(a)

Purpose. The purpose of this ordinance is to establish general guidelines for the siting of wireless telecommunications towers and antennas.

(b)

Goals. The goals of this ordinance are to:

(1)

Protect residential areas and land uses from all potential adverse impacts of towers and antennas;

(2)

Encourage the location of towers in nonresidential areas;

(3)

Minimize the total number of towers throughout the community;

(4)

Strongly encourage the joint use of new and existing tower sites as a primary option rather than construction of additional single-use towers;

(5)

Encourage users of towers and antennas to locate them, to the extent possible, in areas where the adverse impacts on the community are minimal;

(6)

Encourage users of towers and antennas to configure them in a way that minimizes the adverse visual impact of the towers and antennas through careful design, siting, landscape screening, and innovative camouflaging techniques;

(7)

Enhance the ability of the providers of telecommunications services to provide such services to the community quickly, effectively, and efficiently;

(8)

Consider the public health, safety and welfare of the community; and

(9)

Avoid potential damage to adjacent properties from tower failure through engineering and careful siting of tower structures.

In furtherance of these goals, the town shall give due consideration to the town's comprehensive plan, zoning map, existing land uses, and environmentally sensitive areas in approving sites for the location of towers and antennas.

(Code 1993, § 26-331)

(a)

New towers and antennas. All new towers or antennas in the town shall be subject to these regulations, and shall require major site plan review.

(b)

Preexisting towers or antennas. At the time of adoption of this section, no preexisting towers and preexisting antennas exist within the town, except for the guyed tower owned and operated by the town for its public safety department at 6450 North Ocean Boulevard, Ocean Ridge.

(Code 1993, § 26-333)

(a)

Permitted or special exception use. Antennas and towers shall be a "permitted use" on town-owned property and a "special exception use" in the remainder of the "PO" public ownership, "PC" preservation/conservation and "RHM" high density multi-family residential districts. The use and the structure shall be classified as "accessory," and an existing use or an existing structure on the same lot shall not preclude the installation of an antenna or tower on such lot.

(b)

Inventory of existing sites and other applications (search ring). Each applicant for an antenna and/or tower shall provide to the building code administrator an inventory of all existing towers, antennas, or sites for which towers or antennas have been applied or approved, that are either within the jurisdiction of the town or within two miles of the border thereof, including specific information about the location, height, and design of each tower and antenna or proposed tower and antenna.

(c)

Aesthetics. Towers and antennas shall meet the following requirements:

(1)

Towers shall either maintain a galvanized steel finish or, subject to any applicable standards of the FAA, be painted a color so as to reduce visual obtrusiveness.

(2)

At a tower or antenna site, the design of the buildings and related structures shall, to the maximum extent possible, use materials, colors, textures, screening, and landscaping that will blend them into the natural setting and surrounding buildings, and which shall require specific approval by the town commission as part of the site plan review.

(3)

If an antenna is installed on a structure other than a tower, the antenna and supporting electrical and mechanical equipment must be, to the maximum extent possible, of stealth or camouflaged design.

(d)

Lighting. Towers/antennas shall not be artificially lighted, unless required by the FAA or other applicable authority. If lighting is required, the lighting alternatives and design chosen must cause the least disturbance to the surrounding views.

(e)

Current and future state or federal requirements. All towers/antennas must meet or exceed current standards and regulations of the FAA, the FCC, and any other agency of the state or federal government with the authority to regulate towers and antennas. Specifically, the tower owner must demonstrate proof of compliance to the building code administrator of the FCC standards for non-ionizing electromagnetic radiation (NIER), and other emissions must be met prior to the issuance of a construction permit. If such standards and regulations are changed, then the owners of the towers and antennas governed by this ordinance shall bring such towers and antennas into compliance with such revised standards and regulations within six months of the effective date of such standards and regulations, unless a different compliance schedule is mandated by the controlling state or federal agency. Failure to bring towers and antennas into compliance with such revised standards and regulations shall constitute grounds for the removal of the tower or antenna at the owner's expense.

(f)

Building codes; safety standards. Prior to the issuance of a building permit to construct an antenna or tower, the owner/applicant shall provide the town with all applicable approvals from federal, state and county agencies. To ensure the structural integrity of towers, the owner of a tower, and the owner of any private property upon which it is sited, shall be responsible to maintain it in compliance with standards contained in applicable state or local building codes and the applicable standards for towers that are published by the Electronic Industries Association, as amended from time to time. If, upon inspection, the town manager or his/her designee concludes that a tower fails to comply with such codes and standards and constitutes a danger to persons or property, then upon notice being provided to the owner of the tower, and/or the owner of the property, such owner shall have 30 days to bring the tower into compliance with such standards. Failure to bring such tower into compliance within said 30 days shall constitute grounds for the removal of the tower or antenna at the owner's expense.

(g)

Measurement. Measurement of tower setbacks and separation distances shall be calculated and applied in relation to all adjacent facilities whether located inside or outside the boundaries of the town.

(h)

Not essential services. Towers and antennas shall be regulated and permitted pursuant to this ordinance, but are not classified, regulated or permitted as essential services, public utilities or private utilities.

(i)

Franchises and/or site permits or leases. Owners and/or operators of towers or antennas shall certify that all franchises and/or site permits or leases required by law for the construction and/or operation of a wireless communication system in the town have been obtained and shall file a copy of all required franchises with the building code administrator.

(j)

Signs. One unlighted, painted wall or single sided, freestanding sign, not larger than 24 inches × 24 inches shall be provided on the base of the tower, antenna or ancillary structure identifying the name of the owner, mailing address, telephone number and radio frequency (RF). No other signs, except regulatory signs, such as "Danger—High Voltage," shall be permitted on any antenna or tower.

(k)

Public policy preferences; shared use and stealth construction. To lessen proliferation, the town encourages the owners and users of towers and antennae to submit a single application for approval of more than one user on a single site. In addition to any other requirements contained herein, single user applicants must show good cause why they are unable to construct a stealth tower or antenna. Site applications for use by more than one user shall be given priority in the review process; and if more than one application is pending, regardless of the date of application, and as a matter of public policy, a clear preference shall be extended to stealth towers and share use sites.

(Code 1993, § 26-334; Ord. No. 2022-07, § 3, 5-2-2022)

The uses listed in this section are deemed to be permitted uses and shall not require special exception approval.

(1)

Antennas or towers located on property owned, leased, or otherwise controlled by the town are a permitted use, provided the following conditions are met:

a.

A license or lease authorizing an antenna or tower has been approved by the town commission.

b.

Prior to the granting of a building permit for the construction of a tower, a duly noticed and advertised public hearing shall be conducted before the town commission. Such due notice and advertisement of said public hearing shall be provided as in the land development code, except that property owner notification shall be to all property owners within 1,000 feet from any part of the subject property on which the tower is located. The notice and public hearing requirements shall not pertain to the placement of antennas on public buildings.

c.

The town commission may additionally require that the town's telecommunication antennae be accommodated on the proposed tower and as well as some or all of the conditions and standards required for special exceptions uses, below.

(Code 1993, § 26-335)

(a)

General. The following provisions shall govern the review and approval of special exception applications for towers or antennas by the town commission:

(1)

If the tower or antenna is not a "permitted use" as described in section 65-4, then special exception approval shall be required for the construction of a tower or the placement of an antenna only as provided in this section.

(2)

Special exceptions shall be granted only within the "PO" public ownership, "PC" preservation/conservation and "RHM" high density multifamily residential districts.

(3)

In granting special exception approval, the town commission may impose conditions to the extent it concludes such conditions are necessary to minimize any adverse effect of the proposed tower or antenna on adjoining properties.

(4)

Any information of an engineering nature which the applicant submits, whether civil, mechanical, or electrical, shall be certified by a state-licensed professional engineer.

(5)

An applicant for a special exception use shall submit the information described in this section, and for site plans, generally, and shall pay such deposits and fees as may be established by resolution of the town commission.

(b)

Towers/antennas.

(1)

Required information. In addition to any information required for applications for special exception use and site plan approval applicants for a special exception for a tower/antenna shall submit the following information:

a.

A scaled site plan clearly indicating the location, type and height of the proposed tower/antenna, existing on-site land uses and land development (zoning) district, adjacent land uses and zoning (including when adjacent to other municipalities), comprehensive plan future land use designation of the site and all properties within the applicable separation distances set forth above; adjacent roadways, proposed means of access, setbacks from property lines, elevation drawings of the proposed tower/antenna ancillary structures, drainage and topography, utilities, parking, and other information deemed by the building code administrator to be necessary to assess compliance with this article.

b.

Legal description of the parent tract and leased parcel (if applicable).

c.

The setback distance between the proposed tower/antenna and the nearest residential unit, platted residentially zoned properties, and unplatted residentially zoned properties.

d.

The separation distance from other towers/antennas described in the inventory of existing sites submitted pursuant section 65-3(b) shall be shown on an updated site plan or map. The applicant shall also identify the type of construction of the existing tower(s)/antenna(s) and the owner/operator of the existing tower(s), if known.

e.

Landscape plan (not for rooftop antennae): A landscape plan showing specific placement of landscape materials for screening and buffering, and demonstrating removal of all exotic and invasive species as described in the Xeriscape Plant Guide II, published by the South Florida Water Management District, including but not limited to Australian Pine, Brazilian Pepper and Meleleuca.

f.

Method of providing security enclosure and finished color and, if applicable, the method of providing stealth design and illumination.

g.

A description of compliance with all applicable federal, state or local laws including all provisions within this land development code.

h.

A certified statement by the applicant's engineer as to whether construction of the tower will accommodate collocation of additional antennas for future users.

i.

Identification of the entities providing the backhaul network for the tower(s)/antenna(s) described in the application and other cellular sites owned or operated by the applicant in the town.

j.

A "site specific" description of the suitability of the use of existing towers, other structures or alternative technology not requiring the use of towers or structures to provide the services to be provided through the use of the proposed new tower, and a compelling basis for the need for the application, as submitted.

k.

Visual impact analysis: Unless the proposed tower is a stealth tower, a visual impact analysis shall be furnished demonstrating that at least 25 percent of the structure, including anchors and guy wires, if any, shall be screened by landscape, other structures or otherwise, so that it will not be visible from at least three specific points from adjacent rights of way selected by the building code administrator. This analysis shall be prepared and sealed by an architect, engineer, landscape architect or surveyor registered in the state.

l.

Propagation study: This study shall justify the need for the applied for tower/antenna as well as show the feasible location(s) of future towers or antennas within the future annexation area of the town, based upon existing physical, engineering, technological or geographical limitations in the event the proposed tower or antenna is erected.

(2)

Factors considered in granting special exception approval for towers and/or antennas. In addition to any standards for consideration of special exception applications, the town commission shall consider the following factors in determining whether to approve a special exception:

a.

Height of the proposed tower/antenna;

b.

Proximity of the tower/antenna to residential structures, within and without of the town, and residential (zoning) district boundaries; and visual impact upon such residences.

c.

Nature of uses on adjacent and nearby properties;

d.

Surrounding topography;

e.

Surrounding tree coverage and foliage;

f.

Design of the tower/antenna, with particular reference to design characteristics having the effect of reducing or eliminating visual obtrusiveness;

g.

Proposed ingress and egress; and

h.

Availability of suitable existing towers, antennas, other structures, or alternative technologies not requiring the use of towers or structures, as discussed in section 65-5(b)(3) of this article.

(3)

Suitable existing towers, other structures, or alternative technology. No new tower shall be permitted unless the applicant shows cause (affirmatively demonstrates to the reasonable satisfaction of the town commission) that an existing tower, other structure or reasonable alternative technology can not be used to accommodate the applicant's need for a proposed antenna. An applicant shall submit information requested by the town commission related to the availability of suitable existing towers, other structures or alternative technology. Evidence submitted to demonstrate that no existing tower, structure or alternative technology can accommodate the applicant's proposed antenna may consist of any of the following:

a.

No existing towers or structures are located within the geographic area which meet applicant's engineering requirements.

b.

Existing towers or structures are not of sufficient height to meet applicant's engineering requirements.

c.

Existing towers or structures do not have sufficient structural strength to support applicant's proposed antenna and related equipment.

d.

The applicant's proposed antenna would cause electromagnetic interference with the antenna on the existing towers or structures, or the antenna on the existing towers or structures would cause interference with the applicant's proposed antenna.

e.

The fees, costs, or contractual provisions required by the owner in order to share an existing tower or structure or to adapt an existing tower or structure for sharing are unreasonable. Costs exceeding new tower development are presumed to be unreasonable.

f.

The applicant demonstrates that there are other limiting factors that render existing towers and structures unsuitable.

g.

The applicant demonstrates that an alternative technology that does not require the use of towers or structures, such as a cable microcell network using multiple low-powered transmitters/receivers attached to a wire line system, is unsuitable. Costs of alternative technology that exceed new tower or antenna development shall not be presumed to render the technology unsuitable.

(4)

Setbacks. The following setback requirements shall apply to all towers for which a special exception is required:

a.

Towers must be set back a distance equal to at least 110 percent of the height of the tower from any adjoining property lot line, except as provided in (ii) below.

b.

Towers must be set back a distance equal to at least 300 feet from any adjoining residentially zoned or used property lot line.

c.

Guy wires, anchors and accessory buildings are included and must satisfy the minimum zoning district setback and horizontal tower separation requirements.

(5)

Separation. The following separation requirements shall apply to all towers for which a special exception approval is required:

a.

Separation distances between towers shall be applicable for and measured between the proposed tower and preexisting towers. The separation distances shall be measured by drawing or following a straight line between the base of the existing structure(s) (including guy wires, anchors and ancillary structures) and the proposed base of the closest structure, pursuant to the site plan for the proposed tower. The separation distances (listed in linear feet) shall be as shown in Table 1.

Table 1. Separation of Towers by Types

(6)

Security enclosure. Towers shall be enclosed with a security enclosure not less than six feet in height and said towers shall also be equipped with an appropriate anti-climbing device.

(7)

Landscaping. The following requirements shall govern the landscaping surrounding towers for which a special exception is required:

a.

Tower facilities shall be landscaped with a buffer of plant materials that effectively screens the view of the tower compound from property used for residences. The standard buffer shall consist of a landscaped strip at least four feet wide outside the perimeter of the compound. The minimum landscaping within said buffer shall be a continuous four foot high hedge at the time of planting and an ultimate height of six feet, and one tree, 12 feet in height at the time of planting, every 25 lineal feet.

b.

Existing mature tree growth and natural land forms on the site shall be preserved to the maximum extent possible. In some cases, such as towers sited on large, wooded lots, natural growth around the property perimeter may be sufficient buffer.

(Code 1993, § 26-336; Ord. No. 2022-07, § 4, 5-2-2022)

(a)

Antennas mounted on structures or rooftops. The equipment cabinet or structure used in association with antennas shall comply with the following:

(1)

The cabinet or structure shall not contain more than 450 square feet of gross floor area or be more than 12 feet in overall height, assuming at all times that a structural engineer has certified that the structural integrity of the structure or rooftop will not be compromised by the cabinet or structure.

(2)

If the equipment structure is located on the roof of a building, the area of the equipment structure and other equipment and structures shall not occupy more than ten percent of the roof area.

(3)

Equipment storage buildings or cabinets shall comply with all applicable buildings codes.

(b)

Antennas mounted on utility poles or light poles. Antennas shall be prohibited on existing utility or light poles. However, as part of a stealth design, monopoles may be made to look like, and function as light poles.

(c)

Ancillary equipment structures. One ancillary unmanned equipment structure shall not contain more than 450 square feet of gross floor area or more than 12 feet in overall height, may be located with a tower in accordance with the minimum yard requirements of the land use (zoning) district in which located.

(Code 1993, § 26-337)

Any antenna or tower that is not operated for a continuous period of six months shall be considered abandoned, and the owner of such antenna or tower shall remove the same within 45 days of receipt of notice from the town notifying the owner of such abandonment. Failure to remove an abandoned antenna or tower within said 45 days shall be grounds to remove the tower or antenna at the owner's expense. If there are two or more users of a single tower, then this provision shall not become effective until all users cease using the tower.

(Code 1993, § 26-338)

(a)

No expansion of nonconforming use. Towers constructed, and antennas installed, in accordance with the provisions of this ordinance shall not be deemed to constitute the expansion of a nonconforming use or structure.

(b)

Preexisting towers. Preexisting towers shall be allowed to continue their usage as they presently exist. Routine maintenance (including replacement with a new tower of like construction and height) shall be permitted on such preexisting towers. New construction, or replacement of damaged or destroyed towers or antennae other than routine maintenance on a preexisting tower shall comply with the requirements of this article.

(Code 1993, § 26-339)

The Town of Ocean Ridge hereby declares as a legislative finding that the public rights-of-way within the town are a unique and physically limited resource that are critical to the travel and transport of persons and property in the town; that the public rights-of-way must be managed and controlled in a manner that enhances the health, safety and general welfare of the town and its citizens; and that the use and occupancy of the public rights-of-way by providers of communications services must be subject to regulation which can ensure minimal inconvenience to the public, coordinate users, maximize available space, reduce maintenance and costs to the public, and facilitate entry of an optimal number of providers of cable, communications, and other services in the public interest.

It is the intent of the town to promote the public health, safety and general welfare by: providing for the placement or maintenance of communications facilities in the public rights-of-way within the town limits; adopting and administering reasonable rules, regulations and general conditions not inconsistent with state and federal law, including F.S. § 337.401, as it may be amended from time to time, and in accordance with the provisions of the Federal Communications Act of 1996 and other federal and state law; establish reasonable rules, regulations and general conditions necessary to manage the placement and maintenance of communications facilities in the public rights-of-way by all communications services providers; minimize disruption to the public rights-of-way; and require the restoration of the public rights-of-way to original condition.

This article shall apply to any public or private entity who seeks to construct, place, install, maintain or operate a communications system or facilities, as such terms are defined herein, in the public rights-of-way, unless otherwise exempt by operation of applicable state law. This article shall equally apply to a town owned or controlled communications system except to the extent such facilities are utilized on an internal, non-commercial basis by the town or any of its agencies, departments or bureaus. This article shall not apply to the placement of facilities or provision of service in connection with or related to cable television service, open video service or to wireless communications facilities, the placement of which is governed by F.S. ch. 364 and chapter 15 and this chapter of the Code of the Town.

(Ord. No. 556, § 1, 6-6-2005; Ord. No. 580, § 2(d), 9-15-2008)

For the purpose of this article, the following words, terms and phrases shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning. Words not otherwise defined in this section or in any permit that might be granted under this article shall be given the meaning set forth in the Communications Act of 1934, 47 USC 151 et seq., as amended (collectively, the "Communications Act"), and, if not defined therein, as defined by state statute; and, if not defined therein, be construed to mean the common and ordinary meaning.

Abandonment means the permanent cessation of all uses of a communications facility; provided that this term shall not include cessation of all use of a facility within a physical structure where the physical structure continues to be used. By way of example, and not limitation, cessation of all use of a cable within a conduit, where the conduit continues to be used, shall not be "abandonment" of a facility in the public rights-of-way.

Affiliate means each person, directly or indirectly, controlling, controlled by, or under common control with a communications services provider that is registered with the town; provided that affiliate shall in no event mean any limited partner, member, or shareholder holding an interest of less than 15 percent in such communications services provider.

As-built means the final and complete drawings in hard copy signed and sealed by a professional surveyor and mapper (as defined in F.S. § 472.005) and the final and complete electronic overview map (in Autocad, Microstation, Mapinfo or ESRI format) presented in computer input medium such as CD-Rom, DVD or ZIP. As-builts, in both the drawings and the electronic overview map, must show the present state of a communications services provider's facilities in the public rights-of-way, including, but not limited to, the horizontal and vertical location of facilities located at least every 100 feet and at any alignment change. Horizontal locations on all points of facilities shall be from street centerline, or section or quarter section lines or corners. Vertical locations on all points of facilities shall consist of elevations in either town datum or United States Geological Survey datum.

Colocate or colocation means the shared use of facilities, such as poles, ducts or conduit, including but not limited to the placement of conduit owned by more than one user of the public rights-of-way in the same trench or boring and the placement of equipment owned by more than one user in the same conduit. Colocation does not include interconnection of Facilities or the sale or purchase of capacity.

Communications or telecommunications facility, facility or facilities means any portion of a communications system located in the public rights-of-way.

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

Communications or telecommunications services provider means:

(1)

Any person, municipality or town providing communications services through the use and operation of a communications system or communications facilities installed, placed or maintained in the public rights-of-way, regardless of whether such system or facilities are owned or leased by such person, municipality or town and regardless of whether such person, municipality or town has registered with the Florida Department of Revenue as a provider of communications services in Florida pursuant to F.S. ch. 202, and

(2)

Any person, municipality or town who constructs, installs, places, maintains or operates communications facilities in the public rights-of-way but who does not provide communications services, including, for example, a company that places "dark fiber" or conduit in the public rights-of-way and leases or otherwise provides those facilities to another company that does provide communications services.

Communications or telecommunications system or facility means any permanent or temporary plant, equipment and property placed or maintained in the public rights-of-way that is occupied or used, or is capable of being occupied or used, by a communications services provider for the purpose of producing, conveying, routing, transmitting, receiving, amplifying, distributing, providing or offering communications services including, but not limited to, cables, wires, lines, conduits, fiber optics, antennae, radios and any associated poles, converters, splice boxes, cabinets, hand holes, manholes, vaults, drains, surface location markers, and other plant, equipment and pathway.

Dealer means any person, municipality or town providing communications services to an end user in ocean ridge through the use and operation of communications facilities installed, placed and maintained in the public rights-of-way, whether owned or leased, and who has registered with the Florida Department of Revenue as a provider of communications services pursuant to F.S. ch. 202. This definition of dealer is intended to include any reseller.

Excavation or other similar formulation of that term means the cutting, trenching or other disturbance to the public rights-of-way intended to change the grade or level of land or which causes any cavity, gap, depression, penetration or hole in the surface of the public rights-of-way.

FCC means the Federal Communications Commission.

Government means the United States of America, the State of Florida or the Town of Ocean Ridge, Florida, and any of their respective agencies, departments or bureaus.

In the public rights-of-way means in, along, on, over, under, across or through the public rights-of-way.

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

Nondealer means any person, municipality or town that places or maintains a communications system or communications facilities in the public rights-of-way but who does not provide communications services, including, for example, a company that places "dark fiber" or conduit in the public rights-of-way and leases or otherwise provides those facilities to another company that does provide communications services to an end user. This definition of nondealer is intended to include any person that places or maintains pass-through facilities in the public rights-of-way, but does not provide communications services to an end user within the corporate limits of the town.

Pass-through facilities means the facilities for a communication system that merely pass through the town from one point to another point and from which no revenues are directly attributable to subscribers or other carriers within the town.

Person means any individual, firm, joint venture, partnership, estate, trust, business trust, syndicate, fiduciary, association, corporation, company, organization or legal entity of any kind, including any affiliate, successor, assignee, transferee or Personal representative thereof, and all other groups or combinations, and shall include the town to the extent that the town acts as a communications services provider.

Placement or maintenance or other similar formulation of that term means the named actions interpreted broadly to encompass, among other things, erection, construction, reconstruction, installation, inspection, maintenance, placement, replacement, extension, expansion, repair, removal, operation, occupation, location, relocation, grading, undergrounding, trenching or excavation. Any communications services provider that owns, leases or otherwise controls the use of a communications system or facility in the public rights-of-way, including the physical control to maintain and repair, is "placing or maintaining" a communications system or facility. A person providing service only through buying wholesale and then reselling is not "placing or maintaining" the communications facilities through which such service is provided. The transmission and receipt of radio frequency signals through the airspace of the public rights-of-way does not constitute "placing or maintaining" facilities in the public rights-of-way.

PSC means the Florida Public Service Commission.

Public rights-of-way means a road, street, highway, bridge, tunnel or alley that is owned by the town, publicly held by the town or dedicated to the town for public use and over which the town has jurisdiction and control and may lawfully grant access pursuant to applicable law, and includes the space above, at or below the surface of such right-of-way. "Public rights-of-way" shall include public utility easements and town services easements that are under the jurisdiction and control of the town wherein the town now or hereafter acquires the right to locate or permit the location of communications facilities; provided that the terms and conditions of any such easement expressly allow, or any restrictions thereon do not expressly prohibit, the use of the particular easement for purposes other than which it was conveyed, dedicated or condemned. "Public Rights-of-Way" shall not include:

(1)

state or federal rights-of-way,

(2)

Property owned by any person other than the town,

(3)

Service entrances or driveways leading from the road or street onto adjoining property, or

(4)

Except as described above, any real or personal property of the town, such as, but not limited to, town parks, buildings, fixtures, poles, conduits, sewer lines, facilities or other structures or improvements, regardless of whether they are situated in the public rights-of-way.

Recurring local service revenues means revenues from the monthly recurring charges for local service, including but not limited to:

(1)

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

(2)

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

(3)

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

(4)

Revenues from the sale of local services for resale;

(5)

Other local service revenues from the provision of secondary features that are integrated with the communications network, including, without limitation, services such as call forwarding, call waiting, and touchtone line service; and

(6)

Except as provided herein, revenues from all recurring local services provided by a registrant over a communications facility or system in the public rights-of-way shall constitute recurring local service revenues subject to this article. Recurring local service revenues do not include revenues from:

a.

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

b.

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

c.

Interstate service;

d.

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

e.

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

f.

Public telephone charges collected on site;

g.

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

Registrant or facility owner shall mean a communications company or other person which seeks to use the public rights-of-way that has registered with the town in accordance with the provisions of this article.

Registration and register shall mean the process described in section 65-52, whereby a communications service provider provides certain information to the town.

Reseller means any person providing communications services within the town over a communications system, or portion thereof, for which a separate charge is made, where that person does not place or maintain, nor own or control, any of the underlying facilities in the public rights-of-way used for transmission. Instead such person purchases the service, usually at wholesale, from a communications services provider and then resells it at retail or such person uses the public rights-of-way by either interconnecting with the facilities of a communications services provider utilizing the public rights-of-way or by leasing excess capacity from a facility-based communications services provider.

Security fund shall mean a cash deposit, letter of credit, or performance bond as set forth in this article. The security fund shall be used to guarantee the compliance with performance requirements and payment of all sums which may become due to the town under this article entered into by the town and a provider of communications services. The amount of the security fund shall be the amount that the town determines, under circumstances existing at the time, that is necessary to protect the public, and to enable the city to effectively enforce compliance therewith, but in no event less than [$_____].

(Ord. No. 556, § 2, 6-6-2005; Ord. No. 580, § 2(d), 9-15-2008)

Editor's note— Franchise fees will be established by action of the town council.

(a)

Each communications service provider that desires to place, erect, construct, install, locate, maintain, repair, extend, expand, remove, or relocate any communications facilities in, under, over or across any public right-of-way in the town shall be considered to be using the public rights-of-way and shall be required to register with the town in accordance with the terms of this article.

(b)

Any communications service provider desiring to use the public right-of-way shall file a registration with the town manager which shall include the following information:

(1)

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

(2)

A statement of whether the applicant presently provides retail serves to any communications services customers within the jurisdictional limits of the town at the time of registration or whether the applicant simply intends to lease its facilities to other telecommunication service providers who will be providing direct service to retail customers within the jurisdictional limits of the town. This information will allow the town to follow up with the registrant at the time the registrant begins to make physical use of the public rights-of-way, and to determine whether a linear mile charge is applicable in accordance with section 65-53;

(3)

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

(4)

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

(5)

A security fund in accordance with this article.

(c)

The town will review the information submitted by the applicant. Such review will be by the town manager or his or her designee. If the applicant submits information in accordance with this section, the registration shall be effective and the town shall notify the applicant of the effectiveness of registration in writing. If the town determines that the information has not been submitted in accordance with this section, the town shall notify the applicant of the non-effectiveness of registration, and reasons for the non-effectiveness, in writing. The town shall so reply to an applicant within 30 days after receipt of registration information from the applicant. Upon notification of the non-effectiveness of the registration, nothing herein shall preclude the applicant from filing a subsequent application addressing the basis for the non-effectiveness. If the registrant disputes the determination of non-effectiveness for the particular application submitted, the only avenue of redress shall be an appeal under subsection 65-56(p). Failure to comply with the appeals section for the particular application found to be non-effective shall be sufficient grounds for the town to reject that particular application in the future. A registrant may cancel a registration upon written notice to the town manager stating that it will no longer maintain facilities in the public rights-of-way and will no longer need to pull permits to perform work in public right-of-way. Within 30 days of any change in the information required to be submitted pursuant to this section, registrant shall provide updated information to the town.

(d)

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

(e)

Each application for registration or transfer shall be accompanied by a nonrefundable application fee in the amount of $800.00. The fee amount shall be equal to the town's costs and expenses incurred in connection with approving the registration or transfer. If the application fee is insufficient to cover all costs or expenses incurred by the town in connection with approval of the registration or transfer the applicant shall reimburse the town for any such costs and expenses in excess of the application fee. Fee amounts may be amended from time to time, by ordinance of the town commission, for the purpose of complying with this provision.

(f)

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

(Ord. No. 556, § 3, 6-6-2005; Ord. No. 580, § 2(d), 9-15-2008)

(a)

A registrant that makes physical use of the public rights-of-way and who is not providing communications services as defined in F.S. § 203.012(3), or a registrant that makes physical use of the public rights-of-way and who is not serving a communications service customer at retail within the jurisdictional limits of the town at the time the registrant begins to make physical use of the public right-of-way, shall pay to the town annually no less than $500.00 per linear mile of any cable, fiber optic, or other pathway that makes physical use of the public rights-of-way. The town may adopt additional fees or other consideration, provided that any fee or other consideration imposed by the town in excess of $500.00 per linear mile shall be applied in a nondiscriminatory manner and shall not exceed the sum of:

(1)

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

(2)

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

(3)

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

The fee or other consideration imposed pursuant to this subsection shall not apply in any manner to any communications company which provides communications services as defined in F.S. § 203.012(3) for any services provided by such communications company.

(b)

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

(c)

Except to the extent prohibited by applicable law:

(1)

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

(2)

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

(3)

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

(4)

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

(Ord. No. 556, § 4, 6-6-2005; Ord. No. 580, § 2(d), 9-15-2008)

(a)

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

(1)

Any pleadings, petitions, notices, and documents, regarding any legal proceeding involving any provisions of this article which are reasonably necessary for the town to protect its interests under this article.

(2)

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

(3)

Nothing in this section shall affect the remedies the registrant has available under applicable law.

(b)

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

(c)

The town may inspect any materials such as books, records, accounts or any other information reasonably required by the town to determine compliance with this article.

(d)

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

(Ord. No. 556, § 5, 6-6-2005; Ord. No. 580, § 2(d), 9-15-2008)

(a)

A registrant shall install its facilities underground. This provision shall apply prospectively for all new facilities, to the extent that this obligation is not expressly prohibited by federal law, state law or applicable PSC rules and regulations.

(b)

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

(c)

Any communications facilities heretofore or hereafter placed upon, under, over, or along any public rights-of-way that is found by the town to be unreasonably interfering 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 written notice to the Registrant or its agent, be removed or relocated, within 30 days of such notice, by such Registrant at its own expense consistent with F.S. § 337.403. The town manager may extend the time within which a registrant shall remove or relocate a communications facility for good cause shown.

(d)

The registrant shall not in any way displace, damage, or destroy any facilities, including, but not limited to, gas, sewer, water main, pipe, cable, conduit, fiber optic, or other pathway or any other facilities belonging to the town. The registrant shall be liable to the town for the costs of any repairs made necessary by any such displacement, damage or destruction, of facilities belonging to the town, and the registrant shall pay such costs upon demand. In the case of an emergency, the town may commence repairs without any prior notice to the registrant. The term emergency shall mean a condition that may affect the public's health, safety or welfare. In the event of an emergency, the town may cause the repairs to be made at the facility owner's expense, utilizing town employees, agents or contractors, charge any and all costs, and require reimbursement within 30 days after the submission of the bill by the town to the registrant. After 30 days, the town may obtain reimbursement from the security fund. In all other non-emergency circumstances, the registrant shall be given prior written notice. If such repairs are not performed in a reasonable and satisfactory manner within the 30 calendar days after receiving notice, the town may cause the repairs to be made at the facility owner's expense, utilizing town employees, agents or contractors, charge any and all costs, and require reimbursement within 30 days after the submission of the bill by the town to the registrant. Again, after 30 days, the town may obtain reimbursement from the security fund.

(e)

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 change the same at its own expense to conform to the directive within the time stated in the notice, the town may proceed to cause the communications facility to be removed. The expense thereby incurred, except as provided in F.S. § 337.403(1)(a)—(c), shall be paid out of any money available therefore, and such expense shall be charged against the owner of the communications facility and levied, collected and paid to the town.

(f)

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

(g)

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

(h)

The Town retains the right and privilege to cut or remove any facilities located within the public rights-of-way as the town manager in his/her reasonable discretion 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 notify the owner of the facility, if known, prior to cutting or removing a facility and shall notify the owner of the facility, if known, after cutting or removing a facility.

(i)

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

(j)

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 requesting 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 notice to arrange for such temporary relocation.

(Ord. No. 556, § 6, 6-6-2005; Ord. No. 580, § 2(d), 9-15-2008)

(a)

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

(b)

[Application, permit.] Except in the case of an emergency, no communications service provider shall construct any facility over, under or within any public right-of-way which disrupts the public rights-of-way without first filing an application with and obtaining a permit from the town therefore, pursuant to applicable permitting requirements of the town, and other applicable Town Code requirements, except as otherwise provided in this article. 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 still be required to provide prior notice to the Town in the event of an emergency. For the purposes of the notice requirements herein, the town shall provide the registrant with a town contact. When work is performed on an emergency basis, the registrant must still apply for a permit by the following business day in accordance with the town's permitting guidelines. In all instances, the registrant shall restore all damaged property and indemnify the town from any and all damages caused by the registrant's emergency work. Unless otherwise required by this article, the town may waive the permit requirement in cases where there will be no disruption of the public rights-of-way.

(c)

[Proposal for construction.] As part of any permit application with respect to new or existing facilities, where applicable, in the public rights-of-way, the registrant shall provide a proposal for construction of the communications facility that sets forth at least the following:

(1)

An engineering plan signed and sealed by a Florida registered professional engineer or prepared by a person who is exempt from such registration requirements as provided in F.S. § 471.003 identifying the location of the proposed facility, including a description of the facilities to be installed, where it is to be located, and the approximate size of facilities and equipment that will be located in, on, over, or above the public rights-of-way.

(2)

Maps showing the routing of new construction that involves an alteration to the surface or subsurface of the public right-of-way. A registrant may not begin construction until the plans and drawings have been approved in writing by the town engineer and a permit is issued.

(3)

A description of the manner in which the facility will be installed (i.e. anticipated construction methods and/or techniques).

(4)

The time required to place the facility.

(5)

A maintenance of traffic plan for any disruption of the public rights-of-way.

(6)

Information on the ability of the public rights-of-way to accommodate the proposed facility, if available (such information shall be provided without certification as to correctness, to the extent obtained from other users of the public rights-of-way).

(7)

If appropriate, given the Facility proposed, an estimate of the cost of restoration to the public rights-of-way.

(8)

And, such plan shall include the timetable for construction for each phase of the project, and the areas of the town which will be affected.

(9)

Any such additional information as the town engineer finds reasonably necessary to review an application for a permit to perform work in the public rights-of-way.

(d)

[Powers of town.] To the extent not otherwise prohibited by state or federal law, the town shall have the power to prohibit or limit the placement of new or additional facilities within the public rights-of-way, if there is insufficient space to accommodate all of the requests to occupy or use the rights-of-way, for the protection of existing facilities in the public rights-of-way, or for town plans for public improvements which have been determined by the town to be in the public interest.

(1)

In case of conflict or interference between the facilities of different registrants, the registrant whose facilities were first permitted shall have priority over a competing registrant's use of the public rights-of-way. The resolution of any conflict or interference shall be made in a manner which is consistent with the non-discrimination provisions of the Federal Communications Act of 1996 and state law.

(2)

There may be from time to time within the town various easements and streets which the town does not have the unqualified right to authorize registrant to use; therefore, the town does not warrant or represent as to any particular easement, rights-of-way, or portion of a right-of-way or easement, that it has the right to authorize the registrant to install or maintain portions of its facilities therein, and in each case the burden and responsibility for making such determination in advance of the installation shall be upon the registrant. The town shall not be required to assume any responsibility for the securing of any rights-of-way, easements or other rights which may be required by the registrant for the installations of its facilities, nor shall the town be responsible for securing any permits or agreements with other persons or utilities.

(3)

Nothing in this article 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 for communications facilities.

(4)

Upon request of the town, a registrant may be required to coordinate the placement or maintenance of facilities under a permit with any other work, construction, installation or repairs that may be occurring or scheduled to occur within a reasonable time frame in the subject public rights-of-way, and registrant may be required to reasonably alter its placement or maintenance schedule as necessary so as to minimize disruptions and disturbances in the public rights-of-way.

(e)

[Interference with use of the public rights-of-way.] All facilities shall be installed, located and maintained so as not to unreasonably interfere with the use of the public rights-of-way by the public and so as not to cause unreasonable interference with the rights and convenience of property owners who adjoin any of the public rights-of-way. The registrant shall be liable for costs and expenses for the displacement, damage or destruction of any irrigation system or landscaping within the public rights-of-way, to the extent not covered by the construction bond. In the event the registrant fails to make the appropriate repairs, to restore such property to as good a condition as existed prior to the commencement of the work, the affected property owner may file a complaint with the town manager or his/her designee. In this instance, the registrant shall be given prior written notice of the necessary repairs by the town manager or designee. If such repairs are not performed in a reasonable and satisfactory manner within 30 calendar days after receiving notice, the town may cause the repairs to be made at the facility owner's expense, utilizing town employees, agents or contractors, charge any and all costs, and require reimbursement within 30 days after the submission of the bill by the town to the registrant. After 30 days, the town may obtain reimbursement from the security fund. The "prior written notice" described in this subsection shall be considered a final written decision for purposes of the appellate rights outlined in subsection (p).

(f)

[Trenchless technology.] The use of trenchless technology (i.e., directional bore method) for the installation of facilities in the public rights-of-way as well as joint trenching and/or the colocation of facilities in existing conduit is strongly encouraged, and should be employed wherever possible.

(g)

[Additional rules, regulations.] The town manager may issue such additional rules and regulations concerning the placement and maintenance of a communications facility in the public rights-of-way, as may be consistent with applicable law and not inconsistent with this article.

(h)

[Safety practices.] All safety practices required by applicable law or accepted industry practices and standards shall be used during construction, maintenance, and repair of the communications facilities. Registrant's work, while in progress, shall be properly protected at all times with suitable barricades, flags, lights, flares or other devices as are required by the Manual on Uniform Traffic Control Devices (FDOT) and/or any requirements of the town to protect all members of the public having occasion to use the portion of the streets involved or adjacent property.

(i)

[Alteration or change of grade by town.] If at any time during the term of the rights granted herein the town shall lawfully elect to alter, or change the grade of, any public rights-of-way, upon reasonable notice by the town, the registrant shall make any necessary removals, relaying and relocations of its communications facilities at its own expense, in accordance with applicable law. The town reserves the right to place and maintain, and permit to be placed or maintained, sewer, gas, water, electric, storm drainage, communications or other types of facilities, cables or conduits, 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 the public rights-of-way occupied by the registrant.

(j)

[Permits, fees.] A facility owner shall obtain any and all required permits and pay any and all required fees before commencing any construction on or otherwise disturbing any public rights-of-way as a result of its construction.

(1)

The registrant shall, at its own expense, restore such property to as good a condition as existed prior to commencement of work. A registrant shall guarantee its restoration for a period of 12 months after the completion of such restoration. If such restoration is not performed in a reasonable and satisfactory manner within 30 calendar days after the completion of construction, the town may, after prior written notice to registrant, cause the repairs to be made at the facility's owner expense, utilizing town employees, agents or contractors, charge any and all costs, and require reimbursement within 30 days after the submission of the bill by the town to the registrant.

(2)

A permit from the town constitutes authorization to undertake only certain activities on public rights-of-way in accordance with this article, and does not create a property right or grant authority to impinge upon the rights of others who may have an interest in the public rights-of-way.

(k)

[Inspections for compliance.] All ongoing installation, construction and maintenance of a communications facility located in the public rights-of-way shall be subject to the town's periodic inspection for compliance with this article, or any applicable provisions of this article and the Town Code.

(l)

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

(m)

[As-built plans.] The registrant shall, upon request of the town engineer and at no cost to the town, produce and provide a complete set of as-built plans including, but not limited to, horizontal and typical vertical profiles, within 60 days after construction of any portion of the system to the town engineer. A registrant shall cooperate with the town by providing timely and complete information requested under this subsection. Upon completion of any installation or construction of new facilities in public right-of-way, at no cost to the town, the registrant shall provide such information, as may be requested, showing the exact location of its facilities and structures, including but not limited to, maps, geographical information systems, plats, construction documents, drawings and any other information the town may find reasonably necessary. Such plans shall be provided in digitized format showing the two-dimensional location of the facilities based on the town's geographical database datums, or other format acceptable to the town manager. All information required by this section shall be maintained in accordance with the public records laws of the state.

(n)

Suspension or denial of permits. Subject to subsection (p) below, the town manager or a designee may suspend an existing permit or deny an application for a permit for work in the public rights-of-way for one or more of the following reasons:

(1)

Violation of permit conditions, including conditions set forth in this Ordinance or other applicable provisions of this article or the Town Code or regulations governing use of public rights-of-way; or

(2)

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

(3)

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

(4)

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

a.

Place barricades or signs around the work area,

b.

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

c.

Repair, replace and restore any sidewalk, street, alley, pavement, water, sewer or other utility line or appurtenance, soil, landscaping, dirt or other improvement, property or structure of any nature.

In the event of such failure, the town may perform the work utilizing town employees, agents or contractors, charge any and all costs, and registrant shall be required to reimburse the town within 30 calendar days after the submission of the bill by the town to registrant. In the event the town incurred costs as described herein, the registrant shall be required to reimburse the town for any and all such costs before the suspension or denial can be lifted. the town manager shall have the discretion to waive this requirement.

(o)

Immediately after the suspension or denial of permit pursuant to this section, the town shall provide written notice of the violation, which notice shall contain a description of the violation. A final written decision of the town manager suspending a permit or denying an application for a registration is subject to appeal. Upon correction of any violation that gave rise to a suspension or denial of permit, the suspension or denial shall be lifted.

(p)

All final written decisions may be appealed, by filing a written notice of appeal with the town clerk and providing copies to the town manager and town attorney. An appeal must be filed with the town within 30 days of the date of the final, written decision to be appealed. Any appeal not timely filed as set forth herein shall be waived. The notice of appeal shall state the decision which is being appealed, the grounds for appeal, a brief summary of the relief 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 or designee. The town manager 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, Florida, or applicable federal or 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.

(q)

In the event registrant desires to use its existing facilities or to construct new Facilities for the purpose of providing other utility or nonutility services to existing or potential consumers or resellers, by providing cable services, or any other services other than the provision of communications service, or for providing any other use to existing or potential consumers, a registrant shall seek such additional and separate authorization from town for such activities as may required by applicable law.

(r)

To the extent that any person or registrant leases or otherwise uses the facilities of an entity that is duly registered or otherwise authorized to place and maintain facilities in the public rights-of-way of the town, the 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 the person's ability to provide service or on the registrant's ability to maintain its own communications facilities in the public rights-of-way of the town.

(Ord. No. 556, § 7, 6-6-2005; Ord. No. 580, § 2(d), 9-15-2008)

(a)

The involuntary termination of a registration may only be accomplished by an action of the town commission. The town may declare the registration terminated and revoke and cancel all privileges granted under that registration if:

(1)

A federal or state authority suspends, denies, or revokes a registrant's certification to provide communications service,

(2)

The registrant is adjudicated bankrupt by a United States District Court or through any legal proceeding of any kind, or that a receiver is appointed to take possession of the assets of the registrant, or

(3)

The registrant abandons all of its facilities.

(b)

Prior to such termination by the town resulting from a violation of any of the provisions of this subsection, the registrant shall be notified by the town manager with a written notice setting forth all matters pertinent to such violation and describing the action of the town with respect thereto. The registrant shall have 60 days after receipt of such notice within which to cure the violation, or within which to present a plan, satisfactory to the town Commission, to accomplish the same. In the event of an emergency, the Town may take appropriate action in accordance with section 65-55. In the event of a vote by the town commission to terminate, the registrant shall, within a reasonable time following such termination, remove or abandon the facilities and take such steps as are necessary to render every portion of the facilities remaining within the public right-of-way of the town safe. If the registrant has either abandoned its facilities or chooses to abandon its facilities, the town may either:

(1)

Require the registrant's bonding company to remove some or all of the facilities from the public right-of-way and restore the public right-of-way to its proper condition, or

(2)

The town may require that some or all of the facilities be removed and the public right-of-way restored to its proper condition at the registrant's expense, utilizing town employees, agents or contractors, and charge any and all costs, and require reimbursement.

(c)

The obligations of the registrant and the bonding company hereunder shall survive for a period of 24 months from the termination of the registration. In the event of a termination of registration, this provision does not permit the town to cause the removal of any facilities that are used to provide another service for which the registrant holds a valid certification with the governing federal and state communications agencies and is properly registered with the town for such certificated service, under this section.

(Ord. No. 556, § 8, 6-6-2005; Ord. No. 580, § 2(d), 9-15-2008)

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

(Ord. No. 556, § 9, 6-6-2005; Ord. No. 580, § 2(d), 9-15-2008)

(a)

If the registrant transfers or assigns its registration incident to a sale or other transfer of the registrant's assets, the transferee or assignee shall be obligated to comply with the terms of this article. Written notice of any transfer, sale or assignment shall be provided to the town within 20 days following the effective date of the transfer, sale or assignment. In order for the transfer of registration to be effective, the transferee or assignee must comply with the registration requirements under section 65-52.

(b)

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

(Ord. No. 556, § 10, 6-6-2005; Ord. No. 580, § 2(d), 9-15-2008)

(a)

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

(1)

$250,000.00 for property damage in any one accident;

(2)

$500,000.00 for personal bodily injury to any one person; and

(3)

$1,000,000.00 for personal bodily injury in any one accident.

(b)

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

(c)

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

(d)

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

(e)

A registrant shall, at its sole cost and expense, release, indemnify, hold harmless, and defend the 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, sustained by the town, in connection with each such claim, suit, cause of action or proceeding including, but not limited to, reasonable attorney's fees, arising out of the construction, maintenance or operation of its communications system or facilities in the public rights-of-way, regardless of whether the act or omission complained of is authorized, allowed or prohibited by this article, provided, however, that a facility owner's obligation hereunder shall not extend to any claims caused by the negligence of the town. This indemnity shall survive and continue in full force and effect as to the registrant's responsibility to indemnify. Town agrees to notify the registrant, in writing, within a reasonable time of the town receiving notice, of any issue it determines may require indemnification. Nothing in this section 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 there exists or may exist a conflict, potential conflict or appearance of a conflict. Nothing contained in this provision shall be construed or interpreted:

(1)

As denying to either party any remedy or defense available to such party under the laws of the state of, and

(2)

As a waiver of sovereign immunity beyond the waiver provided in F.S. § 768.28.

(Ord. No. 556, § 11, 6-6-2005; Ord. No. 580, § 2(d), 9-15-2008)

(a)

Except in the case of an emergency, as described in subsection 65-56(b), prior to performing any work in the public rights-of-way, a registrant may be required to establish in the town's favor a construction bond in an amount specified in an engineering permit or other authorization as necessary to ensure the registrant's faithful performance of the construction in the public rights-of-way, in accordance with applicable sections of this article or the Town Code. The amount of the construction bond shall be as set forth in the engineering permit, and may be modified in the town manager's reasonable discretion, based on the cost of the restoration to take place in the public rights-of-way, and any previous history of the registrant concerning restoration within the public rights-of-way of the town. The town manager, in his or her discretion, or designee, may request a certified estimate of the cost of restoration by a Florida registered professional civil engineer or certified by a person who is exempt from such requirements as provided in F.S. § 471.003.

(b)

In the event a registrant subject to such a construction bond fails to complete the work in a safe, timely and competent manner in accordance with the provisions of the permit, there shall be recoverable, jointly and severally from the principal and surety of the bond, any damages or loss suffered by the 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 attorneys' fees, up to the full amount of the bond.

(c)

Twelve months after completion of the construction and satisfaction of all obligations in accordance with the bond, the town shall eliminate the bond. Notwithstanding, the town may require a new bond for any subsequent work performed in the public right-of-way.

(d)

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

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

(e)

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

(f)

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

(Ord. No. 556, § 12, 6-6-2005; Ord. No. 580, § 2(d), 9-15-2008)

(a)

At the time of registration, the registrant shall file with the town manager, for his or her approval, a cash security, a bond, or irrevocable letter of credit, in the sum of $25,000.00, in a form acceptable to the town manager or a designee. For purposes of the bond and irrevocable letter of credit, the registrant must have as a surety a company qualified to do business in the state. The cash security, bond, or irrevocable letter of credit, shall be to secure the full and faithful performance by the registrant of all requirements, duties and obligations imposed upon registrant by the provisions of this article, and to pay any taxes, fees or liens. The bond or irrevocable letter of credit shall be furnished annually, or as frequently as necessary, and shall provide a continuing guarantee of the registrant's full and faithful performance at all times. Should the town draw upon the cash security, bond, or irrevocable letter of credit, the town shall promptly notify the registrant, and the registrant shall within 30 calendar days restore the cash security, annual bond or irrevocable letter of credit, to the full required amount. In the event a registrant fails to perform its duties and obligations imposed upon the registrant by the provisions of this article, there shall be recoverable, jointly and severally from the principal and surety of the bond, any damages or loss suffered by the town as a result, including the full amount of any compensation or indemnification, plus a reasonable allowance for attorneys' fees, up to the full amount of the bond. The case [cash] security, bond or letter of credit may be waived by the town manager where the town manager determines that the security fund is not necessary to secure the required performance under this article. The town may from time to time increase the amount of the security fund to reflect the increased risks to the town and to the public.

(b)

Additionally, the town, upon 30 days' advance written notice clearly stating the amount and the reason for, and its intention to exercise withdrawal rights under this subsection, may withdraw an amount from the Security Fund, provided that the Registrant has not reimbursed the Town for such amount within the 30-day notice period. Withdrawals may be made if the registrant:

(1)

Fails to make any payment required to be made under any part of this article. Nothing in this section, however, shall create a limitation or prevent the town from immediately making a withdrawal, for nonpayment, from the security fund on the 31st calendar day after the submission of a bill to the registrant under subsections 26-407(D), 26-408(E) and 26-408(N)(4);

(2)

Fails to pay any liens relating to the facilities that are due and unpaid;

(3)

Fails to reimburse the town for any damages, claims, costs or expenses which the town has been compelled to pay or incur by reason of any action or nonperformance by the registrant arising out of the construction, maintenance or operation of its communications system or facilities; or

(4)

Fails to comply with any provision of this article, which failure the town determines can be remedied by an expenditure of an amount from the security fund.

(c)

Within 30 days after receipt of written notice from the town that any amount has been withdrawn from the security fund, the registrant shall restore the security fund to the amount specified in this article.

(d)

The rights reserved to the town with respect to the security fund are in addition to all other rights of the town, whether reserved by this article or authorized by other law, and no action, proceeding or exercise of a right with respect to such security fund will affect any other right the town may have.

(Ord. No. 556, § 13, 6-6-2005; Ord. No. 580, § 2(d), 9-15-2008)

(a)

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

(1)

Registrant's failure to comply with the provisions of this article or law applicable to users and/or occupants of the public rights-of-way may result in imposition of penalties to be paid by the registrant to the town in an amount of $100.00 per day or part thereof that the violation continues.

(2)

A registrant's failure to obtain a permit before commencing work, except in cases of an emergency, may result in imposition of penalties to be paid to the town in an amount of not less than $1,000.00 per day or part thereof that the violation continues.

(3)

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

(b)

Before imposing a fine pursuant to this section, the town manager or a designee shall give written notice of the violation and its intention to assess such penalties, which notice shall contain a description of the alleged violation. Following receipt of such notice, the registrant shall have 30 days to either:

(1)

Cure the violation and the town manager or a designee shall make good faith reasonable efforts to assist in resolving the violation, or

(2)

File an appeal in accordance with subsection 65-66(p).

If the violation is not cured within that 30-day period, and no appeal is filed, the town may collect all fines owed, beginning with the first day of the violation, either by removing such amount from the security fund or through any other means allowed by law.

(c)

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

(d)

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

(e)

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

(f)

The town manager or his/her designee shall be responsible for administration and enforcement of this article and is authorized to give any notice required by law.

(g)

Nothing in this article shall affect the remedies the registrant has available under applicable law.

(Ord. No. 556, § 14, 6-6-2005; Ord. No. 580, § 2(d), 9-15-2008)

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

(Ord. No. 556, § 15, 6-6-2005; Ord. No. 580, § 2(d), 9-15-2008)

(a)

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

(b)

This article shall be applicable to all communications facilities permitted to be placed in the public rights-of-way, on or after the effective date of this article [June 6, 2005], and shall apply to all existing communications facilities in the public rights-of-way prior to the effective date of this article, to the full extent permitted by state and federal law. Providers with existing lines and cables have 120 days from the effective date of this article [June 6, 2005] to comply with the terms of this article, or be in violation thereof.

(c)

The town reserves to itself the right to intervene in any suit, action or proceeding involving any provision of this article. Registrant agrees to devise town of any such suits.

(Ord. No. 556, § 16, 6-6-2005; Ord. No. 580, § 2(d), 9-15-2008)