Ordinance 09-2011 Telecommunication Towers & Antennas ORDINANCE NO. 9-2011
AN ORDINANCE OF THE TOWN COUNCIL OF THE
TOWN OF PALM BEACH, PALM BEACH COUNTY,
FLORIDA, AMENDING THE TOWN CODE OF
ORDINANCES AT CHAPTER 116 RELATING TO
TELECOMMUNICATIONS; AMENDING ARTICLE I,
IN GENERAL; PROVIDING A NEW ARTICLE II, USE
OF THE PUBLIC RIGHTS-OF-WAY; DELETING THE
EXISTING ARTICLE II IN ITS ENTIRITY
PERTAINING TO ENFORCEMENT AND REMEDIES;
DELETING THE EXISTING ARTICLE III IN ITS
ENTIRITY PERTAINING TO SPECIAL RULES;
PROVIDING A NEW ARTICLE III, REGISTRATION;
PROVIDING A NEW ARTICLE IV, ADMINISTRATION
AND ENFORCEMENT AND AMENDING THE
ARTICLE PERTAINING TO PRIVATE
COMMUNICATION FACILITIES BY RENUMBERING
IT TO BECOME ARTICLE V; PROVIDING FOR
SEVERABILITY; PROVIDING FOR REPEAL OF
ORDINANCES IN CONFLICT; PROVIDING FOR
CODIFICATION; PROVIDING AN EFFECTIVE DATE.
BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF PALM
BEACH, PALM BEACH COUNTY, FLORIDA, AS FOLLOWS:
Section 1. The Code of Ordinances of the Town of Palm Beach is hereby
amended at Chapter 116, Telecommunications; Article I, In General; Section 116-1,
Section 116-2, Section 116-3 and Section 116-4 to read as follows:
"Sec. 116-1. Intent and Purpose.
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 town; adopting and administering reasonable rules and regulations
consistent with state and federal law, including F.S. § 337.401, as it may be amended or
repealed in the future, the town's home-rule authority, and in accordance with the
provisions of the Federal Telecommunications Act of 1996 and other federal and state
law as it may be amended from time to time; establishing reasonable rules and
regulations necessary to manage the placement or maintenance of communications
facilities in the public rights-of-way by all communications services providers; and
minimizing disruption to the public rights-of-way.
Ordinance No.9-11 Page 1 of 20
Sec. 116 -2. Definitions.
(Scrivener's Note: The following definitions within section 116 -2 are added, amended or
deleted by this ordinance :)
Abandonment shall mean 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. For example,
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 public rights -of -way.
Cable service shall have the same meaning as that provided in Section 610.103(1) of the
Florida Statutes as that provision shall be amended from time to time. .
Cable system shall have the same meaning as that provided in Section 610.103(3) of the
Florida Statutes as that provision shall be amended from time to time.
"Certificateholder" shall have the same meaning as that provided in Section 610.103(4)
of the Florida Statutes as that provision shall be amended from time to time.
Communications facility means any facility used to provide communications service.
Communications Services shall have the same meaning as that provided in Section
202.11(2) of the Florida Statutes as that provision shall be amended from time to time.
Communications services provider shall mean any person providing communications
services through the placement or maintenance of a communications facility in public
rights -of -way. "Communications services provider" shall also mean any person providing
private communications services as that term is defined in F.S. § 202.11(18), through the
placement or maintenance of a communications facility in public rights -of -way.
In public rights -of -way or in the public rights -of -wa shall mean in, on, over, under or
across the public rights -of -way.
Operator means, when used with reference to a system, a person (i) who provides service
over a communications facility and directly or through one or more affiliates owns a
significant interest in such facility; or (ii) who otherwise controls or is responsible for,
through any arrangement, the management and operation of such a facility. A person that
operates under lease a communications facility or a specific portion of a communications
facility to provide communications services shall be treated as an operator for purposes of
this chapter.
Place or maintain or placement or maintenance or placing or maintaining shall mean to
erect, construct, install, maintain, grade, excavate, place, repair, extend, replace, expand,
remove, occupy, locate or relocate. A communications services provider that owns or
exercises physical control over communications facilities in public rights -of -way, such as
the physical control to maintain and repair, is placing or maintaining the facilities. A
Ordinance No. 9 -11 Page 2 of 20
party providing service only through resale or only through use of a third party's
unbundled network elements is not placing or maintaining the communications facilities
through which such service is provided. The transmission and receipt of radio frequency
signals through the airspace of the public rights -of -way does not constitute placing or
maintaining facilities in the public rights -of -way.
Public rights -of -way shall have the same meaning as that provided in Section 610.103(9)
of the Florida Statutes as that provision shall be amended from time to time.
Registrant shall mean a communications services provider or other person that has
registered with the town in accordance with the provisions of this division.
Registration or register shall mean the process described in this division whereby a
communications services provider provides certain information to the town.
Town shall mean Town of Palm Beach, Florida.
Video service shall have the same meaning as that provided in Section 610.103(11) of the
Florida Statutes as that provision shall be amended from time to time.
Video service provider shall have the same meaning as that provided in Section
610.103(12) of the Florida Statutes as that provision shall be amended from time to time.
Sec. 116 -3. Reservation of authority.
(a) The town may do all things which are necessary and convenient in the exercise of its
jurisdiction under this chapter.
(b) The town expressly reserves the right to amend this chapter from time -to -time in the
exercise of its lawful powers.
(c) To the extent consistent with federal or state law, the town may amend this ordinance
to, among other things, require all or any communications services provider to obtain a
franchise for the use of the town's rights -of -way.
Sec. 116 -4. Conditional use of public rights -of -way.
An operator may use its communications facilities only for communications services. In
the event an operator desires to use its existing facilities or to construct new facilities for
the purpose of providing other utility or non - utility services to existing or potential
consumers or resellers, by providing any other services other than the provision of
communications service, or for providing any other use to existing or potential
consumers, an operator shall seek such additional and separate authorization from town
for such activities as may be required by applicable law.
Ordinance No. 9 -11 Page 3 of 20
Section 2. The Code of Ordinances of the Town of Palm Beach is hereby
amended at Chapter 116, Telecommunications; by providing a new Article II, entitled
Use of the Public Rights -of -Way; Section 116 -5 through Section 116 -20, to read as
follows:
"Sec. 116 -5. Compensation required.
(a) All dealers of taxable communications services, as those terms are defined under
state law, shall pay a local communications services tax authorized under F.S. §
202.19(1) on all communications services, subject to tax under F.S § 202.12 which:
(1) Originate or terminate in this state; and
(2) Are charged to a service address in the municipality.
(b) Every pass - through provider as defined in Section 337.401(6)(a)(1) shall pay an
annual fee of [$500] per linear mile.
(c) Establishment of fees. To the extent consistent with state and federal law, the town
may fix from time -to -time by resolution or other legislative act , any fees related to the
use and occupation of the town's public rights -of -way by communications services
providers to provide communications services.
Sec. 116 -6 Public, Educational, and Governmental access channels.
(a) A certificateholder providing cable or video service within the Town, shall designate
a sufficient amount of capacity on its network to allow the provision to the Town of one
public, educational, and governmental access channel. Certificateholders must provide
this channel within 180 days of the Town's request for such channel.
(b) To the extent permitted by state and federal law, the Town may request additional
public, educational, and governmental access channels.
Sec. 116 -7. Placement or maintenance of a communications facility in public rights -of-
way.
An operator shall at all times comply with and abide by all applicable provisions of state,
federal and local law and town ordinances, codes and regulations in placing or
maintaining a communications facility in public rights -of -way.
Sec. 116 -8. Construction procedures and placement of facilities; obligation to minimize
interference with use of public rights -of -way.
(a) The construction and repair of communications facilities are subject to the
supervision of all of the authorities of the town that have jurisdiction in such matters, and
Ordinance No. 9-11 Page 4 of 20
shall be performed in compliance with all laws, ordinances, departmental rules and
regulations and practices affecting such system. By way of example, and not limitation,
this includes zoning codes, safety codes and construction standards. In addition, the
construction and repair shall be performed in a manner consistent with high industry
standards. Persons engaged in the construction or repair of communications facilities
shall exercise reasonable care in the performance of all their activities, and use commonly
accepted methods and devices for preventing failures and accidents that are likely to
cause damage, injury, or nuisance to the public or to property.
(b) Construction or repair of a communications facility shall not commence until written
permits have been properly filed for and obtained from the proper town officials and all
required permit and associated fees paid. In any permit so issued, the town may impose
as a condition of the granting of the permit such conditions and regulations as may be
necessary to the management of the right -of -way, including, by way of example and not
limitation, for the purpose of protecting any structures in the public rights -of -way, for the
proper restoration of such public rights -of -way and structures, and for the protection of
the town and the public and the continuity of pedestrian and vehicular traffic.
(c) Without limiting the foregoing, communications facilities shall be constructed,
operated and repaired in accordance with good engineering practices. No work on the
facilities shall be performed except by experienced and properly trained personnel. The
operator of a communications facility is responsible for all the acts of its contractors and
subcontractors, and for ensuring that its contractors and subcontractors perform all work
in compliance with this chapter and any applicable franchise.
(d) Operators of communications facilities must follow town established requirements
for placement of facilities in public rights -of -way, including the specific location of
facilities in the public rights -of -way and must in any event install facilities in a manner
that minimizes interference with the use of the public rights -of -way by others, including
others that may be installing communications facilities. The town may require that
facilities be installed at a particular time, at a specific place, or in a particular manner as a
condition of access to a particular right -of -way. The town may deny access if an operator
is not willing to comply with the requirements established by the town, or may remove
any facility that is not installed in compliance with the requirements established by the
town, or which is installed without prior town approval of the time, place or manner of
installation and charge the operator of the facility for all the costs associated with the
removal. The town may require a person using the right -of -way to cooperate with others
to minimize adverse impacts on the right -of -way through joint trenching and other
arrangements.
(e) Upon order of the town manager or his designee, all work which does not comply
with the permit, the approved plans or specifications for the work, or the requirements of
articles I and II of this chapter or other applicable law shall be removed.
(0 Every operator of a communications facility shall make available to other franchisees
or licensees any of its conduits that is excess, so long as it is excess, at a reasonable,
Ordinance No. 9 -11 Page 5 of 20
nondiscriminatory rental fee for such use, subject to F.S. ch. 364. The town may require
as a condition of issuing any right -of -way permit for underground conduit the installation
of which requires excavation of or along any traveled way that the franchisee, licensee, or
holder of the right -of -way permit emplacement of conduit in excess of its present and
reasonably foreseeable requirements for the purpose of accommodating other franchisees
and licensees for a reasonable charge.
(g) To the extent possible, operators of communications facilities shall use existing poles
and conduit in installing their system. In no case may additional poles be installed in the
right -of -way without the permission of the town; any person who is permitted to install
poles must lease capacity on those poles to others, at a rate not higher than the rate that
would be permitted if 47 USC § 224 applied, subject to F.S. Ch. 364.
(h) Except as town may direct otherwise, communications facilities may be constructed
overhead where poles exist and electric or lines of a local exchange carrier franchised
before 1990 are overhead, but where both electric or such telephone lines are
underground, or are being initially placed underground (whether voluntarily or at the
town's direction), other communications facilities shall be constructed underground.
Whenever and wherever the owner of the poles upon which aerial facilities are located
moves its plant from overhead to underground placement in an area, all communications
facilities in that area shall be similarly moved underground.
(i) Any and all public rights -of -way, public property, or private property that is disturbed
or damaged during the construction, operation or repair of a communications facility
shall be promptly repaired by the communications facility operator.
(j) No tree trimming shall be performed without the permission of the town and other
affected authorities, and any tree trimming must be performed in strict accordance with
the town Code.
Sec. 116 -9. Relocation of facilities.
(a) A communications facility operator shall, by a time specified by the town, protect,
support, temporarily disconnect, relocate, or remove any of its property when required by
the town by reason of traffic conditions; public safety; public right -of -way construction;
public right -of -way repair (including resurfacing or widening); change of public right -of-
way grade; construction, installation or repair of sewers, drains, water pipes, power lines,
signal lines, tracks, or any other type of government -owned communications system,
public work or improvement or any government -owned utility; public right -of -way
vacation; or for any other purpose where the work involved would be aided by the
removal or relocation of the communications facility. Collectively, such matters are
referred to in subsections (a)(1) and (2) of this section as the "public work."
(1) Except in the case of emergencies, the town shall provide written notice
describing where the public work is to be performed at least one week prior
to the deadline by which a communications facility operator must protect,
Ordinance No. 941 Page 6 of 20
support, temporarily disconnect, relocate or remove its facilities. A
communications facility operator may seek an extension of the time to
perform such tasks where they cannot be performed in a week even with the
exercise of due diligence, and such request for an extension shall not be
unreasonably refused.
(2) In the event of an emergency, or where a communications facility creates or
is contributing to an imminent danger to health, safety, or property, the town
may protect, support, temporarily disconnect, remove, or relocate any or all
parts of the communications facility without prior notice, and charge the
communications facility operator for costs incurred.
(b) If any person that is authorized to place facilities in the right -of -way requests another
communications facility operator receiving the request to protect, support, temporarily
disconnect, remove, or relocate its facilities to accommodate the construction, operation,
or repair of the facilities of such other person, the communications facility operator shall,
after 30 days' advance written notice, take action to effect the necessary changes
requested. Unless the matter is governed by a valid contract or a state or federal law or
regulation, or in other cases where the communications facility that is being requested to
move was not properly installed, the reasonable cost of the move shall be borne by the
party requesting the protection, support, temporary disconnection, removal, or relocation
and at no charge to the town.
(c) A communications facility operator shall, on the request of any person holding a
valid permit issued by a governmental authority, temporarily raise, lower or move its
facilities to permit the moving of buildings or other objects. The expense of such
temporary removal or raising or lowering of facilities shall be paid by the person
requesting the temporary removal or raising or lowering of the facilities. A
communications facility operator shall be given not less than seven days' advance notice
to arrange for such temporary facilities changes.
(d) A communications facility operator may abandon any property in place upon notice
to the town, unless the town determines, in the exercise of its reasonable discretion within
90 days of the notice of abandonment from the operator, that the safety, appearance,
functioning or use of the public right -of -way and facilities in the public right -of -way will
be adversely affected thereby, in which case the operator must remove its property by a
date specified by the town.
(e) If a state statute requires the town to compensate a person for the cost of relocation or
removal, nothing in this chapter shall be read to abrogate any right such person may have
to that compensation.
Sec. 116 -10. Underground services alert.
Each operator of a communications facility that places facilities underground shall
participate in the "one- call" system as required by state statutes and shall field mark the
Ordinance No. 9 -11 Page 7 of 20
locations of its underground communications facilities upon request. The operator shall
locate facilities for the town at no charge.
Sec. 116 -11. Publicizing work.
A communications facility operator shall publicize the initial build or any substantial
rebuild, upgrade or extension of its facility that involves work in public rights -of -way in
each affected neighborhood at least one week prior to commencement of that work by
causing written notice of such construction work to be delivered to the town and by
notifying those persons whose property is within 300 feet of the work in at least two of
the following ways: by telephone, in person, by certified mail with return receipt
requested, by publication in local newspapers, or in any other manner reasonably
calculated to provide adequate notice or as the town may direct from time to time. Apart
from any initial build or substantial rebuild or upgrade, any underground construction
will be publicized in accordance with applicable notice requirements. In other cases,
before entering onto any private property, a communications facility operator shall
contact the property owner or (in the case of residential property) the resident at least one
day in advance, and describe the work to be performed.
Sec. 116 -12. Abandonment of a communications facility.
(a) Upon abandonment of a communications facility in public rights -of -way, an operator
shall notify the town within 90 days.
(b) The town may direct the operator to remove all or any portion of such abandoned
facility at the operators sole expense if the town determines that the abandoned facility's
presence interferes with the public health, safety or welfare, which shall include, but is
not limited to:
(1) Compromises safety at any time for any public rights -of -way user or during
construction or maintenance in public rights -of -way;
(2) Prevents another person from locating facilities in the area of public rights -of -way
where the abandoned facility is located when other alternative locations are not
reasonably available;
(3) Creates a maintenance condition that is disruptive to the public rights -of -way's
use; or
(4) Creates a burden on the aesthetics of the town.
In the event of (2), the town may require the third person to coordinate with the operator
that owns the existing facility for joint removal and placement.
(c) In the event that the town does not direct the removal of the abandoned facility, the
operator, 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 the town, another utility or
person at such third party's cost.
Ordinance No. 9 -11 Page 8 of 20
(d) If the operator fails to remove all or any portion of an abandoned facility as directed
by the town within a reasonable time period as may be required by the town under the
circumstances, the town may perform such removal and charge the cost of the removal
against the operator.
Sec. 116 -13. Indemnification.
A communications facility operator or a private communications facility owner must
provide the town an adequate indemnity from such operator. The indemnity must at
least:
(1) Release the town from and against any and all liability and responsibility in or arising
out of the construction, operation or maintenance of the communications facility. Each
communications facility operator must further agree not to sue or seek any money or
damages from town in connection with the liability mentioned in this subsection;
(2) Indemnify, save and hold harmless the town, its trustees, elected and appointed
officers, agents, and employees, from and against any and all claims, demands, or causes
of action of whatsoever kind or nature, and the resulting losses, costs, expenses,
reasonable attorneys' fees, liabilities, damages, orders, judgments, or decrees, sustained
by the town or any third party arising out of, or by reason of, or resulting from or of the
acts, errors, or omissions of the communications facility operator, or its agents,
independent contractors or employees related to or in any way arising out of the
construction, operation or repair of the facility.
Sec. 116 -14. Insurance.
A communications facility operator or private communications facility owner shall
provide assurance that such operator (and those acting on its behalf) have adequate
insurance. At a minimum, the following requirements must be satisfied:
(1) A communications facility operator shall not commence construction or operation of
the facility without obtaining all insurance required under this subsection and approval of
such insurance by the risk manager of the town, nor shall a communications facility
operator allow any contractor or subcontractor to commence work on its contract or
subcontract until all similar such insurance required of a contractor or subcontractor has
been obtained and approved. The required insurance must be obtained and maintained for
the entire period the communications facility operator has facilities in the right -of -way,
and for a period thereafter as specified in the minimum coverages described in this
section. If the operator, its contractors or subcontractors do not have the required
insurance, the town may order such entities to stop operations until the insurance is
obtained and approved.
(2) Certificates of insurance, reflecting evidence of the required insurance, shall be filed
with the risk manager. For entities that are entering the market, the certificates shall be
filed prior to the commencement of construction and once a year thereafter, and as
Ordinance No. 9 -11 Page 9 of 20
provided in this section in the event of a lapse in coverage. For entities that have facilities
in the right -of -way as of the effective date of the ordinance from which this chapter is
derived, the certificate shall be filed within 60 days of the date of the ordinance from
which this chapter is derived, annually thereafter, and as provided in this section in the
event of a lapse in coverage, unless a pre- existing franchise provides for filing of
certificates in a different manner. All insurance policies required by this section, except
for the workers' compensation insurance, shall be issued in a form and with endorsements
reasonably satisfactory to the town. All such insurance may be carried under a blanket
policy so long as the amounts of coverage in respect of this chapter are not affected as a
result of a claim involving another insured. The communications facility operator or
operators providing insurance required hereunder shall have no right of recovery or
subrogation against the town, including its officials, employees, representatives and
agents, and such insurance policies shall contain an endorsement to that effect. Nothing
contained in this section shall be construed as a waiver of sovereign immunity in
accordance with F.S. § 768.28.
(3) All such insurance and each certificate therefor shall contain endorsements that (i)
such insurance may not be canceled, modified or amended with respect to the town (or
any of its officials, employees, representatives and agents) except upon 30 days' prior
written notice to the town (and such officials, employees, representatives and agents); and
(ii) the communications facility operator shall be solely responsible for payment of
premiums and the town (and its officials, employees, representatives and agents) shall not
be required to pay any premium for such insurance. The minimum limits of the
comprehensive general public liability policy of insurance shall in no way limit or
diminish the communications facility operator's liability; provided, however, that such
insurance policy is intended to protect both parties and to be the primary coverage for any
and all losses that are covered thereby or provided for in this chapter. Policies shall be
issued by companies authorized to do business under the laws of the state. Financial
ratings must be no less than "A" in the latest edition of Bests Key Rating Guide,
published by A.M. Best Guide.
(4) In the event that the insurance certificate provided indicates that the insurance shall
terminate or lapse during the period of the franchise or license, then in that event, the
communications facility operator shall furnish, at least 30 days prior to the expiration of
the date of such insurance, a duplicate original or a certificate of insurance on all policies
procured by the communications facility operator in compliance with its obligation under
this chapter for the balance of the period of the franchise or license under which the
communications facility operates, together with evidence satisfactory to the town of the
payment of the premiums for such insurance policies.
(5) A communications facility operator and its contractors or subcontractors engaged in
work on the operator's behalf in, on, under or over public rights -of -way, shall, at its own
cost and expense, obtain and provide, on or before the date of acceptance by the
communications facility operator of any franchise and/or license authorized by the town,
and maintain and keep in full force and effect at all times thereafter during the term of
Ordinance No. 9 -11 Page 10 of 20
such franchise and/or license, the following minimum insurance coverage with respect to
the operator's communications facility:
a. Comprehensive general public liability insurance. Comprehensive general public
liability insurance, underwritten by one or more insurance companies reasonably
satisfactory to the town and in standard form, protecting the town as an additional
insured, including its officials, employees, representatives and agents, against any
and all liability, arising out of or in connection with the construction, operation,
maintenance or removal of the communications facility in the amount of not less
than $10,000,000.00 to cover liability for bodily injury or death and property
damage. Exposures to be covered are: premises, operations, products /completed
operations, and certain contracts. Coverage must be written on an occurrence
basis and in addition:
1. Completed operations and products liability shall be maintained for two years
after the termination of the franchise or license agreement (in the case of the
communications facility operator) or completion of the work for the
communications facility operator (in the case of a contractor or
subcontractor).
2. Property damage liability insurance shall include Coverage for the following
hazards: X - explosion, C - Collapse, U - underground.
b. Workers' compensation insurance. Workers' compensation insurance shall be
obtained and maintained, as required by the law of the state, during the life of the
franchise and /or license to comply with statutory limits for all employees, and in
the case any work is sublet, each communications facility operator shall require
the subcontractors similarly to provide workers' compensation insurance for all
the latter's employees unless such employees are covered by the protection
afforded by each communications facility operator. Each communications facility
operator and its contractors and subcontractors shall maintain during the life of
this policy employers liability insurance with a minimum coverage of
$500,000.00 per occurrence.
c. Comprehensive automobile liability insurance. Comprehensive automobile
liability insurance shall be obtained and maintained to comply with statutory
limits covering all vehicles owned, hired or leased and nonowned vehicles used,
directly or indirectly, in connection with any work performed by such operator or
any replacement, repair, alteration, restoration or construction of the
communications facility by the operator, as required by the law of the state. The
communications facility operator will require any contractors or subcontractors to
maintain insurance coverage consistent with the obligations expressed in this
section.
(6) Each communications facility operator shall at all times indemnify, save and hold
harmless the town, its officials, representatives, agents, and employees, whether during or
after the expiration of the term of its franchise or license, from and against all claims,
actions, damages, liabilities, penalties, losses, costs and expenses, including, without
limitation, attorneys' fees and disbursements, that (i) arise out of or in connection with the
operation, use, manner of use, management, repair, maintenance, restoration, construction
Ordinance No. 9 -11 Page 11 of 20
or control of the operator's communications facility or any portion thereof, or (ii) arise
out of or in connection with any act, omission or negligence of the communications
facility operator or any of its officers, employees, agents, representatives, contractors or
assignees, or (iii) arise out of any default, breach, violation or nonperformance of this
chapter, or (iv) arise out of injury to person or property or loss of life attributable to the
communications facility operator's operation of its communications facility. The town
shall be named as an additional insured in all insurance policies required by this chapter.
(7) Each communications facility operator shall, at its own costs and expense, defend
any and all actions, suits and proceedings which may be brought against, and the
communications facility operator shall pay, satisfy and discharge any and all judgements,
orders and decrees which may be made or entered against, the town, its officials,
employees, representatives and agents with respect to, or in connection with, the
provisions contained in subsection (6) of this section. The comprehensive general public
liability coverage maintained by the communications facility operator pursuant to this
chapter shall specifically insure the contractual obligations of the communications facility
operator as set forth in this subsection and/or as otherwise provided in this chapter.
(8) In every franchise, license or agreement, the town shall reserve the right to require
any other insurance coverage it deems necessary depending upon the exposures. Failure
to comply with the insurance requirements set forth in this section shall constitute a
material violation of this chapter.
Sec. 116 -15. Performance /payment bonds.
Every operator of a communications facility may be required to obtain performance
bonds and, if necessary, payment bonds to ensure the faithful performance of its
responsibilities under this chapter , including sufficient funds to cover removal of
facilities. The amount of the performance and payment bonds shall be set by the town
manager in light of the nature of the work to be performed, and is not in lieu of any
additional bonds that may be required through the permitting process. The bond shall be
in a form acceptable to the town attorney. The town may from time to time increase the
amount of the required performance bond to reflect increased risks to the town and to the
public.
Sec. 116 -16. Force majeure.
A force majeure event shall not relieve the operator of its obligations under this chapter.
Sec. 116 -17. Responsibility for costs.
Except as expressly provided otherwise, any act that a communications facility operator,
its contractors or subcontractors are required to perform under this section shall be
performed at their cost. If a communications facility operator fails to perform work that it
is required to perform within the time provided for performance, the town may perform
Ordinance No. 9 -11 Page 12 of 20
the work, and bill the communications facility operator therefor. The communications
facility operator shall pay the amounts billed within 30 days.
Sec. 116 -18. No recourse against the town.
Without limiting such immunities as the town or other persons may have under
applicable law, a communications services provider shall have no monetary recourse
whatsoever against the town or its officials, boards, commissions, agents or employees
for any loss, costs, expense or damage arising out of any provision or requirement of this
chapter or because of the enforcement of this chapter or the town's exercise of its
authority pursuant to this chapter, or other applicable law, unless the such actions shall be
caused by criminal acts or by willful or gross negligence. Nothing contained in this
section shall be construed as a waiver of sovereign immunity in accordance with F.S. §
768.28.
Sec. 116 -19. Existing communications facilities in public rights -of -way.
A communications services provider with an existing communications facility in the
public rights -of -way of the town has 60 days from the effective date of this division to
comply with the terms of this ordinance, including, but not limited to, registration, or be
in violation thereof.
Sec. 116 -20. Special rules for government entities.
Nothing in this chapter requires the town to apply the provisions of this chapter to a
government entity if the town determines that it is not in the public interest to do so.
Nothing in this chapter shall be read to require a government entity to comply with this
chapter, where the town cannot enforce this chapter against such entity as a matter of law.
Section 3. The Code of Ordinances of the Town of Palm Beach is hereby
amended at Chapter 116, Telecommunications; by providing a new Article III, entitled
Registration; Section 116- 21,Section 116 -22 and Section 116 -23, to read as follows:
ARTICLE III. REGISTRATION
Sec. 116 -21. Registration for placing or maintaining communications facilities in public
rights -of -way.
(a) A communications services provider that desires to place or maintain a
communications facility in public rights -of -way in the town shall first register with the
town in accordance with this division. Subject to the terms and conditions prescribed in
this division, a registrant may place or maintain a communications facility in public
Ordinance No. 9 -11 Page 13 of 20
rights -of -way if, and to the extent such placement and maintenance complies with the
town's ordinances, codes and regulations. A communications services provider with an
existing communications facility in the public rights -of -way of the town as of the
effective date of this division shall comply with this division within 60 days from the
effective date of this division, including, but not limited to, registration, or be in violation
hereof.
(b) A registration shall not convey any title or property interest, equitable or legal, to the
registrant in the public rights -of -way. A registration shall be revocable at -will to the
extent permitted by state and federal law. Registration under this division governs only
the right to place or maintain communications facilities in public rights -of -way. A
registrant may place and maintain communications facilities, if, and to the extent the
registrant is in full compliance with town ordinances, codes or regulations. Registration
does not excuse a communications services provider from obtaining appropriate permits,
authorized access or pole attachment agreements before locating its facilities in the public
rights -of -way or on the town's or another person's facilities. Registration does not excuse
a communications services provider from complying with all applicable town ordinances,
codes or regulations, including this division.
(c) Each communications services provider that desires to place or maintain a
communications facility in public rights -of -way in the town shall file a registration with
the town which shall include the following information:
(1) Name of the applicant;
(2) Name, address and telephone number of the applicant's primary contact person in
connection with the registration and the person to contact in case of an
emergency;
(3) For registrations submitted prior to October 1, 2001, the applicant shall state
whether it provides local service or toll service or both;
(4) Evidence of the insurance coverage required under this division and
acknowledgment that registrant has received and reviewed a copy of this division;
(5) A copy of the applicant's certificate of authorization or license to provide
communications services issued by the state public service commission, the
Federal Communications Commission, or other federal or state authority, if any;
(6) For an applicant that does not provide a state public service commission
certificate of authorization number, if the applicant is a corporation, proof of
authority to do business in the state, including the number of the certificate of
incorporation; and
(d) The town manager, or his designee, shall review the information submitted by the
applicant. If the applicant submits information in accordance with subsection (c) above,
the registration shall be effective upon the receipt of written notice from the town of the
effectiveness of registration. If the town determines that the information has not been
submitted in accordance with subsection (c) above, 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.
Ordinance No. 9 -11 Page 14 of 20
(e) A registrant may cancel a registration upon written notice to the town stating that it
will no longer place or maintain any communications facilities in public rights -of -way
within the town and will no longer need to obtain permits to perform work in public
rights -of -way. A registrant may not cancel a registration if the registrant continues to
place or maintain any communications facilities in public rights -of -way.
(f) Registration shall not in itself establish any right to place or maintain or reserve
priority for the placement or maintenance of a communications facility in public rights -
of -way within the town. Registrations are expressly subject to any future amendment to
or replacement of this division and further subject to any additional town ordinances, as
well as any state or federal laws that may be enacted.
(g) A registrant shall renew its registration with the town by April 1 of even numbered
years in accordance with the registration requirements in this division, except that a
registrant that initially registers during the even numbered year when renewal would be
due or the odd numbered year immediately preceding such even numbered year shall not
be required to renew until the next even numbered year. Within 30 days of any change in
the information required to be submitted pursuant to subsection (c), except, as of October
1, 2001, subsection (c)(3), a registrant shall provide updated information to the town. If
no information in the then - existing registration has changed, the renewal may state that
no information has changed. Failure to renew a registration may result in the town
suspending a certificate of compliance issued on the basis of the registration until the
communications services provider has complied with the registration requirements of this
division.
(h) In accordance with applicable town ordinances, codes or regulations and this
division, a separate permit for work to be performed in the public rights -of -way shall be
required each time that a communications facility is placed or maintained in public
rights -of -way. An effective certificate of compliance shall be a condition precedent to
obtaining such permits.
Sec. 116 -22. Involuntary termination of registration.
(a) The town may terminate a registration if:
(1) A federal or state authority suspends, denies, or revokes a registrant's certification
or license to provide communications services;
(2) The registrant's placement or maintenance of a communications facility in the
public rights -of -way presents a danger to the general public or other users of the
public rights -of -way and the registrant fails to remedy the danger promptly after
receipt of written notice; or
(3) The registrant ceases to use all of its communications facilities in public rights -of-
way and has not complied with this Code.
(b) Prior to termination of a registration, the registrant shall be notified by the town
manager, or his designee, with a written notice setting forth all matters pertinent to the
Ordinance No. 9 -11 Page 15 of 20
proposed termination action, including which of (1) through (3) above is applicable as the
reason therefore, and describing the proposed action of the town with respect thereto. The
registrant shall have 30 days after receipt of such notice within which to cure or within
which to present a plan to cure, satisfactory to the town manager, or his designee. If the
plan is rejected, the town manager, or his designee, shall provide written notice of such
rejection to the registrant. The town shall make a final decision as to termination of
registration.
(c) In the event of termination, the former registrant shall:
(1) Notify the town of the assumption or anticipated assumption by another registrant
of ownership of the registrant's communications facilities in public rights -of -way;
or
(2) Provide the town with an acceptable plan for disposition of its communications
facilities in public rights -of -way.
If a registrant fails to comply with this subsection (c), the town may exercise any
remedies or rights it has at law or in equity, including but not limiting to taking
possession of the facilities, requiring the registrant's bonding company within 90 days of
the termination to remove some or all of the facilities from the public rights -of -way and
restore the public rights -of -way to its original condition before the removal, or requiring
that some or all of the facilities be removed and the public rights -of -way restored to its
original condition before the removal at the registrant's expense.
(d) In any event, a terminated registrant shall take such steps as are necessary to render
every portion of the communications facilities remaining in the public rights -of -way of
the town safe.
Sec. 116 -23. Enforcement remedies.
(a) A registrant's failure to comply with provisions of this division shall constitute a
violation of this division and shall subject the registrant to the code enforcement
provisions and procedures as provided in F.S. ch. 162 or F.S. § 166.0415, as they may be
amended.
(b) In addition to any other remedies available at law, including but not limited to F.S. §
166.0415, and F.S. ch. 162, or equity or as provided in this division, the town may apply
any one or combination of the following remedies in the event a registrant violates this
division, or applicable local law or order related to the public rights -of -way:
(1) Failure to comply with the provisions of the ordinance or other law applicable to
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 not less than $100.00 per day or
part thereof that the violation continues.
(2) In addition to or instead of any other remedy, the town may seek legal or
equitable relief from any court of competent jurisdiction.
(c) Before imposing a fine pursuant to this section, the town shall give written notice of
the violation and its intention to assess such penalties, which notice shall contain a
Ordinance No. 9 -11 Page 16 of 20
description of the alleged violation. Following receipt of such notice, the registrant shall
have 30 days to either: (a) cure the violation to the town's satisfaction; or (b) file an
appeal with the town to contest the alleged violation. Section 116 -99 shall govern such
appeal. If no appeal is filed and if the violation is not cured within the 30 -day period, the
town may collect all fines owed, beginning with the first day of the violation, through any
means allowed by law.
(d) 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.
(e) Failure of the town to enforce any requirements of this division 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.
(f) The town may find a registrant that does not demonstrate compliance with the terms
and conditions of this division in default and apply any one or combination of the
remedies otherwise authorized by this division.
(g) The town manager or designee shall be responsible for administration and
enforcement of this division, and is authorized to give any notice required by law.
Section 4. The Code of Ordinances of the Town of Palm Beach is hereby
amended at Chapter 116, Telecommunications; by providing a revised Article IV, entitled
Administration and Enforcement; at Section 116 -24, Section 116 -25, Section 116 -26 and
Section 116 -27, to read as follows:
"ARTICLE IV. ADMINISTRATION AND ENFORCEMENT
Sec. 116 -24. Town manager responsible for administration.
The town manager or his designee is responsible for enforcing and administering this
chapter. The town manager or his designee is authorized to give any notice required by
law, including by way of example and not limitation, a notice required under 47 USC §
546.
Sec. 116 -425. Penalties.
Any person who violates any provision of this chapter shall be subject to the jurisdiction
of the code enforcement board of the town and shall be subject to fines pursuant to the
provisions set forth therein.
Ordinance No. 9 -11 Page 17 of 20
Sec. 116 -26. Suspension of permits.
(a) Subject to the provisions of this chapter, the town manager, or his designee may
suspend any and all permits for work in the public rights -of -way for one or more of the
following reasons:
(1) Failure to satisfy permit conditions, including conditions set forth in this division
or other applicable town ordinances, codes or regulations governing placement or
maintenance of communications facilities in public rights -of -way, including
without limitation, failure to take reasonable safety precautions to alert the public
of work at the work site, or to restore any public rights -of -way;
(2) Misrepresentation or fraud by registrant in a registration or permit application to
the town;
(3) Inaccurate information contained in a permit application;
(4) Failure to properly renew or ineffectiveness of registration; or
(5) Failure to relocate or remove facilities as may be lawfully required by the town.
(6) After the suspension of a permit pursuant to this section, the town manager or his
(7) designee shall provide written notice of the reason for the suspension to the
registrant.
Sec. 116 -27. Appeals.
(a) Final, written decisions of the town manager, or his designee, suspending or denying
a permit, denying an application for a registration or denying an application for renewal
of a registration are subject to appeal. An appeal must be filed with the town clerk within
30 days of the date of the final, written decision to be appealed. Any appeal not timely
filed as set forth above shall be waived. The town council shall hear the appeal. The
hearing shall occur within 30 days of the receipt of the appeal, unless waived by the
registrant, and a written decision shall be rendered within 20 days of the hearing. Upon
correction of any grounds that gave rise to a suspension or denial, the suspension or
denial shall be lifted.
(b) Nothing in this division shall effect the remedies the town has available under
applicable law."
Section 4. The Code of Ordinances of the Town of Palm Beach is hereby
amended at Chapter 116, Telecommunications; by providing a revised Article V, entitled
Private Communication Facilities; at Section 116 -28, Section 116 -29 and Section 116 -30,
to read as follows:
Ordinance No. 9 -11 Page 18 of 20
"ARTICLE V. PRIVATE COMMUNICATION FACILITIES
Sec. 116 -28. Application for license.
A person wishing to construct, emplace, operate, replace, reconstruct, or maintain a
private communications system must obtain a license therefor. The license shall only
authorize placement of the system in a specific portion of the public right -of -way for a
limited and specific purpose in connection with the person's business but not
encompassing in whole or in part the carriage of telecommunications for hire in the
public right -of -way, and for a limited period of time. Such application must be in the
form provided for by regulation and must be accompanied by a filing fee, as may be fixed
by regulation, promulgated from time -to -time by the town.
Sec. 116 -29. Conditions of license.
Any license shall be subject to such conditions as the town may from time to time
establish, shall be expressly subordinate to the use of the public rights -of -way by
operators of communications facilities, and shall otherwise conform to the requirements
of this chapter. Subject to the provisions of this article, the provisions of sections 116 -5
through 116 -10 shall apply to a private communications system as if it were a
communications facility.
Sec. 116 -30. Compensation.
The owner of a private communications facility shall pay compensation to the town as set
forth in the Standards Applicable to Public Rights -of -Way and Easements Within the
Town of Palm Beach on a going forward basis from the time that the amount of the fee is
established or modified by resolution or other legislative action of the town council.
Section 5. Severability.
If any provision of this Ordinance or the application thereof is held invalid, such
invalidity shall not affect the other provisions or applications of this Ordinance which can
be given effect without the invalid provisions or applications, and to this end the
provisions of this Ordinance are hereby declared severable.
Section 6. Repeal of Ordinances in Conflict.
All other ordinances of the Town of Palm Beach, Florida, or parts thereof which conflict
with this or any part of this Ordinance are hereby repealed.
Section 7. Codification.
This Ordinance shall be codified and made a part of the official Code of Ordinances of
the Town of Palm Beach.
Ordinance No. 9 -11 Page 19 of 20
Section 8. Effective Date.
This Ordinance shall take effect immediately upon its passage and approval, as provided
by law.
PASSED AND ADOPTED in a regular, adjourned session of the Town Council of the
Town of Palm Beach on first reading this 8 day of March, 2011, and for second and
final reading on this 12 day of April 2011.
)0,„4,
. Conigho, Mayor / David A. Rosow, Town Council President
V y •' •^ :, I ' r Robert Brick, Presia ent Pro Tem
s r/
. , � • f f f. 1
s
• William J. Di, . o Nr own o ncil Member
` � y
#rtS‘r: Richard M. Kleid, Town Council Member
r � �' C ,� �*� g Town Clerk Mic zael Pucillo, To n ouncil Member
SU5 Ary A. Owerv.S
Ordinance No. 9 -11 Page 20 of 20
TOWN OF PALM BEACH
Town Council Meeting on: April 12, 2011
Section of Agenda
Ordinances - Second Reading
Agenda Title
ORDINANCE NO. 9 -11 An Ordinance of the Town Council of the Town of Palm Beach,
Palm Beach County, Florida, Amending the Town Code of Ordinances at Chapter 116
Relating to Telecommunications; Amending Article I, in General; Providing a New Article
II, Use of the Public Rights -of -Way; Deleting the Existing Article II in its Entirety
Pertaining to Enforcement and Remedies; Deleting the Existing Article III in its Entirety
Pertaining to Special Rules; Providing a New Article III, Registration; Providing a New
Article IV, Administration and Enforcement and Amending the Article Pertaining to Private
Communication Facilities by Renumbering it to Become Article V; Providing for
Severability; Providing for Repeal of Ordinances in Conflict; Providing for Codification;
Providing an Effective Date.
Presenter
Thomas G. Bradford, Deputy Town Manager
Supporting Documents
• Ordinance No. 9 -11
No. 9 -11
The following Ordinance Number 9-11,
published by caption only, which will be
read and shall be adopted at the Town
Council Meeting held in the Town Hall
Council Chambers at 360 South County
Road, Palm Beach, Florida, on the 12th
day of April 2011, will be presented
for a second reading in the Town Hall
Council Chambers at 360 South County
Road, Palm Beach, Florida, on the 12th
day of April, 2011, at 9:30 a.m. Any
interested party may appear at said
meeting and be heard with respect to
this proposed Ordinance. The subject
Ordinance may be inspected by the
public at the Town Hall on the first floor
Bulletin Board, or in the Office of the
Town Clerk.
ORDINANCE NO. 9.11
AN ORDINANCE OF THE TOWN
COUNCIL OF THE TOWN OF PALM
BEACH, PALM BEACH COUNTY,
FLORIDA, AMENDING THE
TOWN CODE OF ORDINANCES
AT CHAPTER 116 RELATING
TO TELECOMMUNICATIONS;
AMENDING ARTICLE I, IN
GENERAL; PROVIDING A NEW
ARTICLE II, USE OF THE PUBLIC
RIGHTS -OF -WAY; DELETING
THE EXISTING ARTICLE II IN
ITS ENTIRETY PERTAINING TO
ENFORCEMENT AND REMEDIES;
DELETING THE EXISTING ARTICLE
III IN ITS ENTIRETY PERTAINING
TO SPECIAL RULES; PROVIDING A
NEW ARTICLE III, REGISTRATION;
PROVIDING A NEW ARTICLE
IV, ADMINISTRATION AND
ENFORCEMENT AND AMENDING
THE ARTICLE PERTAINING TO
PRIVATE COMMUNICATION
FACILITIES BY RENUMBERING IT TO
BECOME ARTICLE V; PROVIDING
FOR SEVERABILITY; PROVIDING
FOR REPEAL OF ORDINANCES
IN CONFLICT, PROVIDING FOR
CODIFICATION; PROVIDING AN
EFFECTIVE DATE.
Pursuant to Florida Statute 286.0105,
please be advised that if any person
decides to appeal any decision made
by the Town Council with respect to
any matter considered of this meeting,
a record of these proceedings will be
7 t needed, and that, for such purpose,
such person may need to ensure that
a verbatim record of the proceedings
is made, which record includes the
testimony and evidence upon which the
appeal is to be based.
Cheryl Somers
Acting Town Clerk
Town of Palm Beach
PUBLISH: Palm Beach Daily News,
Thursday, March 31, 2011
_ t
THE PALM BEACH DAILY NEWS
Published Daily from the third Sunday in September through
the third Sunday In May; BI- weekly June through September.
Palm Beach, Palm Beach County, Florida
PROOF OF PUBLICATION
STATE OF FLORIDA
COUNTY OF PALM BEACH
Before the undersigned authority personally appeared Linda Goings who on oath says that she is
Advertising Director of the Palm Beach Daily News, a daily and a bi- weekly newspaper published
at Palm Beach In Palm Beach County, Florida; that the attached copy of advertisement, being a
Public Notice in the matter of Reference #5896360R was published In said newspaper In the issue of
March 31 2011.
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