §337. 401, as it may be
amended, the Town's ho me -rule authority, and in accordance with the provisions of the Federal
Telecommunications Act of 1996, §6409(a) of the Spectrum Act of 2012, (codified as 47 U. S.C.
§1455(a)), FCC regulations, and other federal and state law; establishing reasonable rules and
regulations necessary to manage the placement and maintenance of communications facilities in
the public rights -of -way by all communications services providers after the effective date of this
section; and minimizing disruption to the public rights -of -way. In regulating its public rights -of -way,
the Town shall be governed by and shall comply with all applicable federal and state laws.
(b) Applicability.
This Ordinance shall apply to all facilities for communications services placed or
maintained in the Town public rights -of -way pursuant to F.S. §337. 401, including but not
limited to any person holding a certificate of franchise authority pursuant to F.S. §610.103,
communicatio ns services providers, pass -through providers, and wireless providers. To
the extent not prohibited by applicable law, this Ordinance shall apply to all applications
pending at the time of adoption of this Ordinance, to place or maintain communications
facilities in the public rights -of -way. Persons seeking to place or maintain communications
facilities on private property or other property to which the To wn, any municipality, Palm
Beach County, Palm Beach County School Board, State of Florida, or federal government
has a fee -simple or leasehold interest in real property, not within and exclusive of the public
rights -of -way, located within the jurisdictional boundaries of the Town shall comply with the
a pplicable provisions of Chapter 66, Zoning, Division 8, Wireless Communications Towers
and Antennas, to the extent it applies, unless such property is addressed expressly in this
Ordinance. This Ordinance is not applicable to communication facilities outside the public
rights -of -way, unless addressed expressly he rein. Pursuant to this Ordinance, a person
may be authoriz ed to place or to maintain small wireless facilities, micro wireless facilities,
utility poles for collocation of small wireless facilities, fiber, coaxial cable, and backhaul
facilities in the Town public rights -of -way. Wireless support structures,
telecommunications towers and other wireless facilities, including but not limited to an
antenna that is not part of a small wireless facility or micro wireless facility, shall not be
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allowed to be placed or maintained in the public rights -of -way, to the extent not inconsistent
with applicable law. This Ordinance applies to the placement of conduit, fiber or cable for
the purpose of providing backhaul or communications service. Consistent with F .S
§337 .401, this Ordinance applies to a cable or video service provider that has been issued
and holds a certificate of franchise authority from the Florida Department of State pursuant
to F.S. §610.103, that plac es or maintains a cable system or wireline facilities in the Town's
public rights -of -way. Rules or regulati ons imposed by the Town relating to providers of
communications services placing or maintaining communications facilities in its roads or
rights -of -way shall be generally applicable to all providers of c ommunications services, to
the e xtent fed eral or Florida law does not require different treatment. Fl orida law requires
that the Town's rules and regulations take into account the distinct engineering,
construction, operation, maintenance, public works, and safety requirements of the
provider's facilities. Accordingly, in the exercise of the Town's authority, as required by
Florida law, this Ordinance provides different regulati ons applicable to various
communications facilities. This Ordinance does not apply to electric utility poles for an
ele ctric distribution system located in the Town public rights -of -way pursuant to a valid
franchise agreement with the Town. Howev er, collocation of small wireless facilities on
such utility poles and any utility poles not for an electric distribution system placed or
maintained by a Town franchised utility in the public rights -of -way will be governed by the
applicable provisions of this Ordinance . Ordinances approving a franchise agreement and
a valid franchise agreement with an electric utility shall r emain in full f orce and effect,
notwithstanding any pro visio n of this Ordinance . This Ordinance shall not apply to
communications facilities owned by the Town or to communications facilities owned by a
person, including an electric cooperative, to the extent such facilities are utilized solely on
an internal, non-commercial basis by said person.
(1) This O rdinance implements inter alia, F.S. §Section 337.401, as amended,
including the Advanced Wireless Infrastructure Deployment Act, F .S . §337 .401(7)
("Small Cell Statute"). By adopting this Ordinance, the Town does n ot waive any
rights including any rights that may exist under federal law, the Florida Constitution
and the U. S. Constitution. In the event F.S. §337.401, is repealed, amended, or
overturned by a court of competent jurisdiction, or preempted by applicable federal
law or regulation, in whole or in part, provisions of this Ordinance may no longer
apply, in which case pending and future applications or requests f or
communications facilities in the public rights -of -way will be governed by applicable
law. In addition, permits issue d pursuant to this Ordinance may be suspended or
revoked, and facilities installed pursuant to permits issued pursuant to this
O rdinance or without permits as authorized by this Ordinance may be required to
be removed at the facility owner's expense, to the extent consistent with applicable
law. It is the Town's intent not to create any vested rights in placing and maintaining
communications facilities in the public rights -of -way as a result of this Ordinance
or any permit issued pursuant to this Ordinance, to the extent not inco nsistent with
applicable law.
(2) To the extent any provision of this Ordinance conflicts with the Code of Ordinances
or Zoning Code of the Town of Gulf Stream, including but not limited to Chapter
66, Zoning, Article VIII Division 8, Wireless Communications Towers and
Antennas, this Ordinance shall control.
(3)
This Ordinance shall be applicable to all communications facilities placed in the
public rights -o f -way on or after the effective date of this Ordinance, all pending
applications for permits subject to this Ordinance, and all existing communicatio ns
facilities placed in the public rights -of -way prior to the effective date of this
Ordinance, to the full extent permitted by state and federal law. A perso n with
e xisting communications facilities in the public rights -of -way shall comply with this
Ordinance by the earlie r of the following: ninety (90) days from the effe ctive date
of this Ordinance or prior to submitting an application for a permit pursuant to this
Ordinance. This prov ision shall not require the removal or alteration of existing
communications facilities placed or maintained in the public rights -of -way pursuant
to a previously issued permit or otherwise lawfully installed prior to the effective
date of this Ordinance unless such facilities are abandoned or otherwise re quired
to be altere d or removed by the Town Manager, or pursuant to enforcement of this
Ordinance or applicable law.
(4) Reservation of rights. The Town reserves the right to amend this Ordinance as it
shall find necessary in the lawful exercise of its police powers.
(c) Authority to implement Ordinance. The Town Manage r is authorized to adopt, to modify,
and to repeal rules and regulations, no t inconsistent with this O rdinance, to ca rry out the
intent and purposes of this Ordinance.
Sec. 3. Definitio ns. For the purposes of this Ordinance, the following terms, phrases, words and
derivations shall have the meanings given. Where not inconsistent with the context, words used in the
present tense include the future tense, wo rds 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
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permissive . Words not otherwise defined in this Ordinance or in any permit that may be granted pursuant
to this Ordinance shall be given the meaning set forth in the Communications Act of 1934, 47 U.S.C. §151
et seq., as amended or §6409(a) of the Spectrum Act of 2012, 47 U .S .C. §1455(a) (collectively the
"Communications Act "), and if not defined in the Communications Act, as defined by Florida Statutes; and,
if not de fined by Florida Statutes, as defined in the code, and if not d efined in the c ode, shall be construed
to mean the common and ordinary meaning.
ABANDON MENT OR ABANDONED . The cessation of all uses of a communications facility for a period
of one hundred eighty (180) or more consecutive days provided this term shall not include the cessation of
all use of a communications facility within a physical structure where the physical structure continues to be
used for some purpose or use access ory to the communications facility . By way of example, cessation of
all use of a cable within a conduit, where the conduit c ontinues to be used for some purpose or use
accessory to the communications facility, shall not be Abandonment of a communications facility . A wireless
infrastructure provider's failure to have a wireless s ervice provider provide service through a small wireless
facility collocated on a utility pole within nine (9) months after the application is approved in accordance
with F.S. §337.401(7)(j) shall constitute abandonment. The terms Abandonment or Abandoned are not
intended to include a dropped line from a potential or existing customer in the event the communications
services provider reasonably anticipates future use of the dropped line .
ABUT. When used in conjunction with a lot or parcel of land or public right-of-way, means a lot or parcel
of land or public right-of-way that shares all or a part of a common lot line or boundary line with another lot
or parcel of land or public right-of-way.
ADJACENT PROPERTIES OR PROPERTIE S A DJACENT. (i) Th ose lots or parcels of land that abut
ano ther lot or parcel of land or public right-o f-way that is contiguous to a communications facility site or
proposed site and (ii) the lots or parcels of land or public right-of-way that would be contiguous to lots or
parcels or public rights -of -way but for an intervening lo cal or collector roadway.
ANTENN A. Communications equipment that transmits or receives electromagnetic radio frequency signals
used in providing wireless services.
APPLICABLE CODES. Uniform building, fire, electrical, plumbing, or mechanical codes adopted by a
re cognized national code organization or local amendments to those codes enacted solely to address
threats of destructio n of property or injury to persons, including, but not limite d expressly to the Florida
Building Code, National Electrical Code, National Electrical Safety Code, 2017 Edition of the Florida
Department of Transportation Utility Accommodation Manual ("2017 FDOT UAM"), the "Safety Rules for
the Installation and Mainte nance of Electrical Supply and Communication Lines" established by the
Department of Commerce, Bureau of Standards of the United States, as may be amended, and Town codes
or ordinances, and standards and regulations, to the extent not inconsistent with the 2017 FDOT UAM and
Florida law.
A PPLICAN T. A registrant who submits an application.
APPLICATION . A request submitted by an applicant to the Town for a permit to collocate small wireless
facilities or to place a new utility pole used to support a small wireless facility in the public rights -o f -way.
AS -BUILT PLANS. A set of final and complete drawings in a format as spe cified by the Town submitted
upon completio n of a project, signed and sealed by professional surveyor or mapper as defined in Section
472.005, F. S., that reflects all changes made during the construction pro cess, and shows the e xact
dimensions, geometry and location of all elements of the work completed under the permit.
AUTH ORITY. The Town to the extent it has jurisdiction and control of the rights -of -way of any public road.
The term does not include the Department of Transportation rights -of -way unde r the jurisdiction and control
of the department, which are excluded from F. S. §337.401(7).
AUTHORITY or TOWN UTILITY POLE. A utility pole owned by the Town in the public right-of-way. The
term doe s not include a utility pole owned by a municipal electric utility, a utility pole used to support
municipally owned or o perated electric distribution facilities, or a utility po le lo cated in the right-of-way within:
(a) A retirement community that:
(i) Is deed restricted as housing for older persons as defined in F.S. §760.29(4)(b).
(ii) Has more than 5,000 residents; and
(iii) Has underground utilities for ele ctric transmission or distribution.
(b) A municipality that:
(i) Is located on a coastal barrier island as defined in F. S. §161. 053(1)(b)3. ;
(ii) Has a land area of less than 5 square miles;
(iii) Has less than 10,000 residents; and
(iv) Has, before July 1, 2017, received referendum approval to issue debt to finance
municipal -wide undergrounding of its utilities for electric transmission or distribution.
BACKHAUL FACILITIES. A physical transmission path, all or part of which is within the public rights -of -
way controlled by the Town or any government entity, used for the transport of communications data by
wire or fiber from a wireless facility to a network. A Backhaul Facility may also consist of an antenna,
including a microwave antenna, installed in the public rights -of -way pursuant to a permit, used for the
transport of communications data wirelessly fro m a wireless facility to a network.
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BELOW - GRADE COMMUNICATIONS FACILITY . Communications facilities, including manholes or
access points, that are entirely contained below grade within the public rights -of -way.
CLEAR ZONE. Consistent with the latest edition of the Florida Department of Transportation Index, the
roadside border area, starting at the edge of the traveled way, available for safe use by errant vehicles .
This area may consist of a shoulder, recoverable slope, non -recoverable slope, clear runout area, or
combination thereof. The width of the clear zone is dependent upon the traffic volumes and speeds, and
on the roadside geometry.
COLLOCATION OR COLLOCATE. To install, mount, maintain, modify, operate, or replace one or more
wireless facilities on, under, within, or adjacent to a wireless support structure or utility pole. The term does
not include the installation of a new utility pole or wireless support structure in the public rights -of -way .
COMMUNICATION S FACILITY or FACILITY or SYSTEM. Any permanent or temporary plant, equipment
and property, including but not limited to cables, wires, conduits, ducts, fiber optics, poles, antennae,
converters, splice boxes, cabinets, hand holes, manholes, vaults, drains, surface location markers,
appurte nances, wireless facilities, wireless support structure, wir eline backhaul facilities, small wireless
facilities, micro wireless facility, and other equipment or pathway placed or maintained or to be placed or
maintained in the public rights -of -way of the Town and used or capabl e of being used to transmit, convey,
route, receive, distribute, provide or offer communications services. A utility pole int ended for collocation
of a small wireless facility shall be considered a facility for purposes of this Ordinance .
COMMUN ICATION S SERVICES. The transmission, conveyance or routing of voice, data, audio, video, or
any other information or signals to a point, or between or among points, by or through any electronic, radio,
satellite, cable, optical, microwave, or other medium or method now in existence or hereafter devised,
including wireless services, regardless of the protocol used for such transmission or conveyance, and shall
also include cable service and video service as defined in F.S. §§610.103(1) and (11).
COMMUNICATION S SERVICES PROVIDER. Any person making available or providing communications
services through the placement or maintenance of a communications facility in public rights -of -way, or a
wireless infrastructure provide r.
COMMUN ICA TION S SERVICES TAX. The local communications services tax authorized to be levied and
colle cted by counties and municipalities upon communication service providers for communications
services, pursuant to Section 202.19, F.S. as amended.
CON SOLIDA TED PERMIT APP LICATION . A single pe rmit application that would otherwise require
individual permit applications for the collocation of between two (2) and thirty (30) small wirele ss facilities
to existing structures within the public rights -of -way.
EX CAVATE or EXCAVATION. Consistent with the definition contained in F.S. §556.102(6), as it may be
amended, any manmade cut, cavity, trench, or depression in the earth's surface, formed by removal of
earth, intended to change the grade or level of land, or intended to penetrate or disturb the surface of the
earth, including land beneath the waters of the state, as defined in F. S. §373. 019(22), and the term includes
pipe bursting and directional drilling or boring from one point to another point beneath the surface of the
earth, or othe r trenchless technologies.
EXTENSION OF EXISTIN G FACILITIES or EXTENSION . Those extensio ns from the public rights -of -way
into a customer's private property for purposes of placing a service drop or those ex tensions from the public
rights -of -way into a utility easement to provide service to a discreet identifiable customer or group of
customers. An exte nsion of fiber or cable to serve a prope rty with multiple customers, for example, a
commercial building with multiple tenants, shall not constitute an extension of existing facilities unless all
tenants are served by the owne r of the facilities under one agreement.
FCC. The Fe deral Communications Commissio n.
FLORIDA BUILDING CODE. The Florida Building Code pro mulgated under F.S. Chapter 553 and includes
the applicable amendments thereto as both may be amended from time to time.
FLORIDA GREENBOOK. The latest edition of the Florida Depa rtment of Transportation Manual of Uniform
Minimum Standards for Design, Construction and Mainte nance of Streets and Highways.
FORCE MAJEURE EVEN T. A cause or event not within a person's control that shall include, without
limitation, acts of God, floo ds, earthquakes, landslides, hurricanes, fires and o ther natural disasters, acts
of public enemies, riots or civil disturbances, sabotage, strikes and restraints impo sed by order of a
gov ernmental agency or court. Causes or ev ents within a person's control, and thus not constituting a force
majeure event fo r purpo ses of this Ordinance, shall include, without limitation, the financial inability to
perfo rm or comply, economic hardship, and misfeasance, malfeasance or nonfeasance by any of person's
directors, officers, employees, contractors or agents.
GRAFFITI. Any inscriptions, word, figure, painting or other defacement that is written, marked, etched,
scratched, sprayed, drawn, painted or engraved on or otherwise affixed to any communications facility
whether or not authorized by the registrant of the communications facility. A wrap shall not be considered
graffiti.
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HISTORIC P ROPERTY. Any prehistoric or historic district, site, building, structure, or object or other real
or personal property, of historical, architectural or archaeological value to preserve the character and scale
of the Town, as contained in Chapter 70 of the Code of Ordinances or as designated historic and/or scenic
under State law . These properties or r esources may include, but are not limited to, roadways, sidewalks,
monuments, memorials, Indian habitations, ceremonial sites, abandoned settlements, engineering works,
treasure tro ves, artifacts, or other objects with intrinsic hist orical or archaeological value, or any part thereof,
relating to the history, government, character, scale, or culture of the Town.
H OMEOWNER S' ASSOCIATION. An incorporated association whose members consist of owners of
single-family homes or condominium units that manage or control property own ed by the association .
IN PUBLIC RIGHTS -OF -WAY or IN THE PUBLIC RIGHTS -OF -WAY. In, on, over, under or across the
public rights -of -way.
LICENSED ENGINEER. A Florida registered professional engineer, or p erson who is exempt from such
registration requirements as provided in F.S. §471 .003 .
LOT. A designated parcel of land established by plat, subdivision, or as otherwise permitted by law, to be
used, developed, or built upon as a unit.
MICRO WIRELESS FACILITY. A small wireless facility having dimensi ons no larger than 24 inches in
length, 15 inches in width, and 12 inches in height and an exterior antenna, if any, no longer than 11 inches .
O RDINAN CE. This Ordinance, codified as Appendix A to the Town of Gulf Stream Code or Ordinanc es .
PARCEL. Any piece of real property that has a single parcel identification number assigned to it by the
Palm Be ach Co unty Property Appraiser.
PASS -TH RO UGH PROVIDER. Any person, as defined in F. S. §337.401(6)(a)1 ., who places or maintains
a communications facility in the public rights -of -way and who does not remit taxes imposed by the Town
pursuant to F. S. Chapter 202, as amended. A pass -through provider can also be a wireless infrastructure
provider as defined herein, and/or an owner of a communications facility pursuant to this Ordinance .
PERMIT. The public right-of-way permit that must be obtained before a person may construct in the public
right-of-way and shall include, but not be limited to, right-of-way engineering and construction permits
issued by the Town.
PER SON. Shall include any individual, children, firm, association, joint venture, partnership, estate, trust,
business trust, syndicate, fiduciary, corporation, organization or legal entity of any kind, successor,
assignee, transferee, personal representativ e, and all other groups or combinations, but shall not include
the Town.
PLACE OR MAINTAIN or PLACEMENT OR MAIN TENANCE or PLACIN G OR MAIN TAINING. To erect,
construct, install, maintain, place, repair, extend, expand, remove, occupy, locate or relocate. A
communications services provider that owns or exercises physical control over communications facilities in
public rights -of -way, such as the physical control to maintain and repair, is PLACING OR MAINTAIN ING
the facilities. To the extent required by applicable law, a party providing service o nly through resale or only
through use of a third party's unbundled network eleme nts is not PLA CIN G OR MAIN TAIN ING 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. The Florida Public Service Commission.
PUBLIC RIGHTS -OF -WAY. A public right-of-way, public easement, highway, street, bridge, tunnel,
waterway, dock, wharf, court, lane, path, or alley, or any other way for which the Town is the authority that
has jurisdiction and control and may lawfully grant access to such property pursuant to applicable law, and
includes the surface, the air space ov er the surface and the area below the surface. PUBLIC RIGH TS -O F -
WAY shall not include private property. PUBLIC RIGH TS -OF -WAY shall not include any real or personal
Town property except as describe d above, and shall not include Town parks, buildings, fixtures, poles,
conduits, facilities or other structures or improvements, regardless of whether they are situated in the
PUBLIC R IGHTS -OF -WAY.
REGISTRANT or FACILITY OWN ER. A communications service s provider or other person that has
registered with the Town in accordance with the provisions of this Ordinance.
REGISTRATION and REGISTER. The process described in this Ordinance whereby a communications
services provider provides certain information to the Town.
REQUE STER. A person who submits a request pursua nt to this Ordinance.
R EQUEST. Any request other than an Application submitted by a person, associate d with the placement
or maintenance of a communications facility other than the co llocation of a small wireless facility or utility
pole for the collocation of a small wireless facility in the public rights -of -way. A Request includes, but shall
8
not be limited to, a request for approval of a registration, a request to place or maintain a communications
facility other than the collocation of a small wireless facility or utility pole for the collocation of a small
wireless facility in the public rights -of -way and includes for example, but is not limited to, a permit to
construct cable, fiber, conduit, backhaul facilities, pedestals, or a supp ort structure that does not constitute
a utility pole for the collocation of a small wireless facility in the public rights -of -way.
SHRO UD. A covering or enclosure of equipment associated with a small wireless facility, other than the
antenna, collocated on an existing structure or wireless support structure.
SIGNAGE. Any display of characters, ornamentation, letters or other display such as, but not limited to, a
symbol, logo, picture, or other device used to attract attention, or to identify, or as an advertisement,
announcement, or to indicate directions, including the structure or frame used in the display. The term
Signage shall not include identification of the owner and contact information of the wireless facility provider
or utility pole, or identification of wires, cables, etc. necessary to aid in safety or hazard w ork or maintenance
or repair work of the communications facility.
SMALL WIRELE SS FACILITY. A wireless facility that meets the following qualifications:
(a) Each antenna associated with the facility is located inside an enclosure of no more than 6
cubic feet in volume or, in the case of antennas that have exposed elements, each antenna and all
of its expo sed elements could fit within an enclosure of no mor e than 6 cubic feet in volume; and
(b) All other wireless equipment associated with the facility is cumulatively no more than 28
cubic feet in volume. The following types of associated ancillary equipment are not included in the
calculation of equipment volume: electric meters, concealment elements, telecommunications
demarcation boxes, ground -based enclosures, grounding equipment, power transf er switches,
cutoff switches, vertical cable runs for the connection of power and other services, and utility poles
or other suppo rt structures.
SMART TECHNOLOGY. The Town's present and future technology to supp ort the Town's smart
techno logy initiatives, including but not limited to, sensors and smart lights, fiber, CCTV cameras, digital
signage, data sharing with traffic applications, smart solar -powered charging stations, emergency alert
applications and other initiatives over time.
STEALTH DESIGN. A method of camouflaging any tower, antenna or other communications facility,
including, but not limited to, supporting electrical or mechanical equipment, or utility pole which is designed
to enhance compatibility with the surro unding neighborhood and be as visually unobtrusive as possible .
SURROUNDING NEIGHBORHOOD. The area within a five hundred (500) foot radius of a communications
facility site or proposed communications facility site.
TOWN . The Town of Gulf Stream, Florida, a municipal corporation of the State of Florida, in its present
form or in any later reorganized, consolidated, or enlarged form.
TOWN MA NAGER. The Town of Gulf Stream, Florida, Town M anager or his/her designee.
UTILITY. Any electric transmission, voice, telegraph, data, or other communications services lines or
wireless facilities; pole lines; po les; railways; ditches; sewers; water, heat, or gas mains; pipelines; fences;
gasoline tanks and pumps; or other structures referred to in F. S. §§ 337.401, 337.402, 337.403, and
337. 404 as the "utility."
UTILITY POLE. A pole or similar structure that is used in whole or in part to provide communications
services or for electric distribution, lighting, traffic control, signage, or a similar function. The term includes
the vertical support structure for traffic lights but does not include a horizo ntal structure to which signal lights
or other traffic control devices are attached and does not include a pole or similar structure 15 feet in height
or less unless an authority grants a waiver for such pole.
WIRELESS FACILITY. Equipment at a fix ed location which enables wireless communications between
user equipment and a communications network, including radio transceivers, antennas, wires, coaxial or
fiber-optic cable or other cables, regular and backup po wer supplies, and comparable equipment,
regardless of technological configuration, and equipment associated with wireless communications. The
term includes small wireless facilities. The te rm does not include:
(a) The structure or improvements on, under, within, or adjacent to the structure on which the
equipme nt is collocated;
(b) Wireline backhaul facilities; or
(c) Co axial or fiber-optic cable that is between wireless structures or utility poles or that is
otherwise not immedia tely adjacent to or directly associated with a pa rticular antenna.
WIRELESS IN FRA STR UCTURE PROV IDE R. A pe rson who ha s been certificated under F. S. Chapter
364, to provide telecommunications service or under F. S. Chapter 610 to provide cable or video services
in the state, and such person's affiliate, and who builds or installs wireless communication transmission
equipment, wireless facilities, or wireless support structures but is no t a wireless services provider.
WIRELESS PROVIDER. A wireless infrastructure provider or a wireless services provider.
WIRELESS SERVICES. Any service s provided using licensed or unlicensed spectrum, whether at a fixed
location or mobile, using wireless facilities.
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WIRELESS SERVICES PROVIDER . A person who provides wireless services.
WIRELESS SUPPORT STRUCTU RE . A freestanding structure, such as a monopole, a guyed or self-
supporting tower, or another existing or proposed structure designed to support or capable of supporting
wireless facilities. The term does not include a utility pole, pedest al, or other support structure for ground -
based equipment not m ounted on a utility pole and less than five (5) feet in height .
WR AP. An aesthetic covering depicting artistic or scenic imagery. Imagery in a wrap may not contain any
advertising.
Sec . 4. Registration For Placing Or M aintaining Communic ations Facilities in the Public Rights -Of -
Way.
(a) All persons, including, but not limited to a communications services provider, pass -through
provider, or wireless provider, seeking to place or maintain a communications facility,
backhaul facility, utility pole for collocation of a small wireless facility, or wireless support
structure in public rights -of -way in the Town pursuant to this Ordinance shall maintain an
effective registration with the Town in accordance with this Ordinance before being eligible
to receive a permit. Subject to the terms and conditions prescribed in this Ordinance and
approval of a permit, if required, a registrant may place or maintain a communications
facility in public rights -of -way. A communicati ons services provider, pass -through provider,
or wireless provider with an existing communications facility in the public rights -of -way of
the Town as of the effective date of this Ordinanc e has ninety (90) days from the effecti ve
date of this Ordinance to comply with the terms of this Ordinance, including, but not limited
to obtaining an effective registration, or be in violation thereof .
(b) Requirements for an effective registration. A person that places or maintains a
communications facility in the Town shall file an original registration, along with two
complete copies with the Town manager that shall include the following information:
(1) Name of the registrant;
(2) Name, address and telephone number of the registrant's primary contact person
in connection with the registration and name, address, telephone number and
email addresses of the registrant's primary contact person in the event of an
emergency or issue involving its facilities, which shall be monitored 24 hours per
day, 7 days per wee k.
(3)
A state ment as to whether the registrant is a pass -through provide r in the Town as
defined herein;
(4) Evidence of the insurance coverage required under this O rdinance;
(5) Acknowledgment that registrant has received and reviewed a copy of this
Ordinance;
(6) A copy showing the number of the registrant's certificate of authorization issued by
the Florida Public Service Commission, the Florida Department of State, or the
FCC; and
(7) The registrant's fe deral employer identification number.
(c) Insurance.
(1) Registrant shall provide, pay for and maintain satisfactory to the Town, the types
of insurance described herein. All insurance shall be from responsible companies
duly authorized to do business in the state of Florida and having a rating in Best's
Insurance Guide of A or better, or having a rating acceptable to the Town. All
liability policies shall provide that the Town is an additional insured in the
endorsement. The required coverages must be evidenced by pro perly executed
certificates of insurance forms. The certificates must be signed by the authorized
representative of the insurance company and shall be filed and maintained with
the Town annually. Thirty -days advance written notice by registered or certified
mail must be given to the Town of any cancellation, intent not to renew, or reductio n
in the policy co verages. In addition to the certificate of insurance, the registrant
shall provide a copy of the insurance policy, if requested by the Town. A provider
of communications services may add the Town to any existing insurance policy
and the Town shall accept such proof of coverage without any conditions other
than consent to venue for purposes of any litigation to which the Town is a party.
(2) The limits of coverage of insurance required shall be not less than the following:
Worker's compensation and employer's liability. Insurance employer's
liability: Florida statutory requirements.
ii. Comprehensive general liability. Bodily injury and property damage:
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(3)
$3,000,000 combined single limit each occurrence. Said coverage shall
not exclude contractual liability, pr oducts/completed operations,
independent or contractors.
Automobile liability . Bodily injury and property damage: $3,000,000
combined single limit each accident .
iv. Umbrella or exc ess liability. Registrant may satisfy th e minimum limits
required above for either commercial general liability, business auto
liability and employer's liability coverage under umbrella or excess liability .
Th e umbrella or excess liability shall have an aggregate limit not less than
the highest "each occurrence" limit for commercial general liability,
business auto liability or employer's liability. The Town shall be specifically
endorsed as an "additional insured" on the umbrella or excess liability,
unless the certificate of insurance states the umbrella or excess liability
provides coverag e on a "follow -form" basis.
v. Self-insurance. Registrant may satisfy the insurance requirements and
conditions of this division under a self-insurance plan and/or retention if
acceptable to the Town in its sol e discreti on based on the Town's
evaluation of the registrant's ability to comply with the code. Registrant
agrees to notify the Town, and/or indicate on the certificat e(s) of insurance
when se lf-insurance is relied upon or when a self -insured retention meets
or exceeds $100,000. The Town r eserves the right, but not the obligation,
to request and review a copy of the registrant's most recent annual report
or audited financial statement, which the r egistrant agrees to furnish for
the purpose of determining the registrant's financial capacity to s elf -insure .
Right to review. Town, by and through its risk manager, reserves the right to
review, modify, reject or accept any required policies of insurance or self-
insurance, including limits, co verages, or endorsements herein from time to tim e
throughout the life of this Ordinance. Town reserves the right, but not the
obligation, to review and reject any insurer or self -insurer providing coverage
because of its poor financial condition or failure to operate legally.
(4) This Ordinance shall not be construed to affect in any way the Town's rights,
privileges and immunities as set forth in F. S. §768.28. Insurance under this
Ordinance shall run continuously with the presence of the registrant's facilities in
the public rights -o f -way, and any termination or lapse of such insurance shall be a
violation of this Ordinance and subject to the remedies as set forth herein.
Notwithstanding the fo regoing, the Town may, in its sole discretion, require
increase d or decreased levels of insurance.
(d) Review of Registration. The Town shall review the information submitted for the
registration. If the information is in accordance with this subsection the Town shall notify
the requester of the effectiveness of registration in writing. If the Town determines that the
information has not be en submitted in accordance with this subsection, the Town shall
notify the requester in writing of the non -effectiv eness of registration, and reasons for the
non -effectiveness. The Town shall undertake to provide such notification within 30 days
after receipt of registration information. A notice of non -effectiveness of a registration shall
not preclude reapplying or filing subsequent requests for registration under the prov isions
of this Ordinance.
(e) Regulations Applicable to Registratio ns.
(1) A registration shall not convey any title, equitable or legal, in the public rights -of -
way. Registration under this Ordinance governs only the placement or
maintenance of communications facilities in public rights -of -way. To the extent not
inconsistent with applicable law, registration doe s not excuse a communications
services provider from obtaining appropriate access or pole attachment
agree ments befo re locating its facilities on the Town's or another person's facilities.
Within 90 days of any change in the information required to be submitted by a
registrant, a registrant shall provide updated information to the Town.
(2) Registratio n shall be nonexclusive. Registration shall not establish any right or
priority to place or maintain a communications facility in any particular area in
public rights -of -way within the Town. Re gistrations are expressly subject to any
future amendment to or replacement of this Ordinance, and further subje ct to any
additional Town ordinances, as well as any applicable state or federal laws.
(3)
Unregistered use of public rights of way. To the extent that a communications
services provider, wireless infrastructure provider or pass -through provider with
facilities in the public rights -of -way, is not registered as required herein, said
person shall register with the Town pursuant to this Ordinance within ninety (90)
days from the effective date of this Ordinance. No new permits shall be issued to
unregistered persons with communications facilities within the public rights -of -way
and such persons may be subject to the enforcement remedies.
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(4) Registration renewal. A registrant shall renew its registration with the Town by
September 30, e very fiv e years fr om the first September after the effectiveness of
the registration in accordance with the registration requirements in this Ordinance,
as may be amended . If no information in the then -existing r egistration has
changed, the renewal may state that no inf ormation has changed. Failure to renew
a registrati on m ay result in the T own restricting the issuance of additional permits
until the communications services pro vider has complied with the registration
requirements of this Ordinance . An existing effective registration pursuant to the
Town Code, prior to the effective date of this Ordinance shall continue to be
effective and the registrant shall comply with this Ordinance by the earlier of the
following: ninety (90) days from the effective date of this Ordinance, the renewal
of a registration as required herein, or pri or to submitting an application for a permit.
Indemnification . A registrant shall, at its sole cost and expense, indemnify, hold
harmless and defend the Town, 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 incurred by
the Town arising out of the placement or maintenance of its communications
system or facilities in public rights -of -way, or otherwise caused by the registrant,
regardless of whether the act or omission complained of is authorized, all owed or
prohibited by this Ordinance, provid ed how ev er, that a registrant's obligations
hereunder shall not exte nd to any damages caused solely by the neglig ence,
negligence, or willful acts of the Town and to the extent not inconsistent with
applicable law. In no event shall the Town be liable for any damage or destruction
to a communications facility placed in the Town public rights - of -way including on a
Town utility pole, to the extent not inconsistent with applicable law . This provision
includes, but is not limited to, the Town's reasonable attorneys' fees incurred in
defending against any such claim, suit or proceedings. Town agrees to notify the
registrant, in writing, within a reasonable time of Town receiving notice, of any
issue it determines may require indemnification. Nothing in this Ordinance shall
prohibit the Town from participating in the defense of any litigation by its own
counsel and at its own cost, if in the Town's reasonable belief th ere exists or may
exist a conflict, potential conflict or appearance of a conflict. Nothing contained in
this Ordinance shall be construed or interpreted:
(5)
as denying to either party any remedy or defense availabl e to such
party under the laws of the State of Florida;
ii. as consent by the Town to be sued; or
as a waiver of sovereign immunity beyond the waiver provided in
F.S. §768. 28, as it may be amended.
(6) A registrant may cancel a registration upon written notice to the Town that the
registrant will no longer place or maintain any communications facilities in public
rights -of -way, and will no longer need to obtain permits to perform work in the
public rights -of -way. A registrant shall not cancel a registration if the registrant
continues to place or maintain any communications facilities in public rights -of -
way.
(7)
Liens. No liens shall apply to public rights -of -way or Town property as a result of
the placement or maintenance of a registrant's facilities in the public rights -of -way
or on a Town utility pole. Any liens on a registrant's facilities shall be subordinate
to the rights of the Town pursuant to this Ordinance. In the event any liens are
filed on the Town property or public rights -of -way, the registrant shall discharge
such lien at its expense within ten (10) days of receiving notice, or the To wn may
discharge such lien, and charge such co sts plus reasonable attorney's fees to
registrant.
(8) A registrant shall pay any personal property or other taxes or assessments that
may be imposed on the registrant's facilities placed or maintained in the public
rights -of -way or on the Town's property including a utility pole as a result of a
registrant's collocation on a Town utility pole. A registrant shall reimburse the
Town for taxes paid by the Town as a result of a registrant's facilities being placed
or maintained in the public rights -of -way or on a Town utility pole.
(9) Reports and records.
(a) Upon reasonable request, a registrant shall provide the following
documents to the Town as re ceived or filed:
Any pleadings, petitions, notice s, and documents, which may
directly impact the obligations under this Ordinance and which are
reasonably necessary for the Town to protect its interests under
this Ordinance.
ii. Any request for protection under bankruptcy laws, or any
judgment related to a declaration of bankruptcy.
(b) The Town shall keep any documentation, books and records of the
12
registrant confidential to the extent required under Florida Statutes .
(10) Termination of Registration. The Town may terminate a registration if:
(a) A federal or state authority suspends, denies, or revokes a registrant's
certification or license required to provide communications services;
(b) The registrant's placement or maintenance of a communications facility in
the public rights -of -way presents an extraordinary danger to the general
public or other users of the public rights -of -way and the registrant fails to
remedy the danger promptly after receipt of written notice;
(c) The registrant abandons its facilities in the public rights - of -way; or
(d) The registrant commits substantial and material violations of any of th e
provisions of applicable codes including but not limited to this Ordinance .
(11) Notice of intent to terminate . Prior to termination, the Town shall notify the
registrant with a written notice setting forth all matters p ertinent to the proposed
termination action, including the reason therefore . The registrant shall have thirty
(30) days after receipt of such notice within which to address or to eliminate the
reasons or within which to present a plan, satisfactory to the Town, to accomplish
the same and to take such steps as are necessary to render every portion of the
facilities remaining in the public rights -of -way of the Town saf e. If the plan is
rejected by the Town, the Town shall provide written notice of such rejection within
fifteen (15) days of receipt of the plan to the registrant and shall make a final
dete rmination as to termination of the registration and the terms and conditions
relative thereto.
(12) Post termination action. In the event of termination, following any appeal period,
the fo rmer registrant shall: (a) in accordance with the provisions of this Ordinance
and as may otherwise be provided under state law, notify th e Town of the
assumption or anticipated assumption by anothe r registrant of ownership of the
registrant's communications facilities in the public rights -of -way; or (b) provide the
Town with an acceptable plan for removal or disposition of its communications
facilities in the public rights -of -way and restore the public rights -of -way to its
condition immediately prior to the removal. If a registrant fails to comply with this
subsection, the communications facilities are deemed to be abandoned and the
Town may exercise any remedies or rights it has at law or in equity as well as the
Town's remedies pursuant to this Ordinance, including but not limited to , utilize or
allow other persons to utilize the registrant's facilities. The obligations of the
registrant hereunder shall survive the termination of a registration. A registrant
that has its registration terminated by the To wn under this Ordinance may reapply
for registration one (1) year after the termination date of the prior re gistration,
unless otherwise permitted to reapply at the sole discretion of the Town.
(13) When removal not authorized or required. In the event of termination of a
registration, this Ordinance does not authorize the Town to cause the removal of
communications facilities used to provide another service for which the registrant
or another person who owns or exercises physical control o ver the
communications facilities holds a valid certification or license with the governing
federal or state agency, if required, for the provision of such service, and is
registered with the Town, if required.
(14) Transfer or control, sale or assignment of assets. If a registrant transfers, sells or
assigns its registration or its facilities in the public rights -of -way, incident to a
transfer, sale or assignment of the registrant's assets, the transferee, buyer or
assignee shall be obligated to comply with the terms of this O rdinance. Writte n
notice of any such transfer, sale or assignme nt shall be provided to the Town within
20 days of the effective clo sing date of the transfer, sale or a ssignment. If the
transferee, buyer or assignee is a current registrant, and is in compliance with the
provisions of this Ordinance, the n the transferee, buyer or assignee is not required
to re -register. If the transferee, buyer or assignee is not a curre nt registrant, or
has an effective registration that is not in compliance with this Ordinance as it may
have been amended, then the transferee, buyer or assignee shall register as
provided in this Ordinance within 60 days of the transfer, sale or assignment. If
permit applications are pending in the registrant's name, the transferee, buyer or
assignee shall notify the appropriate Town officials that the transferee, buyer or
assignee is the new applicant.
(15) Pledges in trust or mortgages of the registrant may be made to any person with
notice to the Town. Any mortgage, pledge, le ase or o ther encumbrance on the
communications facilities shall be subject and subordinate to the rights of the Town
under this Ordinance and applicable law.
(16) Town makes no warranties or represe ntations regarding the fitness, suitability or
13
availability of public rights -of -way for the registrant's communications faciliti es, and
any performance of work or costs incurr ed by registrant or provision of services
shall be at registrant's sole risk. Nothing in this Ordinance shall affect the Town's
authority to add, vacate or abandon public rights -of -way, and the Town makes no
warranties or representations regarding the availability of any added, vacated or
abandoned public rights -of -way f or communications facilities.
(17) Conditional use of public rights -of -way .
(a) In the event registrant desires to use its existing facilities or to construct
new facilities for the purpose of providing oth er utility or non -utility
services to existing or potential consumers or resellers, by providing any
other services other than the provision of communications s ervice, or for
providing any other use to existing or potential consumers, a registrant
shall seek such additi onal and separate authorization from the Town for
such activities as may be required by applicable law .
(b) To the extent that any person or registrant leases or otherwise uses the
facilities of a person that is duly registered or otherwise authorized to
place or maintain facilities in the public rights -of -way of the T own, such
person or registrant shall make no claim, nor assert any right which will
impede the lawful exercise of the Town's rights, including requiring the
removal of such facilities from the public rights -of -way of the Town,
regardless of the effect on registrant's ability to place or maintain its own
communications facilities in public rights -of -way of the Town.
Sec. 5. Requirement of a Permit.
(a) In accordance with applicable law, Town ordinances, codes and regulations, including this
Ordinance, a right-of-way use permit issued by the Town shall be required for a
communications services provider, communications facility provider or a pass -through
provider to place or to maintain a communications facility in the public rights -of -way unl ess
othe rwise exempt pursuant to this Ordinance. An effective registration shall be a condition
of obtaining a permit. Notwithstanding an effective registration, permitting requirements
shall continue to apply. A permit may be obtained by or on behalf of a registrant having an
effective registration if all permitting require ments are met. A registrant shall not
commence to place or to maintain a communications facility in the public rights -of -way until
all applicable permits have been issued by the Town or other appropriate authority .
Registrant shall comply with all Town requirements for issuing permits, including
reasonable rules or regulations go verning the placement or maintenance of a
communications facility in public rights -of -way. Permits shall apply only to the areas of
public rights -of -way specifically identified in the permit. The Town 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 re quirements. Requests
for ancillary permits required to operate a co mmunications facility, including but not limite d
to electrical permits, shall be processed pursuant to the Town's rules and regulations. The
To wn may deny or withhold the ancillary permit if the registrant is otherwise in violation of
the Town Code.
(b) Limited Exceptions to Permit Require ment.
(1) A registrant that is in compliance with this Ordinance shall be allowed to pe rform
service restoration work on existing facilities, or repair work, including but not
limited to, emergency repairs of existing facilities or extensions of such facilities for
providing communications services to customers without a permit. A registrant
performing work without a permit shall ensure that there is photographic and vide o
documentation of the work, including depiction of the area of the public rights -of
way impacted, and such photographic and video docume ntation shall be provided
to the Town within ten (10) business days, unless otherwise not required by the
Town. 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 Town of the
service restoration work or repair work and, within two (2) business days of
co mmencing the work, and shall apply for a permit if such activity required a permit
under this Ordinance within 30 days. Any maintenance of traffic required for
service restoration or repair work shall meet the requirements of the latest edition
of the FDOT 600 Series Standard Drawings and the M anual on Uniform Traffic
Devices.
(2) A registrant shall be allowed to perform routine maintenance within the public
rights -of -way without a permit if such proposed routine maintenance does not
involve excavation, construction, or disruption to transportation or utilities in the
public rights -of -way. In the case of routine maintenance, a registrant shall provide
reasonable advance written notice to the Town identifying the areas where such
maintenance will occur, sco pe of maintenance, date(s) and duration of wo rk to be
performed. If routine maintenance requires the closure of the public rights -of -way
regardless of the duration, a road or sidewalk closure permit consiste nt with the
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(3)
Town's rules and regulations shall be required. As -built plans shall be provided to
the Town within ten (10) business days . A registrant shall be allowed to perform
maintenance, repair, replacement, extension, or upgrad e of existing aerial lines or
underground communications facilities located on private property outside of the
public rights -of -way without first obtaining a permit. All underground work or
excavation without a permit shall be photographed and videotaped, and such
photograph and videotape documentation shall be pro vided to the Town upon
request or, if not requested, within ten (10) business days .
A permit shall not be r equir ed for replacement of existing wireless facilities with
wireless facilities that are substantially similar or of the same or smaller size. If such
replacement will require the closure of a rights -of -way, the registrant shall obtain an
appropriate road or sidewalk closure permit consist ent with the Town's rules and
regulations. A registrant shall provide 48 hours' n otice to the Town prior to such
work being done. As -built plans shall be provided to the Town within ten (10)
business days.
(4) A registrant shall be allowed to place or to maintain a service drop within the public
rights -of -way without first obtaining a permit if such proposed work does not involve
excavation, construction, or the temporary closure of the public rights -of -way.
(5)
A permit shall not be required for the installation, placement, maintenance, or
replacement of micro wireless facilities that are suspended on cable strung
between existing utility pole s in the public rights -of -way, in compliance with
applicable codes by or fo r a communications services provider authoriz ed to
occupy the public rights -of -way and who is remitting Communications Services Tax
under F.S. Chapter 202. Prior to placing a micro wireless facility in the public
rights -of -way pursuant to this subsection, the registrant shall submit a notariz ed
letter to the Town from or on behalf of the communications services provider, which
shall be effective upon filing, attesting that the micro wireless facility's dimensions
comply with F. S. § 337.401(7) and this Ordinance. A registrant's submissi on to
demo nstrate a micro wireless facility's dimensions may apply to all of the same,
substantially similar, or small size micro wirele ss facilities sought to be placed in
the public rights -of -way by such registrant. If the micro wireless facility's
dimensions exceed the dimensions to constitute a micro wireless facility, the
registrant shall not be authorized to place such facility in the public rights -of -way.
As -built plans shall be provided to the Town within ten (10) business days .
(6) Notwithstanding the exceptions to permit requirements contained in this subsection, a
registrant shall obtain from the To wn a right-of-way permit for work that involves
excavation, closure of a sidewalk regardless how temporary, or closure of a vehicular
lane or parking lane regardless how temporary, unless the registrant is a
communications services provider that is performing service restoration on an existing
facility and the work is done in compliance with the 2017 edition of the Florida
Departme nt of Transportation Utility Accommodation Manual, including but not limited
to, the requirement to notify Sunshine 811 prior to any excavation or demolition
activities in accordance with F. S. Chapter 556, and to comply with the Town Code. In
such instance, to the extent not inconsistent with the 2017 FDOT UAM , the
communications services provider shall provide information acceptable to the Town as
to the service restoration wo rk and shall provide reasonable advance notice to the
Town so that the Town may have an observer present. The Town may require a
specific method of excavation and a mainte nance of traffic or sidewalk closure plan,
as applicable. In addition, the registrant shall file for an after the fact permit within 30
days after completing restoration of the public rights -of -way. A registrant performing
work without a permit shall ensure that the work is photographed and videotaped,
including of the area of the public rights -of way impacted, and such photograph and
videotape documentation shall be prov ided to the Town upon request or, if not
requested, with the after the fact permit application.
(c) The Town manager may cause an immediate stop work order where any permitted or
unpermitted constructio n or other work in the public rights -of -way poses a serious threat to
the health, safety or welfare of the public until such serious threat has been abated. Failure
to co mply with such order may subject a re gistrant, and its agents, employees, and
contractors as applicable to appropriate enforcement remedies as set forth in this
Ordinance and applicable law.
Sec. 6. Pe rmit In fo rmatio n Requirements and Rev iew Procedures.
(a) Pre -submittal meeting. To minimize issues related to a permit request, prior to submitting
materials for a permit request, which does not include an applicatio n for a small wireless
facility or a new utility po le to support a small wire less facility, a registrant shall co nduct a
pre -submittal meeting with the Town to discuss the registrant's plans and network goals
for placing or maintaining facilities in the public rights -of -way. The Town shall undertake
efforts to accommodate a registrant's request for a pre -submittal meeting either in person
or electronic communications within ten (10) business days. At a registrant's request, the
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Town, in its sole discretion, may waiv e the requirement of a pre -submittal meeting for good
cause based on the scope of the proposed permit and registrant's compliance with this
Ordinance . In no event shall the requirement of a pre -submission meeting be waived for
a permit r equest that involves excavation of over 50 feet of public rights -of -way . The
requirement of a pre -submittal meeting does not apply to applications . However, even if a
pre -submittal meeting may not be required under applicable law, registrants are strongly
encouraged to engage in a pre -submittal meeting . A pre -submittal meeting, whether
required herein or voluntary on the part of a registrant, shall not commence the time frames
provided herein for Town review and processing of a request or an application.
(b) Requirements for all communications facilities in the public rights -of -w ay. As part of any
permit application or request to place or maintain any facility pursuant to this Ordinance in
the public rights -of -way, a registrant or a registrant's agent or contractor shall complete a
permit form pro vided by the Town that, at a minimum, includ es the following information:
(1) If the person seeking the permit is not the registrant, a statement of authority by
the registrant to act on behalf of the registrant. In addition, if the person seeking
the permit is a contractor, the contractor's license or registrati on and contractor's
insurance information confirming the contractor's authority to perform construction
in the Town and statements as to whether the contractor has any open permits
with the Town, and if so, the permit identification number or information .
(2) Confirmation that the registrant or person seeking the permit engaged in a pre -
submittal meeting, if required, or such meeting was waived by the Town and that
the registrant has an effective registration with the Town, and is otherwise in
compliance with the Town Code.
Engineering plan. An engineering plan signed and s ealed by a licensed engineer,
that includes the follo wing:
(3)
(a) Exce pt fo r applications to collocate small wireless facilities on existing
utility poles in the public rights -of -way, an American Land Title Association
(ALTA) or other survey pursuant to the Town's form demonstrating that
the proposed location of the facility or utility pole is within the public rights -
of -way, unless waived by the Town in its so le discretion, pursuant to an
applicant's or requester's attestation that the proposed facility is located
with the public rights -of -way;
(b) The type of proposed facility, location of the proposed facility, and the
dimensions, height, footprint, stealth design, and concealment features of
the proposed facility;
(c) The Global Positioning System (GPS) coordinates of the proposed facility.
The GPS coordinates shall be based on the reading from a handheld
mobile GPS unit set to Datum NAD 83 or WGS84. GPS coordinates based
on Google Earth or similar application may be used where areas of
shading occur due to overhead canopy. GPS Coordinates shall be
provided in decimal degrees at a six (6) decimal point precision or as
otherwise required by the Town ;
(d) Whether the proposed facility is proposed within a location subject to
restrictions pursuant to this Ordinance;
(e) For new communications facilities and extensions of existing
co mmunications facilities that require a permit, within a fifty (50) foot
radius, a sketch showing pave ment, sidewalks, driveways, ramps, trees,
below -grade utilities, and other above -grade and below -grade structures
and facilities located within the public rights -of -way and the distances from
the proposed facility and the e dge of nearby pavement, side walks,
driveways, ramps, the nearest residential properties, nearby drainage
syste ms, trees, ground -mounte d equipment, nearby structures in the
public rights -of -way, underground utilities and other abo ve -grade and
below -grade structure s and utilities located within the public rights -of -way;
(f) Sufficient specificity demonstrating compliance with applicable codes, as
defined herein and as may be amended;
(g) If applicable, the routes of all transmission and distributio n lines to be
placed or maintained in the public rights -of -way in connection with the
proposed facility (such lines may be subject to separate permit
requirements);
(h) Certification tha t the proposed facility will not materially interfere with the
safe operation of traffic control equipment;
(i) Certification that the proposed facility will not interfere with sight lines or
clear zones for transportation, pedestrians, or public safety purposes or
result in the public rights -of -way being inconsistent with the Flo rida
Greenbook;
(j) Certification that the proposed facility will not materially interfere with
compliance with the Americans with Disabilities Act or similar federal or
state standards regarding pedestrian acce ss or movement; and
(k) Other engineering information that may be requested by the Town.
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(4) Trees or landscaping proposed to be removed or impacted upon the placem ent or
maintenance of the proposed facility .
(5) Photographic or video documentation of the pre -construction condition of the
public rights -of -way in the area to be affected by the installation of the proposed
facility.
(6) Descripti on of installation or construction. A description of the method by which the
facility will be installed and/or modified (i .e . anticipated construction methods or
techniques).
(7) Temporary sidewalk closure plan. The applicant shall provide a temporary
sidewalk closure plan, if appropriate, to accommodate placement or maintenance
of the facility.
(8) Temporary Traffic Control (TTC) plan . The applicant shall provide a temporary
traffic lane closure and Temporary Traffic Control (TTC), if appropriate, to
accommodate placement or maintenance of the facility.
(9) Restoration plan and estimated cost of restoration of the public rights -of -way. A
restoration plan and a goo d faith estimate of the cost of restoration of the public
rights -of -way by a licensed engineer. Such good faith estimate shall be accepted
by the Town unless the Town determines such estimated costs are not
representative of the actual costs of the restoration of the public rights -of -way .
Estimates of the cost to restore the public rights -of -way shall include all costs
necessary to restore the public rights -of -way to its original condition . Such good
faith estimate may include, but shall no t be limited to, costs to restore the paving,
curbs/gutters, sidewalks, multi -purpose trails, and landscaping. All planted or
naturally o ccurring shrubbery or vegetation, including sod, damaged or destroyed
during work in the public rights -of -way shall be replaced. Tree or landscaping
removal shown on the permit shall not be considered damage or impairment to be
restored to the original condition provided the applicant or requester complies with
the approved mitigation plan, if any.
(10) Timetable for construction or installation. The timetable for construction,
placement or maintenance of the proposed facility or each phase thereof .
(11) Indemnification. A statement shall be included with the permit application or
request that by executio n of the application or request and by filing for the permit,
the registrant shall be bound to the To wn with respect to the indemnification
provisions set forth in this Ordinance.
(12) Airport airspace pro tection. If applicable, certification of compliance with Chapter
333, F. S. and all Town, State and federal laws and regulations, as amended,
pertaining to airport airspace protections.
(13) Attestation. For applications by a wireless infrastructure provider or its contractor
for the placement or maintenance of a utility pole in the public rights -of -way for
collocation of a small wireless facility, the applicant shall provide an attestation by
an officer of the registrant that a small wireless facility will be collocated on the
utility pole and will be used by a wireless service s provider to provide
communication service within nine (9) months after the date the application is
approved.
(14) Pole attachment agreement. If applicable for the proposed facility, except for
registrants whose pole attachments are regulated by 47 U. S. C. §224, the registrant
shall provide a co py of a fully executed valid pole attachme nt agreement between
the owner of the utility pole and registrant. In lieu of providing the complete pole
attachment agreeme nt between the owner of the utility pole and registrant, the
registrant may provide the first page of such agreement and the signature page or
a notarized letter of authorization from the owner of the utility pole, providing
adequate identifying information, acceptable to the Town, and indicating the
registrant is authorized to install its facility on the identified utility pole. By
submitting the Town's permit form, the registrant certifies to the Town that it has
authority from the utility pole owner to co llocate its facility.
(15) Information regarding he ight limitations. For an application fo r a ne w utility pole to
support the collocation of a small wireless facility, the applicant shall provide
informatio n regarding the height and GPS location of the tallest utility pole located
in the same public rights -of -way as of July 1, 2017, measured from grade in place
within five hundred (500) feet of the proposed location of the utility pole. If there is
no utility pole within five hundred (500) feet of the proposed utility pole as of July
1, 2017, the applicant shall so certify.
(16) If the permit request includes a backup power supply, information to demonstrate
17
that the backup power supply and proposed fuel storage satisfies the applicable
codes as well as codes and standards of th e National Fir e Protection Association.
(17) In addition to the requirements herein, as part of any permit application to place or
maintain a small wireless facility or utility pole in the public rights -of -way, the
applicant shall provide the following:
(a) Documentation to the satisfaction of the Town from a licensed engineer,
that the structure and foundation of the utility pole intended to support the
collocation of the small wireless facility can support the additional load of
th e proposed small wireless facility consistent with the requirements of the
Florida Building Code;
(b) Certificati on and description by the applicant to the satisfaction of the
Town how the proposed small wirel ess facility or utility pole complies with
the objective design standards set forth in this Ordinance . F or a proposed
ground -mounted small wireless facility, such information shall include
whether the proposed small wireless facility includes a wrap that has been
approved by the Town or is of an architectural design that is substantially
similar to other infrastructure in the area of the public rights -of -way or has
been approved by the Town.
(c) Accurate photo simulations of the proposed utility pole or small wireless
facility and if applicable, as collocated on the utility pole .
(18) Applicable permit fees including reimbursement for Town consultants, to the extent
not inconsistent with applicable law. The Town acknowledges that currently,
applicable law does not allow the Town to charge permit fees.
(19) Consolidated permit application and single application or request for multiple
locations. A registrant may submit a single application or request to place or to
maintain multiple facilities in the public rights -of -way, where it would be more
effic ient for the re gistrant and the Town to address multiple facilities in on e permit.
An applicant seeking to collocate multiple small wireless facilities may file a
consolidated permit application and re ceive a single permit for the collocation of
up to 30 small wireless facilities. The application must include the information
required for an application for each of the proposed small wireless facilities . In
additio n, prior to applying for a consolidated permit, the applicant is strongly
encouraged to engage in a pre -submittal meeting with the Town to discuss all
proposed small wireless facilities. If the application includes multiple small
wireless facilities, the Town may separately address small wireless facility
collocatio ns for which incomplete information has been received or which are
denied. Each proposed utility pole to be placed in the public rights -of -way for the
collocation of a small wireless facility shall require a separate application, and each
communications facility to be placed in the public rights -of -way e xcept fo r the
collocation of a small wireless facility, shall require a separate request unle ss the
Town consents at a pre -submission mee ting to a single application or request for
such multiple facilities.
(20) To the extent not inconsistent with applicable law, such additional information
requested by the Town reasonably necessary for the permit application or request.
(c) Application Review and Procedures for Small Wireless Facilities and Utility Poles for
Collocation of Small Wireless Facilities.
(1) Time perio ds within this subsection shall be extended for the period of time
impacted by a fo rce majeure event or by a declared State of Emerge ncy by the
Town or Governor of the State that impacts the Town ("force majeure extension).
If a registrant opposes a force majeure extension pursuant to this subsection, it
shall notify the Town within 24 hours of such extension becoming effective or the
registrant shall be deemed to have consented to the extension. Except as
otherwise provided herein, re quests for permits for the placement of
communications facilities in the public rights -of -way, including but not limited to
backhaul facilities, shall be subject to the time frames and review procedures set
forth in this subsection; requests shall be considered to be applications; and
requesters shall be considered to be applicants for purposes of time frames as
referenced in this subsection. The time frames and pro cedures herein shall not
apply to other reque sts that do not involve the placement of communications
facilities in the public rights -of -way, including but not limited to, request for permits
to perform maintenance on existing communications facilities in the public rights -
of -way.
(a) Unless extended by mutual consent of the applicant and Town, within 14
days after receiving an application, the Town Manager will notify the
applicant by electronic mail as to whether the application is complete. If
an application is deemed incomplete, the Town will specifically identify the
missing information. An application is deemed complete if the Town fails
to provide no tification to the applicant within 14 days.
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(b) Negotiation Process.
(1) Unless extended by mutual consent of the applicant and the
Town, within 14 days after the date of filing the application, the
Town m ay request that the proposed location of a small wireless
facility be moved to anoth er location in the right-of-way and placed
on an alternati ve Town utility pole or support structure or may
place a new utility pole . The Town and the applicant may
n eg otiat e the alternative location, including any objective design
standards and r easonable spacing requirements for ground -
based equipment, for 30 days after the date of the request .
(2) At the conclusion of the negotiation period, if the alternative
location is acc epted by the applicant, the applicant must notify the
Town of such acceptance and the application shall be deemed
granted for any new location for which there is agreement and all
other locations in the application.
(3)
If an agreement is not reached, the applicant must n otify the Town
of such nonagreement and the T own must grant or deny the
o riginal application within 90 days after the date the application
was filed unless extended by mutual consent of the applicant and
Town. Failure of the applicant to so notify the Town as required
. herein shall be deemed to constitute the applicant's consent to the
Town's alternative location. A request for an alternative location,
an acceptance of an alternative location, or a rejection of an
alternative location must be in writing and provided by electronic
mail.
(c) The Town processes all applications on a nondiscriminatory basis. Unless
the Town and the applicant engage in negotiations as provided above, the
Town will approve or deny the application and will notify the applicant by
electronic mail whether the application is approved or deni ed within 60
days after the receipt of a completed application.
(d) Extension of time. If the To wn and the applicant do not engage in
negotiations, the applicant and Town may mutually agree to extend the
60 -day application review period. The Town shall grant or deny the
application at the end of the extended period.
(e) Basis to Deny Applications. The Town may deny an applicatio n for a
proposed collocation of a small wireless facility or to place a utility pole
used to support a small wireless facility in the public rights -of -way if the
propo sed small wireless facility or utility pole to support a small wireless
facility:
(1) Materially interferes with the safe operation of traffic control
equipment;
(2) M aterially interferes with sight lines or clear zones for
transportation, pedestrians, or public safety purposes;
(3)
Materially interferes with compliance with the Americans with
Disabilities Act or similar federal or state standards regarding
pedestrian access or movement;
(4) Materially fails to comply with the 2017 edition of the Florida
Department of Transportation Utility Accommodation Manual;
(5) Fails to comply with applicable codes;
(6) Fails to co mply with objective design standards set forth in this
Ordinance; or
(7)
Fails to comply with the Town Code, to the extent not inconsistent
with applicable law.
(f) Cure Procedure.
(1) If the application or request is denied, the Town will specify the
basis for the denial, including the specific co de provisions on
which the denial was based, on the day the Town denies the
application or request.
(2) The registrant may cure the deficiencies identified by the To wn
and resubmit the application or request within 30 days after the
19
notice of denial is sent .
(g)
(3)
If an attempt to cure is submitted by the registrant within such 30 -
day period, the Town will approve or deny the revised application
or request within 30 days after receipt of the revised application .
If the registrant revises any information in the application or
request other than to address expressly the d efi cienci es identified
by the Town, the registrant shall submit a new application or
request and the denial of the pending application or request shall
be final .
(4) The Town's second and subsequent reviews of r evised
applications or requests will be limited to the deficiencies cited in
the denial notice.
A permit issued pursuant to an approved application or request to install
a new communications facility shall remain in effect for one (1) year unless
otherwise extended, suspended, or revoked by the Town pursuant to this
Ordinance. If a communications facility including a small wireless facility
or utility pole is going to be installed without a permit pursuant to this
Ordinance or applicable state or federal law, the applicant or requester
shall nevertheless be requir ed to have an effective registrati on, comply
with development standards and provide the bonds required in this
Ordinance prior to performing construction.
(h) A permit from the Town constitutes authorization to undertake only certain
activities in the public rights -of -way in accordance with this Ordinance, and
doe s 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.
(2) Re view Proce dures and Basis to Deny Requests.
(a) Time Frames. The Town shall review and process other requests that are
not for the placement of communications facilities, including but not limited
to, requests for a permit to perform maintenance or to remove facilities,
consistent with time frames required under applicable law and the Town's
standard procedures.
(3)
(b) Basis to Deny. Except for applications for permits to collocate small
wireless facilities or for utility poles to support the collocation of a small
wireless facility addressed above, the Town may deny a request for a
permit to place or to maintain communications facilities in the public rights -
of -way, including but not limited to, a permit to place backhaul facilities,
consistent with applicable law and the Town's standard procedures.
(c) Review procedures for wireless facilities modifications pursuant to the
Spectrum Act. A registrant may file an eligible facilities request to modify
an existing tower or base station in the public rights -of -way, that does not
substantially change the physical dimensions of such tower or base
station, pursuant to Section 6409(a) of the Spectrum Act of 2012, 47
U. S.C. §1455(a), and FCC regulations adopted thereto, 47 C.F. R.
§1.6100, as amended. Such request shall include the following: (1)
confirmation that the registrant possesses an effective registration and
submitted a permanent performance bond with the Town; (2) a statement
that it is an eligible facilities request, (3) a report, signed and sealed by a
licensed engineer, that addresses the factors set forth in the FCC
regulatio ns, including a description of proposed modifications and the
factors regarding whether the proposed modifications constitute a
substantial change, and (4) a certified copy of the pe rmit for the existing
tower or base statio n that is proposed to be modified. The To wn shall
review such request pursuant to the procedures set forth in the FCC
regulations, notwithstanding other provisions of this Ordinance. The
procedures in this Ordinance for appeal shall apply.
Suspension and revocation of permits.
(a) The Town may order the suspension of placement and maintenance work
under a permit and ultimately may suspend or revoke any permit, in the
event of a material breach of the terms and conditions of any applicable
code s, this Ordinance, State and federal laws and regulations, or any
condition of the pe rmit. A material breach by the permittee may include,
but is not limited to:
(1) The violation of any material provision of the permit or applicable
codes;
(2) An evasion or attempt to evade any material provision of the permit
or the perpetration or attempt to perpetrate any fraud or deceit
20
upon the Town;
(3) Any material misrepresentation of fact in the process of permittee's
request or application for a permit or registration;
(4) The failure to maintain the required performance cash bond or
insurance;
(5) The failure to properly restore the public rights -of -way;
(6) The failure to comply within the specified time with an order
issued by the Town;
(7) The failure to register, renew a registration, or provide notice of
transfer in acc ordance with this Ordinance;
(8) The failure to relocate or remove facilities pursuant to this
Ordinance and F.S . §§337.402, 337.403 and 337.404, as
amended;
(9) Conducting work in the public rights -of -way with out a permit, if
required.
(b) If the Town determines that a r egistrant has committed a substantial breach
of a term or condition of the permit or violation of applicable codes or this
Ordinance, the Town shall make a writt en demand upon the registrant
to remedy such violation . The demand shall state that the continued
violation(s) may be cause for suspension or revocation of the permit.
Further, the Town may place additional or revised permit c onditions on
the permit following a substantial breach. In addition, the Town may
refuse to issue new permits and may deny an application or request for a
new permit to a registrant or registrant's contractor that has materially
violated any provisions of a permit or applicable codes or this Ordinance,
until such time as the registrant cures the violation to the satisfaction of
the Town, including paying any damages, costs or penalties that may have
been assessed.
(c) Within thirty (30) days of receiving notification of the breach, the permittee
shall contact the Town and provide a plan, acceptable to the Town. The
Town shall provide additional time as reasonably necessary for a
permittee to e stablish an acceptable plan taking into account the nature
and scope of the alle ged breach. The permittee's failure to so contact the
Town, or the permittee's failure to submit an acceptable plan, or the
permittee's failure to reasonably implement the approved plan, shall be
cause for revocation or suspension of the permit. A final determination to
suspend or to revoke a permit may be appe aled in accordance with the
procedures set forth in this Ordinance. Nothing herein shall affect the
Town's ability to take immediate action or to cause a re gistrant to take
immediate action pursuant to this Ordinance or applicable law to address
any condition that threatens the health, safety or welfare of persons or
property.
(d) If a pe rmit is revoked, the permittee shall reimburse the Town for the
Town's reasonable costs, including resto ration costs, administrative costs,
and the co st of collection. These costs may also be deducted from the
registrant's permanent performance cash bond in the Town's discretion.
(e) The Town manager may cause an immediate stop work order where the
construction poses a serious threat to the health, safety or welfare of the
public until such time as such serious threat has been abated.
(4) Requests for waivers.
(a) No thing in this Ordinance shall be construed to prohibit or have the effect
of prohibiting the nondiscriminatory and competitively neutral use of public
rights -of -way by communications service providers, communications
facility providers or pass -through providers, in violation of federal or state
law.
(b) A waiver may be granted by the Town manager in those circumstances
where a competitively neutral use of the public rights -of -way is impaired
by strict application of the requirements of this Ordinance, in violation of
applicable law.
(c) A request for a waiver shall be filed either prior to or conte mporaneously
with the permit application. The request for waiver shall contain each
provision for which a waive r is sought. A request for a waiver shall include
the following information:
(1) A detailed explanation, with supporting engineering information by
a Florida licensed engineer or other data, as to why a waiver from
the requirements of this Ordinance is required to allow the
21
applicant to have nondiscriminatory and competitively neutral use
of the public rights -of -way, including a detailed explanation
addressing the relevant engineering criteria;
(2) Nature and characteristics of the surrounding neighborhood;
(3) Any special conditions and circumstances affecting the proposed
site which prevent compliance with the Ordinance or subsection
for which a waiver is being sought;
(4) If applicable, topography, tree coverage and foliage in the
immediate surrounding area of the proposed facility or within the
surrounding neighborhood;
(5)
Design of the proposed facility with particular reference to
achieving compatibility with the surrounding neighborhood and
other structures in the public rights -of -way and eliminating
adverse visual impacts;
(6) If the proposed waiver is compliant with the Americans With
Disabilities Act, 42 U .S .C. §12101, et seq ., and applicable codes;
(7)
A request for waiver of the objective design stand ards contained
herein shall include a showing that the design standards are not
reasonably compatible for the particular location of a small
wireless facility or utility pole, or are technically infeasible with
supporting information from a licens ed engin eer, or that the design
standards impose an excessive expense on the registrant with
info rmation as to the additional costs of compliance with the
standards and the registrant's anticipated revenue from the
proposed facility or assets. The Town shall grant or deny a request
for a waiver of objective design standards within forty-five (45)
days after receiving the request for waiver unless the applicant
and Town consent to an extension, subject to a force majeure
event.
(8) Any o ther information the Town may reasonably require to
process the request for waiver.
(d) Except for a request fo r a waiver of objective design standards, the Town
shall grant or deny a request for a waiver of a ny othe r provisions of the
Town Code pursuant to its standard procedures for requests for waivers
or variance of its Code, consistent with applicable law. If a request for
waiver or variance is not processed by the Town within the time frame for
granting or denying an application or request for a permit, the Town shall
deny the permit application or request unless the Town and the registrant
consent to an applicable exte nsion. In granting any waiver, the Town may
impose conditions to the extent the Town determines such conditions are
necessary to minimize any adverse effects of the proposed facility on the
surrounding neighborhood or to protect the health, safety and welfare of
the public.
(e) Sho uld a request for waiver, and ultimately a permit, be de nied by the
Town, the denial of the waiver may be appealed with an appeal of the
permit denial in accordance with this Ordinance.
(5) Appeals.
(a) Final, writte n decisions of a designee of the Town manager, including but
not limited to, a decisio n suspending, revoking, or denying a permit,
denying a registration, denying a renewal of a registration, suspending or
terminating a registration or denying a request for a waiver, or imposing
costs or a fine, are subject to appeal to the Town manager. An appe al
must be filed with the Town manager within thirty (30) days of the date of
the final, written decision to be appealed. An appeal that is not timely filed
as set forth herein shall be waived. The Town manager shall hear or may
appoint a hearing officer to consider the appeal. The decision on appeal
shall be based on the information submitted previously to the Town and
no new info rmation shall be considered. Subject to a fo rce majeure event,
the hearing shall occur within 30 days of the receipt of the appeal, unless
waived by the applicant, and a written dec ision shall be rendered within 20
days of the hearing.
(b) An appeal fro m a decision of the Town manager or a hearing officer may
be appealed to the To wn Co mmission within 30 days, by filing a written
notice of appeal with the Town clerk and providing copies to the Town
22
manager and the T own attorney. Any appeal not timely filed shall be
waived. The notice of appeal shall state the decision which is being
appealed, the grounds for appeal, a brief summary of the reli ef which is
sought, and shall be accompanied by a nonrefundable fee to be
established by administrative order of the Town manager. The Town
Commission may affirm, modify or reverse the decision of the Town
manager. The Town manag er shall notify any party who has filed a
written request for such notification of the date when the matter will be
presented to the Town commission . Nothing contained herein shall
preclude the Town Commission from seeking additional information prior
to rendering a final decision. The decision of the Town Commission shall
be by resolution and a copy of the decision shall be forwarded to the
Town manager and the appealing party . Within the time prescribed by
the appropriate Florida Rules of Appellate Procedure, a party aggrieved
by a decision of the Town Commission may appeal an adverse decision
to the Circuit Court In And For Palm Beach County or applicable federal
district court. The party making the appeal shall be required to pay to the
Town clerk a fee to be established by administrative order of the Town
manager, to defray the costs of preparing the record on appeal. Said fee
shall be effective upon approval by the Commission . To the extent
required by applicable law, the Town shall waive any claim or defense
based on failure to exhaust administrati ve remedies if the Town's
administrative review is not complete within 45 days after a person files
a complete request for review.
Sec. 7. Performance c onstruction bond and permanent performance b ond.
(a) Prior to the issuance of any permit in accordance with this Ordinance, or performing any
work in the public rights -of -way, either pursuant to a permit or without a permit if authorized
by applicable law except in the case of an emergency pursuant to this Ordinance, a
registrant or contractor that applies for a permit on behalf of a registrant shall deposit with
the Town a performance construction bond acceptable to the Town to secure the
restoration of the public rights -o f -way, and to ensure the registrant's or contractor's faithful
performance of the construction or other work in the public rights -of -way, in accordance
with applicable sections of the code. The performance construction bond shall be
conditioned upon the full and faithful compliance by the registrant or contractor with all
requireme nts, duties, and obligations imposed by the permit and provisions of this
Ordinance during and through completion of the placement or maintenance project. The
performance co nstruction bond shall be in an amount as determine d by the To wn based
on one -hundred ten percent (110%) of the estimated costs of the restoration of the public
rights -of -way submitted by the registrant. For a co nsolidated permit, the registrant or
contractor shall provide a performance construction bond based on the amount of the total
costs of the restoration of the public rights -of -way for all small wireless facilities to be
collocated on utility poles within the public rights -of -way, but in no event, shall be less than
ten thousand dollars ($10,000). Notwithstanding any provision herein, the minimum
amount of the performance construction bond for a new or replaced utility pole or small
wire less facility over six (6) cubic feet shall be twenty-five thousand dollars ($25,000). The
Town shall not require a performance construction bond if the estimated cost of restoration
of the public rights -of -way is less than one thousand dollars ($1,000).
(b) In the e vent a registrant or contractor subject to such a pe rformance construction bond fails
to complete the work in a safe, timely and competent manner in accordance with the
provisions of the permit or code, there shall be reco verable, from such construction bond,
any damages or loss suffered by the Town 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 attorney's
fees, up to the full amount of the bond.
(c) The performance construction bond shall be non -cancelable and shall be for a term of not
less than one(1) year but not more than 18 months after the anticipated date of the later of
completion of construction, restoration and To wn inspection. No less than one-year after
comple tio n of the construction and satisfaction of all obligations in accordance with the
bond, the registrant or contractor may request that the Town re move the requirement to
continue the performance construction bond. In accordance with the current standards of
the Town, and satisfaction of all obligations in accordance with the bond, the To wn shall
return the performance construction bond without interest. Notwithstanding, the Town
shall require a new performance construction bond for any subsequent work performed in
the public rights -of -way as required by this Ordinance. Notwithstanding this provision, to
the extent required by applicable law, the To wn shall accept a letter of credit or similar
financial instrument as a construction bond issued by any financial institution that is
authorized to do business within the United State s, provided that a claim against the
financial instrument may be made by electronic means, including by facsimile . A provider
of communications services may add the Town to any existing bond, or other relevant
financial instrument, and the Town shall accept such proof of coverage without any
conditio ns other than consent to venue in Palm Beach County for purposes of any litigation
23
to which the Town is a party.
(d) Permanent Performance Bond .
(1) The Town is concerned that, based on past experience in the Town and throughout
the State, the placem ent and maintenance of communications facilities in the public
rights - of -way has the pot ential to c ause significant damage to the public rights - of -way
and to utilities within the public rights -of -way, creating disruption to the Town residents,
businesses and the travelling public . In addition, the Town is conc erned that it will not
be able to obtain adequate security to address damage to public rights -of -way or to
utilities, because of restrictions on construction bonds, placement and maintenance of
facilities lawfully or unlawfully without permits, inaccurate locates, permits issued by
other government entities within the Town that could impact Town utilities, and other
issues associated with such facilities in the public rights -of -way. Accordingly, pursuant
to the Town's authority and obligation to manage the public rights -of -way and to
provide for the public safety in the exercise of its police power, and to the extent not
inconsistent with applicable law, the Town shall require all persons that place or
maintain co mmunications facilities in the public rights -of -way to establish a permanent
performance bond in the Town's favor.
(2) A Registrant or Facility Owner who places or maintains communications facilities in the
public rights -of -way, shall file with the Town, for Town approval, a permanent
performance bond in the amo unt of twenty-five thousand dollars ($25,000), in th e form
of a cash deposit or irrevocable letter of credit. Any cash deposit shall be held in a
separate account or Town account. The letter of credit shall be issued by a United
States financial institution that allows drawing on the letter of credit via electronic
means including facsimile, agrees to the jurisdiction of the appropriate court within
Palm Beach County, and shall be in a form and issued by a financial institution
acceptable to the Town Attorney. The permanent performance bond shall be
conditioned on the full and faithful performance by the Registrant or Facility Owner of
all requirements, duties, and obligations imposed by the provisions of this Ordinance
and applicable law, including but not limited to requirements to restor e the public rights -
of -way and to guarantee such restoration, to remove any abandoned communications
facilities, to indemnify the Town as required here in, and to pay for any damage to Town
or other facilities in the public rights -of -way. The permanent performance b ond shall
not constitute a fee, tax or other imposition on a dealer of communications services in
its capacity as a dealer of communications services or compensation for use of the
public rights -of -way and shall not be used by the County as such. Should the Town
draw upon the permanent performance bond, the Town shall promptly notify the
registrant, and the registrant shall promptly resto re the cash de posit and/or letter of
credit, as may be nece ssary, to the full amount. In the event a registrant fails to perform
its duties and obligations imposed by the provisions of this Ordinance, subject to
providing prior notice and a reasonable opportunity to cure the failure, there shall be
recoverable, jointly and severally from the principal and surety of the permanent
performance bond, including a letter of credit, any damages or loss suffered by the
Town as a result, including the full amount of any damage s, indemnification or cost of
removal or abandonment of any property of the registrant, plus a reasonable allowance
for attorneys' fees. The cash deposit or letter of credit shall be furnished annually or
as frequently as necessary to provide a continuing guarantee of the person's full and
faithful performance at all times. A registrant may change the form of the permanent
performance bond on file with the Town on an annual basis. A registrant may request
that the Town return the permanent performance bond or approve the cancellation of
the performance bond upon the expiration of a registrant's obligations pursuant to the
Town Code and in no event while a registrant maintains any obligations with respect
to facilities in the public rights -of -way. If the Town determines it is appro priate to return
the permanent performance bond, a cash deposit retained by the Town shall be
returned without interest.
(3)
For new registrants seeking to place or to maintain communications facilities in the
public rights -of -way, the permanent performance bond required herein must be filed
with the Town prior to any construction associated with the placement or maintenance
of a communications facility in the public rights -of -way. For existing registrants,
permanent performance bonds currently on file with the Town, either in the form of a
cash deposit or letter of credit, shall satisfy the requirement of this subsection and shall
continue to be maintained by the Town. To the extent that a communications se rvices
prov ide r, wireless provider, or pass -through provider with facilities in the public rights -
of -way, does not have a permanent performance bond filed with the Town as required
herein, said person shall submit the pe rmanent performance bond as provided herein,
within ninety (90) cale ndar days from the effective date of this Ordinance. No permits
shall be issued to a perso n for placement or maintenance of facilities within the public
rights -of -way without a permanent performance bond filed with the Town. Fo r activity
that does not require a permit, no placement or maintenance of a communications
facility in the public rights -of -way shall be performed by or on behalf of a registrant that
does not have a permanent performance bond on file with the Town. In addition to
other remedies provided herein, including but not limited to, revoking a registration,
24
denying or withholding permits, or issuing a stop work order, the Town may pursue
code enforcement actions against any person who violates this subsection.
(4) Any person who seeks a waiver of the requirement of a permanent performance bond
or seeks to pursue a challenge to such requirement shall submit an appeal to the Town
Manager setting forth the basis for such person's position, pursuant to the procedures
set forth in this Ordinance. The Town Manager shall render a decision which the
person may appeal to the Town Commission, pursuant to the procedures set forth in
this Ordinance.
(e) The rights reserved by the Town with respect to any performance construction bond or
permanent performance bond established pursuant to this division are in addition to all
other rights and remedies the Town may have under this Ordinanc e, or at law or equity,
and no action, proceeding or exercise of a right with respect to th e performance
construction bond or permanent performance bond will affect any other right the Town may
have.
Sec. 8. Construction M etho ds for Placing or Maintaining Communications Facilities in Publi c
Rights -o f -Ways.
(a) A registrant shall place and maintain its communications facility in public rights -of -way in a
manner consistent with accepted industry practice and applicable codes and must comply
with the 2017 edition of the Florida Department of Transportation Utility Accommodation
Manual. For purpose of complying with the notice and approval requirements contained
within the 2017 edition of the Florida De partment of Transportation Utility Accommodation
Manual, the registrant shall provide notice and seek approval from the Town Manager. All
safety practices required by applicable codes or accepted industry practices and standards
shall be used during the placement or maintenance of communications facilities, including
but not limited to, Chapter 33 of the Florida Building Code . Registrant shall use and
exercise due cautio n, care and skill in performing work in the public rights -of -way, and shall
take all reasonable steps to safeguard work site areas including maintenance of traffic.
(b) In connection with excavation in the public rights -of -way, the requirements of this
Ordinance shall control to the exte nt of any conflict with inconsistent provision of the Town
Code.
(c) In addition, in connection with excavation in the public rights -o f -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. In the event of any conflicts with
existing utilities or utility service laterals, the proposed location of the communications
facility will be adjusted, not the utility.
(d) To the extent not inconsistent with applicable codes, underground cables, where required,
shall have co nsistent alignment parallel with the edge of pavement, a thirty -six-inch (36")
depth of cover for the pav ed po rtion of roadways, sidewalks and driveway apro ns a twenty-
four -inch (24") to thirty -inch (30") depth of cover in all areas except the paved portion of
roadways, sidewalks and driveway aprons, and shall have a three-foot (3') horizontal
clearance from underground utilities and their appurtenance s. Belo w grade communication
facility shall not be allowed under a swale or ditch unless such restrictio n is waived by the
Public Works O peratio n Manager or Town Manager with appropriate conditions of a permit
that the registrant or permittee clean or re -excavate the swale or ditch to its appropriate
grade prior to installation of the facility.
(e) Grounding rods and pull boxes. The grounding rod may not extend above the top of the
public right-of-way or sidewalk and must be placed in a pull box, and the ground wire
between the pole and ground rod must be inside an underground conduit. All pull boxes
shall be vehicle lo ad be aring, comply with applicable codes and FDOT Standard
specification 635 and be listed on the FDO T Approved Products List. A concrete pad shall
be installed around all pull boxes not located in the sidewalk. No new or replacement pull
bo xes shall be located in pedestrian ramps.
(f)
(g)
Consistent with applicable co des and Town regulations, the Town may require the use of
trenchless technology (i.e., directional bore method) or may prohibit underground missile
boring for the installation of facilities underground in the public rights -of -way. The registrant
shall be solely liable for the displacement, damage or destruction of any property, public
rights -of -way, irrigation system, utility, or landscaping as a result of the placement or
maintenance of its facility within the public rights -o f -way. The Town may issue such rules
and regulatio ns concerning the method for placement or maintenance of a communications
facility in public rights -of -way as may be consistent with this Ordinance and other applicable
codes and standards. The provisions of this subsection are not intended to prevent the use
of any method of construction not specifically prescribed by this subsection, provided that
any such method has been appro ved by the Town.
In an effort to minimize adverse impacts and disruption in the public rights -of -way and to
other municipal improvements, the Town may require a communications services provider
to coo rdinate the placement or maintenance of its facilities with any work, construction,
25
installation in or repairs of the subject public rights -of -way or other facilities therein, that is
occurring or is scheduled to occur within a reasonable time from the dat e(s) requested in
the communications services provider's permit application. The Town may require a
registrant to alter reasonably its placement or maintenance schedule as necessary to
minimize disruptions and disturbance in the public rights -of -way. The Town may provide a
more definite time frame based on specific Town construction or maintenance schedules .
Within the public rights - of -way, every communications services provider sh all make space
available in its trench and/or conduit to other communications services providers to the
extent consistent with the federal requirements of 47 U.S.C. §224. Every communications
services provider shall utilize existing conduits, pathways and oth er facilities whenever
po ssible, and shall not place or maintain any new, different, or additional poles, conduits,
pathways or other facilities, whether in the public rights -of -way or on privately -owned
property, until written approval is obtained from the Town or other appropriate
governmental authority, and, where applicable, from the private property owner.
(h) Limits on excavation in restored rights -of -way. To avoid continual disruption and
degradation to the public rights -of -way and in the interest of public safety, an area of the
public rights -of -way that has been subject to excavation and restored shall not be subject
to re -excavation until at least two (2) years following the completion of such restoration, to
the extent not inconsistent with applicable codes and law, unless waived by the Town. If
the areas where the e xcavation is to occur has not been fully restored by a permittee, the
subsequent permittee may apply for and the Town may issue a permit that requires the
subsequent permittee to restore the public rights -of -way to the original condition and to
warrant such restoration consistent with this Ordinance . Registrants seeking to place
communications facilities in the public rights -of -way through excavation are strongly
enco uraged to contact other registrants and communications services providers to
coordinate the placement of communications facilities in the public rights -of -way.
Trees. A registrant shall comply with the requirements of the Town's Land Devel opment
Regulations with respect to the proposed removal or disturbance of any trees on private
property. A registrant shall not prune, remove or materially disturb trees during placement
or mainte nance of communications facilitie s, small wireless facilities, micro wireless facility,
or utility poles in the public rights -of -way, unless approved pursuant to an applicable permit
issued by the Town, to the extent not inconsistent with applicable law. Tree removal or
pruning is not permitted within the public rights -of -way to increase signal strength or to
provide a line -of -sight for wireless facilities. Landscaping may only be disturbed or
removed during placement or maintenance of communications facilities pursuant to a
permit issued by the Town. The Town may require that any landscaping or trees so
removed shall be replaced or mitigated in accordance with the approved re storation plan.
Restoration of public rights -of -way. A registrant shall, at its own expense, restore the public
rights -of -way to at least its original condition before such work in public rights -of -way was
initiated, subject to the Town's satisfaction upon inspection. Re gistrant shall warrant its
restoration for a perio d of twelve (12) months after completion of such restoration. If the
registrant fails to make such restoration within seve n (7) calendar days after completion of
construction, or such other time as may be required by the Town, the Town may, after
written notice to the registrant, perform such restoration using Town employees, agents or
contractors, and charge all costs of the restoration to the registrant in accordance with F. S.
§337. 402, as it may be amended, and re quire reimbursement within 30 days after the
submission of the invoice by the Town to the registrant. Consistent with the Town Code, if
the registrant fails to complete restoration work by the estimated date for completion
listed in the permit, following notice to the registrant or permittee, the Town shall have
the right to restore the right-of-way and to charge the registrant or pe rmittee for actual
costs of such restoration work plus 25 percent of such costs for administrative expenses,
to the extent not inconsistent with F. S. §337.402, as it may be amended. The costs and
administrative expenses shall not be eligible for credit against any other payments that
may be owed by the registrant to the Town. Consistent with the Town Code, the Town
manager shall make inspections to administer and enforce the provisions of this
subsection. The registrant or permittee shall notify the Town M anager 48 hours prior to
commencing construction and at the time of completion of work under the permit. Upon
completion, the Town manager shall inspect the work to determine whether the
restoration has been acceptably completed. In such event, the Town shall notify the
applicant in writing that the 12 -month restoration warranty period has begun.
(k) A registrant shall immediately notify the Town of any damage to Town utilities, Town fiber
or other To wn facilities as a result of a registrant's construction in the public rights -of -way.
The registrant shall repair such damage at its expense within the time frame required by
the Town given the nature of the damage and impact on Town services. In its discretion,
the Town may repair or arrange for the repair of such damage and charge such expense
to the registrant.
(i)
(j)
(I) Any communications facilities heretofore or hereafter place d upo n, under, o ver, or along
any public rights -of -way that is found by the Town to be unreasonably inte rfering in any
way with the convenient, safe or continuous use or the maintenance, improvement,
extension or expansion of such public rights -of -way shall, upon thirty (30) days' written
notice to the registrant or its agent, be removed or re located by such registrant at its own
26
(m)
expense except as explicitly provided under F .S . §337 .403. The Town may waive or
extend the time within which a registrant shall remo ve or rel ocate a communications facility
for good cause shown .
Removal or relocation at the direction of the Town of a registrant's communications facility
in public rights -of -way shall be governed by the provisi ons of F.S . §§337 .403 and 337.404,
as they may be amend ed . Subject to F .S. §337.403, whenever an order of the Town
requires such removal or change in the location of any communications facility from the
public rights -of -way, and the facility owner fails to remove or charge the same at its own
expense to conform to the order within the time stated in the notice, the Town may proceed
to cause the communications facility to be removed. The expense th ereby incurred except
as provided in F.S. §337 .403(1)(a) —(c), shall be paid out of any money available therefor,
and such expense shall be charged against the registrant of the communications facility
and lev ied, collected and paid to the Town.
(n) Subject to F. S. §337.403, whenever it shall be necessary for the Town to remov e or
relocate any communications facility, the registrant of the communications facility shall be
given notice of such removal or relocation and an order requiring the payment of the costs
thereof, and shall be given reasonable time, which shall not be less than twenty (20) nor
more than thirty (30) days in which to appear before th e Town Commission to contest the
reasonable ness of the order. Should the registrant not appear, the determination of the
cost to the registrant shall be final, in accordance with F.S. §337.404.
(o) A final order of the Town shall constitute a lien on any property of the registrant and may
be enforced by filing an authenticate d copy of the order in the office of the clerk of the
circuit court of the county wherein the registrant's property is locat ed and/or by drawing
upon the registrant's bond.
The Town retains the right and privilege to cut or move any communications facilities
located within the public rights -of -way of the Town, as the Town may determine to be
necessary, appropriate or useful in response to any public health or safety emergency . If
circumstances permit, the Town shall attempt to no tify the registrant of the communications
facility, if known, prior to cutting or removing a communications facility and shall notify the
registrant of the communications facility, if known, after cutting or removing a facility .
The Town shall have the right to make such inspections of facilities placed or maintained
in public rights -of -way as it finds necessary to ensure compliance with this Ordinance. The
Town shall have access without charge to any manholes or hand holes at any time, of a
communications services provider in which the Town has facilities, provided the Town has
given such provider reasonable prior notice so that such provider can have trained
personnel present when the accesses such manholes. Notwithstanding the foregoing, the
Town, in the proper exercise of its municipal po lice powers and duties with respect to the
public rights -of -way, shall have access to all manho les and hand holes without charge of
such provider. In the eve nt the Town determines that a violation exists with respect to
registrant's placement or maintenance of facilities in the public rights -of -way that is not
considered to be an emergency or danger to the public health, safety or welfare, the Town
will provide re gistrant no less than three days written notice setting forth the violation and
requesting correction.
(P)
(q)
(r) Following the completion of construction to place a new or replace an existing
communications facility in the public rights -of -way, the registrant shall promptly provide
revised plans and "as-builts" upon completion of any installation or construction. The plans
shall be in a digitized PDF and CAD (Computer Aided Design) file formats, showing the
two-dimensional location of the facilities, based on the Town's geographical database or
other format acceptable to the Town. The registrant shall provide such plans at no cost to
the Town. The Town shall maintain the confidentiality of such plans and any other
information provided in accordance with F. S. §202. 195, as it may be amended.
The Town reserves the right to place and maintain, and permit to be placed or maintained,
sewer, gas, water, electric, storm drainage, co mmunications, and other facilities, fiber,
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 Town in public
rights -of -way occupied by the registrant. To the e xtent not inco nsistent with applicable law,
a registrant shall allow Town facilities to be collocated within Town's public rights -of -way
through the use of a joint trench during registrant's construction project. Such joint trench
projects shall be negotiated in good faith by separate agreement between registrant and
Town and may be subjected to other Town rights -of -way requirements. The Town further
reserves witho ut 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 To wn and
within said limits as same may from time to time be altered.
(s)
(t) A registrant shall, on the request of any person holding a permit issued by the Town,
temporarily raise or lower its communications facilities to permit the work authorized by the
permit. The expense of such temporary raising or lowering of facilities shall be paid by the
person re questing the same, and the registrant shall have the authority to require such
payment in advance. The registrant shall be given not less than 30 -days advance writte n
27
notice to arrange for such temporary relocation. If the Town requests a temporary raising
or lowering of a facility for a public purpose, the Town shall not be charged for the
temporary raising or lowering of the facility .
(u) This Ordinance does not authorize a person to collocate or attach wireless facilities,
including any ant enna, micro wireless facility, or small wireless facility, on a privately own ed
utility pole, a utility pole owned by an electric c ooperative or a municipal electric utility, a
privately owned wireless support structure, or other private property without the consent of
the property owner.
(v) Abandonment. Up on determination by a registrant or communications services provider
that one or more of its communications facilities in the public rights -of -way is to be
abandoned, the provider shall notify the Town no later than ninety (90) days from such
determination, or no later than thirty (30) days following such abandonment, whichever is
sooner. The Town may independently establish that a communications facility has been
abandoned. In reaching such determination, the Town may request documentation and/or
affidavits from the communications services provider or registrant regarding the active use
of the facility. If the provider or registrant fails to provide the requested documentation
within thirty (30) days, a rebuttable presumption shall exist that the provider or registrant
has abandoned the communications facility . Any small wirel ess facility, micro wireless
facility, utility pole for collocation of a small wireless facility, or other communications facility
installed within the public rights -of -way that is abandoned shall be removed by the
registrant or communications services provider at its expense within thirty (30) days of
receipt of notice from the Town. Failure to remove an abandoned facility within the thirty
(30) days' period shall be deemed to be the registrant's or c ommunications provider's
consent for the Town to remove the facility at the registrant's or pr ovider's expens e or for
the Town to allow another person to remove the facility at the registrant's or provider's
expense. The communications services provider or registrant shall be responsible for all
damage to the public rights -of -way and any facilities or utilities damaged as a result of such
removal, and shall restore the public rights -of -way as required in this subjection.
If there are two (2) or more users of a single facility, then this provision shall not become
e ffective until all users cease using the facility. No twithstanding the foregoing, if the facility
is attached to an existing structure that has an independent function such as a light pole,
intersection signal, pedestrian signal, utility pole or the like, said abandonment of the facility
requires removal of the facility only and does not require the removal of the existing
structure.
(w)
Sec. 9. De velopme nt and Obje ctive Design Standards fo r the Placeme nt or M aintenanc e of
Communications Facilities in the Public -Rights -Of -Way.
(a) Terms and conditions for collocation on Town utility poles.
(1) The Town utility poles do not constitute authority utility poles within the meaning of
F.S. §337.401(7). Accordingly, the Town, in its discretion, may reject a registrant's
request to collocate a communications facility on a Town utility pole in the public
rights -of -way. Any registrant allowed to collocate a communications facility on a
Town utility pole shall enter into an agreement with the Town that is acceptable to
the To wn. The Town shall not enter into an exclusive arrange ment with any person
for the right to attach equipment to Town utility poles. The Town reserves the right
to enter into agreements for collocatio n on Town utility poles in its discretion.
(2) Reservation of space on Town utility poles. The Town may reserve the useable
space of the vertical pole component of all Town utility pole s in the public rights -
of -way for future public safety uses. The Town may allow a registrant to replace
a Town utility pole at the re gistrant's sole cost if necessary to accommodate the
co llocation of the small wireless facility and the town's use. The replaced pole
shall continue to be owned by the Town.
(3)
(4)
(5)
The rate to collocate a small wireless facility on a Town utility pole in the public
rights -of -way shall be negotiated between the Town and registrant.
A co llocation of a small wireless facility on a Town utility pole shall comply with all
applicable codes and this Ordinance, and shall not compromise the Town utility
pole's finish, functionality, or structural integrity particularly with respe ct to
vulnerability to high velocity wind conditions.
A collocation of a small wire less facility on a Town utility pole shall not affect the
Town's ability to remove or to replace the pole in its sole discretion. A Town utility
pole that has been partially removed or has been designated to be removed by the
Town shall not be available fo r collocation or repurpose for collo cation. Within
thirty (30) days after re ceiving notification that the Town intends to remove or to
replace the utility pole, the registrant shall remove its collocated small wireless
facility at its cost. In the interest of public safety and safety of Town employees, a
Town structure in the public rights -of -way used to support an avian structure or
facility shall not be available for collocation or repurpose or replacement for
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c ollocation . A Town building or Town utility pole extending fr om a building in the
public rights -of -way shall not be available for collocation, or repurpose or
replacement for c ollocation.
(b) Location context and public safety regulati ons . A pr oposed communications facility shall
comply with the following location context requirements unless waived by the Town. In
conjunction with granting such waiver, the T own may r equire conditions on the permit
approving such facility .
(1) A registrant shall comply with and abide by all applicable provisions of the state
law and Town ordinances, applicable codes and regulations, quasi -judicially
approved conditions for approvals, settlement agreements, applicable contracts,
applicable court orders, and applicable provisions of federal statutes, FCC
regulations and PSC regulations in placing or maintaining a communications
facility in the public rights -of -way. Wireless facilities shall be considered to be
structures under the Florida Building Code, Building Risk Category IV, Structures,
Chapter 16 Section 1620 — 1621, High Velocity Hurricane Zone Area.
(2) All communications facilities shall be placed and maintained so as not to int erfere
with, create any safe ty hazard, or create a visual obstruction to the traveling
public's the use of the public rights -of -way or the use of bicycle lanes or
multipurpose trails. To avoid such visual obstructions, not utility poles for
co llocation of small wireless facilities or ground mounted small wireless facilities
shall be located within traffic circles.
(3)
For public safety purpo se s, aboveground communications facilities, including but
not limited to, small wireless facilities, micro wireless facilities and utility poles for
collocation of small wireless facilities, shall not be placed or maintained on
multipurpose trails.
(4) Communications facilities shall be placed betwee n the property line and the curb
line of a street and shall no t be located within a clear zone.
(5)
All communications facilities shall be placed and maintained so as not to cause
unreasonable interfere nce with the rights, accessibility and safety of pr operty
owners who abut any of the public rights -of -way. By way of example, the
placement or maintenance of a communications facility in the public rights -of -way
shall not cause e xcessive noise or light levels in violation of Chapter 22, Art . III,
Section 22-69, of the Town Code, shall not impede ingress and egress to adjacent
property, materially block views from or into a business or residence, or materially
block visibility of address or other signage on abutting properties.
(6) A registrant shall not place or maintain its communications facilities to interfere,
displace, damage or destroy any facilities, including but not limited to, the Town
drainage plan, sewers, ponds, gas or water mains, storm drains, pipes, cables or
conduits of the Town or any other person's facilities or utilities lawfully o ccupying
the public rights -of -way of the Town, unless waived by the Town.
The Town may prohibit or limit the placement of new or additional communications
facilities within the public rights -of -way if there is insufficient space to
accommodate all of the requests to place and maintain facilities and utilities in the
propose d location of the public rights -of -way, to safely accommodate additional
installatio ns at any location, for the protection of existing facilities and utilities in
the public rights -o f -way, or to accommodate Town plans for public improvements,
other approved capital improvements projects as part of the Town Comprehensive
Plan, the Town's smart technology or projects the Town determines are in the
public interest.
(7)
(8) Facilities to be installed unde rground.
a) All facilities shall be subject to the Town's non-discriminatory
undergrounding requirements that prohibit above -ground structures and
utilities in the public rights -of -way.
b) Unless waived by the Town, all new communications facilities shall be
placed underground, to the extent that new utilities other than fire hydrants
are required to be located underground, including new electric and
communications utilities in accordance with the Town Code. In addition,
to the extent required by applicable PSC rules and regulations, applicable
codes, restrictive covenants, quasi -judicially approved conditions of a
dev elopment, planned unit development, co mmunity development district,
or court order, a registrant shall install its facilities underground.
Additionally, a registrant shall endeavor to place all new facilities
underground unless prevented from doing so by ex isting technology or by
the physical characte ristics of the installation locatio n.
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c) A registrant shall not place or maintain utility poles for the collocation of
small wireless facilities or small wireless facilities in a location in the public
rights -of -way where there are no existing electric or communications utility
poles and where new electric and communications utilities are required to
be installed underground to the extent not inc onsistent with applicable law.
d) New proposed wireline fiber or coaxial backhaul facilities for small wir eless
facilities shall be installed underground consistent with applicable codes
and the Town Code, unless waived by the Town.
e) For purposes of this subsection, unless inconsistent with applicable law,
adoption of a final resolution by the Town Council shall constitute an
undergrounding requirement over any area of the public rights -of -way .
This subsection does not apply to the installation, placement,
maintenance, or replacement of micro wireless facilities on any existing
and duly authorized aerial communicati ons facilities, provided that if the
To wn notifies the registrant of the micro wireless facility that aerial
communications or electric distribution utilities will be converted to
underground utilities, the registrant shall remove its micro wireless facility
at its expense within the time frame required by the Town.
f) Conversion of overhead utilities to underground . No utility poles for the
collocation of small wireless facilities, micro wireless facilities, or small
wireless facilities collocated on utility poles shall be plac ed in a location in
the public rights -of -way where the Town Commission has determined that
existing above ground electric and communicati ons utilities should be
removed and relocated underground. The presence of small wireless
facilities or micro wireless facilities shall n ot be a basis not to comply with
the Town's requirements to convert above ground utilities to underground.
To comply with the Town's undergrounding requirements, a registrant
shall remov e its small wireless facilities, micro wireless facilities, and utility
poles for collocation of small wireless facilities at its expense within 60
days of being no tified by the Town that such facilities must be remo ved .
The Town shall have the right to remove such facilities at the registrant's
expe nse if the registrant fails to do so. For small wireless facilities installed
before the Town adopts requirements that public utility lines must be
place d underground, the Town, in its discretion, shall: (a) allow a wireless
provider to maintain the small wireless facility in place subject to any
applicable pole attachment agreement with the pole owner; or (b) allow
the wireless provider to replace the associate d pole within 50 feet of the
prior location in accordance with the objective design standards contained
within this Ordinance.
g)
Prohibited placement within North Ocean Boulevard. The Town has
undertaken an exte nsive capital project approved by the Town's residents,
to relocate underground all above ground electric utility distribution, cable
television, and communications facilities and to remove associated utility
poles. The areas included in this proje ct inc lude portions of State Highway
A1A, between Pelican Lane on the south and Sea Road on the north in
the Town, also known as North O cean Boulevard, which has been
declared a state scenic and historic highway, pursuant to Chapter 92-152,
Section 165, Public Laws of Flo rida, which provides that it does not prohibit
more restrictive laws or ordinances. A copy of any application or request
for a permit to a governmental agency with jurisdiction over North Ocean
Boulevard shall be provided to the Town when filed. To protect the historic
and scenic character of North Ocean Boulevard, the following activities
and facilities are prohibited within this area and no permits shall be issued
for the following:
Excavation;
ii. Installation and maintenance of backhaul facilitiesi
Installation and maintenance of utility poles for the collocation of
communications facilities, including small wireless facilities;
iv. Installation and maintenance of small wireless facilities;
v. Installation and maintenance of micro wireless facilities; and
vi. Installation and maintenance of ancillary service s, including but
not limite d to, electric power for such facilities.
h) Notwithstanding the provisions of this subsection, the Town may approve
a permit for a new utility pole for collocation of a small wireless facility in
an area where all public utility lines must be placed underground, if a
wirele ss provider satisfies the following:
The wireless provider provides information from a licensed
engineer that the Town has not allowed structures to remain
above ground that are reasonably available to the wireless
provider for the collocation of small wireless facility and that may
30
be replaced by a wireless provider to accommodate the
collocation of small wirel ess facilities;
ii . The proposed utility pole otherwise complies with this Ordinance;
and
The wireless provider provides information acceptable to the
Town from a licensed engineer that it is not r easonably able to
provide wireless s ervice by c ollocation on a remaining utility pole
or other structure in the rights -of -way.
(9)
Prohibition against placement in violati on of OSHA or NESC or NERC rules
and regulations . Communications facilities, including but not limited to small
wireless facilities and utility poles for the c ollocation of small wireless facilities shall
not be placed in a location which violates rules and regulations set by
Occupational Safety and Health Administration or the National Electrical Safety
Code or the North American Electric Reliability Corporation standards . By way
of example and not limitation, if required by such rules and regulations, a
small wireless facility or utility pole intended to support the collocation of a small
wireless facility may not be placed within a ten (10) foot radius of an electric
distribution facility or within a twenty (20) foot radius of an electric transmission
line.
(10) Prohibition against placement within a location subject to homeowners'
association restrictions. Small wireless facilities shall not be place in a location
subject to covenants, restrictions, articl es of incorporation, or bylaws of a
homeowners' associatio n unless specifically authorized by the homeowners'
association. For purposes of this subsection, to the extent not inconsistent with
applicable law, a location in a public right-of-way that abuts parcels within a
homeowners' association on both sides of its width shall be considered a
location subject to covenants, restrictions, articles of incorporation, or bylaws of
such homeowners' association. This subsection shall not apply to limit the
installation, placement, maintenance, or replacement of micro wireless facilities
on any existing and duly authorized aerial communications facility .
(11) Placement in relation to adjacent uses of property and building facades thereon .
Where parking and/or loading spaces are not permitted between a building facade
and the corresponding property line (i. e. fro nt facade and front property line, side
street facade and side street property line) by design standard, or such spaces do
not exist in those locations on existing properties, new communication facilities and
new utility poles for collocation of small wireless facilities shall be placed in -line
with the common, interior side lot lines and shall not be placed in -line with the
front/principal facade of a residence, place of business, or any other principal use
building located on property that abuts the public rights -of -way.
(12) Specific locations, capital improvement proje cts, districts and community
redevelopment agency areas.
(a) A registrant shall not place new utility poles for the collocation of small
wireless facilities, small wireless facilities or micro wire less facilities within
the public rights -of -way in such a location that would interfere with or
impair the Town's ability to pursue the projects identified within the Town's
Capital Improvement Program (CIP), unless waived by the Town Manager.
In conjunction with granting such waiver, the Town may require conditions
on the permit approving such facility so as to minimize the impact on the
CIP. A registrant shall relocate at its expense, its utility poles, small
wireless facilities and micro wireless facilities that need to be relocated to
accommodate the Town's CIP construction, to the extent not inconsistent
with applicable law.
(b) Small wireless facilities, utility poles for collocation of small wireless
facilities and aerial communications facilities shall not be permitted in an
area within the public rights -of -way that would interfere with a public art
program. The Town may notify a registrant to relocate at its cost a utility
pole used for collocation of a small wireless facility or ground mounted
small wireless facility if such location interferes with a planned installation
of art. A registrant that damages an object of art installed pursuant to an
art program shall be responsible for the costs of the art and shall indemnify
the Town as required in this Ordinance. The Town reserves the right to
require an additional bond in conjunction with an application to place or
maintain a communications facility in an area where an art object has been
located.
(13) A structure granted a permit and installed pursuant to this Ordinance shall comply
with F.S. Chapter 333, and To wn or federal regulations pe rtaining to airport
airspace protections.
31
(14) Historic preservation . This Ordinance does n ot limit the Town's authority to enforce
historic preservation zoning regulations consistent with the preservation of local
zoning authority under 47 U.S.C . §332(c)(7), the r equirements for facility
modifications under 47 U.S .C. §1455(a), or the National Historic Preservation Act
of 1966, as amended, and the regulations adopted to implement such laws.
Communications facilities shall not be permitted to be collocated on or to interfere
with historic property or landmark that may be within or adjacent to the public
rights -of -way unless waived by the Town . The Town shall not allow small wireless
facilities, utility poles for the collocation of small wireless facilities or micro wireless
facilities to be located in a manner that would impact negatively historic property
or landmark unless waived by the Town . Historic properties and landmarks may
be so designated as being listed in the National Register of Historic Places
pursuant to the National Historic Preservation Act of 1966, as amended, a property
within a National R egister -listed district, or individually listed in the Florida or Town
Register of Historic Places, consistent with Town codes, administrative rules, or
regulations that were adopted by Town ordinance on or before April 1, 2017, which
are applicable to a hist oric area designation by the state or Town . Any person
see king a permit from any governmental entity with jurisdiction ov er North Ocean
Boulevard shall first submit a request for historic impact review with the appropriate
historic governmental authority and shall provide a copy of such request to the
Town.
(c) Objective design standards.
(1) Intent and purpose. Small wireless facilities in the public rights -of -way and utility
poles installed or repurposed in the public rights -of -way for collocation of small
wireless facilities shall be designed in such a manner to maximize compatibility
with the surrounding neighborhood and to minimize any negative visual impact
on the surrounding ne ighborhood. The objective design standards contained in
this Ordinance regulating the location context, color, stealth design, and
concealment of the pro posed small wireless facility shall apply, unless waived by
the To wn.
(2) Applicants shall not place or maintain signage on communications facilities,
including small wireless facilities or utility poles for collocation of small wireless
facilities, in public rights -of -way, unless otherwise required by federal or State law,
provided; however, existing structures that lawfully supported signage before
being re purposed may continue to support signage as otherwise permitted by law.
(3)
A small wireless facility shall not have any type of lighted signal, lights, or
illuminations unless required by applicable codes, local codes or regulations, a
permit issued by the Town, or state and federal laws and regulations or as
permitted by the Town.
(4) Design standards for Utility Poles. Stealth design for new or replaced utility poles
for collocation of small wireless facilities. All proposed new or replaced utility poles
for collocation of small wireless facilities shall comply with applicable codes and
shall meet the design standards contained in this subse ction unless waived by the
Town.
(a) A replaced or restructured utility pole to accommodate the collo cation of a
small wireless facility shall be in substantially the same location as the
original utility pole.
(b) The replaced or restructured utility pole shall be substantially similar in
finish, base and pole design, diameter, material and height as the original
pole being replaced, unless the Town requires a different design, co lor or
composition to be consistent with applicable Town standards for new utility
poles.
(c) Unless waiv ed by the Town, the height for a new utility pole or replaced
utility pole installed pursuant to this Ordinance shall not exceed the height
of the tallest ex isting utility pole as of July 1, 2017, in the same right-of-
way, measured from grade, in place within 500 feet of the proposed
location of the small wirele ss facility. If there is no utility pole within 500
feet in the same public right-of-way as of July 1, 2017, the height shall be
limited to 50 feet measured from grade. Height shall include only the
height of the utility pole and shall not include any light, antennas, masts or
other attachments to the utility pole.
(d) Unless waived by the Town, a new utility pole shall be designed to be
substantially similar in design to the predominant type of other utility poles
at the proposed location in the same block or vicinity of the public rights -
of -way. Such de sign aspects to follow include the material, base, po le
diameter and style, location and style of attachments, finish, and cap, as
32
applicable. By way of example, if existing utility poles in the same area of
the public rights -of -way are light poles, the new utility pole should be
designed substantially similar to such light poles and to the extent
consistent with location context regulations, equidistant between existing
pol es . Unless waived by the Town, any such stealth utility pole for
collocation of a small wireless facility shall function in the same manner as
the facility it is intended to resemble in compliance with the code, at the
expense of the registrant to the extent n ot inconsistent with applicabl e law.
By way of example, if a registrant installs a utility pole for collocation of a
small wirel ess facility to resemble a nearby light pole, the registrant is
encouraged to include a light that is operated in the same manner as other
light poles, at the registrant's expense . The Town Manager may, in the
exercise of discretion, approve a collocation of a small wireless facility on
a Town light pole that would otherwise not qualify for collocation under this
Ordinance .
(e) Notwithstanding this subs ection, if the proposed location of a new utility
pole for collocation of a small wireless facility is within a public right-of-way
that is within a particular zoning district, planned unit development,
community development district, community redevelopment agency, or a
homeowners' association that has design standards applicable to utility
poles, such propo sed utility pole shall substantially comply with such
de sign standards.
(5)
(f)
(g)
If there are no existing utility poles in close proximity to a proposed new
utility pole for co llocation of a small wireless facility, a proposed n ew utility
pole shall be required to demonstrate the factors required for a proposed
utility pole where all utility lines must be located underground.
This subsection does not authorize the installation of a new utility pole for
co llocation of a small wireless facility in a location that is otherwise
prohibited pursuant to court order, applicable codes, Florida law, or Town
Code including this Ordinance .
Stealth design fo r collocation of small wire less facilities.
(a) Wires, cables and equipment to be collocated on a utility pole shall be
within the utility pole or if not possible to being installed within the utility
pole, covered with a shroud. No exposed wire s or cable s are permitted .
(b) If the utility pole for the propose d collocation of a small wireless facility is
a light pole, a stre et light fixture substantially similar in de sign to the
existing street light fixture shall be used to camouflage the small wireless
facility such as through replacement of the cobra head with a new cobra
head containing the small wireless facility, or a side -mounted light may be
replaced with a substantially similarly designed side mounted light
containing the small wireless facility, to the extent not inconsistent with
applicable law. Unless consistent with the de sign of the utility pole, a small
wireless facility shall not be collocated on a mast of a utility pole. In no
event shall a small wireless facility be collocated on the mast of a utility
pole that serves as a traffic signal pole. Any street light fixture installed by
the registrant shall be maintained in good working order by the registrant
at its cost.
(c) Slim design shall be used wherein the to p mounted antenna does not
e xceed the diameter of the supporting utility pole at the leve l of the
antenna attachment by more than six inche s, or if applicable for other than
round poles, by more than six inches on each side, and side mounted
enclosures, if any, do not extend more than twenty-four (24) inches
beyond the exterior dimensions of the existing structure, repurposed
structure or utility pole at the level of antenna attachment measured from
the edge of the pole to the oute rmost surface of the antenna.
(d) M aximum height restrictions. A small wireless facility, including any
attached antennas, shall not exceed ten (10) feet above the existing
structure, repurposed structure or utility pole upon which the small wireless
facility is to be collocated. A small wireless facility in the public rights -of -
way shall not be used for the attachment of any communications facilities
or fiber other than the equipme nt included within the small wireless facility.
(6) Small wireless facilities not collocated on utility poles or ex isting structures.
(a) Ground -mounted small wireless facilities up to 28 cu. ft. in dimension shall
be located within a ten (10) foot radius of the existing structure or utility
pole for the collocated small wireless facility.
33
(b) The ground -m ounted small wireless facility shall be architecturally
designed and of the same materials and col or finish to be substantially
similar to other at -grade infrastructure within 500 feet of the prop os ed
location in the public rights -of -way such as waste receptacles or utility
facilities. If the ground -mount ed small wireless facility is not substantially
similar to other at -grade infrastructure as set f orth herein, the proposed
small wireless facility shall be submitt ed to the Town for review and
approval.
(c) To the extent not inconsistent with applicable codes, at the Town's
direction, ground -mounted small wireless facilities shall be enclosed in a
wrap the design of which has been approved by the Town staff. The
registr ant shall maintain the wrap in good condition at its sole cost and
expense. The Town may designate specific areas of the Town where all
ground -mount ed small wireless facilities must be enclosed in a wrap.
(d) To the extent not inconsistent with applicable codes, at the Town's direction
the registrant owner of a ground mounted small wireless facility or other
ground mounted communications facilities in the public rights -of -way shall
conceal the facility with landscaping and plantings . Landscaping and
plantings pursuant to this subsection shall be subject to the Town's
approval and be maintained by the registrant at its sole cost and expense
consistent with the co de for so long as the small wireless facility or
communicatio ns facility remains in the public rights -of -way.
(e) The Town Manager is authorized to create a manual showing figures of
acceptable and unacceptable designs for faciliti es to be placed or
maintained in the public rights -of -way.
Development standards for communicatio ns facilities other than small wireless
facilities and utility poles for collocation of small wireless facilities.
(a) Dimensional limits. No communicatio ns facility other than small wireless
facilities located aboveground, excluding utility poles, having exterior
dimensions greater than four feet high, by four and one-half feet long, by
two and one-half feet wide, or having a total volume exceeding 45 cubic
feet, shall be granted a permit for construction or installation nor shall be
constructed within the corporate limits of the Town on any public rights -of -
way unless:
(1) The communication service prov ider can properly demonstrate in
its permit application for placement of communication facilities in
the public rights -of -way that strict compliance with the dimensional
limits in this subse ctio n will prevent the communications service
provider from installing, co nstructing, maintaining, or providing its
communications network; and
(2) The communication service provider demonstrates in its permit
application that the proposed communications facilities it desires
to construct which exceeds the dimensional limits se t forth above
in this subsection are necessary to provide adequate capacity to
meet the requirements of the applicant at a specific location, or
that said limits are otherwise technologically infeasible at the
location, and that the proposed equipme nt the service provider
desires to utilize is of the minimum size available to me et the
requirements of the applicant's communications network; and
(3)
The communications service provider demonstrates in its permit
application that the proposed communications facilities are
located and composed in a manner to minimiz e adve rse impacts
to abutting properties and the surrounding neighborhood and does
not create a hazard by impairment of visibility to motorists or
pedestrians at the pro posed site and does not negatively impact
or violate location and other regulations contained in this
Ordinance: and
(4) The communications facility proposed by the communications
provider does not otherwise create a hazard to the public health,
safety and welfare
(b) Notice to residential areas. Whenever a communications service provider
subject to this subsection submits a permit application to locate
communications equipment which exceeds the dime nsional limits in this
subsection within reside ntially -zoned districts in the Town, the applicant
34
shall provide notice by posting an 18" x 24" sign, satisfactory to the Town,
at the proposed locati on advising residents that they may review the permit
application at the Town and provide th eir comments to the T own. The sign
shall be post ed a minimum of 30 days prior to any decision being made
on the permit application to allow adequate tim e for input by residents and
so as not to unduly delay the processing of any application .
Sec. 10.Fees and Taxes for Access to Publi c Rights -of -Way .
(a) A registrant that places or maintains communications facilities in the public rights -of -way
shall be required to pay fees and taxes as requir ed by applicable law and ordinances of
the Town, including this Ordinance.
(b) Pass -through providers shall pay to the Town on an annual basis an amount equal to five
hundred dollars ($500.00) per lin ear mile or portion thereof of communications facilities
placed and/or maintained in the public rights -of -way . The amounts charged pursuant to
this Ordinance shall be based on the linear mil es of public rights -of -way or portion thereof,
whe re communications facilities are placed, not based on a summation of the lengths of
individual cables, conduits, strands or fibers .
(c) The Town shall discontinue charging pass -through provider fees to a person that has
ceased being a pass -through provider. Any annual amounts charged shall be reduced for
a prorated po rtio n of any 12 -month period during which the pass -through pr ovider remits
communications services taxes imposed by the Town pursuant to Chapter 202, F.S., as
amended.
(d) The initial amount of pass -through provider fees shall be paid prior to issuance of a permit
to a pass -through provider based on the facilities authorized to be installed in the public
rights -of -way pursuant to the permit. The amount due may be modified based upon the
as-builts submitte d by the pass -through provider. Subsequent annual payments of pass -
through provider fees shall be due and payable on October 1 of each year . Fees not paid
within ten (10) 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 Town shall not be construed as an acknowledgement that the amount paid is the
correct amo unt due, nor shall such acceptance of payment be construed as a release of
any claim which the Town may have for additional sums due and payable. All fee payments
shall be subject to audit by the Town, and assessment or refund if any payment is f ound to
be in error. If such audit results in an assessment by and an additional payment to the
Town, such additional payment shall be subject to interest at the rate of o ne (1) percent
per month until the date pa yme nt is made. A pass -through provider shall provide an annual
notarized statement identifying the total number of linear miles of pass -through facilities in
the Town's rights -of -way. Upon request from the Town, limited to no more than once
annually, a pass -through provider must provide reasonable access to maps of pass -
through facilities located in the rights -of -way of the Town. The scope of the request shall
be limited to only those maps of pass -through facilities from which the calculatio n of the
linear miles of pass -through facilities in the public rights -of -way can be determined. The
request shall be accompanied by an affidavit that the perso n making the request is
authorized by the Town to review tax information related to the revenue and mileage
calculations for pass -through providers.
(e) If the payments required by this Section are not made within nine ty (90) days after the due
date, the Town may withhold the issuance of any permits to the registrant until the amount
past due is paid in full, in addition to any other remedies available pursuant to this
Ordinance and applicable law, including but not limited to drawing upon a registrant's
permanent performance bond.
(f)
The Town shall not charge fees for registrations and to process applications for permits
pursuant to this Ordinance to the extent such fees are not authorized by applicable law.
Sec. 11.Enforce ment R emedies.
(a) Nothing in this O rdinance shall affect or limit the remedies the Town has available under
applicable law. In addition to any other remedies a vailable at law, including but not limited
to F. S. §§166.0415(municipalitie s) and Ch. 162, (municipalities and co unties), or equity or
provided in this section, the Town may apply any one or combination of the following
remedies in the event a registrant violates this Ordinance, or applicable local law or order
related to the public rights -of -way.
(b) In addition to the Town's ability to terminate a re gistration pursuant to this Ordinance or to
deny, suspend or revo ke permits, the failure to comply with the provisio ns of this Ordinance
or other law applicable to occupants of the public rights -of -way may re sult in imposition of
penalties to be paid by the responsible person to the Town in an amount of not less than
$100. 00 per day or part thereof that the violation continues. A registrant's or person's
failure to obtain a permit before commencing work, except where a permit is not required
pursuant to this Ordinance, may result in imposition of penalties to be paid to the Town in
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an am ount of not less than $1,000.00 or maximum amount allowed under applicable law,
per day or part thereof that the violation continues .
(c) In addition to or instead of any other remedy, the Town may seek legal or equitable relief
from any court of competent jurisdiction .
(d) Before imposing a fine, the Town shall give written notice of the violation and its intention
to assess such penalties, which notice shall contain a descripti on of the alleged violation.
Following receipt of such notice, the person shall have 30 days to either:
Cure the violation to the Town's satisfaction, and the Town shall make good faith
reasonable efforts to assist in resolving the violation; or
ii. File an appeal with the Town to contest the alleged violation pursuant to this
Section, which shall govern such appeal . If no appeal is filed and if the violation is
not cured within the 30 -day period, the T own may collect all fines owed, beginning
with the first day of the violation, through any means allowed by law.
(e) In determining which remedy or remedies are appropriate, the Town or Special Magistrate
shall take into consideration the nature of th e violation, the person or persons bearing the
impact of the violation, the nature of the remedy required to prevent further violations, and
such other matters as the Town or Special Magistrate determines are appropriate to the
public interest.
(f)
(g)
Failure of the Town to enforce any requirements of this Ordinance shall not constitute a
waiver of the Town's right to enforce that v iolation or subsequent violations of the same
type, or to seek appropriate enforcement remedies.
In any proceeding before the Town where there exists an issue with respect to a registrant's
performance of its obligations pursuant to this Ordinance, the registrant shall be given the
opportunity to provide such information as it may have concerning its c ompliance with th e
terms and conditions of this Ordinance. The To wn may find a registrant that does not
demonstrate co mpliance with the terms and conditions of this Ordinance in default and
apply any one or combination of the remedies otherwise authorized by this Section .
(h) Fo rce majeure. In the event a registrant's performance of or compliance with any of the
provisions of this Ordinance is prevented by a force majeure cause or event not within the
registrant's control, such inability to perform or comply shall be deemed excused and no
penalties or sanctions shall be imposed as a result, provided, however, that such registrant
uses all practicable means to cure or corre ct any such inability to comply expeditiously.
SECTION 4. It is the intention of the Town Commission that the provisions of this Ordinance
shall become and be made a part of the Town Code, which provisions may be renumbered or re -lettered
and the ordinance be changed to "section," " article," or other appropriate word to accomplish such inte ntion.
SECTIO N 5. Repeal of Ordinances in Conflict.
All other ordinances of the Town of Gulf Stream, Florida, or parts thereof in which conflict with this
or any part of this ordinance are hereby repealed to the extent of such conflict.
SECTION 6. Severability.
If any provision of this Ordinance or the application thereof to any person or circumstance is held invalid,
such invalidity shall not affect the other provisions or applications of this Ordinance which can be given effect
without the invalid provisions or applications, and to this end the provisio ns of this O rdinance are hereby
declared severable.
SECTION 7. Effective Date.
This Ordinance shall take effect immediately upon its passage and approval, as provided by law.
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PASSEDND ADOPTED in a regular, adjourn ed sessi on of the Town Com ission on the firs ,reading
this`-' o`F A1)7. , 2020, and for a second and final reading on this 1/ day of .5 -e/ J , 2020 .
MAYO
Approved as to Form:
Town A
CO MMISSIONER
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