(a)

Findings.

(1)

The Communications Act of 1934, as amended by the Telecommunications Act of 1996 ("the Act"), grants the Federal Communications Commission (FCC) exclusive jurisdiction over all the following:

a.

Evaluating the environmental effects of radio frequency emissions from personal wireless service telecommunications facilities and the city may not regulate the placement, construction and modification of such facilities on that basis.

b.

The regulation of radio signal interference among users of the radio frequency spectrum.

(2)

The city's regulation of towers and telecommunications facilities will not prohibit, or have the effect of prohibiting, the provision of wireless telecommunications services.

(b)

Purposes.

(1)

The general purpose of this section is to regulate the placement, construction and modification of towers and telecommunications facilities in order to protect the health, safety and welfare of the public, while at the same time not unreasonably interfering with the development of the competitive wireless telecommunications marketplace in Satellite Beach, Florida.

(2)

Specifically, the purposes of this section are:

a.

To regulate the location of towers and telecommunications facilities in the city;

b.

To protect residential areas, environmentally sensitive lands and other land uses from potential adverse impacts of towers and telecommunications facilities;

c.

To minimize adverse visual impact of towers and telecommunications facilities through careful design, siting, landscaping, and innovative camouflaging techniques;

d.

To promote and encourage shared use (co-location) of towers and antenna support structures as a primary option rather than construction of single-use towers;

e.

To promote and encourage utilization of technological designs that will either eliminate or reduce the need for the erection of new towers to support antennae and telecommunications facilities;

f.

To avoid potential damage to property caused by towers and telecommunications facilities by ensuring that such structures are soundly and carefully designed, constructed, modified and maintained, and removed when no longer used or determined to be structurally unsound.

g.

To ensure that towers and telecommunications facilities are compatible with surrounding land uses, and to minimize any potentially adverse impacts of such towers and facilities.

(c)

Definitions. The following words, terms and phrases, when used in this section, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:

(1)

"Antenna support structure" means any building or other structure other than a tower which can be used for the location of telecommunications facilities.

(2)

"Applicant" means any person that applies for a tower development permit.

(3)

"Application" means all written documentation, verbal statements and representations, in whatever form or forum, made by an applicant to the city concerning a request by the owner of property within the city (or his agent) to develop, construct, build, modify or erect a tower and telecommunications facilities upon such property.

(4)

"Engineer" means any engineer licensed by the State of Florida. Radio frequency engineers do not have to be licensed by the state; however, for purposes of this section, their qualifications must include specific experience in the field and employment or retention by the telecommunications provider in a professional technical capacity.

(5)

"Guyed tower" means a tower that is supported, in whole or in part, by guy wires and ground anchors.

(6)

"Monopole tower" means a tower consisting of a single pole or spire self-supported by a permanent foundation, and constructed without guy wires and ground anchors.

(7)

"Owner" means any person with fee title or a long-term leasehold (lease with a minimum of ten years remaining in its term, with options to renew excluded from a determination of the term) to any property within the city who desires to develop, construct, build, modify or erect a tower upon such property.

(8)

"Self-support lattice tower" means a tower that is constructed without guy wires and ground anchors.

(9)

"Stealth tower" means any tower or telecommunications facility which is designed to enhance compatibility with, or blend into, adjacent uses, including, but not limited to, architecturally screened roof-mounted antennas, antennas integrated into architectural elements, and towers designed to look other than like a tower, such as light poles, power poles and trees.

(10)

"Telecommunications facilities" means any cables, wires, lines, wave guides, antennae and any other equipment or facilities associated with the transmission or reception of telecommunications which a person seeks to locate or have installed upon or near a tower or antenna support structure. However, the term telecommunications facilities shall not include:

a.

Any satellite earth station antenna two meters in diameter or less which is located in an area zoned industrial or commercial; or

b.

Any satellite earth station antenna one meter or less in diameter, regardless of zoning category.

(11)

"Tower" means a self-supporting lattice, guyed or monopole structure constructed from grade which supports telecommunications facilities. The term tower shall not include amateur radio operators' equipment, as licensed by the FCC.

(d)

Applicability. Except as provided below, these provisions shall apply throughout the corporate limits of the City of Satellite Beach, and no telecommunications tower or antenna shall be permitted except in compliance with these provisions:

(1)

Exceptions.

a.

Any telecommunication tower or antenna that is owned and operated by a federally licensed amateur radio operator or is used exclusively for receive-only antenna.

b.

Any telecommunication antenna which is not attached to a telecommunication tower or antenna support structure which is accessory to any commercial, industrial, institutional, multifamily, or public utility use and structure provided that:

1.

The telecommunication antenna does not exceed 20 feet above the highest point of the structure or the height limitation for the district, whichever is less. This shall include ground-mounted satellite dish antennas which shall be regulated as structures;

2.

The telecommunication antenna complies with all applicable FCC and FAA regulations; and

3.

The telecommunication antenna complies with applicable building codes.

(e)

Development of towers.

(1)

No tower shall be built, constructed or erected in the city unless the tower is capable of supporting another operating telecommunications facility comparable in weight, size and surface area to the telecommunications facilities installed by the applicant on the tower.

(2)

No tower shall exceed 85 feet in height from the crown of the road. No variances shall be granted for height.

(3)

An application to develop a tower shall include:

a.

The names, addresses and telephone numbers of all owners of other towers or usable antenna support structures within the city and within one-half mile of the boundary of the city, including any on publicly owned property, as well as the location of same. If the applicant is not the owner of the parcel of land upon which the tower is to be located, the written consent of the owner, under oath, shall be evidenced in the application.

b.

An affidavit demonstrating that the applicant made diligent efforts for permission to install or co-locate the applicant's telecommunications facilities on all publicly owned towers or usable antenna support structures located within a one-half-mile radius of the proposed tower site.

c.

An affidavit demonstrating that the applicant made diligent efforts to install or co-locate the applicant's telecommunications facilities on towers or usable antenna support structures owned by any other person located within a one-half-mile radius of the proposed tower site.

d.

A description of the technological design plan proposed by the applicant in the city. An applicant must demonstrate why design alternatives to a tower, such as microcell design, cannot be utilized to accomplish the provision of applicant's proposed telecommunications services. An applicant must also demonstrate with full disclosure of technical data why the proposed site is required for the applicant's telecommunications network.

e.

Written, technical evidence from a qualified radio frequency engineer, under oath, that the proposed tower or telecommunications facilities cannot be installed or co-located on another person's tower or usable antenna support structure located within a one-mile radius of the proposed tower site because of the coverage requirements of the applicant's wireless communications system.

f.

A written statement from a qualified radio frequency engineer, under oath, that the construction and placement of the tower will not interfere with public safety communications and the usual and customary transmission or reception of radio, television, or other communications service enjoyed by adjacent residential and nonresidential properties.

g.

Written, technical evidence from an engineer(s) that the proposed structure meets the standards set forth in section 30-801(h), "structural requirements."

h.

Written, technical evidence from a qualified engineer(s) acceptable to the fire marshal and the building official that the proposed site of the tower or telecommunications facilities does not pose a risk of explosion, fire or other danger to life or property due to its proximity to volatile, flammable, explosive, or hazardous materials such as LP gas, propane, gasoline, natural gas, corrosive or other dangerous chemicals.

i.

A written statement from a qualified radio frequency engineer, under oath, that the proposed tower and telecommunications equipment and facilities will be installed and constructed so as not to cause radio frequency interference to other telecommunications equipment to be located on such tower, specifically including co-location of equipment.

j.

Full-color photo-simulations showing the proposed site of the tower with photo-realistic representations of the proposed tower as it would appear viewed from nearby residential properties and from adjacent roadways.

k.

The power density of applicant's telecommunications facilities and how such facilities meet the FCC's regulations on the environmental effects of radio frequency emissions. Such information may be made available to the general public upon request. Applicant shall meet or exceed all such FCC regulations now or hereinafter adopted, and in the event, by federal law or regulation, jurisdiction is relinquished over wireless telecommunications facilities with respect to the environmental effects of radio frequency emissions, applicant shall meet or exceed any applicable city and other governmental regulations thereafter adopted.

l.

Letters from the Federal Communications Commission, Federal Aviation Administration and department of defense documenting that each of the foregoing agencies has no objection to the proposed location of the telecommunications tower or other telecommunications facilities.

m.

Any and all radio frequency power density contour maps required to be filed with any public agencies reflecting safety limits and expected peak levels for any telecommunication towers and/or facilities. Actual measured level contour maps shall be provided after completion of construction but prior to issuance of a certificate of occupancy.

n.

The applicable application fee.

o.

Statement by the applicant, under oath, that applicant will in good faith offer and negotiate with other telecommunications providers for co-location on any tower or telecommunications facilities, it being expressly understood by applicant that consideration of any application is predicated upon good faith performance of such requirement.

(f)

Conditional uses. No person shall build, erect or construct a telecommunications facility upon any plot of land within any zoning district set forth below unless a conditional use permit shall have been approved by the Satellite Beach City Council. A conditional use for a telecommunications tower shall be valid for a period of one year and shall be considered a constructed tower for the purpose of measuring separation between towers. If construction of the tower and ancillary structures has not been completed within one year of the date of adoption of any ordinance authorizing any such facility, the conditional use shall expire.

(1)

Towers and monopoles may be authorized as a conditional use only in the RM-3, Commercial and Institutional zoning districts. However, no towers or monopoles shall be located on Samsons Island or any waters within the jurisdiction of Satellite Beach.

(2)

Modification of tower sites in any zoning district shall require a conditional use.

(3)

Factors to be considered in granting conditional use permits:

a.

The City of Satellite Beach shall consider the following factors in addition to those set forth in section 30-409 in determining whether to issue a conditional use:

1.

Height of the proposed telecommunication tower and concomitant fall radius of such tower;

2.

Proximity of the telecommunication tower to residential structures and residential district boundaries;

3.

Nature of uses on adjacent and nearby properties;

4.

Surrounding topography;

5.

Surrounding tree coverage and foliage;

6.

Design of the telecommunication tower, with particular reference to stealth design characteristics that have the effect of reducing or eliminating visual obtrusiveness; and

7.

Availability of suitable existing telecommunications towers and other structures. No new communication tower shall be permitted unless the applicant demonstrates to the reasonable satisfaction of the City of Satellite Beach that no existing communication tower or structure can accommodate the applicant's proposed antenna. Evidence submitted to demonstrate that no existing communication tower or structure can accommodate the applicant's proposed antenna may consist of any of the following:

(a)

No existing telecommunication towers or structures are located within the geographic area required to meet applicant's engineering requirements, which must be supported by technical data supporting such position.

(b)

Existing telecommunication towers or structures are not of sufficient height to meet applicant's engineering requirements, which must be supported by technical data supporting such position.

(c)

Existing telecommunication 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 existing telecommunication towers or structures, or the antenna on the existing telecommunication 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 telecommunication tower or structure or to adapt an existing communication tower or structure for sharing are unreasonable. Costs exceeding new telecommunication tower development are presumed to be unreasonable.

(f)

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

b.

The City of Satellite Beach may add restrictions or waive or reduce the burden on the applicant of one or more of these criteria if the City of Satellite Beach concludes that the goals of this division are better served thereby.

(g)

Setbacks.

(1)

All towers shall be set back on all sides a distance of 1¼ feet for each foot of height, but in no case less than the underlying setback requirement in the applicable zoning district.

(2)

Setback requirements for towers shall be measured from the base of the tower to the property line of the parcel on which it is located. All structures included with the tower shall be included in determining the setback.

(3)

Guy wires and anchors shall meet the minimum setbacks for the district in which they are located or 25 feet, whichever is greater, and shall be located on the same parcel as the tower.

(4)

A minimum setback of ten feet from all overhead utilities shall be required for any structure, other than a tower, in addition to any other setbacks required by either this division or any other requirements of the city's land development regulations.

(h)

Structural requirements. All towers must be designed and certified by an engineer to be structurally sound and, at a minimum, in conformance with the city's building code, and any other standards outlined in this section. All towers must also be certified and constructed to meet or exceed all wind load requirements of any applicable codes. All towers shall operate from a fixed location. All guy wires, tower components, hardware and any other part of the tower shall be galvanized and protected against corrosion and electrolytic action, or be certified by an authority acceptable to the city, based upon accepted engineering standards, to be unaffected by corrosion or electrolytic action.

(i)

Separation or buffer requirements.

(1)

The separation distances between towers shall be measured by drawing or following a straight line between the base of the existing or approved structure and the proposed base, pursuant to a site plan of the proposed tower. Tower separation distances from residentially used or zoned property shall be measured from the base of a tower to the closest point of residentially used or zoned property.

(2)

Towers shall be separated from all residentially used or zoned property, other than RM-3, by a minimum of 200 feet or a distance equal to 200 percent of the height of the proposed tower, whichever is greater. The minimum tower separation distances from residentially used or zoned property and from other towers shall be calculated and applied irrespective of municipal or county jurisdictional boundaries.

(3)

Proposed towers must meet the following minimum separation requirements from existing towers or towers which have a development permit but not yet constructed, irrespective of jurisdiction, at the time a development permit is granted pursuant to this section:

a.

Monopole towers shall be separated from all other towers, whether monopole, self-support lattice or guyed, by a minimum of 2,630 feet.

b.

Self-support lattice or guyed towers shall be separated from all other self-support or guyed towers by a minimum of 2,630 feet.

c.

Self-support lattice or guyed towers shall be separated from all monopole towers by a minimum of 2,000 feet.

(j)

Method of determining tower height. Measurement of tower height for the purpose of determining compliance with all requirements of this section shall include the tower structure itself, the base pad, and any other telecommunications facilities attached thereto. Tower height shall be measured from the crown of the road.

(k)

Illumination. Towers shall not be artificially lighted except as required by the Federal Aviation Administration (FAA). If lighting is required by federal law and the tower is to be located a distance from residentially used or zoned property equal to or less than 300 percent of the tower height, dual mode lighting shall be requested from the FAA and installed upon FAA approval.

(l)

Exterior finish. Towers not requiring FAA painting or marking shall have an exterior finish which enhances compatibility, and blends with adjacent uses, as approved by the appropriate reviewing body.

(m)

Landscaping. Landscaping shall be required on all property containing towers, antenna support structures or telecommunications facilities. In addition to the landscaping that may otherwise be required in the zoning district where the tower, antenna support structure or telecommunications facilities are located, the following items shall be required:

(1)

A continuous hedge shall be required on the exterior side of the perimeter fencing which shall be a minimum of three feet in height at the time of planting and must be capable of growing to a minimum of six feet in height. The hedge must be of sufficient density to create an opaque screen outside the fence and be a minimum of ten feet in depth.

(2)

Approved trees must be planted ten feet apart and must be at least six to eight inches DBH and at least ten feet tall at the time of planting.

(n)

Fencing. All parcels containing freestanding towers or telecommunications facilities, other than stealth facilities, shall be fenced. Unless more stringent fencing requirements are required by FCC regulations, a fence or wall as provided in section 30-516 shall completely surround all such facilities, and shall be located coterminous with the setback lines. Landscaping shall be located between the property line and the fence/setback line.

(o)

Signs and advertising. No signs or advertising shall be placed on any tower unless otherwise required by law, except the property may be posted to prohibit trespassing.

(p)

Access. Property upon which a tower is located must provide access to at least one unpaved vehicular parking space on site

(q)

Security. All towers must be reasonably posted and secured to protect against trespass. All towers must be constructed to preclude any person from climbing upon or scaling any such towers.

(r)

Stealth. All stealth towers must be approved as a conditional use.

(s)

Structures. A telecommunications facility may include a structure to house equipment associated with the facility. Any such structures shall not exceed 800 square feet in area or 12 feet in height.

(t)

Telecommunications facilities on antenna support structures.

(1)

Any telecommunications facilities which are not attached to a tower may be permitted on antenna support structure only in RM-3, Commercial and Institutional zoning districts. The owner of such structure (or his agent) shall, by written certification to the building official, establish the following at the time plans are submitted for a building permit:

a.

That the height of the telecommunications facilities shall not exceed the height of the antenna support structure by more than 20 feet.

b.

That the antenna support structure and telecommunications facilities comply with the city's building code.

c.

That any telecommunications facilities and their appurtenances, to be located on or above the primary roof of an antenna support structure, will be set back one-foot in height above the primary roof for each one-foot in height above the primary roof of the telecommunications facilities. This setback requirement shall not apply to telecommunications facilities and their appurtenances to be located on the primary roof of an antenna support structure, if such facilities will be appropriately screened from view through the use of panels, walls, fences or other screening techniques approved by the city. Such setback requirements shall not apply to stealth antennas to be mounted to the exterior of antenna support structures below the primary roof, and which will not protrude more than 18 inches from the side of such antenna support structure. Primary roof means the roof that has the greatest square footage.

d.

That the antenna support structure is at least 35 feet in height. Requests to install telecommunications facilities on antenna support structures of less than 35 feet in height will be considered by the building official upon submission of full-color photo-simulations showing that such telecommunications facilities will be appropriately screened.

(2)

Telecommunications facilities on an antenna support structure which were in compliance with the zoning regulations applicable at the time such facilities were established and for which all required permits were issued may continue in existence as a nonconforming structure.

(u)

Modification of existing towers.

(1)

A tower which was in compliance with the zoning regulations applicable at the time the tower was established and for which all required permits were issued may continue in existence as a nonconforming structure or use, either or both of which may apply. If a nonconforming structure, the structures may be modified, or demolished and rebuilt without complying with any of the additional requirements of this section, except for section 30-801(i), "separation or buffer requirements," section 30-801(v), "certification and inspections," and section 30-801(w), "maintenance," provided that:

a.

The tower is being modified or demolished and rebuilt for the sole purpose of accommodating (within six months of the completion of the modification or rebuild) additional telecommunications facilities comparable in weight, size and surface area to the discrete operating telecommunications facilities of any person currently installed on the tower.

b.

An application for a development permit is made pursuant to section 30-801(e) and (f). The grant of a development permit pursuant to this section allowing the modification, demolition and rebuild of an existing nonconforming tower shall not be considered a determination that the modified, or demolished and rebuilt tower is conforming.

c.

The height of the modified or rebuilt tower and telecommunications facilities attached thereto shall not exceed the height of the original tower.

(2)

Except as provided in this section, nonconforming towers and telecommunications facilities shall be regulated by section 30-419.

(v)

Certifications and inspections.

(1)

All towers shall be certified by an engineer to be structurally sound and in conformance with the requirements of the city's building codes, federal and state law. All telecommunications facilities shall comply with all radio frequency requirements imposed by the Federal Communications Commission or any other federal, state or other regulatory agency.

(2)

Monopole towers for which a certificate of occupancy has been issued on or after the effective date of this section shall contain the certification required by subsection (1) and shall be inspected and certified every year as being in conformance with the requirements of the city's building codes, National Electric Safety Code and all FCC, state and local regulations. Existing monopole towers shall be so certified within 60 days of the effective date of this section and then every year thereafter. Lattice or guyed towers for which a certificate of occupancy has been issued on or after the effective date of this section shall be inspected and certified every year as being in conformance with the requirements of the city's building codes, National Electric Safety Code and all FCC, state and local regulations. Existing lattice or guyed towers shall be so certified within 60 days of the effective date of this section and then every year thereafter. All such certifications and inspections shall be made by and at the sole cost of the tower owner or his agent and submitted to the city. A tower may be required by the city to be more frequently certified should there be reason to believe that the structural and electrical integrity of the tower is jeopardized.

(3)

The city or its agents shall have authority to enter onto the property upon which a tower is located, between the inspections and certifications required above, to inspect the tower for the purpose of determining whether it complies with all applicable laws and regulations.

(4)

The city reserves the right to conduct such inspections at any time, upon reasonable notice to the tower owners or operator. All expenses related to such inspections by the city shall be borne by the tower owner or operator.

(5)

All radio frequency reports, contour maps, audits, filings and similar documents required to be filed with the Federal Communications Commission, or any other federal, state or other regulatory agency, shall be filed with the city at such time as any person governed by this section files such item(s) with any such agencies.

(w)

Maintenance.

(1)

Tower owners shall at all times employ ordinary and reasonable care and shall install and maintain in use nothing less than commonly accepted methods and devices for preventing failures and accidents which are likely to cause damage, injuries, or nuisances to the public.

(2)

Tower owners shall install and maintain towers, telecommunications facilities, wires, cables, fixtures and other equipment in compliance with the requirements of the city's building codes, this section, National Electric Safety Code and all FCC, state and local regulations, and in such manner that will not interfere with the use of other property.

(3)

All towers, telecommunications facilities and antenna support structures shall at all times be kept and maintained in good condition, order, and repair so that the same shall not menace or endanger the life or property of any person.

(4)

All maintenance or construction on towers, telecommunications facilities or antenna support structures shall be performed by licensed maintenance and construction personnel.

(5)

All towers shall maintain compliance with current radio frequency emission standards of the FCC or any superseding city, state and county regulations.

(6)

In the event the use of a tower is discontinued by the tower owner, the tower owner shall provide written notice to the city of its intent to discontinue use and the date when the use will be discontinued.

(x)

Criteria for tower development modifications.

(1)

The planning and zoning advisory board shall review and recommend, and the city council may grant, a conditional use in accordance with section 30-801(f) to allow site plan development modifications to setbacks, separation or buffer requirements and maximum height based upon the following criteria:

a.

In addition to the requirement for a tower application, the application for modification shall include the following:

1.

A description of how the plan addresses any adverse impact which might occur as a result of approving the modification.

2.

A description of off-site or on-site factors which mitigate any adverse impacts which might occur as a result of the modification.

3.

A technical study which documents and supports the criteria submitted by the applicant upon which the request for modification is based. The technical study shall be certified by a qualified radio frequency engineer and shall document the existence of the facts related to the proposed modifications and its relationship to surrounding rights-of-way and properties.

4.

For a modification of the setback requirement, the application shall identify all property where the proposed tower could be located, attempts by the applicant to contact and negotiate an agreement for location or co-location and the result of such attempts.

5.

The city may require the application to be reviewed by an independent engineer under contract to the city to determine whether the antenna study supports the basis for the modification requested. The cost of review by the city's engineer shall be reimbursed to the city by the applicant.

b.

Consideration of the application for modification shall be based on the following criteria:

1.

That the tower as modified will be compatible with and not adversely impact the character and integrity of surrounding properties, and further, will not create any threat to the public health, safety and welfare.

2.

Off-site or on-site conditions exist which mitigate the adverse impacts, if any, created by the modification.

3.

In addition, the board may include conditions on the site where the tower is to be located if such conditions are necessary to preserve the character and integrity of the neighborhoods affected by the proposed tower and mitigate any adverse impacts which arise in connection with the approval of the modification.

4.

The location, shape, appearance or nature of use of the proposed tower will not substantially detract from the aesthetics of the area or change the character of the neighborhood in which the tower is proposed to be located.

(2)

In addition to the requirements of section 30-801(f), the applicant for the following modifications must also demonstrate with written evidence:

a.

In the case of a requested modification to the setback requirement pursuant to section 30-801(g):

1.

That the size of the property upon which the tower is proposed to be located makes compliance impossible, and the alternative for the person is to locate the tower at another site which poses a greater threat to the health, safety and welfare of the public or which is closer in proximity to a residentially used or zoned property; or

2.

That a modification to the setback requirement will reduce the visual impact of the tower, such as placement near trees.

b.

In the case of a request for modification from the requirements of section 30-801(i), "separation or buffer requirements," with respect to distance from residentially used or zoned property, the person provides written technical evidence from a qualified radio frequency engineer, under oath, that the proposed tower and telecommunications facilities must be located at the proposed site in order to meet the coverage requirements of the applicant's wireless communications system and if the person is willing to create approved landscaping and other buffers to screen the tower from being visible to residentially used or zoned property.

c.

In the case of a request for modification of section 30-801(e)(2) with respect to the maximum height for towers and telecommunications facilities, that the modification is necessary to:

1.

Facilitate co-location of telecommunications facilities in order to avoid construction of a new tower; or

2.

Meet the coverage requirements of the applicant's wireless communications system, which requirements must be documented with written, technical evidence from a qualified radio frequency engineer, under oath, that demonstrates that the height of the proposed tower is the minimum height required to function satisfactorily, and no tower that is taller than such minimum height shall be approved.

d.

Any request for relief under this subsection must meet the criteria set forth in section 30-205(b)(3) for granting a variance. The city council shall hear all requests for relief hereunder, and any relief must be approved by the concurring vote of four members of the city council.

(y)

Insurance. Each applicant shall, as a condition of the grant of a development permit, secure and maintain the following insurance policies insuring the applicant, the owner if different, the city, and the city's elected and appointed officers, officials, agents, and employees, if located on city property, as co-insured:

(1)

Comprehensive general liability insurance with limits not less than:

a.

$5,000,000.00 for bodily injury or death to each person;

b.

$5,000,000.00 for property damage resulting from any one accident; and

c.

$5,000,000.00 for all other types of liability.

(2)

Automobile liability for owned, nonowned and hired vehicles with a limit of $3,000,000.00 for each person and $3,000,000.00 for each incident.

(3)

Worker's compensation within statutory limits, and employer's liability insurance with limits of not less than $1,000,000.00.

(4)

Comprehensive form premises-operations, explosions and collapse hazard, underground hazard and products completed hazard with limits of not less than $3,000,000.00.

(5)

The liability insurance policies required by this section shall be maintained by the applicant throughout the life of any permitted telecommunications facilities and/or towers, and any period of removal of its telecommunications facilities and/or towers. Each such insurance policy shall contain substantially the following endorsement:

It is hereby understood and agreed that this policy may not be canceled nor the intention not to renew be stated until 90 days after receipt by the city, by registered mail, of a written notice addressed to the city manager of such intent to cancel or not to renew.

(6)

Within 60 days after receipt by the city of such notice, and in no event later than 30 days prior to such cancellation, the applicant shall obtain and furnish to the city replacement insurance policies meeting the requirements of this section.

(z)

General indemnification. Each applicant shall include, to the extent permitted by law, applicant's express undertaking to defend, indemnify and hold the city and its officers, employees, agents and representatives harmless from and against any and all damages, losses and expenses, including reasonable attorney's fees and costs of suit or defense, arising out of, resulting from or alleged to arise out of or result from the negligent, careless or wrongful acts, omissions, failures to act or misconduct of the applicant or its affiliates, officers, employees, agents, contractors or subcontractors in the construction, operation, maintenance, repair or removal of its telecommunications facilities, and in providing or offering telecommunications services over the facilities or network, whether such acts or omissions are authorized, allowed or prohibited by this section or by a grant agreement made or entered into pursuant to this section.

(aa)

Performance and construction surety. Before a development permit is granted pursuant to this section, and as necessary thereafter, the applicant shall provide and deposit such monies, bonds, letters of credit or other instruments in form and substance acceptable to the city as may be required by this section or by an applicable license or franchise agreement if constructed on city property, in amount necessary to construct such tower or to disassemble that portion of the tower assembled if not completed within 60 days of commencement.

(bb)

Security fund. Each applicant shall establish within 60 days from the date of any conditional use granting the right to construct any telecommunications facilities and/or towers, but prior to commencement of construction, a permanent security fund with the city by depositing $50,000.00 with the city in cash, which fund shall be maintained at the sole expense of applicant so long as any of grantee's telecommunications facilities and/or towers are located within the city, or the fund is otherwise refunded to the applicant by the city.

(1)

The fund shall serve as security for the full and complete performance herein, including any costs, expenses, damages or loss the city pays or incurs because of any failure attributable to the applicant to comply with any code, ordinance, rule, regulation or permit of the city. It shall also be available to the city for purposes of removing any abandoned telecommunications facilities and/or towers, and making any repairs necessitated by the failure of the applicant to perform same.

(2)

Before any sums are withdrawn from the security fund, the city shall give written notice to the applicant:

a.

Describing the act, default or failure to be remedied, or the damages, cost or expenses which the city has incurred by reason of applicant's act or default;

b.

Providing a reasonable opportunity for applicant to first remedy the existing or ongoing default or failure, if curable;

c.

Providing a reasonable opportunity for applicant to pay any monies due the city before the city withdraws the amount thereof from the security fund, if applicable;

(3)

Applicant shall replenish the security fund within 14 days after written notice from the city that there is a deficiency in the amount of the fund.

(cc)

Abandonment. If the use of any telecommunications facilities and/or tower is discontinued for the purpose for which it was constructed for a period of six consecutive months, or any applicant fails to reimburse the security fund as required by subsection 30-801(bb) or fails to maintain insurance for such tower and/or facilities as required by subsection 30-801(y), such telecommunications facilities and/or tower shall be deemed to be abandoned. Any telecommunications facilities and/or tower which has been abandoned shall be removed within 60 days of the date such facilities and/or tower are determined to be abandoned. For purposes of rendering a determination of abandonment, the city shall provide notice to the applicant that it intends to seek a determination of abandonment. Notice of intent shall be sent certified mail, return receipt requested, to the applicant's address maintained on file with the city. It shall be the obligation of the applicant to maintain a current address on file with the city. Notice may also be forwarded to the owner, if different from the applicant, at the address listed in the most recent records of the tax collector. Failure of the owner to receive such notice shall not affect any proceedings regarding abandonment. A public hearing on the issue shall be held; however, any documentation to be submitted by the applicant in defense of such action by the city must be provided to the city no less than 20 days prior to any hearing. After consideration of the evidence presented to it, the city council shall determine whether the tower has been abandoned, at which time, the notice requiring removal shall be forwarded. If not removed within 30 days of such notice, the city may remove the tower and/or telecommunications facilities and reimburse itself from the fund required pursuant to subsection 30-801(bb). Any funds remaining shall be returned to the person providing same. If the funds are insufficient, the city shall cause a lien to be filed upon the property upon which the tower and/or telecommunication facilities were located for any amount over that held in the security fund, which shall bear interest at 18 percent per annum.